# 069
The Intellectual Properties of Gender1
“You may not believe in gender, but gender believes in you,”
-Jennifer, quoted in Cyborgs, Gender, Performance
I.
Property and Performativity.................................................................................................... 4
A. Performance Theory: An Introduction ................................................................................ 4
1. Between Art and Identity ................................................................................................ 4
2. Parody and Property........................................................................................................ 7
B. The Architecture of Gender Identity ................................................................................. 13
1. The Fictive Unity of Gender, Sex, and Desire .............................................................. 13
2. Performing Gender Expression ..................................................................................... 17
3. Resistant Modes of Reproduction .................................................................................. 19
II. The Creation, Expression, and Commodification of Gender .................................................. 22
A. Gender Expression as Pastiche ......................................................................................... 22
B. Creating Gender in Cyberspace......................................................................................... 25
C. Revising the Material Body .............................................................................................. 34
Part III: Some Normative Conclusions ........................................................................................ 36
A. Rethinking the Protection of Gender ................................................................................ 37
In the past several years, humanities scholarship has focused quite extensively on performance
theory to explain many aspects of identity and social organization across time and space. Today,
performance theory has actively become inculcated in large number of projects focusing on social
inequalities, particularly a substantial number of projects dealing with race, gender, and sexual
orientation. Its rich body of insight has helped explore how social norms and codes operate to govern
outward expression—indeed, everything within human behavior to dress, speech, articulation, and other
mannerisms. In turn, by exploring the external markers of identity, performance theory has also helped to
deconstruct the internal aspects of identity. It has helped us to think of identity as something created and
constructed by human behavior and expression, rather than something that exists internally separate and
apart from expression.
Yet, despite the rich accounts that performance theory offers, law and legal theory—the principal
devices of social change—have almost completely failed to grapple with its rich variety of insights
regarding identity.2 Performance studies has permeated almost every other area of study—science,
Please do not quote, cite, or distribute without author’s permission. This draft is too early for wide circulation.
There are, of course, some key exceptions to this observation, though none attempt to link performativity with
intellectual property-based theories of expression, but focus on sexual harassment, race, sexual orientation, and
1
2
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technology, the humanities—but has largely failed to grapple with the power of creating social change
through common law and legislation.3 The end result is the development of two, relatively vast standalone regimes in silent conflict with one another, one that argues the fictive dimensions of identity, and
another which largely requires the existence of these identities—both virtual and real—for its regulatory
functions to function successfully, consequently resulting in two coexisting regimes which are silenced by
the failures of each to acknowledge and explore the limits and possibilities of the other.
Eventually, however, it becomes the task of legal scholarship to grapple with the performative
dimensions of its own regime, and to explore how these dimensions affect countless areas of human
organization and community. In this paper, I attempt to introduce a necessary conversation between these
two arenas through a sustained analysis of performativity as it relates to the categorization of gender
through the prisms of real space and cyberspace. Here, I focus on the performative dimensions of gender,
and argue that this suggest a radical need to rethink gender and its legal categories; instead of thinking of
gender exclusively as a type of identity, I argue that is more akin to intellectual property—permeable,
unfixed, malleable, and ultimately--commodifiable. Here, I seek to bring together two seemingly
discordant regimes and explore the possibilities of liberating feminism through exploring gender as an
intangible commodity instead of a fixed and stable identity. I argue that thinking through gender as a
performance, if taken seriously, suggests that gender is like a kind of property, in the same way that
Cheryl Harris argued so forcefully years ago with respect to race.
In making this argument, I rely heavily on Judith Butler’s theory of gender performativity, and
link her work to the lens of intellectual property. For Butler, there is no cognizable gender identity behind
its external expressions, social constructions and expectations; rather, “identity is performatively
constituted by the very ‘expressions’ that are said to be its results.”4 Gender, instead, does not involve an
internal identity, but instead is made up of a series of external, ritualized performances, that, over time,
help to construct an image of gender as something that is intrinsically tied to sex. The impact of Butler’s
theory of gender cannot be understated. Butler’s theory, I shall argue, when viewed through the lens of
intellectual property, offers the law a host of possibilities for revolutionizing gender categories.
As I will show, gender performativity—if taken seriously—allows us to reimagine the
relationship between law, inequality, and intellectual property. For an account of gender performativity,
gender. See, e.g, Katherine M. Franke, What’s Wrong With Sexual Harassment, 49 Stan. L. Rev. 691 (1997);
Expressive Idenitty: Recuperating Dissent For Equality, 35 Harv. C.R.-C.L. Rev. 1 (2000); Patriarchy is such a
Drag, 108 Harv. L. Rev. 1973 (1995); Ariela Gross, Beyond Black and White: Cultural Approaches to Race and
Slavery, 101 Colum. L. Rev. 640 (2001); Kenji Yoshino, Covering, 111 Yale L. J. 769 (2002); Devon Carbado and
Mitu Gulati, The Law and Economics of Critical Race Theory, 112 Yale L. J. 1757 (2003).
3
As Kath Weston writes, “like wildfire, the concept of performativity jumped disciplines, transforming the
landscape in fields as diverse as literary criticism, sociology, and legal studies.” Kath Weston, GENDER IN REAL
TIME at 58.
4
Butler, GENDER TROUBLE at 25.
2
suggests that gender is not something natural, tangible, or fixed; but constitutes a sort of expression that is
deeply intangible, and suffused through cultural regulation and social norms rather than biological
imperative. While other accounts of gender have also echoed these observations, I argue that an
integrated account of performativity offers us something more, and something deeply overlooked:
property. Like traditional accounts of property, gender, instead can be viewed as a commodity that need
not be natural or fixed, but instead, can be bought, sold, learned, purchased, and exemplified over time to
suggest a fixed essence. Yet, quite unlike other forms of property, gender lacks a tangible, sovereign
border—instead, it constitutes an intangible essence, an ongoing performance—in much the same way as
traditional formulations of intellectual property. In sum, this paper attempts, therefore, to explore how
gender performativity offers us new ways of looking at the relationship between intellectual property and
gender.
As I will argue, accounts of gender performativity move gender from a set of cultural
expectations—and instead offers it as a series of intangible forms of expression, an essence that is not
natural or fixed, but a mutable, highly expressive and transitory form of property. When gender becomes
viewed as an intangible commodity, rather than a set of expectations mapped onto the vagaries of
biological identity, we see an entirely new host of possibilities for gender relations to operate outside of
the boundaries of law’s fixedness on identity.
My argument in this Essay will proceed in three main parts. Part I provides an introduction to
performance studies, and its overlooked relationship to property, focusing specifically on Judith Butler’s
theory of gender performativity. Part II offers a new theory of the relationships between gender and
intellectual property. Here, I focus on three main areas that demonstrate the intangible essences of gender
as an expressive property, rather than a fixed set of presumptions linked to biology. These areas extend
from cyberspace into real space--parodic representation, identity “passing” in cyberspace, and surgical
revision—and each illuminate a particular aspect of gender as an intangible property. In Part III, I turn to
the law’s response, both imagined and real. Here, I explore the possibilities and limitations of employing
theories of gender performativity in the law, focusing particularly on two main areas: commodification
and discrimination. Here, I explore how an account of gender as a set of intangible properties can be
actively linked to the flourishment of markets, both tangible and intangible, that further capitalize on
gender’s proprietary elements; and suggest the need to rethink categories of discrimination and the law as
tools for governing and protecting gender expression, rather than gender identity. Finally, in this section,
I also explore real-life incorporations of gender performativity in the law, and explain how a full account
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of the intellectual properties of gender offers us a host of new possibilities for evaluating the efficacy of
preexisting constructions of gender discrimination.5
I.
Property and Performativity
A.
Performance Theory: An Introduction
1. Between Art and Identity
Generally, when we think of a “performance,” we tend to conjure up an image of a scripted set of
statements, actions, and activities that are fully anticipated, planned and enacted down to every last
detail—stage, costume, antics, language--with an audience in rapt attention. We imagine a
“performance” to be something separate from everyday life and behavior: we tend to think of actors,
stepping outside of their everyday roles as individual beings, and adopting particular identities that are
assertively divorced from their own. The beauty of the stage is premised on this artful separation between
art and life; it offers us a world of escape and freedom in fantasy. The actors are endowed with the ability
to transform their identities by adopting an on-stage presence; the audience is asked to become a partner
complicit in the formation of a fantasy. And, the actor is employed, partly for the purpose of facilitating
this separation; and the theatre becomes the site at which real life becomes transgressed; fiction
transgresses fact; fantasy becomes the result.
Performance theory at once, both supplements and fractures this understanding in multiple ways.
At its most basic level, performance theory actively distances itself from the idea of a clear delineation
between the performances of life and the performances of art; and argues instead that everyday life and
activites both capture and enable elements that bear a stark resemblance to theatrical rendition and
expression. Regulatory systems—norms, law, code—operate in mystical ways. They provide a silent
background upon which the speech becomes a performance, but they also enable this transition. Just as
the performer struggles to embody an ideal, the ideal is governed by a rapt serious of technological, legal,
and cultural constraints. In this way, these regimes operate as a stage, but also a silent translator of the
performance—helping the audience to guide its receipt of the meaning and difference between the self
and the ideal.
On a more basic level, performance theory complicates the fractured distinctions between art and
life by also offering a parallel disruption of the differences between speech and conduct. Perhaps the
most well-known contributor to the development of performance theory is J.L. Austin, whose work, How
to Do things With Words, centrally argued the existence of the “performative utterance,” which
5
See trans/gender reass; right of publicity (drag); and gender fluidity on the Net.
4
constitutes a basic cornerstone of performance studies.6 Importantly, Austin argues that the performative
utterance was more than simply a set of words; instead, he argues that many declarations accompany acts,
and, in doing so, actually become acts themselves, indivorceable from their original position as words
alone. For Austin, there are two kinds of language: language that is declarative or merely descriptive, or
language that is performative in the sense that its expression or verbalization actually accomplishes a
particular act, such as one’s marriage vows.7 For Austin, the success of failure or a performative
utterance must be measured, not by the ordinary boundaries of truth or falsity that are used to govern
language, but instead by the success or failure of the given act in question.8 Meaning, therefore, is
comprised of this conflation between speech and conduct; as one theorist notes, “[t]o put it bluntly,
expression dictates meaning.”9
In sum, Austin suggests that language is in and of itself a performative endeavor; thus, taken to its
logical extent, everything that we see as “real” and embodied, or material, is actually indivorceably linked
to the linguistic structures that create and compel performances and expression. Conflating speech and
conduct leads us to a host of interesting questions: if all speech is conduct, and all conduct is speech, then
how should we view laws governing expression? Are they conduct-based, instead? Or should laws that
govern conduct force us to consider whether we are regulating the expressive dimensions of an act, rather
than conduct alone? Moreover, how much of a role does the audience play in receiving meaning—and
does this derive from the expression, the conduct, or both?
Moreover, performances function as vital acts of transfer, transmitting social knowledge,
memory, and a sense of identity through reiterated, or what Richard Schechner has called ‘twice-behaved
behavior.”10 The term ‘performance’ denotes the object to be studied in performance—the ritual, play,
dance, political rally, etc. But it also connotes the methodological lens that empowers and directs
scholars to analyze these particular events and others as performance.11 In other words, by studying the
behavior, we can gain a greater sense of the dialogic process that operates between speech and conduct,
and between the self and the audience. For example, later scholars, notably John R. Searle among them,
took up Austin’s conflation of acts and speech, and instead argued that all language, not just a few chosen
utterances, involved a deeply performative aspect, which he termed “speech acts.” Rather than focusing
Many studies of performance theory also cite to “ The presentation of self in everyday life,” a work by Erving
Goffman in 1959, as another key foundation. “Performance” Goffman defines as “all the activity of an individual
which occurs during a period marked by his continuous presence before a particular set of observers and which has
some influence on the observers.” For Marvin Carlson, an expert on performance studies, Goffman’s definition
could serve to describe “much of the artistic activity that has appeared in recent years under the title of
‘performance.’” Marvin Carlson, PERFORMANCE at 37-38.
7
See Carlson, PERFORMANCE, at 60.
8
Marvin Carlson, PERFORMANCE, pp.60-61.
9
Theresa Senft, Cyborgs, Gender, Performance, at www.echonyc.com/~janedoe/writing/performative.html.
10
Diana Taylor, THE ARCHIVE AND THE REPERTOIRE at 2.
11
Diana Taylor, The ARCHIVE AND THE REPOIRTOIRE at 3.
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solely on the utterance itself, Searle exhorted theorists to look beyond, and to recognize the powerful role
context plays in constructing importance of the content of the act, the intentions of the speaker, and the
presumed or actual effect of the act upon the audience.12 In doing so, Searle recognized the importance of
exploring language as a rule-governed form of behavior, always intimately connected with action and
conduct.13 As a result of Searle’s work, emphasis shifted away from exploring the connotations of the
statement alone, and instead towards recognizing the intent of the speaker, the audience, and the role of
context and norms in creating a recognized performance.14 The regulatory norms governing language, its
expressions, and its silencing, played powerful roles in exploring the intersection of performance and
ordinary life and behavior.
As Searle noted, theories of performativity also carry implicitly political dimensions as well,
because they force us to recognize how language provides a point of intersection between speech and
conduct. This intersection, as well, serves as a sort of border and site of negotiation between the audience
and the self.15 Even if the nature of a performance differs—according to the one who is performing and
the audience’s recognition of language, some performance scholars, namely ethnolinguist Richard
Bauman, has argued that it always requires a powerful form of double consciousness within the self, one:
through which the actual execution of an action is placed in mental
comparison with a potential, an ideal, or a remembered original model of
that action. Normally, this comparison is made by an observer of the
action – the theatre public, the school teacher, the scientist – but the
double consciousness, the external observation, is what is most central.
An athlete, for example, may be aware of his own performance, placing
it against a mental standard. Performance is always performance for
someone, some audience that recognizes and validates it as performance
even when, as is occasionally the case, that audience is the self.16
Here, Bauman’s idea suggests that a performance produces a consciousness that requires the performer to
constantly struggle to embody the ideal that is suggested.17 The yearn to perfectly express the ideal
creates a constant battle of mediation between the self and the ideal; always striving towards a perfect
embodiment of the latter in spite of the limitations of the former. Moreover, the role of the audience and
preordained social norms play a key role in “marking” certain activities as performances and actively
distinguishing them from other types of activities. The audience, as well as the speaker, receives and
constructs through the lens of their own experiences and expectations. But the important point is that this
construction of meaning occurs in the same way as a traditional, ‘theatrical’ performance; the only
12
Marvin Carlson, Performance, p.61
Marvin Carlson, Performance, p.61
14
Marvin Carlson, Performance, pp.61-62
15
Carlson, Performance at 20.
16
Marvin Carlson, Performance, pp.5-6
17
Marvin Carlson, Performance, p. 6
13
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difference is that the stage is a stage of simple everyday reality; and the script is unwritten, best judged by
the same cultural codes and expectations as any other performance.
The dimensions of this imperative towards double consciousness produce an interesting
interaction between the audience and the self that is consistently played out within the performance itself.
Some theorists focus on the incomplete nature of the performance, arguing that a performer is always
yearning to emulate some ideal through bodily appropriation. Still others, however, focus on the precise
nature of the bodily appropriation, and argue that the disjunction between self and ideal represents the
attempt to embody a particular ideal, as a profound site for revolutionary resistance and revision. Here,
some theorists claim that performance realigns the subject and object in new and inventive ways; for
Randy Martin, author of Performance as a Political Act, a performing body is consistently employed in
resistance to the “symbolic,” which comprises a series of governing acts that attempt to impose
monolithic structures on the dynamic, and constantly shifting, nature of the body.18 As a result, he argues
that performances create “interventions, ruptures in the conditions of reproduction of dominance.”19
These ruptures demonstrate a world of possibilities for challenging and changing the social meaning of
the ideal performance.
2. Parody and Property
This altogether brief explication of performativity lends several key insights:
first, performance theory suggests the need for revising the delineated boundaries between speech and
conduct. Second, performance theory suggests a need to revisit and examine the complex codes and
norms (legal, technological, cultural) that help us contextualize meaning through a focus on the body and
its performing potential. Third, as some theorists have pointed out, a performance itself can be a site for
either resistance or conformity; much depends on the intention of the speaker, the reception of the
audience, and the context in which the performance is offered. Finally, and perhaps most importantly,
performance theory suggests a sort of radical discontinuity between language and the body; the intangible
essence of a performance is manifested through a particular bodily appropriation, a performance; in this
sense, all language becomes a series of activities, a set of “doings,” a process of action and reaction that
embodies behavior, just as it does semiotic language.
In sum, performance theory suggests a sort of rivalrous relationship between the body and the
word; the two are mutually interdependent, but they are also deeply fraught with possibilities for internal
rebellion. Rebellion and resistance, therefore, takes the form of unmaking and unraveling the desire to
emulate an ideal—by reworking performances, encoding them with specific and new understandings and
18
19
Marvin Carlson, Performance at 141.
Carlson, quoting at 141.
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expression. In many cases, these expressions take the form of parody, satire, or pastiche—all of which
aim to offer subversive readings of the same script. Parody, which stems from the term parodeia, is best
described as “a song sung alongside another.”20 The idea of a parody is to use some elements from a prior
author’s work in order to reinterpret, and subvert the indended meaning by offering a commentary on the
original.21 “The rhapsodists who strolled from town to town to chant the poems of Homer, writes author
Isaac D’Israeli, “were immediately followed by another set of strollers—buffoons who made the
audiences merry by the burlesque turn which they gave to the solemn strains.”22
Despite the complex role that law plays in regulating and therefore subsidizing certain speech
over others, it is important to recognize how it enables certain commentaries and certain revolutionary
resistances to exist. Each dimension of parody prises the original from the new commentary;
demonstrating how law implicitly subsidizes certain types of speech, and therefore imbues them with a
proprietary quality. In this sense, parodic representations highlight the intangible possibilities of
expression, but they also signify how particular kinds of expression can be owned and accorded a
particularly powerful sovereignty that permits an owner to exclude others from utilizing them.
Here, law can act in powerful ways to either constrain, silence, or enable these kinds of
commentary. Intellectual property laws, for example, contain implicit defenses for some kinds of parodic
commentary, but not others, drawing a firm line between parody and satire. In Campbell v. Acuff-Rose,
the Supreme Court recognized the importance of drawing a distinction between the two, arguing that if
“the commentary has no critical bearing on the substance or style of the original composition, which the
alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the
claim to fairness in borrowing from another’s work diminishes accordingly.”23 Instead, the court writes
that parody inherently needs to rely on an original to make its point; but satire does not, and therefore
needs a greater degree of justification for its borrowing of content.24
Parody thus allows for the creation of properties that suggest the nonexclusivity of behavior.
Rather than the creator controlling the meaning and representation of a given text, parody instead suggests
the existence of another, alternative reading. In this way, parody enables properties to become
nonexclusive, nonsovereign entities. The audience actively participates in remaking the original
performance, imbuing it with a new, particularly expressive quality. Through the law’s protection of
parody, property becomes a dialogue, instead of a one-way transmission of meaning.
20
Campbell v. Acuff-Rose, 972 F.2d at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975).
See Campbell, 510 U.S. at 569 (1994).
22
D’Israeli, Curiousities of Literature, quoted in D.MacDonald, Parodies: An Anthology from Chaucer to
Beerbohm—and After 562 (1960), in L.L. Bean v. Drake Publishers, 811 F.2d 26 (1 st Cir. 1987).
23
Campbell, 510 U.S. at 583.
24
Id.
21
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Indeed, the laws of intellectual property premise their very existence on carving out a protective
space for such commentaries to exist in order to ensure that intellectual property retains a non-exclusive,
non-sovereign character. Moreover, parody offers us a unique linguistic prism to view the relationship
between commodities and social relationships; to explain its dimensions further, I draw on Michel
Pecheux, who offers us a tri-partite model that helps to explain and contextualize parody and its
relationship to audience participation. Pecheux, like many linguistic theorists, focuses on the dynamic by
which individuals contest the social meaning of language. Pecheux offers us a process of challenging and
changing meaning in scientific discourse that can be easily applied to the discourse of gender and
performance. In doing so, he helps us to understand how parody transgresses traditional boundaries
between property and speech.
Pecheux’s work is, to be fair, exceptionally dense and preoccupied with the dynamics of class
struggle. Yet his core insights apply to critiques of language and performance, and can be accepted and
understood without needing to adopt an assertively Marxist premise. His work is particularly concerned
with how individuals occupy, oppose, or challenge the process of ideological construction. For Pecheux,
individuals can occupy one of three possible positions, or modalities—the “good subject” (who accepts
social ordering without challenge); the “bad subject” (who opposes and denies the dominant ideological
formation, but inadvertently confirms the power of the dominant ideology by accepting the “evidentness
of meaning” that ideology offers); and a third position, which Pecheux terms “disidentification,” which
involves an individual who attempts not just the abolition of the ideology, but tries to transform and
displace the ideological structure of meaning itself.25 Here, as one scholar describes it, “disidentification
requires a transformation or displacement in the way the subject is interpellated by ideology—it is not just
a matter of people changing, but of also changes in power relations, in the ways discourses and
institutions produce (define and confine) social subjects.”26
Pecheux’s tripartite dynamic offers us perhaps the richest model upon which to analyze the
dynamics of parody and property. In Pecheux’s first modality, “the good subject,” can be viewed as a
person who receives meaning without complication; he or she interprets the codes of gender offered by
advertisers without critical reflection or contestation; receiving and constructing his or her identity blindly
in accordance with the proffered construct of meaning offered by the language of the advertisement. He
or she might be thought to be the ideal consumer, a person who receives meaning and constructs his or
her identity around particular commodities in order to reflect a particular identification with a sign or
message.27 As Judith Butler writes, “[t]he imaginary process of identification must itself be understood as
a double movement in citing the symbolic, an identification (re)invokes and (re)invests the symbolic law;
25
See http://www.english.ilstu.edu/strickland/495/ideology.html.
Id.
27
MICHEL PECHEUX, LANGUAGE, SEMANTICS AND IDEOLOGY 157 (1981).
26
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seeks recourse to it as a constituting authority that precedes its imaginary instancing.”28 By adopting the
identity that is recommended by science, the person fulfills and confirms basic expectations of gender
behavior and expression.
In Pecheux’s second modality, the discourse of the “bad subject,” Pecheux turns to the process by
which some individuals “turn against” the proffered meaning by taking up a particular position which
consists of a separation with the proffered meaning. “In short,” Pecheux writes, “the subject, a ‘bad
subject’, a ‘trouble-maker’, counteridentifies with the discursive formation imposed on him. . .which
produces the philosophical and political forms of the discourse-against (i.e., counterdiscourse). . .”29
Under this view, the individual struggles against the suggested interpretation by challenging the
semblance of truth offered by the proffered construction; by offering a “negative sign, reversed in its own
terrain.”30
In this second modality, the process of offering and rejecting social meaning is relatively selfevident. As Pecheux writes, “[n]othing could be simpler than to counterpose freely accepted acceptance
(first modality) to rejection (second modality) and to see in this ‘antagonism’ the ‘secret’ of politics and
scientific work.”31 But there is a problem with strategies premised on this second modality, for this
discourse “continues to determine the subject’s identification or counter-identification with a discursive
formulation in which he is supplied with the evidentness of meaning, whether he accepts or rejects it.”32
Simply put, the meaning—the inscription of meaning in a particular formulation—is always present, a
seemingly obvious truth that is offered and then rejected, without a deeper and more structural challenge
to the meaning system as a whole.
Pecheux suggests that there is no true escape from the system of social meaning that this
construction of discourse offers us, irrespective of whether we identify or counter-identify with the
system. Echoing this view, Judith Butler writes, “the failure or refusal to reiterate the law does not in
itself change the structure of the demand that the law makes. . . the law, the symbolic, is left intact, even
as its authority to compel strict compliance with the ‘positions’ it lays out is called into question.”33
While Butler is writing about gender performance, her point is applicable to the broader study of language
itself: there is no complete escape from the totalizing system of language, any direct rejection of the
system still remains complicit in its control. When we apply this modality to the phenomenon of gender
performance, we might imagine a person who openly states his or her disagreement with the codes of
gender, but fails to alter their own performance of gender. Within this dynamic, the actual meaning of the
28
Butler, supra note 12, at 108.
PECHEUX, supra note 212, at 157.
Id. Some examples of this strategy leaves linguistic traces, “what you call the oil crisis,” or “your social sciences,” or “your Virgin Mary” Id.
31
Id.
32
PECHEUX, supra note 212, at 158.
33
BUTLER, supra note 12, at 106.
29
30
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code stays relatively static—a person chooses to either adhere to the given meaning of the cultures of
gender or to oppose it—but the ultimate structure of meaning remains—unchallenged, unchanged, firmly
fixed in place.
In contrast to the second modality, Pecheux’s contribution lies in his isolation of the third
modality, the modality of disidentification. This modality operates non-subjectively; it operates to
challenge the evidentness of the “meanings” that are offered by the preferred interpretation. In doing so,
this approach abolishes the concept of the reader as a passive receptacle of meaning and meaning-making:
In reality, the operation of this ‘third modality’ constitutes a working
(transformation-displacement) of the subject-form and not just its
abolition. In other words, this disidentification effect is paradoxically
realized by a subjective process of appropriation of scientific concepts
and identification with the political organizations ‘of a new type.’
Ideology—‘eternal’ as a category, i.e., as the process of interpellation of
individuals as subjects—does not disappear, but operates as it were in
reverse, i.,e. on and against itself, through the ‘overthrow-arrangement’
of the complex of idealogical formations (and of the discursive
formations which are imbricated with them).34
The intention behind this process, for Pecheux, is to fight against the inculcative process of education by
introducing a politics of challenge that seeks to transform it at the same time.35 Here, individuals choose
to negotiate certain messages—not by agreeing with or opposing them, but by acting to transform the
message itself, by working “on and against” the dominant symbol.
Pecheux’s theories of disidentification have been profitably applied to the theory of performance
studies; notably, Professor Jose Munoz argues that many performers—specifically queer-identified
persons of color—appropriate the personalities of various celebrities and stereotypes in order to empower
their own identities.36 Many of these disidentificatory performances utilize what could be thought of as
deeply orientalizing images and stereotypical suggestions; in this way, they are often self--evidently
parodic; in one example, he details the performance of Alina Troyano, a Cuban lesbian woman who
adopts the stage name of Carmelita Tropicana in order to challenge a dominant stereotype by occupying
its persona. As Munoz explains, disidentification is both a process of production, as well as a mode of
performance; it is “a way of shuffling back and forth between reception and production.”37 It is a process
that allows for a new kind of worldmaking, one that allows for both performer and audience to envision
new modes of social relationships.
Here, the performative transgression is immediately apparent to the observer; there is little
confusion regarding sponsorship or authorship. In these disidentificatory discourses, or at least the ones
34
PECHEUX, supra note 212, at 159.
PECHEUX, supra note 212, at 160-61.
36
JOSE ESTEBAN MUNOZ, DISIDENTIFICATIONS at 25 (2002).
37
Id. at 46.
35
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put forth by Munoz and others, the overall presentation is one of immediate and apparent transgression.38
The audience is consistently aware of the transgressive nature of the performance; it becomes clear to the
audience that an appropriation of a stereotype, or of a prejudicial assumption has taken place. It is clear,
at first glance, and throughout every disidentifactory performance, that the brilliance of the performance
lies in the conscious reworking of the original work by an aberrant “outsider,” in Munoz’s case, a queer
person of color. Here, the performer is recoding a particular identity in order to suggest something
entirely different, to actually compel the audience to see the blatant stereotypical impulse behind the
original representation.
Munoz’ useful exploration suggests a number of useful examples throughout law; one of the most
dominant is the famous case of San Francisco Arts & Athletics, in which the Supreme Court enjoined a
gay athletic group from using the term “Gay Olympics” to describe their annual competition.39 In that
case, the group sought to recreate a Gay version of the international Olympic games, complete with
opening ceremonies, a torch-lighting ceremony, gold, silver, and bronze medals, and a variety of different
competitions.40 The purpose of this appropriation, like many disidentificatory strategies, was to challenge
dominant stereotypies and to “promote a realistic image of homosexual men and women that would help
them move into the mainstream of their communities…”41 Like Munoz’s descriptions, the Gay Olympics
case demonstrated some element of disidentification; it attempted to mobilize and utilize a label or brand
in order to demonstrate a greater need for social inclusion; as Judge Kozinski noted in his Ninth circuit
dissent, just as a jacket reading ‘I strongly resent the draft’ would not have conveyed Cohen’s message, a
title that stated, “The Best and Most Accomplished Amateur Gay Athletes Competition” would have
failed to have the same import.42
Like the process Munoz describes, in such scenarios, the reader, or prospective consumer, can be
initially “tricked” into thinking that he or she is viewing an endorsed advertisement. Thus, parodic
strategies offer us a seamless transition, a parody that is initially less visible, which then makes itself
obvious to the consumer through a process of both exposing and dissecting the original image. Parody
thus offers up a disidentificatory space for individuals to contest particular readings by both displacing
and transforming the original “code” or expectation. The parody is meant to confuse the audience: in
doing so, it is meant to expose and to reconfigure the very notion of gender identity itself. In this sense,
parody enables a transition from performance as property to performance as a type of intellectual
property. Rather than being a fixed, seemingly ‘natural’ text or script that forecloses alternative meanings
38
See http://kulturserver-nrw.de/home/rhoghe/en/en_camilla.html (describing performance of Raimond Hogue, who uses images of Western
celebrities (Natalie Wood, Bette Davis, Marlene Dietrich), and then juxtaposes them with images of disability).
39
483 U.S. 522 (1987). I am indebted to Justin Hughes for his discussion of this point.
40
Id. at 525-26.
41
Id. at 569 (Marshall dissenting).
42
See 789 F.2d 1319, 1321 (9th Cir. 1986) (Kozinski dissenting).
12
and readings, parody offers up gender as a type of intellectual property—something that is nonexclusive,
nonrivalrous, and ultimately open to alternative commentary and resignification.
B. The Architecture of Gender Identity
Despite the rich and sophisticated insights offered by performance theory, little, however, has
been said about the transformative potential for performativity and the law. Butler’s contribution has not
only lent itself to a new and fuller understanding of the modes of social construction in gender expression,
but it has also helped theorists to recognize the powerful role of performance in everyday life, lending
itself to a host of complicated possibilities both inside and outside the world of gender norms. Yet this
section will argue that performativity radically changes the way we think of gender, in both law and life.
1.
The Fictive Unity of Gender, Sex, and Desire
Butler’s theories of gender performativity comprise, essentially, the most powerful rethinking of
gender and social norms in the past decade. Her work has ruptured current, identity-based theories of
gender and sexuality, forcing theorists to confront important linkages between the maintenance of one and
the other, and to ask whether the categories themselves replicate the very structures feminists hope to
challenge. Butler’s central argument claims that the feminist reliance on the category of “women” as a
coherent, fixed, and stable subject actually reifies, rather than challenges, the gender hierarchy.43 Instead,
Butler focuses her attention on how the self socializes with an audience inscribed by cultural expectations
of gender and sexual identity, produced through regulation and citation.44 Performativity is this
reiterative practice; and the regulatory norms of ‘sex’ operate in ways that create a seemingly material
sexual difference in a society of compulsory reproductive heterosexuality.45
Along similar lines as Austin and Searle, she argues that these identities are imposed through a
host of cultural, legal and technological processes that “produce” gender. She argues that gender, itself is
a performance—intangible, inscribed on the material body—and always yearning for, but not quite
representing, the ideal vision. Performativity begins from the premise that gender doesn’t really exist,
until performance makes it so; and over time and repetition, these performances give the impression that
gender is a foundational aspect of personhood.46 Yet unlike Austin’s work, which focused on the
significance of outward acts, Butler is concerned mostly with the invisible practices that constitute gender
performativity. Austin is concerned with language that acts; Butler is concerned with how the
43
Butler, Gender Trouble at 9.
Diana Taylor, The Archive and the Repoirtoire at 5.
45
Butler, Bodies that Matter at 2.
46
Weston, Gender in Real Time at 58.
44
13
performance itself constitutes a kind of discourse that has immediate and powerful effects on the
construction of gender and cultural behavior.47 As Kath Weston has commented on Butler’s work, “the
reification of ‘woman’ and ‘man,’ ‘masculine’ and ‘feminine’ implies essence where none exists…A
person ‘is’ not feminine, apart from the play of eyeliner and fingernails that points to an interior essence
and makes it seem so.”48
Begin with Butler’s analysis of the difference between sex and gender. For Butler, as I have
suggested, the feminist project both presumes and relies upon a kind of distinction between sex and
gender that is deeply problematic.49 For Butler, the term “woman” represents a sort of fictive
convergence of sex, gender, and desire that tends to actively and intimately link itself to the maintenance
of heterosexuality.50 It would make no sense, then, to define gender as the cultural interpretation of sex, if
sex itself is a gendered category.51 Instead, like Catherine Mackinnon, Butler argues that sexual
hierarchy—the dominance of one over another—both produces and consolidates gender.52 Because of
this hierarchy, gender then becomes a binary relation whether the masculine term is actively differentiated
from its feminine counterpart. It relies on this difference to exist, but the differentiation between the two
is manifested and accomplished through the construction of heterosexual desire.53 The metaphysical
character of the unity that is presumed among all three—gender, sex, and desire—that can only become
expressed through a relationship, whether semantic or actual, with its complete opposite. Thus, Butler
argues that heterosexuality is compulsory; the regulation of desire requires—and institutes—the dynamic
oppositions between male and female, to the extent that they are also understood as the expressive
attributes of ‘male’ and ‘female’ categories.54
Thus, in her first work, Gender Trouble, Butler punctured the traditional formulations of sex and
gender by instead emphasizing the need to abandon binary categories of being; instead, she argues that
gender is produced and performatively constituted by a series of repetitive acts, which, if taken seriously,
would alter the need for categorization at all.
A cornerstone of her theory lies in a complete refusal to disassociate the biology of sex and the
social construction of gender. Traditional feminism actively distinguishes between sex and gender; it
suggests that sex is biologically intractable, but gender is culturally constructed. Butler takes issue with
this distinction, and argues instead that biological sex, the very materiality of the body, is totally
47
Diana Taylor, The Archive and the Repoirtoire at 6.
Kath Weston, Gender in Real Time at 40.
49
Butler, Gender Trouble at 9-10.
50
Butler, Gender Trouble at xii.
51
Butler, Gender Trouble at 7.
52
Butler, Gender Trouble at xii.
53
Butler, Gender Trouble at 30.
54
Butler, Gender Trouble at 23.
48
14
inseparable from the cultural and regulatory norms that govern gender.55 In later work, Butler goes so far
to argue that the very materiality of the body is actually the effect of the productive effect of power.56 In
developing her theory, Butler explains that she relied deeply on Jacques Derrida’s reading of Kafka’s
“Before the Law.”57 She explains:
There the one who waits for the law, sits before the door of the law,
attributes a certain force to the law for which one waits. The anticipation
of an authoritative disclosure of meaning is that means by which that
authority is attributed and installed: the anticipation conjures its object.
I wondered whether we do not labor under a similar expectation
concerning gender, that it operates as an interior essence that might be
disclosed, an expectation that ends up producing the very phenomenon
that it anticipates.58
This dynamic operates in two major ways. First, the anticipation of a gendered essence, Butler argues,
actually transforms an internal dynamic into an external one—it “produces that which it posits as outside
itself.”59 There is a normative aspect to gender identity, she argues, that permeates psychological being—
it sets up a sort of cultural imperative that erases the possibility of alternate ways of being.
Second, this dynamic becomes externalized through a series of repetitive acts, a ritual that is
enacted by and through the body.60 She writes:
If gender consists of the social meanings that sex assumes, then sex does
not accrue social meanings as additive properties but, rather, is replaced
by the social meaning it takes on; sex is relinquished in the course of that
assumption, and gender emerges, not as a term in a continued
relationship of opposition to sex, but as the term which absorbs and
displaces ‘sex,’ the mark of its full substantiation into gender or what,
from a materialist point of view, might constitute a full
desubstantiation.61
Butler is careful to delineate her analysis of the psychological interior from the performative, exterior
aspects of gender.62 For Butler, the body is not a passive medium, but an entity that serves as the site for
cultural inscription.63 Drawing on Foucault, she writes that “the body is always under siege,” involved in
a process of “corporeal destruction” that is necessary for the eventual inscription and creation of values
55
Butler, Bodies that Matter at 2.
Butler, Bodies that Matter at 2.
57
Butler, Gender Trouble at xiv.
58
Butler, Gender Trouble at xiv.
59
Butler, Gender Trouble at xv.
60
Butler, Gender Trouble at xv.
61
Butler, Bodies that Matter at 5.
62
Butler, Gender Trouble at xv (“Although Gender Trouble clearly drew upon the metaphor of an internal psyche in
its early discussion of gender melancholy, that emphasis was not brought forward into the thinking of performativity
itself.”).
63
Butler, Gender Trouble at 164.
56
15
and meanings that implicate gender relations.64 For Foucault (and for Butler), the law in Discipline and
Punishment operates not to actively repress certain desires, but instead, operates productively, so that the
law becomes incorporated, “with the consequence that bodies are produced which signify that law on and
through the body; there the law is manifest as the essence of their selves, the meaning of their soul, their
conscience, the law of their desire.”65
As a result, the law becomes totally latent, but always manifested, because it never appears as an
external, but an internal force.66 And yet, this internal aspect of the person desires a certain coherence,
which generates a series of stylized acts, gestures, enactments that, for Butler, are performative because
the essence or identity that they express are actually fabrications that are manufactured and sustained
through governing the body and its expression.67 “If sex is assumed in the same way that a law is cited. .
.” she writes, “then ‘the law of sex’ is repeatedly fortified and idealized as the law only to the extent that
it is reiterated as the law, produced as the law, the anterior and inapproximable ideal, by the very citations
it is said to command.”68
The sex/gender distinction, she argues, is both false and confining, and ends up disadvantaging
the feminist project through its unrelenting reliance on essentialism. For Butler, therefore, gender
becomes neither the causal result of sex, nor a seemingly fixed aspect of sex.69 “‘Sex’ is, thus, not simply
what one has, or a static description of what one is: it will be one of the norms by which the ‘one’
becomes viable at all, that which qualifies a body for life within the domain of cultural intelligibility.”70
Here, gender operates as the discursive or cultural means by which norms actually produce sexual and
biological difference.71 In other words, ‘sex’ is not a function of the body, and a construct upon which to
impose gender assumptions, but is actually a cultural norm that itself governs the body.72 In this way,
Butler consciously conflates the descriptive aspects of gender with its normative aspects; she argues that
the question of what qualifies as “gender” or what defines ‘gender’ is already a question that supports a
normative project of inculcating gender norms, masked through a question of description.73 For Butler, an
“identity” can be a normative ideal, just as much as it can be a description of one’s experiences.74 “The
64
Butler, Gender Trouble at 165.
Butler, Gender Trouble at 171.
66
Butler, Gender Trouble at 172.
67
Butler, Gender Trouble at 173.
68
Butler, Bodies that Matter at 14.
69
Butler, Gender Trouble at 10.
70
Butler, Bodies that Matter at 2.
71
Butler, Gender Trouble at 11.
72
Butler, Bodies that Matter at 3.
73
Butler, Gender Trouble at xxi.
74
Butler, Gender Trouble at 23.
65
16
naming [of gender],” she writes, “is at once the setting of a boundary, and also the repeated inculcation of
a norm.”75
Instead of creating an intimate relationship between sex and gender, as the traditional feminist
platform does, Butler instead argues that we should recognize the complete discontinuity between them.
As she argues, “[t]he cultural matrix through which gender identity has become intelligible requires that
certain kinds of ‘identities’ cannot ‘exist’—that is, those in which gender does not follow from sex and
those in which the practices of desire doe not ‘follow’ from either sex or gender.”76 Because these
identities conflict with dominant understandings of gender behavior, they are largely dismissed as
“developmental failures or logical impossibilities;” for Butler, however, they represent critical
opportunities that allow us to expose the limitations of the dominant model, and, by doing so, allow us to
imagine radical possibilities for rethinking gender.77 Taking this argument to its logical conclusion, leads
us to recognize that “gender cannot follow from a sex in any one way,” suggesting a separation between
gender and sex that is full of radical possibilities.78 “When the constructed status of gender is theorized as
radically independent of sex, gender itself becomes a free-floating artifice, with the consequences that
man and masculine might just as easily signify a female body as a male one, and woman and feminine a
male body as easily as a female one.”79
2.
Performing Gender Expression
For Butler, gender is not a noun, but an effect, as well as a series of fragmentary attributes; and
the substantive effect of gender is both produced and compelled by the fiction of coherence between sex,
gender, and desire.80 It is also, and always meant to be, somewhat incomplete in its internal and external
coherence: “[g]ender is also a norm that can never be fully internalized;” she writes, “‘the internal’ is a
surface signification, and gender norms are finally phantasmatic, impossible to embody.”81 The repetition
of these acts both reenacts and reexperiences the social meaning of gender.82 It is expressive; it is an
explicitly and assertively ‘public’ action.83 As Butler describes, “Gender is the repeated stylization of the
body, a set of repeated acts within a highly rigid regulatory frame that congeal over time to produce the
appearance of substance, of a natural sort of being.”84 Butler even takes things one step further, arguing
75
Butler, Bodies that Matter at 8.
Butler, Gender Trouble at 24.
77
Butler, Gender Trouble at 24.
78
Butler, Gender Trouble at 10.
79
Butler, Gender Trouble at 10.
80
Butler, Gender Trouble at 33.
81
Butler, Gender Trouble at 179.
82
Butler, Gender Trouble at 178.
83
Butler, Gender Trouble at 178.
84
Butler, Gender Trouble at 33.
76
17
that the “subject,” or the person herself, is “performatively constituted” by acts that help to signify a
particular gender.85 But part of this requires a performance, sustained by ritualized forms of expression, a
series of acts:
[W]ithin the inherited discourse of the metaphysics of substance, gender
proves to be performative—that is, constituting the identity it is
purported to be. In this sense, gender is always a doing, though not a
doing by a subject who might be said to preexist the deed. . . .There is no
gender identity behind the expressions of gender; that identity is
performatively constituted by the very ‘expressions’ that are said to be its
results.86
Part of Butler’s theory relies heavily on a reworking of the notion of speech and conduct, and the
relationship between them. In some of Butler’s other work, she argues that a speech act is both a
theatrical performance as well as a linguistic entity; “speech itself is a bodily act with specific linguistic
consequences.”87 For Butler, speech is both conduct and language; but it belongs to neither.88 Through
this framework, she views gender not as a given, preexisting condition, but instead as a category that
becomes constituted through constant repetition and performance.89 In sum, Butler argues that what we
think of as gender is, in fact, a manufacturing of gender though a series of acts, activities, and rituals that
are centrally focused on the stylization of the body.90 Her argument that gender is performative, quite
radically, suggests that “it has no ontological status apart from the various acts which constitute its
reality.”91 In other words, she writes, these acts and gestures help to create an illusion of an interior
“gender core” that is maintained for the purpose of regulating sexuality within a compulsory framework
of reproductive heterosexuality.92
In a later book, Bodies that Matter, Butler addresses the role that biology and the body plays in
constructing and impacting performance. Here, Butler argues that gender performativity is not a willful
act of agency and self-representation, but rather constitutes an imperative that constructs the self. As
Butler explains:
Performativity cannot be understood outside of a process of iterability, a
regularized and constrained repetition of norms. And this repetition is
not performed by a subject; this repetition is what enables a subject and
constitutes the temporal condition for the subject. This iterability implies
that ‘performance’ is not a singular ‘act’ or event, but a ritualized
Carlson, Performance at 170. “ “There is no self that is prior to the convergence or who maintains ‘integrity’ prior
to its entrance into this conflicted cultural field.” Butler, Gender Trouble at 185.
85
86
Butler, Gender Trouble at 33.
Butler, Gender Trouble at xxv, citing Excitable Speech.
88
Id.
89
Carlson, Performance at 170.
90
Butler, Gender Trouble at xv.
91
Butler, Gender Trouble at 173.
92
Butler, Gender Trouble at 173.
87
18
production, a ritual reiterated under and through constraint, under and
through the force of prohibition and taboo, with the threat of ostracisim
and even death controlling and compelling the shape of the production,
but not, I will insist, determining it fully in advance.93
As we have seen, Butler’s theory of performativity is deeply and intimately entwined with the notion of
gender as a sort of intangible property or expression that can be worn, expressed, and even bought or sold,
according to the audience’s expectation. The body becomes a critical site for this construction. Butler
argues that the world is permeated with expectations that all bodies should express something about the
selves that reside within; under this view, if we think of acts and expressions as expressive of gender, then
we think of gender as being something that exists prior to these gestures; some “substantial core” that is
viewed as the spiritual or psychological correlative to biological sex.94 But Butler takes a different
approach. Instead, she argues that gender attributes are not expressive but performative; they effectively
constitute the identities we want them to express.95
In this process, each expression of gender requires an audience, as well as a tangible repetition of
culturally coded behavioral cues—makeup, mannerisms, voice, performance—that demonstrate how
gender becomes a sort of cultural script that acts as a universal imperative, rather than an essential and
necessary facet of identity that is tied to one’s biological sex. For Butler, gender is not a personality or
performance that one can choose to act upon or ignore. Instead, gender performativity is a constitutive
part of our lives as gendered beings—it is not something a subject does, but a process by which a person
becomes constituted—thus, it is not a system of voluntary theatrics, but something greater, and also
foundational to the core of gendered society.96
3.
Resistant Modes of Reproduction
One might think that Butler’s depiction of gender as a sort of imperative series of performances
would easily foreclose the possibilities for rereading and revising the textual codes of gender
performance, because she suggests that an “agency’ is also performatively constituted by the signifying
practices of gender expression.97 Yet here is where Butler’s work becomes so revolutionary, and so
transformative. For Butler, gender exists as a potential site of continual reassessment: under this
framework, gender is ‘an ongoing discursive practice . . . open to intervention and resignification.”98
Butler argues that if we accept the phantasmatic content of gender identity, we should not automatically
accept that the symbolic “laws” that define gender relations are always fixed and stable; instead, she
93
Butler, Bodies that Matter at 231.
Butler, Gender Trouble at 278-79.
95
Id.
96
See Jagose at 87.
97
Carlson, at 172.
98
Butler, Gender Trouble at 33.
94
19
exhorts us to recognize the existence of multiple possibilities of gender.99 Instead, there are multiple and
coexisting identitifications, all of which may produce “conflicts, convergences, and innovative
dissonances” which gender configurations which contest the fixity of terms like ‘masculine’ and
‘feminine.’100 She continues:
If sex does not limit gender, then perhaps there are genders, ways of
culturally interpreting the sexed body, that are in no way restricted by the
apparent duality of sex. . . . If gender is not tied to sex, either causally
or expressively, then gender is a kind of action that can potentially
proliferate beyond the binary limits imposed by the apparent binary of
sex. Indeed, gender would be a kind of cultural/corporeal action that
requires a new vocabulary that institutes and proliferates present
participles of various kinds, resignifiable and expansive categories that
resist both the binary and substantializing grammatical restrictions on
gender.”101
She argues, drawing on Jacques Derrida’s rereadings of Searle and Austin, that in fact gender
performance is a citational practice, one that never quite repeats the original; suggesting a kind of
“slippage” between a culturally established norm or expectation and one’s reenactment.102
The fact that reiteration of gender norms is always required—the performance is constantly
reenacted over time, in innumerable ways—demonstrates, for Butler, that “bodies never quite comply
with the norms by which their materialization is impelled.”103 For performance theorist Marvin Carlson,
Butler suggests that “the possibility of innovative agency is always present, not based upon a pre-existing
subject constrained by regulatory laws, but in the inevitable slippage arising from the enforced repetition
and citation of social performance.”104 The “re” in repetitive acts helps to acknowledge the role of social
norms, but also allows for the creation of new possibilities of subjectivity and expression.105
In making these observations, Butler draws on a key facet of the relationship between parody and
property. The process of regulating gender, inevitably, produces these slippages between expectation and
behavior, and might engender an agency that enables an unconventional set of performances that
demonstrate the transferable nature of gender expression.106 For example, the modern understanding of
mimicry, which is derived from Platonic conceptions of mimesis, focuses quite directly on the importance
99
Butler, Gender Trouble at 85.
Butler, Gender Trouble at 86.
101
Butler, Gender Trouble at 143
102
Carlson at 172; Carlson also mentions that Butler’s point is echoed further by Bakhtin, Adorno, erc.
103
Butler, Bodies that Matter at 2.
104
Carlson at 172.
105
Carlson at 172.
106
Bodies that Matter at 64.
100
20
of repeating and enacting certain norms of behavior.107 Luce Irigaray, a prominent French theorist,
emphasizes the importance of “playing” with mimesis, that women should “assume the feminine role
deliberately,” in order to create a certain excessive imitation that acts to undermine and challenge forms
of subordination—that eventually acts to affirm these acts of resistance.108 The more these resistant
performances occur, the more we question the very politics of representation itself; the more we search
for what is at stake in the performance itself and ask, “for whom, by whom, and to what end
representation is taking place.”109 Similarly, to resignify gender, Butler argues strenuously for a series of
“subversive repetitions” of gender, in order to split off and recode the fictive unity of sex and gender.
Here, she seeks to highlight the rhetorical, discursive nature of gender, instead of its biological
formulations. She examines drag, and other forms of expression I explore in Part II, and helps to
illuminate some of the multiple possibilities of gender relations.
At the same time, however, the strategy utilized in developing these resistant performances
always runs the risk of encumbering complicity through subversion; in other words, by the very act of
repetition itself, one risks confirming, or simply consolidating the very norms one wishes to resist. 110 Put
another way by Audre Lorde, “the master’s tools will never dismantle the master’s house.””111 As
Marvin Carlson writes, “[w]hen the very structure of the performative situation is recognized already
involved in the operations of dominant social systems, directly oppositional performance becomes highly
suspect, since . . . the contemporary performer seeking to resist, challenge, or even subvert these codes
and assumptions must find some way of doing this “from within,” but still clearly outside the
institutionalized space of “proper” activity.”112 Butler argues that there is no “self” that exists prior to the
acts of repetition, “there is only a taking up of the tools where they lie, where the very ‘taking up’ is
enabled by the tool lying there.”113
Butler’s exploration of parody, as I have suggested, is deeply entwined with notions of
intellectual property. Her analysis of gender suggests that its performative dimensions comprise a sort of
transferable property—one that can be mimicked, reframed, and recast as a different text—all depending
on the performer’s position. And, her discussion of the possibilities of resistance suggests that the
proprietary aspect to gender lends it a quality that can only be thought of as intellectual in nature, because
it opens up the possibility for alternative commentary through reenactment, just as traditional parody
does. Through a connection between property and parody, gender becomes a kind of non-sovereign
107
Carlson at 175.
Carlson at 175.
109
Carlson at 183.
110
Marvin Carlson, Performance, pp.173-174
111
Marvin Carlson, Performance, pp.173-174
112
Marvin Carlson, Performance, pp.172-173
113
Carlson, quoting Butler at 174.
108
21
property—a text that is transferable and commodifiable, but ultimately non-exclusive in nature. As Butler
writes, “It is this constitutive failure of the performative, this slippage between discursive command and
its appropriative effect, which provides the linguistic occasion and index for a consequential
disobedience.”114
II. The Creation, Expression, and Commodification of Gender
In this section, we will explore how disobeying the codes of gender, as Butler suggests,
demonstrates a surprising connection to intellectual property. The terms performance and performativity
apply to an admittedly wide range of behavior—from the most sophisticated and stylized of rituals to the
most mundane of cultural behavior.115 Yet its undefinable essence is actually quite constructive to
analyzing modes of convergence between gender and intellectual property, because it highlights the
intangible, non-exclusive, and commodifiable elements of gender expression. As Diana Taylor has noted,
“Performance carries the possibility of challenge, even self-challenge, within it. As a term
simultaneously connoting a process, a praxis, an episteme, a mode of transmission, an accomplishment,
and a means of intervening in the world, it far exceeds the possibilities of these other words offered in its
place.”116 In this section, I explore how those possibilities become magnified through discovering their
connection to theories of intellectual property.
A. Gender Expression as Pastiche
Aside from her critique of gender as both a descriptive and normative entity, Butler also offers a
normative theory of her own to replace that which she deconstructs. She argues that if we are to take the
notion of gender seriously as a construction of the self and as an expressive ritual, then we must also
extend recognition to those individuals who fall somewhere between the interstices of male and female
binary systems, to recognize those “bodies that have been regarded as false, unreal, and unintelligible.” 117
This means that we must actively embrace the “slippages” between performing gender and biological sex,
because they inherently demonstrate the intangible, proprietary quality of gender. Here, she focuses on
drag performances to demonstrate the importance of these possibilities. In Mother Camp: Female
Impersonators in America, anthropologist Esther Newton writes:
At its most complex, [drag] is a double inversion that says, ‘appearance
is an illusion.’ Drag says ‘my ‘outside’ appearance is feminine, but my
essence ‘inside’ [the body] is masculine.’ At the same time, it
symbolizes the opposite inversion; ‘my appearance ‘outside’ [my body,
114
Butler, Bodies that Matter at 123.
Diana Taylor, The Archive and the Repoirtoire at 6.
116
Diana Taylor, The Archive and the Repoirtoire at 15.
117
Butler, Gender Trouble at XXIV.
115
22
my gender] is masculine but my essence ‘inside’ [myself] is
feminine.”118
Drawing on Newton, Butler argues the importance of recognizing drag and parodies of gender,
because they implicitly “establish that ‘reality’ is not as fixed as we generally assume it to be.”119 She
writes:
As much as drag creates a unified picture of ‘woman’. . . it also reveals
the distinctness of those aspects of gendered experience which are falsely
naturalized as a unity through the regulatory fiction of heterosexual
coherence. In imitating gender, drag implicitly reveals the imitative
structure of gender itself—as well as its contingency. Indeed, part of the
pleasure, the giddiness of the performance is in the recognition of a
radical contingency in the relation between sex and gender in the face of
cultural configurations of causal unities that are regularly assumed to be
natural and necessary.”120
The very existence of drag is a way for us to challenge gender norms and the rigid expectations that they
bring and impose on others. “Is drag the imitation of gender, or does it dramatize the signifying gestures
through which gender itself is established?,”121 she asks, and continues, “Does being female constitute a
‘natural fact’ or a cultural performance, or is ‘naturalness’ constituted through discursively constrained
performative acts that produce the body through and within the categories of sex?”122
Here, Butler suggests that drag reveals the true nature of gender: that there is no realness
associated with gender; it comprises a seductive illusion that can be reframed and rearticulated to suggest
the need for its subversion. Through drag’s productions of the “realness” of gender, we see a
performer—a subject—repeating and miming the very norms that have served to discipline and degrade.
And, through this performance, those very norms become both legitimized and delegitimized as illusory,
confining, and deeply in need of parodic repetition. Drag allows for gender to become transformed from
an item of property—exclusive, tangible, bordered, and sovereign—into an item of intellectual property—
intangible, non-exclusive, non-sovereign, and deeply prone to commentary and critique. In this process,
gender as property becomes reframed into a particular kind of speech that can be owned, transferred,
commodified, and commented upon: in short, it comprises intellectual property, the marriage of an idea
and a commodity.
Yet, interestingly, Butler refuses to claim drag as a classic type of parody; her point is much more
sophisticated, because she argues that, unlike most parodies, drag does not assume that there is some
118
Newton, quoted in Butler, Gender Trouble at 174.
Butler, Gender Trouble at XXIV.
120
Butler, Gender Trouble at 137-38.
121
Butler, Gender Trouble at xxviii.
122
Butler, Gender Trouble at xxix.
119
23
“original” that parodic identities imitate.123 Instead, drag is a sort of parody of the very notion that an
original gender exists; “just as the psychoanalytic notion of gender identification is constituted by a
fantasy of a fantasy. . . gender parody reveals that the original identity after which gender fashions itself is
an imitation without an origin.”124 In suggesting the absence of an original, however, drag opens up the
possibility for a multiplicity of identities to exist, all fluid, all challenging the notion of a naturalized or
essential gender identity.125 “As imitations which effectively displace the meaning of the original, they
imitate the myth of originality itself.”126 As Annamarie Jagose explains:
Instead of marking a distance between itself and the parodied original,
the kind of parody which Butler has in mind ‘is of the very notion of an
original.’ Consequently, heterosexuality is no longer assumed to be the
original of which homosexuality is an inferior copy. In advocating
parody as a resistant strategy, Butler intends to demonstrate that the
domains of gender and sexuality are not organized in terms of originality
and imitation. What they manifest instead is the endless—though
heavily regulated—possibilities of performativity.”127
In constructing a parody without an original, Butler argues that drag resembles a “pastiche,” which she
defines (following Frederic Jameson) as an “imitation that mocks the notion of an original” and therefore
lacks the satirical impulse that parody accompanies.128 Instead, she argues that drag helps to suggest a
need to reconfigure and rethink the notion of the body, not as a “being,” but as a variable boundary,
destabilizing the supposedly ‘natural’ categories of sex and desire.129
Feminist theory has tended to minimize the parodic subversion of gender in drag performances,
usually labeling them either “degrading to women,” or simply as uncritical appropriations of sex-role
stereotyping.130 Yet, for Butler, drag represents a radical possibility for critiquing the fictive convergence
of sex, gender identity and gender performance.131 “If the anatomy of the performer is already distinct
from the gender of the performer, and both of those are distinct from the gender of the performance, then
the performance suggests a dissonance not only between sex and performance, but sex and gender, and
gender and performance.”132 In imitating gender, drag suggests that gender, itself, is a performance
entirely. The power attributed to the law derives from a continued process of reiteration and attribution;
as Butler maintains in reference to the drag film Paris is Burning, “the ideal that is mirrored depends on
123
Butler, Gender Trouble at 175.
Butler, Gender Trouble at 175.
125
Butler, Gender Trouble at 176.
126
Butler, Gender Trouble at 176.
127
Jagose, Queer Theory at 85.
128
Butler, Gender Trouble at 176.
129
Butler, Gender Trouble at 177.
130
Butler, Gender Trouble at 174.
131
Butler, Gender Trouble at 175.
132
Butler, Gender Trouble at 175.
124
24
that very mirroring to be sustained as an ideal.”133 What would it mean, she asks, if we “cited” the law of
sex in a way that produced it differently, in such a way that we were able to coopt its power, expose the
heterosexual imperative, and displace its necessity?134 In effect, then, the performance becomes a kind of
“talking back,” a way for a black drag queen to “out-woman women” by demonstrating the excesses of
womanhood.135
And, by demonstrating these performative excesses, women become both subject and objects in
property. For Butler, they comprise “not only marketable goods,” suggesting that women—or
womanhood—can be bought and sold, but they also comprise subjects of property—“privileged
consumers with access to wealth and social privilege and protection.”136 In such performances, drag
demonstrates that gender is like a commodity—it can be adopted as a set of attributes and learned
behaviors—that is embodied, rather than purchased. Here, gender becomes a set of intangible attributes
that become expressed through a tangible link to the material body. Like intellectual property, drag
performances reveal that gender acts as a set of qualities that take shape through ideas and intangible
qualities, but then become tangibly expressed through a complex set of codes that act to govern the
human body.
B. Creating Gender in Cyberspace
If we think of gender as a set of performative, expressive attributes, rather than something that is
inextricably linked to sex, we see a host of possibilities for thinking through gender as an intangible
commodity, like intellectual property. Under this view, virtual reality, too, is also presented as potentially
liberatory.137 Part of this reality is due to the decentralized nature of Internet architecture: its end-to-end
philosophy offers the potential to escape sovereign control, material boundaries, and even legal systems
of governance. Decentralization, too, plays a key role in the architecture of virtual identity, as well. As
Professor Sherry Turkle has written, “[w]hen we step through the screen into virtual communities, we
reconstruct our identities on the other side of the looking glass.”138 Turkle argues that the Internet has
enabled us to think about identity in terms of multiple selves, rather than in terms of a singular, unitary
self. 139 Her work exploring multi-user domains (MUDs) in cyberspace has led her to conclude that such
domains allow a person to “play a role as close to or as far away from your real self as you choose.”140 In
133
Butler, Bodies that Matter at 14.
Butler, Bodies that Matter at 15.
135
Butler, Bodies that Matter at 132.
136
Id.
137
Susan Hawthorne, CyberFeminism, p. 225
138
Sherry Turkle, Life on the Screen 177 (1995).
139
Sherry Turkle, Life on the Screen at 178 (on the Internet, she explains, “people are able to build a self by cycling
through many selves.”).
140
Sherry Turkle, Life on the Screen at 183.
134
25
this manner cyberspace subverts traditional ideas about identity, which are usually tied to a notion of
authenticity.141 Since authentication is not possible in cyberspace, I argue that intellectual property takes
its place.
While much of Turkle’s exploration is limited to role-playing games, her conclusions can be
reframed profitably to cover many aspects of identity and personhood in cyberspace. In this manner, the
combination of informational privacy and intellectual property makes possible multiple expressions of
personhood. Even outside of structured forums, a user can adopt a multiplicity of gender, sexual, racial,
or other categorical identities, invent accompanying personal histories, and engage in a multiplicity of
various acts that she would likely not perform in real life.142 As one author writes:
The virtual persona is an extension of select aspects of selves, the
uninhibited, the altruistic, the superhuman, an identity often considered
more authentic because of liberation from the flesh. One of the few
female wizzes on my home MUD is a two-time rape survivor IRL (in
real life), and ‘tends to be rather cautious of men in general. But here I
can be as confident and flirtatious as I like…without fear.’ An allpowerful lord confides: ‘My physical appearance isn’t good. But here I
am my personality. People meet it before they meet the physical me.’
Identity is continuous but plural; selfhood is more than one person(a).”
143
In other words, virtual space allows individuals to construct identities that they choose for
themselves, rather than the ones that they are born with.144 As Turkle explains:
When people adopt an online persona they cross a boundary into highlycharged territory. Some feel an uncomfortable sense of fragmentation,
some a sense of relief. Some sense the possibilities for self-discovery,
even self-transformation.145
Earlier in this century, identity was viewed as a forged entity, where people might have assumed
different social roles and masks, but mostly, such roles were consistent with a forged, firm, stable identity
that was supplanted and grounded in place by the dynamics of real life social structures and familial
relationships.146 In contrast, however, in cyberspace:
141
Sherry Turkle, Life on the Screen at 185.
Sherry Turkle, Life on the Screen at 212. See, for example, Turkle’s discussion of gender-swapping on the Web
at 212:
On one level, virtual gender-swapping is easier than doing it in real life. For a man to present himself as
female in a chat room, on an IRC [Internet Relay Chat] channel, or in a MUD, only requires writing a
description. For a man to play a woman on the streets of an American city; he would have to shave various
parts of his body; wear makeup, perhaps a wig, a dress, and high heels; perhaps change his voice, walk, and
mannerisms. He would have some anxiety about passing, which would pose a risk of violence and possibly
arrest. So more men are willing to give virtual cross-dressing a try.
143
Lynn Hershman Leeson, Joichi And Mizuko Ito Interview, p.80
144
Sherry Turkle, Life on the Screen at 226. See id at 240.
145
Sherry Turkle, Life on the Screen at 260.
146
Turkle, Life on the Screen at 179.
142
26
In virtual reality, we self-fashion and self-create. What kinds of
personae do we make? What relation do these have to what we have
traditionally thought of as the ‘whole’ person? Are they experienced as
an expanded self or as separate from the self? Do our real-life selves
learn lessons from our virtual personae? Are these virtual personae
fragments of a coherent real-life personality? How do they communicate
with one another? . . . Is it an expression of an identity crisis of the sort
we traditionally associate with adolescence? Or are we watching the
slow emergence of a new, more multiple style of thinking about the
mind?147
This ability to adopt transitory and multiple identities is at the heart of cyberspace’s limitless
possibility.148 As Turkle explains, traditional ideas about identity are tied to a notion of authenticity that
virtual experiences actively subvert. “When each player can create many characters and participate in
many games, the self is not only decentered but multiplied without limit,” she concludes.149
As Lawrence Lessig has agreed, “[u]nlike real space, cyberspace reveals no self-authenticating
facts about identity.” Whereas real space requires that you reveal “your sex, your age, how you look,
what language you speak, whether you can see, whether you can hear, [and] how intelligent you are,”
cyberspace requires only that you reveal your computer address.150 Moreover, perceptions of
informational privacy facilitate a different kind of human interaction in cyberspace. Implicit assurances
of informational privacy and anonymity also create a sphere of protection for an individual to express and
relate to others in ways that may not map perfectly onto her outward identity. Thus, communities in
cyberspace operate as laboratories for the construction of identity:
You can be whoever you want to be. You can completely redefine
yourself if you want. You can be the opposite sex. You can be more
talkative. You can be less talkative. Whatever. You can just be
whoever you want, really, whoever you have the capacity to be. You
don’t have to worry about the slots other people put you in as much. It’s
easier to change the way people perceive you, because all they’ve got is
what you show them. They don’t look at your body and make
assumptions. They don’t hear your accent and make assumptions. All
they see is your words.”151
The essence of cyberspace’s success lies in allowing a space, both undergirded and surrounded by
informational privacy and anonymity, so that individuals may enter any number of transactions and
relationships that they please.
In allowing space for individuals to adopt these multiple identities and
147
Turkle, Life on the Screen at 180.
Sherry Turkle, Life on the Screen at 260. As Turkle explains:
When people adopt an online persona they cross a boundary into highly-charged territory. Some feel an
uncomfortable sense of fragmentation, some a sense of relief. Some sense the possibilities for self-discovery, even
self-transformation
149
Turkle, Life on the Screen at 185.
150
Lawrence Lessig, Code and Other Laws of Cyberspace 33 (1999).
151
Turkle, Life on the Screen at 185.
148
27
activities, cyberspace necessarily has its own system of governance that differs significantly from real
life, because its norms operate largely outside of the boundaries of law. For example, as Professor Joel
Reidenberg has explained, the creation of policies surrounding informational privacy and information
policy stem from network design, system configurations, individual preferences, and technological
capability.152 These rules that govern the malleable and transitory nature of identity have been developed
from within cyberspace itself. Here, norms, rather than laws, govern the adoption and expression of
identity.153 This is in stark contrast to most systems in real life, which operate on rules imposed onto the
system from an external source. Given the absence of a clear system of governance, the norms that
govern identity and relationships in cyberspace function only as a result of implicit or explicit assurances
of informational privacy.154
Here, Turkle and Lessig’s observations mirror many of the same conclusions reached by the
historian and cultural theorist, Donna Haraway, who is the author of A Cyborg Manifesto, written nearly
twenty years ago, and a slew of books, essays, and other groundbreaking pieces on the relationships
between technology, feminism, and humanity. Butler’s theory of gender performativity also echoes many
of the important conclusions reached by Haraway, who concentrates much of her work on exploring
cyborgian realities, which in many ways straddle the boundary between the real and the virtual. She
defines the cyborg in four different ways, each of which focuses on a different intersection of the body
with technology: a ‘cybernetic organism,’155 a ‘hybrid of machine and organism,’ ‘a creature of lived
social reality,’ and the fourth is a ‘creature of fiction.’156 These four types explore different prisms of the
cyborg—cybernetic, hybrid, the present, the future—and collectively demonstrate that the line between
the natural and the artificial are constantly shifting and permeable boundaries.
“We are cyborgs,” Haraway points out, the lines are blurred between human and animal, between
artificial and natural, and between physical and non-physical (or virtual).157 She equates a ‘split and
contradictory self’ with a ‘knowing self.’ “The knowing self is partial in all its guises, never finished,
whole, simply there and original; it is always constructed and stitched together imperfectly; and therefore
152
See Joel Reidenberg, Lex Informatica: the Formulation of Information Policy Rules Through Technology, 76
Tex. L. Rev. 553, 554 (1998).
153
As one author explains,
“[t]he technology brings us to a . . . .system of man and machine in which all rules and constraints are
internal to the system, and hence capable of mutation by the system: the system evolving under its own
rules. By contrast, the legal system inherently is built on a model of comparison with external rules.
That’s what ‘legal’ and ‘reasonable’ means: conformity with exterior and independent rules.
Simon Baddeley, Governmentality at 80, in Brian D. Loader, ed., The Governance of Cyberspace (1997).
154
See generally Lawrence Lessig, Code (1998).
155
Cybernetics is the study of communications in biological, mechanical, and electronic systems. Senft at 3.
156
See Theresa Senft’s Reading Notes for A Cyborg Manifesto, at 3.
157
See Senft at 5.
28
able to join with another, to see together without claiming to be another.’158 And, understandably, these
characters and creations—multiple facets of the human persona, can also constitute products of
intellectual creation, and therefore intellectual property in the broadest sense. In this manner, at times, the
function of informational privacy is indivorceable from intellectual property in cyberspace. We become,
in cyberspace, who or what we create.159 In this way, I would argue that informational privacy as it
relates to the creation of digital identity is an intimate cousin of intellectual property, because it enables a
person to build a virtual persona and character that may or may not map perfectly on to her inherent
characteristics or consumer preferences. Like the copyrightability of fictional characters, the personae we
invent in cyberspace are fragile, intangible properties—highly expressive, but also highly (potentially)
inauthentic at the same time.
In previous paragraphs, I have suggested that the characters and multiple selves we create in
cyberspace often display fictionalized elements. Their combination of expressive, rather than material,
elements, coupled with the possibility of fictionalized inauthenticity suggest that they fall within the
protective domains of copyright, because they require a certain level of creativity for protection. Yet
what about information that is representative of our identities—our preferences, our personalities, our
buying habits, and so on? Here, the law suggests an interesting disjunction with respect to intellectual
property—where information is factual, and non-fictional, intellectual property protections generally
inhere to the gatherer of the information, usually a third-party data harvester, rather than the individual
person.
The reason is both simple and complex. Despite the power of the property-rights rationale in
personal information, there are a number of difficulties with treating personal information as any other
commodity.160 First, unlike physical objects, information can be easily transmitted and simultaneously
possessed by innumerable persons.161 Second, personal information is often created by relationships with
others, with more than one party having a claim to that information.162 Thus, it is difficult to imagine
granting an individual a sphere of control over information that he or she does not already own. As Julie
Cohen has pointed out, “[w]e lack a word for describing control over things without legal or beneficial
ownership of them—a word that signifies that the thing described is both not common and not owned.”163
As she describes:
158
Clicking In; Hot Links To A Digital Culture
Sherry Turkle. Rethinking Identity Through Virtual Community, p.122
159
See Heather Bromberg, Are MUDs Communities? Identity, Belonging and Consciousness in Virtual Worlds at
146, in Rob Shields, Cultures of Internet (1996).
160
See Solove, 90 Cal. L. Rev. at 1113.
161
Id.
162
Id.
163
Cohen, 52 Stan. L. Rev. at 1380.
29
On this theory, I might “own” the data generated by my actions, and
therefore the right to prohibit or condition its use by others. It is hard to
see, though, how I would have the right to control what another gathers
through his or her own diligence, even if what is gathered is information
about me. If the criterion of ownership is effort, I will not always, or
even most often, have the superior claim.164
Here, intellectual property may be a useful tool for us to analyze the problem. On one hand, as Rochelle
Dreyfuss has pointed out, intellectual property protections exist so that companies can assert private
control over personal information used publicly, such as the copyright protection afforded to databases.165
Yet, it is now being considered as a framework for individuals to assert rights over private activities
conducted publicly—such as surfing the net, purchasing by computer, or through appearances in public
places surveilled by video cameras.166 As Dreyfuss points out, these activities take place in public or
semipublic spaces, and yet privacy advocates continue to analyze these activities under the rubric of
privacy protection itself.167
Here, I would argue that the law’s distinction between copyright protection for fictional
characters in cyberspace, along with complete absence of protection for a person’s factual information
and preferences—rests on a presumption that facilitates, rather than challenges, the notion of the
intellectual properties of gender. In cyberspace, there is a much more complicated boundary between
public and private—the version one might construct of a person in cyberspace might radically differ from
the person’s real-world identity.168 As Edward Stein has eloquently argued, for certain sexual minorities,
particularly lesbians and gay men, the possibility of anonymous and pseudoanonymous speech in
cyberspace is distinctly liberating, allowing individuals to access information, express themselves, and
connect with others free of the strictures of the closet, as well as the tyranny of the majority.169 In other
words, the online persona one might construct might be even more representative of one’s true feelings
than their real-world personalities. The fact that such expressions might be representative of a true or
“core” self doesn’t diminish its performative or creative qualities, because gender is still expressed
symbolically—through words, visual cues, etc. in cyberspace. It is still deeply performative in nature,
because it relies on verbal, symbolic cues for embodiment in cyberspace.
In this section, I merely attempt to point out that gender in cyberspace, descriptively, comprises a
sort of intellectual property due to its intangible, expressive, and nonexclusive qualities. Nevertheless,
164
Id. at 1381.
See Dreyfuss, 1999 Stan. Tech. L. J. at 4.
166
Id.
167
Id.
168
See Marcy Peek, Passing Beyond Identity on the Internet: Espionage and Counterespionage in the Internet Age,
28 Vt. L. Rev. 91 (2003).
169
See Edward Stein, Queers Anonymous: Lesbians, Gay Men, Free Speech, and Cyberspace, 38 Harv. C.R.C.L.Rev. 159 (2003).
165
30
there are normative implications of identity-shifting in cyberspace, which leads us to question whether or
not the propertization of gender in cyberspace, coupled with the transitory possibility of identity itself, is
necessarily always a good thing. While few legal scholars have chosen to explore the descriptive and
normative implications of gender passing (with the exception of Margaret Chon), Jerry Kang has explored
the dynamics of racial identity in cyberspace in his brilliant work, Cyber-Race. In this article, Kang
explores three different dimensions of race in cyberspace—abolition, which disrupts racial mapping and
promotes racial anonymity; integration, which promotes social interaction; or transmutation, which
further disrupts racial categories by enabling racial pseudoanonymity. 170 There are, of course, obvious
differences with applying his framework gender in cyberspace; among them, being that it is more
common to ask about one’s gender identity, than their racial or ethnic one.171 Nevertheless, his work
forces us to ask whether it is desirable, as a normative matter, to enable the fluidity and fragmentation of
identities in cyberspace, or whether we should create zones to enable certain kinds of expression.
Indeed, gender-passing in cyberspace has spawned an interesting host of debates. One
cyberfeminist site, Undercurrents, argues that viewing gender “passing” as a purely liberatory form of
performance elides, and actively overlooks, the racial history of passing as an involuntary act; for them,
cyberfeminists must take note of the complex ways the political manipulation of racial and cultural
hybridity serve largely ruling class interests.172 “The key difference here,” an author of the site writes, “is
not so much the transfer of a racial paradigm to a gendered one, but a matter of the degree of personal
choice involved in the construction of the hybrid formation.”173 She continues:
If we limit our interrogation of the construction of gender to the domain
of fantasy and presume from the start that cyberpatial engagement begins
with free choice, we deny ourselves the means to understand how our
choices are proscribed by the programmed interactivity of virtual reality,
how most female presence is not the result of free choice but of
economic necessity, and how the limitations on most women in the
physical world and in virtual reality are not alterable through gender role
play. We would like our discussion to reflect on the impact of
technology on the vast range of real and imagined experiences of women
in the world.”174
In other words, does enabling gender passing allow for the silencing of racialized categories of
identity? As Margaret Chon has forcefully demonstrated, participation on the Internet tends to encourage
involvement into a “White virtual race,” as the default setting for “normal” tends to encourage “passing”
170
Kang, Cyber-Race, 113 Harv. L. Rev. at 1153.
Kang, 113 Harv. L. Rev. at 1154.
172
See Mimi Nguyen, Tales of an Asiatic Geek Girl, in Undercurrents: at
http://www.noemalab.org/sections/news_detail.php?offset=95&IDNews=362.
173
Id.
174
Id.
171
31
among non-white participants.175 She argues that the lack of a physical, racialized body in cyberspace
undermines a core assumption of critical race feminism: that physical (or “material”) differences among
bodies along the categories of race, class, gender, and sexual orientation produce systematic differences in
political power and access to the legal system.176 This is so for three reasons: first, the dominant
geographic, linguistic and social and economic terrains of the Internet are dominated by those who are
(materially) White.177 Second, virtual race tends to reflect technological constraints: since most identities
are presented textually in cyberspace, rather than representationally, they are often unmentioned, thereby
feeding into the notion of a sort of White default. Finally, Chon argues that most individuals would
probably prefer to rationally opt out of a non-White existence, since this normally carries negative
connotations, in contrast to being White in cyberspace. 178 Thus, while the performative dimensions of
race and gender might encourage a perception of choice and self-determination in identity and expression,
Chon warns that “the vaunted fluidity of identity on the Internet does not work equally in both
directions,” because:
On the Internet, it is harder for this Latino to perform as a Latino based
on his identification with Latin American history, culture and norms,
because non-textual markers such as dress, body, movement, inflection
and facial expression are absence in text-based interactions, which
comprise the majority of Internet interactions.179
Given the trend towards “passing” into virtual Whiteness, Chon offers a less optimistic view of racialized
identities in cyberspace; she argues that “the movement into virtual Whiteness is not one that lifts
everyone up, but rather one that subtly obscures the enduring nature of material racial categories.”180
Thus, instead of liberating us from racial difference, Chon warns that it may actually reinscribe racial
borders and impede understanding.
There are multiple ways we can construe gender performativity in cyberspace, and force us to
explore its normative dimensions. Some, like Haraway, posit the possibility of a complete separation
between self from body, so that gender may become so fluid that it may ultimately cease to exist. 181
Others view virtual identity as simply another type of script that can be used to express the material
175
Chon, 3 J. Gender Race & Just. at 440.
Margaret Chon, Eracing Race?: A Critical Race Feminist View of Identity-Shifting, 3 J. Gender Race & Just. 439
(2000).
177
Id.
178
Id.
179
Chon, 3 J. Gender Race & Just. at 441.
180
Chon, , 3 J. Gender Race & Just. at 454.
181
Chon, , 3 J. Gender Race & Just. at 453.
176
32
body.182 And still others, like Turkle, argue the possibility of manifold selves, of slippages between the
material and the virtual that offer new possibilities of selfhood. 183 As Turkle writes:
more men are willing to give virtual cross-dressing a try. But once they
are online as female, they soon find that maintaining this fiction is
difficult. To pass as a woman requires understanding how gender
inflects speech, manner and the interpretation of experience. Women
attempting to pass as men face the same kind of challenge. These
cultural patterns, learned in material spaces, may overdetermine virtual
responses to gendered virtual identities and ultimately reinscribe gender
hierarchy. In this context, ‘when transgendering does occur it is
collectively interpreted in terms of allowable fiction, deceit, [or]
pathology. 184
Like Turkle, Jodi O’Brien writes that “[i]t is theoretically implausible that the charting of the new frontier
of cyberspace will consist of original forms. Rather the forms of interaction will be shaped by the
existing scripts which we will carry over into this realm as the only means that we know for organizing
interaction.” 185 When a virtual identity collides with a material one, then Internet social interactions tend
to revert to material ways of resolving the disjunction.186 Chon warns that because it is impossible to
fully escape the vulnerability of “materially gendered identities;” there is a risk that virtual gender
relations will simply reenact and thereby reinforce existing inequalities; a factor she terms the “reversion
effect.”187
This leads us to the ultimate question of the relationship between technology and law. Even
when network technology is governed by law, many theorists emphasize that there is another, separate
domain: the domain of “code,” which is typically determined by user autonomy and choice. Can Internet
architecture create a “code” that is more gender neutral, or encourages gender self-determination and
choice, in the same ways—and thereby create a freer, more fluid world of gender performativity? And,
should it? Here, I think it is useful to turn back to the nature of intellectual property and its permeable
boundaries of protection. Like laws that govern speech, intellectual property protections take a neutral
position with respect to the viewpoint of a text. Thus, texts can be created that either demonstrate the
revolutionary possibilities of breaking through gender barriers, or they can replicate painful stereotypes.
The point is that the Internet allows for a true marketplace of ideas to exist, and one that ideally can be
free from material structures like the body and its attributes. Because the Internet allows for this sort of
bodily transcendence, any number of expressive possibilities can result. And, these expressive
possibilities constitute narrative texts that are representative of classic forms of intellectual property.
182
Chon, , 3 J. Gender Race & Just. at 454.
Chon, , 3 J. Gender Race & Just. at 454.
184
Chon, , 3 J. Gender Race & Just. at 443.
185
Chon, , 3 J. Gender Race & Just. at 443.
186
Id.
187
Chon, , 3 J. Gender Race & Just. at 458.
183
33
Here, the fluidity of gender performance in cyberspace suggests that, like any other type of intellectual
property, or fictionalized character of copyright, it does not require that the “author” be named, known, or
even a true representative of the creator. Consider the vast variety of pseudoanymous,, anonymous
authors, or corporate creators: if traditional laws of intellectual property law do not require attribution;
and, if we take the intellectual property aspects of gender seriously, cyberspace should also follow this
directive.188
C. Revising the Material Body
In the previous section, I explored how the virtual self can be an instrument of intellectual
property, a fictionalized iteration of text and representation. In this section, I want to explore how this
argument plays out in the material world, that is, in real life situations that challenge typical notions of the
relationship between identity and sex on the human body.
One of the dominant critiques of Butler (and one that she spends a great deal of time analyzing in
her second work) is that Butler fails to grapple with the meaning of bodily difference; that she spends so
much time focusing on the visual cues of gender and the importance of transgressing them—that she
ultimately fails to provide a concise challenge to the existence of the material body. As a result, Butler’s
discussion provides an undue amount of emphasis on the expressive dimensions of gender, rather than on
exploring performance’s relation to the existence of a “core” or “essential self.” As Weston points out,
“[p]erformatively gendered bodies are like onions whose layers peel back to reveal no core truths, no
seeds of authenticity, no deeply buried masculinity, femininity, or for that matter, hermaphroditic
sensibility. . . There is no ‘there’ there; the layering, like the performance, is the thing.”189 At the center,
then, for Butler, lies nothing.190
Butler’s lack of an essential core, for some theorists, contrasts with the research performed by
some researchers on transsexuality. For some, there is a disjunction between the “physical body” (or its
material entity) and the “social body” (which comprises the way that a body is received and categorized
by society).191 And then there is someone’s own, inner core. Contrast Butler’s asserted non-existent self
“essence” with the arguments of researcher Henry Rubin, who argues that identity is Janus-faced: it is
both socially constructed and absolutely real at the same time. 192 In this sense, it matters not how
constructed an identity actually is, because it always feels “real” to the person who claims it.193
188
Dastar here.
Weston, Gender in Real Time at 82.
190
Id.
191
Balsamo, Technologies of the Gendered Body at 24.
192
Henry Rubin, Self-Made Men at 175.
193
Rubin at 175.
189
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In this sense, identities operate as an internal core from which our free willing agency springs
forth.194 In his research, Rubin asked twenty-two female-to-male transsexuals what mattered to them
most, and was told that their bodies mattered.195 Their bodies had betrayed them, as they underwent
adolescence, which transformed their bodies from prepubescent, androgynous beings into those with
recognizably feminine characteristics. As a result, Rubin writes, many FTMs longed to restore a sense of
parity between their bodies and their core identities through modification.196 For Rubin, as well as
Rubin’s subjects of analysis, “[b]odies are far more important to (gender) identity than are other factors,
such as behaviors, personal styles, and sexual preferences.”197 He continues:
Bodies matter for subjects who are routinely misrecognized by others
and whose bodies cause them great emotional and physical discomfort.
One would do well to remember this when theorizing about the body. To
get our heads around ‘the body’ we must come to terms with the
experiences that subjects have of their bodies. Simply stated, subjectivity
matters.198
Rubin’s account powerfully contrasts with Butler’s notion of a self that is socially constructed, and
otherwise non-existent; for Rubin, bodies facilitate both intra and inter-subjective recognition. They
are powerfully linked to the notion of a “deep subject,” a “core self” or “soul” that is internally
confined within the interstices of the body.
Rubin’s argument is intimately linked to Charles Taylor’s important work on the dual notions of
authenticity and recognition. Authenticity refers to the idea that authority is no longer mediated through
an external entity—king, country, or God.199 Rather, authenticity is conferred by two things: radical
individualism; and by “inter-subjective” recognition, wherein individuals engage in active dialogues with
others who offer social integration.200 In this way, recognition becomes a function of two things:
distinction and integration.201 The ability of the self to recognize itself is a key feature of intra-subjective
recognition; and the ability of others to recognize the self is a function of inter-subjective recognition, as
well. For Rubin, Taylor’s rich theory helps us to understand the transsexual subject, who engages in body
modification in order to recognize their innermost self, who they see as an authentically male entity. And,
194
Rubin at 175.
Rubin at 10,
196
Rubin at 11.
197
Rubin at 11.
198
Rubin at 11.
199
Rubin at 14.
200
Rubin at 14.
201
Rubin at 14; quoting Jessica Benjamin, who writes:
Recognition is the essential response, the constant companion of assertion. The
subject declares, ‘I am, I do” and then waits for the response, ‘You are, you have
done.’ Recognition is thus, reflexive; it includes not only the other’s confirming
response, but also how we find ourselves in the response.
195
35
for Rubin, this process of recognition is not a function of an individual nihilism that denies the import of
cultural norms regarding gender, embodiment, and identity; but instead constitutes a complex process that
ensures recognition for the innermost self. For without such modification, Rubin writes that most FTMs
are subjected to misrecognition by others and by themselves, which constitutes another form of
oppression.202
While Butler argues that all people tend to experience their bodies as expressive of their
identities, the experiences of some transgendered individuals is that their bodies are actually the products
of an “expressive error,” in which their innermost core conflicts with their bodily attributes.203 The men
Rubin describes argue the existence of a number of errors, ranging from the belief that God made a
mistake, to genetic mutations, to chemical imbalances, or underdeveloped or hidden male anatomy.204
For this reason, FTMs view hormonal and surgical technological technologies as potential solutions for
the expressive errors they face.
The debate about whether or not a “core self” exists is circular, and somewhat self-limiting—but
in either case, it still demonstrates that there are elements of gender that bear a distinct and intimate
relationship to intellectual property. What matters is not whether gender expresses something deep and
internal, or something externalized and imposed—but the effect of this performance on our conception of
gender itself. Consider cosmetic surgery. Through cosmetic plastic surgery, the body can become
reconstructed and reconfigured to allow for either unification or convergence between the soul, gender
expression, and audience expectation. “In this way,” one author writes, “cosmetic surgery literally
transforms the material body into a sign of culture.”205 Here, cosmetic and reconstructive surgery allows
for the creation of a material body, thereby demonstrating that gender categories and characteristics can
literally be purchased, “tried on,” and created—irrespective of one’s biological sex. Again, gender
demonstrates a component to identity that is, again, both expressive and commodifiable at the same time;
something mutable, unfixed, and certainly transitory, depending upon the eye of the observer.
[more to come]
Part III: Some Normative Conclusions
In this section, I seek to explain why integrating a theory of gender performativity is so
valuable—indeed, essential—to extending theories of non-discrimination to those that may be left outside
of the current modes of protection for gender and sexuality. Here, in this section, I will advance two
202
See Rubin at 15.
Rubin at 150.
204
See Rubin at 150.
205
Anne Balsamo, Technologies of the Gendered Body at 13.
203
36
arguments—one judicial, and one economic—to explain why integrating a theory of performativity helps
us to reframe current thinking on protections for gender in the United States.
A.
Rethinking the Protection of Gender
[In this section, I argue that the law has insufficiently recognized the difference between
protecting gender identity and gender expression. I argue that that the law should protect gender
as a type of expressive performance, rather than a fixed, discrete identity; in order to protect and
encourage gender as function of individual self-determination.]
One possible strategy towards ensuring protection for both visible gay and lesbian-identified
individuals and transgendered minorities requires broadening the definitional categories of sexual
orientation and gender to include transgendered persons through encouraging a greater focus on
performativity. This situation can be illustrated domestically with reference to the case of Geovanni
Hernandez-Montiel, described by the Ninth Circuit Court of Appeals in the United States as a “gay man
with a female sexual identity” who applied for political asylum.206 While the court uses the language of
identity in exploring his case, it clearly suggested the need for expanding protections for the performative,
and expressive aspects of gender—without requiring that they be mapped onto a certain biological sex.
Here, the court embraced a clear separation between sex, sexuality, and gender expression in crafting an
ingenious solution that embraced all three.
Geovanni, defined as a “gay man with a female sexual identity,” realized that he was attracted to
members of his sex by the time he reached the age of eight, but he also began to dress and behave as a girl
by the time he was twelve. His behavior prompted numerous reprimands from family, school authorities,
and classmates. At the hands of Mexican police officers, Geovanni was targeted for harassment,
detainment, and sexual assault.207 Mexican officials arrested Geovanni twice, telling him that it was
illegal for men to dress as women and for homosexuals to walk down the street. After a failed attempt to
escape to the United States, Geovanni returned home to Mexico to live with his sister, who enrolled him
in a program to “cure” his sexual orientation by altering his feminine appearance. The staff cut his hair,
206
See Geovanni Hernandez-Montiel vs. Immigration and Naturalization Service, 225 F.3d 1084 (9th Cir. 2000).
At one point, his school asked his parents to consent to his expulsion, and then barred him from transferring
elsewhere unless he agreed to change his sexual orientation. A day after his expulsion, his parents threw him out of
the house. Id. at 1088.
207
In one incident, he was forced to perform oral sex on a male officer; in the second, he was anally raped while the
officer held a gun to his temple. Id.
37
nails, and forced him to stop taking female hormones. Yet, because he was not “cured” of his sexual
orientation, he abandoned the program.
Finally, Geovanni returned to the United States and applied for asylum. The Ninth Circuit
adopted the testimony offered by a professor, who testified that certain types of homosexuals are
subjected to greater abuse than others:
... it is ‘accepted’ that ‘in most of Latin America a male before he marries may engage in
homosexual acts as long as he performs the role of the male. A male, however, who is perceived
to assume the stereotypical ‘female,’ i.e. passive role, in these sexual relationships is ‘ostracized
from the very beginning and is subject to persecution, gay bashing as we would call it, and
certainly police abuse.208
For this reason, the Court concluded that gay men with female sexual identities comprise a separate
society in Mexico, and are often blamed for present economic and political problems. 209
Nevertheless, the lower court which heard Geovanni’s case found that he had failed to
demonstrate persecution because he could choose to alter his feminine appearance. Here, the lower court
viewed the manifestation of Geovanni’s sexual orientation as a volitional choice, rather than an
immutable characteristic of his personhood. It observed:
If he wears typical female clothing sometimes, and typical male clothing other times, he cannot
characterize his assumed female persona as immutable or fundamental to his identity. The record
reflects that respondent’s decision to dress as a women [sic] is volitional, not immutable, and the
fact that he sometimes dresses like a typical man reflects that respondent himself may not view
his dress as being so fundamental to his identity that he should not have to change it.
Upon review, the Ninth Circuit squarely rejected this finding, and concluded that the particular social
group Geovanni belonged to comprised gay men with female sexual identities. The court found that both
sexual orientation and Geovanni’s female sexual identity to be fundamental in nature; i.e. “immutable
because it is inherent in his identity.” The court remarked, “they are so fundamental to one’s identity that
a person should not be required to abandon them.”210
The decision represents a most notable example of the possibilities of building strategies that
include theories of gender performativity. Significantly, the court used a hybrid of protecting gender and
sexuality by naming Geovanni as a “gay man with a female sexual identity.” The court’s unique response
highlights the possibility of redefining transgenderism to fall along a continuum of sexual orientation,
without conflating the two, and without excluding one in favor of the other. It also refused to accept a
208
Id.
Id.
210
Id. at 1093.
209
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natural linkage between sex and gender; noting that gender identity does not have to demonstrate a
natural, fixed relationship to sex; a discontinuity which may become expressed performatively and
expressively. And yet, just as Henry Rubin notes in the previous section, gender performativity can still
be a function of one’s core, inner self, and deserving of protection. Citing to various cases and texts that
noted the fundamental aspect of sexual orientation to a person’s sexual identity, the court observed that
sexual identity goes beyond sexual conduct and manifests itself outwardly, often through dress and
appearance.211 Given the trauma which Geovanni faced throughout his life, the court concluded that his
“female sexual identity must be fundamental, or he would not have suffered this persecution and would
have changed years ago.”212
Here, by focusing equally on the interior and exterior aspects of Geovanni’s personality (his
sexual orientation and transgender identity, respectively), the Ninth Circuit’s formulation ably
transcended the overly rigid equation between identity and conduct favored by traditional models of
protecting sexual orientation and gender. It accomplished this by protecting both Geovanni’s subjectivity
as well as his outward appearance by concluding that Geovanni’s manner of dress could not be
characterized as a purely volitional act unrelated to his sense of self. It observed, “sexual identity goes
beyond sexual conduct, and often manifests itself outwardly, often through dress and appearance.” The
Court also claimed that Geovanni manifested his sexual orientation by adopting gendered traits
characteristically associated with women.213 By rejecting the lower court’s finding that he was not
persecuted on account of his sexuality, the court observed that Geovanni’s effeminate dress and sexual
orientation could not be classified as volitional behavior, observing, “[t]his case is about sexual identity,
not fashion.”214
In this manner, the court broadly construed sexual orientation to include transgendered
identification, drawing a key linkage between harassment based on transgender appearance and
harassment based on sexual orientation. The opinion’s conflation of the two is actually a protective move
that captures protections for both sexual orientation and transgender identity through a single theory. It
represents a milestone in ensuring protections for transgendered individuals and other sexual minorities
because it clearly—and unquestionably—broadens the categories of sexual orientation and gender to
include transgender performativity. This linkage represents a complete break with many other cases in
the United States which have refrained from protecting transsexuals on the basis of their sexual
orientation or on the basis of gender. In sum, by observing that one’s gender characteristics can comprise
211
212
213
214
Id.
Id.
Id.
Id.
39
an outward manifestation of one’s sexual orientation, the court ensures protection for both transgendered
and gay-identified sexual minorities.
The Montiel case is also significant because it recognizes the cultural differences that distinguish
transgendered from both self-identified gay and heterosexual individuals who engage in same-sex sexual
conduct. While the opinion admirably refrains from imposing a “gay” self-identity on all three groups, it
ensures that all three receive protection. In sum, by broadening the category of “sexual orientation” to
include transgendered individuals, some of whom manifest their homosexuality by virtue of the adoption
of female characteristics, the Ninth Circuit demonstrates precisely the direction that identity-based claims
to gay and lesbian civil rights must take if they are to be at all inclusive.
Although I think that this case is an excellent example of some of the possibilities of employing
theories of performativity within the law, I also would recommend that courts go one step further in
untethering gender performance from theories of sex, sexual orientation, and classic definitions of
gender—and instead choose to enact protections on the basis of gender expression, rather than gender
identity, in order to enable and protect the kinds of “resistances” to gender that are contained in forms of
gender parody and the like.
[More to come--this part is still (like the paper itself) a work-in-progress. Here, I plan to look at
some additional normative legal possibilities for exploring gender as a prism of performance.
Most of this section will focus on the interrelationship between gender as a commodity and as a
form of expression. I plan to examine a few examples: (1) legal controls regarding the
development of underground markets in gender transformation (hormones, surgery, and the like);
(2) cases where individuals have insured their gender-related body parts and the laws associated
with these forms of protection; (3) recent copyright cases involving critiques of Barbie and other
iconic figures associated with gender norms. In general, I will attempt to argue that the law
already commodifies gender characteristics as a type of property in some areas, but then refrains
from doing so in areas it is most needed, particularly with respect to protecting transgender selfexpression].
40