Transgender Performance and the Discriminating Gaze: A Critique of Anti-Discrimination Regulatory Regimes

Abstract

This article will examine the ways in which Australian anti-discrimination laws serve to regulate transgendered persons. It will emerge that the forms of regulation deployed vary significantly across jurisdictions. In order to appreciate the complex relation of transgendered persons to practices of discrimination and to forms of regulation, it is necessary not only to consider the category ‘transgender’ but to consider also the categories of ‘sex’ and ‘sexuality’. This is not a matter of law’s blindness to ‘intersectionality’, of the abstraction of legal subjects from embodied particularity, but rather a question of the interplay between these categories within specific regulatory regimes. Moreover, the regulation of transgendered persons, and indeed other categories of person protected by anti-discrimination laws, will be seen to occur in ways which call for a re-examination of rights critiques which attempt an interrogative interpretation of rights. The article contends that Australian anti-discrimination laws are marked by a shift from an interrogative to a performative mode of regulation. That is to say, anti-discrimination laws are to be comprehended not by reference to the ‘immutability’ of some attribute or characteristic but rather in the interplay of performance and gaze. This regulatory shift is one which serves to problematize, rather than ossify, extant legal categories. When you meet a human being, the first distinction you make is ‘male’ or ‘female?’ and you are accustomed to make the distinction with unhesitating certainty. (Freud, 1964) But it seems we are as we appear. What a nonsense we make of our hatreds when we can only recognise them in the most obvious circumstances. (Winterson, 1996)

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