Sex According to the State

I first met Paisley Currah when I enrolled in his transgender studies course at the CUNY Graduate Center in the fall of 2015. He was quiet, good-humored, and admirably patient with the frustrations of teaching what, in those days, was one of the only graduate-level courses on trans people on offer in the tri-state area. Back then I was just painting my nails. When I came out the following summer, he welcomed me into his home with bread and cheese and asked me with excitement when I was going to start hormones. Over the next few years, as my parents’ approval went out like the tide and slowly lapped its way back in, we became family. He drove me home from the hospital after my surgery, and at parties, he always tells the same anecdotes about me, beaming with pride.

Currah is a professor of political science and women’s and gender studies at Brooklyn College, and has been an advocate for trans rights for decades. In 2005, he served on an advisory committee to reform sex reclassification policies for the New York City Department of Health—it went nowhere—and several years later, he helped draft new language that amended the New York City Human Rights Law to include gender identity as a protected class. He co-edited the collection Transgender Rights, which was a finalist for the Lambda Literary Award in 2007, and in 2014, he co-founded TSQ: Transgender Studies Quarterly, the first academic journal dedicated to the study of trans culture and politics. He is widely recognized as one of that field’s preeminent members, with a few exceptions: When his kid was recently tasked with consulting a “gender expert” for a school assignment, he didn’t even make the shortlist.

Currah’s first monograph, Sex Is as Sex Does, argues that activists like himself often mistake the state’s reticence to allow people to change their legal sex for a simple case of transphobia. Instead, he argues that state agencies, each of which has its own set of rules, are far less interested in what someone’s sex is than in what real benefits their sex entitles them to: for instance, the right to stay at a women’s shelter, or the standing to sue a hospital. Advocates would therefore do well to mirror the state’s approach, setting identity concerns aside to focus on the material harms trans people face.

The book arrives at a tumultuous moment for trans people in the United States. The revanchism of the Trump era has emboldened Republicans to adopt openly eliminationist tactics, most notably in the form of laws that would make providing trans-affirmative care to minors a felony; it is simply a matter of time before right-wing legislatures take up equivalent laws targeted at adults. Meanwhile, the gerontocratic center-left establishment has grown tired of pretending to care about a population they deem too small to be electorally relevant. “Whatever does not help you win should not be a priority,” Hillary Clinton recently told a journalist who had suggested that “the transgender debate” was losing elections for the Democrats.

I recently had lunch with Currah at his home in Brooklyn. Over fried chicken, we talked about the “debate” over transgender athletes, the failure of gender studies scholars to understand the state, and whether the new wave of Republican attacks on trans people signals a resurgence in the use of sex as an instrument of governance. This conversation has been edited for length and clarity.

Andrea Long Chu: Before we started recording, we were discussing a New York Times piece about the controversy over transgender athletes like Lia Thomas, the swimmer who just won a NCAA championship. Of course, it was the kind of “just asking questions” journalism that you’d expect from the Times: quotes from TERFs, repeated use of terms like “biological woman,” painting trans women as a threat to the hard-won equality of Title IX even though they are a tiny minority in their sports. Stupid, cruel reporting. But we both also admitted to feeling weird about the rebuttal that trans women in sports don’t have any biological advantages.

Paisley Currah: I think what makes me feel weird—and this is really suspect on my part—is that I’m glad Lia Thomas is competing, and then as a trans person I sort of wish she wouldn’t win. [Laughs.] That would prove a lot of points. But of course, if she’s competing, she should try as hard as she can.

ALC: It would be cleaner for Lia Thomas not to win, because then she wouldn’t have anything to transition for—she’d just be doing it because she was “being herself.” There are all these nice liberal parents in the Times piece who are like, “Well, of course trans people should be able to find an apartment or get married or get a job. They just shouldn’t be allowed to compete against my child.” The idea that being trans could confer advantage is simply outrageous to them.

PC: As soon as there’s something their little girl could lose, it’s a problem. They never think, “What about the private swimming lessons I provided my kid for 15 years? What about the nutritional program I paid for? What about the sports therapist that my kid’s private school provided for the team?” They never think of those kinds of advantages. Historically, it’s when there’s a possibility of getting some sort of benefit that there have been the most obstacles to people trying to change their sex classification with the government. Of course, the NCAA is not the state. But it’s totally analogous.

One of my big questions writing the book was: Why was it so easy to change your sex marker on your driver’s license even as we were seeing terrible appellate decisions involving trans people? At first, I got lost trying to find the logic of the court’s thinking about sex. Then I realized I needed to look at what the cases were actually about—things like custody or inheritance or damages. In one case, a trans woman whose husband had died was suing the hospital for medical malpractice, but the court decided she had no standing because she was a man and hence—this was before marriage equality—she and husband were never legally married. When there was something material at stake in the case, that’s when trans people were losing.

ALC: One thing you demonstrate in the book is that there is no one “state” when it comes to sex, just a bunch of different rules for sex reclassification at different state agencies. Your maxim for this is also the title of the book: Sex Is As Sex Does. Can you explain what you mean by that?

PC: I came to this conclusion when I was working on a committee at the New York City Department of Health in 2005, trying to figure out a new birth certificate policy. The other transgender experts and I kept talking about what sex was, how sex as a biological concept was really messy, that kind of Trans 101 stuff. When they ended up not changing the definition, I finally understood that they only cared about what effect it would have on the city government. In fact, at one point they had agreed to define sex by gender identity and shopped it around to all these different departments. The city was like, “No, that won’t work for prisons,” or “Yes, it will work for homeless services,” or “It’ll kind of work for drug rehab but not for the facilities that are residential.” They just cared about how sex was operationalized.

As trans advocates, we come into it like, “This is who transgender people are, this is what sex is, this is what gender is.” With this book, I decided I was going to stop caring about any of that and simply define sex as the result of a government decision. Whether you’re M or F, or more recently X, that’s an output of the government, not an input. That’s counterintuitive to people, because I think even the most sophisticated thinkers in trans and queer studies aren’t great at thinking about the state. We’ve denaturalized sex, but we haven’t really denaturalized the state. It’s like we’ve spent all our time reading Judith Butler and not Marx.

So I tried to provide a counterbalance to the sophistication of gender as a concept and look in more complex ways at what states actually do. Sometimes we imagine that trans people “have” a legal sex. But there’s not one legal sex. Every agency, every court can make up someone’s legal sex according to its own goals. The Department of Motor Vehicles is doing something different from a judge who’s making a ruling on marriage. For instance, in 2002 the Kansas Supreme Court heard a case involving a trans woman whose late husband had left her a large portion of his estate. Her stepson—his son—had contested the will and said, “They weren’t legally married, because she’s not really a woman, and I want all the money.” And the court agreed and said, “Right, you can change your sex on your birth certificate, but that’s not definitive for the purposes of marriage.”

ALC: So he got all the money.

PC: He got all the money.

ALC: It’s interesting that marriage is the hinge in a lot of these appellate cases you looked at, which are all from before Obergefell was decided in 2015. It makes sense given that marriage is one of the state’s oldest tools for distributing rights and resources. But Obergefell doesn’t say that this woman in Kansas would now have been in a heterosexual marriage. It just says that her sex is no longer relevant to the state for that purpose. This is one of your points, that legal gains for trans people have often been made not because the state is becoming more trans-affirmative, but because it’s becoming more sex-neutral. I’m reminded of the surprising Bostock decision from a few years ago, where [Supreme Court Justice Neil] Gorsuch was like, “If you fire this transgender person for having long hair or wearing heels then you’re discriminating against them on the basis of sex.” But he never says what he thinks that person’s sex actually is—because he doesn’t have to.

PC: You know, a lot of law professors and legal studies people like to talk about doctrine, but I think talking about doctrine and the court’s logic is sort of like talking about how Santa Claus makes the toys. Doctrine is for clerks. For the justices it’s like, “This is the result I want, you go write it up.” They reverse-engineer the doctrine. Yes, Gorsuch’s thinking has a certain civil-libertarian strain, and it’s not illogical that if you fire someone for being trans, their sex has got to be involved. But the case is really about your right to work and hold a job—about creating productive citizens and consumers.

That said, they’re going to drive a truck through that decision, and many others, by saying that you can’t make someone hire a trans person when they have a religious objection to doing so. There’s a big religious exemption case coming down the pike, and Trump-appointed federal judges have already started saying that sex as defined in employment doesn’t apply to education or health care.

My point is that when the right wing draws us into these ontological battles over the meaning of sex, they’re not doing it from any kind of good faith position. And yet we keep bringing out experts. I just feel like it’s the wrong terrain for that. We need to be focusing on the harm that people face—like these kids in Alabama who suddenly have their transition-related medical care taken away—instead of talking about what gender is and where it comes from. Why do we need a theory about what makes someone trans or what the true etiology of gender dysphoria is before we make our case? We always feel like we have to draw on some authorizing fact. But what if we just didn’t? What if we just said: “Here we are, we don’t want to be harmed.”

ALC: This seems related to your argument that the harm that trans people face is often only an indirect result of other forces, or even an accidental byproduct in some cases, as opposed to the intended effect of some grand transphobic project.

PC: Yes. Like sure, we all face problems because we’re trans, but we’re trans in such different ways. Social location makes a huge difference in how we’re harmed. I could say, as a transgender person, I’m much more likely to be incarcerated. That may be statistically true if you isolate that one characteristic, but it’s not actually true of my life. I’m white, I’m a college professor. If I murder someone, maybe I go to jail? I’m just not vulnerable in ways other people are, and yet we take the disproportional harm to some trans people and twist it around into a universal problem shared by all trans people.

In one chapter in the book, I talk about how there’s all this advocacy for trans prisoners that implicitly rests on the idea that cisgender prisoners have it good. Yes, trans prisoners don’t get the gender-affirming care they need. But also, cis prisoners are getting Advil instead of chemo. We live in a carceral-industrial system that grabs people and throws them in prison as an economic policy, and vulnerable trans people get swept up in that. It’s not as if having full employment for trans people is going to solve the carceral complex. This is an example of what I mean when I say we should be thinking beyond the identity politics formula. It would be great to have nondiscrimination laws, but more trans people would benefit from prison abolition, universal health care, and getting rid of income inequality.

At the same time, we can’t lose sight of the fact that life still sucks for a lot of trans people, including in blue states. We say, “Oh, poor trans people in Alabama,” which is true, but we can’t fall into the trap of thinking that everything’s great in New York City. That’s exactly what the Democratic Party wants, is for us to be beholden to them as our saviors when they don’t do fuck-all on the policy issues that matter to people.

ALC: I wanted to ask you about the court’s decision striking down Roe, because one argument in the book is that sex reclassification has become easier not because of trans advocacy but because of feminist legal gains that have made sex less relevant.

PC: Right. All the ways that the law used to give men more rights and resources than women—they’re almost all gone, except for selective service, which disadvantages men. Women can get credit cards; there’s sexual harassment law, marital rape statutes.

ALC: But, as you point out, the big exception is abortion, which judges like Samuel Alito say doesn’t involve a sex-based classification because not all women can get pregnant. With this decision, the end of abortion rights could become the basis for even more rollbacks—marriage equality, Lawrence v. Texas, contraception. I guess my question is, do you see sex coming back?

PC: That’s a really good question. The book argues that good policies haven’t necessarily been created because policymakers were less transphobic, and bad policies haven’t necessarily been created because policymakers were more transphobic. A lot of times, transgender people were accidentally harmed by policies whose actual intention was to harm women.

But now we have this moment where the Supreme Court is looking to bring back sex as a tool for distributing rights. We already know that Clarence Thomas wants to revisit marriage equality and sodomy laws. Meanwhile, Republicans are going after trans people with bathroom bills, and bills on trans girls in sports and the provision of gender-affirming care to teenagers. They’re doing what political scientists call problem-surfing, where you have a group, and you have to figure out what problem will attach. One thing that trans people do for Republicans is allow them to re-prosecute gender, because you can’t say women shouldn’t work, but you can say, “That’s not a proper woman.” It becomes a way to talk about gender norms without talking about gender norms as applied to cis people.

ALC: There’s also a line, I think, in the right-wing mind that runs from abortion to trans people. Of course we know they don’t care about the life of the fetus because they kill people all the time. What they care about is that abortion helps disestablish the family as a moral concept, and that leads to gay marriage, and that leads to transvestites raping your kids in public bathrooms. So there’s a theory of civilizational decay that begins with reproduction.

PC: Yeah, that’s exactly right. I think one place where trans scholarship, to a huge degree, has not had the right focus—and activism to a pretty great degree as well—is with this whole gender pluralism argument, that there are so many genders and isn’t that great. And I don’t disagree, of course there’s all different ways of inhabiting gender. But what’s dropped out of our analysis is the fact that men oppress women. The asymmetry of gender relations, which is not enshrined legally anymore, is still totally operative in the economy—women do most of the care work, and care work is terribly paid. We’ve lost the ability to look at that in trans studies. I think this abortion decision might hopefully focus our attention on . . . can I say patriarchy?