Sex Is as Sex Does: Governing Transgender Identity
Paisley Currah
NYU Press, $28 (cloth)

On March 22, 2022, during the confirmation hearings of Justice Ketanji Brown Jackson, Senator Marsha Blackburn of Tennessee asked the nominee: “Can you provide a definition for the word ‘woman’?” Jackson replied: “Not in this context. I’m not a biologist.” The exchange spread like wildfire online. Conservatives mocked Jackson’s response, insisting that it was symptomatic of a new leftist “orthodoxy” that holds sex and gender to be mutable social constructs. In turn, progressives pointed out that Blackburn’s line of questioning was nothing more than a transphobic dog whistle, designed to push right-wing attacks on what some have come to call “gender ideology.”

There is no reality to sex outside of the meaning that a given state ascribes to it.

It echoed, for instance, the online uproar caused by Harry Potter author J. K. Rowling, who has become a face of what its proponents call the “gender critical” movement, and which its critics dub (somewhat loosely) trans-exclusionary radical feminism—TERFs, for short. In 2020 Rowling derisively retweeted an article about “people who menstruate,” writing: “I’m sure there used to be a word for those people. Someone help me out. Wumben? Wimpund? Woomud?” In the years since, she has made clear that she, like Blackburn, believes sex to be fixed at birth and fundamentally unchangeable. Since the Supreme Court overturned Roe v. Wade last month, allowing states to ban abortion for the first time in almost half a century, many of these “gender critical” figures have maintained a studied silence or even lauded the court’s decision. That is to say, those who oppose trans rights often do so not out of any genuine concern for women (cisgender or otherwise), but rather out of a deep-seated desire to control bodies.

These attacks are part of a growing wave of hostility to trans people and other queer groups. Numerous U.S. states have recently proposed or passed new legislation curtailing trans youths’ ability to receive affirming care. In March Florida passed its infamous “Don’t Say Gay” law, which bans teachers from talking about sexual orientation or gender identity in school. Such assaults on trans people have become a favored strategy of the U.S. right as it seeks to whip up a moral panic in pursuit of votes.

They are also symptomatic of a broader reordering of sex and gender both administratively and in the popular imagination. Scientists have long known that there is no easy definition of sex. In spite of centuries of inquiry, neither chromosomes nor hormones nor genitalia can offer a neat demarcation between men and women. That is to say, a biologist would also have been hard-pressed to answer Blackburn’s query of what a “woman” is. At the same time, gender-affirming care has evolved rapidly in the last decades. State and federal laws have in some cases followed suit: even the conservative Supreme Court held in 2020 that discrimination against trans employees constitutes an unacceptable breach of Title VII’s ban on sex-based discrimination.

The notion that bodies are amorphous and mutable has also expanded rapidly in public consciousness. Both sex (the body’s physical manifestation) and gender (a set of behaviors and identities related to sex) are increasingly seen as social constructs, fallible categories foisted onto recalcitrant nature. As our understanding of sex and gender becomes ever more fluid, though, it has become ever more pressing for conservatives—as well as some on the political left—to fabricate and enforce clear definitions of them in pursuit of social and political control.

The question is not what sex actually is but rather what it does in a given situation.

The period of flux we find ourselves in—of cultural transition away from rigid assumptions about sex—is one that legal scholar Paisley Currah terms a moment of “gender chaos.” In his new book Sex Is as Sex Does, Currah examines how the U.S. government regulates transgender identity. Currah asks us to think of sex less as a fact of biology or nature and more as a signifier of how states function. That is, Currah suggests that there is no reality to sex outside of the meaning that a given state ascribes to it. As the book’s title has it, the question then is not what sex actually is but rather what it does in a given situation.

Consider identification. The state issues different forms of identification that do different things, from drivers’ licenses and birth certificates to Social Security cards and passports. In addition to an individual’s name, birthday, and other salient information, these forms of documentation also usually list the individual’s sex. Moreover, each of these documents is issued not by “the state” in abstract, but rather by specific agencies, each of which has its own internal rules, regulations, and competencies. Thus, what constitutes proof of sex to one agency or authority is not always definitive to another. This can mean that, for transgender people, their official “sex” may be an unsettled matter, treated differently by different agencies.

Currah examines, for instance, the question of marriage. Until the 2015 Obergefell v. Hodges decision that enshrined a federal right to same-sex marriage, most states implicitly or explicitly defined the institution as a contract between a man and a woman. What, however, of a transwoman marrying a cisman or vice versa? In 1976 New Jersey state courts were asked to decide precisely this question by a cisman who tried to retroactively annul his marriage on the grounds that his wife M.T. was “actually male” and their marriage thus “had never been valid.” Surprisingly, the courts held that because M.T. had had gender-affirming surgery and could thus “function sexually” as a female, the marriage had been valid.

But two decades later, a series of state courts held exactly the opposite, nullifying marriages on the grounds that one of the spouses was trans and thus that the marriage fell afoul of the state’s ban on same-sex marriage. As the 1999 judgment against transwoman Christie Lee Littleton read, “Once a man, always a man.” Even in cases where the spouse had successfully changed their birth certificate and other important identity documents, courts found that sex was fixed at birth. “What ‘sex is’ for identity purposes,” Currah writes, “may not be what sex is deemed to be for other purposes.”

While some might read this thicket of contradictory rulings and regulations as nonsensical, Currah instead sees them as emblematic of the different functions that these offices have within the larger structure of the state. “Focusing on a generalized idea of the state,” Currah contends, effaces “the ataxic disarray of state actors in the United States” that results “from the uncountable number of norms, institutions, and processes across all jurisdictions—from legislatures, courts, departments, and agencies to elected officials, political appointees, and civil servants.”

Currah focuses in particular on how these different state systems for regulating sex coalesced during the twentieth century as part of the administrative state responsible for the distribution of welfare and government services. That is, in the patriarchal world of the New Deal and the postwar era, whether the state saw you as a man or a woman mattered a great deal to your life opportunities and obligations. Thus, Currah argues, the discriminatory policies that continue to make it difficult for trans people to win recognition from the state are not necessarily evidence of deep-state transphobia per se, but are rather vestiges of the broader system of twentieth-century gender regulation.

But thanks in large part to the feminist movement, sex as a criterion for government decision-making has “been gradually disestablished from the state,” in Currah’s words. That is, many of the gains of trans and gay and lesbian political movements have ridden on the coattails of feminist efforts, which made significant headway in the work of convincing the state that an individual’s sex need not be a central feature of how the state governs them.

Currah thus suggests that transphobia is not a stable or coherent category, and that efforts to fight it miss the bigger picture if they imagine the state as a monolithic—and homogeneously transphobic—entity. Instead, many of the legal injustices faced by trans people are the result of policies that are not coherent, monolithic, or even intentionally transphoic, but rather leftovers of earlier eras of sex regulation. Until recently, that is.

State systems for regulating sex coalesced as part of the administrative state responsible for the distribution of welfare and government services.

For a long time, many trans activists—along with gay and lesbian activists—did conceive of their project as one of fighting transphobia (or homophobia). The goal was recognition from the state, a form of identity politics that is often assimilationist in nature rather than radical. On its own, Currah thinks this rarely goes far enough. Currah contends, for example, that an assimilationist call to treat trans prisoners with “more respect”—in the context of “an institution organized around the distribution of pain”—“brings deck chairs to mind.” In making this critique, Currah addresses a fundamental divide in contemporary progressive politics between those who favor identity politics—or recognition—and those who favor redistribution, or materialist, class-based politics.

But while Currah certainly thinks that recognition is insufficient—and misunderstands both transphobia and the state—he also contends that class-oriented progressives have fundamentally failed to appreciate the importance of recognition in the context of a state like ours. Whether you can get married or drafted, whether you are recognizable to the state as you are, is of primary importance to the question of (re)distribution.

That is to say, Currah’s aims are not solely (or even mainly) academic. He isn’t only interested in disrupting our theoretical conception of the state or of what transphobia might be. Rather, he thinks that a more nuanced grasp of how the state regulates sex can open a broader, intersectional understanding of what transgender politics can be. While accepting that laws and policies have to change in order to allow trans people to live fuller lives, Currah points out that “being against something conservatives and gender critical feminists are for does not necessarily have far-reaching antiracist or redistributive consequences.” That is, trans advocates must be willing to think more expansively about the scope of their aims, to embrace broader socioeconomic movements for “prison abolition, the adoption of universal public-payer health care, and a large-scale assault on income inequality,” all of which, Currah argues, “would make the most difference to the most trans people.”

At the same time, the very messiness of the U.S. state’s regulation of sex has given way in recent years to a much more conceptually coherent idea of transgender. Trans advocates have successfully consolidated different forms of gender non-normativity under that term and have, in many cases successfully, pushed for greater rights and recognition within the context of our liberal republic. Taking up historian Susan Stryker’s definition of transgender as “people who move away from the gender they were assigned at birth,” Currah shows how the “gender pluralism” advocated by the transgender movement has allowed “for all sorts of ways of being gender different, from old school transsexual people not particularly critical of the medical model of the gender binary . . . to people who rejected the gender binary altogether to people who sought to reconstitute it in very new and unexpected ways.” In some sense, it’s a broad enough category to encompass anyone who disrupts gender norms, as historian Jen Manion recently suggested. The appeal of the term “transgender” thus signifies not only a political coherence that has made it easier to talk about rights, but also the very “gender chaos” that Currah approvingly cites. At the same time, however, the term’s political coherence, while an asset to the movement, has also turned transgender into what Currah calls a “proxy in the gender wars,” a “political football” that the two parties use to rally their bases and to virtue signal.

While Currah certainly thinks that recognition alone is insufficient, he also contends that class-oriented progressives have fundamentally failed to appreciate the importance of recognition in the context of a state like ours.

To return to the recent exchange between Jackson and Blackburn, it is clear that there was no way for Jackson to respond to Blackburn’s question, because the definition of “woman” depends on the context in which it is used. In the absence of that context, there is no way for an honest judge to answer. But Blackburn’s question betrays too the evolving project of the right, something that lies largely outside the scope of Currah’s book. Social conservatives too are aware, whether consciously or not, of the haphazard and inconsistent ways that elements of the state have historically regulated gender. And they seem intent on imposing their own transphobic, homophobic, and misogynistic coherence on it.

With Roe v. Wade fallen, other Supreme Court precedents that disestablished gender are now also on the chopping block. Although the Dobbs ruling represents the first time in recent memory that the justices have taken away a constitutional right already granted, it will surely not be the last. In a recent interview, Texas attorney general Ken Paxton signaled that he might seek to challenge rulings granting rights to use of contraceptives, to same-sex marriage, and to non-procreative sex. The far right in this country is thus embracing the power of the state to reestablish sex as a category of state policy, to reimpose anachronistic norms by force. We won’t be going back to the days before Roe, as we so often hear—we will be going to a far more frightening place in which the inconsistencies and incoherencies of state power may no longer offer the faint protections they once did. The only way forward, Currah suggests, is a broad-based progressive movement that does not restrict itself to imagining new laws or rights, but that rather reimagines the entire edifice of neoliberal democracy that is ultimately the cause of our present woes.