Determining Transgender: Adjudicating Gender Identity in U.S. Asylum Law

Stefan Vogler*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

6 Scopus citations

Abstract

Transgender legal protections have long been contentious issues, with courts often pathologizing or refusing recognition of transgender identities. Recently, however, courts adjudicating asylum claims have recognized “transgender” as a legitimate category of protection. I take this legal development as an opportunity to ask how courts determine if individuals are transgender. While previous work has shown how courts maintain the gender binary, asylum law offers the first chance to analyze how recognizing a distinct transgender category affects the legal gender order and the classification of trans claimants. Drawing on court decisions, ethnographic observations, and interviews, I argue that the recognition of transgender as a category implicitly acknowledges the malleability of gender. Yet, the adjudication of transgender asylum cases continues to uphold a fixed and binary conception of gender by assuming a “born into the wrong body” narrative and that claimants should always already know their gender identities. Courts thus enforce a cis–trans binary wherein only certain claimants are found “trans enough.”

Original languageEnglish (US)
Pages (from-to)439-462
Number of pages24
JournalGender and Society
Volume33
Issue number3
DOIs
StatePublished - Jun 1 2019

Keywords

  • asylum
  • classification
  • gender
  • law
  • transgender

ASJC Scopus subject areas

  • Gender Studies
  • Arts and Humanities (miscellaneous)
  • Sociology and Political Science

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