Queer Cases Unmake Gendered Law, Or, Fucking Law’s Gendering Function

Abstract

Law's role in upholding and continually reproducing the cisheteropatriarchy is increasingly being challenged in Western courts. This is happening directly, by 'non-gendered' claimants wishing to undo law's compulsory gender performance, and by 'birthing men' seeking to queer law's gender binary. Indirectly 'fucking' law's gendering function are the defendants in the so-called 'gender deception' prosecutions. Here we see the judicial system reasserting its hegemony as heteronormmaker and enforcer. A different face of state pushback against queer anti-normativity shows in accommodation: several European courts have recently ordered the creation of a third gender option. This paper evaluates these 'queer cases', and asks what the queer struggle with the heteronormative can tell us about law's social function, its relationship to the body, its material effects and emancipatory potential more broadly. Can we queer the legal structures that seek to know, categorise, assign, police and contain our genders and sexualities or is now the time to say 'fuck law'?

The Regulation, Reclamation, and Resistance of Queer Kinship in Contemporary India

“…By foregoing traditional judicial categories of obiter dicta and ratio decidendi in case law, in which the former is considered to be unimportant, Kalpana Kannabiran has argued that utterances of the judiciary from hard-won gains of movements of sexual and gender minorities are disruptions against the violent, misogynistic, and nationalist Indian state (Kannabiran 2019 ). Similarly, Grietje Baars has shown that judgments can perform a “queering function”, by challenging the form, function, and even the existence of gender and the gender binary in the law (Baars 2019 , 17).…”

Framing gender identity registration amidst national and international developments: Introduction to ‘Bodies, identities, and gender regimes: Human rights and legal aspects of gender identity registration’

“…Possibilities for bodily changes on a material level do, however, provoke challenges for legal and executive systems (Baars 2019). When a nation-state allows for legal changes to gender and to medically supported transition, other aspects of gender-sensitive legislation (including laws related to marriage, parenthood, adoption and divorce) may be challenged, and the question of legal discrepancies or individual integrity of the person before the law may arise.…”

Trans Men Giving Birth and Reflections on Fatherhood: What to Expect?

“…63 Apart from the right of children to know their mother, the outcome sought by the applicants is understood to contravene more profoundly a 'right to a mother' which every child supposedly has. 64 The High Court elaborated on this point more vocally than the Court of Appeal 65 and explained that registering a trans man who gave birth as the child's 'father' or 'parent' implies that this child 'will not have, and will never have had, a "mother" as a matter of law, he will only have a father'. 66 According to English courts, this outcome would run counter to the child's best interests to have a mother and to know who that person is.…”