by Paisley Currah, Richard M. Juang, and Shannon Price Minter (eds). Minnesota: University of Minnesota Press, 2006. 400pp. Hardcover $60.00 ISBN: 0816643113. Paper $19.95. ISBN: 0816643121.
Reviewed by Elizabeth Loeb, Institute for Law and Society, New York University. Email: Elizabeth.Loeb [at] alumni.brown.edu.
As a student of queer theory and as an activist within transgender communities in the mid 1990s, I was star-struck by the work of Leslie Feinberg, Riki Wilchins, and Kate Bornstein. While these names might not be familiar to the wider political science audience, to me, they are the names of mentors and teachers. After years of being treated as medical, social, and historical curiosities, transgendered scholars such as Feinberg, Wilchins, and Bornstein spent the mid-late 1990s publishing their own creative academic works – works that considered transgender lives and experiences from an explicit and positive transgendered perspective. (Bornstein 1995, Feinberg 1996, Wilchins 1997). Ten years later, people of transgender experience have organized into a strong and visible social movement, winning extraordinary gains towards recognition of the civil and human rights that they demand.
And yet, violence and discrimination against people of transgender experience persists at every level of social, legal, and political life in the US (Currah, Juang, and Minter 2006). What compromises do people of transgender experience make when they supplicate for rights within a legal system that insists on assigning a fixed and binary sex at birth (Greenberg 2006)? How might people of transgender experience mobilize legal institutions and strategies in order to open spaces for gender self-determination (Spade 2006)? Should people of transgender experience continue to seek protection under a civil rights regime? Under a human rights regime (Thomas 2006)? Under existing disability law (Levi and Klein 2006)? Under existing sex-discrimination law (Broadus 2006)? How has US law changed in the past twenty years with regard to the rights of people of transgender experience, and what legal strategies should we mobilize over the next twenty years?
With TRANSGNDER RIGHTS, Paisely Currah, Richard M. Juang, and Shannon Price Minter have edited a complex, coherent, and necessary collection of articles that navigates these questions with great agility. Bringing together a group of highly respected and well-known lawyers, academics, and advocates who work within transgender communities, the collection serves as a snapshot in time of the analysis offered by a movement’s leaders on that movement’s future.
Thematically, the collection organizes around the limits and possibilities of rights as a political, legal, and social strategy for people of transgender experience. Though the collection does not answer all of its own musings, it does provide sophisticated and passionate insight into the legal politics [*217] of transgender experience in the contemporary US and into the politics of rights more broadly – insights that will be useful to political scientists, lawyers, activists and queer theorists alike – whether or not the reader already has an interest in transgender issues.
TRANSGENDER RIGHTS consists of three sections: Law, History, and Politics. Although the articles in each section stand alone as discreet interventions, the collection as a whole offers a connected analysis of rights discourse in relation to transgender communities. While the Law and History sections provide background, context, and explanation, the Politics section expands into a more theoretical and critical mode. In the Politics essays, contributors probe how rights discourses are effected by the intersectionality of transgender experience with structures of race and class in the US, and how an investment in rights as a strategy correlates with arguments concerning the ability of law to shape cultural acceptance. More pointedly, the authors in the Politics section challenge the desirability of a rights-based approach by pointing out the structural subordinations of racialized experience and wealth distribution that are often reproduced or devastatingly ignored when movements turn toward rights-based frameworks, strategies, and discourses as moorings of liberation (Spade 2006).
If TRANSGENDER RIGHTS has a weakness, it comes from the separation between the assumptions mobilized in the Law and History sections, and the critiques that are begun in the Politics section. At the same time, this separation might make the collection all the more useful to readers as an artifact of a living, difficult conversation among invested actors. As the editors explain in the Introduction, the project of the book is twofold: 1) to “foreground the political concerns and efforts of trans people” so as to “consider the well-being of trans people as an end in itself”; and 2) to “reflect the current state of the transgender movement and of civil rights activism more generally.” At the same time, the editors acknowledge that the essays in the collection tend to privilege a liberal, individualist, and humanist perspective. In response to critiques of this sensibility, the editors acknowledge that, although “it is not a sufficient political agenda . . . [f]or the moment, it is a necessary one.” The essays collected in TRANSGENDER RIGHTS demonstrate the reality of that necessity, and by acknowledging the tensions and failures embedded in it, the editors and contributors bring an unusual degree of intellectual depth to the landscape that they travel.
For example, in his individual contribution, Paisley Currah describes “transgender” as an umbrella term for what has become coherent as a social movement despite its differences and diversities. While this statement would draw controversy as essentialist or homogenizing from many trans theorists (Nestle, Howell, and Wilchins 2002), Currah explains that his formulation lays legible ground from which to make demands for the expansion of gender as a social and legal category, and for the legal protections of diverse gender [*218] expression and gender identities (Butler 2004).
By excavating both the facts and jurisprudence of recent legal cases involving people of transgender experience, Currah argues that rather than fixing “transgender” as a static new category or reified protected class, rights-based transgender advocacy has instead expanded meaning of gender and sex toward a spectrum of non-conforming identities, bodies, and practices. Bringing his argument back to the premise that “transgender” can describe a “coherent political identity,” Currah explains that TRANSGENDER RIGHTS is about the actuality of that political identity as it functions in legal and political activism, and he suggests that by strategically deploying “transgender” as a legible political identity, activists can continue to expand the legal meaning of gender and sex. In maintaining this focus, Currah hopes to undermine people of transgender experience as passive subjects of knowledge by scholarship that seeks clinical or anthropological understanding of who trans people are or “why we exist.”
Unfortunately, Currah does not fully elaborate on the connection between legal change and social or cultural change in his reading of a rights-based strategy. As many authors, including Currah, powerfully describe in TRANSGNEDER RIGHTS, people of transgender experience face intense violence and discrimination, even in jurisdictions that confer broad legal protections and recognitions for gender expressions and identities (also see the Juang chapter). Without a full treatment of that simultaneity, the disconnect between legal recognition and social acceptance that Currah traces puts into question the limits of the work that rights can accomplish as a tool for social change.
The coexistence of social violence and legal protections leads to one of the more provocative themes of TRANSGENDER RIGHTS as a collection, that of the value of human rights as an emerging rights model. Even as noted legal scholar, critical race theorist, and queer theorist, Kendall Thomas, offers a stunning deconstruction of human rights in the collection’s epilogue, many of the authors argue that law can play a unique role in recognizing and affirming the humanity of transgender experiences, a recognition that will flow from the legal requirements of the workplace and public accommodations and into meaningful social and cultural change. Many of the collection’s contributors discuss the legal conception of human rights as a discourse that is uniquely positioned to recognize meaningfully the self-determination and autonomy of all people to determine their gender identity and expressions, thus shifting the notion of “transgender” from a minority label to a universal condition (Sedgwick 1991).
Contributors Jennifer Levi and Bennet Klein offer another take on this tangle by advocating the embrace of a disability rights model. In one of the collection’s most prominent interventions, Levi and Klein reject the consensus from within transgender advocacy that legal protections should be sought under [*219] disability law, a maxim developed on the assumption that people of transgender experience degrade or demean themselves by defining themselves as disabled. Levi and Klein expose the prejudiced and ableist premises that underlie the anti-disability view by refusing to conflate degraded within disabled, and by explaining that the disability rights movement has demanded and won laws that validate the dignity of difference by recognizing the environment and social world as the problem to be fixed.
As Klein and Levi duly note, Federal disability law explicitly excludes transgender experience from its protection, although state law does not. Klein and Levi fail to show, however, how the three-prong test used by most states to adjudicate rights claims brought under the disability framework fully applies to the diversity and range of transgender experience – much of which is not physical. Levi and Klein acknowledge that a disability framework would not be appropriate if it requires that all people of transgender experience prove that their experience constitutes a medically diagnosable illness. Yet, while Levi and Klein claim that state disability law does not require the peoples of transgender experience submit to a medical diagnosis, they are not fully persuasive in their reading of the available jurisprudence.
In order to consider fully the contribution of TRANSGENDER RIGHTS to the wide filed, it should be noted, as it many times has been, that critical race theory scholars have long struggled with deconstructionists and critical legal theorists over the value of rights in general. Theorists such as Wendy Brown have argued that juridical rights, as applied to raced, gendered, and sexed subjects, are only granted through a narrative of equality that, in actuality, reproduces structures of group-based inequality (Brown 1995). Brown shows how US courts require a subject to present the nature of its social and political being as inherently injured, inherently less than equal. Thus, Brown explains, the act of seeking rights, of submitting to the adjudication through which rights are distributed, reproduces and ontologically cements the intractability of the very inequality and injury that these rights intend to address (Brown 1995).
In contrast, critical race theorists, such as Patricia Williams, have argued that political and social movements for racial justice do not have the luxury of a theoretical and philosophical critique of rights as just another hammer in the master’s toolbox. As Professor Williams wrote: “This country’s worst historical moments have not been attributable to rights assertion but to a failure of rights commitment. From this perspective, the problem with rights discourse is not that the discourse is itself constricting but that it exists in a constricted referential universe. The body of private laws epitomized by contract, including slave contract, is problematic because it denies the object of contract any right at all” (Williams 1991).
While TRANSGENDER RIGHTS might embrace the perspective articulated by Williams, it does jettison the urgency of [*220] the critique mounted by Brown. The beauty of this collection is that the reader does not have to choose between truths. The authors gravitate towards a human rights model, because by articulating gender determination as a universal, human attribute, a human rights framework enables “transgender” to exist as the temporary name for an identity politics movement that seeks dissolution of the very category under which it is organized.” While the editors and contributors of TRANSGNDER RIGHTS deeply honor the meaning and specificity of transgender as a named experience, they demand legal conditions whereby gender and sex can be chosen without coercion or punishment, rather than received as binary and categorical enforcements.
Bornstein, Kate. 1995. GENDER OUTLAW: ON MEN, WOMEN, AND THE REST OF US. New York: Vintage Books.
Brown, Wendy. 1995. STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY. Princeton: Princeton University Press.
Butler, Judith. 2004. UNDOING GENDER. New York: Routledge.
Feinberg, Leslie. 1996. TRANSGENDER WARRIORS: MAKING HISTORY FROM JOAN OF ARC TO RUPAUL. Boston: Beacon Press.
Howell, Clare, Nestle, Joan, and Wilchins, Riki. (eds). 2002. GENDERQUEER: VOICES BEYOND THE SEXUAL BINARY. New York: Alyson Books.
Sedgwick, Eve Kosofsky. 1991. EPISTEMOLOGY OF THE CLOSET. Los Angeles: University of California Press.
Wilchins, Riki Anne. 1997. READ MY LIPS: SEXUAL SUBVERSION AND THE END OF GENDER. New York: Firebrand Press.
Williams, Patricia J. 1991. THE ALCHEMY OF RACE AND RIGHTS: DIARY OF A LAW PROFESSOR. Cambridge: Harvard University Press.
© Copyright 2007 by the author, Elizabeth Loeb.