In his well-circulated contrarian take on the Valkyrie fracas, Atty. Bruce Rivera rightfully said that cross-dressing and transgender people are entitled to all the rights and obligations granted by law because of their status as citizens. However, the problem lies not on their status as citizens but on “how we define the meaning of discrimination.” Thereafter, Rivera laid down the foundation of the rest of his contrarian view: “Is a democracy allowed to discriminate? The answer is YES. Provided there is a valid classification.“ Then he pointed out that the division of the almost 100 million population of the Republic of the Philippines into two sexes, though “a problem,” is still a “valid classification.” Therefore, the discrimination based on this division is allowed in a democratic society.
“This is the same law,” he said, “that forces a transgender to write M to the question of sex even if the heart wants to write F.” In this statement, he did not only reduce transgender people into transgender women only, he didn’t also point out why this is exactly a problem. Instead of offering this explanation, he just went on to say that Valkyrie pales in comparison to issues that he would have “taken the cudgels for,” namely: “denying a cross-dresser the right to vote; and denying a transgender the right to own property or denied the right to practice a profession.”
Unfortunately, he didn’t even include the cause of fighting for a gender recognition law, which is always implicated in almost every instance of discrimination transgender people face, including the Valkyrie issue, which Rivera reduced to an instance of “a bruised ego.” He concluded his essay by telling us that there is “only one way to be accepted” and that is “when people will see our similarities rather than our differences.”
In this essay, I will offer four interrelated critiques of Rivera’s essay. I’ve been academically trained in political philosophy; thus, I will interrogate his essay using the approach in this discipline. The first critique centres on democracy, the important actor in his statement, which Rivera didn’t define. The second on the question of whether transgender people are enjoying the benefits of full citizenship. The third one challenges Rivera’s rejection of an important aspect of acceptance: respect for difference. And finally, the fourth critique challenges the advocacy of connivance that Rivera had fallen into by not challenging the frame in which Valkyrie’s no-crossdressing policy operate: the frame of cisgender norm.
Rivera didn’t give any definition and just assumed that “we all know what it means.” This taken-for-grantedness is unfortunate, specially that the central actor in his essay is a democratic society, who, as Rivera argued, is allowed to discriminate if there is a “valid classification.” So what is democracy? And how is the validity of a classification established in a democracy?
Democracy is not a legal term but a political one. Rivera lacked a political unpacking of the term that is crucial to his argument. Usually, we define democracy as the rule of the people, by the people, of the people. In On the Demos and its Kin: Nationalism, Democracy, and the Boundary Problem, Arash Abizadeh provides a more sophisticated understanding of democracy: democracy “demands that the human object of power, those persons over whom it is exercised, also be the subject of power, those who (in some sense) author its exercise.” In other words, the demos must be the author of the power they have to obey.
Classifying something, specially if it’s the State that is doing it, is an exercise of power. In a democracy, for a “classification system” to be valid, it must be authored by the demos itself. If the classification system is not authored by the demos, then the power this system holds over the demos is an arbitrary exercise of power, i.e. it doesn’t have any democratic legitimacy, thus unacceptable in a democratic society.
Gender is one of those classification systems. Gender has so much power over our lives. It shapes almost every aspect of our lives, and gender norms are enforced by the full might of the State. We are legally obliged by the State to write, recite, and perform the gender and the cultural norms associated with the state-sanctioned gender assignment we were classified into when we were born. If we disobey this gender assignment, we will be punished by the State in both direct and indirect ways.
For example, transgender people are required by the Department of Foreign Affairs to look like their gender assignment at birth in their passport photos. Maria, a Filipina trans woman in California, once shared: “When I was renewing my Philippine passport, I was asked to remove my make up and pull my hair in a pony tail because I am a “male.” This is no different from the experience of the trans woman referred to by the Society of Transsexual Women of the Philippines (STRAP) in its statement on the Valkyrie issue. “The Professional Regulation Commission or PRC’s Registry section,” STRAP narrated, “required a transwoman to tie her long hair and look less masculine before being issued a professional license.” Even in the workplace this is the case as what we can learn from the story of Claire, a labour rights leader and transgender woman, and “one of the 96 contractual employees of Tanduay Distillers Inc. in Cabuyao, Laguna who decided to launch a sudden strike after they were told on May 16 to stop reporting to work by May 18.” While working, Claire “was forced to be “mas mukhang lalaki (appear more manly)”, including getting a haircut, as well as wearing more masculine-looking clothes.”
Following Rivera’s logic, these instances can be allowed in a democracy because they are based on “valid classification.” But the question is: does the gender classification system, as it stands, have democratic legitimacy? Is the demos the author of the power of gender over our lives? If not, then how can it be valid in a democracy and be a legitimate reason for discrimination in a democratic society? And if we live in a democracy, why should Maria and the trans woman in the PRC Case be compelled by the government to obey something that has no democratic legitimacy? Isn’t that tyranny? Can Claire’s expression of her gender identity be protected by the State? Or will the State protect and enforce more the current legal gender system, just as much as it will protect and enforce more the interests of Lucio Tan?
Rivera said that transgender people are citizens. But while encouraging us to “let our advocacy have essence,” he failed to ask this substantive and essential question: Is the citizenship of transgender people in equal terms with cisgender people, i.e. those who have gender identity and/or gender expression that matches what is expected of their gender assignment at birth? The answer is No, and this is because citizenship has been based on the reality of cisgender people.
Citizenship is often understood as membership in a political community, which is currently embodied by the State. The State decides the boundaries of citizenship, i.e. who becomes a citizen, the terms of membership – the rights and obligations of being a citizen, and the level of membership – full or subordinate. Social groups that have been previously excluded from enjoying the rights of full citizenship – Greek warriors, peasants, plebeians, medieval artisans, proletariats, blacks, women, immigrants, gays, lesbians, bisexual, and transgender people, living with disability – have fought to make the boundaries of citizenship become more inclusive. However, these struggles are not easily won because as Engin Isin said in his essay City as a Difference: the “dominant groups…have never surrendered…without a struggle.”
In the context of this essay, the dominant group are cisgender people to which Rivera belongs.
Transgender people are seeking to redefine the social world because they cannot fully fulfil the obligations of being a citizen and exercise their rights as equal citizens if in the first place they have a subordinate form of citizenship and, most importantly, when citizenship is based on the reality of cisgender people.
to be continued…