38 Pages Posted: 29 Apr 2005 Last revised: 21 Sep 2008
This paper is about an unusual child custody dispute between the parents of a six-year-old child and the child welfare services of Franklin County, Ohio. The conflict emerged when the child's parents complied with their male child's professed desire to be treated as a girl by attempting to enroll the child in the first grade as a girl. The paper treats this case as an exemplary test-case of contemporary co-dependence between scientific-medical discourse and liberal-rights discourse. The paper analyzes the positions of the two sides of the custody dispute according to the classic modern distinction between mind and body. On the one hand, the child's parents alleged that the child should be treated as a girl, because the child's 'true self' in his/her effeminate mind. On the other hand, the child-welfare services counter-claimed that the child should be treated as a boy, because the child's 'true self' is located in the male body. The paper investigates the ways that each side attempted to justify its position in light of current debates regarding the foundation of 'gender-identity.' In particular, the paper focuses on medical-scientific theories about 'psychosexual development' that appeared in the US around mid-century and appeared in this case as legal claims about standards of parenthood such as 'best interest,' and parental 'neglect' and 'abuse.' The paper then focuses on the potential of liberal rights discourse, and specifically sex discrimination law to free individuals from institutional gender enforcement. The paper agrees that sex discrimination law can often produce satisfactory results, such as granting this child the liberty of free gender expression. However, the paper also critically analyzes sex discrimination law as a discourse that often reflects rather than rejects rigid mental health definitions of modern scientific discourses. In conclusion, the paper points to the limited horizons of rights as a liberating force, and demonstrates the need to think beyond rights in feminist and queer legal theory.
Keywords: Transgender, Health, Cure, Gender Identity Disorder, GID, Sex Discrimination, Liberty, Family Law
Suggested Citation: Suggested Citation
Ben-Asher, Noa, Paradoxes of Health and Equality: When a Boy Becomes a Girl. Yale Journal of Law & Feminism, Vol. 16, No. 275, 2004. Available at SSRN: https://ssrn.com/abstract=712225