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The Stakes in Sex: A Comparative Study of the Civil Status of Trans Persons

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General Reports of the XXth General Congress of the International Academy of Comparative Law - Rapports généraux du XXème Congrès général de l'Académie internationale de droit comparé

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GRIA,volume 50))

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Abstract

For the last 200 years, feminists have struggled to show us that sex is a marker for discrimination, exclusion and violence. The unapologetic fierceness the modern state would deploy in policing the boundaries of sex was hard to predict, though. The high costs of the fragile promise contained in belonging to the “right side” of the male/female binary were difficult to anticipate even for trans persons themselves. This report seeks to illuminate the map of legal responses to gender mobility, including sex and name registration, access to gender modification interventions and anti-discrimination regulation. It will show the importance of background rules in understanding the operations of law for discrimination, exclusion, and violence, as well as the stickiness of nature as a reason to introduce biology in the regulation of human relations and to justify pain and suffering.

Report prepared for the XVIII General Congress of the International Academy of Comparative Law. This report is based on the work of national reporters from 26 different countries.

The author wishes to thank Emilio Lehoucq and Guillermo Estupiñán for their extraordinary research assistance, and the Law School and Office of the Research Provost at Universidad de los Andes for providing the necessary funding to complete the project. Most importantly, she is indebted to the national reporters, most of whom were unknown to her before starting this Project, for their great work.

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Notes

  1. 1.

    The report systematically uses sex to refer to the principle of classification of individuals into males and females, men and women, that is based on some external/visible features related to their role in reproduction. Gender, on the other hand, is used to refer to the set of characteristics socially attributed to males and females because of their sex. Eventually the report might also refer to sex as the practices of gratification that are defined by their relation to intercourse. Feminism is the political position that identifies oppression along the binaries resulting from sex and gender, in particular, that advocates for women as the subject of such oppression. Please consult the note on terminology for a fuller explanation of the conceptual framework underlying the choice of words in this report.

  2. 2.

    Jaramillo (2007), pp. 16–23. On the role of language in producing the world, I find MacKinnon’s (1993) and Butler’s (1990) work most appealing.

  3. 3.

    Scott (1986).

  4. 4.

    Moving away from sex, as Scott explains, was essential to stop having to answer to every claim about brain size, influence of hormones on behavior, and social behavior observed in animals. Many resisted this move within feminism. MacKinnon, for example, argued that sex was as socially constructed as gender and actually that legal categories flowed from male interest and investment in the system. She also emphasized that legal categories had to do with penetrability and therefore with sex as a practice of gratification. In this sense, sex as a practice of gratification would produce sex as a legal category and gender as a way of making sex intelligible socially. MacKinnon (1982), pp. 515–544. French feminists also have resisted the sex/gender difference arguing that all descriptions are socially constructed and therefore embracing such difference is as much as embracing an euphemism. They will argue for the expression “social relations of the sexes” to emphasize that it is about power and not aseptic knowledge of reality. Daune-Richard and Devreux (1992), pp. 7–30; Delphy (1970); article reproduced in Delphy (1998), p. 180; Devreux (1985).

  5. 5.

    Halley (2008). Halley proposes here a definition of feminism that takes seriously this notion and therefore holds feminism to three propositions: (1) there are women and men in the world; (2) men are winners in the social distribution of resources; (3) being a feminist is to be for women.

  6. 6.

    On the events surrounding the expulsion of transwomen from the Latin American and Caribbean Feminist Encounter see Restrepo and Bustamante (2009). The debate on transwomen continued at least until 2010. In the 2009 Encuentro that took place in Mexico, transwomen were invited but there still was a lot of dissatisfaction with their presence. On this matter Eli Bartra argues that transgender women were perceived as “men disguised as women” (p. 200, translation mine) and more importantly that these trans women were included in the encounter just because of their gender identity, without consideration of whether they were feminist or not. For Bartra, as long as the transwomen who participated were not feminists, they should have not participated. Bartra (2010). Bustamante, on her part, explains that the presence of transgender women in the XI encounter was considered as an unwanted influence of international organizations in the encounter’s priorities (p. 179). She also describes how rejection of transgender women was grounded on biological conceptions of what being a “woman” means (p. 180). Bustamante (2010).

  7. 7.

    The field of transgender studies has been acknowledged by at least one commentator as the newest of academic fields. See Raskolnikov (2010), pp. 157–164. In the introduction to her book Debates in Transgender, Queer and Feminist Theory, Elliot (2010) foregrounds the existence of the field in the 1990s.

  8. 8.

    On the construction of minority claims and universal claims around sex see Sedgwick (1990).

  9. 9.

    It is important to note here that the 2015 book that attempted a similar exercise of comparison of legislation on trans persons, included also views on 26 jurisdictions but had 16 male reporters and only 10 female reporters Scherpe (2015).

  10. 10.

    Two clarifications are in order here regarding this general report. The first is that everytime I use “we”, I am referring to the collective formed by me and the national reporters. So far we have not had the opportunity to discuss these ideas in person to validate them, but I think it is fair to recognize that generalizations here were made possible by the collective effort. The second clarification is that information about particular jurisdictions, unless otherwise noted, comes from national reports. I have not cited each report because we do not have final versions yet, nor final page numbers.

  11. 11.

    Of course who are the masters of comparative law is in itself a hotly debated question. Here I refer to the list carefully built by Riles et al. (2001). Actually, even though the editor is a woman, only one more woman wrote a chapter for the book: Vivian Grosswald Curran who wrote a chapter on Hermann Kantorowicz.

  12. 12.

    Again, the question of where to find comparative legal scholars is challenging. I suggest that one indication of being a “comparative legal scholar” is being included in the handbooks published by the most important publishing houses, as precise information about the members of the International Academy of Comparative Law is not publicly available. The Oxford Handbook of Comparative Law (2006), for example, was edited by two men, Mathias Reinmann and Reinhard Zimmermann, and included work by forty-three scholars; only four women wrote chapters for a grand total of less than 10%. The Comparative Law Handbook by Hart Publishing (2007), was edited by a woman and a man, but only one other contributor is a woman. None of the main editors of the International Encyclopedia of Comparative Law is a woman.

  13. 13.

    See the Academy’s web page (updated to 2015): www.iuscomparatum.info.

  14. 14.

    Nicola (2010), pp. 777–797.

  15. 15.

    See, for example, Abu-Odeh (1993), pp. 26–37; and Engle (1991-1992), pp. 1509–1609. See also Riles (2015), pp. 124–183, suggesting that feminists have a practice of collaboration that contrasts with the discipline of comparisons.

  16. 16.

    Gordon (1984), pp. 57–125.

  17. 17.

    Trubek and Galanter (1974).

  18. 18.

    Abu-Odeh (2004), pp. 1043–1146.

  19. 19.

    Mary Ann Glendon has crucially shown how solutions need to see legal systems as systems and not as compartments. See for example Glendon (1989).

  20. 20.

    An argument for the importance of administrative and procedural rules to be taken under consideration when comparing has been made, for example, by Helena Alviar. See Alviar (2011).

  21. 21.

    On the differences between “recognition” and “distributive” harms see Fraser (1995).

  22. 22.

    Spade (2009).

  23. 23.

    See Riles (2001). The International Academy of Comparative Law was founded in 1924 by Elemer Balogh in The Hague. See http://jura.ku.dk/english/research/comparativelaw/international_academy/.

  24. 24.

    European Court of Human Rights, Fact Sheet—Gender Identity Issues, 2018, https://www.echr.coe.int/Documents/FS_Gender_identity_ENG.pdf.

  25. 25.

    Available for free online at: www.ilga.org.

  26. 26.

    Lloyd (2005), Ohle (2005), and Cowan (2005).

  27. 27.

    Holning (2008).

  28. 28.

    Boyce and Coyle (2013). It is important to note that the authors do not embrace fully the reasoning used by the Court, as they believe that it relied too heavily on ideas of nature and the natural.

  29. 29.

    Jiang (2013).

  30. 30.

    Fynes (2014).

  31. 31.

    Mršević (2016).

  32. 32.

    Patel (2010).

  33. 33.

    Swain (2016) and Kodiyath (2015).

  34. 34.

    Bell (2012) and Theilen (2016).

  35. 35.

    Scherpe (2015) also has four categories or stages that closely resembles the ones I use here.

  36. 36.

    For a definition of Sex Affirming Surgery see: https://hr.cornell.edu/sites/default/files/trans%20terms.pdf.

  37. 37.

    I found Duncan Dormor’s mapping of Christian responses to the issues raised by trans persons very useful. See his chapter in Scherpe (2015): “Transgenderism and the Christian Church”, pp. 28–68. An authoritative position on the Vatican’s understanding of the stakes and actors in the confrontation may be found in the Doctrine for the Congregation of the Faith’s Letter to Bishops on the Collaboration of Men and Women in the Church and in the World (2004) available at: www.catholicnewsagency.com.

  38. 38.

    Taylor et al. (2015).

  39. 39.

    See Jaramillo Sierra (2017).

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Authors and Affiliations

  1. Universidad de los Andes, Bogotá, Colombia

    Isabel C. Jaramillo Sierra

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  1. Isabel C. Jaramillo Sierra
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Correspondence to Isabel C. Jaramillo Sierra .

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  1. AcadÕmie internationale de droit comparÕ, International Academy of Comparative Law, Paris, France

    Katharina Boele-Woelki

  2. Académie internationale de droit comparé, International Academy of Comparative Law, Paris, France

    Diego P. Fernández Arroyo

  3. AcadÕmie internationale de droit comparÕ, International Academy of Comparative Law, Paris, France

    Alexandre Senegacnik

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Jaramillo Sierra, I.C. (2021). The Stakes in Sex: A Comparative Study of the Civil Status of Trans Persons. In: Boele-Woelki, K., Fernández Arroyo, D.P., Senegacnik, A. (eds) General Reports of the XXth General Congress of the International Academy of Comparative Law - Rapports généraux du XXème Congrès général de l'Académie internationale de droit comparé. Ius Comparatum - Global Studies in Comparative Law(), vol 50. Springer, Cham. https://doi.org/10.1007/978-3-030-48675-4_5

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