In analyzing modern political discourse in the West, identity is increasingly a recurring theme in heated debates surrounding rights frameworks, legitimacy, and the marginalization of oppressed groups by state actors. As knowledge production on gender and sexuality bring newer conceptions of gender identity and sexual behavior to the mainstream of academia and society at large, a tension has emerged between traditional and essentialist positions on gender and sexuality, and post-modernist and post-structuralist critiques of those positions.

When state ideology intersects with traditionalism and essentialism, the results can be catastrophic for marginalized peoples struggling for recognition and accommodation from the state. This is the case in many western liberal democracies, where transgender and gender non-conforming individuals have faced essentialist motivated state interference for decades. Some examples of this interference include mandatory sterilization policies as a precondition for sex-change operations, binary and cis-normative identification options on official state documents, and medical “corrective” surgeries on intersex children without their consent. This is paradoxical when considering that a significant aspect of modern liberal statecraft includes the promotion human rights (and by extension LGBTQ rights) abroad. This begs the question; what factors contribute to the normative and essentialist paradigm that allows for western democracies to continue to marginalize transgender and gender non-conforming people? This article will analyze the conditions that allow for the current paradigm to dominate western liberal democracies while exploring the need for a phenomenological shift in how these democracies view the bodies of their populations in order to bring justice to these historically marginalized groups.

The ideological foundation for most liberal democracies can be found in Enlightenment-era theory that advocated for a closer relationship between governments and their subjects. Influential works from philosophers such as Jean-Jacques Rousseau argued in favor of the people legitimating government policy via the concept of “La Volonté Générale” or the ‘general will’.[i] This radical idea posited that the will of the people legitimized the actions of their government. In turn, the people were supposed to abandon any exterior identity outside of the state (i.e. citizenship) since the government was supposed to act in an egalitarian fashion, thus eliminating the need for identities born out of different social experiences.[ii] In revolutionary France, this resulted in the concept of Universalism, which acts as a cornerstone of the Republican ideology that still dominates French statecraft.[iii] In the United States, the idea of the ‘General Will’ influenced the creation of the Bill of Rights.[iv] In nearly all liberal democracies, the ‘General Will’ serves as the legitimizing foundation for electoral processes and the transition of power.

While this concept departed radically from the oppressive monarchic separation between the government and the people, it currently contributes to the essentialist paradigm that works to disenfranchise transgender and gender non-conforming people. The problem lies in the need for the state to function as an egalitarian actor. From the institutionalization of the ‘General Will’, the accompanying individual rights that allowed for the electoral legitimization of democratic government were only extended to a select portion of the population. Women, slaves, and indigenous peoples, among other groups were denied access to the radical extension of individual liberties that the Enlightenment brought. This created a paradigm where the rights of certain groups seemed self-evident while groups who were left out of the initial extension of rights were forced to fight for the abstraction of their rights within the normative paradigm. Some examples of this include the women’s suffrage movement, indigenous citizenship movements, and the fight for desegregation. In all of these cases, marginalized people appealed to the existing structures of power to ask for the extension of Enlightenment rights. This presents a key problem; how can liberal democracies act in an egalitarian fashion when not all of their residents have been abstracted into the normative paradigm? I argue that a significant factor contributing to transgender and gender non-conforming people facing essentialist repression from state actors results from the fact that their rights have not been abstracted within the normative paradigm, leaving them vulnerable to repression from the very same governments who present themselves as the gatekeepers of human rights.

Another important factor that contributes to the further marginalization of transgender and gender non-conforming people is the reliance on the nuclear family as a vehicle for the promotion of liberal democratic values. For centuries, the nuclear family unit has been imagined as the best way to ensure that society remains stable and capable of producing well-rounded citizens.[v] Friedrich Engels stressed the importance of the nuclear family in furthering capitalism via intergenerational wealth while also helping distract the proletariat from achieving class consciousness.[vi] The nuclear family has occupied a prominent place in the cultural imagination of liberal democracies and in many cases is still held as the pinnacle of a successful family unit. For transgender and gender non-conforming individuals, this cultural desire results in the targeted enforcement of biological essentialism via state violence. The widespread policy of forced sterilization as a precondition for sex change operations was the norm in Europe before the European Court of Human Rights ruled that it was a clear violation of human rights as recently as 2017.[vii] The logic behind the policy of forced sterilization has its roots in the ideation of the nuclear family. Writers such as A.J Lowik have argued that the idea of transgender people reproducing implies the erosion of family values and by extension the liberal values that undergird democratic societies.[viii] Other academics such as Camille Robcis have supported this point in analyzing the specific conditions within a given state. Here she writes about the perceived threat that transgender rights constitutes against French society,

“French civil law and social policy have constructed the heterosexual family as constitutive of the social. In other words, the family figures as the best unit to organize solidarity and build political consensus, the most universal and most abstractable mode of social representation, and the purest expression of the general will……..The logic underlying these claims is that changing the structure of the family would necessarily bring about a new political order, one resolutely not French.”[ix]

The idea that biological essentialism must be enforced in order to protect the social fabric of the nation is a critical point. Additionally, the explicit connection between the general will and the nuclear family contributes to the further marginalization of transgender and gender non-conforming people due to their subversion of normative gender and family expectations. It is also important to note that the state is not functioning as an egalitarian actor in targeting transgender and gender non-conforming people with essentialist policy due to the fact that transgender rights have not been abstracted within the accepted social parameters of what is currently considered normative. I argue that the current liberal democratic paradigm is oppressive to marginalized peoples, who are forced to fight for their own abstraction within a system that dictates what is acceptable and what is subversive while administering state violence accordingly. In order to remedy the problems that have been presented, I argue that there needs to be a paradigm shift rooted in phenomenological conceptions of the body that will create the conditions for the true liberation of oppressed people, including transgender and gender non-conforming people. 

Phenomenological interpretations of what the body constitutes provide a dynamic alternative to the current biological essentialism that fails to abstract transgender and gender non-conforming people into ‘normative’ society. Maurice Merleau-Ponty and Judith Butler are two notable philosophers who have argued that the body does not constitute a biological fact but rather a historically mediated idea that realizes a continued set of possibilities. Each body is thus self-legitimized due to its very existence and realizes a lifelong set of possibilities without guidance from an inner essence.[x] Butler summarizes Merleau-Ponty and her own thoughts in her essay, “Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory” like this;

“Merleau-Ponty maintains not only that the body is an historical idea but a set of possibilities to be continually realized. In claiming that the body is an historical idea, Merleau-Ponty means that it gains its meaning through a concrete and historically mediated expression in the world. That the body is a set of possibilities signifies (a) that its appearance in the world, for perception, is not predetermined by some manner of interior essence, and (b) that its concrete expression in the world must be understood as the taking up and rendering specific of a set of historical possibilities”[xi]     

Critically, Butler writes that viewing bodies as historically mediated involves a departure from understanding ourselves as expressions of biological essence but rather as a set of historically realized possibilities. I believe that shifting the paradigm to view bodies as historically mediated will solve many of the problems that allows for liberal democracies to continue to marginalize certain sections of their populations. If one views the body in a historically mediated way that Merleau-Ponty and Butler advocate for, it permits a broadened view of acceptance for people as they are and eliminates a binary standard for what social groups are acceptable and unacceptable within the paradigm. This new conception eliminates the category of ‘other’ that is so often attached to transgender and gender non-conforming persons within liberal democratic institutions since the identity and the actions of a person constitute a historically mediated signifier rather than a collection of traits and actions to be judged by the state as subversive or acceptable in conjunction with norms.

This new imagination for what a body constitutes would have profound ramifications for how the state interacts with historically marginalized groups, with varying applications depending on the type of historical oppression each individual group has faced. For example, if one views the body of a transgender person as a historically mediated expression of possibilities rather than someone whose body subverts biological essentialism, one can see that this person is self-legitimized due to their very existence and is thus entitled to rights from the state. In practice this would mean that the right to obtain gender reassignment surgery, the right to autonomously change one’s gender on official government documents, and the right for intersex persons to give consent before any ‘corrective’ surgeries are performed would be absolute and normative. It would also leave the ideation of the nuclear family in the past in favor of a broader definition of family structures.

Viewing bodies as historically mediated also solves a key problem surrounding the current paradigm, namely that the binary way that marginalized groups are viewed as either worthy or unworthy of abstraction within the paradigm would be eliminated in favor of absolute liberation for all marginalized groups. While the proposed shift may seem radical, I argue that the current progression of liberal democratic society under the current conditions is resulting in statecraft that actively administers violence against perceived subversion while simultaneously advocating for human rights as a matter of foreign policy. It is necessary to problematize the exclusionary nature of the enlightenment-era extension of individual rights to create the conditions for a new paradigm that will provide true liberation for marginalized people.    

[i] Rousseau, Jean-Jacques, “Du Contrat Social” (1762) 

[ii] “Definition: Volonte Generale”, https://www.universalis.fr/encyclopedie/volonte-generale/, Accessed 2/8/19

[iii] “Déclaration des Droits de l’Homme et du Citoyen” (1789), Article 6

[iv] Reck, Andrew, “The Enlightenment in American Law III: The Bill of Rights”, (The Review of Metaphysics, 1991), Vol 45, No 1, pgs 57-87

[v] Brake, Elizabeth, “To Make Families Good For Democracy, Broaden the Notion of Family Itself”, Zócalo, https://www.zocalopublicsquare.org/2016/12/15/make-families-good-democracy-broaden-notion-family/ideas/nexus/, Accessed 8/6/19  

[vi] Engels, Friedrich, “The Origins of the Family, Private Property and the State” (1884)

[vii] Stack, Liam, “European Court Strikes Down Required Sterilization for Transgender People”, New York Times, https://www.nytimes.com/2017/04/12/world/europe/european-court-strikes-down-required-sterilization-for-transgender-people.html, Accessed 2/8/19

[viii] Lowik, A.J, “Reproducing Eugenics, Reproducing While Trans; The State Sterilization of Trans People”, (Journal of GLBT Family Studies, 2018), Vol 14, No 5, pgs 425-445

[ix] Duong, Kevin, Robcis, Camille, “Gender Trouble in France”, Jacobin Magazine, 2014, http://www.jacobinmag.com/2014/12/gender-trouble-in-france/, Accessed 2/8/19

[x] Merleau-Ponty, Maurice, “Phénoménologie de la perception”, 1945

[xi] Butler, Judith, “Performative Acts and Gender Constitution : An Essay in Phenomenology and Feminist Theory”, ( Theatre Journal, 1988) Vol 40, No 4, pgs 519-531


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