Tag Archives: identity

un-sexing birth certificates: Robson recommends Wipfler

Ruthann Robson, if you do not already know her, is a wonderful feminist legal scholar, writer (in many genres), and teacher.   You can find out more about her here, at her website, and here, in past IFLS posts about her (there’s video of a talk she gave at Osgoode, here).

She sent over the following recommendation for a paper written by one of her former students, AJ Wipfler (CUNY Law 16).  Whether for the substantive subject matter or for the joy of thinking about the student/prof relationship and how it can be used to build scholarship and advocacy, or just to see an example of writing enthusiastically about someone else’s work, have a read:

un-sexing birth certificates 

Ruthann Robson

 

The controversial “bathroom statute” in North Carolina, HB2, regulates the proper use of sex-segregated facilities as consistent with one’s “biological sex,” defined as the “physical condition of being male or female, which is stated on a person’s birth certificate.”  That the legal grounding of sex-determination should be one’s birth certificate is both predictable and shockingly naïve.  It also begs the questions of why birth certificates and other government documents designate M(ale) or F(emale).  Haven’t we moved beyond that?  Shouldn’t we?

In Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity and the Possibility of Genderless Identity Documents, a forthcoming article in Harvard Journal of Law and Gender, author Anna James (AJ) Neuman Wipfler explores the many issues surrounding sex designations on identity documents, in global and local contexts, highlighting the particularities of birth certificates.  It’s such a sophisticated, nuanced, and informative article that I have difficulty believing its own birth was as a student paper for a Sexuality and Law course  – – – full disclosure! – – – that I regularly teach at City University of New York (CUNY) School of Law.

Wipfler ultimately argues that the elimination of sex designations should be the goal, but recognizes that several types of “identity crises” merit attention before wholesale abandonment of sex designations.

The most vital “identity crisis” is that amongst the people most affected.  Wipfler writes that there is a  “tension within the trans rights movement between retaining sex identifiers for use in securing rights on the basis of gender identity and dismantling sex/gender as a legal identifier.”  In part, this tension arises from strategic considerations: as long as law promulgates and enforces a binary sex designation regime, having “access to a government-issued identity document that correctly reflects one’s gender identity cannot be overstated.”  But the tension also inheres in disagreements over whether abolition of sex/gender categories should be a goal of trans liberation, even as there is widespread agreement that the standards for determining sex designations, legal or otherwise, are incoherent and conflicting.

One solution might be what Wipfler terms “Definitional Expansionism,” which has as its primary grounding self-attestation and is reflected in one of the foundational documents of LGBT international human rights law, the Yogyakarta Principles (2007).  Yet, as Wipfler argues, this may essentially re-entrench binary sex classifications even as it de-essentializes sex.  Another solution is what Wipfler labels “Categorical Expansionism” and would recognize sex designations other than M(ale) and F(emale) on at least some identity documents.  This approach is becoming increasingly popular amongst some (progressive?) governments – – – including Australia, Bangladesh, Denmark, France, Germany, India, Malta, Nepal, New Zealand, Pakistan, and Thailand — – all of which Wipfler’s articles discusses. The drawback of this solution, Wipfler contends, is that shifting from a binary to a tripartite is not necessarily an improvement, especially when the third – – -“other” – – – category might further entrench the normalcy of the binary.  The best solution for Wipfler is gender abolition and Wipler discusses how “Categorical Expansionism” attempts can segue into abolition models on identity documents, detailing experiences in New York City and Canada.

The centerpiece of Wipfler’s article, however, is the birth certificate as the “starting place” for sex designation abolition, even as it comports with definitional and categorical expansion.  Importantly, Wipfler maintains that “legal sex” determinations are “unnecessary for children.”  Wipfler recognizes that in some instances, including those affecting the most vulnerable trans populations, gender-affirming documents will be necessary, but nevertheless contends that the at-birth sex designation will likely be more harmful than helpful.  And even more importantly, Wipfler uncovers the reality of birth certificate documents as not only changeable, but “ever-changing.”  Indeed, “the fields on the U.S. Standard Certificate of Live Birth,” which most states adopt, “have changed no fewer than twelve times since their inception in 1900.”  Wipfler vividly illustrates these changes in the Appendices to the article reproducing various versions including the most recent 2003 revision.  True, the changes have tended toward the inclusion of more information rather than less, but perhaps the most crucial addition was the 1949 line of demarcation, dividing document.   Above the line is the portion that most of us think of as “the birth certificate.”  The below-the-line portion is medical and statistical information that does not appear on the legal identification portion of the certificate.  Migrating to this below- the-line position has been the mother’s marital status as well as the race of the parents.  Wipfler suggests that sex information – – – or more accurately, “apparent genital status” – – – of the baby should similarly reside below-the-line.  The government’s interest in “sex” thus becomes not an imposed personal identification marker, but a matter of government statistics.   What would remain above the line would be child’s name, place and date of birth, as well as  information about “mother” and “father,” which I must add, also requires a de-gendering to dismantle presumptions of heterosexual parenting pairs.

Wipfler ultimately contends that “as long as the state records gender identity, it will also police its boundaries,” even as there are “still too many dangers to remove gender markers from all identity documents in the United States all at once.”  Birth certificates are not only a strategic starting point, but their legal importance is demonstrated by laws such as the North Carolina one which would have many of us, especially those who appear gender-non-conforming, carry our official birth certificate whenever we might have to use the toilet.

 

 

Nancy Leong on cyber harassment, & etc.

A few weeks ago I tweeted a link to Prof. Nancy Leong‘s (Denver Sturm Law – her SSRN page here) series about about harassment in cyberspace (at Feminist Law Professors, here), definitely  worth a read.  As part of her reflections on anonymity, identity, and how to understand the responsibility of thread starters, website administrators, etc, she describes her own experience:

Over the course of about fifteen months, this particular harasser commented about me approximately 70 times on at least five different websites, frequently remarking on my physical appearance.  ….. Moreover, he wrote offensive profiles of a dozen other law professors who were–so far as I could tell, with one exception–all women or people of color or both. (from part 4, here)

The ABA site writes about the ethics complaint that Leong eventually filed, here, as does well known law blogger Brian Leiter here (and elsewhere).   Leiter noted Leong’s Feminist Law Professors posts back in November, in this post, where he also references work by Law Prof Mary Anne Franks (Miami) on this subject, and a few days ago he noted that Amanda Hess has written an article in the Pacific Standard:  The Next Civil Rights Issue: Why Women Aren’t Welcome on the Internet –  which references work by Franks and Danielle Citron (Maryland).

The connection between the generalised misogyny of the internet,  and the very specific targeting of particular women is interesting both in terms of understanding why and how they happen, and in terms of how both affect the behaviour of those who are neither harassers nor targets, but are in the same spaces as those who are filling those roles. I highly recommend a look at Leong’s Feminist Law Professors posts – both for those who are at home on the net and those still resisting. Leong’s work also has the advantage, in my view, of bringing an intersectional view to the question of harassment.

In Canada, I have seen a variety of work which looks at cyberbullying or related topics from law school scholars like Jane Bailey (Ottawa) (and the eGirls project researchers as a group, see the website for this SSRHC funded project here), Karen Eltis (Ottawa), A. Wayne MacKay (Dalhousie), and I’m sure many more – if anyone has an up to date bibliography on this issue I would be happy to post it.

 

If you want to read more by Leong, try this article, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream,64 Fla. L. Rev. 305 (2012) here

This review of that article, which takes on interesting questions about conceptual inquiry and its place in educating law students, and this, by Ruthann Robson pointing to another blog post by Stephen Diamond.

Just what you wanted: An Uncomfortable Conversation (in Atlanta) CFP

Osgoode’s Stu Marvel is down in Atlanta at Emory on a Post-Doc with the Vulnerability and the Human Condition initiative there.  She send this CFP. Deadline for proposals, May 29.  Something to turn to when your marking is done, perhaps?To catch up, resources on vulnerability and resilience can be found on the VCH Initiative website, here.

An Uncomfortable Conversation: Vulnerabilities and Identities:  September 14-15, 2012

Emory University School of Law, Gambrell Hall, Room 575, 1301 Clifton Road, Atlanta 30322

Critical legal scholars have long focused on identity, both highlighting the extent to which the law either protects or subordinates individuals based on their identity categories and also considering the ways in which identity classifications themselves are constructed and mediated by legal thought and culture. Recent movements in critical legal studies have contemplated the institutional and social conditions structuring inequality, including those that overlap with identity frameworks, such as intersectionality theory, as well as paradigms reaching beyond identity to more universal categories such as human rights, capabilities and, more recently, vulnerability.

This workshop seeks to explore the relationships between identity and vulnerability, as well as those between particularity and universality, with an emphasis on the ability of these concepts to deepen existing critiques of legal liberalism and advance questions of substantive justice.

We will examine the possibilities and problems associated with organizing critical legal theory around specific identity categories such as race, gender, or sexual orientation, on one hand, and more universal categories, such as vulnerability or dependency, on the other. Central to this investigation is how we examine and evaluate the impact of both identity-based and universality-based critical theory on the state and institutions organized to provide education, social welfare, employment and training, healthcare, environmental policy, family structure, and cultural recognition. In considering the recent revitalization of purportedly universal or “post-identity” approaches, we ask how these frameworks approach systemic disparities in access, opportunity and resources differently from identities analyses. Specifisec areas of inquiry might include consideration of these issues and questions in the context of feminisms, critical race theory, intersectionality, queer studies, disability, poststructuralism, transnationalism, political and the “class crits” movement.

Guiding Questions:

What are the relationships between vulnerability and identity/universality and particularity?

In what ways do both vulnerability and identity approaches inform or undermine each other?

Do more universal approaches to critical theory simply replicate existing identity paradigms in different forms?

Does identity enable us to think more complexly about the limits of universality? Is the reverse also true?

What is lost or gained by a “post-identity” approach to social justice issues? By an identity-focused approach? Can they be combined?

How do increasingly hostile majority reactions to identity-informed law and policy, like affirmative action, undermine the effectiveness of identity politics and identity-based critical theory?

How does competitiveness over scarce resources influence the shaping of identity politics and/or appeals to universality?

How are identity-based approaches to critical legal theory outside the US context different than within?

Where and to what extent do identity categories magnify balkanization, thus undermining coalitions?

How can identity categories advance social and legal organizing?

How does the state manufacture and maintain the salience of both identity-based and universality-based critical theory?

What does it mean to label something “post-identity”?

Are more universal frameworks necessarily post-identity?

When are some modes of subordination and marginalization more situational and specific and how are these related to identity? To vulnerability?

Workshop Contacts:

Martha Albertson Fineman, Emory University School of Law, mfineman@law.emory.edu

Frank Rudy Cooper, Suffolk University Law School, fcooper@suffolk.edu

Osamudia James, University of Miami School of Law, ojames@law.miami.edu

Katie E. Oliviero, FLT Postdoctoral Fellow, Emory School of Law, koliviero@emory.edu

Submission Procedure:

Please email a paper proposal by Tuesday, May 29th to Emily Hlavaty, FLT Program Coordinator: emily.hlavaty@emory.edu

Decisions will be made by ­­­­mid June and working paper drafts will be due September 4th so they can be distributed prior to the Workshop.

 

Workshop Details:

The Workshop begins Friday at 4PM in room 575 of Emory Law School (1301 Clifton Rd, Atlanta, GA), followed by dinner in the Hunter Atrium. Panels continue on Saturday from 9:30 AM to 5PM. Breakfast and lunch will be provided.

 

 

An Uncomfortable Conversation: Vulnerabilities and Identities 
September 14-15, 2012

Emory University School of Law, Gambrell Hall, Room 575, 1301 Clifton Road, Atlanta 30322

Critical legal scholars have long focused on identity, both highlighting the extent to which the law either protects or subordinates individuals based on their identity categories and also considering the ways in which identity classifications themselves are constructed and mediated by legal thought and culture. Recent movements in critical legal studies have contemplated the institutional and social conditions structuring inequality, including those that overlap with identity frameworks, such as intersectionality theory, as well as paradigms reaching beyond identity to more universal categories such as human rights, capabilities and, more recently, vulnerability. This workshop seeks to explore the relationships between identity and vulnerability, as well as those between particularity and universality, with an emphasis on the ability of these concepts to deepen existing critiques of legal liberalism and advance questions of substantive justice.  

 

We will examine the possibilities and problems associated with organizing critical legal theory around specific identity categories such as race, gender, or sexual orientation, on one hand, and more universal categories, such as vulnerability or dependency, on the other. Central to this investigation is how we examine and evaluate the impact of both identity-based and universality-based critical theory on the state and institutions organized to provide education, social welfare, employment and training, healthcare, environmental policy, family structure, and cultural recognition. In considering the recent revitalization of purportedly universal or “post-identity” approaches, we ask how these frameworks approach systemic disparities in access, opportunity and resources differently from identities analyses. Specific areas of inquiry might include consideration of these issues and questions in the context of feminisms, critical race theory, intersectionality, queer studies, disability, poststructuralism, transnationalism, political and the “class crits” movement.

Workshop Contacts:

Martha Albertson Fineman, Emory University School of Law, mfineman@law.emory.eduFrank Rudy Cooper

, Suffolk University Law School, fcooper@suffolk.eduOsamudia James,

University of Miami School of Law, ojames@law.miami.eduKatie E. Oliviero,

FLT Postdoctoral Fellow, Emory School of Law, koliviero@emory.edu 

Submission Procedure:

Please email a paper proposal by Tuesday, May 29th to Emily Hlavaty, FLT Program Coordinator: emily.hlavaty@emory.eduVarious resources on vulnerability and resilience can be found on the VCH Initiative website: Here 

Decisions will be made by ­­­­mid June and working paper drafts will be due September 4th so they can be distributed prior to the Workshop.

Workshop Details:

The Workshop begins Friday at 4PM in room 575 of Emory Law School (1301 Clifton Rd, Atlanta, GA), followed by dinner in the Hunter Atrium. Panels continue on Saturday from 9:30 AM to 5PM. Breakfast and lunch will be provided. 
Guiding Questions:

  • What are the relationships between vulnerability and identity/universality and particularity?
  • In what ways do both vulnerability and identity approaches inform or undermine each other?
  • Do more universal approaches to critical theory simply replicate existing identity paradigms in different forms?
  • Does identity enable us to think more complexly about the limits of universality? Is the reverse also true?
  • What is lost or gained by a “post-identity” approach to social justice issues? By an identity-focused approach? Can they be combined?
  • How do increasingly hostile majority reactions to identity-informed law and policy, like affirmative action, undermine the effectiveness of identity politics and identity-based critical theory?
  • How does competitiveness over scarce resources influence the shaping of identity politics and/or appeals to universality?
  • How are identity-based approaches to critical legal theory outside the US context different than within?
  • Where and to what extent do identity categories magnify balkanization, thus undermining coalitions?
  • How can identity categories advance social and legal organizing?
  • How does the state manufacture and maintain the salience of both identity-based and universality-based critical theory?
  • What does it mean to label something “post-identity”?
  • Are more universal frameworks necessarily post-identity?
  • When are some modes of subordination and marginalization more situational and specific and how are these related to identity? To vulnerability?

 

This email was sent to emily.hlavaty@emory.edu by emily.hlavaty@emory.edu |

 

Emory University School of Law | 1301 Clifton Road | Atlanta | GA | 30322

New(ish) When Biometrics Fail: Gender, Race, and the Technology of Identity

It’s spring, and that means I’m getting emails and other messages about “what to read this summer”.    I will be posting more than a few New In Print (published w/in last 12 months) books to the blog over the next few weeks. Got ideas? Send them to me.

Here’s the first. When Biometrics Fail: Gender, Race, and the Technology of Identity, by Asst Prof. Shoshana Amielle Magnet, Institute of Women’s Studies/Department of Criminology, University of Ottawa.

By focusing on the moments when biometrics fail, Magnet shows that the technologies work differently, and fail to function more often, on women, people of color, and people with disabilities.

 

  • Acknowledgments  ix
    Introduction. Imagining Biometric Security  1
    1. Biometric Failure  19
    2. I-Tech and the Beginnings of Biometrics  51
    3. Criminalizing Poverty: Adding Biometrics to Welfare  69
    4. Biometrics at the Border  91
    5. Representing Biometrics  127
    Conclusion. Biometric Failure and Beyond  149
    Appendix  159
    Notes  165
    Bibliography  171
    Index  199