Table Of Contentthe politics of
RIGHT SEX
SUNY series in New Political Science
—————
Bradley J. Macdonald, editor
and
SUNY series in Queer Politics and Cultures
—————
Cynthia Burack and Jyl J. Josephson, editors
the politics of
RIGHT SEX
transgressive bodies, governmentality,
and the limits of trans rights
courtenay w. daum
Published by State University of New York Press, Albany
© 2020 State University of New York
All rights reserved
Printed in the United States of America
No part of this book may be used or reproduced in any manner whatsoever
without written permission. No part of this book may be stored in a retrieval
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For information, contact State University of New York Press, Albany, NY
www.sunypress.edu
Library of Congress Cataloging-in-Publication Data
Names: Daum, Courtenay W., author.
Title: The politics of right sex : transgressive bodies, governmentality,
and the limits of trans rights / Courtenay W. Daum.
Description: Albany : State University of New York Press, [2020] | Series:
SUNY series in new political science | Series: SUNY series in queer politics and
cultures | Includes bibliographical references and index.
Identifiers: LCCN 2019036159 | ISBN 9781438478876 (hardcover : alk. paper) |
ISBN 9781438478883 (ebook)
Subjects: LCSH: Transgender people—Civil rights—United States. | Transgender
people—Legal status, laws, etc.—United States. | Gender nonconformity—Political
aspects—United States. | Pressure groups—United States. | United States—
Politics and government—2009–2017. | United States—Politics and government—
2017–
Classification: LCC HQ77.95.U6 D38 2020 | DDC 323.3/30973—dc23
LC record available at https://lccn.loc.gov/2019036159
10 9 8 7 6 5 4 3 2 1
Contents
Preface vii
Acknowledgments xiii
Introduction 1
Part One: Transgressive Bodies
Chapter 1
Binary Identities and the Construction of Privileged versus
Transgressive Bodies 25
Chapter 2
The Complexity of Gender Identities and the Dangers of the
Politics of Right Sex 43
Part Two: Governmentality
Chapter 3
The Illegibility of Trans Bodies: How the Mandatory Reporting
of Gender Markers on Identity Documents Facilitates
Governmentality 67
Chapter 4
“No Men in Women’s Bathrooms”: De Jure and De Facto Policing
of Sex-Segregated Bathrooms as a Means of Social Control 89
vi Contents
Chapter 5
The War on Solicitation and Intersectional Subjection:
How Quality of Life Policing Is Used as a Tool to Control
Trans Populations 111
Part Three: The Limits of Trans Rights
Chapter 6
The Viability and Efficacy of a Trans Politics of Rights 133
Chapter 7
Trans and Queer Counterpublics and Transformative Change:
Collective Liberation not the Politics of Right Sex 157
Notes 185
Works Cited 215
Index 231
Preface
On June 26, 2015, the U.S. Supreme Court decided Obergefell v. Hodges
(576 U.S. ___) legalizing marriage equality in the United States. Despite
the immense joy I felt at this expansion of liberties for gays and lesbians
and the affirmation that rights-based social movements and their use of
the courts are a powerful mechanism for advancing interests (given that
a single Supreme Court decision had the effect of overturning state prohi-
bitions on same-sex marriage and opening the institution of marriage and
the associated economic, sociocultural and legal benefits to everyone), this
victory also comes with costs. It privileges homonormativity and distributes
benefits to those couples interested in and/or able to enter into marriages,
it expands the disciplinary power of the state, and the fight for marriage
equality drained extensive financial resources and social capital that could
have been used to advance various other pressing priorities within LGBTQ
communities including pursuing economic justice, validating alternative
family and kinship relationships, pushing to disconnect the distribution
of benefits from legally sanctioned marriages in the first place, combating
homophobic and transphobic violence, and so on.
In the days and weeks that followed the Obergefell decision, I reflected
on what this legal victory would mean for the future and looming battles
surrounding LGBTQ interests as well as the potentially negative conse-
quences of this decision for many individuals within the LGBTQ com-
munities. In particular, like many others, I worried that Obergefell would
become the pinnacle of the gay rights movement despite the significant
work that remains to be done in pursuit of collective liberation for all
LGBTQ individuals, and I watched to see if attention and resources would
shift to other causes and movements now that a major battle for gay rights
had been “won.” As we now know, debates about trans rights have become
vii
viii Preface
more prevalent in the years following the marriage equality victory, and
liberal gay rights groups and mainstream civil rights organizations have
mobilized on behalf of trans individuals, suggesting that this is the next
front in the battle for LGBTQ rights. As these events unfold, I find that I
am increasingly pessimistic about the viability and efficacy of traditional
rights-based movements for facilitating substantive change to include
the growing push for a trans politics of rights. The election of Donald
Trump as president in November 2016, and the confirmation of his two
nominees to the U.S. Supreme Court, Associate Justices Neil Gorsuch and
Brett Kavanaugh, further erode my faith in an imminent and successful
politics of trans rights. While the motivations for pursuing equal rights and
legal protections through legislation and litigation are logical, the reality
is that any attempt to achieve recognition from the very institutions and
people that benefit from your subjection is likely to be of limited utility.
As I pondered the Obergefell decision and the simultaneous pros and
cons of the politics of rights, I was wrapping up final revisions on an arti-
cle, “The War on Solicitation and Intersectional Subjection: Quality-of-life
Policing as a Tool to Control Transgender Populations,” that examines how
the selective enforcement of solicitation laws on transgender women of
color—a phenomenon referred to as “walking while trans”—operates as
a force of governmentality that is intended to remove transgender wom-
en’s bodies from public spaces.1 This article moved beyond a critique of
the state and individual law enforcement officers’ transphobia to argue
that privileged members of society are complicit in these exercises of
governmentality on intersectionally subjected transgender women. At the
time, I did not know it, but that research would provide the theoretical
framework for this book, and an updated version of the original published
article now functions as chapter 6 of this book.
Synthesizing my growing pessimism about rights movements and
their inability to facilitate substantive change and my interest in forces of
governmentality as tools of population management and social control, The
Politics of Right Sex argues that the politics of rights are of limited utility
for marginalized communities because they are unable to reach the myriad
forces of governmentality that work as a type of infra law—the informal
and implicit norms and regulations that operate below the surface—to
mark and discipline transgressive individuals in order to maintain extant
hierarchies. In light of the increased public, media, political, and legal
attention focused on trans rights post-Obergefell, this book examines how
a politics of trans rights will be limited by the institutional constraints of
Preface ix
hegemonic power structures and unable to reach the forces of govern-
mentality that operate on trans people in contemporary American society.
Furthermore, these forces of governmentality are not happenstance, but
actually work in tandem with the politics of rights to ensure that priv-
ileged populations maintain power even if and when rights movements
are victorious and the contours of civil rights laws change and evolve. In
these instances, successful rights movements may find that legal victories
and rights recognition translate into limited substantive gains.
Throughout the process of writing this book, I kept returning to Jacob
Hale’s “Suggested Rules for Non-Transsexuals Writing about Transsexuals,
Transsexuality, Transsexualism, or Trans ____,” in which he states that
researchers who are not trans need to “[i]nterrogate your own subject
position: the ways in which you have power that we don’t (including
powers of access, juridicial power, institutional power, material power,
power of intelligible subjectivity), the ways in which this affects what you
see and what you say, what your interests and stakes are in forming your
initial interest, and what your interests and stakes are in what you see and
say as you continue your work.”2 As such, it is imperative to make clear
that as a cisgender woman I am not an expert on the lived experiences
of trans people; trans individuals are the experts on their own diverse
and abundant experiences. The field of transgender studies continues to
grow from what was arguably its genesis in 1991 with the publication of
Sandy Stone’s “The Empire Strikes Back: A Posttranssexual Manifesto,” and
trans scholars continue to make invaluable contributions to the academic
and public discourses. These scholars are the authoritative experts on
transgender identities and experiences. As such, I draw extensively on
trans scholarship throughout the book, and I am indebted to the many
trans, gender nonconforming, and queer individuals who shared their
experiences with me.
As a political scientist and a legal scholar, my goal in The Politics of
Right Sex is to draw attention to the limitations of the politics of rights
and expose the systems of subjection and infra laws that operate in the
shadows of contemporary American society in order to demonstrate how
the dominant public utilizes forces of governmentality to maintain the
ongoing marginalization of trans individuals in this country. The politics
of rights and the associated legal reforms are not sufficient to improve the
lives of many trans individuals, because these processes force marginalized
communities and individuals to pursue their interests within the confines
of hegemonic institutions that are designed to protect dominant players
