TY - JOUR
T1 - Determining Transgender
T2 - Adjudicating Gender Identity in U.S. Asylum Law
AU - Vogler, Stefan
N1 - Funding Information:
AuTHOR’S NOTE: this research was supported by the Sexualities Project at northwestern and the american Council of learned Societies. I would like to thank Valerie Jenness, Brandon robinson, laurel Westbrook, Steve epstein, and Héctor Carrillo for comments on various aspects of this project. Correspondence concerning this article should be addressed to Stefan Vogler, Department of Criminology, law and Society, University of California, Irvine, 2340 Social ecology II, Irvine, Ca 92697. email: [email protected].
Publisher Copyright:
© 2019 by The Author(s).
PY - 2019/6/1
Y1 - 2019/6/1
N2 - Transgender legal protections have long been contentious issues, with courts often pathologizing or refusing recognition of transgender identities. Recently, however, courts adjudicating asylum claims have recognized “transgender” as a legitimate category of protection. I take this legal development as an opportunity to ask how courts determine if individuals are transgender. While previous work has shown how courts maintain the gender binary, asylum law offers the first chance to analyze how recognizing a distinct transgender category affects the legal gender order and the classification of trans claimants. Drawing on court decisions, ethnographic observations, and interviews, I argue that the recognition of transgender as a category implicitly acknowledges the malleability of gender. Yet, the adjudication of transgender asylum cases continues to uphold a fixed and binary conception of gender by assuming a “born into the wrong body” narrative and that claimants should always already know their gender identities. Courts thus enforce a cis–trans binary wherein only certain claimants are found “trans enough.”
AB - Transgender legal protections have long been contentious issues, with courts often pathologizing or refusing recognition of transgender identities. Recently, however, courts adjudicating asylum claims have recognized “transgender” as a legitimate category of protection. I take this legal development as an opportunity to ask how courts determine if individuals are transgender. While previous work has shown how courts maintain the gender binary, asylum law offers the first chance to analyze how recognizing a distinct transgender category affects the legal gender order and the classification of trans claimants. Drawing on court decisions, ethnographic observations, and interviews, I argue that the recognition of transgender as a category implicitly acknowledges the malleability of gender. Yet, the adjudication of transgender asylum cases continues to uphold a fixed and binary conception of gender by assuming a “born into the wrong body” narrative and that claimants should always already know their gender identities. Courts thus enforce a cis–trans binary wherein only certain claimants are found “trans enough.”
KW - asylum
KW - classification
KW - gender
KW - law
KW - transgender
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U2 - 10.1177/0891243219834043
DO - 10.1177/0891243219834043
M3 - Article
AN - SCOPUS:85062647599
SN - 0891-2432
VL - 33
SP - 439
EP - 462
JO - Gender and Society
JF - Gender and Society
IS - 3
ER -