Postmodernism, Feminism and the Law:
The Challenges Posed by Transgendered Persons
Lara Karaian
Ph.D. Candidate, York University
This paper will explore the debate that surrounds postmodernism, queer theory, feminism, and the use of the law to further the emancipatory struggles of transgendered persons. In particular I explore the debate within Canadian feminism with regards to whether transgendered people are being discriminated against by a radical feminist community that refuses to include transgendered women into their organizations. This debate recently converged in the British Columbia Human Rights Tribunal decision Nixon vs. Vancouver Rape Relief Society. In this case the complainant, Kimberly Nixon, a post-operative male to female transsexual was denied access to training services offered by Vancouver Rape Relief Society based on the fact that she was not born a woman. Briefly, the service provider in this case argued that their exclusion of Ms. Nixon from their organization did not constitute discrimination on the basis of sex, as was being argued by Ms. Nixon. Rather, Rape Relief contended that their actions were necessary to protect their right to women-only spaces. Some seven years after this case was brought to the BC Human Rights Commission the Tribunal found in Ms. Nixon's favour, awarding her $7,500 in damages, the provinces highest monetary award for injury to dignity ever.
One of the main problems with postmodernist thought, according to its radical feminist critics, is that the fragmentation of legal subject has rendered foundational categories (such as ‘women’ or ‘lesbians’) a fiction. Postmodern feminists challenge feminist foundations, they emphasize the constructed character of experience, the instability of the feminist subject, the contingency of all knowledge claims and the irreducible complexity of the social world. Radical feminist opponents of postmodernism and the deconstruction of the subject believe that postmodernism undercuts our ability to resist the claims of universality and neutrality made by dominant power structures. As a result, they propose that the very deconstruction that postmodernists claim is supposed to protect women is actually harming them.
Those opposing the inclusion of transsexual women in women-only spaces attempt to speak for all feminists when they claim that feminism is undergoing a transgendered backlash that is borne out of postmodernism. They reject what they see as the postmodernist conception of identity wherein "saying it makes it so" arguing that men are being allowed to access women-only spaces simply because they feel like women when in fact they should be denied. Those opposed to the inclusion of transgendered women argue that their inclusion results in further oppression of the truly oppressed, of real women, moreover it hinders our inability to recognize actual oppression when and where it occurs and is therefore an insult to real human rights. Rape Relief and its supporters espouse the idea that transgender positive individuals have "bought in" to including TG and TS people and that transgendered individuals have managed to "confuse" women and particularly lesbians so as to gain entry into their spaces. These women believe that postmodern feminist theory is merely academic lip-service to equality. They also argued, quite ironically in my opinion, that the deconstruction of gender is tantamount to depoliticizing gender and reinforcing a dominant male paradigm.
For the purposes of this presentation I aim to explore the relationship of postmodernism, feminism and the law by examining and theorizing the relationship between transgendered people and their use of the law in pursuit of equality. My exploration of the Kimberly Nixon case is framed by Michel Foucault's understanding of sexuality discourse and its relationship to the law and Susan Etta Keller's theorizing of the challenges that transgendered people bring to ideas of gender, sexuality and the law.