Tuesday, April 21, 2009

Law imitates art? The misplaced fixation on surgical status

Two things have bothered me lately, and it occurred to me that they are connected. One is the difficulty of persuading judges to find for plaintiffs in transgender discrimination cases, particularly in cases involving disputed bathroom use. The other is the overwhelming tendency of pop-culture representations of gender transition to focus on reassignment surgery as the central and defining change, the sine qua non of authentic gender.

As to the latter, I could cite countless examples - including a number of works which I otherwise quite liked, such as Chris Bohjalian's novel Trans-Sister Radio, and the Oscar-nominated film Transamerica. There has been a proliferation of documentaries about trans people in recent years, with most of them reproducing the same medically-focused narrative about the transition process, with surgery as the narrative focal point. Heck, the only two musicals with transgender protagonists both feature titles that refer to the lead character's genitals. More generally, news and entertainment media regularly refer to gender transition reductively as "having a sex change operation," or "preparing for a sex change operation." The terms "pre-op" and "post-op" are thrown around ubiquitously in contexts in which they have no real relevance.

This focus on surgery has been criticized for presenting a distorted view of trans people's experiences. As I've discussed elsewhere, there are any number of reasons -- financial, medical, religious or deeply personal -- why many trans people cannot or choose not to have surgery. Even for those who do, it is often delayed for many years for financial reasons -- insurance coverage for it is rare in the U.S. -- meaning that people lives years and even decades of their lives between a(n otherwise) completed transition and surgery. Perhaps more to the point, surgery is simply not the most important part of the process for most people, even those who eventually have it. After all, in comparison to hormone therapy or other changes, "bottom" surgery makes a less dramatic difference to an individual's overall appearance or experience of their body, and (except in a few delicate situations) makes no difference in an individual's ability to blend in with other members of their (post-transition) gender.

Nevertheless, the dominant discourse on transition says that transition = surgery, and without surgery transition is incomplete or simply has not occurred. This discourse originated in the mid-twentieth century with attempts by both trans people and medical professionals to justify gender transition, against McCarthy-era moral condemnation and disgust, by appealing to society's trust in medical science. (As well as providing reassurance that trans people were not "homosexual." Christine Jorgensen, the first publicly-known transsexual in the US, underwent her highly publicized transition at the height of the 1950s antigay witchunts.) Though since much revised by both trans people and the medical professionals who work with them, this dated and rigid understanding remains overwhelmingly dominant in public perception. What most people know about gender transition comes from surgery-focused pop-culture representations.

Thus, both political and judicial decisionmakers almost invariably start from this ingrained premise. Arguably, pop-culture discourse and legal standards for gender recognition in the context of birth certiciates, drivers' licenses, etc., reinforce one another. Although unspoken, both sources inform decisionmakers in settings that seemingly have nothing to do with legal documentation per se.

Much of the difficulty in workplace discrimination cases, therefore, owes to the fact that employers' demands that restroom use be based on genitals tend to strike judges as so obviously common-sensical that it is very hard to dislodge that notion from their brains. Kastl v. Maricopa County Community College shows the result: uncritical judicial acceptance of justifications by employers that would be obviously flimsy were they not colored by this starting premise.

All of which is to say that representation matter. To criticize a filmmaker for an excessive focus on surgery is no mere aesthetic quibble or personal peeve. It is no surprise that the feminist movement has long devoted considerable attention to cultural criticism as well as more conventional political advocacy. These representations of gender transition in entertainment and news media, as I see it, cumulatively have real, harmful consequences.

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