Abstract

This section includes eighty-six short original essays commissioned for the inaugural issue of TSQ: Transgender Studies Quarterly. Written by emerging academics, community-based writers, and senior scholars, each essay in this special issue, “Postposttranssexual: Key Concepts for a Twenty-First-Century Transgender Studies,” revolves around a particular keyword or concept. Some contributions focus on a concept central to transgender studies; others describe a term of art from another discipline or interdisciplinary area and show how it might relate to transgender studies. While far from providing a complete picture of the field, these keywords begin to elucidate a conceptual vocabulary for transgender studies. Some of the submissions offer a deep and resilient resistance to the entire project of mapping the field terminologically; some reveal yet-unrealized critical potentials for the field; some take existing terms from canonical thinkers and develop the significance for transgender studies; some offer overviews of well-known methodologies and demonstrate their applicability within transgender studies; some suggest how transgender issues play out in various fields; and some map the productive tensions between trans studies and other interdisciplines.

Asylum is a key immigration strategy for transgender subjects migrating to the United States. As individuals who are frequently rejected by their families and who are especially vulnerable (and often especially visible) members of their communities, trans migrants have few options to access documented status. Routinely depicted as the side door to immigration, asylum allows subjects who are explicitly barred from immigrating, or who are marginalized by the heteronormative family unification bias of the 1965 Immigration and Nationality Act, to enter and/or become legally documented in the United States. As a particular form of immigration, the process of asylum involves the actual movement of trans bodies across national borders as well as shifts in the legal status and relationship of trans migrants to the US state.

Asylum law and policy developed in the post–World War II period and was codified in the United States with the passage of the Refugee Act of 1980. The Act adopted the United Nations' definition of a refugee — which also applies to asylum seekers — as anyone who is fleeing persecution or who has a “well-founded fear” of persecution “on account of” race, religion, nationality, membership in a particular social group, or political opinion (INA §101(a)(42)(A)). Of these five grounds, membership in a particular social group provides the best basis for claims by trans asylum seekers. There is no statutory definition for what qualifies as membership in a particular social group, but Matter of Acosta (19 I & N Dec. 211, 233 (BIA 1985)) described it as “a group of persons all of whom share a common, immutable characteristic.” Only shared and unchangeable characteristics that form a fundamental part of an individual's identity or conscience are considered to constitute that individual as a member of a particular social group. This immutability requirement exists in tension with how feminist and transgender studies have theorized gender and sex as socially constructed and as historically and culturally contingent. Trans asylum seekers must posit their sexual and gender identities as essential and fixed, even as their sexed and gendered embodiment may be shifting. The requirement highlights the legal strategies necessary for asylum seekers to make themselves legible to asylum adjudicators by practicing a kind of strategic essentialism.

Several federal court decisions have dealt with trans and gender-nonconforming asylum seekers. The first published asylum cases dealing with trans subjects did not explicitly acknowledge the categories of transsexual or transgender, so trans asylum seekers had to draw on already established legal categories of gender and sexuality to build their claims. The earliest published case was Geovanni Hernandez-Montiel v. INS (225 F.3d 1084 (9th Cir. 2000)), in which Geovanni Hernandez-Montiel, a teenaged female-identified migrant from Mexico, was awarded asylum as a “gay man with a female sexual identity.” This case established that a trans individual who could frame gender identity in terms of sexual identity could constitute a particular social group. Two later federal court decisions — Luis Reyes-Reyes v. Ashcroft (384 F.3d 782 (9th Cir. 2004)) and Francisco Ornelas-Chavez v. Alberto Gonzalez (458 F.3d 1052 (9th Cir. 2006)) — also recognized this particular social group. Nancy Arabillas Morales v. Alberto Gonzalez (472 F.3d 689 (9th Cir. 2007)) was the first published case in which an asylum seeker's claim was based directly on a transsexual identity (and the first in which the female-identified applicant was referred to with female pronouns).

Asylum both makes clear the failings of dominant legal paradigms to account for trans subjects and reveals how legal categories emerge to regulate trans subjects. Simultaneously, however, asylum opens up other ways of thinking about trans subjects and identities that push against the reification of the categories of transsexual and transgender in the law and in cultural forms. For example, despite its shortcomings as a case for trans asylum seekers, Hernandez-Montiel v. INS actually acknowledges the links between sexuality and (trans)gender identity. Many trans people do not experience sexuality and gender identity as mutually exclusive and/or contradictory categories. Yet definitions of transgender developed within academic scholarship as well as within public policy and social services tend to stabilize and homogenize dominant notions of transgender to the exclusion of other gender and sexual identities (Valentine 2007). Somewhat paradoxically, Hernandez-Montiel v. INS troubles these theorizations of transgender within the United States and highlights how the category of transgender is produced as a category of knowledge and management in legal and social realms.

Reference

Reference
Valentine
David
.
2007
.
Imagining Transgender: An Ethnography of a Category
.
Durham, NC
:
Duke University Press
.