Academic journal article Wagadu: a Journal of Transnational Women's and Gender Studies

Two: Epistemic Injustice and the Construction of Transgender Legal Subjects

Academic journal article Wagadu: a Journal of Transnational Women's and Gender Studies

Two: Epistemic Injustice and the Construction of Transgender Legal Subjects

Article excerpt

Introduction

This article examines how transgender litigants experience epistemic injustice in the US-American court system.1 It argues that since knowledge is "generated from histories, social relations, and practices of communities," the epistemological consequences of translating transgender experiences and knowledges into legal discourse require serious investigation (Nelson, 1993, p. 126). Epistemic injustice, as Miranda Fricker (2007) defines it, may happen when knowers are discredited for their claims to knowledge and/or when knowers who, needing to make sense of their experiences, lack the interpretative resources to do so - that is to say, they lack a grammar or vocabulary by which to make their experience legible. Fricker (2007) urged her readers to consider not only what she calls good epistemic conduct but to overcome these epistemic injustices, but also "to lay the foundation of correlative institutional virtues - virtues possessed, for instance, by the judiciary" (p. 176). The present article is a gesture in that direction.

Transgender experiences are often translated through an unacknowledged epistemic commitment to a cisgender gender/sex paradigm. Cisgender is a term that describes a person whose gender identity "matches" their birth-assigned sex. It is meant to replace the negative and potentially naturalizing connotations of "non-transgender" (Aultman, 2014). Although many theorists agree that gender, following Susan Stryker's (2008) definition, "is thought to be cultural" whereas sex "is thought to be biological" (p. 11), they are both, however, linked by cultural and social norms.2 When a culture naturalizes cisgender formulations and experiences of gender/sex, i.e., normalizes them, it constitutes a cisgender gender/sex paradigm. This article argues that particular forms of rationality and legal objectivity that are peculiar to judicial procedure help reproduce this cisgender paradigm. The process undermines the epistemic capacities of transgender people as knowers in their own right. Since (cis)gender(ed) knowledges are already pre-fashioned constructions - i.e., legal precedent - transgender people enter into the field of liberal legal discourse at a disadvantage. Are there risks of colonizing transgender experiences with a cisnormative, or cisgender-privileged, standard of being? As Finn Enke (2013) notes, "the concept of cisgender privilege provides a necessary critique of structural hierarchies built around binary sex/gender.. ..When cis is taken up as an admission of privileged identity, it is cis-privilege itself that reifies trans as most oppressed - so oppressed, in fact, that it cannot speak out of character" (p. 240). Accordingly, the courts construct out of the cisgender body the caricature of the transgender body, and thus discipline transgender narratives within legal discourse to meet corresponding cisgender narratives of discrimination.

However, as Kylar Broadus (2006) observes, the law has a "tremendous power to reflect and shape larger societal messages of acceptance or rejection" (p. 99). In this way, courts are not only symbolic. They are both repositories and agents of knowledge. They transcribe the process of how human subjects become legal subjects, how human claims are understood before the law, and how social categories (race, sex, gender, age, ability, etc.) are to be understood within a given constellation of rights and statutes. Fricker's (2007) analysis is a method for not only examining the shortcomings of legal institutions. It invites alternatives to how they might be reimagined to include the possibility for epistemic justice in law. Thus, in light of victories for transgender people in the realm of employment discrimination, how might "transgender" escape from the capture of the cisgender experience that seem to narrate and make it legible?

Miranda Fricker's "Epistemic Injustice"

Epistemic injustice takes two distinct forms. Its first is testimonial, and relates directly the utterances (or testimony) of a speaker/knower. …

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