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A Legal End To Gender

smigliori's picture

Registering to vote, setting up a myspace account, and walking into almost any public bathroom all have one thing in common: they each require the individual to declare their gender and/or sex identity.  For most people, this may not seem to be a cause for alarm; society trains everyone to express a specific gender identity (either “masculine” or “feminine” based on whether their genitals are “male” or “female”) from their birth.  These gender identities make it easy to determine whether one has male or female genitals, therefore allowing the heterosexual “norm” to easily prevail by simplifying the policing of non-heteronormative sexual configurations.  Strictly enforced gender stereotypes position heterosexuality as the only normal sexual behavior and reinforce notions that there are only two sexes.  This categorization based on genitals and socialized sex-specific behavior ultimately causes not only an erasure of all existences which do not fit into the gender binary, but also allowed for the inevitable privileging of one group over the other.  The existence of transgender and intersex individuals points to the inadequacy of both the sex and gender binaries as well as the notion that one’s sex and gender should agree.  Just as beliefs that racial difference, encouraged by the study of eugenics, legitimized the subjugation of one race to another, so beliefs in sex difference, encouraged by biologists and psychologists, have led to beliefs that “men” and “women” should be treated differently.  In order to have true equality between all people, it is therefore necessary that the belief in gender differences be eradicated and the legal separation of people into “male” and “female” either on the basis of gender or sex be stopped accordingly.

            Belief in sexual difference stems from socialization.  In My Words to Victor Frankenstein above the Village of Chamounix: Performing Transgender Rage, Susan Stryker recalls the rage ze felt at the birth of hir lover’s baby.  This rage was due to the “non-consensuality of the baby’s gendering”, causing Stryker to feel “the pains of two violations, the mark of gender and the unlivability of its absence”.[1]  At the moment of birth, the doctor declared the baby to be female.  Hir sex was checked off as “female” on the birth certificate and any variation from everything that entailed would be punished severely by society.   From that point forward, it was clearly expected that the child would be raised to act according to sex-stereotyped behavior, especially those behaviors which are considered biologically inherent such as the “instinctive nurturing” by women or the “aggressiveness” of men.  “Girls” should be socialized to wear pink frilly dresses, play with dolls, and chastely await the day when their Prince Charming will sweep them off their feet.  “Boys” are taught to like cars and trucks, avoid any display of emotion, and provide for women and children, as both of them are unable to take care of themselves.  It is clear that most children adopt these behaviors without resistance, just as they adopt tastes for food based on what their caregivers feed them.  However, at what point do they recognize these traits as belonging to a specific sex/gender (as the two separate terms are all too often conflated in the minds of society)?

            Anne Fausto-Sterling, in hir biologically-based renunciation of the sex/gender binary and biologic essentialism, Sexing the Body: Gender Politics and the Construction of Sexuality, cites various psychological studies on the ability of children to recognize and label gendered bodies and behaviors.   Ze claims that “in America, at least, small children seem to base their initial, rudimentary gender schema on cultural markers of gender, not knowledge of genital difference.”[2]  This is supported by the findings of the study by Beverly Fagot which states that children of about two years were incapable of labeling according to gender, as well as the study by Sandra Bem showing that only forty percent of children aged three through five years of age were able to identify sex once they knew what genitalia an individual possessed.[3]  The fact that these children are concerned with a difference between “boys” and “girls” without knowing the difference between “male” and “female” genitalia points to social construction, especially as they were only able to differentiate based on “social clues—clothes and hairstyles”.[4] 

Even as these children are unaware of the fundamental difference between boys and girls, it is likely that they have already heard trite phrases such as “boys are better at sports” or “boys are more skilled in math and science, girls excel in English.”  Already, children will begin arguing and separating into sex-based cliques on the playground, and their teachers’ (perhaps unconscious) favoritism of “boys” in science and math courses and “girls” in writing and reading courses will begin to effect their actual abilities to excel in various subjects.  Would this separation occur if children were not trained to behave according to a certain gender designation based upon their biological sex?  In 1968, Jane Elliott created what would become known as the “Blue Eye/ Brown Eye Experiment,” dividing hir class based on eye color and letting first one half, then the other, oppress their fellow students merely be telling them that one group was superior to the other.  The exercise is used around the country to show that racism is a socially constructed phenomenon.  Judith Butler has claimed that genital differences are no more significant than differences in eye color.[5] 

The eye color experiment, then, is important in that it demonstrates how people will react to each other if told that a particular physical difference matters.  Society continues to believe in the gender binary because they are told that it exists, just as these students believed in some sort of eye color binary when told by their teacher that it existed.  Strangely enough, eye color would seem a more realistic way to initially separate people, as this difference is visible even while fully clothed.  However, eye color would not help reinforce the heterosexual norm.  Gender, on the other hand, would. Strict gender/sex assignment  allows for the existence of heterosexuality  and supports procreative behaviors, the success of which is crucial to the survival of the human race.  Increased incidence of the ejaculation of sperm into the vagina will lead to increased reproduction, that ever-important evolutionary necessity.  However, in a world in which humans are more concerned with overpopulation than extinction, the concern for increasing birthrates is unfounded.  In fact, some theories of evolution could suggest that varying sexualities are a way to keep populations from procreating beyond the level which can be supported by the available resources.  This possibility is even compatible with theories of intelligent design, whose supporters often believe that the sex/gender binary and compulsory heterosexuality are a decree from the supreme being who oversees the evolutionary process.

What happens when an individual is born who does not easily fit into the socially-constructed two-sex system?  Anne Fausto-Sterling has postulated that there are at least as many as five sexes, what ze categorizes as herm, merm, ferm, male, and female.  The first three are genitalia which combine “male” and “female” genitalia to varying degrees, with herm being an even ratio, merm being more masculine, and ferm being more feminine.[6]  Since the 1960s, surgeons have assigned most intersex babies to either the “male” or “female” sex at birth, depending on which surgical “correction” would be easier to perform.  Intersex activist Cheryl Chase claims that “about one in a hundred births exhibits some anomaly in sex differentiation, and about one in two thousand is different enough to render problematic the question ‘is it a boy or a girl?’”[7]  Chase goes on to question the motives of the doctors who perform such surgeries.  Ze quotes Suzanne Kessler to say that “accepting genital ambiguity as a natural option would require that physicians also acknowledge that genital ambiguity is ‘corrected’ not because it is threatening to the infant’s life but because it is threatening to the infant’s culture.”[8]  According to the CIA World Factbook, the United States has a population of 301,139,947 and a birth rate of 14.16 births/1,000 population.[9]  Calculations therefore would conclude that there are approximately 2,132 births a year which would “require” surgery and 150,569 people who were born intersex currently living in the country, assuming one in two thousand is a reasonably accurate statistic.  Even a more conservative estimation by Leonard Sax, which does not include a number of conditions Fausto-Sterling categorizes as intersex, places the number of intersex individuals currently living in the United States at about 50,000.[10]  However, the reasoning behind removing these categories from the list of intersex people is called into question by Sax’s obvious desire to reach hir inevitable conclusion that “human sexuality is a dichotomy, not a continuum” as well as the fact that ze challenged Fausto-Sterling’s conflation of natural with normal by comparing an intersex birth with the birth of a two-headed cow.[11]  This analogy is either offensive in that it suggests intersex people are something that could easily be seen at a freak show or worrisome in that a two-headed cow, and therefore by extension an intersex birth,  is not only termed unnatural, but flagged as something that must be surgically “corrected.”

The importance of intersex births to the move for the eradication of legal gender identity is two-fold.  Firstly, the birth of intersex people demonstrates the insufficiency of the sex binary to encompass various genital configurations and throws into question the validity of a gender binary based upon a strict demarcation of “male” and “female” allegedly caused by biologically inherent characteristics.  The fact that at times  biology is unable to distinguish “male” from “female” bodies suggests that the differences between these bodies be  cannot be very vast. Also, if bodies can physically combine “male” and “female” characteristics to the point where it is difficult to biologically categorize it as either one, how many times are  characteristics ascribed to each sex combined in less obvious ways such that the notion of “male” and “female” bodies is rendered absurd? 

Secondly, the surgery which intersex people are (usually involuntarily) subjected to is an example of the violence which society is willing to perform to preserve the notion of the male/female binary and heteronormativity.  The “corrective” procedure usually involves the removal of a penis or clitoris judged to be either too small or too large, respectively.  Recalling that the clitoris is the only organ in the body whose function is solely to provide pleasure, it is unsurprising that these surgeries often remove the capability of intersex individuals to lead “normal”, sexually fulfilling lives, which is rather alarming considering that the only time their genitals would be important is for sexual intercourse. If the point of surgery is to allow intersex individuals to lead “normal” lives, and the surgery to allow this causes the removal of the ability to function normally as a sexual being, why does this surgery continue to be performed if not for the preservation of heterosexuality, especially since the effectiveness of gender assignation is partly evaluated based on the individual’s attraction to the gender “opposite” of hir assigned sex?  This surgery also shows a clear privileging of male sexuality and a dismissal of the importance of female sexual pleasure.  Most of these surgeries result in biological females, since “it’s easier to dig a hole than build a pole.”  However, doctors also seem to believe that it is more stressful to be a male with a smaller than normal penis than a girl who is unable to orgasm.  This unquestionably clear prejudice towards one sex demonstrates the problem with the dichotomy even for those who fit within it.

If intersex bodies complicate notions of biological essentialism, then it can be said that transgender individuals complicate notions of the efficacy of social construction.  Leslie Feinberg includes all those who could be classified as “transvestites, transsexuals, drag queens and kings, cross-dressers, bull-daggers, stone butches, androgynes, diesel dykes or berdache” under the umbrella term of “transgender.”[12]  In previous decades, “transsexuals” were negatively viewed by feminists for reinforcing notions of the gender binary by having surgery performed which allowed their gender representation to match their biological sex.  As transgender scholars point out, this was partly due to the requirements of doctors that individuals conform to stereotypical gender behavior in order to qualify for surgery.  Having already discussed the ways in which doctors surgically alter intersex bodies, it should come as no surprise that doctors are equally as willing to surgically “correct” adult bodies if it will produce a heterosexual individual with a congruent sex and gender identity.  Dean Spade, a transgender scholar, accepts the argument that “the invention of the category ‘transsexual’ by doctors…shores up traditional notions of gender dichotomy and compulsory heterosexuality.”[13]  However, instead of being critical of sex-change surgery ze argues for an approach which “requires seeing the problem not as fundamentally lying in the project of gender change or body alteration, but in how the medical regime permits only the production of gender-normative altered bodies, and seeks to screen out alterations that are resistant to a dichotomized, naturalized view of gender.”[14]  Spade belongs to a new movement within the transgender community, which seeks not to become either normatively “male” or “female”, but to express gender and sex identity as they prefer to present it, through surgical or other means.  The common term for these individuals is “genderqueer” and it applies to all those individuals who do not make a clear presentation as one of the two legally and socially recognized genders/sexes.  Spade’s view would not only leave the door open for transgender individuals who wish to live a non-heteronormative lifestyle, but also for individuals, who may believe that their gender identification - is in agreement with what the heterosexual discourse describes as appropriate to the biological sex to which they were born, to still be eligible for sex-change surgery if they so desire.

Each new generation continues to further the break down of the traditional boundaries between “male” and “female”, placing less and less emphasis on the importance of stereotyped roles based on gender/sex.  In Female Chauvinist Pigs, Ariel Levy quotes one individual as saying “I don’t want to try and speak for the trans[sexual] community, but I think there are a lot of trannybois who are not going all the way, who are not thinking I need to fit into this gender mold. They’re saying It’s ok if I don’t take hormones, or It’s ok if I don’t have surgery. I can still call myself a boi.”[15]  It is clear from this movement that society is capable of moving to a place where less importance is placed on being a “boy” or a “girl”.  While the automatic change from the word “trans” to “trans[sexual]” demonstrates the fact that sex and gender are still commonly conflated, the fact that the young people of the current generation can consider an identity which is neither male nor female implies that the time is nearing when the categorization of people into two genders may be considered obsolete.  The existence of a “genderqueer” identity is an important step because it recognizes that male and female are neither as separate nor as natural as previously assumed, but it is not a permanent solution.  It is a step towards equality, just as recognizing that women were human beings capable of rational thought was an important step towards the world we live in today, a world which would be completely unimaginable to anyone who lived as short a time as 100 years ago.  However, because of the connotations of the word “queer”, the use of these three terms in place of the current two still implies that only being either male or female is “normal.”  It also fails to account for the massive variations within the current system which are ignored for the sake of convenience.  In order to have categories which group people who are similar enough to make the concept of categorization functional, there would be too many categories for gender to be a useful means of division.  Therefore, the best solution would be to remove categorization based on sex or gender altogether.

            Currently, the biggest obstacle in the move towards gender equality is the legal requirement of expressing gender identity, and the constant separation of individuals into “men” and “women” from the moment of birth.  Every legal document beginning with the birth certificate requires a box to be checked either “male” or “female”.  Why?  There is no real explanation for this separation other than the preservation (or, in some cases, the assumption) of heterosexuality.  Why do “boys” and “girls” need to use separate bathrooms and locker rooms?  If these areas were all declared gender-non-specific, will the (hetero)sexual attraction be so great that society will instantaneously have a sharp increase in adolescent sexual activity?  If individuals did not fit into a specific gender presentation based on their biological sex, would there be a sudden increase in non-heterosexual relationships?  The question of whether sexual orientation lies in an attraction to a specific gender or a specific sex is intriguing and, because of the general insistence of society that the two must agree, difficult to study.  Consider the possibility of a heterosexual woman who encounters a drag king or a butch lesbian who appears, at first sight, to be a very handsome man.  The heterosexual woman obviously would not consider hirself to be attracted to women, and yet ze finds hirself at first physically and, once ze gets to know hir, emotionally attracted to an individual who is a biological woman.  The woman finds hirself attracted by the masculine presentation, not the female body underneath, but the attraction is so great that the woman finds hirself willing to engage in a relationship with hir.  Is this woman still heterosexual?  Once the assumption of difference proliferated by the law has been eliminated, will the term heterosexual even continue to have any meaning?  The eradication of gender categories, which are supported and propagated due to compulsory heterosexuality, would then end not only gender bias, but also eliminate prejudice based on sexual orientation.  Removing gender from the legal system would neatly solve the hotly contested questions of gay marriage and adoption rights for gay couples, though it would perhaps require a complete rethinking of the family structure. 

As even most second-wave feminists are willing to admit that true equality will require a radical rethinking of home, the opportunity to consider the institution of family and to shape it into one that makes sense is a valuable one.  The non-gendered world presented by Judith Lorber in hir Breaking the Bowls: Degendering and Feminist Change would be very useful in this situation.  Ze calls for a degendering of both the workplace and the home which will eventually result in a world where “love and sexuality, friendships and intimacies revolve around people with a mutual attraction to each other’s bodies, intellects, interests, and personalities…Children are not sexed at birth—their genitalia are irrelevant in the choice of names, blankets, and clothing…In  play groups and schools, children are organized by age, size, talents, skills, reading ability, math competence—whatever the needs of the group.”[16]  This vision of the future is perhaps not possible within the lifetimes of the current generation of youth.  However, it is a noble goal for which to be constantly striving.  When the fact that women only gained the right to vote less than 100 years ago is considered, the possibility of actually achieving this goal seems more realistic.

Many of those who criticize the idea of eliminating categories of gender difference complain that this would result in a boring world where everyone acts the same.  What this criticism fails to take into account is that the idea behind eliminating gender categorization is merely to end the stereotypes associated with various identities, not the behavior which has been stereotyped.  Therefore, this argument does not say that some “boys” won’t still want to play with trucks, and some “girls” won’t still want to play with dolls, but that it should come down to some children want to play with trucks, and some (and sometimes the same) children want to play with dolls. 

The existence of intersex and transgender individuals clearly points out the insufficiency of the binary system.  Therefore, it would be a great benefit to society and the fight against oppression to remove the legal barriers which promote the idea of an inherent difference between “men” and “women.”  Eventually, the lack of importance the legal system places on gender will translate into a lack of importance which society places on gender, allowing all configurations of sex, gender, and sexual identity to proliferate without fear.

[1] Stryker, Susan. “My Words to Victor Frankenstein above the Village of Chamounix: Performing Transgender Rage.” The Transgender Studies Reader. New York, NY: Routledge, 2006. pp. 244-256, 253.

[2] Fausto-Sterling, Anne. Sexing the Body: Gender Politics and the Construction of Sexuality. New York, NY: Basic Books, 2000. 248.

[3] Fausto-Sterling, 247, 248.

[4] Fausto-Sterling, 248.

[5] Beasley, Chris. Gender & Sexuality: Critical Theories, Critical Thinkers. Thousand Oaks, CA: SAGE Publications Inc., 2005. 101.

[6] Fausto-Sterling, Anne. “The Five Sexes: Why Male and Female are Not Enough.” The Sciences. (March/April 1993): 20-24. Middle Tennessee Statue University. 15 Oct. 2007 <>.

[7] Chase, Cheryl. “Hermaphrodites with Attitude: Mapping the Emergence of Intersex Political Activism.”  The Transgender Studies Reader. New York, NY: Routledge, 2006. pp. 300-314, 300.

[8] qtd. in Chase, 313.

[9] “United States.” CIA World Factbook. 2007. Central Intelligence Agency. 18 Nov. 2007 <>.

[10] Sax, Leonard. “How Common Is Intersex? A Response to Anne Fausto-Sterling.” The Journal of Sex Research. 39.3 (Aug. 2002): 174-178. PubMed. Bryn Mawr College, Bryn Mawr, PA. 18 Dec. 2007 <>.

[11] Ibid.

[12] Feinberg, Leslie. “Transgender Liberation: A Movement Whose Time Has Come.” The Transgender Studies Reader. New York, NY: Routledge, 2006. pp. 205-220, 206.

[13] Spade, Dean. “Mutilating Gender.” The Transgender Studies Reader. New York, NY: Routledge, 2006. pp. 315-332, 318.

[14] Spade, 319.

[15] qtd. in Levy, Ariel. Female Chauvinist Pigs: Women and the Rise of Raunch Culture. New York, NY: Free Press, 2005. 125.

[16] Lorber, Judith.  Breaking the Bowls: Degendering and Feminist Change. New York, NY: W.W. Norton & Company, 2005. 166-167.