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
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.