- LawToo?#MeToo, Transgender Rights Movement, and Re-garding Justitia Today
LawToo? Just as "just" laws in liberal democracy are meant to protect and project—to protect the free and the vulnerable by punishing the violators while projecting a better future for all by promoting the public good—various, intricately coordinated, and at times conflicting laws governing the matters of sex, gender, and sexuality, too, seem to evolve to serve such a profoundly dual function of the law. Since "sexual difference" or "gender distinction," often an implicitly biased concept coextensive with the psychosocial basis for sex/ gender-based discrimination, remains one of the most primary dividers (sec/ sex) in the identity/ID-based construction and codification of life (bios, la vie) legally supported or sidelined as such, quite obviously, the promises and perils of legally conjugated life, in turn, stem from the sequentially generative (gen/gene/genre), not restrictive, envisioning and practices of law. Of particular interest to me, in this regard, is this small yet pressing question: how to Make Law Great Again?
For instance, who or what or where is a "person" in the first place? In order for "Jane Doe," "a woman whose real name is not known or cannot be revealed for legal reasons" (such as the St. Louis Jane Doe, a little girl found brutally murdered after being possibly raped, 1983), to be recognized in the eyes and rule of law, she, including a transwoman, has to be constituted as a person in the foundational sense as in "all men [. . .] created equal" (the Declaration of [End Page 149] Independence, 1776), where men is supposed to represent all, including, over time, women too, whose legal equality and social equity, from bedroom to boardroom, in street or on screen, is still in question.
Then there is this Arnoldian conundrum of sunny disposition too: when "I think that gay marriage should be between a man and a woman" (Arnold Schwarzenegger, governor of California, 2003), what exactly am "I" or should I be thinking? A gay actor or a "female" lawyer, from Kevin Spacey, whose episodic history of sexual misconduct was recently hyper-sexualized and doubly scandalized by the hetero-centric homophobic corner in the court of #MeToo to Supreme Court Justice Sonia Sotomayor, the mildly ironic "wise Latina woman," whose constitutively minoritarian "bias" was stressed by all sorts of readymade sexist and racist assumptions about her identity and judiciousness, almost anyone embedded in the US legal culture and its patriarchal capitalist climate tends to get caught up in its complex, game-like intersectional battles, social or legal, often both.
So "we will not be erased," chant transgender rights activists today in protest, while "indelible in the hippocampus is the laughter," says she, Professor Christine Blasey Ford, a courageous "#MeToo" recounting on national TV the most vivid, traumatic moment in the attempted rape, as she recalls, by the drunken teenager Brett, now Supreme Court Justice Kavanaugh so justified (10/10/2018), so we heard.
Consider, further in this vein, rape laws including prison rape law. Insofar as an attempted rape is a felony under current laws, not a misdemeanor subject just to a one-year statute of limitations as in the early 1980s, one could see how and where it has evolved, and yet, insofar as it also still "lets prison rape go on" (Bozelko, 2015) behind the bars as part of darkly "correctional" social punishment, it marches in virtual lockstep with the raw existential threats to transgender rights today. In both cases what has been politically mobilized, soon to morph into some discriminatory polices (e.g., the federal repeal of transgender bathroom protection), is the aggressively "legalized," legally sanctioned, blindness of law to gender and sexual justice. The Department of Health and Human Services is now pushing for only a retro-definition of gender in federal civil rights laws to erase the already bordered existence of transgender by recognizing only cis-gender, sex assigned at birth, only "M" of "F" genitally codified on each birth certificate. To understand how gender works in law, one should perhaps dwell on the gender(s) of law too, i.e., its (and or their [d]) evolution, as Justitia remains...