Respect for transgender rights broadly and recognition of nonbinary gender specifically have given rise to global legislative and policy-level reforms that purport to rectify discrimination faced by transgender and gender-diverse populations when traveling or migrating. In several countries, for example, the binary options “male” and “female” have been extended to include other possibilities in legal and travel documents, such as X, third gender, indeterminate, and unspecified. Drawing on qualitative data gathered from an online survey conducted over a period of one year, this article homes in on this phenomenon, asking how existing and expanding options for gender in passports could impact transgender and gender-diverse people’s ability to cross international borders. The article’s findings highlight how current border-security structures frequently pose a challenge for those not conforming to gender norms. Our analysis reveals an intricate set of negotiations and tensions, and elucidates the complex dynamics between macro-level practices of power and micro-level articulations of resistance that might interrupt the normative functions of law. This article also shows how existing and alternative options can be taken up in transformative ways that can be used to subvert otherwise restrictive policies. This article is part of the special issue “Media, Migration, and Nationalism” of the journal Global Perspectives, Media and Communication, guest-edited by Koen Leurs and Tomohisa Hirata.
At Orlando International Airport on September 21, 2015, transgender woman Shadi Petosky was detained when US Transportation Security Administration (TSA) agents flagged her after passing through the body scanner. Now prevalent in airports worldwide, millimeter-wave imaging machines like the one Petosky passed through require security agents to interpret every passenger’s gender by pushing either a pink (“female”) or a blue (“male”) button as they approach the machine. As was the case in this situation, bodies that do not match the security agent’s reading as unequivocally male or female activate security responses (Clarkson 2019; Magnet and Rodgers 2012; Quinan 2017; Sjoberg 2015). What transpired was documented by Petosky on Twitter during a series of live tweets that detailed the humiliating treatment she endured at the hands of TSA agents (Spalding 2016). While the entire process was chronicled in eighty-two separate posts, the following tweets encapsulate the discriminatory experience she faced:
I am being held by the TSA in Orlando because of an “anomaly” (my penis).
TSA agent Bramlet told me to get back in the machine as a man or it was going to be a problem.
I asked TSA agent if he had any training in trans issues. He said “I know what I am doing”
Cop asked me what sex I was. I told him I wasn’t going to answer that question. I am complying but come on.
I don’t think my body is an anomaly. . . . Can there be more buttons?1
Police officers and an explosives specialist were then called in, and although she was eventually released, the security “scare” caused her to miss her flight. This example underscores how some body-based biometric technologies that purport to be neutral and objective instead disproportionately impact gender-nonconforming individuals (Clarkson 2014; Spalding 2016; Wilcox 2017).
Petosky’s case quickly garnered significant media attention, and her ordeal spurred a social media movement, with Twitter hashtags like #travelingwhiletrans and #flyingwhiletrans now evidencing the systematic discrimination and bodily violation that transgender and gender-diverse people regularly experience while traveling, most often in “secure” locations like airports. Some tweets point to the anxiety and trauma that come with being targeted or even merely catching the attention of airport screening staff or border-security agents; for example, “had my first transphobic TSA experience! @FlyHIA thanks for embarrassing me in front of people by asking what genitals I have! #travelingwhiletrans”;2 “as I stand in the security line and draw closer to the millimeter wave scanning machine, my stress levels begin to rise… #travelingwhiletrans”;3 “#Travelingwhiletrans and #FlyingwhileMuslim = not being sure which part of my identity I’ll be traumatized for when I show up to the airport.”4 Meanwhile, others attempt to educate on the impacts of security protocols that target gender-nonconforming bodies: “Genders and genitals are not security threats. Institutionalized, unchecked, routine transphobia are. #travelingwhiletrans @TSA”;5 “Trans bodies are not anomalies nor should they be your targets for violence, curiosity, or disdain. #travelingwhiletrans #walkingwhiletrans.”6 Importantly, social media has become a space to voice these often humiliating and violent experiences, to call out discriminatory practices, and to find community.
Indeed, as the above experiences evidence, border crossing—particularly as it figures in the airport arena—has increasingly been framed as a national security threat, a framing that can come at the cost of rights, dignity, and ability to move (Adey 2009; Foucault 2007; Pécoud and de Guchteneire 2006). In being labeled as suspicious or threatening, transgender and gender-diverse individuals may be detained, interrogated, and humiliated, which is even further exacerbated for those experiencing intersecting forms of oppression, including racial and religious profiling (Browne 2015; Haritaworn, Kuntsman, and Posocco 2014). While the field of migration studies has, broadly speaking, offered a new paradigm for understanding relationships between spatial and social mobility, including how access to travel and migration is differentially distributed (Cresswell 2010; Faist 2013; Mezzadra and Neilson 2013; Sager 2006), it has underestimated how binary conceptions of gender shape opportunities for transnational movement and migration. Growing empirical evidence—including, for instance, the more anecdotal social media posts—has, nonetheless, begun to shed light on the obstacles faced by transgender and gender-diverse individuals in airport security structures, including interrogation and increased identity verification due to perceived mismatches between gender presentation and sex/gender markers in documents (Open Society Foundations 2016).7 This has been further analyzed by a growing body of scholarship in transgender studies (Aizura 2012, 2018; Beauchamp 2019; Cotten 2012; Fischer 2019) and critical race studies (Browne 2015; Pugliese 2010) that has begun to tease out relationships between mobility, surveillance, race, and gender.
At the same time, respect for transgender rights broadly and recognition of nonbinary gender specifically have given rise to global legislative and policy-level reforms that purport to rectify such discrimination at the border. As social and biological understandings of sex and gender as binary are increasingly contested, the landscape of possibilities for declaring and registering legal gender has opened up. In particular, a number of countries have expanded beyond the options M and F to include other possibilities on legal and travel documents, such as X, third gender, indeterminate, and unspecified. Although access to these nonbinary markers is differently determined by each nation-state, this growing list now includes Nepal, Australia, New Zealand, Bangladesh, India, Pakistan, Canada, and Malta. Meanwhile, in 2018 a German Federal Constitutional Court ruling paved the way for a nonbinary option outside the male-female binary (Holzer 2018). Most recently, following lower court decisions, the Netherlands has issued two passports with an X marker, although it remains to be seen if this option will be extended to other individuals (Knops 2019). We anticipate that this trend will continue, as more and more nations are exploring the implementation of this nonbinary marker in passports and other identity documents.
This article homes in on this discussion by gathering border-crossing and travel-related experiences of transgender and gender-diverse people and by asking how existing and expanding options for gender in passports could impact gender-diverse people’s ability to cross international borders for travel and migration. That is, given that biometric security technologies continue to be built around binary notions of sex and gender, how might they simultaneously allow for and foreclose freedom of movement? By examining recent developments in the documentation of legal gender, we aim to develop an understanding of how borders regulate and police gender. We tackle this urgent social issue by analyzing qualitative data gathered from an online survey we conducted in the context of a broader collaborative project entitled Gender Identity Registration and Human Rights Effects (GIRARE), which focuses on (1) recent local and global initiatives and developments in policies and practices regarding the collection and dissemination of information on legal gender and (2) how changes in legislation and policies affect movement and mobility, particularly for transgender and gender-diverse populations. It is here important to note that while recent interventions may improve the well-being of some transgender and intersex individuals who identify within the gender binary, attempts to account for categories beyond male and female may trigger heightened regulation (Spade 2008, 2011; Wipfler 2016). Although we situate the origin and the potential impacts of the unspecified X sex/gender marker in passports within a nationalist climate of anxiety toward the nonnormative Other, our approach is firmly rooted in a Foucauldian paradigm, wherein a politics of domination and a politics of resistance are co-constitutive, making us “at once freer and more governable in this world” (Asad 2003, 157).
Research Design and Methodology
Over a period of one year (February 2016–February 2017), we distributed an online survey that aimed (1) to gather information on transgender and gender-diverse people’s experiences when crossing international borders and (2) to investigate if alternative options such as the aforementioned X might be regarded as a solution to frequently stressful and dangerous travel and border-crossing experiences, or whether such gender markers would be more likely to be seen as creating further complications and exclusions. Although we were interested in any form of travel, the majority of respondents who elaborated on their experiences in open-ended questions referred to air travel and passing through airport screening and identity documentation control. The survey was housed on the Typeform platform, and while it was freely accessible online, it was distributed primarily to organizations and groups addressing lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) issues, which we approached both via social media and email, requesting that they share our survey with their members. In total, 340 individuals from a broad range of international backgrounds completed the survey.8 The majority of our respondents self-identified as gender-diverse (for example, trans, transgender, transsexual, queer, genderqueer, nonbinary, demiboy, demigirl, two-spirit, agender, and gender-fluid) and expressed a clear investment in the issues addressed in our survey. The survey comprised a total of seven multiple-choice and seven open questions (all of which were optional), and on average it took respondents thirteen minutes to complete the survey. All were given the option to provide an email address to receive updates and invitations to participate in follow-up research.9
Our survey as well as our broader research design was modeled following an explicitly exploratory research approach, which was reviewed during an expert meeting with twelve academics working in the field of gender studies at European universities. We understand exploratory research as differing from confirmatory research designs, in which a hypothesis is formulated and subsequently tested, or from methods such as grounded theory, in which an a priori hypothesis is absent (Reiter 2013). Rather, exploratory research starts with the clear formulation of a theory and research position, meeting the demands of feminist research by making explicit and transparent the way in which the researcher approaches certain phenomena. As such, our poststructuralist framework, as articulated in more detail below, forecloses the possibility of generalizing our research findings or looking for a definitive reality (e.g., sex/gender registration is discriminatory and must be abolished). Also given that the limited implementation of alternative sex/gender registration practices may not yet be measurable as well as the scant research on the effects of emerging technologies like the X sex/gender marker, an exploratory approach is particularly appropriate in order to best assess problems, challenges, and opportunities that arise from this changing landscape of developments in both legal gender and border security.
In line with the exploratory nature of this research, we find it critical to make explicit our standpoint as researchers. In line with an intersectional approach, we subscribe to the idea that sex and gender exist in entanglement with specific cultural and political discourses. Sex- and gender-based categories are not isolated classifications; rather, they are formed in co-constitution with other vectors of identity, including race, nation, sexuality, and class (Butler 1993; Crenshaw 1989). Similarly, recognition of nonbinary genders is invested with different meanings across cultural and geopolitical contexts. We also subscribe to a fluid conception of gender, one that may change over time. Necessarily, this belief has influenced our research design and exploratory findings, as “[b]eliefs about the world shape how surveys are designed and data are collected; survey research findings, in turn, shape beliefs about the world” (Westbrook and Saperstein 2015, 536). For this reason, we designed the survey to be open in structure and to give participants the opportunity to draw attention to issues that mattered to them. For example, when asking respondents about their self-identified gender, we did not provide preset options but left the field open. We explicitly used gender-neutral language throughout and informed participants that they did “not have to stick to the gender binary (man / woman). It is possible to identify in more than one way.” Some participants used this space to elaborate their rejection of gender as an identity marker altogether.
In tabulating the answers to our multiple-choice questions, we used Typeform’s integrated software, which provided us with a basic overview of the age group distribution and the agree/disagree distribution to statements regarding the value of X registration. For all open questions, we employed a thematic analysis, which we conducted manually. Because we did not make use of software to code our data, we were able to pick up on the more subtle aspects of respondents’ answers. For example, rather than merely noting a straightforward “no” to the question of whether a given respondent “had ever experienced any issues related to their gender identity, gender presentation, and identity papers while traveling,” we were able to identify themes such as anxiety or fear of travel, which may have prevented participants from even attempting to travel in the first place. Although we do not suggest that our qualitative data are generalizable, we believe the experiences of our participants are worth noting precisely because they highlight the possibilities and constraints enabled by specific articulations of sex/gender designations within an international nation-state system. Our data suggest an intricate set of negotiations and tensions between anxiety and comfort, and between self- and state-based definitions of gender. These findings also elucidate the complex dynamics between macro-level practices of power and micro-level articulations of resistance, survival, and complicity. In this respect, we are also invested in uncovering how existing and alternative options can be taken up in transformative and potentially unintended ways that can be—and are—used by individuals to subvert otherwise restrictive policies.
X Registration and Recognition of Nonbinary Gender
The majority of institutional and structural changes made to legal gender thus far have been initiated with reference to human, constitutional, or fundamental rights and freedoms (see “Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity” 2007). Importantly, the core concepts on which a human rights claim to recognition and protection of transgender and nonbinary status have often been articulated are firmly rooted in a Western modernist project of autonomous personhood. Similarly, the belief that sex, gender, and sexuality are integral components of one’s identity is Western in origin. As feminist philosopher María Lugones’s (2007, 2010) concept of the “coloniality of gender” makes clear, such binary systems themselves are thoroughly Western, and their oppressive imposition has resulted in both physical and epistemic violence. In his analysis of the history of sexuality, Michel Foucault ( 1990) traces how the incitement to discourse, along with the birth of disciplines such as medicine, psychoanalysis, and demography, shifted attention from “acts” to “identities.” For example, although same-sex sexual acts had long been performed, they did not necessarily say who one was. In the nineteenth century, however, the “homosexual” had become a “personage,” a “species.” Expanding Foucault’s analysis and applying it to recent developments in gender, one could argue that the legal recognition of nonbinary expressions of sex/gender might also inevitably translate into a policing of identities, behaviors, and presentations that had previously managed to escape national as well as international discourse and control. Davina Cooper and Flora Renz (2016) convincingly argue that in light of recent developments within the realm of legal gender, merely expanding the rules of a property (i.e., sex/gender) that continues to be distributed by the nation-state also fails to challenge the power of the nation-state to determine what identity is or could be. Hence, sex/gender becomes a property fixed in time, denying the poststructuralist claim of sex/gender as fluid and changing (Butler 1988, 1993).
In terms of nonbinary gender markers for passports, the X that is currently optional in a handful of countries was purportedly made possible as a result of guidelines put in place by the International Civil Aviation Organization (ICAO) after World War II to handle the many refugees and stateless persons worldwide. Large numbers of passports needed to be issued quickly by European aid workers unfamiliar with the gender of names in other cultures and languages (IHRA 2011). The ungendered X was a quick fix. Within this historical framework, the X may be considered to function as a third option to encompass the linguistically and culturally inaccessible—and, more recently, the sex/gender variant—Other, but one that does not force the system and its actors to adapt to, or familiarize themselves with, non-Western and/or nonbinary subjectivities.
Discussing the European identity project as characterized by a rising cultural anxiety after World War II, cultural anthropologist Talal Asad (2003, p. 161) states that “[t]he idea of European identity . . . is not merely a matter of how legal rights and obligations can be reformulated. Nor is it simply a matter of how a more inclusive name can be made to claim loyalties that are attached to national or local ones. It concerns exclusions and the desire that those excluded recognize what is included in the name one has chosen for oneself. The discourse of European identity is a symptom of anxieties about non-Europeans” (emphasis in the original). Although this ultimately remains a practice of speculative historiography, with the resurfacing prominence of the X as a registration practice, we identify a curious parallel between this unfolding of post-World War II anxieties toward difference and those proliferating in the wake of the September 11, 2001, terrorist attacks in New York. It is well-known that anxieties surrounding non-Western (looking) Others increased after September 11, 2001, as was also the case for those who are less likely to fit within established sex/gender categories (Beauchamp 2009; Clarkson 2019; Currah and Mulqueen 2011; Puar 2007). Following this line of thought, the current lobbying for registration policies that more adequately represent nonbinary bodies and identities could be interpreted as closing the net around all those subjects considered as Other to the modern nation-state. Gender-nonconforming people thus become the unwitting victims of anxieties surrounding “difference”—whether racial, religious, ethnic, sexed, or gendered—thereby inscribing contemporary nonbinary sex registration options into an increased surveillance discourse that befits a contemporary crisis of Western modernity. In this sense, the project of naming sexed and gendered Others as X and thereby enveloping them into the fabric of the nation-state can be seen, following Asad (2003), as a powerful tool for international governance and control, making the Other both freer (i.e., able to cross borders) and more governable (i.e., named and traced within the system).
In this sense, such registration practices could equally mark and target nonnormative bodies. This was a concern shared by some of our participants, who noted: “the X marker is dangerous because it identifies me as ‘other.’ I would never choose it”; “X is as stigmatizing and discriminatory as a gold star or pink triangle.” Further, some expressed the concern that the introduction of the X would simply replace binary gender with a “gender trinary system.” Indeed, policies that claim to address diversity and inclusion by adding new categories may run the risks of identity politics–based approaches, thereby reifying sex classification and gender norms (Davis 2017; Mak 2011; Wipfler 2016). Trans studies scholar Eric Stanley (2014, p. 90), for example, warns of jumping to hasty conclusions about these new and expanding gender options, as they can be interpreted as “translat[ing] and in turn confin[ing] the excesses of gendered life into managed categories at the very moment of radical possibility.” Thus, changes to gender markers in passports and identity documents must also be viewed contextually, as identification documents have historically served to identify and regulate populations (Salter 2004; Torpey 2000).
Traveling while Trans
In our online survey, roughly one-third of the 340 participants stated that they had experienced trouble while traveling domestically or internationally, including being questioned, body searched, and verbally abused or humiliated because of documentation that did not meet the expectations of security personnel or border technologies. The reasons why transgender and gender-diverse people may be subjected to such treatments, according to our analysis, are often related to discrepancies between physical appearance (including behavior and gender expression) and the sex/gender marker included in identity documents. For example, many respondents reported inconsistencies in their markers across documents (see Spade 2008). As a consequence, some reported being stopped due to alleged “false identification” or “falsification of official documents.” In the case of body scans and pat-downs, some individuals also reported being checked for supposed “physical anomalies.” Importantly, several respondents indicated that even if they have never experienced trouble while crossing borders, they live in fear that they may. For some, this has been a reason to avoid international travel altogether.10 This was echoed in the following statements from our participants: “Haven’t travelled in a while and one of the reasons for that is because I don’t know if issues would arise from my identity papers and my identity not matching”; “I do worry. . . that I might get pulled up on it and not be able to travel [because of gender markers not matching presentation/identity]”; “Passport control makes me paranoid that they’re not gonna believe it’s my passport. Or that they question/search me because they think I’m lying.” Some respondents made note of the fact that in response, they have made the conscious choice to travel with gender-free documents when possible, such as when traveling domestically or within the European Union.
Other respondents indicated that they have never experienced trouble because they have developed intricate strategies to prevent questioning and/or they actively conceal their gender identity, feeling forced to travel by presenting as a gender that matches their identity papers but not their felt sense of self. One participant, for example, shared that when traveling, they feel like they are putting on a drag show for security personnel, causing feelings of discomfort and a forced and insincere self-representation:11 “[E]very single time I travel I must consciously take a brief moment to remind myself that I must answer”female" and so on. Whenever I can, I choose “Dr” on the list of honorifics, even though I haven’t complete [sic] my doctorate yet, simply because I can’t bring myself to choose “Ms” or “Mrs”. . . . Perhaps everyone feels they are performing when dealing with immigration officers, but I always feel I’m doing a drag show." This example offers a clear indication that increased security measures indeed impact everyone and carry with them a general air of policing. As another respondent describes the experience: “You constantly have [to] prove that you are yourself.” For those embodying difference, such anxieties negatively impact their freedom of movement and sense of personal integrity.12
When asking participants to share their thoughts about nonbinary options (e.g., the X) in passports and identity documents, a total of 266 participants (78 percent) expressed dissatisfaction with current practices of registering sex/gender. Of those, 166 participants would prefer that their identity papers not include their sex or gender, whereas 100 participants would like to have more options besides “male” and “female.” While the introduction of additional options for declaring sex/gender may initially seem an improvement toward the inclusion and recognition of transgender and gender-diverse people in both national and international legislation, it also begs the question of what effects the introduction of nonbinary possibilities in passports and identification documents might have, especially given the prevalence of binary-based border-security technologies. That is, perhaps the X is recognized in Australia, but it remains unknown what will happen when a person with an X in their passport moves through other national and international spaces where this designation is unintelligible. Indeed, the idea that having an X in one’s passport could open someone up to ever more surveillance was affirmed by one of our respondents. One participant, who identifies as a trans man, relates that he had elected to adopt the X in his passport but later decided to change the gender marker from X to M, as the X negatively impacted his ability to travel without being questioned by border security or commercial airlines.
Politics of Resistance
Situating the renewed introduction of the X within a contemporary crisis point in Western modernity reveals how practices of accommodating difference are entangled with heightened surveillance discourses targeting racial and sexed/gendered Others. Notwithstanding the fact that international human rights discourses and national legislative practices that inscribe transgender and nonbinary embodiments and identities under the heading of the nonbinary X may function to categorize and control, transformative potential may also exist in citing the law differently. It is to such strategies of resistance and transformation that we now turn, asking what effects nonbinary sex registration options such as the X produce—or could produce—in the context of transgender and gender-diverse people’s abilities to travel and migrate.
Indeed, alternative options such as the X may open up new ways of surviving in a predominantly binary international landscape. The introduction of a third—and thus fundamentally nonbinary—option could, in this sense, destabilize the norms of the whole (Butler 1993). In this vein, the X as a variation upon normative registration practices could displace the notion of the citizen proper as either female or male—and a constitutive instability emerges within the structures of the law itself. Afsaneh Najmabadi’s (2011) work on transsexuality in contemporary Iran may prove helpful in seeing how discourses that are ultimately aimed at surveillance, control, and erasure can be utilized in unpredicted ways by individual agents that seek to destabilize such normalizing gestures of governmental control. Drawing on Foucault, Najmabadi (2011, p. 4) argues that state-driven politics are too often classified as mere “techniques of domination.” Although she acknowledges the fact that the state’s intentions toward nonnormative sexed/gendered embodiments are often directed toward erasure, the way these politics have been picked up by transgender activism could instead be understood as a “politics of survival”—and, we add, a politics of resistance—allowing subjects to persist in national environments that do not necessarily support their identities.13 Najmabadi argues that although panoptic state apparatuses of sexed/gendered assignment are meant merely to keep citizens in check, the limited success this might offer to transgender citizens might allow some people to exist and even thrive in the shadier areas of the panoptic structure, even if such structures continue to oppress other nonbinary identities and embodiments.
An activist potential could then lie not in the dutiful citing of the X as a third option that merely complements and consolidates the existence of M and F as unchallenged realities, but in our capacity to cite the law differently—that is, in unpredicted and undutiful ways. Demanding the X in passports in other nation-states that abide by the ICAO guidelines, making this option open to anyone who wishes (not only those who can provide a medical declaration of “indeterminate” sex/gender, as is the case in Australia), and then encouraging the choice of an X regardless of gender identity or presentation would be one way of resisting the state mechanisms of gender/sex registration. The law—like sex and gender—then emerges as a discursive tradition based on binary norms and structures that can be reformed and resignified without necessitating its total abolishment (Meadow 2010). In a way, this would enact a form of decertification in its own right (Cooper and Renz 2016), achieved not through recognition by the nation-state but through an activist annihilation of the categories of meaning making that are on offer.
Unorthodox ways of managing unwanted official documentation can, however, come at a price, as is highlighted by the situation of one of our participants, who holds a World Passport with an O (“Other”) sex marker. This respondent firmly rejects both their national identity and national legislation, as well as any notion of gender identity or sex, stating they are both “free of nationality and stateless” and “free of any SEXXX.” Issued by the World Service Authority (WSA), a nonprofit organization that advocates for unlimited freedom of movement as a human right, a World Passport holds no official recognition. David Gallup, president and general counsel of the WSA, articulates the organization’s gender policy as follows:
Because gender is a human construct, is fluid, and gender identification or assignment has oftentimes led to discrimination, we expect that all identification documents in the future will remove the “gender” or “sex” requirement. In the meantime, we offer the standard M and F for male and female. For many years now, we have also offered O for “other” and can provide additional options if people request such at T for transgender, A for androgynous or genderless or neutral, B for bigender, M for multigender, P for pangender, etc.14
The World Passport is thus based on a formulation of citizenship that aims to resist the rigidity of predetermined gendered/sexed categories, instead offering a fluid, “on-demand,” and therefore necessarily destabilizing approach to the practice of identification and certification. This participant indicates in no uncertain terms that the European Union does not recognize their WSA certification and that their intentional destruction of official documentation (including birth certificate, passport, identity card, and insurance card) has led to punitive measures by the state: “My passport holds ‘O.’ It’s a world passport. EU refuses to accept it. To be frank, I am completely barred out from the right to travel. I have already deliberately destroyed a large number of so-called ’official documents (BC, passport, ID, alien card, sickness card, . . . ). Several absurd penalties and deportations are pending.” Although the World Passport is, strictly speaking, a document that enjoys no legal validity, this respondent clearly articulates here how conflicting legislative structures can be used to press for alternative realities—even if, in this particular case, the direct result of such strategies might ultimately be uncomfortable and potentially violent.
The question remains, however, who can afford to challenge and subvert the law without jeopardizing their lives, personal integrity, and well-being. From a theoretical standpoint, although feminist and queer theory may be interpreted as valorizing or privileging movement and fluidity—of which indeterminate gender markers like the officially recognized X or even the unofficially adopted O might be emblematic—the price of such fluidity for transgender and gender-diverse people must be thoroughly considered. As Sara Ahmed (2013, p. 152) writes, such idealization of movement excludes “those who may lack the (cultural as well as economic) capital to support the ‘risk’ of maintaining anti-normativity as a permanent orientation.” Indeed, in this context, it becomes imperative to question who might lack the capital to (a) choose the potentially risky X as a sex marker in their passport or (b) have a passport at all.
From Individual Solutions to Structural Change
Importantly, the aforementioned suggestions or strategies that may allow certain individuals to survive amid state-imposed domination and regulations are personalized, individual solutions. It is, then, worth seriously considering how we might achieve structural transformation. Cooper and Renz (2016) argue that a discourse in which sex and gender are no longer treated as private and legal property might indeed enable more personal freedom and equality. The mechanism in which sex/gender first have to be defined and framed as a property that can be recognized by the state inherently means that (a) this must be a more or less stable property of one’s personality and (b) the nation-state has to decide which properties are to be recognized and protected, and which are not. While premise (a) is rooted in a Western liberalist definition of personhood and humanity and inevitably excludes more fluid expressions of sex and gender, premise (b) maintains the state’s power to decide whose sexed/gendered practices and experiences are worthy of legal recognition and protection—an idea that inherently encompasses the possibility of invalidation and exclusion. A situation in which the state no longer can—or needs to—certify gender might enable a more truly free structure of citizenry, and potentially also a redefinition of what gender—and, we suggest, by extension, personhood and humanity—actually is or can be (Cooper and Renz 2016).
In such a formulation, freedom might also come to stand for privacy and an absence of governmental interventions into one’s private life. The Canada-based Gender-Free Coalition has pushed for gender-neutral registration. Their slogan—“End State-Assigned Gender!: The State Has No Business in the Undies of the Nation”—clearly articulates that freedom is the right to privacy, rather than the right to be named and represented in national structures.15 This tendency is, in fact, reflected in the opinions of our survey respondents. Although 65 percent of participants think the introduction of alternative registration options (e.g., X) represents an improvement over binary registration for some individuals, nearly half (49 percent) indicated that they would prefer sex and/or gender identity to be absent from their identity papers and from government registers altogether. These results at least indicate that alternative options like the X are not perceived by all as the most appropriate means to achieve greater mobility and well-being. The following participant exemplifies this point by stating that travel documents do not in any way inform or support their personal identity: “I don’t think my gender identity needs to be officially registered, because it is private. At this point a traveling document does absolutely nothing for me identity-wise, and, for me, all it needs to document are numbers that mean something to bureaucrats.” Because travel documents instead represent a mere bureaucratic formality, this individual strongly opposes the idea of formal and legislative recognition as a step forward. This statement also reflected a broader sentiment expressed by our respondents: 67 percent would prefer sex and/or gender identity to be treated as sensitive data regardless of a person’s sex/gender identification. Moreover, 44 percent consider sex registration in passports to be a violation of a person’s human rights and right to privacy, and more than three-quarters (76 percent) believe that gender-neutral identity papers would prevent privacy violations and gender-based discrimination.
Our findings highlight how current border-security structures—including increased identity verification and biometric, body-based technologies—frequently pose a challenge for those not conforming to gender norms. While many have developed strategies for combating increased surveillance (including, but not limited to, altering gender presentation and lying), some avoid traveling altogether out of threats to safety or fear of discrimination. Our analysis also suggests that rather than increasing freedom of self-expression and mobility, alternative options are viewed by some transgender and gender-diverse individuals as targeting the subjects they encompass as suspicious Others in a heightened surveillance discourse. Adding categories to the existing binary system offers little improvement to transgender and gender-diverse people’s well-being when it is not also accompanied by a shift in the social perception of sex/gender norms—even if it may succeed in increasing the ability of some to cross international borders, an increase that most certainly falls along racial and citizenship lines. This differential treatment based on perceived race and ethnicity was repeated by several respondents in our survey, including the following participant, who is nonbinary trans genderqueer-identifying and is of mixed white and Native American heritage: “I used to live close to the Canadian border and even though I am a US citizen by birth, I am always worried whenever routine immigration stops (not border stops, in-country stops of things like buses are legal in the US) that agents might have an issue with my presentation vs my ID. I had one actually call me ‘sir’ when asking about my citizenship, but luckily he just took me at my word that I was a US citizen, probably because I an [sic] white looking.” As this respondent summarizes, intersections of (perceived) race and gender undoubtedly shape possibilities for mobility and migration, allowing for smooth border crossings for some while foreclosing possibilities for others (Luibhéid 2008).
Yet many of our participants also detailed strategies to interrupt the normative functions of law. The law itself—not unlike gender—is not immune to productive resignification. Trans scholar Jay Prosser (1998, p. 28) writes: “Like a law that requires citing to be effective, sex comes into effect through our citing it, and, as with a law, through our compulsion to cite it.” Citing the law—and sex/gender—in different ways may feed into individual and collective creative solutions that not only signal a politics of domination but also engender a politics of survival and resistance. Following a poststructuralist line of thinking, the multiplicity of scattered and contradictory practices, self-identifications, and lived experiences of transgender and gender-diverse people continue to exist in productive tension with panoptic apparatuses. In this respect, we hope to have shown how the law impacts the lives of transgender and gender-diverse people, as well as how such subjectivities might effectively transform the law’s conception of gender.
One important limitation of this research is that it focuses on individuals who have the capital to possess a passport, thereby disregarding those who do not hold passports or do not have resources to travel.16 Further, the fact that our survey was distributed online excludes those who do not have access to the internet. Another limitation, which was also mentioned by some participants, was the primarily positive formulation of our multiple-choice questions. For example, when asked to agree or disagree with the statement that “the X could be a viable alternative to binary sex registration,” some participants pointed out that the affirmative phrasing—as opposed to asking them to agree or disagree with the statement that the X is not a viable alternative—betrayed a certain bias on our part. Interestingly, whereas this formulation corresponds to our nonbinary definition of sex/gender (according to which X could be a valuable intervention), it precisely countered our poststructuralist hypothesis that what may be presented as a positive and less restrictive alternative by authorities could just as well feed into a politics of domination. However, we precisely left open fields for such tensions to arise, and in this respect, we welcomed such critical attitudes on the part of our research participants.
While the debate we have explored here touches upon some fundamental questions with regard to the future of legal gender, documentation, and mobility, further research into the experiences of those traveling and living with nonbinary sex/gender markers in identity documents is crucial. As contemporary theoretical endeavors and activist discourses—as well as the contributions of our survey participants—make clear, a profound rethinking of the concepts of freedom and rights is needed, not as state-regulated mobility but as the freedom to define, live, travel, and migrate as oneself without need for valorization and fixation. This, we argue, is a kind of freedom and mobility that reaches further than the confines of the nation-state and the limitations of border controls. On this notion of hopeful freedom, we conclude with the cogent words of one of our respondents: “while my papers didnt [sic] match my presentation I didnt [sic] travel abroad to avoid discrimination . . . now it is a huge feeling of freedom to be able to travel unharrassed and I make use of it as often as I can. I want everyone to have that freedom.”
C. L. Quinan is assistant professor of gender studies at Utrecht University. Quinan’s research interests include trans studies, postcolonial studies, queer theory, and critical security studies, with work on gender, surveillance, and securitization appearing in several journals and edited volumes. Quinan’s book, Hybrid Anxieties: Queering the French-Algerian War and Its Postcolonial Legacies, is forthcoming (2020) from University of Nebraska Press. Nina Bresser holds degrees in Arabic and Islamic studies and in gender studies, and has worked at Utrecht University both as a research assistant in gender studies and as a teacher and tutor in liberal arts and sciences. She also runs an editing company for academic texts.
First of all, we would like to thank our research participants for generously sharing their experiences with us. We are also especially grateful to the anonymous reviewers and to this special issue’s guest editors, Koen Leurs and Tomohisa Hirata, for helping us to sharpen our argument. We thank everyone who participated in the GIRARE expert meeting for their valuable feedback on the research that has inspired this article and, in particular, our direct colleagues in the wider GIRARE project, Marjolein van den Brink, Elif Erken, and Aurora Perego.
Contributed to conception and design: CLQ, NB Contributed to acquisition of data: CLQ, NB Contributed to analysis and interpretation of data: CLQ, NB Drafted and/or revised the article: CLQ, NB Approved the submitted version for publication: CLQ, NB
All tweets cited here were posted on Petosky’s (@shadipetosky) Twitter account on September 21, 2015.
lele (@veryspecialsoup), June 27, 2018.
Sasha #WontBeErased Costanza-Chock (@schock), July 22, 2018.
Mahdia Lynn (@MahdiaLynn), September 21, 2015.
Logan S. Casey (@loganscasey), September 22, 2015.
Chase Strangio (@chasestrangio), September 22, 2015.
We use the terminology “transgender and gender-diverse” (TGD) to refer to subjectivities that divert from and exceed normative or binary sex/gender identification, embodiment, and/or presentation. By using this term, we aim to include individuals identifying as transgender, gender-nonconforming, intersex, and nonbinary, as well as those who may have undergone a sex/gender transition or confirmation at some point in their lives but now identify along binary lines. When referring to the law, we generally adhere to the terminology used in specific legal discourses, which, as Theodore Bennett (2014, p. 849) describes, can pose its own challenges: “Legal discourse has traditionally been plagued by slippages between the terms ‘sex’ and ‘gender,’ as they are utilised in varying and inconsistent ways across the case law, statute law and commentary around sex and gender diversity.”
Nations included Canada, United Kingdom, Czech Republic, Netherlands, United States, South Africa, Australia, New Zealand, Lebanon, Germany, Hungary, Ireland, Portugal, France, Norway, Brazil, Finland, Denmark, Greece, Spain, Montenegro, Sweden, Estonia, Slovenia, Iran, Switzerland, Italy, Croatia, Bosnia, Vietnam, Turkey, Ecuador, Poland, Iraq, Nigeria, Austria, Peru, and China. The survey was also translated into Spanish, garnering an additional 62 responses. The results included in this article are, however, confined to the English-language survey.
We later invited participants in both surveys to participate in semistructured interviews. We are in the process of analyzing these data, which will be written up in future publications.
When describing their encounters with border security, participants’ descriptions included more than fifty expressions of fear, embarrassment, or discomfort with regard to their experiences of crossing (international) borders. A brief content analysis demonstrates the following: 7 participants indicated feelings of hesitation to even attempt crossing international borders (using words such as “reluctant,” “expecting hassle,” and “avoidance”); 26 expressed feelings of discomfort (“uncomfortable,” “nervous,” “worried,” “afraid,” “insecure,” “stressed,” “embarrassed,” and “paranoid”); 12 expressed feelings of being outwardly hurt and discriminated against (“harassment,” “discrimination,” “forced,” “hurt,” “fear of death,” “humiliated”); whereas others noted more subtle feelings such as “disorientation” (1); “disappointment” (1); “alienation” (1); “annoyance” (1); “misunderstood” (1); and “frustrated” (1).
This idea of being forced to perform a certain gender (i.e., “in drag”) was echoed by another participant, who explained that their gender identity is inextricably linked to their Canadian colonized heritage, writing: “I come from both sides of colonization. It is also important to me to claim my colonized heritage through my gender identity. I often feel like I am in drag when I where [sic] the clothes this culture has assigned the sex I was assigned, but not always.” This positionality clearly signals the idea that one may at times reject sex/gender norms while also existing in a relatively comfortable relation to them, and that this negotiation is also intertwined with settler colonialism.
This point is also confirmed by former TSA employee Jason Harrington (2014) in his controversial article “Dear America, I Saw You Naked. And Yes, We Were Laughing. Confessions of an Ex-TSA Agent.” Describing his self-described “awkward encounters on the job,” particularly during the process of full-body image screening, Harrington (2014) states that when the gender expectations placed on a particular passenger by employees in the image operator room and those on the checkpoint floor did not match up, “[a]ll the old, crass stereotypes about race and genitalia size thrived on our secure government radio channels.” While highlighting the entanglement of racial and sex/gender norms that are embedded within contemporary security and identification practices, this anecdote also resonated with the discrimination faced and feared by many of our survey respondents as well as the stories shared via the Twitter hashtag #travelingwhiletrans referenced earlier.
Najmabadi (2011) demonstrates that the fixation of otherwise fluid lived sexed/gendered differences in a legal vocabulary does not always have a positive impact on nonbinary people’s well-being and acceptance. In Iran, for example, religious authorities previously had a more practical approach toward nonheterosexual desires and nonbinary embodiments: if a person was to live more easily—that is, without disturbing socioreligious norms too drastically—in a gender role other than the one assigned to them at birth, this was generally considered acceptable. Body modification was allowed under such circumstances but was not imperative. In an increasingly polarized political climate between Islamic and Western countries, however, religious sentiments against nonnormative embodiments—and the associated claiming of Western identity categories—are becoming increasingly present, and this traditional socioreligious space seems to have closed (Najmabadi 2011, 15--16).
David Gallup 2017, personal correspondence.
See the coalition’s press release, http://gender-freeidcoalition.ca/Resources/GFID-Press-Release-July2016.pdf.