Written by Anna R. Kirkland, this article was published in Law & Social Inquiry, Vol. 28, No. 1, pp. 1-37, March 2003, but very recently made available for downloading here at SSRN. Below is the abstract:
Transsexual and transgendered people, despite their exclusion from most civil rights laws, nonetheless occasionally prevail as plaintiffs in litigation. What should feminist legal theorists make of these victories? The theory one uses to win has implications for future conceptions of gender and sexuality in the law as well as for understanding contemporary conflicts and alliances among sex and gender theorists, lawyers, and activists. Conflicting theories of how to ground law’s liberation claims abound, however. Evidence suggests that transsexuals secure legal victories only through a disheartening process of medicalization, normalization, and demonstration of traditional sex and gender role adherence. Recent cases, however, reveal some interesting destabilizations in law’s account of the transsexual, and provide critical legal scholars with a new perspective on rights-claiming as a liberation strategy. Attention to the diversity of transsexual and transgendered priorities as well as to the properties of the legal process shows feminist legal theorists how to navigate the problems of identity construction and legal protection raised here sympathetically but unromantically.