A Brief Interruption of My Long Silence to Post an Academic Paper about Anti-Trans Bathroom Legislation

Hello, fair readers! Don’t be alarmed; I’m still thoroughly neglecting my website in favor of grad school. (Two years down, one to go!) This isn’t a real blog post; it’s a paper I wrote for my Feminist Theory class this semester, taken as credit toward a graduate certificate in Women’s Studies that I’m doing alongside my MFA.

The class was a combined undergrad/grad section, which meant that paper assignments were more specific and more textbook-based than they might have been in a grad-only class. Here’s the paper assignment, which was connected to the “Postmodern Feminism and Queer Theory” chapter in Judith Lorber’s Gender Inequality (which — through no fault of my instructor, Dr. Kara Kvaran — is not a very good textbook, in case you’re curious):

Define postmodern feminism. What does queering mean? What are the advantages and disadvantages to queering gender? Do some independent research into religious freedom laws and bathroom laws that have been recently proposed and passed in some states (ie North Carolina). How do these new laws relate to postmodern feminism and queer theory? Why do you think these laws are being passed?

My paper is below. It’s about 1500 words.

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Postmodern Feminism, Queer Theory, and the Legal Dehumanization of Transgender People

Lawmakers in seven states besides North Carolina are currently considering bills that prevent people from using a public restroom that does not correspond to their biological sex. But they cannot agree on how to define “biological sex.” This is because sex, like gender, is a social construct.

North Carolina’s notorious law, passed earlier this spring, defines a person’s sex as what is printed on that person’s birth certificate – the gender one was assigned at birth, unless that person has been able to jump through the legal hoops required to change their birth certificate. According to a report on FiveThirtyEight.com, other bills (both currently active and those which have recently died in committee or been put on hold) variously define sex as how a person was identified at birth, one’s chromosomes, one’s anatomical sex, the sex on one’s birth certificate, or a person’s sex “as biologically defined.” Active or inactive legislation in few states would legally allow transgender people who have had genital surgery to use the restroom that corresponds with their sex as defined by their genitals; legislation in other states prohibits this (Libresco).

Lawmakers are unable to provide a consistent definition of sex because sex, like gender, is a cultural construct, an ideological concept created by human language. While some theorists hold that sex refers to one’s genitals (males have penises and females have vaginas, to paraphrase Kindergarten Cop) and gender refers to one’s self-definition (man, woman, demiboi, demigirl, nonbinary, genderqueer, bigender, genderfluid, etc.), postmodern feminist theorist Judith Butler argues that this is an oversimplification: “If the immutable character of sex is contested, perhaps this construct called ‘sex’ is as culturally constructed as gender; indeed, perhaps it was always already gender, with the consequence that the distinction between sex and gender turns out to be no distinction at all” (qtd. in Mikkola). There is no single accepted definition of “biological sex” because sex, like gender, is the result of culturally constructed identities being imposed on and enacted by the body. Because sex and gender are human inventions, not objective universal truths, they are impossible to objectively, conclusively define.

Postmodern theory is concerned with the idea of cultural constructs – those ideas and concepts (race, for example) that exist only because humans have brought them into existence through socialization, shared language, and cultural and individual replication. Postmodern theory argues that there is no objective, universal truth; rather, everything is subject to individual interpretation through the lens of personal and societal experiences, norms, and beliefs. Postmodern theory uses deconstruction – the reduction of concept to its individual component parts for examination and analysis – in order to identify ways in which perceived truths have been constructed and shaped by cultural narratives.

Postmodern feminism applies postmodern theory to gender. It argues that gender is a cultural construct, not an objective truth; without social norms for masculinity and femininity, these binary identities would not exist. People are shaped by cultural ideas of what masculinity and femininity are, and they perpetuate these ideas by performing gender accordingly. Through language, we create binaries that would not otherwise exist, constructing categories in opposing pairs – male/female, masculine/feminine, heterosexual/homosexual. Postmodern feminism identifies the ways in which these are artificial categories that do not accurately reflect the wide range of human experience.

In Bodies That Matter, Butler writes that the construction of gender, with its carefully distinguished limits and boundaries, is used to define bodily identity; and bodies that aren’t gender-able, or bodies that transgress these boundaries, “provide the necessary ‘outside’ . . . for the bodies which, in materializing the norm, qualify as bodies that matter” (qtd. in Lorber 287). The construct of gender gives us a mechanism by which we quickly file people into one of three categories: masculine, feminine, and nonhuman. Anyone whose gender presentation and performance resist easy classification as masculine or feminine is relegated to other, less-than-human status – “those boundaries of bodily life where abjected or delegitimated bodies fail to count as ‘bodies’” (qtd. in Lorber 287). Bodies that cross gender boundaries, whether by simultaneously occupying space in both masculinity and femininity, by not occupying either category, or by exceeding the limits of masculinity or femininity – or any combination of these – are not afforded status as legitimate persons.

Butler’s theory is visible in anti-transgender bathroom legislation. Anti-trans bathroom policies exclude transgender people from participating in public life. Prohibiting transgender people from using the restroom consistent with their gender identity puts trans and other gender-nonconforming people at risk of legal harm (civil and criminal penalties) and physical harm (violence and assault by cisgender people, medical complications caused by restricting bodily functions). A person who cannot safely access a restroom cannot hold a job, attend school, or do anything else that takes them away from home for more than a few hours. Anti-trans bathroom legislation literally dehumanizes and others transgender people by restricting their ability to participate in the everyday activities that most people take for granted.

The rhetoric that fuels anti-trans legislation further dehumanizes transgender people. The cultural conversation surrounding transgender people in public bathrooms paints transgender people as deviant, disordered, mentally ill, sinful. At its worst, it calls transgender people sexual predators – or elides them with, and makes them responsible for the actions of, hypothetical sexual predators posing as transgender people in order to assault people. By transgressing the boundaries of the construct of gender, transgender people are no longer afforded human identity. As Judith Butler puts it, the “construction of the human” requires the existence of the nonhuman (qtd. in Lorber 287), and so transgender bodies are excluded from humanity through legislation and rhetoric in the ongoing process of staking the boundaries of human-ness – necessitating and enabling the passage of anti-trans legislation.

Even among cisgender allies of transgender people, postmodern feminist theory is not being adequately applied. Many allies still default to thinking of gender identity as a binary: cis and trans men are men, cis and trans women are women, the end. The fight to allow transgender people to use one of two restrooms that matches their gender identity ignores the existence of people of myriad nonbinary gender identities, who may not belong in either restroom. I’ll use a personal example: In a conversation on a recent Facebook post about anti-trans bathroom legislation, a cisgender friend of mine who identifies himself as a feminist and an ally to trans people wrote that if cis men did dress as trans women in order to enter a women’s restroom, they would be easy to identify, because they would clearly look like “a man in a dress.” Real trans women, he argued, look like (cis) women. This reasoning still privileges “passing” as cis. It reinforces the binary construction of gender and reifies an essentialist, universal notion of femininity.

Queer theory completely rejects this binary, essentialist understanding of gender. As an extension of and supplement to postmodern feminism, queer theory recognizes that gender is constructed and performed, and chooses to subvert the traditional construction of gender by queering gender – that is, performing gender and sexuality in transgressive ways. Queering gender can include how someone uses makeup and clothing, vocal tone and inflection, gestures and movements, use of (non)gendered pronouns, occupations and hobbies, and much more – all elements that go into the traditional performance of gender, but used in unexpected and transgressive ways, often through exaggerating gendered characteristics or mixing gender displays. Good (and timely) examples of people who queered gender are David Bowie and Prince, men whose gender performances included makeup, carefully styled hair, tight colorful clothing, sparkly accessories, and exaggerated movements.

Queer theory recognizes that a person’s performance of gender enacts a conversation with the viewer that communicates (or is presumed to communicate) a host of things about the performer that are bound up in traditional gender constructions: sexual orientation, level of aggressiveness/passivity, standpoint, interests, etc. Normative gender performance creates a shorthand allowing for myriad assumptions about the performer. To queer gender is to choose to communicate contradictory, confusing messages about one’s gendered self – or to choose not to participate in the gender conversation at all.

Queering gender has the advantage of making visible the invisible production of gender – that is, those everyday aspects of gender performance that are so deeply assumed as to go unnoticed. A person who shakes off gender constraints is free to participate in the performance of gender according to how they actually view themself, through clothing, mannerisms, activities, etc. consistent with their own actual interests.

On the other hand, some feminists claim that queering gender undermines the feminist movement by undoing “woman” as a cohesive category, and by attempting to undo gender entirely. If gender is no longer a usable construct, they argue, then there is no basis for a women’s rights movement, because the category “women” will cease to exist (Lorber 284). This hardly seems like a reasonable argument against queering gender, however, as the construct of gender is far from dead, and the theoretical eventual dissolution of gender would presumably also eliminate gender-based discrimination. For the time being, people who transgress and queer gender boundaries are often subject to discrimination and violence – as is evident in legislated discrimination against transgender people.

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Works Cited

Libresco, Leah. “Seven Other States Are Considering Restricting Bathrooms For Transgender People.” FiveThirtyEight. FiveThirtyEight, 6 Apr. 2016. Web. 28 Apr. 2016.

Lorber, Judith. Gender Inequality. 5th ed. New York: Oxford UP, 2012. Print.

Mikkola, Mari. “Feminist Perspectives on Sex and Gender.” The Stanford Encyclopedia of Philosophy. The Metaphysics Research Lab, Center for the Study of Language and Information, Stanford University, 29 Jan. 2016. Web. 28 Apr. 2016.

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