“To rephrase Derrida, through jurisprudence of equality, the law that seeks to include trans subjects within the framework of liberalism is a cisnormativity thinking itself as anti-cisnormative, a cisnormativity in the consciousness of a liberating progressivism (original quote is ‘ethnocentrism’ in Derrida, 1967, 120).”
“What law seeks to do is to cast light, as Derrida asserts, through the use of reason, through legal rationalism, upon sets of otherwise confused facts and render decisions that best suit those facts. In other words, the court enacts justice. A line from science fiction will help clarify: “Your honor, the courtroom is a crucible; in it, we burn away irrelevancies until we are left with a purer product: the truth, for all time.” The quote is from Star Trek: The Next Generation, where Captain Picard is asked to answer whether Data, an android (a machine built to look and imitate humans), is in fact a sentient being. He seeks to utilize the court as an instrument through which ‘irrelevances’ are ‘burned away’ for a ‘purer product’: the truth, that is to say the truth of Data’s being. Luckily for Data, his being is prefigured—for there are standards of sentience in the future, of humanity, that ultimately set him free as a ‘unique’ individual–the universal subject, the bearer of rights.
But what are these irrelevances and how do they differ from valid points in the construction of a person’s being? And Picard’s metaphor captures the essence of what courts do in this regard: That outside the light of the court’s reason is an unwanted and, in fact, irrelevant darkness. But does this darkness have any bearing on being, on the subject, the human, on the person being constructed in the court as a process of fact collection? Distinguishing the illegible, the law seeks to make known only a universal sense of a being. And thus legal theory, written as justice, is nothing more than a masked essentialism. It creates a universal subject—a transcendental subject—that burns away, or rather casts out, the ‘irrelevances’ that reason cannot ‘know’ and thus commits epistemic harm and violence to the subjects (read humans) whose lives are often lived in shadows that the light of law casts. Where are transgender people?”