On Friday, we published an essay by Paisley Currah on sex classification and the hurdles to changing one’s legal sex. “For transgender people in the United States,” he writes, “the sheer number of state institutions with discrete authority to define sex ensnares us in Kafkaesque contradictions.” To understand those contradictions, he argues, it’s necessary to think like government agencies: in other words, less about “what sex really means” than about what sex does as a tool of the law. This approach leads to a set of urgent and surprising conclusions for transgender rights advocates, and indeed for anyone invested in a more just society in which states do not take an interest in our gender identities.
Currah, a professor of political science and women’s and gender studies at Brooklyn College and the CUNY Graduate Center, has been involved with the movement for trans rights for three decades, both as a scholar and as an advocate. In 2005, as he recounts in his essay, he served on the New York City Advisory Committee on Amending Birth Certificates for Transgender Persons. With Richard M. Juang and Shannon Price Minter, he coedited a landmark 2006 reader on transgender rights; in 2014, with Susan Stryker, he cofounded the journal Transgender Studies Quarterly.
His essay for the Review is adapted from his new book, Sex Is as Sex Does: Governing Transgender Identity, out this Tuesday from NYU Press. Over e-mail this week we asked him about identity politics, the right’s weaponizing of transphobia, and how his approach to advocacy has changed over the years.
Lucy Jakub and Max Nelson: When you embarked on your academic career, what were the questions around sex and gender that felt most pressing or interesting to you, and how did you engage with them?
Paisley Currah: When I was writing my dissertation, state and especially federal courts were much more likely to protect queer and trans people from discrimination than majoritarian institutions like legislatures. I was interested in looking at how gay identity, queer identity, get narrated to courts.
In the 1990s, LGB advocacy groups were hard at work presenting the “born this way” story to judges whenever possible: the idea that sexual orientation was not a choice but an immutable identity. In the academy, in contrast, postmodernism ruled—and deconstructing the act/identity dichotomy central to gay rights discourse was exactly what newly hatched PhDs like me were programmed to do. So there were all these battles taking place, between LGB (and later) T rights advocates and queer (and later) trans theorists over which account of sexuality or gender is the right one. Eventually, I concluded that they were both just authorizing narratives—the “born this way” discourse drawing on science, queer and trans theory drawing on the prevailing truths in the humanities. There is no need to come to agreement on a theory of gender before making a claim for the equality of trans people.
The book from which your essay is adapted is in some respects a critique of your own earlier thought. In a 2019 interview, you wondered whether one can “do product recalls in scholarship.” Specifically, what you said you wanted to “recall” in your early work was its attachment to “a normative ideal of how the state should treat trans people.” What was that ideal, and in what sense is this new project a departure from it?
Years ago, I made an analogy between religious beliefs and gender beliefs and called for “gender pluralism.” There are so many ways to do gender, and it shouldn’t be the state’s business to police the relationship between sex assigned at birth, gender identity, and gender expression. Of course, I still find that ideal attractive. But we can’t just click our heels three times to get there. Before we can move in that direction, we need to understand at a much more granular level what sex does for states. In gender studies, in LGBTQ studies, and in queer theory, we’re very good at denaturalizing gender, but we’ve not been so good at denaturalizing states (or markets, for that matter). “The state” is often imagined as an essentially neutral umpire who just needs to be presented with the right arguments about what sex really is to make a bad policy go away. For example, it looks like a contradiction when someone can be classified as F on their passport but then gets placed in a men’s prison.
As an advocate, I used to think that by pointing this out to policymakers—that it’s wrong when the same person is an M for one state agency and an F for another—would be enough to resolve the problem. But the idea that the classifications are contradictory assumes that M and F are things in themselves. In my book, I take a methodological leap and conceive of these designations exclusively as decisions backed by the force of law. Those decisions are state effects—outputs, not inputs. State constructions of sex are not based on any Platonic ideals but depend on the practicalities of governing. And just as there is no singular definition of sex, there is no singular state, but many different state actors: legislatures, courts, departments, agencies, constitutions, laws, regulations, administrative rules, and informal norms and practices.
You point out that trans liberation movements have long shared a terrain of struggle with feminist ones—both, after all, are committed to the disestablishment of gender as a “mechanism for distributing rights and resources”—but you’ve argued that this close relationship has in recent decades become harder to see. Could you say a bit about why you think that happened, and how what you call “a transgender feminist approach” might be recovered?
There was a moment in the 1970s when feminist and what we now call trans issues were more tightly linked in liberationist discourses. But in the next decades, feminism tended to focus more on the rights and resources one gets, or doesn’t get, because of gender while the mainstream trans rights movement was more concerned with the boundary of the category itself—who belongs where—and has paid less attention to the “who gets what” question.
The other reason that these movements took on different political tasks, I think, is that in unseating the gender binary as the operative analytic and instead understanding gender as genders, as multiple, trans activism has made it more difficult to see the asymmetry of gender. Yes, it’s been formally disestablished—states can’t use gender to make sure men get more than women. But that doesn’t mean a masculinist gender binary is not still deeply embedded in our economy. Look at the many kinds of low-paid care work that rely disproportionately on women’s labor.
Your revelation that the state is not transphobic, per se, but guided by practical bureaucratic concerns seems to have come before the recent wave of nakedly transphobic bills by Republican state legislators that aim to harm and exclude transgender people. Has your thinking changed as you have witnessed this political shift?
Much of the book tries to convince readers to stop seeing the presence or absence of transphobia as the sole explanation for bad or good policies. I want us to be open to the idea that bad policies were not necessarily created for the purpose of harming trans people. Even more challenging, I want readers to consider that good policies, ones that make it very easy to change one’s sex classification to M, F, or X, were not necessarily put in place to help us, or only to help us. As I point out in my essay, those policies may also have been put in place to serve some state interest.
But yes, we are in a different moment. Transgender issues have been turned into a vehicle of identity politics in progressive jurisdictions, and mirroring that, transgender issues have been activated by the right in the newest iteration of our endless culture wars. (In this week’s tragic school shooting, Representative Gosar was quick to spread the false rumor that the shooter was “a transsexual leftist illegal alien.”) There’s no doubt that the Republican assault on gender-affirming care for trans youth, on trans girls playing on girls’ teams, really is transphobic. I still want us to recognize that that transphobia is also politically instrumental for the right. For example—in the winter of 2021, at least 246 people died in Texas when the state’s electric grid failed. What was Governor Abbott’s legislative priority later that year? To pass one of the nation’s first bills banning kids from playing on a team that matches their gender identity. The electric grid still lacks the upgrades it needs.
Even though transphobia is now front and center, it’s important that we don’t get drawn onto the terrain that the right wants us to be on. Instead of fighting over some abstract, perfect, universal definition of sex, we need to focus on the harms to actual people in particular contexts. Like for sports, what is the actual problem that needs solving? Do we really need middle schoolers effectively shut out of playing sports, or high school students governed by the sex classification rules used for women’s competition at the Olympics?
I also try to remind people that, yes, the Republican attacks on trans people are terrible, but the status quo is also terrible in its own quiet way. The spectacular character of this targeted transphobia can make it difficult to see the quotidian effects of systems that produce poverty, incarceration, illness, and death and affect trans people in the blue states as well as the red ones.
In the book, you reflect at some length on the emergence of “transgender” as an umbrella term that made it possible to gather “diverse constellations of gender non-normative people” under “a represented and representable” identity category. You make some rather incisive critiques of this development. But you also distance yourself from other critics of “identity politics”—not only from those on the right but also from critics on the left for whom identity claims amount to “nothing more than a kind of interest-group pluralism.” How would you describe your own view, and how is it different?
The term “transgender” allows all these different sorts of people to become legible as a group, which is useful. But the downside is that the map becomes more real than the territory it’s meant to be representing—all those gender differences and other differences get erased. For example, trans rights groups talk about the dire situation of incarcerated trans people. And it is dire—because they’re in prison. The distinction that matters here might not be the trans/cis distinction but the difference between being incarcerated and being free.
For the left, identity politics, as it’s been domesticated over time, leaves us with representative neoliberalism: diversity, equity, inclusion, and capitalism. I don’t disagree with that view. But I think the critique can go too far. The accusation that trans politics is “merely cultural” often comes from people who have always been able to proffer an ID that matches their identity and are blithely unaware of their privilege in being able to do so. Getting an identity document that reflects one’s gender identity is not just symbolic politics, it’s a basic condition of doing politics, of being out in the world, risking arrest. I’m not ready to jettison identity as a route into political awareness and action. But identity is not politics itself.