Abstract
Legal regulations of the body produce and seek to protect specific imaginations of the body in an idealized form—that is, not only what a body is but also what it ought to be. In this article, we apply a queer criminological approach to interrogate the regulation of the body-that-ought-to-be that has animated two legal interventions regarding body modification: the criminalization of female genital cutting (FGC), often described in law as female genital mutilation (FGM), and the regulation of gender-affirming manual hormone use. By analyzing discourses that have circulated in Australian law regarding both practices, we show how the legitimacy of a given body modification has been tied to that modification’s potential to either threaten or affirm a body’s capacity to produce intelligible gender. We contend, on this basis, that the body that the law has sought to protect in these instances is a body that is not queer.
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Notes
FGC is also called “female circumcision.” On the importance of the distinction between FGC and FGM, see Ahmadu (2007). As we discuss later, the terms, “genital” and “female,” that are at work in the phrase, “female genital cutting,” also carry cis- and heteronormative as well as cultural assumptions. For further analysis, see Rogers (2009).
Gender affirmation generally refers to practices that assert or recognize a subject’s gender identity (Sevelius 2013). The terms “manual” and “automatic” are used here to signal that while many people use hormones that arise naturally in their body to help constitute their gender, many others use exogenous hormones to do so.
To date, the bulk of queer criminological work has studied the interaction of queer subjects with the criminal justice system unilaterally rather than reflexively, focusing on the repressive effects that legal regulations have upon queer populations rather than on understanding how queer populations, as well as the norms that define them, come into being as the effect of such regulations (Ball 2014, 2016; Dalton 2016; Woods 2014).
Re Alex: 176 (citing Re Jane [1988] FamCA 57 and Department of Health & Community Services v JWB & SMB (otherwise known as “Marion’s Case”) [1992] HCA 15) (our emphasis).
Section 45 was drafted hastily in 1996 (Rogers 2016) on the back of a large public outcry against FGM and during a consultation by the Family Law Council (Pardy et al. 2019; Rogers 2013). The vagaries of Section 45 would produce the conflicting decisions on this case that resulted finally in a High Court judgment in 2019: R v A2; R v Magennis; R v Vaziri [2019] HCA 35 16 October 2019 [56].
As the prosecution noted, the medical expert’s comments “did not exclude the possibility that there had been an injury which effectively had healed without any evidence of it having occurred” (R v A2; R v KM; R v Vaziri, 2012/00280081; 2012/0028455; 2012/00285639 14 September 2015 (Trial Transcript, Supreme Court of NSW Common Law Division, Johnson J) 66).
As the appellants argued, “the way one would get to ‘mutilates’ will vary because of the subject matter. That is to say that because you are dealing with a very sensitive part of the anatomy, it is going to be a lot easier to mutilate that part of the anatomy than it might be, say, an arm or a leg” (R v A2; R v Magennis; R v Vaziri [2019] HCATrans 122 (12 June 2019)).
See Rogers (2019) for further discussion of the teleological presumptions about the clitoris expressed in Vaziri and Magennis.
This may or may not be the way that Alex understood his gender and his desire for body modification, but we are not interested in questioning the terms by which Alex understands his own experience (see Bettcher 2009). Rather, we are interested in the function that these statements perform in law.
As an example, see NSW Crimes Act 1900, Section 45.
Our analysis of these statements does not intend to efface or denigrate those who pursue manual hormonal gender affirmation because they feel that they are trapped in the wrong body. Indeed, Prosser (1998: 68–79) defends the subjective use of the “wrong body” narrative on this account, arguing that some “transsexuals continue to deploy the image of wrong embodiment because being trapped in the wrong body is simply what transsexuality feels like.” Rather, our analysis is intended to show how such statements are wielded by law to arbitrate the conditions under which claims to gender affirmation are legally legitimized.
Notably, the un-circumcised vulva that appears in a diagram in the Family Law Council’s (1994b: 6) report is described as a “normal adolescent vulva.”
See discussions of irreparability as it relates to criminal law in R v A2; R v Magennis; R v Vaziri [2019] HCATrans 122 (12 June 2019).
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Mitchell, M., Rogers, J. Prohibiting the Queer Body: Gender Affirmation, Female Genital Cutting, and the Promise of Gender Intelligibility. Crit Crim 29, 707–721 (2021). https://doi.org/10.1007/s10612-021-09580-2
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DOI: https://doi.org/10.1007/s10612-021-09580-2