The Making of Trans Legal Subjects: An Exploration of Sex/Gender through Legal Documentation, Precedent, and the Rule of Law
This paper addresses the issues of the legal construction of sex/gender through documentation and precedent. It uses the case of Glenn v. Brumby, an 11th Circuit Court of Appeals decision reaffirming a lower court’s decision that a transgender woman who was fired from her job is entitled to protection under Title VII’s ‘sex stereotyping’ prohibitions—a precedent elaborated in the Supreme Court’s decision of Price Waterhouse v. Hopkins. It develops an argument—arising from Ian Haney Lopez’s work concerning the legal construction of race, and the socio-legal scholarship of Kitty Calavita regarding the mutually constitutive nature of the social and legal worlds—holding that the court’s own documents, procedures, and precedents ‘mediate’ the lived realities of the citizen-subjects they seek to protect. In doing so, the lived experiences and the social realities of certain ways of living—here trans-ness—is mediated into legible frameworks that foreclose the totality of being transgender.
1.1 Introduction: The Law and its Mediating Effects
‘In modern societies…the theoretical and moral foundations of the legal order and the actual, specific history of its ideas and institutions influence, step by step, the wider social order…’ Eugene Genovese
Any concept of law is immediately problematic. ‘Fact-situations,’ ‘value objects,’ and ‘mutual constitutivity,’ to name just a few conceptualizations, do little to place the law in sharper relief. That legislators lack a comprehensive view of every ‘fact-situation’ in drafting a law (discovering an ‘indeterminacy to their aim’); or that judges may find themselves navigating a set of ‘values’ that ratify or discard objective legal reasoning; or that both law and society mutually reinforce one another, attest to the problematic that law poses for students of social studies.
Legal philosopher H. L. A. Hart explains that no other study in the (natural or social) sciences brings about as much confusion and debate as that of law. No chemist is trumped by the question, ‘What is chemistry?’ but a lawyer is often flustered when presented with the rather simple interrogative ‘What is law?’ It is at once a concrete ‘thing,’ i.e., a piece of legislation providing structure and process to ‘lived’ social experiences; and it is yet an invisible vector for a social fluid.
Figure 1 illustrates a way of seeing the law and its effects on the social world. Figure 2 is an attempt to illustrate the complex ways in which the social and the legal worlds interact within the socio-legal literatures.
Figure 1 differs from Figure 2. Where the former deals with the specific movement of a claim along a legal axis (before, against, and toward the law as it were), the latter is a more exploratory illustration of the social and legal worlds:
In both illustrations, there is a gap, an institutional wedge dividing (more or less rigidly) the legal and social worlds. Figure 2 highlights the ways in which the social and legal worlds help constitute one another. Each arrow is an axis on which legal and social claims move. However, if we interrogate the institutional line of mediation, or mediation through legal formalism, we may see the disjoining effects that courtroom documents and process induce—serving as a mediating window into the legal world.
This paper asks: What of the gap between a lived experience and a claim, of the life of an individual before the law and that of the individual as it appears in the text of a legal brief, of a formal claim filed in a court, of that toward and against the law? The institutional line of mediation in Figure 2 becomes the very point of legal inflection in Figure 1.
If we take an approach illustrated in Figure 1, we conduct a study of the disjunction between lived social experiences and the (distorting) meditation that the paperwork (paperwork generative of legal discourses) involved in and constitutive of judicial decision-making. By navigating the frameworks provided by the socio-legal scholarship of Kitty Calavita and Ian Haney Lopez—and by building a critique of those frameworks through recourse to legal theorist H. L. A. Hart and philosopher/sociologist Bruno Latour—our aim is to interrogate this space between a reality of an unmediated fact-situation before becoming subject toward/against the law. More specifically, it interrogates the extent to which the life of a transgender woman is mediated through the various briefs and legal precedent, which guided the reasoning of the 11th Circuit’s decision in Glenn v. Brumby.
1.2.1 Transgressing Social Norms: A Genealogy of Gender/Sex
In order to appreciate the role of law in the ongoing construction of the ‘wider social order,’ we must make several stops along the social route to legal process, observing the nature of gender/sex as a social phenomenon—and then identify the ways in which the judicial process mediates this phenomenon. This section takes its definition of gender/sex from the queer literature. On the one hand, gender is often thought to be that imaginary (or socially constructed) quality of human being. To say that we each have a gender presupposes a bodily marker onto which we can legibly map this claim—sex becomes this marker. Genital difference, where sex is the biological distinction between ‘male’ and female,’ is the traditional sine qua non of the fixed gendered subject.
What emerges from possessing a penis or a vagina, and the outward bodily changes of appearance that ‘biology’ characterizes as hormonal, natural, and certain, is the very object of what Judith Butler has called ‘social investment.’ This constructionist approach is fruitful for a number of reasons. It provides a critical lens through which to critique social relations, elaborating an ‘unfixed’ or ‘decentered’ subject that is mediated through sociality.
With a fixed definition of the normalized gendered body, individuals have a legible space from which to judge the authenticity of others in their daily associations. As the basis for certain kinds of social legibility, and in one sense the most basic foundation for a framework of association, gender/sex, in a tradition observed since Foucault, through biology evinces the much more sturdy, methodological framework for understanding gender as it colonizes the body. In doing so, biology posits that deviations from the standard gender binary transgress normal growth—and as such are medicalized deviations from this norm. Enter the transgender subject—an individual whose natal sex does not comfortably fit the gender/gender identity the individual adopts more or less later in cognitive development. In transgressing the normalized gender/sex distinctions, backed up by ‘scientific evidence’ of for labeling it as an abnormality, transgender subjects are classified as ‘suffering’ from ‘Gender Identity Disorder.’
Rather than critique the distinctions drawn in the biological sciences concerning gender/sex, this paper treats ‘Gender Identity Disorder’ and the lived experiences of the transgender individual as they intertwine through the complex of legal script, which mediates their meaning in order for a court to render a meaningful disposition of a case (as it relates here to discrimination). This paper does posit that trans-ness is not an abnormality along a rigid standard of normal—but rather a position along a spectrum. That spectrum is both biological and ‘social’ in origin, but is neither wholly both. Using that supposition as a basis for critiquing the legal apparatus, this paper hopes to interrogate that legal inflection point in Figure 1.
When dealing with the ‘realities’ of both biological and ‘social’ understandings of gender/sex, courts are constrained by what statutory definitions and courtroom documents say about the matter (for instance case law/precedent, legal briefs, and the actual claim). Mindful of the legislative process and the artificial legal questions about social experiences put to courts, this paper seeks out the legal definitions of gender/sex situated in courtroom decisions, and how they serve as the underlying presuppositions that will eventually dispose of the discriminatory claims particularly aroused in Glenn v. Brumby. Outside this objective, this paper hopes to provide the reader with a clearer understanding of how trans-ness is often colonized in legal processes by the normalizing concepts that ‘law’ must deploy in disposing claims.
1.2.2 Legal Preoccupations: Sex/Gender and Sex Stereotyping
In the only Supreme Court case to date dealing with claims that address the fluidity of gender identity, Price Waterhouse v. Hopkins, the Court ruled that private employers could be held liable for ‘sex stereotyping’ when they engage in open practices of discrimination based on certain preconceived notions of gender. At issue was a female employee of Price Waterhouse, Anne Hopkins, who was denied partnership.
In filing her claim against the firm, Anne Hopkins prevailed upon the Court to consider the disparaging remarks male partners had made during the process of considering her partnership. She was held to lack the necessary aggression, the ‘macho’ qualities that being a ‘woman’ naturally foreclosed. Price Waterhouse argued that such statements were not in violation of Title VII of the 1964 Civil Rights Act because they were not made in direct consideration of sex, per se. In disposing of the case, the majority held that The judge went on to decide, however, that some of the partners’ remarks about Hopkins stemmed from an impermissibly cabined view of the proper behavior of women…” It goes on to remark that:
In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.
By ruling in favor of Anne Hopkins claim, the Court certainly expanded the potential terrain in which legal discourses on gender could expand—but it did little to determine the exact qualities that gender and sex have in relation to one another. The language of the decision itself reaffirms the normative qualities of a fixed gendered subject, albeit hinting at the fluidic nature of gender ‘roles’—that a woman may or may not be as aggressive as men, for instance, struck the Court as odd. Presuppositions of this latter sort on the part of Price Waterhouse constituted enough discriminatory behavior to support Anne Hopkins claim.
What could not have been at issue, perhaps due to the limited discourses circulating in 1989 with regard to gender identity and trans-ness, was the argument that a person’s gender and sex are not linked by nature. Certainly through identifying gender within a constructionist lens, the Court offered a new framework through which gender could be articulated in legal discourses.
Within the framework of this paper’s question, the Court’s own documentation became an issue at one point in the opinion. The Court took issue with Price Waterhouse’s legal brief in which it bracketed off sex stereotyping with quotation marks. The very nature of how social realities are framed by procedure and documentation, even the embedded snark of an appellant, can be generative.
2.1 Glenn v. Brumby: Trans-ing Sex Stereotypes but Reaffirming Gender
‘Justice only writes law through winding paths.’ Bruno Latour
Vandy Beth Glenn, a transgender woman, had been employed at Georgia’s General Assembly’s Office of Legislative Council as an editor and proofread of legislation. ‘Suffering’ from and diagnosed with what had been previously defined as Gender Identity Disorder, Glenn sought to confirm her natal sex with that of her gender identity. Through a medical process that includes psychiatric care, hormonal treatments, and surgical alterations, Glenn took on the medical hurdles to confirm what she already knew was true: her natal sex of male was false; she was a female.
In 2007, she informed her immediate supervisor of her intention to undergo treatment for Gender Identity Disorder. Upon being informed of Glenn’s decision, the General Assembly’s Legislative Counsel, Sewell Brumby, terminated Glenn’s employment. She filed suit in 2008, winning her case at the district level. She advanced that her rights under Title VII’s sex stereotyping doctrine had been violated; she made an auxiliary claim that she was discriminated against on the basis of her medical condition.
In determining the extent of Vandy Beth Glenn’s claim under Title VII, it held the following definition of trans-ness: “A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.” On this view, the 11th Circuit went on to write that “there is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.”
Lambda Legal’s brief to the 11th Circuit relied heavily on the construction of the transgender subject through the lens of biology, particularly that provided by the definition of GID—and adopts the positions that sex and gender are interlinked conceptions that should not be separate by legal considerations. In elaborating an ‘authoritiative’ case concerning another issue of a transgender individual facing discrimination, Lambda Legal argues that “far from relying on the theory that gender identity is a component of sex, the Schroer court eventually rested its holding on an alternative, common-sense proposition that one who fires someone for transitioning from male to female is discriminating because of sex.”
Gender/sex for the 11th Circuit was both restricted by considerations related to traditional sex discrimination and stereotyping (as controlled by precedent and the legal arguments brought by Lambda Legal) and the medical designations of being transgender (of suffering from GID). What this means is that in order for the 11th Circuit to properly dispose of the case in the fashion prescribed by precedent, it had to situate Glenn in a framework that placed her as either male or female. In doing so, and in a fashion highlighted in Lopez’s work on legal subjectivities, the court was then able to apply the doctrine of sex stereotyping (one already fully elaborated by the Supreme Court nearly two decades before) and find in favor of Glenn’s claim.
It was clearly a victory for Glenn, whose job was reinstated and whose lost pay was remunerated. But the question this paper poses is the extent to which the line of legal inflection, the mediating point between the social world and the legal world in Figure 1, distorts and recomposes the lived experiences of trans subjects before the law.
3. Before, Against, and Toward the Law: A Discussion
This paper suggest that before the law, the trans subject is simply that individual who, through the complex of discourses on biology and sociology, exist “at its most evocative, descriptive, marking lives lived across, against, or despite already engendered, sexed, national, and even radicalized bodies.” There is a quality of fluidity that must mark an individual who identifies as trans, as someone who moves beyond the social indicators that make legible bodies in day-to-day interactions.
Moving toward the law, as Figure 1 illustrates, the social qualities of the last paragraph’s provocative claim loses some of its meaning. The narrowing bandwidth for what can constitute the daily lives of transgender folks forecloses these discussions. And when the final mediation occurs, and the subject comes against the law, they are situated within what the Supreme Court had called ‘cabined views’ of sex.
Against the law, the trans subject undergoes a radical mediation. No longer simply a product of social relations, or the site of social investments, the trans legal subject is rather a fixed entity into which the terms male and female must fit for precise legal dispositions. The social qualities of this trans person become the socio-legal qualities the court must impose for legibility’s sake. Indeed, they are ‘suffering’ from some abnormality—a disorder that disrupts discrimination against gender transgression. They are women by category; within that category alone can we define discrimination as operational. The category of transgender disappears in the face of normative gender considerations and becomes, becoming embedded in a broader discourse of the sex/gender binary.
Let us consider another passage from the 11th Circuit’s decision:
‘All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype. For example, courts have held that plaintiffs cannot be discriminated against for wearing jewelry that was considered too effeminate, carrying a serving tray too gracefully, or taking too active a role in child-rearing.’
Eliding the transgender experience altogether in articulating a broader claim protecting gender expressions, the court engages in a discourse on discursive limits of sex. Indeed, what this kind of mediation engages in is a partial erasure of the trans life in its totality, in order to bring about the clarity of a single definition for legal purposes. It privileges a normalized view of sex/gender, such that trans subjects ought to fit the role of male or female, so defined—their legibility solely based on their comporting to one or another mode of acting, or of outward bodily appearance, or medical necessity.
The nature of how the law ‘constructs’ something such as a conception of trans-ness can also be explained through recourse to Bruno Latour’s ethnography of the Council of State in France. What he calls the circulation of ‘value objects’ deeply structures the ways in which law-making institutions (here, the precedent setting administrative high court in France) dispose of cases. To wit:
(1) The authority of the agents participating in the judgment; (2) the progress of the claim as it moves through obstacles; (3) the organization of the cases, which enables the logistics of the claims to be respected; (4) the interest of the cases, which is a measure of their difficulty; (5) the weight of the texts, which makes for an increasingly contrasted landscape and history; (6) the process of quality control by means of which the conditions of felicity of the process as a whole are verified reflexively; (7) hesitation, which produces freedom of judgment by unlinking things before they are linked up again; (8) the means or arguments which compel the linking of texts to cases; (9) the coherence of law itself as it modifies its internal structure and quality; (10) the limits of law, which are defined by regulating the right to launch or suspend a legal action.
We do not have the space to give due credit to each value object in circulation during the consideration of Vandy Glenn’s claims. Instead, we can focus on value objects 7 through 9, in which Latour notes the intertextuality of claims and precedents, and hesitation of certain agents to bring about ‘justice.’ Hesitation refers specifically to the nature of a legal agent to consider the full weight of the claim before her before simply disposing the case; but in doing so, this hesitation is immediately linked with the file before the legal agent (the claim) and how it is to be construed in the lifeworld of precedent. With value object 9, we have a recapitulation of what Lopez had identified as the internal force that coordinates the construction of some intangible thing like race for legal purposes.
The danger of legal discourses on the issue of transgender legal subjects is that much may be lost in the mediation between social reality and legal reality. In the effort to circulate coherence, to apply a standard that will dispose a case and apply law in a just and equitable way, courts must construct artifices, relying on the documentation before them, to satisfy claimants who are now against the law. What is at stake is continued coherence of precedent, of legal standards that must be applied to future cases that make sense of sometimes senseless social realities.
In adopting this view, our intent is not to describe the courts as humanly incapable of appreciating the complexities of social reality and the lived experiences of transgender people. Rather, the mediating artifices that help shape the coherence of law (one value object of Latour’s) keeps at a distance a truly mutually constitutive impact the law may in fact deploy on social relations. Indeed, for the transgender subject, it is not that they must conceive of themselves as positioned within the gender binary because of their interdependence on law; rather, in order to make claims of discrimination, they must be willing to mediate their unique experiences through the winnowing gaze of legal documentation (briefs and claims) in the application of precedent that circulates in the legal world of courts.
 Cite Roll Jordan Roll
 Cite HLA Hart
 Cite Bruno Latour, The Making of Law
 Cite Kitty Calavita and Abel
 Ibid., Hart.
 Cite Reassembling the Social, especially conceptions of what is ‘social’ what ‘mediates’ and what is considered ‘intermediaries.’
 663 F.3d 1312 (2011)
 Cite Butler, Bodies that Matter
 Georg Simmel, On Individuality and Social Forms. Cf. Gabriel Tarde, cite Communication and Social Influence
 Cite Foucault The History of Sexuality: Vol. 1 and The Order of Things
 Cite the DSM-IV. See also Judith Butler Undiagnosing Gender
 Cite Lopez and Halley regarding constructing subjects and discourses.
 490 U.S. 228 (1989).
 Ibid., at 238. The Act itself designates ‘sex’ as a protected class from discrimination.
 Ibid., at 237. Emphasis added.
 Ibid., at 251.
 Ibid. The Court says ‘Although the parties do not overtly dispute this last proposition, the placement by Price Waterhouse of “sex stereotyping” in quotation marks throughout its brief seems to us an insinuation either that such stereotyping was not present in this case or that it lacks legal relevance. We reject both possibilities.’
 Latour, The Making of Law
 Lambda Legal, Glenn’s nonprofit counsel, writes on their website that: “There is no federal law explicitly prohibiting discrimination against transgender people in employment, although many courts have held that transgender employees are protected under sex discrimination laws. While a growing number of cities, counties and employers prohibit discrimination based on gender identity and expression, transgender people remain disproportionately vulnerable to discrimination because of widespread bias and lack of understanding of the law of sex discrimination.” Available at http://www.lambdalegal.org/in-court/cases/glenn-v-brumby-et-al.
 Glenn v. Brumby 663 F.3d 1312 (2011), 1317.
 Lambda Legal, Brief of Appellee Vandiver Beth Glenn, PDF available at http://www.lambdalegal.org/in-court/legal-docs/glenn_ga_20110201_brief-of-appellee, 32.
 Jean Bobby Noble, Sons of the Movement: FtMs Risking Incoherence on a Post-Queer Cultural Landscape (Toronto: Women’s Press, 2006), 3.
 Cite Halley in the Politics of Law and Universalizing Discourses to make equality claims
 Ibid., note 15. See also Ian Haney Lopez’s excellent discussion in Chapter 5 of his book, White By Law: The Legal Construction of Race (New York: New York University Press, 1996). See especially his discussion on construction, 80-81.
 Glenn v. Brumby 663 F.3d 1312 (2011), 1319.
 A. Finn Enke, “The Education of Little Cis: Cisgender and the Discipline of Opposing Bodies,” in The Transgender Studies Reader: Volume 2 (New York: Routledge Press, 2012), 60-61.
 On the issue of medical necessity and discrimination, see Lambda Legal’s brief, 41.
 Latour, The Making of Law, 194-195.
 Lopez, White By Law: The Legal Construction of Race, 80.