If you can get your hands on it, read Julia A. Greenberg’s article “Defining Male and Female: Intersexuality and the Collision Between Law and Biology,” published in the 1999 Arizona Law Review. (Try a public or academic library with access to Lexis-Nexis.) This applies some complex perspectives on gender—held by pomos, feminists, anthropologists, biologists, etc.—to our legal system. Foucault and the others certainly were clever at times. In Greenberg’s law review article and in court cases across the world, we see discourse and control intertwined; it becomes not just socially but legally mandated to define identities and even to shape bodies to support these ways of talking and perceiving the world. A rigidly policed gender binary is necessary in order to sustain heterosexism (and, arguably, sexism).

I did a lot of reading for this blog and was going to reference many an article and news case. I find, instead, that I feel like ranting.

Most states in the USA have some method of changing one’s legal sex (whether by revising or replacing birth certificates). But throughout the country, and definitely across the globe, these methods vary. Is the petitioner’s identity claim enough? Does it take a letter from a psychologist? A physician? Both? Must a supporting letter diagnose gender identity dysphoria? Intersexuality? Is prior treatment required—hormonal, therapeutic, surgical? How much treatment?

On, and on, and on, it goes. And I can’t help but think: we can change our hair, nail, eye color at will; darken pale skin with chemicals or sun damage; eat and laze ourselves into life-threatening obesity; staple our stomachs into submission and liposuction the fat out of ourselves; augment or reduce breasts for aesthetics or health or self-confidence; pierce nearly anything (and gauge those piercings); enlarge a penis with chemicals, gadgets or surgery…but add something like a penis or breasts where they’re not expected, and suddenly the matter moves from a decision between either you and you, or you and your doctor…to one between you and the government.

It especially matters to the government if you want possession of a penis to entitle you to being treated like everybody else with a penis. Because you already recognize that what’s in your pants is not just of private significance, but also strangely important to government/society and pivotal in their regulation of your relationships. If you want, say, to bring your Mexican wife into the country, you’d better be able to prove you have a legitimate marriage, which usually means you’d better prove your maleness, which usually means prove you have a penis. And, in case you’re wondering at my failure to mention snatch: at birth, we’re sorted into 1) those who have a penis, and 2) those who do not have a penis (or, in some cases, have too small a penis to count). That’s right, feminists. Women are still defined by their lack, from the get-go. And courts are inclined to look at it as “but you don’t have a penis!” or “what’d you do with your penis?!” or, more quietly, “well, you do have a penis….”

But let’s get back to the general concepts of body modification. A state-recognized woman can change her breasts at will. A state-recognized man can (try to) change his penis. In cases of intersexuality, surgery is often expected in order to move someone more in line with an idealized male or female body form. This is because we realize there are plenty of recognized “dudes” who are overweight and have breasts, plenty of women with mustaches and flat chests and slim hips, and so on. And we want you to be able to (spend your money to) correct these unfortunate physical inadequacies and further polarize yourself. But don’t ask to move across the sex lines, and definitely don’t ask to straddle both sides of the line, or to live on a different plane entirely. Our culture will continuously ignore intersexuality and the fact that the bajillion factors in so-called straightforward biological sex do not always align in this binary fabrication we call male/female. (did you see what I did there? Straightforward. Ha.) There are testes with tatas, XY with a side dose of extra X, and many other variations in the human form (including the much-feared Clitorises of Unusual Size). But hey, why question the binary sex system and its associated stereotypes, when we can just call out these individuals with “abnormal” genotypes and phenotypes, these “freaks of nature”?

Well, excuse me, darlings, but maybe an unadjusted body is as friggin’ “natural” as it gets, and we should get over this socially constructed discursive and medical regulation of our bodies and recognize evidence of life outside the binary.

Some food for more academic thought:
DOJ - Recognizing Sex Change to Allow Immigration by Marriage
What’s up in Egypt
Miss Spain rules to allow transsexuals and mothers
HRW: Resource Library for International Jurisprudence on Sexual Orientation and Gender Identity
Spanish Government to approve transsexual rights law
Legal aspects of transsexualism (Wikipedia)
An identity under scrutiny in Palestine (Human Rights Watch, 21-6-2007)
Gender Recognition Act 2004 (Wikipedia)

Creative Commons License