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Harvard Journal of Law & Gender

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Transsex individuals often desire the future body that they should have, while intersex individuals often mourn the body they had before an unwanted normalizing surgery interfered with it. Thus, Judith Butler, a dominant feminist-queer theorist who has had a significant role in the shaping of queer theory and politics since the early 1990s, has lately commented that "intersex and transsex sometimes seem to be movements at odds with each other, the first opposing unwanted surgery, the second sometimes calling for elective surgery ...." This proposition serves as a point of departure for this Article, which explores current legal strategies of the two movements through their complex relations with medical-scientific theories about sex and gender.

Feminist and queer theories are generally concerned with the cohesive effects that gender, as a system of normalization, has on legal subjects. This Article highlights two such harms of gender normalization: the current state of Medicaid coverage of adult transsex surgeries, and the current management of intersex subjects. It proceeds by focusing on the discursive relationships of these two social movements with medical experts and texts, and the translation of medical theories into legal narratives. "Medical necessity," "cosmetic surgery," and "experimentation" are terms currently offered in legal narratives by both movements to achieve the two distinct goals of (1) obtaining Medicaid coverage of sex reassignment surgeries and (2) ending normalizing genital surgeries on intersex infants and young children. This Article examines how we can theorize the legal struggles of the two movements in harmony, to enhance the freedom and happiness of the legal subjects at issue, and to minimize the harms of social stereotyping.



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