Trans-Bathroom Debacle as a Gender Issue in Law Essay

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Introduction

Gender issues are increasingly significant for the global community nowadays. The question of equal treatment is yet to be applied to representatives of all types of gender differentiation. It is crucial to critically assess some of the current issues that drive the modern gender discussion. The Trans-bathroom debacle and overall rights of trans people to leading a full life are among the most pressing problems in the field. The authors discussed to provide an overview of the issues and propose solutions to the problem.

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Trans-Bathroom Debacle

One of the issues on the LGBT movement’s agenda is the problem of the definition of “biological sex” and the “bathroom bills.” The article emphasizes the ambiguity of the former and the inconsistency of its use in terms of legislation. Public restroom entrance rules should not employ notions that are in any way unclear, especially when it comes to laws concerning gender issues. The article suggests that the struggle for the accessible use of public restrooms is a symbol of active participation in socio-political life (Sudai, n.d., p. 2). The author provides historical examples of such a kind of struggle that determined various aspects of modern social life.

Sudai examines the relationship between human biology and social conventions that determine the debate around transgender rights today. The distinction between the notions of biological sex and gender identity is of utmost importance here, as the conservatives maintain that the “sex” category is limited exclusively to biological sex. LGBT rights supporters claim that the legal understanding of human biology should include gender identity as well. Sudai (n.d.) emphasizes that no research has yet sufficiently delineated the two sexes from the biological standpoint, which is to say that there are multiple biological aspects that the two sexes share (p. 3).

The author describes how sex-dimorphism theory and sex-segregation bathrooms joint efforts to reduce the presence of women in the public space to a male-controlled area, providing public lavatories for women to determine their place in society. Sudai (n.d.) points out that in legal matters, there are two positions: sex essentialism versus gender essentialism (p. 11). Pro-transgender activists are emphasizing that sex is related to the brain and the feeling of identity, not only biology. Based on scientific evidence, Sudai (n.d.) concludes that genital differentiation cannot serve as sex indicators due to their inconsistency with other sex features (p. 18).

Although certain differences in cognitive functioning in men and women have been established, it is not enough to form the grounds for dimorphism theory. The author, therefore, concludes that there is no sound reason to believe that gender identity is linked to brain processes. Sudai suggests that neither side of the trans-bathroom debate should resort to the arguments pertaining to biological differences, as they are misleading. Instead, both conservatives and progressives should look upon the issue as the matter situated in context, which would pave the way for a productive discussion.

Spade points out that existing legislation meant to address the problems of transgender violence and discrimination is ineffective. The author employed the ideas of Michel Foucault to illustrate the significance of law reform movements aimed at modifying not only the law but the reality that it regulates. Spade distinguishes between three modes of power perpetrator/victim power relationship, describing the societal exclusion by discrimination and the loss of rights by the victims.

However, Foucault claims such a description is not enough to explain the issues of discrimination (Spade, 2015, p. 4). Spade mentions two other types of power: disciplinary and population management. The former imposes certain norms of proper behavior, enforced by various institutions, determining the right way to live our lives. Spade points out that the current legislation does not work partially because it is based on the power perpetrator/victim model, as opposed to the disciplinary norms model. Population management mode suggests that law should serve as an instrument of productive change.

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Spade indicates that even though population-level strategies have transformed into race and gender-neutral, they continued to employ these categories to address the problematic issues. Moreover, the existence of a social welfare program of a tiered nature results in racial disparity regarding the benefits the welfare system provides (Spade, 2015, p. 15). The author sheds further light on the difference between the disciplinary model and population-management: with the former, following or deviating from the norm is a matter of private concern while the latter pertains to the organized system of control over the normalized behavior.

An analysis of these two types of power direction is crucial for our understanding of racism, transphobia, etc., and developing innovative resistance methods. The current legal system, however, addresses the problems of discrimination only in theory.

The damage caused by the mentioned types of power relationships is very difficult to address through law reform initiatives. Disciplinary norms lead to conforming to rigid rules in order to access certain things crucial to one’s well-being, often facing discrimination. Considering all the mentioned models of power can lead us to conceptualize the necessary forms of resistance and transformation that would help eliminate the harmful practices by means of implementing changes on the population level as well.

Spade suggests that in order to effectively introduce the necessary changes, it is crucial for the marginalized movements to abandon their centralized focus on the legal matters, as the narrow character of legislation that the movements often strive for is only aggravating the situation instead of resolving the problem. The exclusion and inclusion method of formulating the corresponding laws proves ineffective. In the U.S., there is a widespread belief that such an approach puts an end to racial discrimination and should, therefore, be employed to protect the rights of the LGBT community.

However, feminists, racial activists, and other movements have demonstrated the inefficiency and significant limitations of this strategy. Spade concludes by saying that it is crucial for the LGBT movement to abandon the idea that the law determines who we are. The author stresses the importance of this modification of our perception, as it is crucial for the further development of necessary strategies and instruments of change implementation.

Critical Response: Trans-Bathroom Debacle

MacKinnon (1984) indicates that sex is a distinction, while there is a need to avoid drawing such lines when talking about gender equality (p. 81). From this point of view, Sudai is right in thinking that both sides of the debate are wrong, as they put an emphasis on either biological differences or the differences of gender identity. MacKinnon’s standpoint is applied to feminist issues, but it does not diminish its strategic value for the problem at hand.

She points out the significance of the social structure in matters of sex inequality and discrimination, as they impose certain norms that become second nature to many members of society, thereby shaping their understanding of the transgender community and their discriminated society members. Moreover, the categories and classifications constantly employed by both sides of the debate can no longer offer any chance of compromise. The framework of liberal feminism, as described by Comack (1958), takes up the issue of gender equality as opposed to biological sex equality (p. 43). Nonetheless, addressing the issues of the trans-bathroom debacle and overall LGBT rights through a prism demarcating the differences will not yield positive results.

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Spade concludes his article by indicating that in order to resolve the problems, it is crucial to implement changes on the level of our perception of the legal system. The law should not be imperative for our understanding of these issues. In her article, MacKinnon (1984) mentions that the only valid question is: what is and is not a gender-related question (p. 90). The matters of sex discrimination as characterized and imposed by law reflect the dominance of those who engage in said discrimination.

Indeed, Spade is right in thinking that the focus on the struggle for legal phrasings should be abandoned, as it is a distraction from the actual purpose of the LGBT community’s struggles. Crenshaw (1989) discusses the issue of discrimination that black women often experience (p. 149). The author distinguishes between the discrimination of a black woman on the basis, on the basis of race, and, eventually, on the basis of two categories combined.

However, this approach demonstrates the precise problem Spade is attempting to address: relying on legal categories will not yield the needed results. Discrimination, as described by law, cannot but provide grounds for further discrimination. Therefore, it is necessary to modify the focus of discussion towards a more practical aspect of the problem and to figure out what practices would work in our modern world that would allow for eradicating the discriminative approach altogether.

References

Comack, E. (1952). The feminist frameworks. In E. Comack & K. Busby. Locating Law. Manitoba: Fernwood Publishing.

Crenshaw, K. (1989). Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics. University of Chicago Legal Forum, 1(2) 81-94.

MacKinnon, C. A. (1984). Difference and dominance: on sex discrimination. In R. T. Kennedy & K. T. Bartlett (Eds.), Feminist legal theory: readings in law and gender (pp 81-94). Boulder, CD: Westview Press.

Spade, D. (2015). Normal life: administrative violence, critical trans politics, and the limits of law. Durham: Duke University Press.

Sudai, M. (n.d.). Bathroom bills and the fiction of biological sex.

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IvyPanda. (2021, February 27). Trans-Bathroom Debacle as a Gender Issue in Law. https://ivypanda.com/essays/trans-bathroom-debacle-as-a-gender-issue-in-law/

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"Trans-Bathroom Debacle as a Gender Issue in Law." IvyPanda, 27 Feb. 2021, ivypanda.com/essays/trans-bathroom-debacle-as-a-gender-issue-in-law/.

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IvyPanda. (2021) 'Trans-Bathroom Debacle as a Gender Issue in Law'. 27 February.

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IvyPanda. 2021. "Trans-Bathroom Debacle as a Gender Issue in Law." February 27, 2021. https://ivypanda.com/essays/trans-bathroom-debacle-as-a-gender-issue-in-law/.

1. IvyPanda. "Trans-Bathroom Debacle as a Gender Issue in Law." February 27, 2021. https://ivypanda.com/essays/trans-bathroom-debacle-as-a-gender-issue-in-law/.


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IvyPanda. "Trans-Bathroom Debacle as a Gender Issue in Law." February 27, 2021. https://ivypanda.com/essays/trans-bathroom-debacle-as-a-gender-issue-in-law/.

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