M.Bonfili –Philosophy of Law, 2015
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According to queer theory gender identity is
a scoial construct
Gender identity is neither natural nor
essential of the person
There is a “gap” between what an individual
does and his ego
GENDER THEORY
QUEER THEORY
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Sex natural
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Sexconstructed
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Genderconstructed
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GenderConstructed
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tends not only to equality and tolerance but to a
general institutional destabilization of identity and to
a radical subversion.
does not stop the deconstruction of the subject : it
affects mainly the deconstruction of the social order .
its objectives are socio - political .
it comes to sow disorder in the normative tendencies
of the sexual order
to change culture
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Wittig speaks of " demolishing conventional rules "
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It’s a subversive project of sexual and social re-founding.
It pushes to rethink the identity beyond social normative
frameworks which consider sexualization as constituting a
binary division between humans, this being based on the
idea of complementarity in the difference and actualized
mainly by the heterosexual couple.
 queer theory affirms dogmatically that identities, not
being fixed, do not fit into categories of sexual orientation
that would “imprison” the individual in a single restrictive
sexual orientation: queer theorists fight them ,
deconstruct them .
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the expression "identity without essence " well
expresses the ideological agenda, not only of
queer theory, but of post-modernity.
it is irrational : a contradiction in terms because
identity may not be deprived of an identifiable
content
What could an identity without essence be?
If queer theory denies the exsixtence of nature
and of a female or male identity, moreover, if
queer idenityt is essence-less, what is the
concrete proposal of queer theorists ?
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on the one hand , the affirmation of identity
is strategically necessary to accomplish its
revolution: without identity affirmation how
can queer destabilize the heterosexual norm
culturally dominant in the world, changing
the contents of education, upsetting society?
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on the other hand , an individual who declares
himself queer chose to wander outside of himself
; wrongly shifting continuously from one gender
to another, depending on the circumstances, the
randomness of the encounters, sociological
developments, on his aspirations. Even if he
wanted to define himself, it would be impossible
for him: he no longer knows who he is, having
left himself and not seeming convinced to come
to his senses, at least until he grasps to a
phantasmagorical identity.
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first of all we can underline it’s virtual side typical of
postmodernity
queer identity is not only victim of its “potentiality”,
but also unable to be realized: an identity that has its
basis in reality could not in fact ever be realized. It
reminds us of Freud’s undetermined Es (Id)
Sedgwick (American academic scholar in the fields of
gender studies), defines queer identity in this way:
queer connotes etymologically a crossing of borders
but that does not refer to anything in particular thus
leaving the question of its denotation to challenges
and revision
The second consideration concerns the asocial character of
queer identity : it has this peculiarityit can not be
established if not by self-designation. In other words queer is
only who can publicly declare to be so, not who is declared
such by society.
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The self-designation process expresses the individual desire
of absolute sovereignty on his identity, his existence , and his
being , but also on society that he manipulates refusing to
identify himself for what he really is.
queer theory exalts the idol of materialism, that
is matter (the sexed body) ,fluid, porous ,
without substance.
 at the end of the revolution has transformed
reality - scientific , material , spiritual- in virtual
reality .
 According to queer theorists biology is
unreliable: for example chromosomes can create
unusual combinations
 In their opinion intersex cases would prove that
classification of individuals in man or woman is
not absolute
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AFFIRMATION OF QUEER IDENTITY
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affirmation: to own one’s
own choice and destabilize
heteronormativity
REJECTION OF THE DEFINITION OF QUEER
IDENTITY
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not define : to keep in a
state of perpetual choice
and remain free from any
identity
M.Bonfili- Philosophy of Law 2015
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Is it possible to become without being?
No
One becomes only if he/she is
Being is the presupposition and the postulate of
becoming
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The gender/queer is the evanescence of the self,
which is reduced to an imagined scheme
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The self is dissolved in the process of do-ing/undoing
that is reproduced indefinetely and never
conclusively, always destabilised and destabilising
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The becoming, without being, is manifested
in a provisional,nomad,fluid,liquid way: a
mere confusion and mixing of properties and
acts.
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But there would be no properties and acts,
the process would not be done, if a
substantial self did not exist, unifying the
fragmented and permaenet multiplicity,
making it possible, perceptible,expressable.
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The properties/acts presuppose the reference
to something or better someone (the
doer)that is more than the sum and series of
the parts, which unifies them in space and
lasts in time. Otherwise I cannot say that the
properties are “mine”, that the acts are the
expression of “me”.
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This is why “becoming”presupposes being.
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Annull the being
Exhalt the becoming
Obsessed by the self
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The becoming is expressed in the proliferation of
choices: instead of un-doing identity, it is reborn
and is indefinetely reproduced.
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The fluidity of post-gender and queer is in
contrast with the real conditions, the actual
sexed incarnate individuals.
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Whoever, against the gender and queer
theories, accepts the “being” and the
“becoming in being”, is a “cis-gender”
Term coined in conext of post-modern
theories
Descibes whoever accepts and lives the
correspondance between their male or
female sexed body and their subjectivity of
man or woman, their concordance between
their sex and their gender.
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“Cis” in Latin means “on the same side”in
opposition to “trans” which means “beyond”
or “on the other side”
Is whoever is aware of how he/she is born,
accepts education behaving and perceiving
themselves according to social expectations
and structured roles:
Whoever experiences the coincidence
between birth/education/behaviour/interior
feeling is “cis”
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To affirm that sex is the substantial determination of personal
identity and to deny the malleability/arbitrareness of gender does
not mean to go back to the static idea of biological determinism
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The ontological perspective (the becoming in being or becoming
from being) allows a variability.
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To allow the variabiltiy of gender means that the “becoming”does
not involve predetermined and predeterminable automatisms
(otherwise “being” and “becoming” would coincide)but id does not
even allow approaches of radical arbitrary modification (otherwise
“becoming”would deny “being”)
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It is along this inter-mediate line that a re-semantisation of the
gender category is possible, even distancing oneself from the
gender and post-gender theories.
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Not a construction of society/culture/desire
and will
Cannot impose itself arbitrarily on the nature
of being
This does not question the fact that the ways
of understanding and living femininity and
masculinity have changed in time and
society, and have different expressions in
cultutral contexts and can be modified in the
future
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This does not mean denying “becoming” but
rather to legitimize “becoming in being”
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Becoming not the mere casual movement
from one place to another /from one identity
to another
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But must be understood as an Aristotelian “from
something towards something”
As a rational recognition in nature of:
the sense and direction of development
The intrinsic potentiality to be actualised
In this sense identity is recognised as the search
for harmony between birth/interior
perception/social role
 Gender identity is understood as proving one’s
sexual identity true, like becoming what one is.
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Concerns psychological features and social
roles(which are accidental), not the subjects
sexed bodies (substantial)
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Physical and sexual identity is and becomes
psycho-social gender, in interaction and
integration.
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Man is and becomes man
Woman is and becomes woman by means of the
interaction of intrinsic physical factors and
external psycho-social ones.
WOMEN
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Psychological traits/social
roles orientated to child
bearing and childcare
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More concentrated on
talking care
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CHANGES IN SOCIETY
Can lead women to be
more agressive without
being masculine
MEN
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Men characterized by
strength and transformatio
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Men are more
concentrated on carrying
out the task
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CHANGES IN SOCIETY
Can lead men to be more
delicate without being
feminine
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Masculinity of the woman or effeminacy of
man can highlight an interference of traits
and roles, which must not be confused with
the interchangeability of bodies or confused
identities
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recognized as a gender identity disorder”
insofar as it expresses a disharmony
between the exterior and interior
dimension of oneself.
The causes leading to such a state (whether
organic or non-organic) are not yet clear, butdespite scientific uncertainties- it is
considered ethically and juridically important
to allow the subject to recover the harmony
between the external and internal dimension.
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By means of a correct diagnosis it is
indispensable for the doctor to ascertain and
to exclude the presence of any form of
mental disorder.
The therapeutic surgical-hormonal sexreassignment strategy forsees a transition
period allowing the recovery of a condition of
soma-psyche harmony.
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As regards specifically, the recognition of the
right to sex and gender reassignment, with
recognition of legal status (name change and
ability to marry the opposite sex) different
legislation throughout Europe.
Few Countries have no regulation. As of April
2015, no gender identity recognition bill has
been introduced in Ireland.
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In some Countries where same-sex marriage
is not allowed, for example, transsexuals are
offered recognition as long as they willingly
cancel there marriage or the marriage is
cancelled in force of the law.
In some Countries medical hormonal
treatment
is
necessary
and
sufficient(Germany)in
other
surgical
treatment is required.
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Transexualism has legal relevance in our system. In
1982 Italy became the third nation in the world to
recognise the right to change one’s legal gender.
Before Italy only Sweden (1972) and Germany (1980)
recognised this right.
With Law No. 164/82 on gender reassignment, the
Parliament admitted the divergence between one’s
legal sex and sexual attributes, on the one hand, and
the psycho-sexual and gender identity, on the other,
which characterizes the transsexual individual, and
provided a procedure enabling transexual persons to
fully express their personality.
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The juridical recognition of the modification of the body
does not express the individual’s autonomy exaltation
and the devaluation of the body. On the contrary it
introduces an exception to the general principle of the
non-disposability of the body.
After the entry into force of the Act 164 of 1982 , the
Italian Supreme Court invoked the intervention of the
Constitutional Court, arguing that the act was
unconstitutional under the article 5 of the Civil code,
forbidding the acts of disposal over own body, with
reference to the article 32 of the Italian Constitutional
Charter, which guarantees the right to health.
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The Constitutional Court, in its decision no. 161
of 1985, not only declared the constitutional
legitimacy of the act but recognized the
existence of a fundamental right to gender
identity.
The Court acknowledged the “contrast between
pyschological and biological sex” in transsexual
persons, but, above all, it admitted the fact that
the law had accepted a new concept of sexual
identity based not only on a person’s sexual
attributes, but also on psychological and social
factors.
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With such discipline, the legislator has
specifically recognized the person affected by
a gender identity disorder (GID) the right to
bridge the gap between the anagraphic sex
and the psychological sex, editing identity
records.
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According to Law 164/82 a person who is at
least eighteen can ask for his/her civil status
to be amended when modifications in her/his
sexual characteristics have occured.
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The law does not specify whether such
modification should be the consequence of
sexual reassignment surgery, or of hormonal
treatment.
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The jurisprudence has clarified that from a
legal point of view a person can be recognize
in a transsexual a different sex when the
psychological attitude is confirmed by the
acceptance of surgical treatment in order to
modify, as far as possible, external genital
organs. So the undergoing of sexual
reassignment surgery is considered an
indispensible condition.
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Only in a few isolated cases the change of legal
sex and name has been authorised even without
the surgical intervention: Rome 1997, Rovereto
and Siena in 2013. It must be pointed out that in
those cases, actually, the intervention had been
previously established by the judge but it could
not be carried out due to the health conditions
of the person concerned; in other circumstances
the change of name was authorised when the
name chosen was not unequivocably a male or
female name.
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With the ruling of november 4th 2014, the
Court of Messina granted S.D. to change sex
and consequently even legal gender without
undergoing sex reassignment surgery.
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1)the judge affirms that "the adjustment of
sexual characteristics to be achieved by medical
and surgical treatment" is foreseen by the law,
only "when necessary". In this way it would
connotes the surgical intervention just as a
"possibility and not as compulsory”
For major jurisprudence a person can be
recognize in a transsexual a different sex
when the psychological attitude is confirmed
by the acceptance of surgical treatment in
order to modify, as far as possible, external
genital organs.
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2) the Court rules that the term "adaptation"
does not imply a modification of all the sexual
characteristics, primary and secondary , being
sufficient the change of the secondary
characteristics when the person has already
reached a psycho-somatic balance and fulfilled
awareness on sexual identity.
Interpreting extensively this opinion, risk that
Italian law can be extended even to
transgenderism (that is, sexual identity as a
variation of mere hormonal treatment).
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According to the judge, forcing someone into
sex reassignment surgery would
"grant
prevalence to the community’s interest to the
correspondence between material corporeality
and legal(registry)sex - interest not covered by
the italian constitutional charter- at the expense
of the same interest to personal identity, which
instead is an inviolable right recognized by
Article. 2 Const. and by European and
international standards.
The indispensability of surgery practice is considered
"cruel ", given that the right to sexual identity could be
validly exercised through a formal legal process of name
and sex change in civil status registers" allowing it to
appear socially in accordance with the psychological sex "
 A large part of the lower courts argues, that the
regulations foreseen in Italy on the subject of
transsexualism express the protection of the state’s
interest, oriented to the individual’s gender certainty,
male or female: an overriding interest that would
exclude any form of balancing of interests of the people
involved (as acknowledged by the Constitutional Court
judgment of 06.11.2014).
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The judgment of sex reassignment causes the
dissolution of marriage or termination of civil effects
resulting from the transcription of a religious
marriage. There is no change in the relationship with
children.
In 2005 an opposite-sex couple got married. Some
years later, Alessandro, the man, decided to transition
to the female sex. In 2009 Alessandro became
Alessandra. Later the couple discovered that their
marriage was dissolved because the couple became a
same-sex couple, even though they did not ask a Civil
Court to divorce.
The couple asked the Civil Court of Modena to nullify the
order of dissolution of their marriage. On October 27,
2010, the court ruled in favour of the couple. The Italian
Ministry of Interior appealed the decision and this time the
Court of Appeal of Bologna reversed the trial decision.
 Later the couple appealed the decision to the Supreme
Court. On June 6, 2013, the Supreme Court asked the
Constitutional Court whether the Law on Transsexualism is
unconstitutional when it orders the dissolution of
marriage by applying the Divorce Law (Legge 1 dicembre
1970, n. 898 ) even if the couple did not ask to do so. In
2014, the Constitutional Court ruled the case in favour of
the couple, allowing them to stay married.
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Can be collocated on a different level:
Transexualism expresses sex/gender and thus
body/sex distress within sexual binarism: MtoF
or more rarely FtoM
Intersex and transgender persons claim the right
to claim a third gender beside the F or M gender:
a “neuter gender” status.
The intersexual’s proposal of legitimizing the
registration of a “neuter gender” is unacceptable
since it would harm and hinder the individual’s
harmonious sexual identification, hindering the
child’s correct existential identification process.
The claim for the legitimization of the transgender
condition is problematic, in consideration of the possibility
to be and act in the co-presence of male and female
elements transitory or permanent, with or without partial
changes or no change of the body.
 Claim seems to be guided also by desire of transgression.
But transgression implies the same exisitence of a nature
to be transgressed. To transgresspass limits no limits
limitsno transgression
 The same description of transgender tries to avoid or
overcome thus inevitably referring to it, the male/female
binary: to be neither male nor female/males and females
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Gender and queer theories empty meaning of
“traditional family”
Rainbow family is the “un-gendered family”
Pluri-chromaticity of the multiplicity of choices
against the mono-chromaticity of the traditional
family
Family life together of individuals who desire and
want to live together regardless of their gender
identity and sexual orientation.
Gender theories welcome ways of understanding the
family in a broader way as socio-historical innovation
Family accidental phenomenon/variable/exaltation
of individual’s desires
Natural/authentic/original importance of traditional
family is denied
 Place where “family members” pragmatically share
interests and solidarity on the basis of a reciprocal
affective bond ignoring sexual difference as well as
the duration of the relationship.
 Rainbow families are not only civil or matrimonial
unions between homosexuals which seek equivalence
with heterosexual unions/marriages
 Rainbow families open up a dimension that goes
beyond monosexuality.
 They open up to bisexuality.
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Polymory is exalted against sexual monogamism:
presence at the same time of more than one partner
at the same time creating open and multiple relations
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February 2015 - A trio of gay men from Thailand got
married on Valentine’s Day in Uthai Thani Province,
Thailand, according to Caters News Agency.
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Queer theory goes beyond the
hetero/homo/bisexuality relational dimensions in that
they presuppose sexual bipolarity (2 heterosexuals/2
honosexual individuals) or homologous way
(relationship between individuals that make-up the
couple) confirming(heterosexuals) or
denying(homosexuals) sexual difference
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Hetero/homo normativity is feared because
its perceived as limiting with respect to
rainbow family created even with
transgenders and intersex persons.
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Rainbow family is characterized by exaltation
of any sexual preference or tendency (incest,
paedophilia,zoophilia)