Dismantling Sex as an Institution of Power: A Trans-Informed Critique of the Regulatory Power of Sex in Canadian Law and Society
Abstract
Through an analysis of Canadian court decisions, tribunal decisions, and correctional policies, this dissertation explores some of the barriers to the ideals of gender self-determination. While existing research highlights the limitations of legal human rights frameworks in addressing the material and structural inequalities faced by trans and gender nonconforming people, more research is needed to interrogate the social, cultural, and legal mechanisms that regulate and erase trans identities. This dissertation addresses this critical gap in the Canadian context. Drawing on insights from critical queer, intersectional feminist, and trans scholarship, this dissertation builds on Foucault’s (1981) concept of institutions of power and introduces the novel theoretical framework of sex as an institution of power. I argue that sex as an institution of power represents the underpinning foundation through which biological essentialism and cisnormativity gain their regulatory power. By reconceptualizing sex as a powerful institution of the state and a decentralized authority, this dissertation offers new insights into how sex and sex-based distinctions are culturally and legally validated, while gender identity and expression are dismissed as secondary constructs. Following an integrated-article dissertation format, three discrete yet related studies critique the regulatory power of sex across various legal and administrative domains—most prominently human rights and corrections. Building dialogically upon one another, these studies reveal the underlying rationales through which decision-makers and everyday individuals actively obstruct gender self-determination. By clarifying and critiquing many of the nebulous claims surrounding gender nonconformity, this dissertation offers critical contributions to the growing body of scholarship and activism advocating for transformative social change—not only in law, but in our everyday lives.