Legal-Institutional Sex vs. Gender Identity: Cisnormativity, Cultural Competency and
Caliber of Care
By Alexandra Houle-Dupont
Current American healthcare and identity card policies promote a binary view of
gender that is misrepresentative of the current gender spectrum. A binary view of gender
is flawed, exclusionary, and discriminatory and is therefore unethical. There exist
individuals who occupy spaces outside of the rigid confines of “man” and “woman”.
Genderqueer individuals such as Alex Tuerk have been gaining widespread acceptance
and recognition in the media yet identity card and healthcare policy only recognizes two
genders. The genderqueer community deserves public recognition so as to legitimize and
solidify their gender status. Furthermore, the binary promotes misconceptions about the
transgender
community’s
use
of
Sex
Reassignment
Therapy
(SRT).
These
misconceptions undermine transgender individuals’ status and create unnecessary barriers
compatible identity cards. Moreover, these misconceptions create healthcare inequality.
In order to understand the ethical implications of a binary view of gender we must
first understand the intricacies and nuances in gender terminology. A person’s sex refers
to an individual’s genotype (genetic makeup) and to their phenotype (observable physical
appearance). The three sexes are male, female and intersex. Contrary to sex, gender
identity or psychosocial sex refers to an individual’s sense of being a man, woman or
anything in between. Consequently, not all men are male and not all women are female.
Males that identify as women and females that identify as men are transgender.
Cisgender individual’s gender identity corresponds with their native sex (ie: male men
and female women). 1 Cisnormativity is the assumption and/or belief that all men
are/should be male and all women are/should be female. Genderqueer individuals
occupy the middle space between “man” and “woman”; they do not ascribe to the gender
binary. Under the umbrella of genderqueer individuals there are those who seek gender
neutrality without experiencing gender dysphoria (androgynous), those who identify as
neither a man nor a woman (agender, neutrois, non-gendered, neutral-gendered, nullgender, etc.), those who alternate between two or more genders (gender fluid) and those
1
Crethar, H.C. & Vargas, L. A. (2007). Multicultural intricacies in professional counseling. In J. Gregoire
& C. Jungers (Eds.), The counselor’s companion: What every beginning counselor needs to know.
Mahwah, NJ: Lawrence Erlbaum. p.61.
who identify as other-gendered. 2 Gender identity is highly a personal and constantly
evolving. For example, in “A Gender Not Listed Here”, a 2012 survey, respondents
offered gender identities such as:
“birl”, “Jest me”, “skaneelog”, “twidget”,
“OtherWise”, “gendertreyf”, “trannydyke genderqueer wombat fantastica”, “Best of
Both”, “gender blur”, “Two-Spirit”, “genderfuck”, “rebel”, and “radical”. 3 Clearly,
gender is a complex, evolving and holistic notion.
Genderqueer individuals are a real gender minority and they deserve recognition. In
“What’s So Bad About a Boy Who Wants to Wear a Dress?”, Ruth Padawer cites the
case of Alex Tuerk. Alex has been self-proclaimed as genderqueer since the age of four,
firmly stating that he is both “a boy and a girl”.4 Tuerk displays gender variant behavior:
his parents describe him as “equally passionate about and identified with soccer players
and princesses, superheroes and ballerinas…”.5 It is important to note that Tuerk is not
transgender as he values the gendered pronouns and his native sex by asking to be
referred to as “he”. Despite his use of the male pronoun, Tuerk also enjoys wearing
dresses and playing with Barbie’s but does not identify as a woman: “to Alex’s irritation,
people on the street often mistook him for a girl. ‘I just hate being misunderstood,’ ”.6
Tuerk feels a need to preserve a sense of fluidity in his hobbies as he enjoys activities
both stereotypically associated with boys and girls:
[…] he is simply a boy who sometimes likes to dress and play in
conventionally feminine ways. Some days at home he wears dresses, paints
his fingernails and plays with dolls; other days, he roughhouses, […] rams
his toys together or pretends to be Spider-Man.7
Tuerk is not alone. Padawer states that two to seven percent of boys under the age of
twelve regularly display “cross-gender” behavior, with very few identifying as
transgender. In February of 2011, the National Center for Transgender Equality (NCTE)
2
Stringer, JAC (2009). "GenderQueer and Queer Terms". Educational Materials. Cincinnati: Midwest
Trans & Queer Wellness Initiative. Retrieved 3 May 2012. And "LGBTQ Terms." Neutrois. N.p., n.d. Web.
23 July 2014. <http://neutrois.com>.
3
Harrison, Jack, Jaime Grant, and Jody L. Herman. "A Gender Not Listed Here: Genderqueers, Gender
Rebels, and OtherWise in the National Transgender Discrimination Survey." Harvard Kennedy School
Journal of LGBTQ Policy (2012), P. 20
4
Padawer, Ruth. "What’s So Bad About a Boy Who Wants to Wear a Dress?." New York Times. 4 Aug
2012: n. page. Print.
5
Ibid.
6
Ibid.
7
Padawer, Ruth. "What’s So Bad About a Boy Who Wants to Wear a Dress?." New York Times. 4 Aug
2012: n. page. Print.
paired up with the National Gay and Lesbian Task Force to survey transgender and
genderqueer individuals. The resulting report entitled “Injustice At Every Turn: A Report
on the National Transgender Discrimination Survey” is largely considered the most
comprehensive analysis of transgender and genderqueer issues.8 Of the 6,450 respondents
13% reported being genderqueer. The binary denies recognition to people like Tuerk who
are simply asking to be understood and treated with dignity. Tuerk is misidentified and
uncomfortably questioned about his gender on a daily basis. This poking and prodding at
his identity stems from a lack of education, an issue easily remedied by formal
recognition on the part of our government.
A binary view of gender creates unnecessary barriers for genderqueer as,
unfortunately, a lack of awareness leads to intolerance and discrimination. “A Gender
Not Listed Here”, a study of 860 genderqueer respondents, found that 76% of
genderqueer respondents were unemployed, 32% suffered physical assaults, and 31%
experience harassment by law enforcement. Genderqueer females who participated
experienced harassment in K-12 schools at a rate of 83% and sexual assault at 16%.
These same individuals reported having attempted suicide at a rate of 43% (as compared
to 1.6% for the general population) while 31% experienced police harassment and 25%
reported being “very uncomfortable” seeking police assistance. 9 Clearly, genderqueer
have legitimate reason to fear public assistance and have unfortunate, but justified
reactions to their dire situations.
I was at first verbally assaulted and then physically assaulted in broad
daylight on a crowded street. As a result of the assault I didn’t leave my
house for several weeks unless it was absolutely necessary (due to mental
anguish). I didn’t report the incident but I have since helped start a selfdefense class for trans-men and masculine-identified genderqueers.10
Genderqueer discrimination has trickled down into healthcare settings. Two
anonymous respondents in the “Injustice at Every Turn” survey reported:
8
Ibid. P. 135
McIntosh, John L. 2004. Suicide data page: 2002. Prepared for the American Association of Suicidology.
Compiled from Kochanek, K.D. et al. 2004. Deaths: Final data for 2002. National Vital Statistics Reports
53(5). Hyattsville, MD: National Center for Health Statistics. ; Harrison, Jack, Jaime Grant, and Jody L.
Herman. "A Gender Not Listed Here: Genderqueers, Gender Rebels, and OtherWise in the National
Transgender Discrimination Survey." Harvard Kennedy School Journal of LGBTQ Policy (2012), P. 21
10
Grant, Jaime M., et al. Injustice at every turn: a report of the National Transgender Discrimination
Survey. Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force
(2011). P. 135
9
I rarely tell doctors of my gender identity. It just seems so hard to explain
what “genderqueer” means in a short doctor’s appointment. I also am
reluctant to take the risk of discrimination; I need to be healthy more than
I need to be out to my doctors. I hate making this compromise. But I’m not
quite that brave yet.11
Denial of health care by doctors is the most pressing problem for me.
Finding doctors that will treat, will prescribe, and will even look at you
like a human being rather than a thing has been problematic. I have been
denied care by doctors and major hospitals so much that I now use only
urgent care physician assistants, and I never reveal my gender history.12
Unfortunately, these are not isolated cases. According to the “Injustice at Every Turn”
study, only 28% of respondents being out to all their medical providers. According to “A
Gender Not Listed Here”, the 860 participants experienced medical refusal at a rate of
14% and as a result forwent needed medical care at a rate of 36%.13 Twenty-three percent
of those “out or mostly out to” their medical providers were denied care and 15% who
were “not out or partly out” that were also denied service. Shockingly, the gravity of the
situation supersedes refusal of care. Harassment by an EMT or in an ambulance was
experienced by 8% of those who were “out or mostly out” and by 5% of those who were
“not out of partly out”. Moreover, 2% of those who were “out or mostly out and 1% of
those who were “not out or partly out” were physically attacked and/or assaulted in a
hospital. Clearly, genderqueer individuals are avoiding healthcare settings for legitimate
reasons as a result of unnecessary circumstances.
In theory, a binary view of gender recognizes transgender individuals as they, in
the words of Alex Tuerks’s father, “preserve the traditional binary gender division: born
in one and belonging in the other”. 14 A binary view of gender combined with a
cisnormativity, however, has limited the understanding of transgender gender identity and
given rise to discrimination. The current American healthcare system and identity card
policy promote cisnormativity and a binary view of gender. We fundamentally believe
that one is either entirely a man or entirely a woman. Thus, Sex Reassignment Therapy
(SRT) or “gender-confirming therapy” is seen as essential to transgender individuals. If
11
Ibid. P. 75
Ibid.
13
Harrison, Jack, Jaime Grant, and Jody L. Herman. "A Gender Not Listed Here: Genderqueers, Gender
Rebels, and OtherWise in the National Transgender Discrimination Survey." Harvard Kennedy School
Journal of LGBTQ Policy (2012), P. 21
14
Padawer, Ruth. "What’s So Bad About a Boy Who Wants to Wear a Dress?." New York Times. 4 Aug
2012: n. page. Print.
12
you identify as a woman, then your whole body should be female, right?15 Wrong. A
binary view of gender promotes the fallacy that all transgender individuals undergo all
stages of SRT. The reality is that most transgender individuals value some aspects of their
native sex and body. In fact, according to the “Injustice at Every Turn” survey, only 2%
of transgender men and 20% of transgender women undergo SRT. Furthermore, genital
reconstructive surgeries are performed on less than one in five transwomen and less than
one in twenty transmen. In fact, as of 2012 only six identified surgeons in the United
States performed genital reconstructive surgery. 16 Most transgender individuals simply
undergo hormone therapy. According to the same study, 62% of respondents have had
hormone therapy and 23% of respondents said they hope to have it in the future. 17
Through cisnormative eyes very few transpeople have truly and authentically transitioned
genders.
The aforementioned misconception has grave consequences when it comes to
identity card policy. Gender is perceived as essential to classification; “M” and “F” boxes
are included on almost every identification document (passports, birth certificates,
driver’s licenses, etc.) even when it is not necessary. Policies regarding changing one’s
gender on identity cards vary highly from institution to institution while certain
institutions do not even recognize gender change as a possibility. In “Normal Life:
Administrative Violence, Critical Trans Politics, and the Limits of the Law”, Dean Spade
points out the situation for transgender individuals in New York in the late nineties.
Spade highlights how, on one hand, changes to birth certificates and to social security
cards require SRT while, on the other hand, changes to driver’s licenses only require a
doctor’s letter. Unfortunately the situation is even less regulated when it comes to official
name changes and Medicaid, as neither have official policies regarding sex changes. In
these cases, the decision is left to a clerk who might have little to no knowledge of gender
identity.18 On a national level the situation has not improved significantly since the late
15
Stroumsa, Daphna. "The State of Transgender Health Care." American Journal of Public Health 104.3
(2014): 1-14. Medscape. Web. 23 July 2014. P. 2
16
Ibid. P. 4
17
Grant, Jaime M., et al. Injustice at every turn: a report of the National Transgender Discrimination
Survey. Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force
(2011).
18
Spade, Dean. Normal Life: Administrative Violence, Critical Trans Politics, And The Limits of Law.
Brooklyn, NY: South End Press, 2011. P. 140
nineties. There are currently sixteen states whose Department of Motor Vehicles or DMV
policies still require SRT to change sex (Alabama, Alaska, Georgia, Idaho, Indiana,
Kentucky, Louisiana, Missouri, Nebraska, New Hampshire, Oklahoma, Oregon,
Pennsylvania, South Dakota, Virginia, and Wyoming) while ten other states have yet to
write policies on the issue (Arkansas, Iowa, Kansas, Minnesota, Mississippi, North
Dakota, South Carolina, Tennessee, and Texas). 19 In the aforementioned “Injustice At
Every Turn” study, Grant, Mottet and Tanis studied, amongst other things, the
percentages of transgender people unable to change gender on important identification
documents. Statistics indicate that 41% were unable to update driver’s licenses, whereas
the numbers were 51% for Social Security records and 74% for birth certificates. Only
21% have been able to change their gender on all of their documents with 33% having
not updated any identity documents or records. 20 Clearly, gender change polices are
inconsistent and this inconsistence reflects the lack of awareness and lack of respect for
genderqueer rights.
Imagine you are a MTF transwoman living in Kansas who has recently
transitioned only using hormone therapy. One friday night you decide to go out to a
nightclub with some friends. Upon arriving, the bouncer asks you for your driver’s
license, the most common form of ID. Unfortunately, the DMV in Kansas does not have
a policy on changing gender, so your driver’s license has an “M” on it while your cocktail
dress and high heels indicate otherwise. The bouncer looks at your driver’s license and
begins to fume: “What is this, a fake? Who lent it to you? Your brother?” In hushed tones
you try and explain your situation, thus forcing you to reveal that you are transgender,
something that you may or may not wish to keep private. As a result your privacy has
been invaded, you have potentially been exposed to danger, you have been harassed and
most probably embarrassed. Clearly, having documentation that is inconsistent with one’s
physical appearance and/or gender identity infringes on transgender individuals’ rights.
Unfortunately, such situations are all too real. In “Transgender ID Cards: Are The 'M'
National Center for Transgender Equality (NCTE). 2007. Driver’s license policies by state. Washington,
DC: National Center for Transgender Equality
20
Grant, Jaime M., et al. Injustice at every turn: A Report of the National Transgender Discrimination
Survey. Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force
(2011).
19
And 'F' Outdated?”, Lisa Leff cites the account of Chicago native and transwoman
Lauren Grey:
Although she had been living as a woman for months […] Grey's ID still
identified her as male, puzzling the salesmen and prompting
uncomfortable questions. They are like, ‘This doesn't match.’ Then you
have to go into the story: ‘I was born male, but now I'm not,’ ” said Grey,
38, […] "And they are like, `What does that mean?' It was super
embarrassing." Similarly awkward conversations ensued when she tried to
rent an apartment, went to bars or was taken out of airport security lines
for inspection. 21
Unfortunately, Ms. Grey is fortunate in comparison with her peers. According to the
“Injustice At Every Turn” study, when transgender individuals presented ID that did not
match their gender identity and/or appearance 40% were harassed, 15% were asked to
leave the venue and 3% were attacked or assaulted.22 Transgender individuals’ privacy is
constantly violated as they are forced to reveal their trans identity when completing daily
tasks. In order to lead regular lives, transgender individuals must subject themselves to
humiliating situations. Transgender individuals have the right to choose the extent of
information they want to reveal. Transmen and transwomen should have the right to
decide which people know of their native sex, which people see them for their desired
gender, and which people know they are transgender.
The right to autonomy is a fundamental bioethical pillar as it allows individuals to
make choices without being coerced.23 As previously stated, few transgender individuals
feel the need to undergo complete SRT, yet sixteen states still require SRT to change
gender on identity cards and ten have not even begun to acknowledge the possibility of
gender change. It then stands to ground that certain individuals feel coerced into
undergoing SRT in order to obtain representative ID and have their cross-gender
identification seen as legitimate. Moreover, inconsistent identity documents lead to
humiliating and uncomfortable situations for transgender individuals that infringe on their
right to privacy. Such situations essentially limit transgender people’s autonomy as they
21
Leff, Lisa. Transgender ID Cards: Are The 'M' And 'F' Outdated? . 2013. Web.
Grant, Jaime M., et al. Injustice at every turn: a report of the National Transgender Discrimination
Survey. Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force
(2011).
23
Deci, E., & Ryan, R. (Eds.), (2002). Handbook of self-determination research. Rochester, NY:
University of Rochester Press.
22
avoid situations that require identification. Gender non-conformity should not create
barriers for transgender people, especially with regard to mundane tasks such as using a
library card or retrieving social security information. Clearly, the status quo of identity
card policy infringes on autonomy.
Widespread misconceptions about the trans-community’s use of SRT have also
resulted in lower standard of care for transgender people. In “Trans Man Denied Cancer
Treatment; Now Feds Say It’s Illegal”, Susan Donaldson James cites the case of New
Yorker Jay Kallio. Formerly Joy Kallio, Jay became a transman at the age of fifty.
Stating that he accepted his native female sex Kallio decided to only undergo hormone
treatment. Unfortunately, Kallio developed kidney failure, rheumatoid arthritis and,
eventually, breast cancer. During a breast exam, Kallio’s physician discovered a
canceroous lump. The physician, however, withheld the information from Kallio because
he was shocked that Kallio’s gender identity was inconsistent with his identity documents
and his body. Kallio’s physician never informed Jay of the lump and Kallio was only
informed many months later by fluke from a lab technician. The doctor’s reaction
delayed chemotherapy, allowing the cancer to take its toll. Kallio is not the first to
experience such discrimination. According to the “Injustice at Every Turn: A Report of
the National Transgender Discrimination Survey”, 19% of respondents reported “being
refused care due to their transgender or gender non-conforming status” and 28% claimed
to have experienced harassment in medical settings. Another study conducted at one of
the largest transgender healthcare facilities in Massachusetts reported that 19.4% of their
2,635 participants report health discrimination. 24 As a result, 73% of transgender
individuals avoid healthcare settings because of a history or fear of stigma, according to
The Lambda Legal Health Care Fairness Survey (2010).25 Flagrant discrimination of this
kind is a violation of the justice principle, one of the pillars of Bioethics.
The status quo on identity card policy and in healthcare promotes the binary as
well as cisnormativity. As a result, the status quo infringes on transgender and
genderqueer individuals’ right to privacy, right to autonomy and right to a good standard
24
Reisner, Sari L. "Transgender Health Disparities: Comparing Full Cohort and Nested Matched-Pair
Study Designs in a Community Health Center." LGBT Health 2 (2014) P. 3
25
Lambda Legal: When Healthcare Isn’t Caring: Lambda Legal’s Survey on Discrimination Against LGBT
People and People Living with HIV 2010. Available at www.lambda legal.org/publications/when-healthcare-isnt-caring (last accessed November 6, 2013).
of care. The World Health Organization identified the eradication of discrimination and
prejudice related to sexual minorities as a key strategy needed for the promotion of sexual
health worldwide. 26 First, we should federally mandate that all states have a policy
regarding changing gender on all forms of ID cards and gender change should only
require a doctor’s letter. This sole requirement for gender change is viable and is working
in other parts of the world. In Ontario, for example, a ruling passed on April 11th, 2012 by
the Human Rights Tribunal of Ontario deemed that requiring proof of SRT was
discriminatory and that such a requirement reinforced transgender stereotypes.27
A physician’s letter is only needed letter to testify that the individual has in fact
experienced cross-gender identification. Second, as per Shukla’s recommendation, we
should add a genderqueer option and a “fill-in-the-blank” option on all ID cards for
individuals who do not fit into the binary.28 By instituting such options on identity cards
and surveys, we would force individuals to confront and accept genderqueer individuals;
this would show to the greater American public that discriminating or harassing gender
minorities is unacceptable. A policy of this nature would give greater respect to
genderqueer individuals and be a stepping-stone towards reducing stigma surrounding
gender non-conformism.
Works Cited
26
Pan American Health Organization, World Health Organi- zation: Promotion of sexual health:
Recommendations for action. Proceedings of a Regional Consultation, May 19– 22, 2000, Antigua,
Guatemala.
27
Anonymous "Legal sex change doesn't require surgery, tribunal says." CBC News Toronto. CBC News,
19 Apr 2012.
28
Shukla, Vipul et al. "Barriers to Healthcare in the Transgender Community: A Case Report." LGBT
Health 2 (2014): P. 3
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