Doing Justice to Someone: Sex Reassignment and Allegories of Transsexuality

I would like to take my point of departure from a question of power, the power of regulation, a power that determines, more or less, what we are, what we can be. I am not speaking of power only in a juridical or positive sense, but I am referring to the workings of a certain regulatory regime, one that informs the law, and one that also exceeds the law. When we ask what the conditions of intelligibility are by which the human emerges, by which the human is recognized, by which some subject becomes the subject of human love, we are asking about conditions of intelligibility composed of norms, of practices, that have become presuppositional, without which we cannot think the human at all. So I propose to broach the relationship between variable orders of intelligibility and the genesis and knowability of the human. And it is not just that there are laws that govern our intelligibility, but ways of knowing, modes of truth, that forcibly define intelligibility.

This is what Foucault describes as the politics of truth, a politics that pertains to those relations of power that circumscribe in advance what will and will not count as truth, that order the world in certain regular and regulatable ways, and that we come to accept as the given field of knowledge. We can understand the salience of this point when we begin to ask: What counts as a person? What counts as a coherent gender? What qualifies as a citizen? Whose world is legitimated as real? Subjectively, we ask: Who can I become in such a world where the meanings and limits of the subject are set out in advance for me? By what norms am I constrained as I begin to ask what I may become? What happens when I begin to become that for which there is no place in the given regime of truth? This is what Foucault describes as "the desubjugation of the subject in the play of . . . the politics of truth." ¹

Another way of putting this is the following: What, given the contemporary order of being, can I be? And this way of putting the question, which is Foucault's, does not quite broach the question of what it is not to be, or what it is to occupy the place of not-being within the field of being, living, breathing, attempting to love, as that which is neither fully negated nor acknowledged as being, acknowledged, we might say, into being. This relationship, between intelligibility and the human, is an urgent one; it carries a certain theoretical urgency, precisely at those points where the human is encountered at the limits of intelligibility itself. I would like to suggest that this interrogation has something important to do with justice. Since justice not only or exclusively is a matter of how persons are treated, how societies are constituted, but also emerges in quite consequential decisions about what a person is, what social norms must be honored and expressed for personhood to become allocated, how we do or do not recognize animate others as persons depending on whether or not we recognize a certain norm manifested in and by the body of that other. The very criterion by which we judge a person to be a gendered being, a criterion that posits coherent gender as a presupposition of humanness, is not only one that, justly or unjustly, governs the recognizability of the human but one that informs the ways we do or do not recognize ourselves, at the level of feeling, desire, and the body, in the moments before the mirror, in the moments before the window, in the times that one turns to psychologists, to psychiatrists, to medical and legal professionals to negotiate what may well feel like the unrecognizability of one's gender and, hence, of one's personhood.

I want...