In this article, Mizrahi (Jews of Arab descent) and trans legal claims will serve to expose the law as a tactic of stability. These experiences, positioned at the in-between of stable legal categories, embody the “other” of law, the affective ideologies that the law refuses. If transgender as an identity category emerged from the violent process of separating homosexuality and transsexuality to constitute gayness as normative, Mizrahi emerged from pitting the Jew and the Arab against each other to constitute the “new Jew,” a coherent member of a normative (whitened) nation. Yet the Arab and the Jew, the trans and the homo, are not separate spheres of being but constitute one another, exposing the excesses of gender/sex and race/ethnicity. The Mizrahi and the trans experience cannot escape the desire for normalization or the trauma of otherness, whose materialization into rights and property they critique. Still, the realities of in-betweenness hold the possibility of exceeding coherence, in a state of constant transition between mutually exclusive categories of being. Both positions serve as an affective intervention if they are considered as transitional spaces where one can dare to question the stability of reality and accept its shifting compromise formulation.
This article explores the interconnections of two separate spaces of legal in-betweenness: the trans1 and the Mizrahi.2 The law, the regulatory web of power distributing life chances, is built on binary categories. Yet bodies and selves, imagined communities and material realities, are much less coherent, as I will argue through exploring trans and Mizrahi identity production within and against the law.
Both Mizrahi and trans identities emerged from the attempt to stabilize in-between space created by trauma-induced strategic separations between Jews and Arabs, and between sexuality and gender. In their failed attempt to escape both their own trauma and that of the Ashkenazi (European) Jew and the homosexual deviant, the Mizrahi and the trans are brought into being through similar exclusionary imaginaries. Yet these two positions, already located in the excess of the ideological frameworks that constitute their in-betweenness, Zionism and gender normativity expose identity itself as both a transitional space and a state of constant transition.
The history of trans rights claims in courts and tribunals, in many jurisdictions, revolves around the question of how to define legal protection, or who it is that we protect. The starting point of many legal discussions regarding gender-nonconforming discrimination was that trans people are not what the law meant when it prohibited sex discrimination, for they are not exactly legal “men” or “women” (Sharpe 2002: chap. 7). Belonging to a protected category is a necessary condition for recognition within antidiscrimination laws.3 Reading antidiscrimination jurisprudence from a trans perspective reveals that the protected category of sex presumes a prelegal coherence between one's birth-assigned sex, gender performance, and sexuality (Katri 2017: 51).
The coherence presumption is not the exclusive domain of antidiscrimination law; rather, it is embedded throughout the law, produced rather than reflected in the administrative repetitive act of assigning sex at birth based on newborns' visible genitals. This is an act of allocating differentiated legal status. The coherence assumption is further constantly sustained through those M's and F's that haunt our bureaucratic lives.
Within the coherence presumption of the legal category of sex, trans people are situated in-between the legally assigned “male” and “female.” Even when the protected category of sex in antidiscrimination law was understood as relating also to sex stereotypes,4 the assumption that birth-assigned sex is immutable nevertheless remained unchallenged.5
To escape the trap of assigned sex, the trans movement has in recent decades pushed for the legislation of a new prohibited category for discrimination, “gender identity,” whose legal recognition has also been promoted as a standard for sex reclassifcation. This new category of law is understood as “each person's deeply felt internal and individual experience of gender” (Yogyakarta Principles 2017). This legal strategy, as I will explore, had mixed results; so far it has failed to effectively question the coherence presumption of legal protection, replacing one form of coherence with another.
Inside Jewish society in the state currently called Israel, Mizrahim are systematically excluded from resources and opportunities.6 Israeli law, when confronted with claims of Mizrahi discrimination, fails to relate it to ethnicity or race, that is, that Mizrahim are discriminated against because they are Mizrahim. Even the law that was legislated to specifically counter Mizrahi discrimination does not include a category directly relating to Mizrahi identities or experiences.
Parallel to the trans legal position, the reason Mizrahim are absent from Israeli law is that the law is built on prelegal distinctions between Jews and non-Jews, that is, Arabs. This distinction presupposes that Jews are one hegemonic group (Bitton 2011). This fundamental binary of Israeli law is what justifies its differentiated allocation of rights along Jewish/non-Jewish lines, as they supposedly reflect a relevant difference between the two. Perhaps the most notorious example of this is the Israeli Law of Return, which automatically gives Israeli citizenship to Jews and their descendants. When the Israeli law views Jewish society as a hegemonic group in terms of ethnicity and race, it prevents the recognition of discrimination against Mizrahim. Mizrahim fall in between the mutually exclusive binary categories of the Jew and the Arab (Katri 2018).
All countries currently assign a sex at birth to their citizens and document it on a public register; Israel also documents race, albeit indirectly. Among the data recorded in the Israeli public register, “nationality” is also recorded.7 Race and ethnicity are produced as coherent under Israeli law by employing an otherwise religious category, “Jewish,” to construct national affiliation along racial/ethnic lines and by upholding this category in other avenues of the law in which rights, privileges, and opportunities are distributed.
For legal regimes to fully recognize Mizrahi and trans in-betweenness, and not merely as further protected categories, they would need to acknowledge that the Mizrahi and trans in-betweenness is not the effect of a prelegal, extrajudicial truth but an effect of truth-making algorithms, such as assigned and assumed categories. The in-between categories of law contest the legal system's justification for itself, as objective arbitrator rather than a producer of truth. Paraphrasing Dina Georgis (2007: 259), what the in-between space embodies, then, is the other of the language of law, the affective ideologies that the law refuses. These ideologies are what intrigue me.
Using in-between legal categories, I will explore the ways identities enable and limit recognition of ourselves as being in a state of constant transition, perpetually reshaped through our relations to others. I will explore the construction of Mizrahi and trans legal identities. Both are historically entangled in “liberation” movements (Zionism and gay liberation), whose claim for self-determination created new others, forced outside the new normativity for their in-betweenness.
The term transgender emerged from the violent process of pitting homosexuality and gender nonconformity against each other, to constitute sexual orientation as normative (Valentine 2007: 5). Similarly, Mizrahi identity emerged from separating Jews and Arabs to constitute the “new Jew,” a coherent member of a normative (Western) nation (Hochberg 2007: 37–38). Both are political identities intended to counter the marginalization of the imagined communities they aim to represent.
Following Robyn Wiegman (2011: 303), I will critique the ways both categories cannot escape the traces of the fantastical political desire whose materialization they critique. This is a desire for “the subject's liberation into autonomy and coherent self-production” (24). The failed attempt to escape this desire questions the premise of that desire and opens up the possibility (322) of revisiting the interrelation that constitute Mizrahi and trans as other. The Arab versus the Jew and the trans versus (the cisnormative) homo are not coherent separate spheres of being; rather, they constitute one another to produce the falseness of coherence and the illusion of separation.
The Emergence of Transgender
Trans legal identity can be linked to the erasure created by the gender-normative models of gay and lesbian political identities. To gain access to normative rights, mostly white gay movements framed their identities and practices through the concept of sexual orientation, an inherent characteristic that is both internal and invisible, based on a new understanding of sexual and gender deviance as separate and mutually exclusive (Stryker 2008; Valentine 2007).
Assigning homosexuality solely to the closed identity category of “sexual orientation” neglected all other dimensions that shape sexual experiences and practices.8 This was as much a class and race divide as it was about actual experiences and practices (Minter 2000: 589). The rise of the “like everyone else” homosexual was accompanied by the erasure of his transgressive past and present and inaugurated his continuous stolidity for class and race stratification (Valentine 2007: 176). Those gender-nonconforming people and communities who could not fit neatly into this new invisible model of assimilated homosexuality were left on the side of the road, if not run over.9
Second-wave feminism, which provided a predominant ideological framework for the (white) lesbian liberation movement in the 1970s and 1980s, followed similar gender-normative logics (Stryker 2008). By embracing the divide between sex and gender, second-wave feminism distinguished between “biological conditions” that shape women's experience, such as pregnancy or menstruation, and culturally imposed notions about women, such as that they are less mentally capable of performing certain jobs (Firestone 1970: chap. 1). Thus they were able to claim that the subjectivation of women is socially constructed rather than biologically determined.
This separation between sex and gender also allowed second-wave feminists to push trans women outside the lesbian liberation movement, leading to the rise of trans-exclusionary feminism. The argument that trans women should not be part of the women's movement or recognized as women was based on a difference in “biological conditions” which seems to be their legal birth assignment (Serano 2007). Trans men, as well as butch and femme lesbians, notably often racialized and poor, were also treated with hostility. The former were seen as women who mutilated their bodies and the latter were seen as replicating heterosexist relationships (Butler 2006).
Indeed, both the gay liberation and lesbian feminist movements employed gender normativity to form an LGBT movement that sought and received hegemonic power. Recent writing on gay governance (Gross 2017) and governance feminism (Halley 2018) discusses how gay liberation and feminism became incorporated into the state and state-affiliated powers.
It is no wonder, then, that seeking inclusion within the state by framing demands in normalizing terms is appealing to trans movements. It works. There seems to be a link between securing “private” spheres for self-determination and the ways in which this sovereignty, much like state sovereignty, produces borders to be policed and demands alliances with other self-determined powers, including the state itself. Current trans political identities emerged from this matrix of inclusion and exclusion.
In the West, transgender emerged as a political identity and community in the early 1990s (Stryker 2008). The new term aspired to group under its umbrella identities and practices that had been considered separate until that point. It was meant to be distinguished from the medicalized term in use at the time, transsexual. The transgender claim was that all the different identities and practices under the “transgender umbrella” share a “common political investment in a right to gender self-determination” (Stryker and Whittle 2006: xi).
The term transgender and the community it represented have proliferated significantly: while some identity categories are now considered outdated, other categories, such as nonbinary, have more recently emerged into collective consciousness. Transgender, as an identity category and community affiliation, brought gender-nonconforming issues to the spotlight. The term transgender has become widely known as the respectful mode of address for trans and gender-nonconforming people in the media, medical literature, academia, and law in both affirmative and antitrans contexts. For instance, the 2013 revision of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM), under the diagnosis of gender dysphoria, refers to “transgender people,” and even the 2018 Trump administration's directive to exclude trans people from serving in the US imperial army is titled “Military Service by Transgender People.”
The Transgender Pitfall
Ever since the emergence of the “transgender umbrella,” there have been debates as to who is included in and excluded from it (Namaste 2000). Unifying the identity category can have the effect of marginalizing lived experiences that are intertwined with sexuality and shaped by other dimensions of subordination such as colonialism and ability (Valentine 2003). Despite its good intentions, the universal transgender identity, much like the gender-normative model of homosexuality, is a unidimensional individual identity that is inevitably oriented toward whiteness, Western values, and neoliberal participation (Stryker and Aizura 2013: 8).10
Transgender as a legal and political concept follows the logic of the separation of sex, gender, and sexuality, as it refers to nonconformity between assigned sex and expressed or felt gender, implicitly assuming these to be separate spheres of the self and society. In legal terms this has been translated into a demand for recognition and protection of people's gender identity, understood as a subjective trait known to the self, apart from the sex-assigned body. By failing to question the stability of legal sex categories, the trans legal movement may help create the conditions that enable a backlash, as many antitrans policies now recognize that one has a right to a gender identity “of the heart” while insisting that individuals conform to their birth-assigned sex in public.11
The shift toward a legal recognition of gender identity has further pitfalls: while expanding legal protection, it also redraws the private/public lines along the contours of the trans body,12 placing gender identity in the most private spheres of the self and thus relieving the state of its responsibility for assigning and upholding legal sex categories. Legal recognition of gender identity often fails to help those trans and nonconforming persons who are most impacted by the category of sex: those whose lives are still governed by access to sex-segregated spaces, for example, those who do not have regular access to housing, and as such need to use public bathrooms or access homeless shelters; those at risk of incarceration; those in need of psychiatric hospitalization or rehab; or those who live in foster care; among others (Spade 2008).
Transgender as an umbrella term sought to counter the disciplinary power exerted on gender-nonconforming practices by both the medical institutions and the exclusionary gender-normative model of homosexuality and lesbian feminism. This survival tactic incorporated the same mechanism that created the crisis it countered—creating new norms of legal coherence that can grant access to subjectivity but not effectively counter the unequal distribution of resources and opportunities along assigned, enforced, and consumed ideals of lucrative propriety.
Inclusionary logic has been embedded in the mainstream trans legal movement since its emergence. The trans movement has galloped forward by arguing that gender identity, much like sexual orientation, is internal and individual. The forefront of the trans legal movement, the battle for gender self-determination, follows the privacy logics of sexual orientation in which gender is conceptualized as private capital of the self rather than as an apparatus of maldistribution.13
The Emergence of Mizrahi
Rich similarities can be drawn between the attempt to create a gender-nonconforming “umbrella identity” of transgender and the creation of a new collective Arab-Jewish identity, the Mizrahi. Ella Shohat (1999: 13) describes the emergence of Mizrahi identity in modern-day Israel out of the ruins of Jewish traditions and practices in the Arab and Muslim world. Adopting the logics of assimilation, present Mizrahi demands for inclusion take a position that imagines itself as integral to the Jewish and extrinsic to the Arab. Still, Mizrahi identities, practices, and experiences also affectively keep Jewish-Arab connection alive through the sounds of Mizrahi music, holidays and traditions, dialects and expression, literature and poetry, cultural narratives, and critical perspectives. Mizrahi performativity exposes the essential role of “arabness” precarity distribution within the Israeli regime (Katri 2018).
In the Orientalist imagination of Europe, the European Jews14 were “the orient from within the continent” and the Arabs, “the Orient from the outside” (Hochberg 2007: 7). From a Eurocentric point of view, the European Jews were not the same as the Arabs, but both were visibly the other of “the continental,” imagined as a continuum of otherness that is reflected in the concept of anti-Semitism, the hatred of all Semitic people (Anidjar 2007: chap. 1).
Against the background of anti-Semitism, and inspired by the nationalist movement of Europe, the Zionists urged the creation of a “new Jew” who would leave Europe to go back to their “historical homeland,” paradoxically, as European colonizers (Hochberg 2007: 13). By leaving Europe for the Orient, the Jew would finally cease to be the Orient from within (for they are no longer in the continent). The Jew would become European, through a fundamental constitutive manifestation of European (white) supremacy, the act of colonizing. The new Jews, constructing themselves as Europeans, saw their other in the Arab (Shohat 1999: 7).
This resonates with the early understanding of the sexual deviant as gendered and sexed at the same time (Foucault 1990), which gay liberation tried to escape by creating the notion of a separate “sexual orientation,” through which homosexual behavior was understood as internal, unlike gender nonconformity, which was seen as the external manifestation. The gap between adopting an oriental perspective, to escape your own orientalism, and adopting a concept of sexual orientation, to escape the faith of the deviant, never seems so close.
Well before 1948, Zionists were working to construct a national/ethnic/religious Jewish collective, which had not existed for thousands of years, to support their nationalist claim to Eretz Israel (the biblical land of Israel) (11). That is, the Zionist colonial claim to the West, a right for Jewish self-determination in Eretz Israel, is based on a coherent all-encompassing Jewish identity that is at once national, ethnic, and religious. To demand sovereignty, the European Jews needed a nationalist collective.
The Zionist collectivizing efforts echo the gay liberation collective claim for self-determination, which translated into the demand for privacy and for freedom from state intervention in their sexual behaviors. This demand does not question the correlation of sex and gender but emphasizes the coherence of their sexual difference, which is as ontological as sex or gender itself. Their claim is that “we are just like you” and therefore deserve the same self-governance over our private sphere where, according to liberal gay demands, sexuality takes place (Eng 2010: 25). Similarly, the Zionists' claim to sovereign power was that they are “a nation like any other.” Directed at the international order of nation-states, the claim for self-determination asserted the Jews' right to a “private” territory where they could self-govern.
As the gay liberation framing of “sexual orientation” conveniently neglected their gender-conforming history, futurity, and kinship, so did the all-encompassing Jewish identity conveniently neglect the non-European Jews, the majority of whom lived in the Arab and Muslim world. On top of the physical and metaphorical erasure of Palestine and its inhabitants, the all-encompassing Jewish identity erased the pasts, presents, and futures of the Jews of the Arab and Muslim world.
Jews have lived in the Arab and Muslim world for centuries, where they have had complex relationships with Muslim, Christian, and other local populations,15 speaking their own local dialects, cultivating traditions and customs that combined local traditions and canonical Jewish rituals (Shohat 1999). Eventually, having been seen as contested loyalists in their home countries16—owing to a backlash to the Zionist endeavors in Palestine, as well as the rise of Arab nationalism—and in messianic hopes for a better future in the land of the Jews, the Jews left the Arab and Muslim world, and it left them.17
On the their arrival to Israel, mostly between the 1950s and the 1970s, the growing Israeli hegemony cast them as others, as victims of Oriental primitiveness, and as lost children in need of state paternalism (Mor 2007). Israel demanded that they let go of their Arabness as a precondition for entry to the national collective, through a national narrative of a “melting pot” to which all Jews entered equally and came out as new (European) Jews (Cohen, Lewin-Epstein, and Lazarus 2019). The Jews of the Arab and Muslim world could never be the new Jew as far as being non-Oriental, that is, European. For them there seemed to be another process of melting, in which their external Orientalness—their Arabness—was melted into an Orientalness from within, Mizrahiness, constructing them as internal others of Israeli society. In Hebrew, Mizrahi literally means “Oriental.” The new Jews needed the Arab-Jew to secure the transposing of their own Oriental position and because too few European Jews survived the Holocaust to form a majority (Shenhav 2006).
In the same process in which Jews of the Arab and Muslim world were pushed into so-called modernization that positioned them as backward, the hegemonic new Jew was construed in opposition to them. For example, shortly after the mass arrival of Jews to the Israeli state, all Jews had similar rates of educational attainment (Khazzoom 2003: 487). Within one generation of melting-modernization, major postsecondary academic attainment gaps arose, with Jewish European attainment considerably increasing and Arab-Jewish attainment significantly decreasing.18 The melting pot differentiated the Jews from the Arab world from their Arabness, only insofar as it served the Israeli nationalist interest, while continuing to construct them as pathologically backward.
To survive the erasure and exclusion created by Zionist institutions the Mizrahi emerged as a self-proclaimed cosmopolitan identity and experience. Mizrahi was coined by leftist non-Ashkenazi intellectuals as a political umbrella term for all Jewish descendants of immigrants from Arab or Muslim countries. Akin to adopting the term transgender in response to previous medicalized and degrading terms, the term Mizrahi replaced previous institutionalized terms such as Edut Ha'Mizrah (Oriental Jewry) (Shohat 1999: 13).
In the past decades Mizrahi has become the most common term by which Israeli Jews descended from the Arab and Muslim world identify and make collective demands against their exclusion. We are living in a Mizrahi heyday, when the discussion of Mizrahi exclusion has penetrated mainstream media and academia. And yet Mizrahim are still systemically excluded.
A few examples: Mizrahim are significantly less likely to attain post-secondary education than Ashkenazim (Cohen, Lewin-Epstein, and Lazarus 2019: 28).19 Less than 10 percent of tenured university professors in Israel are Mizrahim (and in law schools just 6 percent) (Bitton 2011: 456). Within the general population, the unemployment rate of Mizrahim is five times higher than that of Ashkenazim (Georgi 2013). There are indications that Mizrahim also suffer high rates of incarceration (Mautner 2009). And despite these realities of significant maldistribution of resources and opportunities on almost all fronts,20 Mizrahim are doing better than Palestinian citizens of Israel,21 and those under its military control.
The self-proclaimed political identity Mizrahi creates new dialectics of inclusion and exclusion. It does not directly contest the racial stratification of privileges between Jews and non-Jews in Israel/Palestine but focuses on inclusion within the distribution of resources and opportunities for Jewish citizens. It does not directly question the nationalist normative model of identity focused on sameness, that is, claiming that all Jews are the same besides our different cultural and ethnic affiliations. In fact, as Lihi Yona emphasizes (pers. comm.), while the term Mizrahi has become widely popular in Israel, the term Arab-Jew exists only in academic discourse and would not be accepted positively by the Mizrahi-identified public, as they do not see themselves as Arabs.
Shohat (2006: 332) argues that Mizrahim are both dominators and dominated, at the same time disempowered as Orientals and “empowered as Jews in a Jewish state vis-à-vis Palestinians.” While current mainstream formulations of Mizrahi as a political identity are indeed invested in resisting Mizrahi disenfranchisement, they mostly fail to account for the ways Mizrahim, as all Jews, are complicit in the oppression of Palestinians and largely also continue the Ashkenazi denial of Palestine.
I must be cautious with this critique because of the internal Israeli discourse that posits Mizrahim as inherently more racist than Ashkenazim. The latter imagine themselves to be more liberal, as another manifestation of their Europeanness, while they actually hold the decision-making power regarding Palestinians. The pilot bombing Gaza is almost never Mizrahi, and the head of state ordering such bombing is always Ashkenazi. Mizrahi activism is again and again dismissed by the Ashkenazi Left for not caring about the Palestinian cause. The Palestinian cause is used to mask the Ashkenazi Left's disregard of Mizrahi issues and lack of class critique. Critical scholarship that does not wish to perpetuate Ashkenazi patronizing cannot focus on blaming certain Mizrahi discourse for all injustices done to Palestinians.
Even if inclusionary-focused Mizrahi political identity does not publicly stand in solidarity with Palestine, Mizrahi religious, cultural, intellectual, and cultural production remains the most significant, if not the only, Jewish site for affectively disturbing Jewish supremacy. Despite my critique of the Mizrahi move for selective (Jewish) inclusion, I argue that questioning the all-encompassing Jewish identity, in affective ways, as well as through inclusionary demands, is in itself a daring move because it questions Israel's claim for self-determination as nationalist ethnic collective. The Mizrahi demands for inclusion might seem at first as simply carried out on the backs of Palestinians, when in fact they also deconstruct the idea of a homogeneous Jewish collective. Mizrahiness “outs” unexpected attachments between the Jew and the Arab, revealing the fragility of racial/ethnic performativity in Israel/Palestine.22
To return to discrimination, much like trans people, Mizrahim are often discriminated against when they fail to performatively mark themselves as close enough to the (Ashkenazi) hegemonic standards and instead position themselves too close to Arabness. Looking at trans and Mizrahi in-between positions with respect to discrimination, it seems that both are read by the outside gaze in relation to their proximity to the dichotomous sex/gender and racial/ethnic categories available. Perhaps there is no need to demand that Mizrahim adhere to certain nostalgic political fantasies of the Arab-Jew, as their lived realities expose the current productive function of Arabness in the distribution of life and life chances in Israel/Palestine.
Survival Mechanisms and Transitional Spaces
The continuous trauma of otherness (Georgis 2013: 237) is where Mizrahi and trans imagined communities and demands for inclusion come from. The imagined communities successfully provide a collective narrative to people who have been excluded from the hegemonic imaginary. Blinded by trauma, they fail to escape the political desire for a unified narrative that leaves space for incoherence, for a multiplicity of possibilities of being and doing (Wiegman 2011: 306). To become Mizrahi or trans, one must set aside those queer connections that shape lived realities. To conform as trans or Mizrahi legal subjects, one is required to affectively deny their own in-between spaces.
While it is easy to critique this desire for normalcy, the never fulfilled desire “to make sense” points to an inner tension, the tension created by a closed system of mutually exclusive and stable categories of being and doing (334–36). The desire to transcend one's birth-assigned sex and the social expectation associated with it, to transition, exposes the shifting realities of existence (Gozlan 2014), suggesting that the idea of continuous development with a distinct past pointing to a clear future is an illusion (Gilbert 2014: 531). This illusion is necessary both for the social order of imagined communities and for individuals' understandings of themselves in relation to others constituting those communities.
The psychic positions of being in transition, while aspiring for stability, can also be seen as collective. Looking at a trans desire for sex/gender affirmation can allow us to consider the ways in which all bodies/selves are always already in transition (Gozlan 2014: 390). From a Mizrahi point of view, transition as existence, that is, in-betweenness, might be the practice/experience of imagined communities. The in-between might offer us an affective intervention if we consider it as a transitional space where there exists a “capacity to accept reality as an always shifting compromise formulation, never absolute, always in question” (380).
The potential to surpass birth assignments and expectations invites thinking of transition as a state of being. When desiring socially unexpected gender articulations, the trans person encounters the “hallucination of gender certainty” (991), the fact that gender is not stable as claimed, but rather that bodies are represented as stable by performing coherence to a specific socially accepted configuration. However, if the trans person is even allowed a certain degree of “self-determination,” legally or socially, it is almost only offered insofar as they can articulate certainty in regimes of gender, or at least affirm the premise that gender is internal, individual, and private. To legitimate their gender nonconformity, the trans person is asked to reaffirm the structures that constituted them as others (the sex/gender system), all while affectively knowing and expiring sex/gender's inescapable intersubjective transitionality.
Oren Gozlan argues that dimorphic gender simultaneously enacts and veils the anxiety embodied in the desire for sexual differences (260). He argues that the universal trait of gender and sexuality is that it is always transformative and in transit (265). Instead of asking why gay or trans individuals hold on to coherent notions of their own gender or sexuality, he points out that everyone's gender and sexuality is a “conflictual attempt to both signify and eradicate differences” (364).
Following Gozlan, I suggest that Mizrahi identities have the same effect in relation to race/ethnicity of Jews and Arabs. Gozlan argues that “while one can identify as male and female and hold on to notions of femininity or masculinity as coherent categories, this gender certainty represents an attempt to obliterate difference within the self” (381). One can argue that while it is common in Israel/Palestine to identify as either Arab or Jewish and hold on to these categories as coherent, it reflects the Zionist attempt to create a Jewish certainty that obliterate its Orientalness. Thus allowing the Israeli regime to normalize its colonial practices by presenting itself as a majority in conflict, while in fact a minority held European state power controls a majority of Mizrahi (Jews of Arab descent) and Palestinian (Arab) populations, subjected to highly varying degrees of oppression.
Mizrahi identity counters the “hallucination of Jewish certainty,” exposing the instability of the Jewish-Zionist identity components. Tragically, instead of unmaking the link of ethnicity/religion/nationality, the current dominant Mizrahi demand asks to expand the nation, which is equated with the Jew, to include the Mizrahim. Still, what constitutes Mizrahi otherness is the Zionist-colonial pitting of the Jew against the Arab.
The Mizrahim are demanding their place in a system based on rejecting the Arab and Arabness to make space for their own Arabness and Arab past. The emergence of the Mizrahi reflects the trauma of moving from being othered for their Jewishness as a minority in the Arab world, to being othered for their Arabness as an ethnic majority in a Jewish state situated in the heart of Arab space (Hochberg 2007: 83). The Mizrahi demands for inclusion in Israeli hegemony points to the instability of race and ethnicity.
The juxtaposed reading of Mizrahi and trans as supra-identitarian follows C. Riley Snorton's (2017: 2) formulation in Black on Both Sides: A Racial History of Trans Identity: “Although the perception that ‘race’ and ‘gender’ are fixed and knowable terms is the dominant logic of identity, . . . ‘trans’ is more about a movement with no clear origin and no point of arrival, and ‘blackness’ signifies upon an enveloping environment and conditions of possibilities.”
Mizrahiness is not blackness, neither in a material nor theoretical way, and I deliberately do not generalize the Mizrahi ethnic/racial position, as their racialization is highly contextual. I do suggest that examining the racial/ethnic in-between position of Mizrahim through a trans perspective, as a state of endless and beginning-less transition, and looking at gender/sexual in-between positions through a Mizrahi perspective that encompasses conditions and possibilities, illuminate new aspects of both positions, offering, perhaps, a way to move with and within the imitative structures of identities.
Ashkenazi (European) Judaism is a kind of whiteness in which the imitative structure of race/ethnicity is overt. Ashkenazi Jewry has only very recently, in historical terms, become white—and only after being sent to Nazi death factories for their supposed racial inferiority. Jews did not simply leave Europe; they were spat out. By pushing away their own position as the internal other of Europe to their own Orient from without, the Mizrahi, Israeli Ashkenaziness constituted itself as white, implicitly revealing not only racial/ethnic performativity in Israel/Palestine but perhaps the production of whiteness more broadly.
Similarly, the gay and lesbian push toward inclusive normalcy truly becomes feasible only after the HIV/AIDS epidemic, which paradoxically authorized the gay and lesbian (gender) identity as normal and culminated in the desire for marriage. The mainstream gay and lesbian performativity of state-certified domesticity, merely a decade after queer sexuality was state-sanctioned to death by disease, is another material site of performativity in which the imitative act of normativity is visible.
Not only can Mizrahi and trans political identities not escape the “fantastical desire” of Ashkenaziness and gayness for inclusion, but in their attempt to escape they must bear both the trauma inflicted directly on them and the traumatic past of the European Jew and homosexual, which is also their own.23 Moving forward with respect to traumas that shape identities rather than being led blindly by their pain, the Mizrahi and trans movements need to embrace incoherence, as it gives the past disruptive power over the present, rather than its continuous justification (Weiman-Kelman 2018).
Shohat argues that Mizrahim are both embedded in, and in excess of, Zionist history. Gender nonconformity is also both an integral part of the category of sex and in excess of it.24 In lived realities Mizrahi and trans resist the possibility of excess and demand recognition for their embodied position. The trans legal movement is still holding on to the separation of sex, gender, and sexuality—to the belief that there exists an inherent stable gender identity. The Mizrahi is neither the Arab nor the European Jew, claiming its own stable ethnic identity and separated legal recognition. The excess of these two positions in relation to the ideological frameworks that gave rise to them, Zionism and gender normativity, exposes identities themselves as “a movement between various points of reference: between past and present, here and there, self and other” (Hochberg 2007: 40).
The Arab-Jew, as the imagined past, the fantastical future, and the rejected present of the Mizrahi, reveals the inherent connection of the Orient from within and the Oriental outsider. The excessive possibilities of the Mizrahi position is disregarded in the aspiration for coherence. This is the in-between space that binds the Jew and the Arab, an illicit binding of the hearts no one can afford to admit. Holding on to the fantasy of getting rid of each other, or living in two states, Israel/Palestine is still occupied not only by arms and laws but also by the Zionist-colonial imagination of a coherent state.
The trans movement is still grappling with its own anger toward gay liberation and the resurgence of trans-exclusionary feminist politics, yet inclusion-focused trans advocacy also fails to reflect the ever-shifting facts of gender identity and sexuality. Within and against this oversight, trans and gender-nonconforming identities and practices, binary, nonbinary, and postbinary, embody the transitionality of sex/gender as an intersubjective experience and as an ever evolving apparatus of power distribution and consumption. To create change, instead of re-creating the same structures that cast gender nonconformity as deviant behavior, trans movements must find a way to imagine themselves beyond a legally defined coherent category of gender identity. In this transitional space perhaps bodies and desires can mix and match against and within normative ideals, striving for indeterminacy instead of self-determination.
Still, the in-between space of the Mizrahi opens up the fantasy of conceptualizing Israel/Palestine beyond the Eurocentric imagination, leaving room for fragmented attachment outside the coherent idea of the state and its citizens. The in-between space of trans identities and practices ties together the sexual and the gendered deviant ghosts of the past, to posit transition, beyond medical procedure or radical politics, as an experience of the self, denied by the illusion of coherent sex/gender. Both these in-between spaces suggest alternative relations to ourselves and to others.
The excess of identities that are already in excess of other identities, such as the Mizrahi or the trans, holds an in-between space of transition where the paradox of coherence is inescapable, and its power finally fades. In this space, one can dare to question the stability of reality and accept its shifting compromise.
At this point I can go back to where I started because the law is a tactic of stability, of presenting maldistribution as an inevitable, linear process, as a given state of affairs and not a constantly produced reality. If sex/gender is not a fixed, essential truth, then there is no room for the allocation of a differentiated legal status, the M's and F's, at birth. If being Jewish is not a stable inherent and inherited racial/ethnic national position, then all should be allowed to return. Both birth rights and birth assignments should be rethought together.
I wish to thank Brenda Cossman, Dina Georgis, Yifat Bitton, Aeyal Gross, and Lihi Yona for inspiring me to develop the ideas incorporated in this piece. I also thank Zohar Weiman-Kelman and Maya Avis for valuable edits and input and the editors and reviewers of TSQ.
For the purpose of the discussion here, I will use the terms trans and gender nonconforming to talk about people whose felt or expressed sex/gender do not conform to the social expectations attached to the sex they were assigned at birth. Yet the terminology around these identities and experiences is ever changing. Moreover, as I will further explore, these identities and practices seem to be in an endless process of metamorphosing interpellation, constantly creating new words and meanings.
In the context of this article, Mizrahim (plural) and Mizrahi (singular) refer to Israeli Jews who have originally immigrated to Israel from Arab and Muslim countries. It is the widely used term by which Jews from Arab-Jewish descent identify, and it is a self-proclaimed name; its emergence will be discussed further.
Kimberle Crenshaw's (1989) seminal work on intersectionality unpacks this specific dilemma within antidiscrimination law, pointing out that when one's identity does fit neatly within a given category, their experiences are rendered invisible in the eyes of the law.
Understating sex solely as prelegal meant that many discrimination scenarios were perceived as reflecting a relevant difference between males and females. To counter this, the definition of sex has been expanded in different legal systems to include sex stereotypes, most notably in the American precedent-setting case Price Waterhouse v. Hopkins (490 U.S. 228 ).
It should be noted that other groups inside Jewish society, perhaps most notably Ethiopian Jews, suffer from much higher levels of systematic discrimination, which I will not discuss in this article. Moreover, I wish to stress that I refer to “Jewish society” because the status of Palestinian citizens of Israel and Palestinians under Israeli control is not only worse in terms of systematic discrimination, but it is also embedded in the law in different ways. I will briefly address the status of Palestinians later on.
Public Register Law, 5721/1965, SH No. 446, p. 270 § 2 (1964–1965) (Isr). The nationalities of all Jews in Israel are recorded as “Jewish,” while Palestinians, Christians, and Muslims are recorded as “Arab.” While this information no longer exists on national identity cards, it is still recorded on birth certificates, that is, assigned at birth and documented on the public register. Arabs are considered under Israeli law a different race from Jews. See Georgis 2007.
For in-depth exploration of the erasure of race, class, gender, and other categories in the consolidation of gay identity, see Adler 2018, chap. 4.
Such is the case of the notorious American Employment Non-Discrimination Act (ENDA), in which protection of gender identity was omitted, to make it easier to gain congressional support. The bill did not pass. Moreover, whether antidiscrimination legislation actually protects or substantially improves the lives of individuals and communities is a different question.
In the first chapter of his forthcoming Sex Is as Sex Does: Transgender Identity and the Politics of Classification, Paisley Currah maps the reliance of trans advocacy on the principal unit of the liberal American political imaginary—the individual—as well as trans advocacy ratification of the state as neutral in the process of constituting and upholding gendered regimes of power.
I thank Lihi Yona for illuminating this point by explaining how, within the context of incarceration, the recognition of one's gender identity at times means only that one is allowed to consider themselves trans without being granted access to care or safe spaces, exactly because there is no private space in prison.
Many antitrans bathroom laws follow this logic. See Sudai 2018. A clear example of this logic can be found in the Department of Defense Report and Recommendations on Military Service by Transgender Persons (US DOD 2018: 4), which is the basis of Trump's decision of March 2018 to prohibit the service of trans people in the US army. The report states that trans persons can be drafted into the army if they “have not transitioned to another gender and do not have a history or current diagnosis of gender dysphoria—i.e., they identify as a gender other than their biological sex but do not currently experience distress or impairment of functioning in meeting the standards associated with their biological sex—are qualified for service, provided that they, like all other persons, satisfy all standards and are capable of adhering to the standards associated with their biological sex.”
For instance, section 2 of the Argentina Gender Identity Law (2012), which is considered the gold standard with respect to legislating the right to gender self-determination, defines gender as “the internal and individual way in which gender is perceived by person.”
The European has imagined the Jew as an Eastern European ultra-orthodox Jew. It is interesting to note that Jewish communities who wished to assimilate, such as the German Jews, have also adopted a superior attitude toward the Eastern European communities, describing them as primitive and backward, as if they have been “kept out of time” and have missed out on modernity (see Hochberg 2007: 11). Needless to say, this is the same way Christian Europe described the Arabs, and Zionists described the Arab Jews (and all other Arabs as well). This also resonates in the way modern secular Israel views ultra-orthodox Jewish communities.
Although Jews found relative safety in North Africa and the Ottoman Empire post expulsion from Spain, they did not have the same rights as the local Muslim population until Western influence started to arrive. However, this also brought a new set of “Western” anti-Semitic ideas. Such is the case of the infamous “Damascus affair,” in which the disappearance of a Christian French monk brought forward accusation of ritual murder made by a French councillor. This blood libel incited the first pogrom (an organized racial attack on Jews) in the Arab world, in which the Muslims raided the Jewish quarter for weeks. The noblemen of the community alongside children were arrested and tortured; some died and some were forced to convert. See Frankel 1997.
At the same time the Jewish right to self-determination was being exercised in Palestine, the Arab world was also moving toward nationalism, in part as a postcolonial response, inventing itself in accordance to Eurocentric definitions of the nation as a coherent unit. For those nations, the other was Zionism. What Zionism and Arab nationalism discursively shared is the idea of a “pure” and “authentic” nation that is created by eliminating the foreign so that the nation can emerge in “all its native glory.” Thanks to European colonialism and fascism, the Arab-Jews were caught between two rival essentialist forms of ethnocentric nationalism. Beside the implication of Zionism and postcolonial Arab nationalism, Arab-Jews were also affected by European colonialism in their home countries when they were separated in their rights and privileges from the local Muslim population, putting them in a state of in-between, “alienated from both colonizer and colonizers” (Hochberg 2007: 22).
The scholar Fady Khoury notes that the vast majority of Palestinians and other Arabs “adopted” the Zionist narrative by erasing the Jews out of Arabness, while continuing to consider other religious minorities, even those who collaborated with the Israeli regime such as the Druze, as part of their collective (private conversation in the closed virtual discussion group “Auto-Orientalist,” WhatsApp, December 30, 2018).
For the process in which these gaps were produced, see Khazzoom 2008.
Importantly, the education attainment rates among Palestinian citizens of Israel are half of those of Mizrahim.
While Palestinians remain in an extremely marginalized, colonialized position because of complex factors, specific middle-class vocations, mostly in the health industry, are more accessible to Palestinian citizens of Israel. For instance, about 38 percent of pharmacists working in the Israeli health system and about 42 percent of nursing students are Palestinians (see Haaretz2017).
Palestinian citizens of Israel are the most discriminated group in the Israeli job market (Hermon et al. 2018).
A tragic manifestation of these conflicting realities unfolded in the events dubbed by the Israeli media as the “stabbing intifada.” These were a series of individualized acts of terror committed by both Jews and Palestinians toward each other between September 2015 and January 2016. During this period, when stabbing incidents happened daily, in a few incidents Jews have accidently stabbed Mizrahi men because they mistook them for Palestinian (see Shuttleworth 2015), and in at least one incident a Palestinian stabbed a Palestinian man, mistaking him for a Jew (Gross and Zion 2015).
This is not just a theoretical point. Among queer communities, trans populations, notably black women, have been disproportionately hit by the HIV/AIDS epidemic. The holocaust is a collective Jewish trauma and not an ethnic-specific one. Further, the Nazis had concertation camps in North Africa and North African Jews were sent to death camps.
Currah (2018) writes, “Trans people were not the intended targets of these policies, we just found ourselves occupying the residual category of legal sex classifications—we're what the system didn't anticipate.”