The Accepted Transsexual and the Absent Transgender: A Queer Reading of the Regulation of Sex/gender by the European Court of Human Rights

INTRODUCTIONIs it a boy or a girl? Almost automatically after birth, every newly born person is gendered. In fact, the sex/gender of the newborn acts as a pre-requisite for his/her recognition as a human being. As argued by Judith Butler, the sex/gender of a person acts as the ontological basis for his/her body to become intelligibly human.1 In turn, individuals who do not appear to be "properly" gendered have their own humanity put into question.2One of the sources of the sex/gender regulatory system that discursively transforms observed genitalia into sex/gender is the law.3 The law plays an essential role in the regulation of individuals' identities, which certainly includes their sexes/genders.4 Every person is constructed by the law as a legal woman or a legal man,5 and this legally imposed sex/gender is the first assumption of a person's identity. Indeed, the legal attribution of a sex/gender to a person has the value of a truth that is, at the same time, read in and imposed on the body. As asked and answered by Michel Foucault in his introduction to "Herculine Barbin":Do we truly need a true sex? With a persistence that borders on stubbornness, modern Western societies have answered in the affirmative. They have obstinately brought into play this question of a "true sex" in an order of things where one might have imagined that all that counted was the reality of the body and the intensity of its pleasures.6Furthermore, the law's sex/gender system is not only mandatory, but is also conceived in terms of an oppositional man/woman binary. These two sexes/genders are conceived as ontologically opposite; therefore, belonging to one of the sexes/genders implies being excluded from the other. In fact, the law can only comprehend its subjects as legally sexed/gendered in a binary manner, problematizing every individual that does not fit properly within the binary understanding of these categories.7 This article is about the problematization of the bodies that do not fit the normalizing sex/ gender model.The article will resort to queer theory as a methodological tool for analyzing legal discourse. Queer theory works within a post- structuralist understanding of identities that contests their stability, challenging not only the fixity of categories such as sex, gender and sexuality, but also the traditional construction of these characteristics as opposed binaries.8 In particular, Butler's work will be used for its understanding of the link between sex and gender and the possibility of imagining identities that transcend the binary understanding of sex/ gender.9Since the early 1970s it has become usual within feminist theory to distinguish between the categories of sex and gender.10 While sex was understood in terms of biological differences, regarding genitalia and procreative functions, gender was considered to be a cultural creation that refers to a differential social classification between men and women.11 However, queer theory proposes a different understanding of the sex/gender dynamics.12 From a queer perspective, both sex and gender should be understood as cultural constructions.13 In fact, what might prove to be the case is that the distinction between sex and gender is no distinction at all.14 Sex can be understood to be gender, since the sex/gender attributed to individuals is always culturally created.15 Yet more, Butler affirmed that the cultural character of gender and sex, coupled with the absence of a needed causal relation between both notions, suggested that the binary conceptions of gender and sex are actually unnecessary.16 Since neither sex nor gender is a pre-discursive notion that is fixed on the individuals, both notions could be re-conceived outside the limited categorical binary manner in which they exist.17 Therefore, following Butler, this article will not distinguish the concepts sex and gender and it will dare to envision a queer existence beyond the binary understanding of sex/gender identities. …