Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, May 24, 2016

Rendering the Body Legally Invisible

I've been waist-deep in "gender" for the last couple of weeks, grappling with the legal consequences of the astonishing claim the Department of Justice made earlier this month that "trans women are women" for the purposes of Title VII and Title IX. Public Discourse is publishing what I've written, and I'll post it when it's out. 

For now though, I wanted to excerpt at length here from a very helpful self-published book out of the UK entitled, Flesh Made Word. In it, philosopher Daniel Moody argues that the sexed body has been eclipsed from the law. (He blames abortion, and I think that's right, though I for different reasons than him.)  Near the end of the slim book, he makes his point clearest in his analysis of the prefixes “cis” and “trans”. (“Cis” is used by the trans community to distinguish a “trans woman” from a “cis woman”--like this blogger-- whose gender identity and biological sex align.)

[I]t would seem that Joan [a “cis” woman] is ‘legally female because physically female’ and John [a “trans woman”] is ‘legally female despite physically male’. 


But how can this be, given that there is only one legal definition of the word Female. John’s legal status as female has to be the same has Joan’s.


In Joan’s case the name Female signifies her sex. But [law] does not have the power to change John’s sex from male to female. Any ‘femaleness’ John possesses he possesses only in his mind. So, given that [law] cannot take John’s state of mind and elevate it to the height of a female-sexed body, the only way to make his legal status as Female equal to Joan’s is to take her body and legally downgrade it to a state of mind. Joan is de-naturalized in law; de-sexed so that her femaleness too is legally understood to be a state of mind. If John’s LEGAL status as FEMALE exists in the form of LEGAL permission, so too does Joan’s. [emphasis in original]


If John is LEGALLY FEMALE (gender identity) despite physically male (sex)’ and if the only LEGAL meaning of the word Female is not attached to the definition belonging to a sexed body, then we can take this as proof that Joan has ceased to be ‘legally female (sex) because physically female (sex)’ and, quite bizarrely, is now LEGALLY FEMALE (gender identity) despite physically female (sex)’ FEMALE despite female.


Joan’s legal identity changed conceptually but it did so without changing linguistically.


Moody concludes that the two legal identities that are now offered to each individual (i.e., cisgender and transgender) are simply the two possibilities that flow out of ejecting the human body from the law. The trans individual is “merely somebody who has chosen to take advantage of the [legal] absence of his body” while the “cis” individual simply has not so chosen. But every person’s identity remains a choice, unbound from any objective standard, untethered from reality itself. Moody: "Understanding cisgender enables us to stop chasing after the innocent man--transgender--and instead turn the spotlight onto the real culprit, namely the ideology named Gender..." 

More at Public Discourse soon... 


Bachiochi, Erika | Permalink