Two: Epistemic Injustice and the Construction of Transgender Legal Subjects

Using cases and legal precedent on transgender employment discrimination in the US American context, this article investigates the epistemological consequences of creating a gendered legal subject. It interrogates the ways that courts enact certain kinds of knowledge claims that deny the experiences of transgender litigants as transgender. It argues how judicial reasoning tends to create conditions of transgender legibility that reproduces pre conceived notions of normative, cisgender sex/gender experiences and knowledges, contributing to hermeneutical injustice.  This article examines how transgender litigants experience epistemic injustice in the US American court system. It argues that since knowledge is "generated from histories, social relations, and practices of communities," the epistemological consequences of translating transgender experiences and knowledges into legal discourse require serious investigation (Nelson, 1993, p. 126) Epistemic injustice, as Miranda Fricker (2007) defines it, may happen when knowers are discredited for their claims to knowledge and/or when knowers who, needing to make sense of their experiences, lack the interpretative resources to do so that is to say, they lack a grammar or vocabulary by which to make their experience legible. Fricker (2007) urged her readers to consider not only what she calls good epistemic conduct but to overcome these epistemic injustices, but also "to lay the foundation of correlative institutional virtues virtues possessed, for instance, by the 12 Wagadu Volume 15 Summer 2016 (c) Wagadu 2016  6196 judiciary" (p. 176) The present article is a gesture in that direction. Transgender experiences are often translated through an unacknowledged epistemic commitment to a cisgender gender/sex paradigm. Cisgender is a term that describes a person whose gender identity "matches" their birth assigned sex. It is meant to replace the negative and potentially naturalizing connotations of "non transgender" (Aultman, 2014) Although many theorists agree that gender, following Susan Stryker's (2008) definition, "is thought to be cultural" whereas sex "is thought to be biological" (p. 11) they are both, however, linked by cultural and social norms. When a culture naturalizes cisgender formulations and experiences of gender/sex, i.e. normalizes them, it constitutes a cisgender gender/sex paradigm. This article argues that particular forms of rationality and legal objectivity that are peculiar to judicial procedure help reproduce this cisgender paradigm. The process undermines the epistemic capacities of transgender people as knowers in their own right. Since (cis)gender(ed) knowledges are already pre fashioned constructions i.e. legal precedent transgender people enter into the field of liberal legal discourse at a disadvantage. Are there risks of colonizing transgender experiences with a cisnormative, or cisgender privileged, standard of being? As Finn Enke (2013) notes, "the concept of cisgender privilege provides a necessary critique of structural hierarchies built around binary sex/gender..When cis is taken up as an admission of privileged identity, it is cis privilege itself that reifies trans as most oppressed so oppressed, in fact, that it cannot speak out of character" (p. 240) Accordingly, the courts construct out of the cisgender body the caricature of the transgender body, and thus discipline transgender narratives within legal discourse to meet corresponding cisgender narratives of discrimination. However, as Kylar Broadus (2006) observes, the law has a "tremendous power to reflect and shape larger societal messages of acceptance or rejection" (p. 99) In this way, courts are not only symbolic. They are both repositories and agents of knowledge. They transcribe the process of how human subjects become legal subjects, how human claims are understood before the law, and how social categories (race, sex, gender, Epistemic Injustice and the Construction of Transgender Legal Subjects 13 (c) Wagadu 2016  6196 age, ability, etc. are to be understood within a given constellation of rights and statutes. Fricker's (2007) analysis is a method for not only examining the shortcomings of legal institutions. It invites alternatives to how they might be reimagined to include the possibility for epistemic justice in law. Thus, in light of victories for transgender people in the realm of employment discrimination, how might "transgender" escape from the capture of the cisgender experience that seem to narrate and make it legible? Miranda Fricker's "Epistemic Injustice" Epistemic injustice takes two distinct forms. Its first is testimonial, and relates directly the utterances (or testimony) of a speaker/knower.  (2013) explains these forms of injustices as they stem from identity prejudices. In short, we as hearers of communicated information are in many ways biased by certain preconceived notions about the speakers with whom we engage. We inherit and develop these prejudices from the social conditioning that constitutes our experiences and developing identities (Fricker, 2007, pp. 86 87) As Medina (2013) explains, "in testimonial exchanges, hearers who give less credibility than deserved to speakers commit an epistemic injustice, and a systematic one if their unfair credibility assessments are motivated (or simply mediated) by identity prejudices that amount to structural biases against members of certain groups" (p. 54) In courts, the marginalized speaker or litigant faces the preconceived notions of gender of the judges. They must also run their claims against the precedent that has already disclosed how gender will be adjudicated. For instance, in his analysis of human rights law, William Simmons (2011) asserts the marginalized "victim's narrative will not be heard as it will be in an idiom that does not register with the hierarchy [of law] Indeed, the testimony of the Other is always put on trial to determine legitimacy" (p. 134) Another form of epistemic injustice is an interpretive impediment to our social practices, or hermeneutical injustice (Fricker, 2007, p. 147) This injustice exists within the very structure of how social knowledge is produced, or shaped, by active knowers and contributors. To investigate these kinds of injustices is to ask who is contributing to the overall scope of 14 Wagadu Volume 15 Summer 2016 (c) Wagadu 2016  6196 social knowledge production as well as who has access to that social knowledge at all. Hermeneutical injustice also involves the interpretive capacities of the knower and her relation to the collective body of social knowledge used to help make her experiences legible. Interpretive capacities of a knower relate specifically to her ability to understand herself in various social contexts as experiencing and feeling wrongs or rights, misdeeds, affection, compassion, pain, anguish, etc. But in order for her to label these rights or wrongs, or to understand the experiences she has undergone, she must have the conceptual vocabulary to make sense of her experience. If there is no grammar or vocabulary making sense of an experience, it is "inevitably hard to detect" because this marginalization is a product of structural social conditions (Fricker, 2007, p. 152) Thus, if a knower does not have the grammar, or a vested vocabulary to interpret wrongs effectively, from an epistemic point of view she faces an injustice. This is true not only because she cannot fully comprehend what exactly is happening to her and thus makes her claim to discrimination or wrong illegible. She has no recourse to contribute a corrective to it within the larger body of knowledge about that wrong. Fricker (2007) examines these injustices in contexts ranging from post partum depression to sexual harassment, and marital rape. All of these exhibit apparent wrongs associated with them assuming hysteria in women after birth, allowing sexual harassment as a norm, or the act of rape itself (pp. 148 49) However, from the point of view of epistemic injustice, it is also unjust that a person is prevented from engaging in a sustained understanding that her lived experiences persist under domination that her knowledge is illegible and unintelligible from the outset. Indeed, "the background condition for hermeneutical injustice is the subject's hermeneutical marginalization" (ibid. p. 159) This article extends the conception of hermeneutical injustice to transgender experiences and knowledges as they are re lived and re situated in legal discourses. In a time where the spotlight on transgender people is at an all time high, narratives of transgender communities and the knowledges they produce become crucial to creating more just institutions. Epistemic Injustice and the Construction of Transgender Legal Subjects 15 (c) Wagadu 2016  It is an analysis of hermeneutical injustice that is central to this article's argument. Defining "transgender" and "transgender experiences" are not easy tasks, and this article does not seek to limit the possibilities of either. The "everyday" and the "lived experience" now figure prominently in feminist philosophy, particularly in feminist epistemologies (Alcoff Potter, 1993, p. 4) They are key sites for opening up the possibility of theorizing the reality and plurality of gendered life. The present argument builds on the suggestion that the everyday is absent from legal discourse on the subject of being transgender and that this absence, or lacuna, is the condition of epistemic injustice. How social actors perceive transgender experiences is carved out of shared cultural norms. Such norms inhibit not only shared conceptions of what constitutes "normal" gender appearances and experiences. They inscribe themselves on transgender communities' sense of selfhood. Joanne Meyerowitz (2002) argues, "(t)oday as in the past tra