Governing Transgender Identity

Foreword to the 2024 Edition

 

Sex Is as Sex Does draws attention to what few journalists, elected officials, or scholars outside of transgender studies have understood: one’s legal sex is never decided once and for all. Whether a transgender person can change it to F, M, or the non-binary designation of X has varied considerably not only from state to state but also from agency to agency, even within the same jurisdiction. This book shows how government agencies have been far less interested in adhering to any universal idea about what sex is—assignment at birth, self-understood gender identity, and so on—than in what sex does for that agency’s work. For example, officials in prisons have often defined sex differently than do officials in departments of motor vehicles, even when those officials work in the same state. 

Now that policing the gender binary has been transformed from an unremarkable aspect of bureaucratic policymaking to a weapon in the culture wars, everyone is paying attention. As Donald Trump noted in 2023, “I talk about cutting taxes, people go like that [mimicking polite applause]; I talk about transgender, everyone goes crazy. Who would have thought? Five years ago, you didn’t know what the hell it was.” Trump echoes the findings of public opinion research: in this third decade of the twenty-first century, transgender issues have become one of the most politically polarizing topics in the United States. In the last few years, Republican-controlled state legislatures have introduced hundreds of bills limiting medical care for trans people and barring transgender students from school sports and restrooms, among other anti-trans measures. In addition, “Women’s Bills of Rights” have been introduced in over a dozen state legislatures and, as of this writing, have passed in a handful. At the time of writing these bills usually define sex according to one’s reproductive capacity, which is determined at birth. Some officials have interpreted these laws, which install the definition of sex across the state’s legal code, to mean that every identity document issued by the state must reflect only an individual’s birth sex.

What had been a confusing but little noticed bureaucratic patchwork of contradictory policies within states has now been transformed into a stark partisan map of “red” and “blue” states. Even as Republicans enacted laws targeting multiple aspects of trans life, twenty-one states under Democratic control changed policy to allow people to choose an X for the gender marker on their driver’s license. In those jurisdictions, state IDs can usually be changed to X, F, or M just by filling out a form. In the wake of the 2022 Dobbs v. Jackson Women’s Health Organization decision and trans medical care bans, around a dozen blue states have passed refuge or shield laws for transgender people, their families, and medical professionals, oſten combining protections for reproductive and gender-affirming care. (The Texas Attorney General attempted to breach this jurisdictional divide in November 2023 when he demanded that a hospital in Seattle, Washington, provide his office with the names of any trans youth who had leſt Texas to receive gender-affirming care in the previous two years. Anticipating this flex from red states, the Washington legislature had already passed a shield law.) 

At the time of writing, a meme in circulation riffs off Dr. Seuss’s classic book, Oh, the Places You’ll Go! Under the title, “Oh, the Places I’m Allowed to Go!,” a map of the US highlights about twenty states that are “relatively safe” for trans people. While no doubt well-intentioned, the Manichean political vision it reflects (blue states are good places, red states are bad places) suggests that transgender people have everything they need in blue states. It also erases the trans and gender non-conforming people who are making their lives in red states, forging communities, and nurturing new forms of support, mutual aid, and resistance. Certainly, the absence of policies intended to harm trans people and the presence of those intended to help are good. But to assume that the solution to right-wing anti-trans policies lies only in reparative policies that let people change their sex classification and provide gender-affirming care is to become a victim of the false choices of liberalism. Recognition is necessary but not sufficient. Like everyone else in the US, trans people are subjected to the quotidian cruddiness of normal life under the conditions of representative neoliberalism—vast income inequality, the climate crisis, declining life expectancy, patchy or nonexistent health care in general, mass incarceration, and the ongoing defunding of public education. 

One of the book’s central arguments is that the misclassification of trans people was at first an unanticipated byproduct of patriarchy. Over the course of the twentieth century, as the government got out of the business of upholding male domination through the law, the rationale for consistently denying requests for sex reclassification faded from view. Because the law no longer explicitly subordinated women, maintaining an impenetrable border between men and women would no longer be necessary. Government agencies and courts started managing sex classification more minutely, with policies depending on how sex was put to use in a particular governmental context. (I take no position on the various debates about what sex “really is.” In my work, I define it as a decision about M, F, or X backed by the force of law.) Transgender people were oſten accidental beneficiaries of liberal feminism. 

In our current moment, the tail is wagging the dog—a targeted attack on trans people, whose numbers are growing but remain a small part of the population, will undermine and possibly even reverse feminist achievements in the legal arena. The legislative assaults on transgender people absolutely reflect anti-trans animus. But they also index a larger anxiety about the changes wrought by feminism. Debates about which bathrooms trans girls and women use and which teams they play on give conservatives the opportunity not only to excise trans people from public life but also to re-subordinate women. Very oſten, the stated rationale of anti-trans bills, made clear in the rhetoric and oſten the titles, is to “protect women’s rights.” But a different picture emerges if we look at what the legislation actually does. For example, in some jurisdictions with sports bans, cisgender girls who have won events have been subject to investigation when the concerned parents of losing competitors “accuse” them of being assigned male at birth. Another example: In 2023, the Commissioner of the Texas Department of Agriculture announced to employees that they must dress in clothes consistent with their “biological gender.” While this policy was intended to resonate with other state initiatives specifically targeting transgender people, it accomplishes more than that: it brings gender norms back in. Not only will trans men be forced to wear clothes traditionally coded as feminine, but so too will cisgender women. Moves to reverse the trajectory of women’s equality through anti-trans legislation are also surfacing in the reasoning about sex discrimination claims in some of the decisions upholding these laws.

The raucous debates over the definitions of sex taking place in legislatures might lead some to conclude that the battle now truly centers “what sex is.” In the rhetoric around the “Women’s Bills of Rights” and other anti-trans legislation, the right wing vehemently declares that sex falls within the purview of God and/or nature. (This insistence has had the paradoxical effect of making disagreements about the meaning of sex part of our democratic life.) But the certitudes of these pronouncements are easily dismissed when convenient. Over and over throughout history—through the machinery of enslavement, welfare, social security, labor, and tax policy—capital’s need for labor has prevailed over abstract commitments to an immutable sex binary and the complementary gender roles it sustains. In the colonies and the new American Republic, for instance, despite the prevalence of the language of marriage, family, and the benefits of domesticity for women, theories of gender difference were not applied to enslaved people. There were no protections for their marriages, which could be sundered at will through the sale of one spouse. In the words of historian Tera W. Hunter, “The ideology of race trumped the ideology of domesticity.”

Or consider a more recent example, one that disproportionately affects women although it is gender-neutral on its face. During the height of the COVID-19 pandemic, the federal government expanded the child tax credit, raising the amount of tax credits and making them refundable. No single policy has done so much to alleviate child poverty: between three and four million children were liſted out of it. It made it possible for more families to follow the patriarchal model of a male wage earner and a woman caring for children at home, which would seem to be a win for the right wing. But in 2022, Republicans in Congress let it lapse. Why? the University of Chicago’s Becker Friedman Institute (as in Gary Becker and Milton Friedman, prophets of neoliberal economic theory) had warned ominously that the expanded credit would incentivize parents to stay home, shrink the labor force, and force wages up. Gender roles can be redefined if the economy demands it. It is likely that most of these policy- makers would also cosponsor legislation mandating that everyone carry a driver’s license listing their birth sex. That’s not a contradiction, because sex remains a pliable contrivance of politics and governing.