Gender kaleidoscope: Diffracting legal approaches to reform gender binary
This article explores the import of current gender legal reforms. Through analysis of legal processes of self-determination and inclusion of non-binary gender labels, it critiques the hypostatizing tendency that marks our current understanding of gender and limits the scope of legal reforms. My insight is that reforms of legal gender status are bound to reproduce a conservative system of recognition because they rely on a substantialised conception of gender, one that frames gender as a given entity (or a given set of entities) along which our identities organise. In the conclusion, I discuss alternative forms of conceiving legal gender, gesturing toward a more relational and multifarious legal approach.
Barker, M.J. and Richards, C. 2015, ‘Further Genders’, M.J. Barker and C. Richards (eds.) The Palgrave Handbook of the Psychology of Sexuality and Gender, New York: Palgrave McMillan, pp. 166-182.
Butler, J. 1997, The Psychic Life of Power. Essays in subjection, New York: Stanford University Press.
Butler, J. 2004, Undoing Ties, London and New York: Routledge.
Cannoot, P. 2018, ‘New Belgian Gender Recognition Act: shouldn’t self-determination also include non-binary people?’, IACL-AIDC weblog, 21 March 2018, last accessed 15 January 2020, https://blog-iacl-aidc.org/the-third-gender/2018/6/3/new-belgian-gender-recognition-act-shouldnt-self-determination-also-include-non-binary-people-gwh56.
Clarke, J.A. 2015, ‘Identity and Form’, California Law Review, vol. 103, no. 4, pp. 747-839.
Clarke, J.A. 2019, ‘They, them, and theirs’, Harvard Law Review, vol. 132, no. 3, pp. 894-991.
Cooper, D. 2017, ‘Prefiguring the State’, Antipode, vol. 49, no. 2, pp. 335–356
Cooper, D. 2018a, ‘Possessive Attachments: Identity Beliefs, Equality Law and the Politics of State Play’, Theory, Culture & Society, vol. 35, no. 2, pp. 115–135.
Cooper, D. 2018b, Acting as if other law reform options were already on the table?, social politics and stuff weblog, 14 October 2018, last accessed 15 August 2019, https://davinascooper.wordpress.com/2018/10/14/acting-as-if-other-law-reform-options-were-already-on-the-table/.
Cooper, D. 2019a, ‘A Very Binary Drama: The Conceptual Struggle for Gender’s Future’, Feminist@law, vol. 9, no. 1, pp. 1-36.
Cooper, D. 2019b, Feeling Like a State, Durham: Duke University Press.
Cooper, D. and Renz, F. 2016, ‘If the State Decertified Gender, What Might Happen to its Meaning and Value?’, in Journal of Law and Society, vol. 43, no. 4, pp. 483-505.
Davies, M. 2007, ‘Beyond Unity’, in V. Murno, C.F. Stychin Sexuality and the Law. Feminist engagements, Routledge, London, pp. 151-170.
De Lauretis, T. 2008, ‘Nightwood and the ‘Terror of Uncertain Signs’’, Critical Inquiry, vol. 34, no. S2, pp. 117-129.
Dunne, P. and Hewitt, T. 2018, Gender Recognition, Self-Determination and Segregated Space, Oxford Human Rights Hub weblog, 16th January, last accessed 18 August 2019. https://ohrh.law.ox.ac.uk/gender-recognition-self-determination-and-segregated-space/
Deleuze, G. 2001, Difference and Repetition, London and New York: Continuum.
Deleuze, G. 2004, ‘Instinct and Institution’, in D. Lapoujade (ed.), Desert Islands and other texts 1953-1974, Los Angeles: Semiotext(e), pp. 19-22.
Deleuze, G., Parnet, C., 2012. Dialogues II, New York: Columbia University Press.
Dietz, C. 2018, ‘Governing Legal Embodiment: On the Limits of Self-Declaration’, Feminist Legal Studies, vol. 26, no 1, pp.- 85–204.
Harman, G. 2005, Guerrilla Metaphysics: Phenomenology and the Carpentry of Things, Chicago: Open Court.
Irigaray, L. 1985, The sex which is not one, Ithaca: Cornell University Press.
Katyal, S.K. 2017 ‘The Numerus Clausus of Sex’, The University of Chicago Law Review, vol. 84, pp. 389-494.
Keenan, S. 2010, ‘Subversive Property: Reshaping Malleable Spaces of Belonging’, Social & Legal Studies, vol. 19, no. 4, pp. 423–439.
Monro, S., Van Der Ros, J. 2018, ‘Trans* and gender variant citizenship and the state in Norway’, Critical Social Policy, vol. 38, no. 1, pp. 57–78.
Monro S. 2019, ‘Non-binary and genderqueer: An overview of the field, International’, Journal of Transgenderism, vol. 20, no. 2-3, pp. 126-131.
Nisar, A.N. 2018, ‘(Un)Becoming a Man: Legal Consciousness of the Third Gender Category in Pakistan’, Gender and Society, vol. 32, no. 1, pp. 59-81.
O'Flaherty, M. 2015, ‘The Yogyakarta Principles at Ten’, Nordic Journal of Human Rights, vol. 33, no. 4, pp. 280-298.
Parisi, L. 2012, ‘Speculation: a Method for the Unattainable’, in Lury, C., Wakeford, N. and Gerhard Boomgaarden (eds), Inventive Methods: The Happening of the Social (Culture, Economy, and the Social). London and New York: Routledge, pp. 232-244.
Pateman, C. 1988, The Sexual Contract, New York: Stanford University Press.
Rellis, J. 2008, “‘Please write ‘E’ in this box’. Toward self-identification and recognition of a third gender: approaches in the United States and India”, Michigan Journal of Gender & Law, vol. 14, no. 2, pp. 223-258.
Renz, F. 2019, Fluctuating intensities: Thinking about gender through other socio-legal categories, SLSA Blog weblog, 12th July, last accessed 18 August 2019. http://slsablog.co.uk/blog/blog-posts/fluctuating-intensities-thinking-about-gender-through-other-socio-legal-categories/.
Spade, D. 2015, Normal life: administrative violence, critical trans politics, and the limits of law, Durham: Duke University Press.
Stychin, C.F. 2007, ‘De-meaning of contract’ in V. Murno, C.F. Stychin Sexuality and the Law. Feminist engagements, London: Routledge, pp. 73-91.
Van den Brink, M., Reuβ, P. and Tigchelaar, J. 2015, ‘Out of the Box - Domestic and Private International Law Aspects of Gender Registration’, European Journal of Law Reform, vol. 17, pp. 282-293.
Venditti, V. 2019, The Law and Politics of Inclusion. From Rights to Practices of Disidentification, London: Routledge.
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