Yale Journal of Law and Feminism
In the fall of 2000, six-year-old male Zachary from a small town in Ohio, claimed that s/he was a girl and requested, from now on, to be called Aurora. When the child's parents honored this unusual wish and made efforts to make official the child's feminine identity, the case turned into a custody battle between the parents and the state of Ohio. Although the child was occasionally treated as a girl at home from the age of two, the attempt to register the child in public school as a girl motivated the state dissolution of this family. At the conclusion of this legal dispute, the child was removed to foster care, with the expressed hope that the child would enjoy future prosperity as a normal male boy.
Can a parent be legally required to control the gender of a child? What is the legal justification of a forced disintegration of a family? This Essay will try to address these issues, raised by this unusual legal dispute between parents who believed that they should raise their child as a girl, and a state agency that insisted on a masculine upbringing as a boy.
This case is obviously not about a "typical" American child raised by "typical" American parents (i.e. males raised as boys and females raised as girls). After reading the facts of the case, one may reason that however tragic or wrong this case may have turned out, it is not really about society as a whole, but about one, bizarre, unique incident. One may therefore classify the issue purely as a human rights issue, or as a test case of state tolerance towards nonconforming citizens. Although the case could plausibly be treated as any of the above, this is not the direction that I pursue here.
My hope in this Essay is to show, by closely reading this specific case, how through the structure of "the other" we can learn about what is normal. To use Jacques Derrida's language, the structure of the legal sign in this case is determined by the trace or track of an "other," which is forever absent. It is the abnormal that shows us what is normal. It is the ill that shows us the healthy. It is the boy that shows us the girl. The absent in this case is the normal, healthy child. And so although the subject matter of this Essay is a very unusual child, the Essay is an attempt to make sense of the average normal child. Thus in the following reading of the case, the "other" that I seek is not a male child who wanted to be a girl. The "other" is a "normal" male child who wants to be a boy.
Since language and naming are central themes in this Essay, I must first clarify my own. I read this specific case from a feminist-queer perspective, in search of meanings and legal-linguistic structures of the body and the mind. The biological/social dichotomy, and its sex/gender manifestation has been problematized in feminist theory since the 1990s, most notably in the works of Judith Butler and Eve Kosofsky Sedgwick. Drawing on this critical tradition, while also using the language of "sex" (to name the biological aspect of sex) and "gender" (to name the social aspect of sex), I seek to undermine the sex/gender and the biological/social distinctions. Thus in this Essay, the terms "male" and "female" describe what are perceived as "biological" bodies. Accordingly, the terms "feminine" and "masculine" describe what is perceived as "social" behavior, and also to describe self-identifications (i.e. feminine self-identification, masculine self-identification).