“This Bill Would Create a Crime”: Time, State Practices, and the California Gender Recognition Act

by Marie Draz

On October 15, 2017, the California Gender Recognition Act (CGRA) was signed into law. It went into effect on January 1, 2019. The CGRA adds a third gender option— designated as the “non-binary option” and marked with the letter “x”— for all state-issued identity documents. Notably, the legislation also removes several barriers to changing one’s gender marker, such as the requirement of a physician signed affidavit. Among other early adopters of the third “X” option for state IDs in the U.S., such as Oregon and Washington D.C., and the several jurisdictions that have since followed suit, California stands out for its comprehensive approach to offering the third option for all state-issued documents in one fell swoop, including birth certificates.

The CGRA is an important response to decades of research and advocacy work about the harmful effects of a binary system of state gender documentation. As such, it is a significant victory for trans, non-binary, gender-nonconforming, and intersex people. While those who are privileged by the current system for assigning gender may not give a second thought to the marker on their driver’s license, birth certificate, passport, or state identification card, activist and scholarly work has thoroughly demonstrated the deleterious effects for those who fall outside the orbit of binary gender assigned at birth.

For example, in the 2015 U.S. Trans Survey, only 11% of respondents reported that all of their IDs had the gender and name they preferred, and 2/3 reported that none of their documents did. As many have attested, the effects range from outright discrimination, such as being fired, to a pervasive feeling that the structures of society are not set up in a way that legitimates one’s existence. This impact is compounded or lessened given one’s location in intermeshed systems of power such as race, ability, nationality, and class: for instance, class privilege may allow one to more easily access a physician (producing the medical legitimacy that has so often been required for a legal gender change) and racialized surveillance intensifies the likelihood of being asked for one’s documents in the first place. Considering this background, it is clear why so many people who either have or plan to use the third marker report feeling seen, validated, and told they exist-– in other words, recognized.

Despite these meaningful gains, there are several elements of the legislation that deserve critical attention.

Within trans studies, there is a rich literature about both the politics of recognition (after all, is it necessarily a good thing to be recognized by the state?) and the question of gender documentation more broadly. For example, Robin Dembroff has described legislation like the CGRA as the “non-binary gender trap,” while Heath Fogg Davis has done book-length justice to this question of whether we need gender classification at all (spoiler alert: as a first step, you have to know the specific institutional reasons for including it, which is not always as obvious as it might seem).

In my recent article on the CGRA, I build on this work to explore the legislation through a specific framework: the role of ideas about time, or temporality, in debates around sex/gender markers. In raising questions about the legislation’s presuppositions and impact, however, I do not mean to discount the above victories. To the contrary, it is important to think critically about the CGRA precisely because of these victories. It is the extent of the change, and the question of imagining victories that are still to come, that are necessary to explore further. Here, I indicate a few of those questions and some of the reasons why temporality is a constructive framework with which to think about the promise and limits of legislation like the CGRA.

Ideas about time and identity are ubiquitous in discussions of sex/gender markers on identity documents. As Joanne Meyerowitz explains, when people began showing up in the courts in the mid-20^th-century requesting changes to sex/gender markers, there was little precedent to rely on. State institutions have often responded by claiming that an initial assignment of gender, in the form of sex, simply could not be altered. Temporally, this means that there is a particular version of the past, maintained through the work of the document, that persists regardless of any resemblance it may have to one’s lived gender. Lars Mackenzie refers to this as the way that past sex/gender markers can “haunt” the present. In a point that I will return to below, concerns about fraud are hyper-present in these early debates: the allowance of change to a past marker is seen as a threat to administrative systems that rely on tracking people over time.

In the late 20^th and early 21^st century, however, the work of advocates resulted in important victories. Sex/gender reclassifications were granted as long as there was evidence given about the supposed legitimacy of those claims. Importantly, the validity of claimed identities has very often been tied to their persistence over time. We can witness this in the required claim that one has “always known” to have been assigned to the wrong gender or the requirement to “live as” the requested gender for a set amount of time. Even when changes are granted, in other words, the underlying ideas about time and identity remain the same: an identity is more legitimate if it has endured over time.

In their article on sex/gender marker debates in New York City birth certificates, Paisley Currah and Lisa Jean Moore theorize an increased concern with “permanence” (as opposed to a primary concern with fraud) beginning in the early 21^st century. Ideas about time are still central, but the direction of the concern shifts toward the future: to receive a gender reclassification, one must guarantee that the requested gender will be a “permanent” one. The future must be positioned as knowable. This emphasis on permanence is dramatically illustrated by the 2004 U.K. Gender Recognition Act, in which applicants affirm their intention to stay in their chosen gender “until death.”

Emily Grabham has argued that this requirement alleviates anxiety about the future (including the future of the nation-state and its legitimacy) by linking trans subjects to racialized national narratives about a knowable past, present, and future.

The CGRA appears to offer a striking departure from this history. This departure is accomplished in part by treating gender as a matter of self-identification rather than externally legitimated duration: the CGRA explicitly states that gender is a “fundamentally personal” matter. The idea of “self-attesting” to one’s own gender has been an important aspect of trans justice movements. For example, the Sylvia Rivera Law Project lists the ability to self-identify as one of its central goals in work on birth certificate sex/gender markers in New York City and New York State. In the CGRA, this support is backed up with the removal of some forms of external institutional validation of gender (as evident in the lifting of the physician affidavit). This move shifts the emphasis from specific criteria for legitimation to subjective interiority to the claim that “gender is personal.” Opponents of the bill picked up on this, calling it the “choose your own gender” bill.

Of course, for those of us who believe that genders should be proliferated, the idea of a “choose your own gender” bill sounds quite lovely. But is this really what is going on? In reading the text of the CGRA, two main areas caught my attention that indicate otherwise: first, the discussion of fraud, and second, the discussion of provisional gender designations.

The CGRA states that the purpose of a gender marker change must be “to conform the person’s legal gender to the person’s gender identity and not for any fraudulent purpose.” The possibility of such a fraudulent purpose, in turn, “creates a crime.” In other words, the legislation creates the possibility of criminalizing an applicant for receiving a legal gender that is not a reflection of “gender identity.” Historically, a charge of gender fraud has been “proven” with reference to an original assignment given at birth and preserved, unchanged, in a document. The original assignment was preserved as a truth that should be able to prove a fraud. Here, however, all the emphasis is on individual intent, and yet fraud remains a way to remind the applicant that the document should reflect this link between legal gender and lived gender (“gender identity”).

This language of fraud becomes even more noteworthy in light of one of the few places where explicitly temporal language is used: in the discussion of intersex people. Here, the CGRA states that it may be especially important to have a third option (the nonbinary option) because a “provisional gender designation” is important for a child born with intersex traits. Especially given intersex critiques of the ways that trans scholars use intersex experience to legitimate deconstruction of the gender binary, this detail of the legislation deserves closer attention. The language of provisionality, of course, indicates a more temporary status. But what makes one gender more provisional than another? Is biology being reified here as a legitimate reason to have a more provisional gender (in other words, because intersex conditions require a provisional gender assignment before a more permanent choice is made)? Does the potential “provisionality” of the third category stand in contrast with the permanent, stable categories of male and female? How does this acknowledgment, as minor as it may seem, reflect underlying assumptions about the relatively stable location of binary gender?  If we recall that changing one’s gender marker for “non-fraudulent” reasons appears to mean that one is lining up the document with one’s present, lived gender, it is clear the CGRA assumes this will not be “provisional” for most people.

This line of questioning led me to an unexpected place: the temporality of the identity document itself. After all, what does self-identification mean when we are talking about three options (male, female, non-binary) on required state identification? If gender is a “fundamentally personal issue,” why must it be recorded on a document? The limits of self-identification become more apparent when thinking directly about how documentation functions: even when specific requirements are lifted, the document itself continues to freeze a moment of identification in time.

Jane Caplan asserts that the actual messiness of identity constantly threatens to disrupt systems of identification, which attempt to stabilize and control it. And yet, the identity document tries to tame that unruliness for the sake of greater aims: surveying the population, “knowing who you are,” and tracking large groups of people. While trans studies scholars have demonstrated the problems with many of the specific temporal requirements for access to gender markers (such as having “always known”), it is also necessary to fix that analytical gaze on the temporal function that documentation plays more broadly. What Kadji Amin calls the “dual function” of temporality is useful here: both the individual experience of time and the historical production of options. Here, that means both the individual experience of gender documentation as well as the larger narratives about the past, present, and future of state practices. In other words, the recognition goes both ways: state institutions recognize us, and those institutions are also recognized by us. What else, in the California Gender Recognition Act, is being recognized?

I was initially drawn to think about the relationship between time and identity in debates around sex/gender classifications due in part to how central linear, progressive narratives have been to colonization. Ideas about time have served to justify colonialism again and again, whether in the portrayal of the colonized as “outside of time,” caught in the past, or in the projected timeline and future of the nation-state. Given the work by decolonial and women of color feminists to think about sex/gender as a tool of racial and colonial violence, I am interested in how these colonial views of time show up in debates around gender documentation today.

When I read, then, that the CGRA offers the “full recognition” of the state of California, I think of the colonial history of this state: of Deborah Miranda’s important writing on the “extermination of the joyas” in Spanish California, who she sees as living on in contemporary two-spirited indigenous people, and of how this history might trouble the question of whether this settler colonial state can, in fact, offer such “true recognition.” How is the state insistence on the documentation of gender, even with the addition of a third category, part and parcel of this colonial inheritance? As H. Rakes put the question to me in conversation about the CGRA, does California cover over the past of its gendercide by securing the future of its surveillance and significance?

In the wake of Trump’s rollbacks of protections for trans people, looking critically at progressive legislation can seem misguided. I agree that the harm reduction offered by the CGRA and related legislation should not be minimized, especially in the face of the current alternatives. At the same time, if there is any role for philosophers and theorists in the current political landscape, it is to question the options we are given. Even at this moment, when the Supreme Court threatens to entrench mythical notions of biological sex even deeper into our national DNA, it is possible to imagine a coalition of liberatory politics around documentation. As Cassius Adair has argued in his work on anti-blackness and administrative violence, this is already happening on a smaller scale, where communities come together to decide the terms through which they seek to be recognized and recognize each other.

The CGRA is undoubtedly positioned as a sign of the future: it is progressive legislation, moving us forward. (As evidence of this view, prior to the CGRA, legislation in California that loosened requirements for gender marker changes was titled the “Vital Records Modernization Act”; it is not a reach to say that the CGRA is therefore situated as fulfilling that promise of modernization.) And yet, despite the promise of the CGRA, the practice of documenting gender remains. But why should it? What else does this practice preserve? What ideas about time and identity (gender, national, and otherwise) are encoded within it? And what pasts, presents, and futures can we look to for evidence that we could live (and be documented) otherwise?

Thanks to H. Rakes and AJ Young for their helpful feedback on an earlier draft of this post, as well as to Adriel Trott for the invitation.

Marie Draz is Assistant Professor of Philosophy and Associate Director of the Institute for Ethics and Public Affairs at San Diego State University. Her work on feminist philosophy, Continental philosophy, trans theory, decolonial theory, and queer theory has appeared in Feminist Philosophy Quarterly, philoSOPHIA: A Journal of transContinental Feminism, Transgender Studies Quarterly, and the Journal of Speculative Philosophy.