Rupture, leakage, and reconstruction: the body as a site for the enforcement and reproduction of sex-based legal norms in the breast implant controversy.
Author | Bloom, Anne |
I wanted desperately ... to be ... a girl, a definite indisputable girl. And nothing would do that for me, I felt, but breasts. (1)
"He doesn't know the sentence that has been passed on him?"
"No," said the officer.... "He'll learn it on his body." (2)
"When is a man a man, and when is a woman a woman?" (3) So asked the Texas Court of Appeals when confronted with a case involving a postoperative transsexual who sought to recover under the state's wrongful death statute for the death of her spouse, to whom she had been married for seven years. (4) Christie Littleton had been born Lee Cavazos, Jr., a "physically healthy male." (5) But, at the age of twenty-seven, Christie underwent sex assignment surgery and became an anatomical female. About ten years later, she married Jonathon Littleton and lived with him until his death in 1996. After he died, Christie filed a medical malpractice claim against her husband's doctor in her capacity as the surviving spouse. The doctor argued, however, that the case should be dismissed because Christie was not a "real" woman and therefore could not be the surviving spouse of Jonathon Littleton. The trial court agreed and entered summary judgment for the doctor. (6)
On appeal, the court noted that since Texas did not recognize marriages between persons of the same sex, the key question before the court was: "Is Christie a man or a woman?" (7) In attempting to answer this question, the court acknowledged that Christie currently had the "anatomical and genital features" of a female and that she had "the capacity to function sexually as a female." (8) The court also acknowledged that many physicians would consider her a female. (9) For the court, however, the most important question was not what Christie looked like now but whether Christie was "created and born a male." (10) Because Christie's female anatomy was "all man-made," the court reasoned, she was not a real woman. (11) As a result, her marriage to Jonathon Littleton was illegal and she could not recover as his surviving spouse. (12)
In dissent, Justice Alma Lopez protested the court's reliance on Christie's gender at birth. She noted, among other things, that a Texas court had just a few years before amended Christie's birth certificate to change her gender. (13) "If Christie's evidence that she was female was satisfactory enough" to amend her birth certificate, Lopez asked, why was it not satisfactory enough to satisfy the court in this case? (14)
Indeed, there is considerable confusion in American jurisprudence over what it means to be a man or a woman. (15) One problem that courts face is that sex is not immutable. (16) As cases involving transsexuals illustrate so well, individuals can and do reconstruct and/or amplify their sex on a regular basis. Thus, "[a]n individual may cast herself as a feminine female or a masculine female, she may reject her sexual identity and seek to become 'male' in dress or mannerism, or she may reject both her sex and her sexual identity and undergo sexual reassignment surgery to become a 'physical male.'" (17) In other words, sex can be faked or, put differently, performed--and, because of advances in plastic surgery, the performance of sex can now appear more "real" than ever.
More fundamentally, many bodies, even in nature, simply do not fit very well into the rigid boundaries of male/female classification. Doctors observe physical characteristics that defy a binary categorization of sex on a regular basis: men with breasts, women with facial hair, and, of course, intersex individuals, previously known as hermaphrodites, whose genitalia cannot be distinguished clearly as either male or female. (18) In short, contrary to conventional wisdom, "there are not two ... categories of sex, but rather a continuum of sexes with people distributed across the spectrum." (19)
Despite these realities, judges and legal regulators continue to rely on an understanding of sex as "naturally" binary and associated with particular biological characteristics. In Michael M. v. Superior Court, (20) for example, the United States Supreme Court ruled that biological differences between boys and girls provided an adequate justification for sex-based differences in California's statutory rape law. (21) In Nguyen v. INS, (22) the Court upheld different rules for attainment of citizenship by children born abroad out of wedlock, depending on whether the mother or the father was the American, on the ground that "basic biological differences" between men and women affect parent-child relationships in meaningful ways. (23)
Rulings like these suggest the extent to which American law continues to enforce sex- and gender-based distinctions which are believed to be grounded in "nature" or a pre-political biological reality. (24) They are also indicative of the extent to which the law itself is playing a part in both enforcing and generating norms of sexual identity. The emphasis on "natural" or biological sexual differences in American jurisprudence reveals an important way in which the law plays a role in shaping what it means to be a man or a woman. Furthermore, these cases indicate the importance of the body in the enforcement and reproduction of legal norms.
What does it mean to say that the body is an important site for the enforcement of legal norms? On the one hand, this is a relatively easy concept to grasp. In many ways, it is quite familiar to think of the body as an object of legal regulation, especially when it comes to enforcement. Bodily torture, imprisonment, capital punishment, and threats of physical violence are all common components of legal regimes. Shame, moral persuasion, and contrition also play a role in ensuring compliance with legal authority but, as Robert Cover has pointed out, ultimately, "most prisoners walk into prison because they know they will be dragged or beaten into prison if they do not walk." (25)
To conceive of the body as a site for the reproduction of legal norms requires a bit more imagination. An example of how law might operate in this way is provided in the excerpt from Franz Kafka's In the Penal Colony quoted at the beginning of this Article. In this excerpt, a prison officer suggests that the best way to teach a prisoner the norms of a community is to have the prisoner "learn [them] on his body." (26) The passage is an interesting one because it is suggestive of a way in which the body is not simply a site for the enforcement of legal norms (although it is clearly that as well), but also a means by which legal norms may be corporeally enacted. This notion is made more explicit in another passage of the essay in which the officer explains how the principles that the prisoner has violated will be literally written on the prisoner's body. (27) Thus, it is not enough that the prisoner will be punished bodily for his legal infractions; he must also "learn" the legal norms which he has violated by having them reproduced in some way on his body.
In Kafka's story, and in the examples of bodily punishment cited above, the body acts as a site for the enforcement and reproduction of legal norms primarily in the context of violations of criminal law. In some instances, however, the body also acts as a site for the enforcement and reproduction of legal norms in the context of civil law. Some of the most graphic examples of the body acting as a site for the enforcement and reproduction of legal norms in the civil context can be found in regulation and litigation which touches upon questions of sexual identity, such as cases involving transsexuals. There are many other instances, however, in which the law plays a role in regulating both the practices and the physical make-up of the human body in the context of civil law, where sexual identity is not at issue. The regulation of drugs, smoking laws, and federal guidelines on diet and exercise are all such instances.
This Article illustrates how the body operates as a site for the enforcement and reproduction of sex-based legal norms through a case study of the controversy surrounding silicone gel breast implants, which resulted in regulatory action by the Food and Drug Administration and tens of thousands of women filing suit against breast implant manufacturers for the rupture and leakage of implants which had been surgically inserted into their bodies. The Article argues that the legal response to the breast implant controversy seeks not only to enforce a set of norms about what it means to be female but to also reproduce or "learn" those norms on the human body itself. Because of this, the breast implant controversy serves as an illustration of the ways in which the body is an important site of legal contestation more broadly.
The breast implant controversy is of particular interest for two reasons. First, it provides an important example of the role of law in regulating sexual identity in cases where sexual identity is not directly at issue. In contrast to the Littleton case, no court in the breast implant litigation ever directly attempted to determine what constitutes a woman. (28) Because of this, the breast implant controversy reveals how the law may act more subtly to enforce and reproduce sex and gender norms in litigation that does not ostensibly address such questions.
Second, the artificiality of the implants exposes the limitations of court rulings, like the Littleton case, which rely on biological indicators of sexual difference. Like genitalia, breasts serve to differentiate male and female bodies. To be a "real" woman is to have breasts, yet the breast implant controversy glaringly shows that many bodies categorized as female feel compelled to employ artificial help to fully comply with this expectation. As a result, the controversy provides an interesting opportunity to observe how the law responds when social practices reveal a gap between assumptions about biologically-based sexual differences and the...
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