A Genealogy of Gender Identity - Cis and Trans

Part III

A femnniello in Naples, end of 19th century/beginning of 20th century

The terms trans and cis are of course central in gender ideology. It may come as a surprise that the term trans was barely used in the Yogyakarta Principles (Yogyakarta Principles), and the term cis never used. Neither of them has much of a history in international legal texts then, however they are being used more and more and this is evident in the work done by the SOGI Independent Expert. The literature on this is by now immense (it is evident that the quantity of research on a topic is in no way indicative of the importance of the topic per se, but only on how popular and fashionable it is considered in academic circles). Therefore these notes are not attempting to be exhaustive or to review the literature. I am flying quite close to the ground, and only examining how useful the definitions that are provided in the Report are, in view of analysing the case law in international courts and quasi-judicial bodies. I am, however, grounding as much as possible these definitions in an ‘anthropologically oriented’ understanding of how different cultures design gender norms and limit the opportunities of individuals, and especially women, to challenge those norms. This is necessary because the Report takes a very hegemonic view of gender identity, which becomes the interpreting framework for every cultural production related to gender.

The term trans is defined as follows in the Report: ‘Persons whose gender identity does not correspond to the gender that they were assigned at birth’. (p. 6) There are three assumptions that one needs to accept. The first one that sex and gender are both synonymous and distinct. Previously the Report spoke of sex assigned at birth. Now this has become gender assigned at birth. Second, that sex/gender are assigned, rather than simply recorded, at birth. Third, and most crucially, that people in general have a gender identity. The entirety of gender ideology is predicated on the principle that gender identity is universal and the conceptualisation of a default ‘cis’ identity for those who are not trans, or, as the Report offers, ‘persons whose experience of gender is, or is perceived to be, in conformity with the sex assigned at birth’.

That is quite an assumption, that 99% of people in the world conform to the gender norms of their sex. Also quite offensive to the millions of women who actively fight those gender norms, sometimes at the risk of their life, health or economic status, *without* claiming to be trans(men). Is Malala Yousafzai trans because she did not conform to the gender norms of her sex? According to this definition she cannot be cis. She risked her life because she did not conform to gender norms in Pakistan.  What is an ‘experience of gender’ in the context of a society that rigidly divides roles on the basis of sex? No academic literature could be produced that divides a population on the basis of an ‘experience’ that there is no way of assessing and that, if applied in the abstract, would force us to consider Malala as a trans person. 

In order to embed gender ideology in international law, there needs to be a process of embedding these terms both across space and across time. One way to do that is to reinterpret all previous in time, and far away in place from the locus of production of gender ideology (i.e. Anglo-Saxon academia) experiences of ‘gender’ (intended in the sense of roles traditionally attributed to males and females). Hence all specific cultural experiences are flattened and reshaped to fit the cis/trans binary. So the Report mentions ‘two-spirit persons (North America), muxes (Mexico), hijra (India), kathoey (Thailand), bakla (Philippines), travestis (Argentina and Brazil), fa’afafine (the Samoan islands) and leiti (Tonga).’ Although the Report acknowledges that these examples do not necessarily fit the categories devised by gender ideology, it still brings them up to bolster the claim that ‘gender identity’ was always present in cultures, no matter how ancient or how far.

In reality, all of these examples, and more (see e.g. the femminielli in Naples), are effeminate gay males who are accepted in these very traditional societies only to the extent that they make no claim to manhood. Rather than proving that these societies had less rigid binary rules on sex roles, they prove precisely the opposite: the rules were so strict and so rigid that the only way to accommodate those who did not comply was to exclude them. Nobody thought that gay men were women: the point was that they were not ‘real’ men. There is no equivalent gender diversity for women, who were simply not allowed to escape the gender roles assigned to them on the basis of sex. The *only* example that is sometimes brought up is of the Albanian ‘sworn virgins’ (burrnesha), girls who live as boys if they grow up in families with no male children to make sure that property is inherited through the ‘male line’ as per tradition. This confirms, and does not challenge, the patriarchal nature of society.

Gender ideology is predicated not on the rejection of gender norms, but on a strict and rigid reading of those norms, which make the very existence of a transition possible and ‘readable’. So most transwomen embrace stereotypes of femininity that are eschewed with horror by women in progressive societies.

The Report adopts a ‘male as default’ view of gender diversity. In reality, the majority of women who fight gender norms are not even aware of gender theory and do not believe they have a gender identity that they are empowered to change in order to avoid oppression. If it is true that gender identity can be changed and that this change overrides one’s sex, women could easily avoid gendered oppression by identifying out of their sex/gender identity. This is not open to them not even to save their own lives, because one cannot identify out of one’s sex. One can hide or disguise one’s sex, and women have done this in the past sometimes to save their life or to access professions traditionally closed to women.

Gender non conformity is an artificial interpretation of the very nuanced way one approaches the norms regulating one’s sex in society. In fact, gender conformity is on a spectrum, and most people are neither fully conforming nor fully rebelling. This is also because, pace some extreme radical feminists, some gender norms are not oppressive, but necessary to allow for the different biology of men and women to be recognised when it affects men and women, and especially women, whose biology is more challenging in societies shaped by the male experience of the world. It may very well be that in a society designed taking into account that the human experience is not just the male experience, there would be no need of special rules to remedy the ‘male as default’ model. But we do not live in such a society, anyhere in the world.

Following a well known script, in the attempt to bolster gender identity as a natural human experience, the Report conflates transgender identities with ‘intersex’ people who are sometimes ‘forced’ into a sex category (this was true especially in the past but the history of intersex conditions is flattened into an ahistoric landscape where what happened 70 years ago still happens). In reality, people with DSDs are still male or female. This othering of them in order to prop up gender theory is abusive. It would be akin to saying that people with Down Syndrome are not human because they do not have the same chromosomal profile we associate with humans. Sex is not determined by chromosomes. It is determined by gametes. Humans either produce small motile gametes (sperm) or large immotile ones (eggs) and our bodies are still always organised around these two reproductive functions. If genetic conditions affect the chromosomal profile or secondary or primary sex characteristics, these conditions do not change the potential reproductive function of the individual affected by a DSD. These conditions are not identities one can take on or abandon at will and have nothing to do with a gender identity which does not reside in the body.

It is in fact quite distressing to see these arguments, which most of us associate with Twitter users with anime profiles and 18+ warning in their bio, repeated acritically, and with little to no scientific support, in the Report of an Independent Expert appointed by the United Nations.