“My kid was asking me, ‘Mom, does it hurt to die? How can I die, where would I go when I die? Mom, now that you know, when I die, grow me in your belly but grow me as a girl, not with a penis. Because now you know.’” – Susan Smith (Lassam)
In today’s modern day society the voices of transgender bodies are continuously silenced through institutional and non-institutionalized efforts to enforce cis-heteronormativity. In particular, scholars Marîa Lugones and Georgiann Davis speak to how transgender bodies are silenced through colonial methods, particularly law. Sue Ruddick further points to the exclusion of children’s voices as legal subjects. As I look to the case of the custody battle over the female identifying child, we begin to acknowledge how both children’s and transgender rights become deeply entwined, and inextricably inseparable from one another. I will argue that the child in the Medicine Hat court case is rendered by society “too young” to speak their own gender identification. I will advance this argument in exploration of the colonization of law, how the child and Trans* voices are deemed immature and unaffected by harm, and how biology speaks over a child’s voiced opinions in law. Before I begin, it is important to recognize that while the child identifies female, Smith refers to her child with ‘they’ pronouns. The case is focused on the issue of gender identity and not Trans* bodies.
Law is said to be created under colonial confines. Feminist Philosopher Marîa Lugones argues that “the law does not recognize intersexual status” (195). Rather the, “legal institutions have the power to assign individuals to a particular racial or sexual category” (194). Similarly, through law we see that transgender bodies are rendered as moral problems that need to be solved. Lugones argues that this legal power to render racialized and sexualized bodies as “others,” in order to exclude them has been introduced by colonization. For example, “intersexed individuals were recognized in many tribal societies prior to colonization without assimilation to the sexual binary,” including the Two-Spirited peoples of Indigenous nations in Canada (195). We see this translate from law into medicine, where inter-sex bodies are seen as emergencies that need to be solved immediately by surgery (Davis et al.). Surgery as argued by Davies et al., as well as legal colonial verdict as argued by Lugones, have the unspoken mandate to erase the inter-sexual and transgendered. More specifically Davis et al.’s example allows me to articulate how colonized law introduces racial and sexual exclusion outside of the confines of law, culture and fields across society. Law can be used to facilitate harmful colonial power through verdict, to furthermore shape morality. Further, the colonial morality of society has become one to exclude the gendered, sexual, and racialized “other”. Through colonial legal mandate we see that law has been used not only to exclude the gendered “others,” but also to silence their existence. If law and morality does not define transgender as a gender, then what legitimacy should it have outside of the legitimators doors? Transgender individuals are forced to tread carefully and not speak in the knowledge of the legalized precautionary measures which are in place to remove their very existence. Therefore transgender individuals are silenced from “legitimate” opinion and conversations. One may only speak if they solve their problem. For example: the inter-sex person chooses to undergo a sex reassignment surgery, or the child in Medicine Hat chooses to wear male clothing. Only then can they then again assume ability to advocate and speak for Transgender rights, gender expression, and their human rights without drawing harm their way. Unfortunately the Medicine Hat child, in telling their father and mother that they wanted to cut their penis off, called harm their way. Furthermore, the father was able to facilitate the harmful precautionary measures to silence his child by enacting the custody battle. It has been shown that colonial law has influenced society’s morality to render a transgender child silent.
Ruddick continues to argue about the silence of the child. Child abuse victims are “discounted [as legal subjects]. They were thought ‘too innocent’ to process such actions, and thus unaffected by abuse, in any lasting way, and thus imperious to real harm- a finding, which conveniently absolved the perpetrator of any wrongdoing” (516). Similar to the sexual assault victim, the child from Medicine Hat is silenced through their coined “innocence,” and therefore unable to have say in which parent will end up garnering their custody. This is ironic, as society often paints the picture of the child being the most important and central figure in child custody. We see that this paradox is incorrect looking at the Medicine Hat case. The child has no say in their own custody, and correspondingly we see that the law normalizes the notion to discount how the child will feel the repercussions of the verdict. This is solely for the court’s neoliberal gain, made through a cis-normative narrative the judge sells to state of which parent is best for the child. By discounting the child’s account, although they may be innocent, the court ignores how the lack of the child’s perspective in the legal decision will drastically hurt the child’s emotional and mental well-being. Similar to Ruddick’s example of the perpetrator in the sexual assault case, the father is exempt from his oppression of his child and his wife. The judge, in casting the father as the primary custody holder has made it okay, and even suggested that the father be the only one who has the moral right to speak. As the inflictor of harm against transgender rights, with the court’s approval, the father has deemed his transgender child too innocent to understand. What the father and the court have both misunderstood is that the child is not too innocent to understand the emotional and mental toll the custody battle, and inability to gender self-identify, will have on the child for the rest of their life. The child is silenced from opinion on their custody and gender identity.
In Sue Ruddick’s essay she coins the analogy of the fetus, to say that the fetus possesses greater power than the living child (513). In the case from Medicine Hat, the fetus analogy can used to show how the child’s birth given sex silences the voice of the born child. This points to how their male sex holds more power than their spoken desire to identity as female. Sex is assumed the role of the only matured and knowing component of the child upon birth, and their childhood. The notion forms that the child will not be able to fully understand their sex until they are fully grown into their feminine or masculine selves, to align with the birth given sex. If one is full grown, but does not fully represent their birth given sex as a fully feminine, or fully masculine figure they are deemed immature through society’s cis-heteronormativity. Additionally, we see that our society does not value immaturity. Therefore the not fully feminine or not fully masculine voice, pointedly the transgender individual is deemed illegitimate, and furthered silenced. Although, let us take Ruddick’s fetus analogy and flip it onto its head. This analogy can actually prove itself a powerful political symbol for transgender rights, if we analyze it through the inter-sexed identity. Considering Ruddick’s analogy of the fetus having exceptional powers, if the birth sex is inter-sex then the power and voice of the third gender, transgender is validated. Under this analysis we see that law, human rights law, medicine, the judges, the father, and societal cis-heteronormativity no longer have the right to silence the child. The female identified child of Medicine Hat, under my theoretical analysis now has a validated voice.
Understanding how the father facilitated colonial law, the child’s opinion is silenced out of the custody battle, and sex holding power over self-identification, I have articulated all the ways that the child’s self recognition as female has been silenced. These discussions are important ones to pay attention to, because they recognize where advocacy needs to poke further holes to delegitimize the gender exclusive practices of today’s law, society, and human rights.
References
Davis, G., J. M. Dewey, and E. L. Murphy. “Giving Sex: Deconstructing Inter-sex and Trans Medicalization Practices.” Gender & Society 30.3 (2015): 490-514. Web.
Kassam, Ashifa. “Canada Order barring Child from Wearing Girls’ Clothes Prompts Call for Change.” The Guardian. November 19, 2016. Accessed December 03, 2016. https://www.theguardian.com/world/2016/nov/19/canada-gender-identity-training-lawsuit-clothing-public-alberta.
Lugones, María. “Heterosexualism and the Colonial/Modern Gender System.” Hypatia 22.1 (2007): 186-219. Web.
Ruddick, Sue. “At the Horizons of the Subject: Neo-liberalism, Neo-conservatism and the Rights of the Child Part One: From ‘knowing’ Fetus to ‘confused’ Child.” Gender, Place & Culture 14.5 (2007): 513-27. Web.
https://www.facebook.com/Trans-Equality-Society-of-Alberta-129747467100473/?hc_ref=SEARCH&fref=nf