Holy Gender! Promoting Free Exercise of Gender Without Establishing Binary Sex or Compulsory Fluidity

16 Seattle Journal for Social Justice 659, 676 (2018)

Florida International University Legal Studies Research Paper No. 19-04

19 Pages Posted: 22 Mar 2019 Last revised: 26 Mar 2019

See all articles by José Gabilondo

José Gabilondo

Florida International University (FIU) - College of Law

Date Written: 2018

Abstract

This Essay is based on comments made on a 2017 LatCrit XXI Conference roundtable of law faculty reflecting on sexual minorities in the legal academy. This Essay supports the notion that individuals can self-declare their gender after a process of discernment, without regard to any somatic constraints or the expectation that this declared gender will remain stable. Gender through declaration validates transsexuals, transvestites, and others whose gender echoes the male-female sex binary. Gender by declaration also promotes freedom for those who renounce this binary altogether by opting for fluctuating or indeterminate gender, such as gender queer, pangender, or agender. At the same time, this Essay criticizes making gender by declaration a normative standard to which all should be subject. Doing so amounts to compulsory fluidity, which has the potential to infringe on the rights of others. For example, in 2015, a student group at Mt. Holyoke canceled productions of The Vagina Monologues because “women without vaginas,” i.e., trans females, felt excluded from the show’s world view; the following year, a Planned Parenthood group stunned supporters on social media by referring to women as “menstruators,” an unsexed category meant to avoid excluding trans males who still experienced the flow of menses. To keep from changing seats on the Titanic by substituting one cramped view of gender for another, I argue that self-declarations about gender should be treated the same as the exercise of religion, i.e., with respect and welcome indifference, but with no normative implications for others. Both gender and religious faith are subjective, constitutive of the person, and subject to no test of truth, coherence, or consistency. This approach could help solve the bathroom wars, the debate about subjective pronouns, and other clashes between rival views of gender.

Keywords: transgender, GLBTQ, religious freedom, gender

Suggested Citation

Gabilondo, Jose M., Holy Gender! Promoting Free Exercise of Gender Without Establishing Binary Sex or Compulsory Fluidity (2018). 16 Seattle Journal for Social Justice 659, 676 (2018); Florida International University Legal Studies Research Paper No. 19-04. Available at SSRN: https://ssrn.com/abstract=3358492

Jose M. Gabilondo (Contact Author)

Florida International University (FIU) - College of Law ( email )

11200 SW 8th St.
RDB Hall 1097
Miami, FL 33199
United States

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