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Queering the Queer/Non-Queer Binary: Problematising the “I” in LGBTI+

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The Queer Outside in Law

Part of the book series: Palgrave Socio-Legal Studies ((PSLS))

Abstract

This chapter problematises the automatic (and unquestioning) inclusion of intersex experiences “inside” broader lesbian, gay, bisexual, trans and queer advocacy movements. It draws upon the findings of a small-scale empirical research project, which the authors conducted with intersex rights activists both in the UK and farther afield. The chapter seeks to identify how intersex is being constructed by (and to) domestic policymakers and legislators and to reveal who is responsible for constructing the terms of intersex-focused political debates. In doing so, the chapter illustrates how a more nuanced approach is now required by law in relation to contemporary intersex movements. The authors strongly suggest that a solely queer or LGBTIQ framing will be an ineffective mechanism through which to incorporate the experiences of intersex individuals. They explore core themes throughout the contribution—including bodily autonomy, identity appropriation and resource division. The research highlights how intersex embodied people navigate their status as outsiders in terms of both law and activism. For many individuals, inhabiting the space of outsider, while by no means ideal, is necessary in order to communicate their needs without being co-opted or misconstrued by queer and LGBT activists or policymakers. The chapter exposes an underlying tension within the strategies that outsiders can use to instigate legal change relating to the narratives of inclusion/exclusion and queer/non-queer. In the context of intersex populations, these tensions result in an increasingly polarised schism—with the potential risk of undermining future, progressive law reform.

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Notes

  1. 1.

    Michael Warner, “Introduction,” in Fear of a Queer Planet: Queer Politics and Social Theory, ed. Michael Warner (Minneapolis: University of Minnesota Press, 1993), i–xxviii.

  2. 2.

    Lauren Berlant and Elizabeth Freeman, “Queer Nationality,” in Fear of a Queer Planet: Queer Politics and Social Theory, ed. Michael Warner ( Minneapolis: University of Minnesota Press, 1993), 193–229.

  3. 3.

    Cathy Cohen, “Punks, Bulldaggers, and Welfare Queens: The Radical Potential of Queer Politics?” GLQ: A Journal of Lesbian and Gay Studies, 3, no 4, (1997): 437–465.

  4. 4.

    Ibid., 441.

  5. 5.

    Noreen Giffney and Myra Hird, Queering the Non/human, 1st ed. (Aldershot: Ashgate Publishing Ltd., 2008), 5.

  6. 6.

    See “Statement of Principles of Ethical Research Practice.” Socio-Legal Studies Association, Last modified: January 2009. http://www.slsa.ac.uk/images/slsadownloads/ethicalstatement/slsa%20ethics%20statement%20_final_%5B1%5D.pdf. Information sheets with details of the project and consent forms were given to participants prior to the interview to ensure that consent was fully informed. Participants were made aware that they could withdraw from the process at any time, and all data has had any identifying information removed to maintain the participants’ anonymity. Only the authors have encrypted access to any non-anonymised data. Moreover, given the sensitive nature of the topic, two independent intersex organisations reviewed the interview schedule and information sheets. All respondents were also directed to links for support groups via the information sheets.

  7. 7.

    These were telephone interviews. However, three submitted responses via e-mail as they did not wish to be interviewed. Respondents came from a number of different jurisdictions, including the UK, Denmark, USA, Sweden, Australia, Germany, Malta and Iceland. Given that respondents were internationally campaigning for intersex rights, they were each aware of the differing legislative responses to intersex in other jurisdictions. Thus, they were able to draw on this knowledge and compare it to their own experience within their jurisdiction.

  8. 8.

    Virginia Braune and Victoria Clarke, “Using Thematic Analysis in Psychology,” Qualitative Research in Psychology, 3 (2006): 77–101, 87.

  9. 9.

    Thematic analysis involves a six step process as set out by Braune and Clarke (2006): familiarisation with the data; generating initial codes; searching for themes; reviewing themes; defining and naming themes; and then producing the report. Theoretical thematic analysis involves the generation of themes informed by a particular theory. In this instance, themes were generated through the lens of Queer Theory.

  10. 10.

    Georgiann Davis, Contesting Intersex: The Dubious Diagnosis (New York: New York University Press, 2015).

  11. 11.

    Morgan Carpenter, “Australia Can Lead the Way for Intersex People.” The Guardian, June 18, 2013. https://www.theguardian.com/commentisfree/2013/jun/18/intersex-people-australia.

  12. 12.

    Katrina Karkazis, Fixing Sex: Intersex, Medical Authority and Lived Experience (London: Duke University Press, 2008); Fae Garland and Mitchell Travis, “Temporal Bodies: Emergencies, Emergence, and Intersex Embodiment.” In Jurisprudence of the Body, edited by Chris Dietz, Michael Thomson and Mitchell Travis (London: Palgrave, 2020).

  13. 13.

    Committee on Bioethics of the Council of Europe. The Rights of Children in Biomedicine: Challenges Posed by Scientific Advances and Uncertainties, by Kavot Zillén, Jameson Garland and Santa Slokenberga. Last modified 2017. https://rm.coe.int/16806d8e2f at 40–42.

  14. 14.

    Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality (New York: Basic Books, 2000), 54; Mitchell Travis, “Accommodating Intersexuality in European Union Anti-Discrimination Law.” European Law Journal, 21, no 2 (2015): 180–199, 183.

  15. 15.

    Our empirical data also revealed this concern: “there aren’t enough studies that really track the longitudinal effect of intersex people who don’t have their reproductive organs … I think that’s what the medical community should actually invest in given that they’re doing these surgeries, and in a way, it’s leaving people out in the cold …” (Respondent 15). See also Julie Greenberg, Intersexuality and the Law: Why Sex Matters (London: New York University Press, 2012), 21; Sarah Creighton, “Surgery for Intersex.” Journal of the Royal Society of Medicine, 94, no 5 (2001): 218; Morgan Holmes, “Distracted Attentions: Intersexuality and Human Rights Protections.” Cardozo Journal of Law and Gender, 12 (2005): 127. For discussions on why early interventions have no benefit and should be delayed until puberty. See e.g. Naved Alizai and others. “Feminizing Genitoplasty for Congenital Hyperplasia: What Happens at puberty?” Journal of Urology, 161 (1999): 1588–1591 and Sarah Creighton et al., “Objective Cosmetic and Anatomical Outcomes at Adolescence of Feminizing Surgery for Ambiguous genitalia Done in Childhood.” Lancet, 358 (2001): 124–125; Committee on Bioethics of the Council of Europe. The Rights of Children in Biomedicine: Challenges Posed by Scientific Advances and Uncertainties, by Kavot Zillén et al., Last modified, 2017. https://rm.coe.int/16806d8e2f, 43–45.

  16. 16.

    Fae Garland and Mitchell Travis, “Legislating Intersex Equality: Building the Resilience of Intersex People Through Law.” Legal Studies, 38, no 4 (2018): 587–606, 590.

  17. 17.

    This narrative of the medical profession creating medical problems is reflected in the literature, see e.g. Sharon Preves, Intersex and Identity: The Contested Self (New Brunswick: Rutgers University Press, 2013).

  18. 18.

    See also Fae Garland and Mitchell Travis, “Legislating Intersex Equality: Building the Resilience of Intersex People Through Law.” Legal Studies, 38, no 4 (2018): 587, 599–600.

  19. 19.

    Michael Warner, The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life (Cambridge: Harvard University Press, 1999); Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (London and New York: Routledge, 1990).

  20. 20.

    Annamarie Jagose, Queer Theory: An Introduction (New York: New York University Press, 1996), 105.

  21. 21.

    Patrick Dilley, “Queer Theory: Under Construction.” Qualitative Studies in Education, 12 (1999): 457–472, 461.

  22. 22.

    This narrative of the medical profession creating medical problems is reflected in the literature, see e.g. Sharon Preves, Intersex and Identity: The Contested Self (New Brunswick: Rutgers University Press, 2013).

  23. 23.

    The Third International Intersex Forum was held in Malta in 2013 and issued the Maltese Declaration 2013, a document aimed at legislators and policymakers that highlighted the demands of the international intersex community. This event was supported by ILGA and ILGA-Europe and fed into the long collaborative process between policymakers, activists and stakeholders in Malta that eventually led to the development and introduction of the Gender Identity, Gender Expression and Sex Characteristics Act 2015. The introduction of this Act was greatly helped by the role that Ruth Baldacchino, ILGA’s co-secretary general, had in the Maltese Government; working at the Ministry for Social Dialogue, Consumer Affairs and Civil Liberties.

  24. 24.

    Noreen Giffney and Myra Hird, Queering the Non/human, 1st ed. (Aldershot: Ashgate Publishing Ltd., 2008), 5.

  25. 25.

    Tamsin Spargo, Foucault and Queer Theory (Postmodern Encounters) (Cambridge: Icon Books Ltd., 1999), 8.

  26. 26.

    Intersex variations are not always apparent at birth: “[I]ntersex people are diagnosed visually, at birth, or via amniocentesis, by chromosome, and other blood tests… Intersex differences may also be determined during infancy, at puberty, when attempting to conceive, or through random chance.” Consequently, some individuals may have a variation but may never become aware of this fact; The Australian Senate Community Affairs Committee Secretariat, “The Involuntary or Coerced Sterilisation of Intersex People in Australia” (Parliament House, Canberra: Senate Printing Unit 2013), para. 1.7.

  27. 27.

    Research conducted in Australia found that 75% of 292 respondents with atypical sex characteristics applied either the male or female sex marker. Tiffany Jones et al., Intersex: Stories and Statistics from Australia (Cambridge: Open Book Publishers, 2016). Schweizer and others found that only seven per cent of individuals with intersex variations chose gender roles other than male or female. Katinka Schweizer et al., “Gender Experience and Satisfaction with Gender Allocation in Adults with Diverse Intersex Conditions (Divergences of Sex Development, DSD),” Psychology & Sexuality 5 (2014): 56.

  28. 28.

    Cohen-Kettenis found between 39 and 64% of children with certain intersex traits changed from their assigned gender. The change was typically to either a male/female gender role. Peggy Cohen-Kettenis, “Gender change in 46, XY persons with 5α-Reductase-2 Deficiency and 17β-Hydroxysteroid Dehydrogenase-3 Deficiency.” Archives of Sexual Behavior 34, no 4 (2005): 399.

  29. 29.

    Tiffany Jones et al., Intersex: Stories and Statistics from Australia (Cambridge: Open Book Publishers, 2016).

  30. 30.

    Katinka Schweizer et al., “Gender Experience and Satisfaction with Gender Allocation in Adults with Diverse Intersex Conditions (Divergences of Sex Development, DSD),” Psychology & Sexuality 5 (2014): 56–82. These figures vary between studies. For example, Furtado et al. (2012) found that 8.5–20% of intersex embodied individuals experienced some sort of distress in relation to their gender identity. In comparison, Callens et al. (2016) found that 3.3% of individuals changed gender and experienced distress about their gender from childhood. Paulo Furtado et al., “Gender Dysphoria Associated with Disorders of Sex Development,” Nature Reviews Urology, 9, no 11 2012: 620 and Nina Callens et al., “Recalled and Current Gender Role Behavior, Gender Identity and Sexual Orientation in Adults with Disorders/Differences of Sex Development.” Hormones and Behavior, 86 (2016): 8.

  31. 31.

    Gesetz zur Änderung personenstandsrechtlicher Vorschriften (Personenstandsrechts-Änderungsgesetz—PStRÄndG) 2013.

  32. 32.

    Amnesty International. “First, Do No Harm: Ensuring the Rights of Children with Variations of Sex Characteristics in Denmark and Germany” (London: Amnesty International Ltd., 2017); Mitchell Travis, “Accommodating Intersexuality in European Union Anti-Discrimination Law.” European Law Journal, 21, no 2 (2015): 180–199.

  33. 33.

    Fae Garland and Mitchell Travis, “Legislating Intersex Equality: Building the Resilience of Intersex People through Law.” Legal Studies, 38, no 4 (2018): 587–606.

  34. 34.

    See below.

  35. 35.

    Georgiann Davis, Contesting Intersex: The Dubious Diagnosis (New York: New York University Press, 2015).

  36. 36.

    Peter Hegarty and Cheryl Chase, “Intersex Activism, Feminism and Psychology: Opening a Dialogue on Theory, Research and Clinical Practice.” Feminism & Psychology, 10, no 1 (2000): 117–132, 128.

  37. 37.

    Amnesty International. “First, Do No Harm: Ensuring the Rights of Children with Variations of Sex Characteristics in Denmark and Germany” (London: Amnesty International Ltd, 2017); Mitchell Travis, “Accommodating Intersexuality in European Union Anti-Discrimination Law.” European Law Journal, 21, no 2 (2015): 180–199.

  38. 38.

    However, most respondents welcomed a third-gender marker for all those who wished to use it. Their main concern was that a third-gender marker should not be used automatically for those with intersex variations.

  39. 39.

    Seelenlos. “UK > Misappropriation of Intersex Funding by LGBT Groups, Misrepresentation of Intersex as LGBT Issue.” Stop.Genitalmutilation.org, accessed April 10, 2019, http://stop.genitalmutilation.org/post/UK-Misappropriation-of-Intersex-Funding-by-LGBT-Groups.

  40. 40.

    Julie Greenberg, Intersexuality and the Law: Why Sex Matters (London: New York University Press, 2012).

  41. 41.

    Seelenlos. “CEDAW67 Italy > Major Setback for Intersex Human Rights at UN :-(.” Stop.Genitalmutilation.org, accessed April 10, 2019, http://stop.genitalmutilation.org/post/Major-Setback-for-Intersex-Human-Rights-at-the-UN.

  42. 42.

    Ibid.

  43. 43.

    Fae Garland and Mitchell Travis, “Legislating Intersex Equality: Building the Resilience of Intersex People Through Law.” Legal Studies, 38, no 4 (2018): 587–606.

  44. 44.

    See Malta’s Gender Identity, Gender Expression and Sex Characteristics Act 2015 and Portugal’s Law No. 75/XIII/2 2018. These are the only two state-level binding prohibitions. There have been other “soft law” developments in the State of California, USA and also in Columbia’s Constitutional Court. In 2018, California introduced a non-binding Senate Concurrent Resolution 110 calling for the medical profession to delay all normalising surgeries until individuals are old enough to consent. Columbia’s Constitutional Court issued a series of rulings in the 1990s that restricted parents’ and medical practitioners’ ability to consent to gender-normalising surgeries: Mary Newbould, “When Parents Choose Gender.” Medical Law Rev, 24 (2016): 471. At the time of our interviews, only Malta and had legal developments regarding gender-normalising surgeries.

  45. 45.

    Section 5C Sex Discrimination Act 1984 (Cth).

  46. 46.

    Morgan Carpenter, “The ‘Normalisation’ of Intersex Bodies and ‘Othering’ of Intersex Identities in Australia.” Journal of Bioethical Inquiry, 15 (2018): 487–495.

  47. 47.

    Fae Garland and Mitchell Travis, “Legislating Intersex Equality: Building the Resilience of Intersex People through Law.” Legal Studies, 38, no 4 (2018): 587–606 and Fae Garland and Mitchell Travis, “Making the State Responsible: Intersex Embodiment, Medical Jurisdiction and State Responsibility.” Law and Society, 47, no 2 (2020): 298–324.

  48. 48.

    Fae Garland and Mitchell Travis, “Legislating Intersex Equality: Building the Resilience of Intersex People Through Law.” Legal Studies, 38, no 4 (2018): 587–606.

  49. 49.

    Anonymous “Guest Campaigns: February 2020.” mumsnet.com, accessed February 6, 2020, https://www.mumsnet.com/campaigns/guest-campaigns-february-2020.

  50. 50.

    Amelia Tait, “Mumsnet Moderators Are Struggling to Find the Line Between Free Speech and Transphobia.” wired.co.uk., accessed February 6, 2020, https://www.wired.co.uk/article/mumsnet-moderators-trans-rights-debate.

  51. 51.

    For example, there is nothing in the Gender Identity, Gender Expression and Sex Characteristic Act 2015 that prohibits parents from taking their children abroad to undergo gender-normalising treatments. See Fae Garland and Mitchell Travis, “Legislating Intersex Equality: Building the Resilience of Intersex People Through Law.” Legal Studies, 38, no 4 (2018): 587, 606.

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Garland, F., Travis, M. (2021). Queering the Queer/Non-Queer Binary: Problematising the “I” in LGBTI+. In: Raj, S., Dunne, P. (eds) The Queer Outside in Law. Palgrave Socio-Legal Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-48830-7_7

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