[Paisley Currah’s Sex Is as Sex Does raises questions about
efforts to achieve equal recognition under laws that sanction
repression and inequality. ]
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PORTSIDE CULTURE

SEX AND THE STATE  
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Sex and the State
December 22, 2022
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_ Paisley Currah’s Sex Is as Sex Does raises questions about
efforts to achieve equal recognition under laws that sanction
repression and inequality. _

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_Sex Is as Sex Does: Governing Transgender Identity_
Paisley Currah
NYU Press
ISBN: 9780814717103

As a program representative for a state social services department, my
primary role is “determinations interviewer.” I conduct short
interviews with people claiming benefits and their various contractual
counterparties, write summaries of the factual information I have
received, and then use legal precedent and established administrative
procedure to determine the claimants’ eligibility for benefits. The
systems, both legal and technical, are highly standardized.

Let’s briefly walk through the standard experience of a claimant.
First, they’re (hopefully) sent their state-mandated forms that
explain, in legal jargon, how to apply. After filling out a long form
with detailed information and submitting it, they’ll typically be
scheduled for an interview with someone like me. These interviews
happen about a month from the claim filing date, and during this time,
any benefits are placed on hold. All interviews are conducted remotely
by phone, all office locations are treated as confidential, and there
are no corresponding public offices. If claimants have issues
navigating the system, we provide them with a customer service number,
which frequently hangs up before they ever reach a human. To maintain
a facade of administrative technocratic omnipotence, we’re
encouraged to rely on wonky “guide sheets” for issues that we have
not been trained on if the claimant asks about them. Claimants often
experience disorientation at every level of the system.

At some point on the job, I began to encounter cases in which the
claimant’s listed sex did not correspond to the pronouns they used.
Here, I found out the instructions were shockingly simple: ask the
claimant what their gender is, then update it in the system. From a
certain perspective, the ease with which I could update the
claimants’ data reveals the gains won by trans people: trans
claimants are, without much fuss, properly recognized by my state
agency and subsequently subject to the same rules as any other
claimant. Take that, transphobia! But after reading Paisley Currah’s
new book _Sex Is as Sex Does_, I’m increasingly convinced that this
is a moral Band-Aid for the injustice of our system: as easy as it is
to acknowledge a claimant’s identity, the barriers for them to
actually receive benefits remain prohibitively burdensome. What good
is equal recognition by laws and institutions that reproduce and
sanction repression and inequality?

 
For a book that seeks to address a seemingly simple question—why is
legally changing your sex so hard?—_Sex Is as Sex Does_ amounts to a
dizzyingly dense 151 pages (not counting endnotes). Currah walks
readers through the political philosophy, critical theory, and legal
scholarship that addresses the current moment in gender discourse and
politics, with little philosophical hand-holding. Those willing to
brave its theoretical depths, however, might be surprised at how
grounded the text is in the facts of its case studies. Currah touches
on Tennessee state legislation, Florida marriage court, New York State
DMV policy, the Maryland Court of Appeals, and numerous other legal
incidents and institutions throughout the book, snapping the reader
back to the stakes of the issue whenever things start to get a little
wooly. The resulting tapestry is a little patchwork, but Currah’s
conversational style and sense of humor keep things mostly cohesive.

Recounting his approach toward archival research, Currah cheerily
reports his passion for

lesser noticed (and much less sexy) apparatuses and domains of
governmentality that even Foucault found too dull to look into:
administration, unenumerated police powers, the population, norms of
classification that precede inaugural moments, texts as dull as the
Domesday Book, regulatory decisions and interpretive rules, and the US
Social Security Administration’s manual for field personnel.

Through this omnivorous, detail-oriented approach to the historical
record, Currah shows that state actors (such as myself) do not produce
transphobic results merely out of a deep-seated fear of those who
transition genders. Instead, the abstract capacity to exercise
socially sanctioned violence comes from particular context-specific
goals, which are often contingent on the imagined role of a specific
agency, department, court, or other organ of the state. The question
becomes: how does the state determine what is “normal” and what
merits investigation, reprimand, or intervention, and why does it
differ so much from case to case and institution to institution?

In the first chapter, Currah hypothesizes that “sex is a legal
effect. Were I a positivist political scientist, I would posit sex as
the dependent variable and the state as the independent variable.”
In other words, our sex, as we experience it, is created by the
structure of the state. And Currah does not believe the state is a
benevolent norm-setter; he cites an essay by the late legal scholar
Robert M. Cover to remind readers that “legal interpretation takes
place in a field of pain and death,” and that the law is in essence
defined by its capacity to inflict harm. What Currah argues is that we
need to loosen and pluralize the concept of “the state.” Just as
there are many genders, so there are many states, all operating
according to their own logic. Ideally, they efficiently interlock with
each other. If the California unemployment system receives word that a
claimant is also receiving disability benefits, that claimant is
supposed to be found ineligible for unemployment because they are not
“able and available to work.” But just as often (including, in my
experience, that aforementioned example), the broad array of
administrative and policy guidelines being implemented all across the
country—by judges and DMV clerks and legislators and call center
workers—have unforeseen implications that can bring these
institutions into direct conflict with each other and create
bureaucratic snarls. 

Currah describes an early recorded case of a state agency inquiring
into best practices for changing someone’s sex classification (the
technical, administrative, and legal term for the M/F/X designation on
your records). In 1965, after receiving such a request from a resident
for the fifth time and determining that “mere bureaucratic blips now
seemed to augur a larger trend,” the director of the New York City
Bureau of Records and Statistics reached out to federal health
officials at the National Center for Health Statistics (part of the
now defunct Department of Health, Education, and Welfare) about
developing a sex reclassification policy framework. The federal
officials replied that “this has been a long-term and difficult
problem for them as well . . . since various agencies carry out
differing responsibilities. . . . The more we delved into the problem,
the more the ramifications that cropped up.” As bureaucrats started
to pull on the thread of sex classification determinations, they found
that there was no secure place to stop.

If, just like “sex,” the state itself is “a poor excuse for an
independent variable, since it doesn’t come with any absolute preset
values,” as Currah argues, then we’re left with “two dependent
variables.” The law itself is a system built from a broad assortment
of ethical, criminological, economic, and political norms, and
executed by public and private actors with varying levels and styles
of training and expertise. If sex means different things for different
people in different contexts, so does “the force of law.” 

Part of what Currah is trying to do in the book’s first few
chapters, heavy with theory and metatheory as they are, is to expose
that “sex” and “the state” have already been destabilized. The
threads have been unraveling, and for much longer than many people,
including trans-rights activists themselves, may realize. In his
telling, the legal “disestablishment” of sex has been a
fifty-year-plus project, in which the “law’s use of classification
regimes to treat people differently diminished as a result of the
civil rights movement and the expanding capacity of apparatuses of
domination to manage inequality outside the formal sphere of the
law.” And the most important factor in loosening sex classification
policies over the past fifty years, Currah argues, is liberal
feminism. “Over the course of the twentieth century, the now
much-maligned classically liberal branch of feminism succeeded in
lowering the stakes for sex classification,” he writes. “An F
[female] designation can no longer be used to curtail civil and
property rights, to deny equal access to education and the
professions, or to enforce heteronormativity through bans on same-sex
marriage.” 

The 2015 _Obergefell v. Hodges_ decision looms especially large here.
By agreeing that marriages should not be restricted based on the sex
classifications of the spouses—an argument encouraged by liberal
feminists—the Supreme Court eliminated one of the most frequent and
successful arguments invalidating trans marriages: that the two
spouses were actually the same sex. _Obergefell_, in other words, has
far broader implications than most people realize. While the liberal
judicial establishment and many anti-discrimination advocates framed
the decision in terms of the right of an individual to marry whomever
they please, the decision renders moot an entire edifice of legal
reasoning over the meaning of marriages, which was used to
systematically argue against the validity of trans marriages brought
before a court, especially for reasons of inheritance or custody. An
analysis of the values of the institutions involved allows us to
better understand the source of their longtime resistance to change.

 
As a sometime advisor for developing trans-inclusive policies and a
prominent legal advocate for transgender rights, Currah is able to
draw on a broad cross-section of legal cases in which the sex of the
plaintiff or defendant was at issue, first in the realm of ID
documents and then in marriage and inheritance law. He produces a
comparative analysis of the legal reasonings at work in each, exposing
the seemingly arbitrary difference between the DMV and marriage court,
which is in fact the result of substantial differences in their
political missions.

The DMV, Currah writes, is more beholden to the role of the
“security state”: technologies are developed to monitor and corral
subjects in physical space: _Are you who/what/where you’re supposed
to be?_ As such, the process to change your sex classification, while
still in many cases arduous, is by now well-established and in line
with the “project” of this securitizing mode of governance. Citing
trans legal advocate Mara Keisling, founder and former executive
director of the National Center for Transgender Equality, Currah notes
that “‘it is in the _interest of security_ [emphasis mine] to have
accurate ID reflecting a person’s gender, not their “hidden
genitals.”’” Earlier, when describing his own journey to modify
his sex classification on his Social Security records, Currah wryly
observes the palpable shift in mood once the window attendant got
approval and instructions from her supervisor on how to update the
status in his record: “The friendliness had ratcheted up
significantly. She was now super helpful and I was super
appreciative.” In this description, Currah subtly gestures at the
undercurrent of tension and distrust that characterizes interactions
with these sorts of agents, many of whom (speaking, again, from my
unemployment department experience) are trained to be constantly on
guard for potential attempts to defraud or misrepresent oneself to the
state.

However, these documents don’t necessarily carry over to other legal
domains. Currah believes that this is because in other legal areas,
rules around sex classification operate according to the logic of the
“nation,” which “provides a form of belonging, of stickiness,
and that enmeshment is forged through institutions that bind the past
to the future, such as marriage, reproduction, and inheritance.”
They are part of a process of determining who is part of the
“story” of the country and who is not—and thus intersect with
issues of citizenship, race, and, in the U.S. case, imperialism. In
one historical example cited by Currah, anti-miscegenation laws played
an important role in the accumulation of wealth and land in Oklahoma
following its admission as a state in 1907. The newly written state
constitution categorized “all persons of African descent” as
“negro” and “all other persons” as “the white race” and
forbade the two newly constituted groups from intermarrying. In doing
so, the long-standing practice of Black people and American Indians
marrying each other was banned, while the marriage of anyone outside
of the “colored” or “negro” races to each other was
sanctioned—thus ensuring that any transfers of remaining Indian land
holdings would flow in the direction of the white people of Oklahoma,
not dispossessed Black folks living under Jim Crow.

For trans people in otherwise “normal” heterosexual marriages, the
tight monitoring of social reproduction encouraged by this conception
of “nation” has led to some highly intrusive and frankly
disturbing forms of legal reasoning and precedent. In one of the most
memorable sections of the book, Currah traces the historical arc of
judicial reasoning about the validity of heterosexual marriages in
which one of the parties was trans. In New York district court in the
1970s, your “ability to engage in heterosexual intercourse” could
make or break your sex classification, and thus the legal validity of
your marriage; a series of cases in Kansas, Florida, and Kentucky set
the standard of determination at birth. (In all of these cases, the
issue of a person’s “true” sex is instrumental at best—most
involve custody battles or inheritance suits.) These pre-_Obergefell_
sex classification cases in the realm of marriage court and
inheritance law often explicitly invalidated marriages simply because
of a spouse’s status as trans, out of a perverse fear of _I Now
Pronounce You Chuck & Larry_ situations that would allow capital
transfers (whether in the form of inheritance or custody) outside of
the normative family structure.

By looking at the contradictory outcomes of these cases—how someone
who was allowed to change their sex on their ID documents could be
found to be a different sex for the purposes of marriage
court—Currah shows us something about both the social position of
trans people and the society which governs them. “If we dispense
with the one-size-fits-all explanation that sees the presence or
absence of transphobia as the cause of the divergent outcomes, it
becomes clear that M and F were not immobile essences for these state
actors but malleable outputs in the service of different governing
projects,” he writes. “These differences were made visible by
individuals who moved from one gender to another, but the significance
of this analysis is not limited to the situations faced by trans
people.”

In many of these cases, that simply means that your life doesn’t
quite fit into the boxes the state has created. But as the marriage
court cases (most of which were decided against the trans party, thus
depriving them of custody, inheritance, or even survivors benefits)
show, these gaps have real, potentially life-altering consequences. In
the pre-_Obergefell_ case law, when push comes to shove, if your dead
spouse’s family hated you and you happened to be trans, they could
sue you and they would probably win. For those who find themselves
fighting these uphill battles, the farce of the legal system’s
mythic universal rationality becomes crystal clear—as does its
preference for certain “types” of people.

 
The part of Currah’s framework with the most practical relevance for
contemporary left organizing is his analysis of the institution of
prison. While he acknowledges the comparative harm that trans
prisoners experience, he emphasizes that there is a much greater gap
in treatment between trans non-prisoners and trans prisoners than in
the treatment of trans prisoners and cis prisoners. Currah forcefully
denounces the idea, promulgated by some trans legal activist
organizations, that trans suffering in prisons could be sufficiently
mitigated through proper trans-inclusive diversity training. Reforms
like these, Currah writes, are rearranging “deck chairs” while
assuming “the fundamental soundness of the ship that is
incarceration.” As further evidence, he cites the “freeze-frame”
policy that governs most trans prisoners, under which you are
forbidden from moving any further in your transition process than you
were when you were first incarcerated. The reasoning for this policy?
Essentially, that prison is so awful that it would be impossible to
gather reliable psychological data on a patient’s transition.

Currah points to the rhetorical tendency among activists and allies to
focus on the compounding effect of each “layer of
discrimination”—“we need to care about trans lives, especially
trans women’s lives, especially trans women of color’s lives.”
He argues that, when misapplied, this can lead to superficial
improvements where the forest is lost for the trees. The reality of
the institution of prison is so abject and inhumane that the best
policy development for trans people is the same as it would be for the
majority: abolition. (Currah cites two other examples where a similar
approach is warranted: healthcare and income inequality.) After
meticulously tracing gendered domination in earlier chapters, Currah
makes a forceful return to a universalizing point of view, albeit one
also heavily shaped by one’s class position. 

Currah doesn’t want to throw the intersectional baby out with the
anti-discrimination bathwater, but he does want us to think critically
and deeply about power, material conditions, and distributional
outcomes. In the case of my trans claimants, for example, their
identities are recognized by the state’s social insurance system,
but what good has it done them? They are subject to the same inhumane
administrative burden. The gender identity of claimants is marginal to
the process; the relevant question is, “Are you going to get enough
money to survive?”

 
Currah’s reduction of “what sex is” to “what sex does”
through the law precludes him from addressing some of the most
interesting implications of his comparative analysis. For one: sex
plays a similarly important role in other forms of professional
discourse. In the medical field in particular, the performative
utterances that underlie practitioners’ determinations hold the same
threat of violence and deprivation as they do in, say, marriage court.
The process of transitioning is almost as humiliating and laborious as
applying for unemployment benefits, essentially requiring three
letters of recommendation from different therapists as you toe the
line between under- and over-playing your level of gender dysphoria:
too far in either direction, and you could be found unsuitable for
treatment. What norms determine who should be allowed to medically
transition, and what do they imply about the mental health
profession’s values? The ongoing norm of making sex determinations
for infants born intersex (that is, with a mix of different
physiological sex characteristics) raises similar questions about what
sex “means” in this context. 

_Sex Is as Sex Does_ also comes out amid an ongoing and escalating
right-wing war on trans people. Currah challenges a framework of
anti-discrimination that labels political opponents as
“transphobic” by exploring the _usefulness_ of the gender binary
for developing, maintaining, and naturalizing a wide array of systems
of control. Because of this focus, he unfortunately underplays the
implications of an explicitly Christian conservative form of
jurisprudence grounded in appeals to natural law. For whatever reason,
Currah is unable or unwilling to speculate on the extremely plausible
possibility that a reactionary Supreme Court would simply reverse the
supposedly sex-disestablishing _Obergefell v. Hodges _decision. He
leaves it to future authors to elaborate on the theoretical
underpinnings and potential implications of this attempt to
reestablish the gender binary within the state. 

None of this should discount the value of Currah’s methodological
and analytical approach, which should be a model for scholar-activists
across disciplines. _Sex Is as Sex Does_ disentangles the
contradictions of liberal transgender rights legal advocacy and
reconnects trans issues to the feminist movement. It also provides a
framework for more accurate, and actionable, assessments of how
different oppressive dynamics interlock and conflict via the
ideologies of heterogeneous ruling institutions, whose categorizations
have real material effects. What remains is the hard work of applying
this framework to map the political economy of these
institutions—legal and beyond—and find effective ways to contest
them through solidarity, action, and dissent. 

ALLISON BROWN (she/they) is a civil servant, freelance writer, and
organizer. They love music. They are one of _Dissent’_s 2022
Emerging Writers.

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