Documento sin título

Revista Sexología y Sociedad. 2013; Vol. 19, No. 1
ISSN 1682-0045
Versión electrónica

COMUNICACIONES

Sex identities in France and the opinion of the state on gender1

Dr. Alexandre Jaunait
Poitiers University, France

alexjaunait@hotmail.com

Professor of Political Sciences at the Poitiers University (School for Political Sciences), head Publisher of the Raisons politiques magazine on political theory and co-author of Introduction aux études sur le genre, with Laure Bereni, Sébastien Chauvin and Anne Revillard.

ABSTRACT

As the American historian Joan Scott puts it, gender is a historical category of analysis which is constantly evolving through time and social spaces. The author intends to cope with the historicity of gender through the double question of transsexual/transgender people which caught increasing visibility in France in the last twenty years, specifically around three distinct areas: Trans social movements, the medical and psychiatric arena, and law. The contemporary trend in favor of depathologizing Trans identity leads the French legislator to take into account gender identity which manifests through the hearings French Parliament is holding these days. The author proposes to question the institutional thought of gender that ensues its introduction in French law.

Key words: gender, gender identity, state

I wish to share with you some reflections on the transperson status which, I believe, could clarify, in more details, the issue of gender and its transformations. Obviously, I will center my attention on the case I know better, namely, the case of France, and I hope you could forgive me for not being acquainted with the Cuban context.

The transperson issue is in full swing in France. Today, legislators cope with it at Parliament hearings on «gender identity». It is not commonplace that a reflection on gender identity refers to transsexual persons, transpersons, who above all vindicate the possibility of a sex changing in the civil status, and lead us to a broader reflection on the way gender is perceived and what it conceals.

I consider the concept of gender as a double-categorization system establishing a hierarchy between sexes (men/women) and the values and representations associated with them (male/female). In that regard, gender is a power relation dividing and leading sex duality, both in terms of sex as in what it represents from the social and cultural points of view (1). Likewise, gender is a historical category (2) and, in that regard, being a man or a woman changes depending on places and times and on a set of social characteristics. The transperson issue I will present is, in itself, a historical question so it will be easier to understand.

During the first half of the 20th century, France recognized, especially within the cultural sphere, those persons who, since the 1960´s, were considered «transsexuals». They are thought of in terms of the existing dichotomy between body and spirit: authentic «men» and «women» in bodies not belonging to them, as if it were a mistake committed by nature. These concepts are well known, but they lend themselves to two important historical observations. Firstly, they were considered to be «true» men or women —I use the inverted comas on purpose— imprisoned in an inappropriate body. So, the idea of sex, in the sense of men and women which takes us back to both physical and social concepts, clearly stated the idea that being a man or a woman was not necessarily associated with the biological body. Secondly, sexuality categories confirmed this idea on gender: those who are now called homosexuals were considered, for a long time, within the inverted-sex category (an effeminate homosexual man was, to a great extent due to his behavior and preferences, a woman). This explains why, according to the American historian George Chauncey at the beginning of the 20th century, especially in the United States, no one would dare to question the masculinity of a man, despite his penetrating sexual practices with another man. According to current perceptions, masculinity does not imply heterosexuality, and passive homosexuality was considered a female identity (3).

I believe there is a historical paradox in contemporary changes. Even though, to a certain extent, sexuality has become «autonomous» in relation to sex, since in some of the so-called Western countries homosexuals are considered within the category of sexuality, and not of sex (4), and especially now when we can resort to hormonal and surgical treatments to «change sex», it seems to me that this is more difficult than ever. In fact, when less than a century ago «sex changing » was quite easy, since sex was associated with certain behaviors and attitudes, today sex changing is more difficult, for it is closely related to biology. According to the French philosopher Michel Foucault, our «regime of truth» about sex is, in fact, a biological concept (5). You are either a man or a woman in accordance with biological sciences, in accordance with our genital anatomy, our chromosomes, our hormones or our brain, even when those criteria are not enough to clearly determine a person´s sex, as shown by the femininity tests made in international sport competitions (6). The paradox lies just there: in not very far times, sex barriers were flexible. Today, when sex changing is a technological, social and legal possibility… well, it really cannot be done. According to most social, official, medical and legal concepts, a transsexual person is still a «true man» or a «true woman» deep down. Today, the way in which legal identity allows us to create a space to acknowledge the sexed subjectivity seems to illustrate the paradoxical reinforcement of sex spontaneity.

Suffice to refer to the medical-psychiatric and legal framework, assumed by transsexuality in France, to convince ourselves of this fact. Sometimes, the legal and protocol frameworks of countries authorizing sex changing are different; however, some of them also share the same conceptual framework, a kind of gender paradigm or idea about sexes.

In France, sex changing is considered a treatment and not a freedom. And it is worthwhile mentioning the historical roots of this phenomenon. Transsexuality, particularly in the pioneer works by the American psychologist Harry Benjamin in the 1950´s and 1960´s, is inevitably linked to the medical sphere: transsexuality is a diagnostic category, a disease suffered by two independent categories, namely, body and identity (7). In the fourth edition of Diagnostic and Statistical Manual of Mental Disorders (DSM-4), an international manual of psychiatric disorders which is still a reference publication on this issue in France,2 the treatment is not provided to a person, but to transsexuality. Hormonal and surgical treatment and civil status change are considered healing treatments. A person changing his/her sex is no longer a transsexual person, but a man or a woman, neither a trans-man nor a trans-woman.

It would be interesting to consult the French protocol from this point of view. When a person wishes to change his/her sex and civil status, he/she should be examined by a commission mainly made up by psychiatrists and psychologists for, at least, two years. This commission works out the psychological profile of the person and confirms that he/she is really a transsexual, within a transitional diagnostic category, and that he/she, through treatment, will become a man or a woman. Therefore, the transsexuality diagnostic must be established. The judge in charge of deciding the civil status change (that is, the modification of the sex stated in his/her official documents) will make the decision based on the «irreversible change» of the person, supported by the commission’s opinion and the treatment received. Today, this treatment implies sterilization in most cases.3

However, the commissions have made their criteria more flexible in the last twenty years. During the 1980´s in France, like in the United States, an individual wishing to be subjected to a sex change had to become heterosexual. This means that the patient, during his/her interviews with the commission, and before the sex change, has to bear witness to his/her sexual attraction to the same sex. So the operation turned the individual into a heterosexual person. This is no longer demanded, since it is currently considered, with good reason, as truly homophobic. Likewise, it constitutes an interesting historical phenomenon: the depathologization of homosexuality in the 1970´s was accompanied by the pathological concept of transsexuality at that time. This explains why homosexuality and transsexuality are not necessarily in harmony; in fact, some States can support sex change as a way to fight against homosexuality.

Taking up again the criteria expressed by commissions, they are no longer claiming a particular sexual consistency to authorize a sex change. In the questionnaires, it is still important that transsexual persons state to the commission that they do not feel pleasure with his/her genital organs as they are. A transperson who can feel pleasure through his/her genital organs, or with his/her genital organs, is still a problem for the commission, since it believes that, if they do not feel unhappy with their genital organs, then, why a sex change? Regarding this issue, I have always enjoyed the simplicity of the formula given by Kate Bornstein, who used to write for the Gender Outlaw «I have never hated my penis. I hated the fact that it made me a man» (8), a phrase clearly stating what the commissions cannot understand.

Besides, the heterosexual standard has not disappeared and provides the key element for an interesting historical reading on sex change: if heterosexuality is no longer a condition for sex change, the heterosexual standard, however, has been re-established. In fact, commissions strongly encourage transpersons to become parents, especially supporting their procedures for adopting a child. What commissions take into account is the couple, stability and wishes to have a child, three characteristics that refer us to the heterosexual marriage standard. In this way, the commissions support transpersons in their procedures for adoption, since what turns them into a «true» man or a «true» woman is not the sexual desire, but the wish to have a child.4Here we are again facing a unique paradox in today´s France: the French institutional system supports procedures for adoption by transpersons and, at the same time, hundreds of thousands of people, religious institutions and the French right wing are against marriage between people of the same sex and their possibility to enjoy family rights. Here we clearly see that the medical and institutional factory of transsexuality is involved in the creation of a gender structure, placing sex difference at the heart of the clinic.

Nevertheless, we must understand this paradigm in accordance with the way in which stakeholders act. Reportedly, the sociological survey revealed that we are living under an ideological system, in the Marxist sense of the term that fosters a false consciousness at the heart of institutions. When we meet with transpersons who have undergone this protocol, or transpersons who have avoided it voluntarily, and psychologists and psychiatrists involved, surprisingly, deep down, they do not believe in this protocol. The blogs posted by transpersons show, perfectly well, that a lot of information is circulating on what should be said and what should not be said to the commissions. Not even therapists are deceived: they are constantly arguing that transpersons are lying and commissions end up authorizing the hormonal-surgical treatment, provided that no «psychotic» tendency has been found. According to the sociologist Pierre Bourdieu, we are facing an «illusio» (from the Latin ludus, referring to games), in the sense of a game.5 Transpersons and psychologists/psychiatrists stage a game of roles in which the fascinating world of gender, the way in which institutions intend to see men and women, falls into the absurd. According to the pattern demanded by the members of these commissions –perfectly males or females, happy in and with their bodies, delighted with their own desires and attractions- being a man or a woman simply does not exist. After all, sometimes, we bathe and perfume, we let our hair grow or we cut it short, we adore our beard or regret not having one, we get a suntan or we avoid it, we transform our bodies by practicing sports, we are annoyed when we touch our cellulites areas and we caress our hair or we shave it, without asking ourselves whether we are suffering from a psychological disorder or, due to our corporal practices, we are facing an identity problem. Likewise, we are always facing problems with our body though not always consider them as an anomaly…

Changes and criticism

This trans «paradigm» has undergone modifications which are now speeding up. I will mainly refer to two sources.

First source of change: the trans movement itself. To explain it quickly, because this is a quite complex issue, since the 1980´s the trans movement itself launched a criticism against the medical concept of transsexuality: we can call it the transgender criticism. It attempted to denounce a «false gender awareness» of transsexuality: seemingly, sex changing, turns the dual nature of gender into something natural, by affirming that two sexes cannot exist. If gender is a normative tyranny then, transsexuality as a paradigm, reinforces the gender system and fails to disrupt it. I am far from denouncing sex changing vindications; I am simply attempting to show the historical changes taking place in a «second generation» of transpersons.

Gender studies, specifically during the 1990´s, have analyzed the biological truth status of our contemporary gender system and, in this way have wondered about sex spontaneity and alleged biological evidence. In this regard, the transgender movement has resorted to criticism and questioned the tools which were nonexistent for the first generation of transsexual people who did not question sex in the same way. This movement created a space to criticize the gender binary concept.6

The trans criticism was aimed at questioning the passing (a sort of «truth test») of a transsexual person, who will define his/her successful transition when passing inadvertently in his/her new sex, vindicating the identity ambiguity and considering the alternative of living in one or another sex, either among two sexes or in none of these categories. We must understand that this kind of criticism is, obviously, of a historical nature, that depends on the cognitive characteristics in time and space. In fact, today, the gender identity issue is presented under a different light: the identity detaches from the truth of the body, transforms surgery and selected treatments and, evidently, questions the almost pathological concept of transsexuality. The idea of the existence of a trans «condition» of a transitory state which can be «cured» by adapted surgical inventions is strongly rejected by the new criticism paradigm which is against the principle of sex differences and considers that disagreeing with a pre-established sex identity is cause for pride. In fact, male and female categories are not taken into account, but the types of sexuality: if the concept of sex disappears or softens in the transgender criticism, then sex identities, based on the «same» or «other» sex, cannot be upheld any longer. We can speak a lot on this, but once again I want to be cautious and insist on the fact that this criticism does not imply a rupture in the trans world, where transgender people would blame transsexuals for being the new gender conservatives; this criticism does not imply that an operation is necessary, but rather, to make decisions in a potentially receptive world.

Another source of change is legislation with, at least, two law-making generations dealing with transsexuality. The first generation (the first countries that authorized sex changing in the 1970´s) established legal regimes which paved the way to change the civil status, thus enacting medical and psychiatric protocols for accepting transsexuality. These legal regimes conformed quite well to the transsexual paradigm and have been frequently put forward on the medical insistence for a sex change.   It means the liberation of those people wishing a sex change and an operation under a favorable, and often free of charge, official framework and, at the same time, the removal of a set of obstacles inexorably linking the possibility of changing sexes with surgically hormonal transformations.

The second law-making generation, especially during the first decade of this century, goes hand in hand with mutations experienced in the trans movement and its gender-related criticism. This second generation displays highly converging aspects, though implemented with many shortcomings: either to the moderate application of psychiatry or its complete elimination, either the halting of compulsory sterilizations or a different idea concerning the «test» for transsexuality. There is not a single protocol, as far as I know, allowing a change of the civil status without medical support. But this process changes and the medical power weakens. This second law-making generation is linked to a second generation of vindications: the debating core is not so much the access to treatment, but changing the civil status. Therefore, insisting on an identity decision-making also implies that significant physical coercion is not a condition for it. In this case, let´s see the change in the legal language. In the French Law, the judge authorizing the civil status change always bases his/her decision on the medical examination. In the European Law, the European Court of the Rights of Men and Citizens in particular, or in the International Law (2007 Jogjakarta Principles), it is based on the right to private life, non-discrimination and free-use of the body, in short, on human rights legal terms. Obviously, under that regime, undergoing a medical treatment would mean a violation of consent. Therefore, the civil status change progressively replaces access to treatment since Law formalizes the trans issue and replaces it as an identity freedom issue. Law has to take into consideration not only sexual orientation, but also gender orientation.7

The French legislator has followed this way since December 2012 with a bill attempting to simplify the mentioning of sex changing in civil status procedures. This is, evidently, a second generation law in which the wording focuses on rights and freedom of decision, though without eliminating medical intervention and leading, in any case, to the idea that the civil status should reflect the social identity of the person without forcing him/her to follow violent treatments.

I would like to conclude here. While it is true, as I undoubtedly understand, that the ongoing modifications of French laws are not only important but beneficial for they agree on a number of vindications of the trans movement, they still constitute a paradox.

In fact, the legislator considers that changing the civil status -in other words, mentioning the male or female sex- should be a «reflection» of the «gender identity», which is here considered as a purely psychological characteristic. The legislator insists on the need for transpersons to live in the opposite sex to his/her biological sex. That is to say, they should socially live in a sex which is not at all their sex and in a world in which the biological sex is the ultimate truth. Because, according to the legislator´s terms, we should be free to live in a civil «gender»; here, the term gender does not refer to a power relationship dividing the society in two sexes, but to a social identity. Therefore, there should be a modification when mentioning sex in legal documents bearing witness to the person´s identity. In this case, the institutional reasoning is that: 1) gender is in contradiction with sex; 2) «mentioning» sex as a «reflex» of this contradictory identity should be modified; 3) this change is a social act resulting necessarily in a contradiction with a fundamental truth, which is always of a biological nature.

In this regard, I would like to deal again with the paradox put forward at the beginning of my presentation: today, when technology and law allow sex changing, it seems that setting this proposal in motion is more difficult than ever before. Law proposes to take into account the subjective space of the individual´s identity and, in order to implement and provide it with consistency and acknowledgement it proposes a sex modification in the civil status, so that such change will depend on a psychological operation. In this way, it expresses that sex cannot be «really» changed, though identity can be reflected in Law through a fictitious civil status. We should remember the premise exposed at the beginning: transpersons are persons who «belong to a sex, but feel they belong to another one» (9). Therefore, feelings are recognized and the sex is preserved as a fundamental truth. Deep down, law legalizes an identity which is acknowledged as both subjective and valid, though based on a contradiction. It changes the sex identity because it believes that sex cannot be changed, thus reaffirming the idea that while it seems that sex can be changed it really can’t. Based on this belief, a more social gender than ever is invented, as well as a more natural and intangible sex compared to that conceived in other times, when sex changing was really possible.

Notes

  1. I want to express my gratitude to the French Embassy and CENESEX for their cordial invitation to participate in this Havana symposium and, especially, to Bernard Grau for kindly accepting the translation of my presentation into Spanish.
  2. The DSM-5 will be published in May 2013.
  3. For more information on this issue and the «gender thinking» of medical commissions in relation to sex changing in France, see Idan Segev: «Le désenchantement du genre», master degree thesis 1, Université Paris-Diderot-Paris 7, 2012.
  4. For a synthesis of sex and gender thinking in the French «transsexuality clinic», see Laure Bereni, Sébastien Chauvin, Alexandre Jaunait, and Anne Revillard: «Sexe et genre», in Introduction aux études sur le genre, ed. cit., pp. 44-49.
  5. According to Bourdieu, «the illusio means being involved, being trapped in the game and by the game». See Pierre Bourdieu and Loïc Wacquant: Respuestas, por una antropología reflexiva, Grijalbo, Mexico, 1997, p. 80.
  6. For more information on trans criticism, see Pat Califia: Sex Changes. The Politics of the Transgenderism, Cleis Press, San Francisco, 1997; and Susan Stryker and Stephen Whittle (eds.): The Transgender Studies Reader, Routledge, New York, 2006.
  7. For more information on the double perspective in Law and social movements, see Arnaud Alessandrin: «Droit, psychiatrie et corps Trans: un triple débordement», in Arnaud Alessandrin (ed.): Aux frontières du genre, L’Harmattan, Paris, 2012, pp. 141-156.

References

  1. Bereni L, Chauvin S, Jaunait A, Revillard A. Introduction aux études sur le genre. Bruxelles: De Boeck; 2012.

  2. . Scott JW. Gender: A useful category of historical analysis. The American Historical Review 1986; 91(5):1053-1075.

  3. . Chauncey G. Gay New York: Gender, Urban Culture, and the Making of the Gay World, 1890-1940. New York: Basic Books; 1994.

  4. Ned Katz JN. The invention of heterosexuality. Socialist Review 1990 Jan-Mar; 20:7-34.

  5. . Foucault M. Histoire de la sexualité. La volonté de savoir. Paris: Gallimard; 1976.

  6. . Oudshoorn N. Beyond the Natural Body. An Archeology of Sex Hormones. London, New York: Routledge; 1994.

  7. Fausto-Sterling A. Sexing the Body. Gender Politics and the Construction of Sexuality. New York: Basic Books; 2000.

  8. Jordan-Young R. Brain Storm. The Flaws in the Science of Sex Differences. Cambridge: Harvard Unversity Press; 2009.

  9. Benjamin H. The Transsexual Phenomenon. New York: Julian Press; 1966.

  10. Hausman B. Changing Sex. Transsexualism, Technology and the Idea of Gender. Durham, London: Duke University Press; 1995.

  11. Bornstein K. Gender Outlaw. On Men, Women, and the Rest of Us. New York: Routledge; 1994.

  12. Proposition de loi n° 4127 du 11 décembre 2011 visant à la simplification de la procédure de changement de la mention du sexe dans l’état civil, Asamblea Nacional, Francia.

FECHA DE RECEPCIÓN DE ORIGINAL: 23 de abril 2013
FECHA DE APROBACIÓN PARA SU PUBLICACIÓN: 6 de junio 2013

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