Academic journal article Texas Journal on Civil Liberties & Civil Rights

Self-Determination in a Gender Fundamentalist State: Toward Legal Liberation of Transgender Identities

Academic journal article Texas Journal on Civil Liberties & Civil Rights

Self-Determination in a Gender Fundamentalist State: Toward Legal Liberation of Transgender Identities

Article excerpt


Transgender people face pervasive hostility in multiple arenas of their lives. Physical, psychological, and economic violence is leveled upon those whose identities and actions challenge the stability of the male/female binary.1 In numerous jurisdictions, it is legal to fire someone who transitions on the job, or deny a student or employee access to restrooms according to his or her gender identity. It may be difficult to find respectful healthcare providers, and hormones and sex reassignment surgery may be unobtainable.2 One's gender identity may be denied by a legal regime which vigilantly polices the brutal boundaries of male and female.3

In regulating gender diacritically, the state dramatically curtails individuals' bodily and spiritual autonomy and the opportunity to self-actualize. To fully realize the Fourteenth Amendment's promise of liberty, people must be able to determine gender for themselves. This article attempts to build a foundation for positing a right to gender self-determination rooted in the Due Process Clause of the Fourteenth Amendment.

Articulating a right to gender self-determination serves both realist and revolutionary aims.4 Asserting this right acknowledges that current social and self understanding requires a significant element of gendered thought.5 Indeed, it is arguable that given the importance of gender in our culture, identification of one's gender as male or female is a prerequisite to one's legibility as human;6 gender nonconforming people may be treated as less than human by both society and a legal regime that perceives many transgender claimants as invisible.7

The content of the self-determination claim simultaneously reveals its libratory potential. Claiming that all people have a right to determine their genders destabilizes the male/female binary upon which numerous social spaces and legal rights, entitlements and documents depend. Such action does not necessitate a destruction of the categories "male" and "female," but it does permit their transformation and the addition of infinite new classifications of individuals' genders within and outside of the gender categories society currently comprehends.8

This article does not hypothesize a particular outcome of the state's allowance of gender self-determination. At its most conservative, gender self-determination could mean only that people may self-identify as male or female. But given the discussion that follows, this result appears insufficient. Alternatively, the state could create numerous gender categories (e.g. male, female, genderqueer, bi-gendered, twospirit) into which people may self-identify, recognize everyone's gender self-identification whether or not that identification is within a gender category already acknowledged by the state, or refuse to take any cognizance of gender. The project of analyzing the implications and administrative feasibility of these and other approaches is crucial, but it is a separate undertaking for another day.

Here, I attempt to demonstrate some of the many reasons why permitting gender self-determination is a logical and humanitarian imperative, and to lay the groundwork for claiming that the liberty guarantee of the Fourteenth Amendment's Due Process Clause protects this right. Part II defines the gender-related terminology utilized herein and discusses the inadequacy of "male" and "female" to accurately capture the diversity of existing gender identities. Part III briefly presents divergent medical ideologies regarding gender and then argues that law, rather than reflecting genders as they exist naturally, actually plays a substantial role in creating gender as understood in our society. Finally, Part IV provides the foundations for articulating a right to gender self-determination as an element of the Due Process Clause's liberty guarantee. This section tracks the Court's move from a narrow understanding of a right to privacy toward a broader notion of a right to liberty, and discusses the value placed by the Court on autonomy and self-actualization as elements of this liberty guarantee. …

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