Studies in History and Philosophy of Science Part C: Studies in History and Philosophy of Biological and Biomedical Sciences
Policing the social body: Medicine and the administration of legal gender recognition in France and Italy, an historical perspective
Introduction
The entanglement between medicine, health and the state in the so-called contemporary Western world is multifaceted. The history of modern states has been characterised by the progressive development of bio-politics aimed at regulating the “human resources” of the nation by targeting population's health and re/productive capacities as well as by sorting out those populations whose lives were not to be cultivated. Medicine played an important role in these politics and participated in various ways in the “legal systems that distribute security and vulnerability at the population level and sort the population into those whose lives are cultivated and those who are abandoned” (Spade, 2011, p. 73). For example medical theories and systems of classifications played a central role in the implementation of eugenic policies aimed at impeding the reproduction of those deemed “unfit”. More recently, the history of the HIV epidemic provides a number of less obvious examples of medicine's participation in a “legal systems that distribute security and vulnerability at the population level.” The criminalization of HIV + people through the implementation of laws against virus transmission or the restriction on migration for people living with HIV are examples. The history of the procedures to change one's legal gender, a subject that has been little explored by historical research,1 provides another illuminating example of this participation. In Europe since the ‘70s the possibility for trans and gender diverse people2 to have their gender marker and name legally changed has been bound to medical expertise and technologies. Even nowadays thirty-six European states demand a psychiatric diagnosis (Degner & Nomanni, 2017) and nineteen of them also impose medical treatments including sterilization on those who need/want to have their gender marker and/or first name changed in public registries. This is part of the wider phenomenon of trans pathologization (Suess et al., 2014; Missé & Coll Planas, 2010), that is the construction of gender diversity and trans experiences and identities as pathological. The procedures for legal gender change play a pivotal role in the governance of trans and gender diverse people's lives not only because they grant – or fail to grant – “recognition” but also because they regulate “redistribution” (Fraser, 2013) of social goods and life chances. In fact, administrative categorization, including gender categorization, is central to “population-level interventions” - such as welfare policies, law enforcement, migration control, work regulation etc. - that create a differential “distribution of life chances” (Spade, 2011).
In this paper I explore, with a crossed history approach (Werner & Zimmermann, 2003), the role of medicine in the regulation of legal gender recognition3 in France and Italy. The history of legal gender recognition in the two countries is rather different. In 1982 Italy was one of the first countries in the world to pass a bill on this issue. Based on law 164/19824 a person can have his/her/their5 first name and gender marker changed in the Civil Register – the options being either M or F - through a court verdict after having “modified his/her sexual characteristics”. In 2015 the Constitutional Court and the Supreme Court established that having undergone genital surgery should not be considered as a requisite for legal gender change, but jurisprudence is uneven on this issue (Shuster, 2017). Unlike Italy, a legal vacuum prevailed in France until the end of 2016. Nonetheless, at the beginning of the 1990s a procedure for legal gender change based on the jurisprudence was institutionalised. It established that a person could change gender marker and name once he/she/they had been diagnosed as “transsexual” and had undergone medical treatments. The new law approved in November 20166 states that, in case of “legitimate interest,” first name can be changed by filing an application to the Town Council. Furthermore a person can change his/her/their gender marker – the option being either M or F - through a District Court's verdict if he/she/they proves that “her/his sex marker in the records of the Civil Register does not match the sex in which she/he presents herself/himself and is known [by others].” The fact of not having undergone a diagnostic process or medical treatments cannot provide cause for the rejection of the application.
I focus on the processes that led France and Italy to establish for the first time a procedure for legal gender change in the 1980s/1990s. The arrangements that underpinned these first procedures, I argue, provide the frame and path within which recent transformation has occurred. By triangulating different historical sources including medical and legal literature, legal and policy documents, archival records and press articles, I show how medicine was progressively embedded in the procedures for legal gender change, despite through fairly different pathways. In Italy, thanks to a vocal trans movement and a liberal party interested in civil rights, the issue of gender recognition was managed through a legislative reform. The legislature included medicine in the procedures for legal gender change. As we will see in the next pages, the law 164 and its jurisprudential interpretation assigned doctors the role of “experts” in deciding who would be granted access to gender affirming treatments and legal gender change. In France, on the contrary, it was physicians who actively and vocally claimed – and managed to obtain - a central role in the management “gender transitions.” Despite the differences, though, in both countries legal gender recognition was “medicalized”. I argue that the medicalization of legal gender recognition, that is its problematization as an issue involving medical professionals, knowledge and/or technologies (Berlivet, 2011), was integral to the development of a bio-political apparatus aiming at governing a phenomenon perceived as a threat to the social body, its integrity and its re/productive capacity. The history of legal gender recognition, with the complex constellation of actors and interests at play, offers a useful standpoint to study medicalization without focusing too narrowly on physicians' role in its implementation (Conrad, 2005).
Section snippets
The emergence of a demand for legal gender recognition
“Western” trans medicine7
It takes a law to “safeguard the interest of the person (…) while at the same time defending the essential values of the community”: the case of Italy
Despite the fact that the legal framework was enforced by most District Courts, in the 1960s and 1970s some isolated Italian courts began granting some trans people who were not intersex the possibility to have their legal gender changed after genital surgery (Teodori, 1979; Lorenzetti, 2011; 2014). The rationale for this, laid on the one hand, in the recognition of the complex and multifaceted character of “sex” and “sex determination” - a vision endorsed by medical experts testimonies (
“If the Parliament passes a bill, tomorrow there will be 10 000 transsexuals!”: the case of France
As I discussed previously, in Italy a vocal trans movement and a liberal party lobbied for legal change and brought the debate on trans people's rights in the political arena. In France, on the contrary, neither trans organizations nor political parties demonstrated any interest in campaigning for legal change in the 1970s and 1980s. As suggested by sociologist Karine Espineira (Espineira, 2015; Espineira, Thomas, & Alessandrin, 2013), the trans movement, whose origins dates back to the 1960s,
Reading the medicalization of legal gender recognition through the concept of “apparatus of security”
The processes that have led to the establishment specific procedures for legal gender change in the 1980s/1990s which remained unchanged until recent developments, have been rather different in France and Italy. The constellations of actors that have shaped these processes in each of the two countries differ substantially. While in Italy the trans movement had an important role in triggering a public debate about legal gender recognition and stimulating legislative change in the 1980s, this was
Concluding remarks
The paths that brought Italy and France in the 1980s and 1990s to institutionalise a procedure for legal gender change for the first time were rather different. Nonetheless in both countries legal gender recognition was medicalized in an attempt to control and regulate the phenomenon of gender transitions, which was considered a “threat” to the social body. Bounding gender recognition to medical treatments and – as a consequence – medical expertise, conferred to medicine the power to
Declarations of interest
None.
Acknowledgments
This paper was supported by the Institut Franchilien Recherche, Innovation et Societé and by the European Research Council (Grant no. 340510). The funders did not have any involvement in study design, data collection and interpretation or in the writing and submission of the article. I thank all the trans activists that have kindly shared their visions in the making of this research project. I am grateful to Ilana Löwy, Jean-Paul Gaudillière and Luc Berlivet for their constructive advices and
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