“Gender-benders”: Sex and Law in the Constitution of Polluted Bodies


This paper explores how law might conceive of the injury or harm of endocrine disruption as it applies to an aboriginal community experiencing chronic chemical pollution. The effect of the pollution in this case is not only gendered, but gendering: it seems to be causing the ‘production’ of two girl babies for every boy born on the reserve. This presents an opening to interrogate how law is implicated in the constitution of not just gender but sex. The analysis takes an embodied turn, attempting to validate the real and material consequences of synthetic chemicals acting on bodies—but uncovers that finding a harm in a declining sex ratio depends on a static conception of the human form, based on unfounded assumptions of ‘naturalness’ and ‘normalcy’. Elizabeth Grosz’s theory of ‘becoming’ offers a compelling challenge, essentially pointing to the conclusion that we should find harm where we find illness and suffering and not simply where we find difference. At the same time, we cannot discount the political economy of the pollution: the paper concludes by returning the focus to the role of power, colonialism and the state in the perpetuation of the pollution on the landscape.

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  1. 1.

    Ada Lockridge, Health and Environment Committee Chair, Aamjiwnaang First Nation, personal communication, 26 March 2008.

  2. 2.

    Community member comments to the Aaamjiwnaang Environmental Health Symposium, Sarnia, Ontario, 27 March 2008: notes on file with author.

  3. 3.

    The regulation in effect in Sarnia is Air Pollution—Local Air Quality O. Reg. 419/05 under the Ontario Environmental Protection Act, RSO 1990, c E19 [hereafter OEPA].

  4. 4.

    In Ontario, it is the OEPA, ss 6(1) and 9(1).

  5. 5.

    Interestingly, Nelly Oudshoorn, in her work on the social and historical conditions under which scientists ‘discovered’ hormones, states that advances in biomedical science “made the invisible visible” with respect to the action of hormones in the body (1994, p. 4).

  6. 6.

    Ron Plain, ‘Exposing Canada’s toxic shame’ event, lecture delivered at the Faculty of Environmental Studies, York University, 12 March 2008: notes on file with author.

  7. 7.

    These strategies were shared with me by members of the Aamjiwnaang First Nation at the Aamjiwnaang Environmental Health Symposium, Sarnia, 26 March 2008: notes on file with author.

  8. 8.

    The term “hormone-mimics” was made popular through the very influential 1997 book by Coleborne et al., Our Stolen Future, which is said to have done for endocrine disruption what Rachel Carson’s Silent Spring (1962) did for pesticides, in terms of inspiring an environmental movement.

  9. 9.

    For a description of the mechanics of endocrine disruption from the perspective of contemporary science, see Solomon and Schettler (2000). For a compelling account of how hormones emerged out of the historically and socially specific conditions of endocrine research environments in the early twentieth century, see Oudshoorn (1994). I am grateful to Mariana Valverde for putting me onto the critical work of Nelly Oudshorrn.

  10. 10.

    Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, 40 ILM 532 (entered into force 17 May 2004).

  11. 11.

    Langston (2008) also attributes rising “rates of intersexuality” to endocrine disruption.

  12. 12.

    For work on tort law’s treatment of injuries related to interference with a woman’s control over her own reproduction, it is useful to consider the ‘wrongful conception’ suits that have arisen in situations where women sue their doctors for negligent sterilisation or contraception procedures. The challenge for tort law in these cases is, of course, the assessment of damages: a healthy child is born, and yet, a woman is claiming she has been wronged, her right not have an unplanned child has been infringed. Can we assign a ‘harm’ to the birth of a child? (see, e.g., Sheth 2006).

  13. 13.

    Plain, supra n 6.

  14. 14.


  15. 15.

    See also the work of Dorothy Roberts that exposes how the material conditions of poverty and oppression have limited the reproductive options and choices for poor women of colour who have been “deemed not even worthy of the dignity of childbearing” (1991, p. 1458).

  16. 16.

    As Oudshoorn (1994) demonstrates, since the earliest writing on endocrinology in the early twentieth century, scientists labelled the hormones as ‘female’ or ‘male’. Today scientists recognise that hormones do not belong to one sex or the other, and yet the labels persist because they serve as a form of cultural shorthand. Our understandings of endocrine disruption, predictably, invoke these binary categories in popular representations.

  17. 17.

    In fact, both Grosz and Butler (1993) have endorsed a “corporeal” feminism.

  18. 18.

    As Anne Bottomley has noted, these assumptions have been fundamental: “knowledge of ourselves and of our world, has been predicated upon binary constructs of…male/female” (2002, p. 127).

  19. 19.

    These data were presented by Sharilyn Johnston and Ron Plain at the Aamjiwnaang Environmental Health Symposium, Sarnia, Ontario, 27 March 2008: notes on file with author.

  20. 20.

    This is also true of other feminist scholarship, e.g. Anne Bottomley has argued that with respect to its image, its use and its appearance, “there is an important sense in which the body morphs” (2002, p. 127).

  21. 21.

    In Butler’s words, “matter has a history (indeed, more than one)” (1993, p. 29).

  22. 22.

    As Conaghan’s work reveals, there is a parallel here to Catharine MacKinnon’s groundbreaking analysis of tort law’s impotence for remedying sexual harassment (1979).

  23. 23.

    “It is precisely because we are interested in the social, the cultural, the historical, and the political forces shaping subjectivity or identity that we need to turn again, with careful discernment, to those discourses, once rejected by feminists and political activists, that place the body in the larger cosmological and biological orders in which it always finds itself” (Grosz 2004, p. 3).

  24. 24.

    As Bottomley urges, “we have to be willing to engage more directly with the corporeal, sexed and therefore differentiated, body rather than remain within the seemingly safer region of cultural representation, construction and encoding of gender” (2002, p. 144).

  25. 25.

    For a fuller description of this dynamic within feminist legal scholarship, see Bottomley (2002, p. 129).


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This paper has been in the works for a long time. I was inspired initially by an invitation from Mary Jane Mossman, Director of the Institute for Feminist Legal Studies at Osgoode Hall Law School, to present some of my empirical findings from my study of environmental health and the Aamjiwnaang First Nation at one of her trademark Feminist Fridays events in Fall 2007. Since then, too many people to name have contributed. I benefited tremendously from a workshop entitled Critical Perspectives on Environment and Women’s Health, held in Toronto on 29 January 2009 and sponsored by the National Network on Environments and Women’s Health. I would like to thank all participants, but this work has been influenced most through productive exchanges with Anne Bloom, Sarah Lochlann Jain and Stu Marvel. My friends and colleagues Roxanne Mykitiuk and Ruth Buchanan agreed to read Grosz with me, and despite the fact that life intervened and we didn’t actually get together on that patio over wine to discuss her work last summer, I am still indebted to them for agreeing. If they hadn’t, I would have continued to push these books to the side. My partner Adrian Smith, as always, was my most insightful and creative critic. Funding for the research has been provided by the Social Sciences and Humanities Research Council of Canada.

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Correspondence to Dayna Nadine Scott.

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Scott, D.N. “Gender-benders”: Sex and Law in the Constitution of Polluted Bodies. Fem Leg Stud 17, 241–265 (2009). https://doi.org/10.1007/s10691-009-9127-4

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  • Canadian First Nations community
  • Chemical pollution
  • Endocrine disruption
  • Feminist theory of the body
  • Gendered harm
  • Political economy of pollution
  • Tort law