A Categorical Imperative ? Questioning the Need for Sexual Classification in Québec[Record]

  • Dorian Needham

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  • Dorian Needham
    A.B. (Princeton), LL.B., B.C.L. (McGill).

Many of us take for granted that the human species is divided — that we are divided — into two neat groups : male and female. This ostensible fact is reinforced by the sale of blue or pink (but never both) baby clothes, by an array of expected behaviours and social roles that match the blue and pink clothes — and by the inevitable Ms or Fs that appear on our driver’s licences, passports, and other official documents. The pages that follow focus on this third aspect of sexual differentiation : the state’s (permanent) classification of its citizens as (only) male or female. But what does it really mean to be male or female ? The modern answer is that sex is determined by a combination of factors. Some are “objective” : chromosomal sex (XX or XY), gonadal sex (testes or ovaries), external morphologic sex (penis and scrotum or vagina and breasts), internal morphologic sex (prostate or uterus), and hormonal patterns (predominantly testosterone-based or predominantly oestrogen-based). Others are “subjective” : self-identified sex (psychologically male or psychologically female), performed sex (engaging in male-type acts or female-type acts) and relational sex (treated as male or treated as female). Harmony between all of these elements is both assumed by and constitutive of official designation as male or female. Yet this notion of harmony belies the incredible variety both within and among the factors mentioned above. Two particularly well-known instantiations of such variety are transsexuals and intersex persons. Transsexuals are difficult to capture with a single definition, but as a working definition we can assert that transsexuals subjectively identify with a sex other than that which their objective characteristics would suggest. Intersex persons, meanwhile, are born with objective characteristics not easily classed as exclusively male or female : for example, their genitalia may be simultaneously or between male and female in appearance or function. The law, however, has ignored these and other examples of disharmony within the factors that reflect or determine sex, choosing instead to class all citizens as strictly male or strictly female. Doing so has required the state to make choices about which factors are determinative of sex — yet these choices are rarely explicit and, as I will illustrate below, often contradictory. Nonetheless, “the law presumes a binary sex model”. Legal privilege may be given to the male/female dichotomy because “[w]estern culture is deeply committed to the idea that there are only two sexes”. As Johanne E. Foster reminds us, “sex […] classifications have been used to determine who could vote, who could own property, and who could legally be denied access to certain occupations and educational institutions. Today, one’s access to employment, education, political power, and even leisure time free from the demands of housework and childcare are all still directly related to one’s sex”. However, tradition is an insufficient reason to continue a practice (think capital punishment), and not all tradition needs to be reflected in the law (think “Honour thy father and thy mother”). This paper thus contests the state’s classification of its citizens by sex. Though many have argued that sexual classification yields unfairness to various groups, very few people have advocated the abandonment of sexual classification ; most of those who do address such a proposal brush it off as no more than an ephemeral possibility. Only Dean Spade has actively promoted the desertion of permanent sexual classifications, but he does so in the American, common-law context. To date, no one has examined the value (or lack thereof) of permanent sexual classification in Canada or in the civil law. I have thus chosen Québec as …