The case examined has gone through family court three times as part of an ongoing custody battle. The first decision, made by Judge Derek Redman, after the father petitioned for custody shortly after the mother – pseudonymously referred to as ‘Susan Smith’ – allowed her son to begin dressing in female clothes, was to allow the mother to maintain custody of her child. However, he dictated that she was only permitted to allow him to wear feminine clothing in private, and not public. This decision raises important questions of where the boundaries of the power of the law and judges should be drawn; specifically, this case contends with where the boundaries do lie vs. should lie for the law when dealing with personal gender identity. Further, it’s important to note that this decision was made within the context of family law rather than civil rights law, and within this context, was it really within Judge Redmond’s purview to make a decision regarding when and where the child should have been able to exercise their gender identity?
Caught allowing her child to wear female clothing in public, this custody case was sent to a second judge, Judge Fred Fisher, who awarded custody to the father as well as limited Ms. Smith’s contact with her son. The implication of this decision, underscored by the (questionable) legal legitimacy of non-conforming gender expression as a grounds to contest custody, is the discourse of transcendentalism of the law in its ability to govern all aspects of life. The law is used as a vehicle of the erasure of difference and reinforcement of a conformative standard, that one must conform to and perform the gender identity assigned at birth, and that the mother’s permission for such non-conformity to occur should be penalized.
Judge Gordon Krinke intervened, returning custody to the mother under the caveat that both masculine and feminine clothing must be provided to the child at every time of dress. This decision could encourage critical engagement with the idea of gender fluidity in opposition to a binary perception of gender and the ways in which the legal framework reinforces a gendered and sexual binary. Julie Greenberg is paraphrased in the Lugones articles as “[telling] us that legal institutions have the power to assign individuals to a particular racial or sexual category” (194). Maintenance of a gender binary is essential, both with the larger as well as legal discourse, to the perpetuation of oppressive gendered colonial discourses, such as “the inferiorization of females” (Lugones, 197). Even the representation of this case in media reinforces a gender binary as the only method of representation, as the reporter refers to the child as “she” and uses pronouns such as “hers,” signifies the hierchicalization and mainstream discourse of identifying with a single gender (i.e., male/female), effectively contributing to the erasure of those who are intersex or gender fluid.
The decisions made by Judge Redmond and Judge Fisher contradicted a recent Alberta Human Rights Act (AHRA) amendment which “added gender identity and gender expression as prohibited grounds of discrimination,” claims Alberta Justice Minister Kathleen Ganley (qtd. in Underwood). Contrary to Judge Redmond’s ruling, which explicitly contributes to the invisiblization of gender minorities, this amendment and discourse surrounding it brings gender minority issues of representation and human rights to the fore. Furthermore, contributing to discourses of erasure, the primary focus during these rulings was the mental state of the mother for allowing her child to wear non-gender-conforming clothing rather than the gender dysphoria / fluidity experienced by the child. In this way, the legal system effectively problematizes and medicalizes condolence of gender fluidity and non-conforming gender expression.
Additionally, the incongruity of these decisions demonstrates its unequal application based on who is making the decision. The “benchmark male” is a concept developed in an article by Regina Greycar titled “Bias.” The views of benchmark males – white, heterosexual, cis-gendered, and middle-class – are inherently built within the framework of the law as well as overwhelmingly overrepresented. Those who do not conform this paradigm must also conform to their view when deciding their rulings, or else they would be challenged for bias (vs. constitutionality). As a result, the benchmark (and inherently biased) perspective assessing these cases are cis-gendered and gender conforming. This discourses uses law as a method of “othering” that reinforces the privileges of the dominant group. In this particular case, this privilege is manifested in the way in which the law does not seek to regulate and even criminalize the way those who conform to the gender identity with which they were born. This rhetoric of bias challenges against those who represent intersectionalities on the bench highlights a paradox of the law in that it seeks to account for difference as well as include (theoretically) yet at the practical level, it homogenize its outcomes for all parties, privileging the already dominant party.
References
Graycar, Regina. (1998) The Gender of Judgments: Some Reflections on “Bias” University of British Columbia Law Review, 32: 1-21
Lugones, Maria. (2007). Heterosexualism and the colonial/modern gender system. Hypatia, 22(1): 186-209
Underwood, Colleen. (2016). “Medicine Hat judges 4-year-old not to wear girls’ clothes in public,” CBC News, October 24. http://www.cbc.ca/news/canada/calgary/medicine-hat-judges-ordered-4-year-old-not-to-wear-girls-clothes-in-public-1.3816829