Recent Transsexual Marriage Cases and
a Foucauldian View of Resistance
Anthony S. Winer
Professor of Law
William Mitchell College of Law
The tension between assimilation and resistance can occur in at least two different contexts. First, there is the tension experienced by a societally marginalized group concerning whether its members, as a community, should attempt assimilation with the larger society or embark on a path of resistance. Secondly, there is the tension experienced by an individual who belongs to such a group concerning whether she or he should assimilate or resist, both with respect to the other members of the group and the larger society. A focus on the first type of tension emphasizes power imbalances between different societal groups, while a focus on the second emphasizes those between the individual, social groups and society.
Recent cases involving marriages by male-to-female transsexuals with male partners demonstrate how these two varieties of tension can interrelate with and affect one another. Of special significance is a case from the Kansas Court of Appeals from May of this year, In re Estate of Gardiner, 22 P.3d 1086 (2001). Other recent, and less enlightened, cases include In re Ladrach, 513 N.E.2d 828 (Ohio Prob. 1987), and Littleton v. Prange, 9 S.W.3d 223 (Tex. Civ. App. 1999), cert. denied 121 S.Ct. 174 (2000). In each of these cases, a male-to-female transsexual married a male, and the validity of the marriage, as determined by the courts, was seen to turn on the extent to which the transsexual in each case could be considered "female" for purposes of the corresponding state's marriage law.
In the following analysis, "assimilation" could be characterized as the undertaking of a set of behaviors patterned after the behavior of members of the larger society or social group for the purpose of securing a place in that society or group. Conversely, "resistance" could be characterized as the undertaking of a set of behaviors amounting to a rejection of the need to secure such a place. Using these definitions, each of the recent transsexual marriage cases can be seen as a series of actions taken by the transsexual person along one or more of the assimilation/resistance spectra with varying results and consequences.
In each case, the transsexual person had initially decided to undergo surgery and the other biological and psychological processes necessary for sex reassignment. In so doing, the transsexual, who had experienced a sexual identity other than the one ascribed to her by society, resisted the command of the larger society to continue experiencing a disjunction between physical sex and psychological sex. This act of resistance took the form of undergoing sex reassignment. However, this act of resistance could also be viewed as an act of assimilation toward all post-operative transsexual people.
Next, the male-to-female transsexual undertook an expressly assimilative course by marrying a male. Seeking to marry in a heterosexual pattern is an assimilative act in a society for which heterosexual marriages are considered normal. The male-to-female transsexual, having become in her view female, was taking part in a conventional marriage. She felt herself to be a woman marrying a man.
The courts, however, did not view the situation as one involving a woman marrying a man, but rather as involving a male-to-female transsexual and a male. Only in the most recent case, Gardiner, is the court more willing to consider a variety of factors, such as gonadal sex, morphological sex and phenotypic sex, as well as chromosomal sex. But even in Gardiner, the question is not whether the sex-reassignment surgery has created a situation in which the state can sanction a marriage, but rather the question is: "How much is the male-to-female transsexual like a woman?"
Accordingly, even for the comparatively enlightened Gardiner court, the continued validity of the marriage is based, not on a straightforward valorization of the male-to-female transsexual for who she is, but rather on the extent to which she seems to be something that in most cases she admittedly is not; a woman who was born female. She may have become assimilated as a member of the social group of post-operative transsexuals, but not as a woman in the larger society.
This kind of assimilation is nevertheless worth attaining. It is worth attaining a judicial consciousness valorizing transgendered people for who they are, rather than basing their value on how much they seem like someone else born in a different way. This is one of the sites of conflict between the individual and the larger society, and is played out in the context of attempted assimilation.
One of the most influential among recent thinkers on the site of tension concerning the power imbalances inherent in an individual's relationship to society, was of course Michel Foucault. His perspective is important to many queer theorists due, among other factors, to his unfinished multi-volume work, The History of Sexuality, the completed volumes of which consist of an Introduction (vol. 1), The Use of Pleasure (vol. 2) and The Care of the Self (vol. 3). These volumes focus on the development of the concept of sexuality through early Western Civilization, and would in any event be of interest as a general matter. However, where the topic is assimilation and resistance, these volumes are especially relevant.
In both The Use of Pleasure and The Care of the Self, Foucault attempts to demonstrate that the ethics of sexuality developed during the classical periods had its roots in the well-being and satisfaction of the self. In The Use of Pleasure he develops the idea of askesis: a mastery of the self that involves discipline, exercise and rigor that nevertheless has as its goal the maximal actuation of the self and its pleasures. Similarly, in The Care of the Self, he attempts to demonstrate that early societal strictures on sexual activity were based not on conventional morality, but rather on the idea that such limitations would be most beneficial to the self and most conducive to true enjoyment of life's pleasures. Although Foucault's treatment of his subject is by its terms historical, it nevertheless seems clear that he values the focus on the self as a touchstone for addressing issues of sexuality.
Foucault's stance does much to inform the modern struggle between resistance and assimilation, and also has explanatory power for the situation of male-to-female transsexuals in the transsexual marriage cases described above. The first duty of each individual is to make decisions in her or his life that will maximize their actuation as a person. The transsexuals in the recent transsexual marriage cases did this, much to the testament of their courage and dignity. To live in this way, resistance may frequently be necessary, as the transsexuals resisted by becoming who they felt they truly were. However, often, to assure the greatest effect for their resistance, individuals must be placed within the social context. Many transgendered women and men have done this, by living as heterosexual married couples and otherwise, and this usually involves a degree of assimilation. To assure the fullest actuation and happiness of the self, a degree of assimilation may be necessary to give meaning to resistance.