Legal Consciousness and The Trans Legal Subject: Transgender Experiences of the Law

Abstract

This thesis explores transgender experiences of the law at a time of significant social, political and legal change for Scotland’s transgender population. Twenty-one transgender people were interviewed for this thesis and each of their stories has informed the findings of this work. The literature review for this thesis starts by introducing transness, how it is constructed and what makes it distinct before moving on to operationalise the law as a complex institution defined by power, domination and pervasiveness. Drawing on the work of MacKinnon and a number of transgender writers including Spade and Faye, this thesis seeks to expose the role of the law in perpetuating normative gender and punishing digressions from it. This thesis provides accounts of the encounters that participants identified having with the law, recognising the prominence of the police, prisons and hate crime in transgender discourse on encounters. It then goes on to examine the ways in which participants felt they negotiated the law finding that this often did not align with the encounters they described. Rather than solely focusing on the institutions of the law identified in the first findings chapter they instead discussed negotiating legal Gender Recognition, the medical processes of Gender Recognition and passing. Finally, this thesis argues that the “gap” between encounters and the negotiation of the law helps inform trans legal consciousness. This is further informed by the significance of collective community experiences of the law in informing individual legal consciousness. This thesis concludes that transgender people experience two forms of “knowledge” of the law, that informed by their own personal encounters, alongside community narratives. Beyond this though, the narratives and experiences of other marginalised communities contribute to the formation of “legends” of the law which, as a form of community knowledge, further inform transgender people’s experiences of the law.