Stemming from the ‘transgender moment’ of the early 1990s (Stryker 2019), gender has been under the spotlight as more and more individuals are identifying as neither male nor female. The growing visibility of gender non-binary people has fuelled the debate around official markers of gender across the globe. The restriction of one’s sense of a gendered selfhood to just two opposed categories, male and female, violates the reality of human experience and condemns people to a binary confinement that should be broken. Rather, as Judith Butler argued, ‘One should be free to determine the course of one’s gendered life’. The freedom to self-determine gender has been a central claim of trans and non-binary people in their struggle for rights and recognition. Such a powerful claim has landed in a moment now crowned as ‘the transgender tipping point’, to evoke a 2014 Time magazine cover, that gained momentum while fostering all sorts of legal and political responses.
However, even if the state is called to take action, the strategies for dealing with the ‘administratively impossible’ (borrowing Dean Spade’s expression) are not consensual. While transforming gender classification systems is key, legal solutions for moving beyond binary norms of sex/gender, and the ‘either/or’ assumption that femininity and masculinity are biologically determined and mutually exclusive, has been loaded with controversy. Whether gender would be officially abolished, multiplied or both, a one size fits all solution seems to exclude as much as it includes. One problem is perhaps, as Butler also notes, that while ‘some want to be gender-free […] others want to be free to really be a gender that is crucial to who they are.’
In this battlefield, some argue for the elimination of sex/gender classification policies as the only way to dismantle a society in which hospitals, prisons, toilets and bureaucratic forms are gender-segregated. After all sex classification policies cause significant harm to those who, in a variety of ways, do not fit the binary norms of gender. Davis (2017) questions the legal purpose of such policies, which for the most part are not related to any legitimate policy goal. Furthermore, classification schemes transfer the personal matter of gender identity to administrative agents who use their own gender norms at their own discretion. Therefore such schemes should be abolished and not bent, and current legal solutions reshaped. The struggles around intersex variation can be an exemplar. Contesting third gender laws in Australia, New Zealand, Germany, or India and Nepal –which have been frequently mediatized as progressive – some activists state that ‘third classifications’ (such as X or indeterminate) might well contribute to reinforce the gender binary and not otherwise.
The elimination of gender markers would suit the multiplicity accommodated under the umbrella term trans while avoiding the harms generated by unfitting categories. Indeed, terms such as transgender or trans are used metaphorically to capture all identities falling outside dominant gender norms associated with cisgender individuals. Against classification apparatuses of normalization that impose conformity between gender identity and the gender assigned at birth, such alternative actions of naming represent a form of resistance, and in some contexts have been successful in shifting legal frameworks.
Legal developments show, however, a tendency to regulate gender markers (even if eliminating sex or gender from some documents and procedures), thereby expanding the binary classification. In this vein, in 2015, the Council of Europe approved a historic resolution (Resolution 2048) on trans persons’ human rights, encouraging countries to consider adopting third options on legal documents, enabling individuals to identify as gender non-binary. Alongside anti-discrimination policies, the struggles against pathologisation and for self-determination, including the right to choose one’s own gender without a medical diagnosis, became central claims for trans activists, with gender identity laws already being changed or under discussion in a number of countries across the globe. Although gender identity laws are today in place in more than forty countries, the right to self-determination was approved in a much smaller number of cases. Indeed, the possibility for adults, and sometimes minors, to alter their official gender without the need for any external approval or validation is now legal in countries across Europe, Latin America, North America, and Asia. Including Argentina (2012), Denmark (2014), Mexico City (2014), Malta (2015), Ireland (2015), Colombia (2015), Bolivia (2016), Ecuador (2016), Norway (2016), Belgium (2017), California (2017), Canada (2017), Luxembourg (2018), Pakistan (2018), Portugal (2018), and Chile (2018).
‘Third gender’ or ‘no gender’ markers are also available in a number of countries, whether covering only intersex people (as in Germany) or all people who identify with a non-binary gender (as in Malta). Including, among others, Nepal (2007), India (2009), Pakistan, (2009), Australia (2003), New Zealand (2012), Denmark (2014), Malta (2015), Canada (2017), Oregon, California, Washington (2017) and Germany (2014).
One key response to the continued exclusion of transgender people has led to numerous legal developments, to the extent that a politics of transgender recognition is frequently equated with legal rights and regulations stemming from state’s intervention. However, regulation comes with a price. A model of the official trans person, most often ignoring all forms of intersectional disadvantage trans people undergo, materializes rapidly to the detriment of plural claims and identities. Moreover, recognition, and legal recognition in particular, can produce both enabling and disabling effects. In fact, recognition, regardless of its quantum, is necessarily fragmented.
If the absence of recognition denies existence and visibility, current forms of legal recognition might also contribute to marginalization. Frequently, the freedom to self-determine one’s own gender is limited to restrictive legal categories, and third-gender markers become official in ways that do not truly challenge the binary structure of gender. Rather, as Hossain (2017) points out, official recognition of the Hijra – considered neither man nor woman, but a third gender – mainly fostered the mainstreaming of an institutionalized ‘disability’.
From this perspective, suspicion of governmental regulation is understandable, with the solution residing then in the undoing of all gender classifications, as argued for by Susan Stryker. In fact, accompanying the quest for gender freedom, a tension between multiplying and abolishing gender also crept into trans rights activism in tandem with the growing visibility of trans and non-binary identities. As Jack Halberstam (2018, 12) clearly states: ‘While some strands of transgender activism have committed to the abolition of state regulation (…) others have committed to a politics of recognition…’
When the far right is gaining political space, and ultra-conservative world views conspire to reinstate the primacy of biological notions of sex, the debate about sex and gender classification policies remains fuelled by ambiguity and controversy. Let alone the genealogy of labels and claims voiced by feminist or trans-feminist interventions, sexual and gender justice are, once again, pervaded by tensions between a ‘no-gender utopia’ and the expansion of binary gender classification systems to accommodate multiple official genders. Such battles are not new. Back in the 1970s, radical feminist Shulamith Firestone had already argued for the abolition of what, inspired by Marxism, she saw as sex classes. As Firestone wrote in The Dialectic of Sex ‘…the end goal of feminist revolution must be, unlike that of the first feminist movement, not just the elimination of male privilege but of the sex distinction itself.’ Nowadays, the recognition of trans rights refuelled the debate and expectations of rebuilding the gender order and its classification systems anew. Nonetheless, in this difficult struggle, paraphrasing Christine Delphy, the ‘main enemy’ lurks in the form of a conservative biologistic ideology eager to justify oppression and privilege. Whether in politics or life, and for better or worse, gender is much more than just a name.
 In south Asian countries, like India, Pakistan or Bangladesh, the term Hijra refers to people assigned male at birth who have a feminine gender expression. Within non-Western cultures, individuals from groups such as such as the Berdache in North America, the Kathoey in Thailand, the Fa’afafine in Samoa, among others, are sometimes considered to comprise a ‘third’ gender, that is, gender identities that do not fall exclusively in man/male or woman/female categories. They may or may not identify as transgender or non-binary. In fact, non-binary is a more common umbrella-term in the West.
Davis, Heath Fogg. 2017. Beyond Trans: Does Gender Matter? New York: New York University Press.
Halberstam, Jack. 2018. Trans: A Quick and Quirky Account of Gender Variability. Oakland, CA: University of California Press.
Hossain, Adnan. 2017. The paradox of recognition: hijra, third gender and sexual rights in Bangladesh. Culture, Health & Sexuality19 (12), 1418–1431.
Sofia Aboim is a permanent research fellow at the Institute of Social Sciences of the University of Lisbon. Her research interests include gender, feminisms, masculinity studies as well as social theory, justice, inequality and post-colonial studies. She is currently working on book projects about gender futures, power and justice while developing research on the same topics. She coordinates the project TRANSRIGHTS – Gender citizenship and sexual rights in Europe (Consolidator Grant) financed by the European Research Council (ERC). The research leading to this article received funding from the European Research Council (FP/2007-2013)/ERC Grant Agreement ‘TRANSRIGHTS: Gender citizenship and sexual rights in Europe (615594).