The Gender Caste System Identity, Gender, Transseksualizm, Transseksualizm [EN]
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The Gender Caste System:
Identity, Privacy, and Heteronormativity
10 Law & Sexuality 123 (2001) (Tulane Law School)
Jillian Todd Weis
“I defend my right to be complex.”
—Leslie Feinberg
I. T
RANSSEXUALITY AND THE
C
ASTE
S
YSTEM
A. The Existence of the Caste System
The heterosexual norm is the idea that people are, by virtue of
heredity and biology, exclusively and aggressively heterosexual: males
* B.A. Yeshiva University, J.D. Seton Hall University School of Law. Comments and
questions may be directed to jtweissny@aol.com.
†
L
ESLIE
F
EINBERG
, T
RANSLIBERATION
:
B
EYOND
P
INK OR
B
LUE
70 (1998).
123
124
LAW & SEXUALITY
[Vol. 10
are masculine men, and are attracted only to feminine women. The
opposite is supposed to be true of females.
In contrast, the fundamental
claim of transsexuality
is that physical “sex” can be incongruent with
psychological “gender”:
males can be feminine females, and females
can be masculine males.
Advocates of legal rights for transsexual
people often appear to assume that the proposition has been established
in their favor. Opponents often appear to assume that the transsexual
claim is obviously untrue. Statutes, regulations and court decisions show
conflicting resolutions of the issue. This Article addresses that conflict.
The term “norm” as applied to heterosexuality in our culture is a
misnomer: while a “norm” implies that a minority falls outside it, as in a
standard statistical bell curve, in regard to gender identity there is no
room for outsiders. Thus, heterosexuality is not just a norm—it goes
much further than that. It is actually a normative principle, a norm which
creates a standard to be met, below which people are not permitted by
society to deviate: a “heteronormative” standard. This standard has been
enshrined into law, transforming a social custom into a legal control
mechanism, a sort of “natural law” theory of gender.
1. This is so obvious as to require no authority today, but the word “heterosexual” did
not exist until 1892, at which point it connoted a “so-called male erotic attraction to females
and
so-called female erotic attraction to males” in one person. J
ONATHAN
N
ED
K
AT Z
,
T
HE
I
NVENTION
OF
H
ETEROSEXUALITY
20 (1995). Mr. Katz traces the usage of the term “heterosexual” through
the ensuing years, noting the emergence of “heterosexual” as both a sexual orientation and a
script of gender identity. He writes: “By December 1940, when the risqué musical
Pal Joey
opened on Broadway, a tune entitled ‘Zip’ satirized the striptease artist Gypsy Rose Lee by way
of a character who, unzipping, sang of her dislike for a deep-voiced woman or high-pitched man
and proclaimed her heterosexuality. That lyric registered the emergence in popular culture of a
heterosexual identity.”
Id.
at 95. For a detailed explication of the modern U.S. script of
femininity,
see
S
USAN
B
ROWNMILLER
, F
EMININITY
(1984), and N
AOMI
W
OLF
, T
HE
B
EAUTY
M
YTH
(1991).
2. This Article specifically discusses the intersection between gender theory and
transsexual people, i.e., those who intend to change physical sex. I refer to them as transsexual
people because I wish to emphasize that they are people, not a monolithic group or statistical
blips of abnormality in a theoretical game. The use of the adjective “transsexual” has been
disparaged by some, in favor of the use of the term “transgender” as an umbrella term for all
gender-variant people. However, the term “transgender” was originally coined and is still used to
refer to an individual whose behavior and/or appearance crosses or blurs genders and has no
desire for sex reassignment surgery, whereas the term “transsexual” more specifically refers to an
individual who changes his or her physical “sex.”
See
supra
note 68. Some writers use the term
“transsexualism,” which incorrectly implies that transsexuality is an “ism,” which refers to a
doctrine, cause, or theory. It is more properly referred to using the suffix “-ity,” which refers to a
quality or state.
3. “‘
Sex
’ refers to the classification of being either male or female and is usually
determined by the external genitalia. ‘
Gender
’ refers to the culturally determined
behavioral
,
social,
and
psychological
traits that are typically associated with being male or female.”
M
ILDRED
L.
B
ROWN
&
C
HLOE
A
NNE
R
OUNSLEY
,
T
RUE
S
ELVES
19 (1996).
4.
See, e.g.
, Susan Etta Keller,
Operations of Legal Rhetoric: Examining Transsexual
and Judicial Identity
, 34 H
ARV
.
C.R.-C.L.
L.
R
EV
. 329 (1999) [hereinafter Keller,
Operations
].
2001]
THE GENDER CASTE SYSTEM
125
American law generally mandates that there are only two genders,
male and female, that each person be labeled at birth, and that the label
may not be changed. The derivation of legal power to regulate our lives
in this way has never been clearly explicated, but has been presumed.
Our society assigns a highly specific set of meanings to each gender.
These meanings are what we call masculinity and femininity. This
system appears to be justified by science, being simply a reflection of the
natural order of biology and heredity. Transsexual people are not only
abnormal, but their very humanity is in question.
Our law merely
reflects our society and science in its rejection of the transsexual claim,
denying the right of transsexual people to self-determination and self-
identification.
A clear comparison can be made to the historical caste system of
India. That system is also justified by reference to “heredity” and
“biology.”
The claim that some people are “untouchable” is, of course,
opposed to the claim that all people are equal. The former claim is
therefore utterly rejected by American law. But the American gender
classification system, no less than the historical caste system of India,
also creates “untouchables” who exist in a netherworld of discrimination
outside the order established by “heredity” and “biology.” The basis for
this American caste system is artificial in nature, as demonstrated by the
fact that some jurisdictions find no impediment to acknowledging the
changed classification of some of our “untouchables” (read transsexuals),
5.
See
id.
at 373-78.
6. While the nature of discrimination against transsexuals in America and dalits
(untouchables) in India is historically and socially different, the justifications used in each case
are similar:
In ancient India there developed a social system in which people were divided into
separate close communities. These communities are known in English as caste. The
origin of the caste system is in
Hinduism
, but it affected the whole Indian society. The
caste system in the religious form is basically a simple division of society in which
there are four castes arranged in a hierarchy and below them the outcast. But socially
the caste system was more complicated, with much more castes and sub-castes and
other divisions. Legally the government disallows the practice of caste system but has
a policy of affirmative discrimination of the backward classes. The untouchability
feature in the caste system is one of the cruelest features of the caste system. It is seen
by many as one of the strongest racist phenomena in the world. In the Indian society
people who worked in ignominious, polluting and unclean occupations were seen as
polluting peoples and were therefore considered as untouchables. The untouchables
had almost no rights in the society. In different parts of India they were treated in
different ways. In some regions the attitude towards the untouchables was harsh and
strict. In other regions it was less strict.
Aharon Daniel,
Information on India
(1999),
at
See
generally
V. T.
R
AJSHEKAR
,
D
ALIT
:
T
HE
B
LACK
U
NTOUCHABLES OF
I
NDIA
(3d ed. 1995)
(discussing hereditary nature of caste system).
See also
National Campaign on Dalit Human
Rights,
at
126
LAW & SEXUALITY
[Vol. 10
but others insist that biology and heredity forbid them from doing so.
The “scientific” discourse used to deny transsexual claims to self-
determination and self-identification appears to be at odds with American
principles of privacy and equality, creating a system which largely
refuses to acknowledge or give rights to transsexual people.
It may be difficult for nontranssexual people to understand how
pervasive this system is and how oppressive it is. Although gender
identity and sexual orientation are different in nature, the following quote
from Michelangelo Signorile illustrates the problem well:
Many heterosexuals don’t understand the closet because they’ve never
been in it. Because heterosexuality is the order of things, many
heterosexuals think they never discuss their sexuality. They say gays who
come out are going too far, making an issue of their sexuality when
heterosexuals don’t.
These heterosexuals don’t realize that they routinely discuss aspects of
their own sexuality every day: telling coworkers about a vacation they
took with a lover; explaining to their bosses that they’re going through a
rough divorce; bragging to friends about a new romance. Heterosexual
reporters have no problem asking heterosexual public figures about their
husbands, wives, girlfriends, boyfriends or children—and all these
questions confirm and make an issue of heterosexuality. The ultimate
example of making an issue of heterosexuality is the announcements in the
newspapers every Sunday that heterosexuals are getting married.
Despite the neatness and “naturalness” of the heteronormative
standard, it does not appear to be reflective of current reality, either in
regard to sexual orientation or gender identity. It has been reported that
at least 25,000 Americans have undergone sex reassignment surgery,
60,000 consider themselves candidates for such surgery, and the doctors
who perform it have long waiting lists.
This new reality has been
7. The British case of Corbett v. Corbett, [1971] P. 83, [1970] 2 All E.R. 33, [1970] 2
WLR 1306, was one of the first to rely on detailed descriptions of biological facts in this context.
8. M
ICHELANGELO
S
IGNORILE
,
Q
UEER IN
A
MERICA
:
S
EX
,
THE
M
EDIA AND THE
C
LOSETS
OF
P
OWER
,
at xvii-iii (1993).
9.
See
Carey Goldberg,
Shunning ‘He’ and ‘She,’ They Fight for Respect
, N.Y.
T
IMES
,
Sept. 8, 1996, § 1, at 24;
see also
John Cloud,
Trans Across America
, T
IME
M
AG
., July 20, 1998,
at 48. As of 1988, there were approximately 6,000 to 10,000 Americans who had undergone such
surgery.
See
B
ROWN
&
R
OUNSLEY
,
supra
note 3, at 9. The earliest estimates of prevalence for
adults were stated as one in 37,000 males and one in 107,000 females. The most recent
information of the transsexual end of the gender identity disorder spectrum from Holland is one
in 11,900 males and one in 30,400 females. Four observations, not yet firmly supported by
systematic study, increase the likelihood of a higher prevalence: 1) unrecognized gender
problems are occasionally diagnosed when patients are seen with anxiety, depression, conduct
disorder, substance abuse, dissociative identity disorders, borderline personality disorder, other
sexual disorders, and intersexed conditions; 2) some nonpatient male transvestites, female
impersonators, and male and female homosexuals may have a form of gender identity disorder;
3) the intensity of some persons’ gender identity disorders fluctuates below and above a clinical
2001]
THE GENDER CASTE SYSTEM
127
reflected in some laws. In some jurisdictions, an individual may obtain
legal recognition of a change in physical sex pursuant to statute, and a
corresponding change may be made in gender identity on government
documents. However, the legal recognition of a change in sex is not
always given effect. This leads to incongruent results in law and
concomitant institutional tension between legislative pronouncements, to
which courts must defer, and court judgments which ignore or limit the
effect of those legislative pronouncements. For example, individuals
have changed physical sex, obtained legal recognition of the change
pursuant to statute, had the change made on all government
documentation, and have functioned without opposition in the new sex
role within the community for years. Then, the individual is involved in
a lawsuit, the adversary discovers the change, and seeks to have the court
give effect to the former sex.
In such cases, the argument is that transsexual people are
responsible for their own problem, because they are asking courts to
deny reality, like a man who insists he is a donkey. According to this
school of thought, the heteronormative standard identifies transsexuality
as creating an incongruity between physical sex and psychological
gender that must be resolved by the courts. This argument is very
tempting to courts, because it appeals to the heteronormative standard.
These courts fail to take into account the alternative possibility that the
incongruity is created not by transsexuality, but by our society and the
heteronormative standard itself.
Just as the Indian caste system creates
artificial disparities between people, it could be that the heteronormative
standard, which artificially and prediscursively defines a set of behaviors,
threshold; and 4) gender variant behavior among female-bodied individuals tends to be relatively
invisible to the culture, particularly to mental health professionals and scientists.
See
Harry
Benjamin International Gender Dysphoria Association,
Standards of Care for Gender Identity
Disorders
, § II (6th version 2001) [hereinafter
Standards
],
available at
A
MERICAN
P
SYCHIATRIC
A
SSOCIATION
:
D
IAGNOSTIC AND STATISTICAL
M
ANUAL OF
M
ENTAL
D
ISORDERS
(4th ed. 1997) [hereinafter
DSM
IV] (citing older statistics suggesting that
roughly one in 30,000 adult males and one in 100,000 adult females seek sex reassignment
surgery). Time Magazine reported that “[p]sychologists say that gender identity disorder occurs
in at least two percent of children,” T
IME
M
AG
., July 20, 1998 at 48.
10.
See, e.g.
, Littleton v. Prange, Case No. 04-99-00010-CV, (Bexar Co., Tex, Oct. 27,
1999) (holding male to female (mtf) transsexual married to male for seven years could not sue for
wrongful death of husband);
see also
Alex Tresniowsky et al.,
Split Heirs
, P
EOPLE
M
AG
. Aug. 28,
2000, at 75 (noting a Kansas court ruling
In re
Estate of Gardiner, holding that a mtf woman
married to decedent for one year could not inherit).
11. As one writer put it: “Biological determinism is misconceived intellectually, as well
as politically loathsome. For it places our problem in our bodies, not in our society. We now
commonly think, ‘Well, of course, biology and society together determine our destinies.’ But that
simply restates the old bio fatalism within a ‘sociobiological’ framework.” K
AT Z
,
supra
note 1, at
189.
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