Though not considered as criminals, transsexual people are considered as “non-law abiding” because they are not living according to the sex that was assigned to them at birth. Looking at specific cases of transsexual females in the Philippines, Hong Kong, Malaysia, and Vietnam, this article explores how this perceived non-law abiding status, makes transsexual people vulnerable to discrimination, which inevitably places them in an unequal relationship with others.
The legal weight of our sex assignment at birth
The birth certificate is the legal document that establishes our existence. Through it we become legal persons, and this means that we will possess the capacity to have and to maintain certain rights, and to have duties enforceable by law. One of the important aspects of our legal personality is our sex.
Our sex is legally defined at birth. Let me digress for a moment. This article will not make any distinction between gender and sex as I don’t share the view that “sex” is a biological fact while “gender” is socially constructed. Hence, I use sex and gender interchangeably, as well as female with girl/women, and male with boy/men – but this is not to say that gender is a biological fact. Genitalia, body parts, are biological facts but the label we assign to them and the activity of assigning a particular sex/gender to them is not. As what Anne Fausto-Sterling said in Sexing the Body: gender politics and the construction of sexuality, they are social decisions based on normative views about sex/gender. More importantly, the law does not make any distinction between sex and gender. Assigning a baby’s sex is also assigning the baby’s gender. They are not separate and independent legal processes.
Taking our external genitalia as the cue, the doctor (or whoever attended to our birth) proclaims, and hence assigns us, into either the category of “boy or girl.” This proclamation, however, is not a description of what is between our legs but an act of giving us the first aspect of our legal identity: sex. Along with other details such as name, date of birth, name of parents, the sex that was proclaimed by the doctor gets entered into our birth certificate. In turn, the sex on our birth certificates will be the sex that will be reflected on all our legal documents, such as our passports. It will be also be the sex that will be considered in the application of several laws, such as marriage laws and anti-rape law.
Cissexual people find no problem with the sex to which they were assigned during their birth. In Whipping Girl: A Transsexual Woman on Sexism and Scapegoating of Feminity, Julia Serrano defines cissexual people as those “people who have only ever experienced their subconscious and physical sex being aligned.” Transsexual people don’t have this experience. In this article, transsexual is defined using its fundamental meaning: Transsexual people are those whose personal sex identification is “opposite” to the sex they were assigned to at birth. So, a transsexual female (transsexual girl/woman) is someone who was assigned as male at birth but identifies as female, while transsexual male (transsexual boy/man) is someone who was assigned as female but identifies as male.
Transsexual people, if they have the courage to do so, live in accordance to some, if not all, of the gender norms associated with their personal sex identification. For example, transsexual females dress as women; take on a more feminine-sounding name; prefer to be addressed as “Ms” and with feminine pronouns; and some take hormones and/or undergo surgeries to let their physical bodies match those of female cissexuals (females who were assigned as female at birth and who accepts that sex assignment. Because they were assigned as female at birth, we can safely assume that they were born with genitalia associated with being female).
BUT: Transsexual females’s mere personal sex identification, mere living in accordance to the gender norms of their sex identification, and even undergoing sex reassignment surgery do not have any automatic legally binding effect. It is only the doctor’s proclamation at our birth that has that effect. Even if there are laws that allow one’s legal sex to be changed, one is still legally the sex that is written on her birth certificate until the time the proper legal authority approves her change of sex.
The self-identification and actions of transsexual females, though not legally binding, may have a social effect. Socially,other people may recognize and therefore treat transsexual females as females, especially if they pass well enough as cissexual females. Nonetheless, in the eyes of the law they are still males and will be legally treated as such. So for them to be considered as law-abiding, they are obliged to legally identify themselves as males, doing otherwise may be considered illegal.
In Malaysia, abiding by the law does not just stop at legally identifying themselves as male, transsexual females must live publicly as one. Under the Shari’ah Law, mak nyahs (the Malaysia term for transsexual female) “can be persecuted for being a man who dresses like a woman (lelaki berlagak seperti perempuan). In almost every state, this offence carries a jail term of six months (or one year in some states) or a RM 1,000 fine (up to a maximum of RM 5,000 in one state).”
As one is obliged to use one’s legal sex on one’s legal documents, failure to do so may cause one to be denied such legal document. Consider the case of Jenny T. Ramsey, a transpinay (Filipino term for transsexual female), who is now living in Germany. When Jenny went to renew her Philippine passport in the Philippine embassy in Berlin, the embassy did not renew her passport. The reason: Jenny’s sex on her German temporary residence permit says female. It was female as Jenny managed to have her sex legally changed by petitioning a German court. However, such change though legal in Germany, is not recognized in the Philippines as there is no law allowing that change. Moreover, having two legal sex identities is also not legal in the Philippines (and perhaps in all countries in the world). Because of the absence of law that allows legal sex change or of a law that allows two legal sex identities in the Philippines, Jenny was not issued a new passport. In order for her to be able to travel, Germany issued her a passport (Jenny is now a German citizen) .
When it comes to marriage, this is also the case. One’s legal sex is the one that matters. In Hong Kong, there is this case of W, a Chinese transsexual female. Despite having her sex changed on her Hong Kong identity card from male to female, W was not allowed to marry her boyfriend because she is still legally male on her birth certificate, and that is the sex that matters when it comes to marriage.
And in rape law, the non-legality of a transsexual female’s personal and social sex identification can also mean that if she were raped she might not be able to bring those who raped her to justice – well, that is, if the rape law of her country only applies to women who are legally female. In Vietnam, judicial authorities in the north-central province of Quang Binh declined to prosecute the three men who gang raped a female transsexual because she is not legally female.
Inequality before the law: cissexuals vs. transsexuals
Transsexual females are socially marginalized and individually discriminated against because they are not living in accordance with the gender norms of their legal sex at birth. Marginalization and discrimination form and inform each other. Patterns of individual experiences of discrimination of transsexual females produce and reproduce the social process of marginalization. In turn, the social process of marginalization of transsexual females produces and reproduces their individual experiences of discrimination.
In the Philippines, in terms of employment opportunities, transpinays have long been confined to work only among four industries: entertainment, fashion, beauty, and sex. Their marginalization into these professions is brought by the discrimination that transpinays experience in other industries. To see a transpinay working outside these industries is to see the instances of exception rather than the rule. The widespread employment discrimination is one of the issues highlighted by a group of transpinays in the communication they sent in May 2011 to the United Nations under the First Optional Protocol to the International Covenant on Civil and Political Rights.
In terms of rights, we have seen in the case of W in Hong Kong how her right to marry has not been granted. In the case of the Vietnamese transsexual female, we see how she was denied her right to equal protection of the law.
The discrimination that transpinays experience and failure of W and the Vietnamese transsexual female to access their right can be seen a result of the absence of law. This argument is strong in terms of the case of W and the Vietnamese transsexual female. W’s right to marry could have been granted if there’s a law allowing transsexual females in Hong Kong to marry; while the Vietnamese transsexual female’s right to equal protection of the law could have been respected if the rape law in Vietnam considered the rape of legally male persons as rape. However, this absence of law is not strong in the case of transpinays. An anti-discrimination law would not stop discrimination against them from happening for it only acts as a remedy after they were discriminated. As what Irish Young observed in Justice and the Politics of Difference about the unequal distribution of managerial positions among men and women, the general pattern of discrimination is still “reproduced even in the face of conscious efforts to change it.” Young suggests that understanding why this is so, “entails evaluation of a matrix of rules, attitudes, interactions, and policies as a social process that produces and reproduces that pattern.”
In the case of transpinays, it is not the absence of law per se that produces and reproduces the pattern of discrimination that they experience. What produces these patterns of discrimination is the presence of a law that takes cissexual people’s experience of gender as the norm. This is equally true with the case of W and of the Vietnamese transsexual female, as well as in the case of Jenny who was not issued a Philippine passport because her legal sex under German law is not legal under Philippine law.
What’s the law got to do with it?
So what does the law got to do with producing and reproducing patterns of discrimination? Aren’t we all equal under the law in a democratic state? Let me first answer the latter. Yes we are. But: Cissexual and transsexual people are equal before the law only in the sense that their legal sexes are what are legally binding and not their personal sex identifications. Equality in this sense takes cissexual people’s reality as the legal norm (legal sex = personal sex identification). Because of this legal norm, discrimination against transsexual people can be easily justified because the sex that they personally identified with has no legal weight.
As for the former question, the law produces, reproduces and enforces the prescriptions of gender norms that accompany the proclamation of our sex at birth, specially the gender norm that the sex we should declare ourselves should be in conformity to the sex we were proclaimed at birth. For cissexual people, this prescription is not a problem. For transsexual people, it is; and we have learned how this prescription acts as a constraint to transsexual female’s lives and therefore limit their capability to function as an equal citizen.
As what Elizabeth Anderson said in What’s the point of equality?, to stand in relations of equality with others means to be not oppressed and dominated. Oppression and domination are not the social conditions of freedom but, as Iris Marion Young said, “the social conditions that define injustice.” Oppression and domination, Young respectively defines as “the institutional constraint on self-development” and “the institutional constraint on self-determination.”
The law as we have seen in the cases of transsexual females can be oppressive for the law reinforces the discrimination against them. And as transsexual females are discriminated, they have limited access to opportunities that can contribute to their self development. The can also be a tool of domination of cissexual people. The law’s institutionalization of cissexual people’s experience of gender provides what Young called as the “structured operation of…domination”; and this structure of domination provide the “background, medium, or purpose” that “produce and reproduce” patterns of discrimination against transsexual females.
“The counterpart to an individual’s inalienable right to the social conditions of her freedom,” Anderson said, “is the unconditional obligation of others to respect her dignity….” She based the unconditionality of the obligation to respect someone’s dignity from Kant’s notion of a universal inherent dignity, which is “not conditional upon anyone’s desires or preferences, not even to the individual’s own desires.” By considering dignity unconditional, Anderson justified “lifetime [egalitarian] guarantees without resorting to paternalism.” Dignity secures these lifetime guarantees as it is universal and unconditional; and it helps avoid paternalism, for dignity, as it is universal, places someone in equal footing with others. One then doesn’t claim rights on the basis of her inferiority but on her equality with others. Equality guaranteed by the inherency, universality, and unconditionality of dignity, which is what egalitarian political movements assert: the equal moral worth of person.
The qualities of dignity so mentioned are of course normativ: It is what dignity should or ought to be. Normative concepts become problematic when we consider them substantively: The should and ought do get in conflict with what it is in actuality. Whether it is actually inherent or not is a long philosophical discussion, which this article cannot fully cover. I focus instead on the universality and unconditionality of dignity.
Granting that dignity is a quality we inherently have, it is a quality that is not above the influence of social relations. A social order based on unequal social relations can affect the equality of dignity. In an unequal social relationship, the dignity of those who are in the bottom of the ladder depends upon the recognition and evaluation of those who are occupying the higher rung. This of course is contrary to the unconditionality trait of dignity but not to the universality of dignity because recognizing that someone has dignity does not mean that she has no dignity. I assume, and I might be right to assume, that we are still far from a society without a pecking order. Hence, right now other people’s dignity is still under the mercy of other’s recognition. But the good news is, recognition of someone’s dignity can lead to the dismantling of inegalitarian social relations, and by doing so distribute dignity in the process. However this can’t happen by just being recognized by others, people also has to recognize their dignity. As James Tully said in Struggles over recognition and distribution, “recognizing [oneself] and others will have effects in the distribution or redistribution of the relations of power. Of course, the new rule of mutual recognition will itself constitute a redistribution of ‘recognition capital’ (status, respect, and esteem).”
Transsexual people must embrace without condition that they have dignity. And that will begin the process of dismantling inegalitarian social conditions, which includes the legal system that gives structure to their oppression and reinforces the discrimination they experience.