Date of Degree
Barbara Katz Rothman
Gender and Sexuality | Other Legal Studies | Social Control, Law, Crime, and Deviance
transgender, legal consciousness, medicalization, normativity, name change
In the 1960s, trans people in the United States began asserting their rights, petitioning courts for name changes, updating sex markers on birth certificates and other identity documents, and confirming whether their marriages were legal. However, it was not until the mid-2000s that courts began recognizing trans discrimination claims. While trans people enjoyed numerous legal inroads under the Obama administration, within its first two years, the Trump administration had effectively reversed these legal gains. Being vulnerable to the political winds contributes to a feeling of legal precarity, which, in turn, shapes how trans people think about and approach the law.
This dissertation asks what causes trans people in the United States to turn to the law and how are they defined by and sometimes stymied by law? In asking why trans people turn to the law, I was interested in both what types of social problems lead trans people to legal encounters as well as, and perhaps even more so, what is the appeal of law that people lay their troubles before it?
To answer these questions, I utilized a multi-method approach including interviews and content analysis. The content analysis facilitated an understanding of medicalization in legal discourse while interviews sought to understand why trans people turn to the law, how they are represented before the law, and how their experience with the law shapes their understanding of justice. I interviewed 20 trans people who had considered hiring a lawyer (who I call trans rights-seekers), 56 lawyers who had represented at least one trans client in a non-criminal case, and 12 advocates (e.g., paralegals, social workers, policy directors) who used law in their work on behalf of and with trans communities. Through these interviews, I uncovered multiple legal issues including name and gender marker changes, employment discrimination, housing disputes, divorce and custody battles, and asylum claims.
Based on these interviews as well as an analysis of 53 published employment discrimination court decisions involving a trans plaintiff, I argue that trans people turn to the law for its normative power which sets the parameters of inclusion that, in some ways, constrains lives even as they enable them. To be normal is not only to be average but also to be valued, which counterbalances the stigma and dehumanization many marginalized populations have faced. For those facing exclusion and prejudice, legal recognition can be a meaningful symbol of inclusion and a weapon against bias. However, norms are double-sided. The cost of social inclusion through the establishment of legal norms is being subject to the law’s terms. As discussed in this dissertation, trans rights-seekers are regulated through medicalization. While there was some evidence that medicalization sometimes helped the court arrive at a favorable outcome for the plaintiff, it came at a cost. By including details of the plaintiff’s medical transitions, focusing especially on genital surgery, even when such details were not used to determine the plaintiff’s legal standing, courts reduced trans plaintiffs to their medical procedures and perpetuated genital narcissism.
Thus, in turning to the law for its normative power by demanding inclusion and harnessing the power of law to support normalizing inclusive name and gendering practices, trans people are also subjected to the regulatory power of law as a normative institution that imports the norm-deviance boundary-making of medicalization. This dissertation contributes to sociolegal understanding of how previously excluded minority groups are incorporated within legal landscapes and under what circumstances.
Bender-Baird, Kyla, "Standing Trans Before the Law" (2021). CUNY Academic Works.
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