Embracing Law's Categories: Anti-Discrimination Laws and Transgenderism

Abstract

Like many other areas of human thought, there is an impulse in law to use categories to understand and simplify complex concepts, such as social identity. In law, identity is understood in a two dimensional manner: difference is recognized but the context of these differences-relationships-is not always acknowledged. Instead, identity is understood through the legal categorization of differences. Through the process of categorization, legal narratives effectively strip the subject of agency by denying the subject the possibility of self-definition-for example, the agency to assert whether one is female, male, or neither.2 In this way, legal categories become constitutive of one's identity (e.g. not male equals female, not white equals black, not middle- (or upper-) class equals poor). One of the effects of establishing and maintaining categories of difference and identity is to make these differences (of one's identity) concrete rather than fluid. Thus differences become abstracted from their context of shifting social relationships. Another effect is to make these identities appear natural and immutable. Categories also create boundaries and borders between identities. These borders are inhabited by identities that fail or refuse categorization due, in large part, to their fluidity.