Hastings Law Journal

Article Title

Documenting Gender


Dean Spade


This Article provides an analysis of gender reclassification policies- policies which determine when an administrative agency will change an individual's gender marker on its records-in three contexts: policies related to gender markers on identification documents, policies related to placement in sex-segregated facilities, and policies related to the state provision of health care that is prohibited based on the gender on record for the person seeking coverage. The Article looks at the significant variation in these policies across agencies to demonstrate the instability of gender as a category of identity verification and to ask whether the assumed usefulness of gender tracking in the variety of state programs reviewed is well-founded. It also places these concerns in the context of the "War on Terror," which has included many policy initiatives aimed at standardizing recordkeeping and surveillance practices nationally. By exposing the consequences of such national standardization in the specific instance of the gender reclassification rule matrix, the Article raises questions about the nature of the "War on Terror" as a state-building project, classification as an equality issue, the limitation of privacy and accuracy-based critiques of the "War on Terror," and the role of surveillance in population-level state caretaking projects.

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