Sex and the State

Sex and the State

Paisley Currah’s Sex Is as Sex Does raises questions about efforts to achieve equal recognition under laws that sanction repression and inequality.

Sex Is as Sex Does: Governing Transgender Identity
by Paisley Currah
NYU Press, 2022, 256 pp.

As a program representative for a state social services department, my primary role is “determinations interviewer.” I conduct short interviews with people claiming benefits and their various contractual counterparties, write summaries of the factual information I have received, and then use legal precedent and established administrative procedure to determine the claimants’ eligibility for benefits. The systems, both legal and technical, are highly standardized.

Let’s briefly walk through the standard experience of a claimant. First, they’re (hopefully) sent their state-mandated forms that explain, in legal jargon, how to apply. After filling out a long form with detailed information and submitting it, they’ll typically be scheduled for an interview with someone like me. These interviews happen about a month from the claim filing date, and during this time, any benefits are placed on hold. All interviews are conducted remotely by phone, all office locations are treated as confidential, and there are no corresponding public offices. If claimants have issues navigating the system, we provide them with a customer service number, which frequently hangs up before they ever reach a human. To maintain a facade of administrative technocratic omnipotence, we’re encouraged to rely on wonky “guide sheets” for issues that we have not been trained on if the claimant asks about them. Claimants often experience disorientation at every level of the system.

At some point on the job, I began to encounter cases in which the claimant’s listed sex did not correspond to the pronouns they used. Here, I found out the instructions were shockingly simple: ask the claimant what their gender is, then update it in the system. From a certain perspective, the ease with which I could update the claimants’ data reveals the gains won by trans people: trans claimants are, without much fuss, properly recognized by my state agency and subsequently subject to the same rules as any other claimant. Take that, transphobia! But after reading Paisley Currah’s new book Sex Is as Sex Does, I’m increasingly convinced that this is a moral Band-Aid for the injustice of our system: as easy as it is to acknowledge a claimant’s identity, the barriers for them to actually receive benefits remain prohibitively burdensome. What good is equal recognition by laws and institutions that reproduce and sanction repression and inequality?

For a book that seeks to address a seemingly simple question—why is legally changing your sex so hard?—Sex Is as Sex Does amounts to a dizzyingly dense 151 pages (not counting endnotes). Currah walks readers through the political philosophy, critical theory, and legal scholarship that addresses the current moment in gender discourse and politics, with little philosophical hand-holding. Those willing to brave its theoretical depths, however, might be surprised at how grounded the text is in the facts of its case studies. Currah touches on Tennessee state legislation, Florida marriage court, New York State DMV policy, the Maryland Court of Appeals, and numerous other legal incidents and institutions throughout the book, snapping the reader back to the stakes of the issue whenever things start to get a little wooly. The resulting tapestry is a little patchwork, but Currah’s conversational style and sense of humor keep things mostly cohesive.

Recounting his approach toward archival research, Currah cheerily reports his passion for

lesser noticed (and much less sexy) apparatuses and domains of governmentality that even Foucault found too dull to look into: administration, unenumerated police powers, the population, norms of classification that precede inaugural moments, texts as dull as the Domesday Book, regulatory decisions and interpretive rules, and the US Social Security Administration’s manual for field personnel.

Through this omnivorous, detail-oriented approach to the historical record, Currah shows that state actors (such as myself) do not produce transphobic results merely out of a deep-seated fear of those who transition genders. Instead, the abstract capacity to exercise socially sanctioned violence comes from particular context-specific goals, which are often contingent on the imagined role of a specific agency, department, court, or other organ of the state. The question becomes: how does the state determine what is “normal” and what merits investigation, reprimand, or intervention, and why does it differ so much from case to case and institution to institution?

In the first chapter, Currah hypothesizes that “sex is a legal effect. Were I a positivist political scientist, I would posit sex as the dependent variable and the state as the independent variable.” In other words, our sex, as we experience it, is created by the structure of the state. And Currah does not believe the state is a benevolent norm-setter; he cites an essay by the late legal scholar Robert M. Cover to remind readers that “legal interpretation takes place in a field of pain and death,” and that the law is in essence defined by its capacity to inflict harm. What Currah argues is that we need to loosen and pluralize the concept of “the state.” Just as there are many genders, so there are many states, all operating according to their own logic. Ideally, they efficiently interlock with each other. If the California unemployment system receives word that a claimant is also receiving disability benefits, that claimant is supposed to be found ineligible for unemployment because they are not “able and available to work.” But just as often (including, in my experience, that aforementioned example), the broad array of administrative and policy guidelines being implemented all across the country—by judges and DMV clerks and legislators and call center workers—have unforeseen implications that can bring these institutions into direct conflict with each other and create bureaucratic snarls. 

Currah describes an early recorded case of a state agency inquiring into best practices for changing someone’s sex classification (the technical, administrative, and legal term for the M/F/X designation on your records). In 1965, after receiving such a request from a resident for the fifth time and determining that “mere bureaucratic blips now seemed to augur a larger trend,” the director of the New York City Bureau of Records and Statistics reached out to federal health officials at the National Center for Health Statistics (part of the now defunct Department of Health, Education, and Welfare) about developing a sex reclassification policy framework. The federal officials replied that “this has been a long-term and difficult problem for them as well . . . since various agencies carry out differing responsibilities. . . . The more we delved into the problem, the more the ramifications that cropped up.” As bureaucrats started to pull on the thread of sex classification determinations, they found that there was no secure place to stop.

If, just like “sex,” the state itself is “a poor excuse for an independent variable, since it doesn’t come with any absolute preset values,” as Currah argues, then we’re left with “two dependent variables.” The law itself is a system built from a broad assortment of ethical, criminological, economic, and political norms, and executed by public and private actors with varying levels and styles of training and expertise. If sex means different things for different people in different contexts, so does “the force of law.” 

Part of what Currah is trying to do in the book’s first few chapters, heavy with theory and metatheory as they are, is to expose that “sex” and “the state” have already been destabilized. The threads have been unraveling, and for much longer than many people, including trans-rights activists themselves, may realize. In his telling, the legal “disestablishment” of sex has been a fifty-year-plus project, in which the “law’s use of classification regimes to treat people differently diminished as a result of the civil rights movement and the expanding capacity of apparatuses of domination to manage inequality outside the formal sphere of the law.” And the most important factor in loosening sex classification policies over the past fifty years, Currah argues, is liberal feminism. “Over the course of the twentieth century, the now much-maligned classically liberal branch of feminism succeeded in lowering the stakes for sex classification,” he writes. “An F [female] designation can no longer be used to curtail civil and property rights, to deny equal access to education and the professions, or to enforce heteronormativity through bans on same-sex marriage.” 

The 2015 Obergefell v. Hodges decision looms especially large here. By agreeing that marriages should not be restricted based on the sex classifications of the spouses—an argument encouraged by liberal feminists—the Supreme Court eliminated one of the most frequent and successful arguments invalidating trans marriages: that the two spouses were actually the same sex. Obergefell, in other words, has far broader implications than most people realize. While the liberal judicial establishment and many anti-discrimination advocates framed the decision in terms of the right of an individual to marry whomever they please, the decision renders moot an entire edifice of legal reasoning over the meaning of marriages, which was used to systematically argue against the validity of trans marriages brought before a court, especially for reasons of inheritance or custody. An analysis of the values of the institutions involved allows us to better understand the source of their longtime resistance to change.

As a sometime advisor for developing trans-inclusive policies and a prominent legal advocate for transgender rights, Currah is able to draw on a broad cross-section of legal cases in which the sex of the plaintiff or defendant was at issue, first in the realm of ID documents and then in marriage and inheritance law. He produces a comparative analysis of the legal reasonings at work in each, exposing the seemingly arbitrary difference between the DMV and marriage court, which is in fact the result of substantial differences in their political missions.

The DMV, Currah writes, is more beholden to the role of the “security state”: technologies are developed to monitor and corral subjects in physical space: Are you who/what/where you’re supposed to be? As such, the process to change your sex classification, while still in many cases arduous, is by now well-established and in line with the “project” of this securitizing mode of governance. Citing trans legal advocate Mara Keisling, founder and former executive director of the National Center for Transgender Equality, Currah notes that “‘it is in the interest of security [emphasis mine] to have accurate ID reflecting a person’s gender, not their “hidden genitals.”’” Earlier, when describing his own journey to modify his sex classification on his Social Security records, Currah wryly observes the palpable shift in mood once the window attendant got approval and instructions from her supervisor on how to update the status in his record: “The friendliness had ratcheted up significantly. She was now super helpful and I was super appreciative.” In this description, Currah subtly gestures at the undercurrent of tension and distrust that characterizes interactions with these sorts of agents, many of whom (speaking, again, from my unemployment department experience) are trained to be constantly on guard for potential attempts to defraud or misrepresent oneself to the state.

However, these documents don’t necessarily carry over to other legal domains. Currah believes that this is because in other legal areas, rules around sex classification operate according to the logic of the “nation,” which “provides a form of belonging, of stickiness, and that enmeshment is forged through institutions that bind the past to the future, such as marriage, reproduction, and inheritance.” They are part of a process of determining who is part of the “story” of the country and who is not—and thus intersect with issues of citizenship, race, and, in the U.S. case, imperialism. In one historical example cited by Currah, anti-miscegenation laws played an important role in the accumulation of wealth and land in Oklahoma following its admission as a state in 1907. The newly written state constitution categorized “all persons of African descent” as “negro” and “all other persons” as “the white race” and forbade the two newly constituted groups from intermarrying. In doing so, the long-standing practice of Black people and American Indians marrying each other was banned, while the marriage of anyone outside of the “colored” or “negro” races to each other was sanctioned—thus ensuring that any transfers of remaining Indian land holdings would flow in the direction of the white people of Oklahoma, not dispossessed Black folks living under Jim Crow.

For trans people in otherwise “normal” heterosexual marriages, the tight monitoring of social reproduction encouraged by this conception of “nation” has led to some highly intrusive and frankly disturbing forms of legal reasoning and precedent. In one of the most memorable sections of the book, Currah traces the historical arc of judicial reasoning about the validity of heterosexual marriages in which one of the parties was trans. In New York district court in the 1970s, your “ability to engage in heterosexual intercourse” could make or break your sex classification, and thus the legal validity of your marriage; a series of cases in Kansas, Florida, and Kentucky set the standard of determination at birth. (In all of these cases, the issue of a person’s “true” sex is instrumental at best—most involve custody battles or inheritance suits.) These pre-Obergefell sex classification cases in the realm of marriage court and inheritance law often explicitly invalidated marriages simply because of a spouse’s status as trans, out of a perverse fear of I Now Pronounce You Chuck & Larry situations that would allow capital transfers (whether in the form of inheritance or custody) outside of the normative family structure.

By looking at the contradictory outcomes of these cases—how someone who was allowed to change their sex on their ID documents could be found to be a different sex for the purposes of marriage court—Currah shows us something about both the social position of trans people and the society which governs them. “If we dispense with the one-size-fits-all explanation that sees the presence or absence of transphobia as the cause of the divergent outcomes, it becomes clear that M and F were not immobile essences for these state actors but malleable outputs in the service of different governing projects,” he writes. “These differences were made visible by individuals who moved from one gender to another, but the significance of this analysis is not limited to the situations faced by trans people.”

In many of these cases, that simply means that your life doesn’t quite fit into the boxes the state has created. But as the marriage court cases (most of which were decided against the trans party, thus depriving them of custody, inheritance, or even survivors benefits) show, these gaps have real, potentially life-altering consequences. In the pre-Obergefell case law, when push comes to shove, if your dead spouse’s family hated you and you happened to be trans, they could sue you and they would probably win. For those who find themselves fighting these uphill battles, the farce of the legal system’s mythic universal rationality becomes crystal clear—as does its preference for certain “types” of people.

The part of Currah’s framework with the most practical relevance for contemporary left organizing is his analysis of the institution of prison. While he acknowledges the comparative harm that trans prisoners experience, he emphasizes that there is a much greater gap in treatment between trans non-prisoners and trans prisoners than in the treatment of trans prisoners and cis prisoners. Currah forcefully denounces the idea, promulgated by some trans legal activist organizations, that trans suffering in prisons could be sufficiently mitigated through proper trans-inclusive diversity training. Reforms like these, Currah writes, are rearranging “deck chairs” while assuming “the fundamental soundness of the ship that is incarceration.” As further evidence, he cites the “freeze-frame” policy that governs most trans prisoners, under which you are forbidden from moving any further in your transition process than you were when you were first incarcerated. The reasoning for this policy? Essentially, that prison is so awful that it would be impossible to gather reliable psychological data on a patient’s transition.

Currah points to the rhetorical tendency among activists and allies to focus on the compounding effect of each “layer of discrimination”—“we need to care about trans lives, especially trans women’s lives, especially trans women of color’s lives.” He argues that, when misapplied, this can lead to superficial improvements where the forest is lost for the trees. The reality of the institution of prison is so abject and inhumane that the best policy development for trans people is the same as it would be for the majority: abolition. (Currah cites two other examples where a similar approach is warranted: healthcare and income inequality.) After meticulously tracing gendered domination in earlier chapters, Currah makes a forceful return to a universalizing point of view, albeit one also heavily shaped by one’s class position. 

Currah doesn’t want to throw the intersectional baby out with the anti-discrimination bathwater, but he does want us to think critically and deeply about power, material conditions, and distributional outcomes. In the case of my trans claimants, for example, their identities are recognized by the state’s social insurance system, but what good has it done them? They are subject to the same inhumane administrative burden. The gender identity of claimants is marginal to the process; the relevant question is, “Are you going to get enough money to survive?”

Currah’s reduction of “what sex is” to “what sex does” through the law precludes him from addressing some of the most interesting implications of his comparative analysis. For one: sex plays a similarly important role in other forms of professional discourse. In the medical field in particular, the performative utterances that underlie practitioners’ determinations hold the same threat of violence and deprivation as they do in, say, marriage court. The process of transitioning is almost as humiliating and laborious as applying for unemployment benefits, essentially requiring three letters of recommendation from different therapists as you toe the line between under- and over-playing your level of gender dysphoria: too far in either direction, and you could be found unsuitable for treatment. What norms determine who should be allowed to medically transition, and what do they imply about the mental health profession’s values? The ongoing norm of making sex determinations for infants born intersex (that is, with a mix of different physiological sex characteristics) raises similar questions about what sex “means” in this context. 

Sex Is as Sex Does also comes out amid an ongoing and escalating right-wing war on trans people. Currah challenges a framework of anti-discrimination that labels political opponents as “transphobic” by exploring the usefulness of the gender binary for developing, maintaining, and naturalizing a wide array of systems of control. Because of this focus, he unfortunately underplays the implications of an explicitly Christian conservative form of jurisprudence grounded in appeals to natural law. For whatever reason, Currah is unable or unwilling to speculate on the extremely plausible possibility that a reactionary Supreme Court would simply reverse the supposedly sex-disestablishing Obergefell v. Hodges decision. He leaves it to future authors to elaborate on the theoretical underpinnings and potential implications of this attempt to reestablish the gender binary within the state. 

None of this should discount the value of Currah’s methodological and analytical approach, which should be a model for scholar-activists across disciplines. Sex Is as Sex Does disentangles the contradictions of liberal transgender rights legal advocacy and reconnects trans issues to the feminist movement. It also provides a framework for more accurate, and actionable, assessments of how different oppressive dynamics interlock and conflict via the ideologies of heterogeneous ruling institutions, whose categorizations have real material effects. What remains is the hard work of applying this framework to map the political economy of these institutions—legal and beyond—and find effective ways to contest them through solidarity, action, and dissent. 

Allison Brown (she/they) is a civil servant, freelance writer, and organizer. They love music. They are one of Dissent’s 2022 Emerging Writers.