In his well-circulated contrarian take on the Valkyrie fracas, Atty. Bruce Rivera rightfully said that cross-dressing and transgender people are entitled to all the rights and obligations granted by law because of their status as citizens. However, the problem lies not on their status as citizens but on “how we define the meaning of discrimination.” Thereafter, Rivera laid down the foundation of the rest of his contrarian view: “Is a democracy allowed to discriminate? The answer is YES. Provided there is a valid classification.“ Then he pointed out that the division of the almost 100 million population of the Republic of the Philippines into two sexes, though “a problem,” is still a “valid classification.” Therefore, the discrimination based on this division is allowed in a democratic society.
“This is the same law,” he said, “that forces a transgender to write M to the question of sex even if the heart wants to write F.” In this statement, he did not only reduce transgender people into transgender women only, he didn’t also point out why this is exactly a problem. Instead of offering this explanation, he just went on to say that Valkyrie pales in comparison to issues that he would have “taken the cudgels for,” namely: “denying a cross-dresser the right to vote; and denying a transgender the right to own property or denied the right to practice a profession.”
Unfortunately, he didn’t even include the cause of fighting for a gender recognition law, which is always implicated in almost every instance of discrimination transgender people face, including the Valkyrie issue, which Rivera reduced to an instance of “a bruised ego.” He concluded his essay by telling us that there is “only one way to be accepted” and that is “when people will see our similarities rather than our differences.”
In this essay, I will offer four interrelated critiques of Rivera’s essay. I’ve been academically trained in political philosophy; thus, I will interrogate his essay using the approach in this discipline. The first critique centers on democracy, the important actor in his statement, which Rivera didn’t define. The second on the question of whether transgender people are enjoying the benefits of full citizenship. The third one challenges Rivera’s rejection of an important aspect of acceptance: respect for difference. And finally, the fourth critique challenges the advocacy of connivance that Rivera had fallen into by not challenging the frame in which Valkyrie’s no-crossdressing policy operate: the frame of cisgender norm.
Rivera didn’t give any definition and just assumed that “we all know what it means.” This taken-for-grantedness is unfortunate, specially that the central actor in his essay is a democratic society, who, as Rivera argued, is allowed to discriminate if there is a “valid classification.” So what is democracy? And how is the validity of a classification established in a democracy?
Democracy is not a legal term but a political one. Rivera lacked a political unpacking of the term that is crucial to his argument. Usually, we define democracy as the rule of the people, by the people, of the people. In On the Demos and its Kin: Nationalism, Democracy, and the Boundary Problem, Arash Abizadeh provides a more sophisticated understanding of democracy: democracy “demands that the human object of power, those persons over whom it is exercised, also be the subject of power, those who (in some sense) author its exercise.” In other words, the demos must be the author of the power they have to obey.
Classifying something, specially if it’s the State that is doing it, is an exercise of power. In a democracy, for a “classification system” to be valid, it must be authored by the demos itself. If the classification system is not authored by the demos, then the power this system holds over the demos is an arbitrary exercise of power, i.e. it doesn’t have any democratic legitimacy, thus unacceptable in a democratic society.
Gender is one of those classification systems. Gender has so much power over our lives. It shapes almost every aspect of our lives, and gender norms are enforced by the full might of the State. We are legally obliged by the State to write, recite, and perform the gender and the cultural norms associated with the state-sanctioned gender assignment we were classified into when we were born. If we disobey this gender assignment, we will be punished by the State in both direct and indirect ways.
For example, transgender people are required by the Department of Foreign Affairs to look like their gender assignment at birth in their passport photos. Maria, a Filipina trans woman in California, once shared: “When I was renewing my Philippine passport, I was asked to remove my make up and pull my hair in a pony tail because I am a “male.” This is no different from the experience of the trans woman referred to by the Society of Transsexual Women of the Philippines (STRAP) in its statement on the Valkyrie issue. “The Professional Regulation Commission or PRC’s Registry section,” STRAP narrated, “required a transwoman to tie her long hair and look less masculine before being issued a professional license.” Even in the workplace this is the case as what we can learn from the story of Claire, a labor rights leader and transgender woman, and “one of the 96 contractual employees of Tanduay Distillers Inc. in Cabuyao, Laguna who decided to launch a sudden strike after they were told on May 16 to stop reporting to work by May 18.” While working, Claire “was forced to be “mas mukhang lalaki (appear more manly)”, including getting a haircut, as well as wearing more masculine-looking clothes.”
Following Rivera’s logic, these instances can be allowed in a democracy because they are based on “valid classification.” But the question is: does the gender classification system, as it stands, have democratic legitimacy? Is the demos the author of the power of gender over our lives? If not, then how can it be valid in a democracy and be a legitimate reason for discrimination in a democratic society? And if we live in a democracy, why should Maria and the trans woman in the PRC Case be compelled by the government to obey something that has no democratic legitimacy? Isn’t that tyranny? Can Claire’s expression of her gender identity be protected by the State? Or will the State protect and enforce more the current legal gender system, just as much as it will protect and enforce more the interests of Lucio Tan?
Rivera said that transgender people are citizens. But while encouraging us to “let our advocacy have essence,” he failed to ask this substantive and essential question: Is the citizenship of transgender people in equal terms with cisgender people, i.e. those who have gender identity and/or gender expression that matches what is expected of their gender assignment at birth? The answer is No, and this is because citizenship has been based on the reality of cisgender people.
Citizenship is often understood as membership in a political community, which is currently embodied by the State. The State decides the boundaries of citizenship, i.e. who becomes a citizen, the terms of membership – the rights and obligations of being a citizen, and the level of membership – full or subordinate. Social groups that have been previously excluded from enjoying the rights of full citizenship – Greek warriors, peasants, plebeians, medieval artisans, proletariats, blacks, women, immigrants, gays, lesbians, bisexual, and transgender people, living with disability – have fought to make the boundaries of citizenship become more inclusive. However, these struggles are not easily won because as Engin Isin said in his essay City as a Difference: the “dominant groups…have never surrendered…without a struggle.”
In the context of this essay, the dominant group are cisgender people to which Rivera belongs.
Transgender people are seeking to redefine the social world because they cannot fully fulfil the obligations of being a citizen and exercise their rights as equal citizens if in the first place they have a subordinate form of citizenship and, most importantly, when citizenship is based on the reality of cisgender people.
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 these body parts are 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 and therefore of our citizenship: 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.
Most people find no problem with the sex to which they were assigned during their birth. They are cisgender people whose sex assignment at birth matches their lived gender identity and/or their gender expression.
The reality of cisgender people is taken as the norm. And because cisgender people dominate every political community, the discourse of citizenship becomes entangled with the experience of cisgender people. Those who don’t share the way cisgender people experience gender are then treated as second class citizens. Thus, transgender people don’t experience citizenship in the same way as cisgender people. As what River said, transgender people are “forced” to kept on writing their gender assignment at birth despite the fact the gender that they live everyday is not that. Cisgender people, though required to also identify their birth gender, don’t experience this as “force” because the gender that they write is the gender they live everyday.
Cisgender citizens will never experience what Ria Rosales experienced when she saw her job offer evaporate after her employer saw that her documents reflect that she’s Male. Transgender people are socially marginalized and individually discriminated against because they are not living in accordance with the gender norms of their legal sex at birth, which in turn intersects with other system of oppression based on class, age, ability, ethnicity, religion etc.
What produces these patterns of discrimination based on gender identity and expression is the presence of a law that takes cisgender people’s experience of gender as the norm against which the legitimacy of our gendered experienced is judged. Cisgender citizens will never experience doors being shut to them because of their lived gender precisely because they are the ones who were closing these doors. And they don’t fear closing these doors because their exclusionary practices are backed by the full might of the State biased towards the cisgender experience of gender.
“The only way to be accepted,” Rivera said, “is when people will see our similarities rather than our differences.” In one aspect I agree with Rivera. After all, the discourse of difference has legitimised the oppression of the other, which can even have a genocidal result. As what Narcisa Paredes-Canilao rhetorically asked in Decolonising the Subjects from the Discourse of Difference, “which one really led to colonialism or the Holocaust or which is a more potent antidote to (wo)man’s inhumanity to (wo)man, difference from or identification with the Other.”
However, it is not the recognition of difference per se that lead us to inflict indignity upon each other, but the way we value difference. If cisgender people, who dominate society, interpret their version of being human as exceptional, God’s chosen way of living, the only legitimate way of experiencing gender, they are not just recognizing difference but putting their difference on a pedestal, in the throne of power that can police others into becoming like them.
In Polity and Group Difference: A Critique of the Ideal of Universal Citizenship, Iris Marion Young discussed the failure of universal citizenship in treating each citizens as equals. Instead of delivering its promise of equality to all qua citizens, citizenship “operated in fact as demand for homogeneity.” The terms of similarity, Young argued, is set by the dominant group. Thus, seeing our similarities is not innocent activities but can be a way of imposing the way of living of the dominant group.
We must use both the lens of similarity and difference in order to see another human in her totality. More significantly, we must use both lenses in order to see how the lens of difference can make us see another person as inferior and how the lens of similarity lead us to reject the validity of another person’s version of humanity. The danger of a cisgender person seeing only a transgender person as similar to him/her is the inability to see how the State-sanctioned cisgender norm has rendered transgender people as not only different but inferior, illegitimate, and immoral. And a cisgender person who only sees a transgender person as different would be blind to the common humanity that binds them together.
ON THE ADVOCACY OF CONNIVANCE
Who has the right to decide our own gender, and therefore the way of expressing? This is at the heart of the Valkyrie issue and all instances of gender identity and expression based discrimination.
This is left unaddressed by Rivera who only assumed the validity of the current gender classification system, which lead him to conclude that discrimination based on it can be allowed. Earlier, I put into question the validity of the current gender classification system in our democracy because, in the first place, this was never democratically legitimated. Further, it’s a gender classification system that rendered the cisgender experience of gender as the only State-sanctioned experience of gender, and therefore the only gendered experience that have full access to the protection of the State. Consequently, transgender people, despite sharing the same formal citizenship as cisgender people, have to fight rather than simply request for this access.
By not challenging the very framework of cisgender norms, Rivera missed the opportunity of making the kind of advocacy he is forwarding fully relevant to the lives of transgender people. His advocacy is an advocacy of connivance. Borrowing the concept of trial of connivance that Jacques Vergés developed, an advocacy of connivance is an advocacy that seeks merely to evaluate the facts in relation to the existing framework. This is what Rivera did when he merely recited the law in relation to the facts of the Valkyrie issue and when he reduced the Valkyrie issue as merely an issue of a “bruised ego.” He accepted the cisgender framework and called it a day.
Rivera cannot see the issue beyond “a bruised ego” because it wasn’t his version of humanity that was put into question. He said that there are a lot of straight people who can’t enter the stores we’ve entered into because they don’t have money, a lot who can’t eat because they were poor. This is a valid point but the issue is not about class but the intersection of class AND gender. Not all impoverished people experience poverty in the same way. A poor cisgender man would have a higher chance of finding a job than a poor transgender woman. Claire’s cisgender co-workers don’t have to experience being forced to be masculine at the workplace in pain of losing their job. And even rich people don’t experience privilege equally. This was aptly demonstrated by the experience of Trixie and Veejay. Rivera can’t see this intersection because he has not problematized the cisgender framework of our everyday lives but simply considered it as “valid classification.”
He said that we must find an issue that can make “the common man… relate and symphatize.” When Laude was murdered, we have witnessed how vicious and transphobic the “common man” was. In order for the common man to relate and symphatize, Laude’s being transgender had to be swallowed by her identity as a Filipino. But when we highlight Laude’s transgender status, the common man, instead of relating and sympathizing, responded with a whole range of cruel, transphobic “blame-the-victim” tactics. Why? It’s because the common man is a cisgender person who has taken-for-granted the privileges he/she have by simply having a gender identity and/or gender expression aligned with his/her gender assignment at birth.
Trans advocates, including those Rivera condescendingly looked down upon, are revolting against the dictatorship of the State-sanctioned cisgender framework. They are engaging in an advocacy of rupture, an advocacy that seeks to challenge the very framework, in this case the cisgender framework, within which facts would be interpreted. Valkyrie didn’t simply make a business decision. Valkyrie is enforcing the State-sanctioned cisgender norm, which has been the source of oppression of a lot of people whose gendered lives don’t fit the cisgender experience of gender. Trans advocates are not just making noises, they are reclaiming the right to define our own gender from the state, the church, the medical profession, and even from private establishments like Valkyrie.