Genderfucking as a Critical legal Methodology.

• Date: 01 March 2024
• Author: Ashley, Florence
• Published date: 01 March 2024

In this essay, I theorize genderfucking as a critical legal methodology. Genderfucking is defined by its focus on the needs and experiences of those who 'fuck' with gender, resisting attempts at gender governance through laws, policies, and practices. Adopting a politics of messiness, genderfucking is critical of recognition and calls into question the state's legitimacy in defining and policing gender categories. Genderfucking offers a rich and fertile approach for analyzing a social, political, and legal world indelibly marked by regimes of gender and, in so doing, steps on the path towards gender liberation.

Dans cet essai, je theorise le genderfucking en tant que methodologie juridique critique. Le genderfucking se caracterise par un accent mis sur les besoins et les experiences des personnes qui <> avec le genre, c'est-a-dire celleux qui troublent les regimes disciplinaires du genre, resistant de ce fait les tentatives de gouvernance du genre a travers les lois, les politiques et les pratiques. En adoptant une politique du desordre, le genderfucking critique la politique de la reconnaissance et remet en question la legitimite de l'Etat a definir et a controler la categorisation de genre. Le genderfucking propose une approche riche et fertile pour analyser un monde social, politique et juridique marque de maniere indelebile par les regimes du genre et, ce faisant, s'engage sur la voie de liberation du genre.

Introduction
                I. Theorizing Genderfucking
                II. Applying Genderfucking
                III. Examples of Genderfucking in Action
                 A. Gender Markers
                 B. Gender Spaces
                 C. Social Gender Affirmation for Youth
                IV. Situation Genderfucking
                Conclusion
                

Introduction

Gender interpellates us, and we are expected to heed the call by 'figuring out' a relatively stable and legible gender identity. What happens when people refuse? What happens when you have cisgender girls who want to use masculine names and pronouns being asked to prove their gender identity in family court? Trans men who prefer women's facilities for safety or comfort? People who refuse or can't seem to figure out their gender being asked to pick a gender marker? In other words, people whose relationship to gender places them at the margin of gender regimes, if not wholly outside them. How might we craft laws, policies, and practices that are responsive to their needs and experience? In this paper, I theorize genderfucking as a critical legal methodology. Genderfucking offers an analytical lens for critiquing laws, policies, and practices by centring the experiences and needs of people who 'fuck' with gender and thus resist attempts at gender governance.

Complementing liberal approaches to trans legal scholarship that emphasize recognition of trans people's genders, genderfucking gestures towards a politics of refusal that asks us to rethink the place of gender in society and law. Integrating trans people within existing gender regimes may fulfil the needs and desires of some, but it cannot fulfil all. Existence is too messy, gender regimes too oppressive. Rather than emphasizing recognition, genderfucking brings into focus the messiness of human experience and highlights how law's attempts at regulating and managing gender inevitably fail to attend to the needs and experiences of some people. By expounding genderfucking as a critical legal methodology, this paper offers a rich and fertile approach for criticizing and changing a social world that is profoundly and perhaps indelibly governed by gender.

In the first section of the paper, I theorize genderfucking as a critical legal methodology and explain how it emerged out of limits of recognition in trans legal scholarship. In the second section, I offer guidance on how to apply genderfucking and highlight some conceptual tools that are useful in applying it. In the third section, I give examples of how the methodology can be applied to law and policy questions, notably regarding gender markers, gendered spaces, and social gender affirmation for youths. In the fourth section, I situate the methodology of genderfucking in relation to queer theory, trans theory, and applied trans studies.

While my paper focuses on the substantive elements of genderfucking, stylistic elements are also integral to the approach. The present article as well as several of the past writings I mention include puns and jokes, many of them sexual. More than incidental, I would suggest that these stylistic elements are an extension of genderfucking's substance into the realm of form and style. For just as genderfucking rejects the politician's idea that gender must be policed, so does it rejects the academician's idea that writing must be policed. (1) The name 'genderfucking' itself offers a challenge to dominant mores around sex and profanity. Are sex jokes not a celebration of scholarly fucking? Is there not something peculiarly trans about sex jokes? (2) Beyond their substantive teachings, (3) puns and jokes embody genderfucking's commitment to questioning social norms about gender and sexuality and help pierce the obscuring veil of scholarly formalities and detachment. (4) I enthusiastically encourage scholars who deploy genderfucking to demonstrate levity--nay, impiety--in their own writing.

I. Theorizing Genderfucking

To understand genderfucking, we must first appreciate the limits of the politics of recognition that underpin liberal trans legal scholarship in societies mired in Western gender ideologies. (5) Captured in the slogan "trans women are women," liberal approaches to law reform centre on the importance of recognizing trans people's gender identities, qualifying them for full and equal membership in the corresponding gender category. According to the politics of recognition, most famously formulated by philosopher Charles Taylor, our self-understanding is shaped by how others perceive us. (6) When they misrecognize our personal identities, they not only disrespect us but "can inflict a grievous wound, saddling its victims with a crippling self-hatred." (7) Since self-esteem and sense of self are bound up with society, recognition is a "vital human need." (8) These remarks are borne out in psychological studies. Failing to recognize and support trans people in their gender is associated with poorer mental health and social functioning. (9) Philosophical writing on trans issues has stressed the importance of recognition and the gravity of gender misrecognition or misgendering. (10) Much of my own work has stressed the importance of recognition. (11)

When applied as a politico-legal conceptual framework that stresses state and institutional recognition of individual gender identities, however, we run into the limits of a politics of recognition. (12) It is one thing to want society to recognize and respect my gender; it is quite another to ask states and institutions to administer gender recognition. Applying a politics of recognition to trans legal issues makes significant concessions, accepting gender as an organizing category of social life while arguing that membership in gender categories should be predicated on gender identity rather than sex assigned at birth. (13) For those who fall outside of the man-woman binary, recognition rapidly reaches its limits. Under a politics of recognition, non-binary identities are often relegated to a supporting role, inescapably marginalized by the pervasiveness of the binary. I may be glad that my pronouns and gender label will be respected, but what am I to do when all single-user bathrooms are occupied? Pee on the floor? The limits of recognition are also evident for people whose precarious legal status--undocumented immigrants, people who are homeless and/or do not have identity documents, and minors--makes the pursuit of recognition at best futile and at worst dangerous. A politics of recognition expands our gender imaginary but does little to challenge our collective reliance on gender categories. It is unable to offer a radical critique of the institutionalization of gender. Conceding that gender offers a natural or acceptable junction for social categorization is already conceding far too much.

Genderfucking as a critical legal methodology emanates from an appreciation of the limits of recognition. To my knowledge, the term was first used in the methodological sense I intend in "Genderfucking Non-Disclosure: Sexual Fraud, Transgender Bodies, and Messy Identities," which I published in the Dalhousie Law Journal in 2018. (14) The paper bore on the criminalization of trans people who did not disclose their gender modality (15) before engaging in sexual acts, considering the omission a form of sexual fraud. In so-called gender fraud cases, individuals who did not want to out themselves were recharacterized as devious actors trading in active deception, even in the absence of affirmative misrepresentation--implying a duty to disclose. According to the standard critique of these cases, criminalizing trans people as sexual offenders for not disclosing their gender history is wrong because trans men are real men and trans women are real women. (16) The law is wrong because it misrecognizes their gender, turning them into second-class men and women.

While the answer is rhetorically and perhaps legally effective, I found it dissatisfying. By privileging trans men and women to the detriment of others, its deployment of recognition sustained transnormative attachments. Transnormativity is an ideological framework that elevates a narrow conception of transitude into a norm based on its proximity to hegemonic gender ideology. (17) Transnormativity's role in the standard critique becomes particularly blatant once we consider the counterargument that the sexual fraud is not about the person's gender but rather, for example, the use of a dildo rather than a flesh penis. A politics of recognition offers no easy response to these arguments, seemingly limiting its usefulness to only those trans men and...