The origins of gender identity and gender expression in Anglo-American legal discourse
Bibliographic record
Abstract
Anglo-American lawmakers are in the midst of introducing a series of anti-discrimination protections for trans people. By and large, they are making this change by adding the terms ‘gender identity’ and ‘gender expression’ to a variety of human rights law instruments. In June 2017, for example, the Parliament of Canada passed Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code. The legislation adds the terms ‘gender identity or expression’ to the Canadian Human Rights Act, along with the hate crimes provisions of the Criminal Code. Similar pieces of legislation have been introduced in the United States and the United Kingdom. While legal scholarship has spent considerable time debating the merits of such legislation, comparatively less attention has been paid to the plural, and often contradictory, history of ‘gender identity’ and ‘gender expression.’ This article traces the origins of these terms, arguing that ‘gender identity’ is the product of mid-century psychiatric discourses that constructed trans people as a narrow class of persons. ‘Gender expression’ is a comparatively newer concept, emerging in the 1990s in concert with performative theories of gender that sought to demonstrate how disciplinary norms are imposed on all members of society. The contemporary reliance on these terms reflects what Eve Kosofsky Sedgwick has called the tension between ‘minoritizing’ and ‘universalizing’ accounts of gender and sexuality. The article is organized in four parts. Part I traces the origins of the term ‘gender identity,’ along with how it migrated from clinical contexts to legal forums. In 1994, the City of San Francisco became the first Anglo-American jurisdiction to entrench the term in a human rights instrument. Part II tracks the comparatively shorter history of the term ‘gender expression.’ The Part then traces the term’s reception into human rights discourse, with New York City becoming the first Anglo-American jurisdiction to use the term ‘gender expression’ in 2000. Part III examines how two terms emerging out of different historical moments and with different sets of normative preoccupations have recently fused together to capture how individuals internally identify their gender and externally perform it. The article concludes by anticipating future implications for the corpus of trans human rights law, which will inevitably continue to grapple with the tension between minoritizing and universalizing approaches.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.008 | 0.005 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.003 | 0.002 |
| Science and technology studies | 0.022 | 0.062 |
| Scholarly communication | 0.012 | 0.009 |
| Open science | 0.001 | 0.005 |
| Research integrity | 0.003 | 0.005 |
| Insufficient payload (model declined to judge) | 0.002 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".