Virtually in all cases, the gender of trans people who are asylum seekers is based on the information detailed in their country of origin documentation and not on their stated or expressed gender. Even as this lack of recognition forms part of the basis of their claim of persecution. Trans claimants are therefore placed in a great position of precarity. Refugee-receiving states have provided several reasons for not recognizing the gender identity of the claimant. These include a fear of ‘accidental naturalization’ (South Africa) or by delimiting the matter as ‘beyond their jurisdiction’ (Hungary). For trans refugees, this incongruence not only affects access to shelters, employment and financial aid but can, if stopped by police, lead to accusations of fraud. In this paper I consider what the inability of the global refugee regime to legally recognize the gender of trans applicants tells us about the perceived legal jurisdiction of gender and the meaning of refugee protection.
The article explores the different constitutional developments of the right to gender recognition. It offers a systematization to a corpus of jurisprudence which, albeit bourgeoning, remains significantly under-theorized. By doing so, the article ultimately aims to provide the analytical tools to understand the different forms of such a right that are in the making as well as the set of limits to it that courts are setting. The article argues that the various forms of constitutional recognition can contribute to shape the contours of gender assignment typologies along two different axes, namely the elective vs. ascriptive axis and the binary vs. non-binary axis. In clarifying this largely underexplored area of the law, the article argues that the very process of creation and policing of gender identities and categories represents a critical aspect of contemporary constitutionalism.
This paper builds on existing work in the burgeoning area of ‘law and film’ studies to examine the relationship between the construction of trans identity in Hong Kong law on the one hand, and the construction of trans identity in Hong Kong cinema on the other. I argue that while films narrating the experience of sexual minorities in their own voices are often presumed to speak back to the law, in this instance they actually reproduce and reinforce the understanding of identity in the court cases on transgender rights. I further demonstrate that while the films, like the cases, constitute attempts to humanize trans subjects, they also unwittingly perpetuate the dynamic of exclusion enacted by the law. I conclude by turning to independent queer filmmaking as a forum for articulating and recognizing alternative trans subjectivities.
The non-recognition of the gender identity of trans people is a factor of mass incarceration in the United States. Higher rates of incarceration of trans people compared to the general population are driven by discrimination-based barriers to housing, employment, education, and gender-affirming healthcare. The denial of trans identity in prison results in ill-treatments of trans detainees, including a lack of protection from assault and violence. Also, trans detainees are too often placed in harsher conditions than cis detainees. This paper argues that an effective and uniform recognition of the right to trans identity is critical for reducing the criminalization and ill-segregation of trans people. It notably argues that a full recognition of trans identity may crucially eradicate the leading psychosocial cues of crime within this population as well as guarantee their psychological and physical well-being while incarcerated in view of their successful reentry into society.
Sweden has attracted international attention for its 2018 legislative provisions on trans parenthood. This legislation provides that a trans man who gives birth in Sweden is registered as his child’s father, unlike in most jurisdictions worldwide. This paper offers the first sustained engagement with the genesis and the peculiarities of the revised Swedish Parental Code. Apart from emphasizing its uniqueness, it reflects upon three critical aspects of the current regulation: the differential treatment afforded to trans parents in comparison to cis parents; the forced disclosure of sensitive information to government officials it entails for trans parents; and, the ad hoc and gender-specific nature of the new provisions. To conclude, the paper sheds light on the inevitable difficulties a legal system faces when trying to adapt gender-binary, cis- and heteronormative provisions on parenthood to a diversity of families without challenging the inherent norms of the legislation.