What Your State Wants To Be True About You

The law is an ass. It’s often also an asshole.

I’ve been taking Applied Gender Studies for about five years now. As a discipline we’ve been collecting data on how different jurisdictions treat gender, and today I’m going to talk about some of the implications of the laws we’ve seen.

Lawmaking as a process is a complicated affair. You have statutes and common law and these are interpreted by government organisations and judges and somehow out the other end comes some notion of how things are supposed to work. And with majestic circularity, lawmakers attempt to encode society’s values and notions of how things ought to be. This is a flawed process. Allow me to explain.

Take identity documents, for example. On the surface they may seem simple, but their implementation leaves a lot to be desired. I argue that putting sex on an identity document is entirely meaningless.

Your identity documents have three components:

  • Authenticating that the document is from a trusted issuing organisation
  • Authenticating your body against the document
  • Authorizing the bearer of the document

The first is relatively straightforward — you make a document difficult to make or replicate and add some beefy laws about doing so.

The latter two, on the other hand, are distinct but not entirely separable. Most features we can classify quite easily — the photograph and physical description are clearly to prove that the ID is yours, and the name and address and driving endorsements are about being able to act as a legal identity — accessing bank accounts, driving cars, and so on.

Age and sex are a little more complex. Age straddles these roles — you have to look approximately the right age to authenticate against the document, and then once you do you can prove precisely what your age is.

Then there’s sex. What role does it fulfil? This varies by jurisdiction and seems to be more about what constraints a state is attempting to enforce than anything else.

If it’s an authenticator then you must appear to be the sex your documentation says you are or you cannot prove that you own the ID. It is, in the eyes of a state, a binary: this piece of data precludes half the population from falsely using your documents. However, with photos this becomes entirely meaningless. In this realm the only consequence is potentially precluding trans people from using their ID and it doesn’t make sense to include it at all.

If it’s an authorization then the state thinks your legal sex must be legible to anyone who requires ID. This is only meaningful only for people whose percieved sex differs from their legal sex while regulating access to gendered spaces. Thus having sex on ID in this realm impacts androgynous people and trans people only.

There’s two ways this can go. Either it allows visibly trans people to prove that they are trans to access a space, or it acts as a legal sex checkpoint. In the former case it’s almost certain that an individual in this situation is legibly trans and can appeal to government authority for access. I suspect this is never the intent of lawmakers.

So in a very real sense if sex appears on ID then its function is to exclude trans people who have not updated their legal sex, and its effect is to do so even from non-gendered spaces or to risk being outed.

To circle back to the notion of constraints: what is the government trying to ensure is true when it regulates your legal sex?

In Sweden it used to be impossible to access transition or change legal sex unless you were unmarried and sterilized. It seems the constraint was that no marriage could become gay and no child should have a trans parent.

In the UK you must be unmarried. The constraint was no marriage could become legally a gay marriage. Around 250 couples were therefore forced to nullify their marriages to change legal sex before marrying again.

In many US states you must have surgery. The constraint there appears to be that legal sex equates to genital status, or put another way, that anyone requiring ID has a right to know what is in your pants and that the legal gayness of your marriage is measured by the kind of sex you are potentially having.

In other states you cannot change legal sex. The constraint there, then, is that your trans status must be legible to anyone requiring documents. In such states it’s also likely a constraint that no trans person can enter into a straight marriage, from a mindset that considers this more gay.

In some places you can change legal sex with a minimum of documentation. There the constraint appears to be that no cis person can change legal sex. If gay marriage is illegal in those states, the constraint is designed to prevent gay marriage. Otherwise, legal sex has become almost entirely meaningless and the legislature hasn’t noticed yet.

Many of these constraints aren’t articulated, perhaps even examined. Nevertheless it is clear that having legal sex as a concept, and especially as a thing made legible to the people around us, is designed to enforce gendered constraints: to control what TLGB people can or cannot do.

It’s time to remove legal sex from ID. It serves no purpose other than to marginalise trans people, restricting their ability to use their ID and access public spaces and services. And it’s time to abolish the concept of legal sex entirely. It is a nonsense, something to leave behind us as unnecessary in an equal society.

One clap, two clap, three clap, forty?

By clapping more or less, you can signal to us which stories really stand out.