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In this article, Dean Spade explores the problematic role of medicine in pushing for trans rights. Spade uses a combination of personal narrative of his own interaction with the healthcare system and his experience with legal advocacy on behalf of transgender and gender nonconforming clients. He reveals how the medicalization of trans identity, by categorizing it as a mental health disorder called Gender Identity Disorder, serves to reaffirm that everyone should either be male or female. Spade further asserts this medicalization can be problematic when advocating for the legal rights of gender nonconforming individuals. For example, he points out that arguing that individuals with diagnosed Gender Identity Disorder should be protected from discrimination under the Americans with Disabilities Act then requires all trans individuals who need protection to have the healthcare access and desire to be diagnosed with a mental disorder. He advocates for de-medicalizing trans law and policy broadly, and instead argues that advocates push for policies that accommodate gender identities in all of their various forms without requiring a mental health diagnosis. However, Spade recognizes that this is not immediately realistic. So, he also explains how to work towards this goal while still allowing individuals to fight for legal rights with the tools that are currently available. Spades gives an example of birth certificates in New York: originally, individuals were not permitted to change their sex on their birth certificates without proving that they had undergone genital surgery. Realizing that they could not push to abolish sex on birth certificates generally, or even for people to be allowed to change their sex on the certificate without this proof, advocates instead argued that people should be able to ask to make that section on their birth certificate blank. In arguing for this position, they used medical necessity arguments to explain why some trans individuals do not get genital surgery. However, they were careful not to frame their arguments in a way that foreclosed the ability of anyone who had other reasons for not getting genital surgery to avail themselves of this new birth certificate option. Due to Spade’s use of first person and personal narrative, this article’s discussion of the complex issue of the rights of gender nonconforming people in a system that is set up in a binary is concrete and accessible. It is useful for anyone interested in an account of the issues facing gender nonconforming people as they navigate our legal and medical system.


reprinted in SEXUALITY, GENDER, AND THE LAW (William Eskridge & Nan Hunter, eds., Foundation Press 2004)