How does the law recognize a body? Maybe this is a strange way of phrasing the question, but it’s important. The law is an anthology of verbal abstractions. But unless it affects people where they literally live, inside their skins, in their physical existences — unless it can dictate or restrain action and movement, unless it can tell them what to do — it might as well be a romance novel you pick up in the airport. This doesn’t mean seeing bodies biologically; it means seeing them as what they are, points of touch and tension between psychology and culture — as ways of experiencing the world. The law’s description of, its recognition of your body, needs to be one you can recognize and experience yourself.
Bodies have to acknowledge the law when it calls them. That’s a predicate of the state’s legitimacy. But the law also has to acknowledge them, to call them by name. This mutual recognition, intertwined with claims to power on either side, is basic to the way this modern world keeps running.
Sweden is a country where the law doesn’t see certain bodies unless they’ve been modified with a knife.
In Sweden, you cannot change your legal gender unless you are sterilized: unless you prove to the state’s satisfaction that you cannot reproduce. In 1972, the Parliament passed legislation making Sweden “the first country in the world to institutionalize sex reassignment and sex reassignment surgery by law as the treatment of first choice for transsexualism.” The language there (from a Swedish study) suggests how deeply medical the underlying ideology and the resulting process are.
In Sweden, legal recognition isn’t a right, nor, strictly even the end result; it’s merely the byproduct of a “treatment” where bodily modification is the goal, and the institutions that do the -izing are those of medical power. (The National Board of Health and Welfare oversees the procedures and decides on the change. )
In following years, other states mimicked this requirement, including Germany, the Netherlands, and Turkey. Rationales for it have been rare. Trans activist Stephen Whittle writes
at the 1993 XXIIIrd Colloquy on European Law which concerned ‘Transsexualism, Medicine and The Law’, Professor Michael Wills of the University of Berne, who writes extensively on European law and transsexualism … took the view that “sterility [of the transsexual person] must be absolutely certain and permanent” . . . before a full recognition of gender change is afforded in law, but he does not explain his reasoning: it is presented as a natural “common sense” assumption. A common sense assumption that appears to be prevalent in any legal discussion in this area by those who are not actually members of the transsexual community.
This version of unexamined “common sense” scored another victory today. The Swedish government withdrew a proposed change to the 1972 law that would have scrapped the sterilization requirement.
The National Board of Health and Welfare had urged the change in a May 2011 report, given to the Minister of Social Affairs, Göran Hägglund. However, Hägglund’s conservative Christian Democratic party, part of the ruling center-right coalition, rejected the suggestion at a party conference the following month. It groped toward new reasons for its diehard defense of sterilization:
“A sex-change means that you willingly subject yourself to treatment in order to change your gender, and if you do that it is also reasonable that you give up some gender-specific properties of your old sex,” Maria Larsson, minister for children and the elderly, said in a speech at the party conference on Thursday evening.
Larsson also said that Sweden is by no means unique in implementing this rule and added that it is also a question of children having the right to “define who is their mother and who is their father”.
Larsson’s last argument is implicitly homophobic in a way that would probably be unacceptable in Swedish politics in any other context; after all, it’s only a small step and slippage from saying that a child has the “right” to “define” mother and father, to saying she has the right to have both. But it’s a telling sentence. The Swedish state clearly finds it harder and harder to justify rigid policing of gender in public life, where gender itself has become less and less relevant. So Larsson tries to position government as the defender of gender roles in private life and the family. In a country with less history of patriarchal state control, that might be absurd; but Sweden, after all, is a nation that carried out a eugenics program involving over 60,000 forced sterilizations, mostly of working-class women, from 1934 to 1975. You might say that in Sweden, the last refuge and resort of patriarchy isn’t the family or civil society — it’s the protecting state itself.
A period of political jockeying ensued after the party conference, as the Christian Democrats tried to persuade the other coalition members — most supporting the change — to discard or delay it. Today, they won. A Christian Democrat MP explained, “It’s important that we stand by the precautionary principle and don’t rush into legislation. This question needs to be looked at more closely.”
Meanwhile, Barbro Westerholm, an MP from the coalition’s Liberal People’s Party, who had “previously indicated she planned to push the issue in the Riksdag,” added:
“I can live with this. It’s a positive step forward where that had previously been deadlock. Sometimes it takes time to reach the goal, but it’s better than having things stop completely.”
Westerholm had previously served as Director of the National Board of Health and Welfare, and in 1979 oversaw the country’s elimination of homosexuality from the list of mental diseases. But in politics, you have to know when to sell out.
Over the years, both states and medical experts have shown themselves almost obsessive in enforcing the sterility requirement. The doctor Whittle cited above, for instance, found dangers lurking in a German court precedent holding that “a reversible interruption of the fallopian tubes might be sufficient, because a transsexual man would be very unlikely to seek such a reversal.” He contended that because this did not preclude the possibility of the trans man seeking in-vitro fertilization, more complete sterilization was needed.
A dozen years ago, in a report on parenthood, I wrote that
Governments in this area still enforce a relentless, ruthless either/or. Their anxiety to eradicate any ambiguity indicates that the spectacle of (for instance) a legally recognized woman still able, with her own sperm, to inseminate another woman would not merely be a logical conundrum, but a political one: it would strike in some way at the state’s own conceptual foundations, its predication on patriarchal systems separating “masculinity” unequivocally from “feminity.” The state insists on absolute and binary gender oppositions: to achieve them, it claims extraordinarily invasive control over the body. Human rights cannot allow that claim. Forced sterilization is unacceptable. …
Freedom from coercion is an essential goal in the intersection of health and human rights. When such physical modifications are imposed by the state as a condition for participating in civil life in the gender of one’s choice, they are no longer modifications—they are mutilations. They are no less clearly so than such widely condemned practices as female genital mutilation (the product of an equally repressive regime of gender policing). As such they constitute inhuman treatment, prohibited by the Universal Declaration on Human Rights as well as every major human rights covenant and standard.
That’s still true. The either-or excludes certain bodies and certain people from recognition, and civil rights. It’s appalling.