This week’s post is brought to you by Valan Anthos, a current 1L at University of Montana law school. Valan volunteers with several student groups and also volunteers with the Missoula Community Dispute Resolution Center (CDRC). Valan is a non-binary trans man.
The history of transgender, intersex, and gender variant people is long, rich, and deep. Unfortunately, much of this history has been hidden, kept secret, or destroyed to maintain Western ideals of the gender binary and absolute sexual dimorphism in humans. It is no accident many people think of “transgender” as some newer invention that only came to be in the last couple of decades. Both private and governmental institutions invested in maintaining the gender status quo have ensured the average person is likely not aware of how common and even normalized these differing understandings of gender were in prior cultural contexts.
The common misunderstanding of absolute sexual dimorphism in humans, resulting in easily identifiable males and females, is largely a Western Eurocentric colonial invention. The gender binary gains power by presenting itself as ahistorical and inevitable, attempting to make itself unquestioning. It is enshrined in nearly every aspect of society, from IDs to bathrooms. The gender binary tries to obscure that around 1 in 1000 births is an intersex baby, possessing some mixture of both typical “male” and “female” characteristics presented by different mixes of chromosomes, hormonal profiles, and genitals. Since the 1960s, Western culture’s insistence that everyone adhere to a strict binary has subjected intersex children to nonessential surgery or hormonal intervention before they can have any meaningful choice in the matter due. Non-binary or genderqueer is a modern term for someone who does not fit into traditional categories of man or woman and may feel they embody a third gender or a mix of male and female. They may be intersex as well or they may simply feel a disconnection with their gender assigned at birth.
“On nearly every continent, and for all of recorded history, thriving cultures have recognized, revered, and integrated more than two genders” In the United States, many Indigenous Nations have special roles for individuals who are not considered male or female. Tribal Nations have their own unique terms for these people, though in modern times, the term two-spirit has become popular as a catch-all term to refer to all gender diverse Indigenous people. White settlers deliberately singled out two-spirit individuals for punishment and ridicule and imposed a strict gender binary on tribes through missionary work and boarding schools. This persecution caused much of the rich history of two-spirit individuals to go underground or be entirely lost. Today, two-spirit Indigenous people face the combined discrimination of racism and transphobia, leading to more intense levels of poverty and food insecurity than white transgender individuals.
Refusal to recognize transgender people as legitimate and entitled to basic rights and respect is a continuation of white settler colonialism that continues to disproportionately harm trans people of color. Transgender people are denied important legal protections from discrimination in housing, employment, and health care. This all stems from the Western legal system’s demand that everyone fit neatly into “male” or “female” and offers no recognition of the reality of many people’s lived experiences.
The legal system helped to entrench this false binary, but it can also play a role to help legitimize the struggle for transgender rights and equality. Recently, several states have allowed non-binary folks to have simply an “x” instead of male or female on their government ID, formally recognizing genders outside male and female. While an “x” on a driver’s license might not seem like much, this is a huge step in formally recognizing genders other than male or female. Activists continue to fight for legal protections for transgender individuals, ensuring they are not denied essential services and that they can access transition-related medical care if they need it. Our institutions, legal and otherwise, need to stop ignoring the history and legitimacy of transgender and non-binary individuals. The more trans history is known and told, the more our society shifts towards one that recognizes and respects the amazing diversity of human expression.
– V. Anthos
Criminal Injustice System 