The Paradoxical Outcomes of Gender Self-Determination Laws Under Neoliberalism

The State and legal apparatuses are certainly one of the main locations for the construction and legitimization of (asymmetric) gender binaries, as the registry of ‘legal sex’, inscribed in one’s legal identity and with all kinds of differential impacts on citizenship, is paramount. The diverse reality (and increased visibility and recognition) of non-binary and trans lives and claims has already had an impact on legal gender regimes. This is quite evident in the profound changes that have open up possibilities for legitimized legal gender transitions, or even indeterminate legal gender, and for the legal institutionalization of the ‘non-concordance’ or even disconnection between ‘sex’ (the apparent truth of genital semblance) and ‘gender’ (as public identity). Drawing on a comparative analysis (ERC funded project Transrights), we will try to address some of the overall and paradoxical outcomes of legal changes in ‘Gender Identity Laws’, in the direction of individual gender self-determination, that have been or are occurring worldwide (Argentina, Denmark, Ireland, Malta, Colombia, Norway, Bolivia, Ecuador, Belgium and Portugal). We will contend that, notwithstanding the beneficial outcomes of such legal changes for transpeople, in most cases the new laws not only tend to be quite disconnected from the material concretization of rights (other than administrative entitlements), but also that we are witnessing a process of categorical construction that tends to institutionalize a third position (for trans or gender non-conformity) within persisting gender binaries. Furthermore, we will also argue that such changes in legal recognition are often accompanied by the dismantling or privatization of support institutions and provisions for transpeople. As such we believe that the principles of individual gender self-determination are being used by neoliberal capitalist states to not only dismantle the welfare state but also to potentially conceal collective and structural forms of (gender) inequality through the screen of a hiper-individualization.