For your reading "pleasure" I offer a paper I just wrote for one of my classes in law school (Sex Equality). Our professor, Catharine MacKinnon asked us to write based on personal experience, so I did. :) It's not much of a legal paper, but some of my readers may enjoy it, nonetheless.
Am I A Woman?
To some, my transition from male to female is incomprehensible, if not impossible. To others, it is unnatural and immoral. To a great many, it is unsettling and vaguely threatening. Why is it seemingly impossible for some people, including some courts, to accept me as a woman? What about my transition threatens the social hierarchy? Does blurring the lines of sex or gender (as transsexuals arguably do1) work toward the deconstruction of the pattern of male dominance in our culture? Some men may see my transition as threatening to their very identity: can it be true that there is so little that distinguishes men from women; does the power structure rest only on this? At the same time, some women – especially some feminists – see my transition as an encroachment by the male patriarchy into the already restricted domain of women. These thoughts and questions have caused me to reflect upon my transition and how my own identity as a woman came about.
Was I always a woman “inside”,2 or did I become one at some point in time? Was it the first time I was raped by a man? Was it later, when I felt the need to express my identity by looking and sounding like a woman? When I began living “full time” as a woman? When I changed my name, driver’s license and passport to reflect the female gender? When I first accepted employment as a woman, at 80% of my previous earnings level? When I conformed my body to a “natal” woman’s body? These possibilities beg the fundamental question: What is a woman?
I ask this question, not intending to rehash the determination of gender from the various medico-legal perspectives. The intermediate appellate court in In Re Gardiner fully analyzed the relevant factors,3 in my opinion, when it addressed the legal question of determining gender. Unfortunately, the Kansas Supreme Court reverted to a mechanical you-are-what-you-were-anatomically-born-as test, grounded in the ability to reproduce. In re Estate of Gardiner, 273 Kan. 191, 2002 (“A male-to-female post-operative transsexual does not fit the definition of a female. The male organs have been removed, but the ability to "produce ova and bear offspring" does not and never did exist”). This is the regrettable outcome of every case since the New Jersey court in M.T. v. J.T.4 first held out hope to transgendered people that the law would recognize the gender they knew themselves to be. See, e.g., Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999).5
Here, my approach to the question is, necessarily, far more personal than legal, as womanhood was neither my birthright, nor something I could merely decide or declare, but instead something I had to take steps to achieve. How did I know what to do? Certainly, I knew intuitively that becoming a woman was a matter of letting show that part of myself that needed to be expressed as a woman and letting go of my constructed male persona.
Is being a woman, then, purely performative? What is the difference between being a certain way and acting a certain way? I faced this question when I began experimenting with the expression of my female identity by dressing as a woman and going out into “the world.” I acted a bit differently in order to try to “pass”, but I did not feel that I was just acting. I wore unmistakably feminine clothes and put on a wig and make-up, but I did not feel it was just a costume. Rather, I felt I was breaking through a barrier that society had constructed to divide “man” from “woman.”
I do not mean to say that “clothes make the [wo]man,” but there is certainly no denying the societal emphasis on appearance as a primary expression of gender identity. The dress, the wig and the make-up were tools to help me express my femininity in a way that I simply could not while dressed as a man. My experience with cross-dressing did not temporarily transform me into a woman, but it let me catch a glimpse of what that might be like.
I recognize that I have yet to explain what I mean by “woman” and by “expressing my femininity.” I do not use those terms in any sort of academic or theoretical sense; I did not learn their meaning by study or rigorous thought process. I am sure that if I had been raised by machines, I would have no notion at all of gender. But I was raised by a mother and a father in a patriarchal society that makes gender, as a binary system, more important than any other characteristic in establishing the identity of a person.6 That binary is continuously reinforced by gender norms for every aspect of behavior, which are taught in ways subtle and not-so-subtle.7
Moreover, growing up I could not help but notice the physical, intellectual and emotional attributes that distinguished my mother, sisters and other females from my father, grandfather and other males, as well as the differences in the way they felt about things. It was my interaction with the women and men in my life, combined with the bombardment of societal gender norms, that necessarily informed my understanding of what it was to be a woman as distinct from a man.8 Of course, I grew to see many variations in these characteristics, and to acknowledge the irrationality of stereotypes.
Nevertheless those early impressions were a subconscious yardstick by which I measured my own identity. For a time, I believed that the experience of cross-dressing was little more than a “toe in the water,” and that I would go on living as a man. However, I gradually moved toward a time when I was dressing and living as a woman in my personal life, while maintaining my male persona (or at least a reasonable facsimile) at work. As I related more and more to others as a woman, and received validation from them in return,9 I began to realize that at work I was attempting to “pass” as a man, when in my head and heart I had made the transition to womanhood.
There was no defining moment. Ultimately, I became a woman when I saw myself as the person I always thought myself to be, and when I was accepted as a woman by those I loved and respected. Everything that followed (the events recognized as medical or legal indicia of a change in gender) was, for me, after the fact. The withholding of legal recognition of my gender (likely in many jurisdictions) has no effect on who I am, except to make me a woman on a mission.
1 But see Janice Raymond, The Transsexual Empire: The making of the she-male, Beacon Press, 1979 (arguing that so-called “male-to-constructed-females” merely reinforce socially entrenched gender roles).
2 Thinking back on my childhood experiences, such as adopting the “girl” role in games, dressing in my mother’s and sisters’ clothes, and even believing (as a very young child) that I was a girl, I arguably expressed my female gender identity as best I could within the confines of having been labeled a boy.
3 The court observed: “According to medical professionals, the typical criteria of sex include:
1. Genetic or chromosomal sex--XY or XX;
2. Gonadal sex (reproductive sex glands)--testes or ovaries;
3. Internal morphologic sex (determined after three months gestation)--seminal vesicles/prostate or vagina/uterus/fallopian tubes;
4. External morphologic sex (genitalia)--penis/scrotum or clitoris/labia;
5. Hormonal sex--androgens or estrogens;
6. Phenotypic sex (secondary sexual features)--facial and chest hair or breasts;
7. Assigned sex and gender of rearing; and
8. Sexual identity.”
In re Estate of Gardiner, 29 Kan. App. 2d 92, 100-110 (Kan. Ct. App. 2001), rev’d by 273 Kan. 191 (2002).
4 M.T. v. J.T., 140 N.J. Super. 77
5 See also In re Application for Marriage License for Nash, 2003 Ohio 7221 (Ohio App. 2003), Kantaras v. Kantaras, 884 So. 2d 155 (Fla. App. 2004). My next paper will look more closely at the question of gender identity vis-à-vis marriage.
6 For evidence, one need only consider the first question asked of any new parent: “Is it a girl or a boy?”
7 I was an early transgressor of the rule, “Boys don’t cry.”
8 Among the things I learned as a young child, and thus without critical thought, were that a woman is tender, nurturing, protective, resourceful, expressive, spontaneous, emotionally unpredictable, and concerned with physical appearance. In contrast, a man is tough, serious, aggressive, hard-working, rule-abiding, emotionally repressed and resistant to change.
9 I had begun taking hormones, had electrolysis, and grew out my hair so that others would more easily see me as a woman, and I was gratified that they did.