JURIDICAL SEX AND THE BIOPOLITICS OF “GENDER”

As an increasingly mobilized analytical concept in transgender studies (Aizura Reference Aizura2006; Beauchamp Reference Beauchamp2013; Spade Reference Spade2015; Stryker Reference Stryker2014), Foucault's notion of biopolitics has recently informed emerging studies on the compulsory sterilization of trans people. For instance, in a study of the former Gender Identity Act in Argentina, Martin De Mauro Rucovsky argues that compulsory sterilization “was a safeguard against the potential risk of spreading, reproduction and increase of the trans* demographic rate” toward a “shared future where monsters would not multiply” (Reference De Mauro Rucovsky2015, 16). De Mauro Rucovsky therefore frames sterilization as a thanatopolitical practice through which the trans body is excluded from the groups of citizens deemed worthy of reproducing. By compelling trans people to undergo sterilization, the state enforces an anticipatory suppression of the social and biological genesis of trans life—of both trans reproduction and trans bio-parenthood. Going further, Anna Carastathis argues that it is a form of genocide in which “trans people are systematically written out of legal existence precisely through the concepts which define ‘the human’ in cisgenderist, heteronormative and bio/logical terms” (Reference Carastathis, Kantsa, Zanini and Papadopoulou2015, 81). These formulations emphasize the violent nature of the sterilization requirement and analyze the nature of its exclusionary logic.

These analyses, however, overlook the question of legal gender recognition to which the sterilization requirements are paradoxically attached. Rather than writing trans people out of existence, compulsory sterilization appears precisely to be a part of legislation that juridically recognizes the existence of trans people and their right to alter their official identity records. Once this is taken into account, a more complex picture of the contemporary governance of trans lives emerges, one in which sterilization is not simply a mode of exclusion or extermination but rather a disciplinary condition for inclusion in political existence and life. This requires a particular understanding of law as a strategic site of power, as well as of sex/gender as one of its products.

First, while law can be seen as enacting thanatopolitical inclusions and exclusions of life and death based on population categories (Mbembé and Meintjes Reference Mbembé and Meintjes2003, 16–17), it can also be seen as a site of veridiction that is involved in the contingent production of those categories as “true.” By “site of veridiction,” I mean “a site of the formation of truth” (Foucault Reference Foucault2008, 30) where, for instance, the apparatus of sex is deployed and becomes translated into regimes of power, knowledge, and government. Thus, rather than seeing law as an exclusionary form of power that produces norms of sex/gender by “regulat[ing] political life in purely negative terms—that is, through the limitation, prohibition, regulation, control, and even “protection” of individuals” (Butler Reference Butler1999, 4), the juridical can also be understood as something more unresolved, responsive, and open (Golder and Fitzpatrick Reference Golder and Fitzpatrick2009, 82). This approach enables an analytics of how “the phenomena, techniques, and procedures of power come into play at the lowest levels” (Foucault Reference Foucault2003, 30). Law may be invoked to respond, in opposition to or collaboration with, productions of truth elsewhere; it may impact other forms of power, such as psychiatric power, by sanctioning its role in public hygiene and order (Golder and Fitzpatrick Reference Golder and Fitzpatrick2009, 27); and it is also a site for making truth claims about social life (Smart Reference Smart1989, 13).

The “sex” produced by law is what I refer to here as “juridical sex,” and it can exist in harmony, interaction, or tension with other discourses of “true” sex. According to Foucault, in modernity, we are never dealing with a discourse on sex but always “a multiplicity of discourses produced by a whole series of mechanisms operating in different institutions” (Reference Foucault1981, 33). These discourses are produced in both scientific contexts—for instance, in demography, biology, medicine, and psychiatry—as well as through confessions of the self, stemming from “the movement by which each individual was set to the task of recounting his own sex” (Foucault Reference Foucault1981, 33–34). As Foucault recounts in his Herculine Barbin volume, the idea that everyone must have “one and only one” (Reference Foucault1980, viii) true and determinate sex was the gradual result of biological theories of sexuality, administrative control, and juridical conceptions of the individual. In The Will to Knowledge, Foucault elaborates that sex is both a product and a target of power. The emergence of sexuality as a discourse of truth gave rise not only to new forms of medical and psychological interventions but also to new governmental techniques of assessment, surveillance, and intervention designed to regulate a society's strength and vigor (Foucault Reference Foucault1981, 145–46).

By governing sex, it was possible to manage both broader population patterns objectified by statistics as well as the reproductive behavior of individual bodies through the production of psychiatric, medical, and bourgeois moral knowledge. New subjectivities such as the “homosexual,” “pervert,” “masturbating child,” and “hysteric” were crafted as types requiring different forms of regulation and intervention (Foucault Reference Foucault1981, 104–5). The nuclear family in particular was deployed as the locus of power through which hygienic, psychological, and pedagogical norms were transmitted, ensuring the social and economic discipline of life processes (Donzelot Reference Donzelot1979, 45, 227).

In short, a whole new apparatus of power was built around the production of “sex” and the desire for it—“the desire to have it, to have access to it, to discover it, to liberate it, to articulate in discourse, to formulate it in truth” (Foucault Reference Foucault1981, 156). Moreover, Foucault argues that “it is this desirability that makes us think we are affirming the rights of our sex against all power, when in fact we are fastened to the deployment of sexuality” (Reference Foucault1981, 157). In other words, the emancipatory desire to challenge the state to enshrine rights of sex in law is only possible because sex has been forged into a true discourse in the first place.

Just as the regulation of sexuality/sex through psychiatric and juridical practices was possible through the production of subjects in possession of a “true” sexuality that could be discovered, analyzed, and controlled, “gender identity” can also be approached as a biopolitical discourse. As transgender studies scholars have shown, the idea of gender is a historical formation and “organising principle” (Preciado Reference Preciado2013, 111) that is not neutral, ahistorical, or universal (Valentine Reference Valentine2007, 5, 19). It can be traced to 1950s and 1960s psychiatry, where it emerged through the U.S. psychiatric problematization of the psychosexual development of intersex and transsexual patients (Germon 2008; Hausman Reference Hausman1995; Meyerowitz Reference Meyerowitz2002). As I have argued elsewhere (Repo Reference Repo2015), by introducing the idea of gender as a separated order of knowledge from sex, with its constituent aspects of “gender roles” and “gender identity,” psychiatrists John Money and Robert Stoller produced new areas of sexed life that could be examined, discovered, ordered, and, consequently, regulated. In practice, this led to the production of a series of psychological and surgical protocols to organize and normalize deviance—for instance, through the “normalization” of ambiguous bodies through medical interventions to make them “fit” the repronormative order of postwar American capitalist life (see also Irni Reference Irni2016, 523).

Like sex, “gender” and its associated categories of “gender role” and “gender identity” gave rise to new subjectivities that emerged through a circuitous convergence of psychiatric and medical discourse, on the one hand, and discourses of the self-produced by trans subjects, on the other. In psychiatry, there were efforts to scientifically differentiate and classify trans categories such as “transsexual” and “transvestite” and to formalize them into diagnostic categories, eventually resulting in the entry of gender identity disorder in children as a diagnosis in the Diagnostic and Statistical Manual of Mental Disorders III (DSM-III) in 1980 (Bryant Reference Bryant2006; Repo Reference Repo2015, 72).Footnote ⁹ At the same time, people who self-identified as homosexuals, transvestites, and transsexuals sought to make sense of how they differed from each other with the aim of making themselves intelligible to others and to make rights claims in both medicine, law, and public discourse (Meyerowitz Reference Meyerowitz2002, 176–77). Thus, to paraphrase Aren Aizura quoting Foucault, only upon the biopolitical deployment of “gender identity” did the transsexual “gain the status of a personage with a past, a case history and childhood” (Reference Aizura2006, 292). From this perspective, gender, like sexuality, can be regarded as an apparatus of biopower: it encapsulates a new mode of truth and knowledge through which the sexual order can be newly deciphered and governed—no longer simply through “sex” but also through and in conjunction with “gender” (Repo Reference Repo2015). As the passing of gender recognition laws demonstrates, the governmentalization of gender identity discourse also has the ability to challenge conventional institutions of juridical sex classification. Gender identity has therefore become a question of biopolitical governance. To illustrate how this occurs in practice, I now turn to the Finnish case.

PROBLEMATIZING PERSONAL IDENTITY CODES IN FINNISH WELFARE BIOPOLITICS

State-authorized documents such as birth certificates, passports, and driver's licenses are the main administrative means through which juridical sex is inscribed and governed. In Finland, juridical sex is codified through Personal Identity Codes (PICs), a unique number series assigned to each individual and a key aspect of Finnish welfare state biopolitics. In this section, I examine how the fixity of the sex variable in Finnish PICs was destabilized with the emergence of the trans subject. This is followed by an analysis of the governmental discourses calling for the administration of sex to be brought under new forms of legally sanctioned expertise and control.

The question of legal sex in Finland is inextricable from this centralized mode of population data collection and governance. PICs are a key biopolitical technology of Finnish welfare governmentality. First introduced as Social Security Numbers in 1964, they were renamed PICs under the 1972 health care reforms that rolled out affordable health care services in all municipalities. The 1960s and 1970s were key decades of the institutionalization of welfare biopolitics in Finland, underpinned by the idea that each citizen possessed an inalienable right to health care (Helén and Jauho Reference Helén and Jauho2003, 24). The PIC institutionalizes the biopolitical demarcation of who belongs to the nation-state and who does not, and it erects welfare structures and practices accordingly to ensure the vitality of the political subject.

PICs allow for the surveillance and regulation of individual health and social order through the collection of a detailed set of personal data from each individual, including name, address, citizenship, native language, family relations, dates of birth and death, and religion. The information is stored in a national computerized data register, the Population Register Centre (Väestörekisterikeskus). It is used broadly across political, social, and economic life—for instance, in elections, taxation, health care, judicial administration, and research. PICs are essential for the conduct of everyday life with businesses and private companies—to open bank accounts, make telephone and electricity contracts, pay bills, make appointments, and buy prescription drugs. As such, PICs are listed on all forms of Finnish personal identification, such as driver's licences and passports.

Because birth certificates are not issued in Finland, the PIC is the only administrative record of a person's legal sex. It consists of 11 characters, of which the first six disclose the date of birth (DDMMYY), followed by a character denoting century of birth (C), and four more characters (ZZZQ) of which the second to last denotes sex (e.g., DDMMYYCZZZQ, whereby the last Z signifies sex). The number denoting sex is odd for men and even for women. By including sex as a variable in the PIC, sex is affirmed as a central aspect of legal personhood and therefore biopolitical regulation. The PIC sex variable affects the regulation of population in terms of the laws regulating names (which must reflect sex), the right to marry (marriage was accessible only to heterosexual couples until 2017), the designation of motherhood and fatherhood, military service (compulsory for men), imprisonment (sex segregation), coercive measures (bodily examinations), and workplace regulations (regarding toilets and washrooms). In short, PICs are the prime mode of rendering the Finnish population calculable and therefore governable (Hacking Reference Hacking1982) by enabling the supervision, discipline, and regulation of the (sexed) conduct of everyday personal, political, social, and economic life. Indeed, in Finland, a perceived “wrong” PIC can leave trans people vulnerable to exclusion and to verbal and even physical violence (Davis Reference Davis2014, 46).

Until the 1980s, the PIC was largely taken for granted as a permanent, lifelong personal identifier reflecting the stability ascribed to the biological “facts” of individuals, such as birth date and sex. The agency of trans people seeking new PICs, however, challenged this assumption. As I will explain, the regulation of juridical sex was framed by government institutions as a population data management problem that involved a lack of proper governmental practices and, hence, a lack of control over trans populations. The construction of the “transsexual” as the subject that required regulation, in turn, shaped the definition of what needed to be controlled and how.

The Local Register Offices were first granted formal authority to grant new PICs in 1988, after a case brought to the Supreme Administrative Court (KHO 1988-A-46) ruled in favor of allowing the Population Register Centre to amend the number signifying sex in PICs. However, there were no official guidelines by which administrators should assess applications for a PIC amendment, so any changes were made at the arbitrary discretion of Local Register Offices. This does not mean that there had not been any efforts to introduce guidelines. In 1987, the Finnish Medical Board (Lääkintöhallitus) approached the Social and Health Ministry to establish a working group to draft legislation proposing juridical criteria for amending legal sex. Together they proposed that the person must have “felt that they belonged since youth to the sex opposite to that registered” and that they be at least 20 years old, unmarried, childless, and sterilized or otherwise infertile. Following expert statements, the proposal collapsed because of criticism of the requirement that applicants should be unmarried and childlessness and the proposal that access to hormone treatments should be licensed. In a 2000 memo commenting on the 1987 proposal, the Social Affairs and Health Ministry stated that “making hormone treatment subject to license was no expedient because it could for instance lead to the street trade of drugs and consequently an increase in health risks” (2000, 16). In addition to the biopolitical concern for the health of the population, this statement reflects a state anxiety about sex fluidity linked to sex hormones as substances that enable the chemical modification of sex (Beauchamp Reference Beauchamp2013, 57; Irni Reference Irni2016, 523).

As medical and psychiatric treatment protocols for trans patients developed in the 1990s, some Finnish Local Register Offices began to demand a psychiatric diagnosis of transsexualism or a statement from the National Authority on Medicolegal Affairs before granting a new PIC. Thus, the anxiety over how to legally control sex-based population data was rearticulated when, in 1992, the Population Register Centre approached the Ministry for Social Affairs and Health for instructions on assessing applications for legal sex confirmation. The Population Register Centre (2002) argued that “the task of defining sex does not belong to Population Register officials, neither do they have the expertise to resolve on which basis and at which point a transsexual can be given a new PIC.” By formulating the problem of “true sex” as a matter of expertise, the Population Register Centre problematized the issue of who gets to define what sex “is” and the idea that particular kinds of expertise were necessary to do so. In 1998, the Population Register Centre again stated that “the basis on which the PIC of a transsexual can be changed varies and the issue is considered problematic in many Local Register Offices” (HE 56/2001 vp, 12).

The Ministry of the Interior, to which the Population Register Centre reported, stated that it, too, felt that “in order to clarify the current uncertain situation, the requirements and procedures for changing sex should be legislated in a sufficiently detailed manner” (HE 56/2001 vp, 12). The same discourse persisted in its 2002 statement to the Social and Health Committee commenting on the 2001 bill: “the Local Register Offices gave diverging interpretations of the basis of which a transsexual's PIC can be changed. In the Population Register Centre's (2002) view, this was because there was “no regulation on the requirements for changing the PIC.” The question of how to govern sex-based data therefore became a matter of how to regulate sex “crossings” by producing a specific, fixed “interpretation” of “true sex” that stabilized trans personhood and rendered it governable.

PRODUCING AND GOVERNING TRANS POPULATIONS

Although attempts to introduce guidelines for trans PIC management in the 1980s and early 1990s collapsed, they set in motion the governmental problematization of the best way to regulate trans personhood. The figure of the “transsexual,” understood in government documents as an individual who “changed” from one sex to its “opposite,” was defined as the subject that required governing. When the bill for the 2003 Trans Law was being prepared, discussion between the Population Register Centre and the Ministry for Social Affairs and Health focused on the problem of how to define the point at which someone could be considered to have ceased to exist as one sex and become the other. In this section, I examine this endeavor to redefine the juridical parameters of “true sex” as a part of a broader attempt to make trans personhood intelligible and, hence, governable under the Finnish welfare state. In the process, the trans subject became produced as a fixed, intelligible political subject that could be objectified by the medical establishment, Local Register Offices, and the central government. Underpinning this governmentalization in the Trans Law was a discourse of equality.

When the Finnish government produced the Trans Law Bill in 2001, a major discursive shift had occurred. In section 2.3 of the Government Bill on the “Assessment of the Current Situation,” the bill reframed the core issue of “too little” governance that circulated in the 1980s and 1990s into a matter of “unequal” governance. According to the bill, the problem was that transsexuals “are not treated in an equal way when they apply for PIC alteration” (HE 56/2001 vp, 10) because “the law as it stands does not state the terms by which an individual can be seen to belong to the sex opposite to their biological sex” (HE 56/2001 vp, 10). In other words, Local Register Offices could not guarantee “equal treatment” of trans citizens applying for a PIC alteration because they lacked the criteria to assess who could “truly” be considered to belong to a given sex. Thus, the documentation that Local Register Offices requested from trans applicants varied across municipalities, making the processes easier for some—and more difficult for others. The proposal then cited Section 6 of the Constitution of Finland, which decrees that “people are equal before the law and no one may, without an acceptable reason, be treated differently from other persons on the grounds of sex, health or another reason that concerns his or her person.” Thus, the proposal argued, “the changing of the PIC of a transsexual should be laid down in law in a sufficiently precise and well-defined manner” in order to ensure equal treatment. Rather than seeing this statement of the right to equal treatment as a self-evident legal or moral imperative (Zivi Reference Zivi2014, 291), however, I suggest approaching equality discourse as a governmental “technology for the regulation of difference” (Repo Reference Repo2016, 322).

Like rights discourse (McNay Reference McNay2009, 70; Zivi Reference Zivi2012, 19), under liberal governmentality, equality discourse often assumes the existence of a fixed and universal group experience on the basis of which claims to equality or rights are made. In order to govern the rights and equalities of populations, specific attributes or characteristics of the referent subjects must be defined so as to be made intelligible in the eyes of the law. By defining those attributes, “the law engages in the discursive ‘production’ of its subjects” (Dreyfus Reference Dreyfus2012, 36). Equality discourse, like rights discourse, is therefore also productive of sex, sexual, and gender subjectivities. This production, however, “entails the establishment of limitations, controls, forms of coercion, and obligations relying on threats, etcetera” (Foucault Reference Foucault2008, 64) in order to ensure that the freedom guaranteed does not endanger the wider population and that the individuals or groups in question “exercise their liberty in a disciplined and responsible manner” (Dean Reference Dean1999, 117). Discipline, as a means of securing rights and freedoms, is therefore integral to the realization of liberal governmentality (Foucault Reference Foucault2008, 65).

By extending this critique of freedom and rights discourse to equality, it becomes possible to examine equality as a key discourse enabling of the governmentalization of trans personhood. First, the discourse of equality produced a transsexual population that was being treated unequally. That population therefore needed to be clearly defined to ensure that all Local Register Offices assessed all gender recognition applications with the same criteria. This required a more disciplined production of the transsexual subject and the centralization of its means of regulation.

On the first page of the 22-page Government Bill presented in 2001, it was stated that “the law would prescribe the preconditions by which a transsexual person's juridical sex can be changed to correspond to their own understanding of their sex” (HE 56/2001 vp, 1). It clarified that the term “transsexual” “refers to a person, who feels they belong to the sex opposite to their biological sex” and elaborated that “medically transsexuality is nowadays considered to be a gender identity disorder” (sukupuoli-identiteetin häiriö), which was a “permanent state.” Legal scholars have argued that the political-juridical recognition of “gender identity” in the U.K. Gender Recognition Act destabilized the sexed body as the sole basis for establishing juridical sex (Sharpe Reference Sharpe2007; Whittle and Turner Reference Whittle and Turner2007). This also resonates with the Finnish case.

In addition, I argue that the establishment of “gender identity” as a new discourse of truth also involves a movement of restabilization. In Finland, the government granted psychiatric authorities the jurisdiction to define “when a person's transition has progressed to the point that their PIC can be changed to correspond to their new sex” (HE 56/2001 vp, 12). “Gender identity” would be treated as a medical “fact” that had the potential to challenge declared birth sex, but this was only possible through psychiatric assessment and confirmation of a person's condition as “permanent” and hence fixed and legitimate. Specifically, the Trans Law demanded that applicants meet the following criteria:

1. 1. Submit medical statement, authenticated by two psychiatrists, confirming that the person “feels like they permanently belong to the opposite sex and lives in the sex role of the opposite sex” (HE 56/2001 vp, 1) and that they have been sterilized or are otherwise infertile

2. 2. Be at least 18 years of age

3. 3. Are neither married nor in a registered partnershipFootnote ¹⁰

4. 4. Are a Finnish citizen or a resident of Finland

To obtain the medical statement, individuals had to pass a diagnostic period lasting up to 12 months or longer, followed by “real-life test” during which they were to live according to their preferred identity for 12 months. The Government Bill stated that the medical assessment was necessary in order to obtain evidence that the applicant “feels that they permanently belong to the opposite sex and that they live according to this sex role” (HE 56/2001 vp, 13). Indeed, what the law produced were regulatory practices targeted at disciplining trans bodies and narratives into discourses of permanence. To provide this evidence, doctors were to refer to the International Classification of Diseases (ICD-10) diagnostic criteria for transsexualism. Although the law did not make hormonal and surgical treatment compulsory because of the health risks they posed for some individuals, it was stated that otherwise “the desire for surgical treatment was a part of the transsexual diagnosis” (HE 56/2001 vp, 13).

An expressed desire for hormonal and surgical treatment, and the ability to successfully complete the “real-life test” as the “opposite sex,” was therefore a means to assess the truth and permanence of a person's sex. The age limit was also reflective of the anxiety around permanence, as “it was not yet possible to diagnose permanent transsexualism in childhood” (HE 56/2001 vp, 13). Similarly, the sterilization requirement also aimed to enforce a permanent change to bodily capacities, compelling individuals to show conviction and dedication to stick with their new juridical sex.

The law produced a particular understanding of the trans subject as a transsexual around which it produced a regulatory apparatus targeted at disciplining trans bodies and narratives into fixed and permanent states. Toby Beauchamp suggests that medical transition is “one method by which the state attempts to regulate movement of bodies and identities” in order to control the “dangerous” and uncontrolled fluidity that, for instance, the self-administration of hormones may unleash (Reference Beauchamp2013, 58). The normative pressure for trans people to undergo hormone therapy and/or sex reassignment surgery, even if they do not want to do so, reflects this imperative. The Trans Law can therefore be considered an attempt to “constrain gender flexibility and maintain the readability of trans bodies” (Zullo Reference Zullo2015, 15) through normalizing practices that produce a fixed, permanent, and governable trans person whose gender identity can be accordingly administered.

Finally, the law may have realized its goal of producing transparent requirements that were universally applied to all trans people applying for a new PIC, but it also created a new centralized system for the recognition and regulation of juridical sex in the Finnish welfare state. Whereas previously one statement from an endocrinologist, or none at all, may have sufficed for the Local Register Office to grant a new PIC, now all trans people were subjected to even stricter criteria than they might have been earlier. The Trans Law therefore did not necessarily make it easier for some trans people to acquire a new PIC. Rather, the law intensified and centralized the power over “true sex.” It shifted the authority to determine a person's juridical sex entirely from the Local Register Offices to psychiatrists in two centralized clinics that specialized in gender identity research, one in Helsinki and one in Tampere. Psychiatrists were no longer solely treating their patients who then applied for new PICs; rather, their protocols and testimonies became a part of the population administration process. In this context, their problem was not so much how to best treat their patients but how to assess, through specific diagnostic criteria and with binding force, whether the individual before them was sufficiently “male” or “female” on the state's terms to warrant a new PIC from the state. Rendering the trans subject governable therefore involved a biopolitical governmentalization of psychiatric knowledge and practice, enabled through a discourse of equality.

STERILIZATION: PERMANENCE, AUTHENTICITY, AND KINSHIP

In this section, I turn to the compulsory sterilization requirement of the Trans Law. Sterilization is usually associated with what Foucault calls the “eugenic ordering of society” (Reference Foucault1981, 149). Like other Nordic welfare societies, Finland introduced eugenic legislation during the prewar period. Most notably, the 1935 Sterilization Law enabled the forced and coerced sterilization of the mentally disabled, mentally ill, epileptics, and sexual criminals (Hietala Reference Hietala, Broberg and Roll-Hansen1996, 218–19). Male sexual criminality was considered to be a male form of degeneration, possibly linked to boyhood “effeminacy” (Honkasalo Reference Honkasalo2016, 272), that demanded neutralization by castration, whereas sterilization was mainly targeted at women to prevent them from reproducing and spreading potentially “degenerative” behavior and defective genes to the next generation (Wessel Reference Wessel2015, 591–99). While it is tempting to tie the 2003 Trans Law to this eugenic history, I argue instead that discourses of sterilization and castration shifted in the 1970s in a way that trans people were also able to manipulate the new legislation to access surgeries to remove reproductive organs. This had unforeseen consequences, as officials conflated the desire for genital surgery with the desire for sterilization as an essential characteristic of a transsexual. The same legislation also shifted sterilization away from eugenic goals and tied it to the normalization of nuclear family life and kinship. It is this latter norm that I argue underpins the trans sterilization requirement.

The eugenic Sterilization Law of 1935 was amended in 1950 when it became possible for a woman to be voluntarily sterilized if she felt herself incapable of caring for her children—for instance, because of her “asocial living habits” (Hemminki, Rasimus, and Forssas Reference Hemminki, Rasimus and Forssas1997, 1877). Forced sterilization was abolished entirely in 1970, after which it was available only as a form of contraception to women over the age of 30 or women who already had three children.Footnote ¹¹ By 1970, the Sterilization Law therefore had become a means of normalizing the nuclear family form and its ideal number of children. By reorienting sterilization practices around the ability of parents to care for the children and provide them with a “social” home, Finnish sterilization legislation became underpinned by postwar discourses of “good” and “bad” parenting (Yesilova Reference Yesilova2009).

Sexual criminals could still be forcibly castrated under the 1950 Finnish Criminal Act up until the 1970 Castration Law. From 1970 onward, sex offenders, but also private citizens convicted of rape and child abuse, could be castrated with their consent “if there are grounds for supposing that his sexual instincts are causing him serious mental suffering or other harmful effects and these would be diminished by castration.” The Castration Board, which assessed castration applications, received zero applications from sex criminals during the existence of the law from 1970 to 2003. In the 1970s, however, it received two applications for castration from male-to-female (MtF) transsexuals. Lacking criteria with which to assess the applications, they created some when they received a third application in 1980 (of a total of 14 that decade). Among various medical requirements,Footnote ¹² the board demanded that the applicant submit their medical case history relating to their dysphoria and have undergone psychological and hormonal treatment prior to application, as most applicants already had by the time they approached the Castration Board. Under the administration of the Castration Board, the transsexual was a pathological subject to be treated for their suffering through surgery as a final step in an already advanced stage in the transition process. For MtF transsexuals, the Castration Law was a legal loophole that they could use to gain access to genital surgery.

This also appears to have formed a basis for the state to conflate the transsexual desire for genital surgery with a desire for sterilization. In the preparatory governmental documents for the Trans Law, state officials seemed to assume that all trans people wanted to be sterilized. A working group memo on the status of trans people published in 2000 by the Ministry of Social Affairs and Health stated that “the Sterilization Law should allow for sterilizations carried out in the treatment of transsexuals” (2000, 16) and therefore that “the Sterilization Law should be changed so that sterilization is also possible on the basis of transsexualism” (35). The Castration Law was seen as redundant as it had never been used for its intended purpose of castrating sex criminals. It had only ever been used by transsexuals to access genital surgery, hence, the logic went, the Sterilization Law should be reformed to ensure trans people with continued access to sterilization once the castration law was abolished. This was reiterated in the 2001 Government Bill, which stated that “according to the Sterilization Law, sterilization is not possible on the basis that a person wants to become sterile due to their transsexualism” (HE 56/2001 vp, 10). The use of the castration law by MtF transsexuals seems to have given rise to a general belief that all trans people used it to become sterile, rather than to merely access genital surgery. While genital surgery leads to sterility, government officials collapsed the difference between the two. This matters because not all trans people are transsexuals, and not all want genital surgery or to be sterilized.

In addition to attempting to close a long-standing legislative loophole, sterilization also functioned to uphold normative kinship relations. As Tey Meadow argues, “legal gender classifications are the implementation of a relational construct of gender that privileges the social roles men and women are expected to fulfil, namely, participation in the heterosexual, conjugal family” (Reference Meadow2010, 831–32). In the Finnish case, kinship relations were not explicitly problematized until the 2001 Government Bill for the Trans Law. The bill and the testimonies of the Ministry of Social Affairs and Health to the Social Affairs and Health Committee all repeated verbatim that “a medical statement of sterility is required, otherwise situations may arise in which a person whose has been confirmed as a woman may father a child, or a person who has been confirmed a man may become pregnant” (HE 56/2001 vp, 13).Footnote ¹³ This statement was not accompanied by other explanations and was presented as a self-evident conundrum of the legal recognition of parentage. This ignored that by law, trans men who gave birth before transition remained the legal mothers of their children even after transition and that trans women who fathered children prior to transition were still the legal fathers.Footnote ¹⁴ Presumably, these families nonetheless threatened to destabilize the hierarchical model of sexual complementarity (Lettow Reference Lettow2015, 268) on which notions of “good parentage” as well as demographic futurity were built.

In sum, compulsory sterilization was instituted in the Trans Law through two rationalizations of power: the verification of trans authenticity and the imperative to uphold normative kinship relations. The former emerged as a response to the MtF transsexual use of the Castration Law in order to access genital surgery. It shifted the authority of regulating sterility from the Castration Board to the experts in the hospitals in Helsinki and Tampere, which were charged with the task of carrying out the disciplinary assessment of trans personhood, including the certification of sterility. At the same time, sterilization was a material technology through which the government sought to neutralize the threat allegedly posed by trans forms of kinship. In other words, sterilization was the technology of power by which trans kinship could be governed through its denial.

CONCLUSION: CRACKS IN THE DISCIPLINARY ARCHITECTURE?

To reformulate Foucault's repressive hypothesis on sexuality in the context of the contemporary trans biopolitics, “gender identities” can be said to be repressed by society, but there is also an overwhelming production of knowledge on “gender identity” like never before. At both the governmental level as well as the subjective level, there is a drive to speak the truth about gender identity, to capture its essence, and to both liberate and govern it. It is beyond the scope of this article to do justice to the myriad complex discourses of “gender identity” circulating in contemporary discourse. The Finnish Trans Law has been analyzed here as a point at which some of those discourses converge and become inscribed in liberal and biopolitical practices of governance, rendering trans subjects governable.

In this article, I have sought to analyze the Finnish Trans Law by putting it into its proper political context of the biopolitical architecture of the Finnish welfare state. By reconstructing the problematizations of governance underpinning the Trans Law, the forced sterilization of trans people appears as a disciplinary technology that produces and regulates political trans personhood in the figure of the transsexual. This governmentalization of trans personhood involves the translation of recognisability into governability under liberal governmentality: in order to govern trans personhood, it was necessary for the Finnish state to render trans people intelligible through the production of psychiatric knowledge. The political recognition of trans personhood was conferred on the condition of compliance to medico-juridical regulation that sought to produce stable, permanent, and infertile trans subjects. The discourse of equality justified the construction of a regulatory apparatus that made it possible to universally and systematically target the “gender identity” of all trans people seeking treatment. “Gender identity” was therefore deployed as an object of biopower, to examine, assess, and stabilize it and to enshrine it in law as a foundation of “true sex.”

Compulsory sterilization, therefore, can be understood as one of the disciplinary practices through which the Finnish state aims to govern and stabilize “gender identity” and the kinship relations of trans people. On the one hand, it can be seen as a response to the state's need to govern trans people as transsexuals who are presumed to desire their own sterility. On the other hand, it is a material technology of power that aims to neutralize potential forms of parentage that are not deemed compatible with existing legal and normative categories of kinship relations. In other words, sterilization becomes a means of governing trans kinship relations by attempting to render them impossible.

Like many techniques of biopower, however, the attempt to govern trans kinship through sterilization, failed as soon as it was attempted. Although the Trans Law's policy documents reveal a governmental fear that juridically recognized men could be registered as mothers, this had already been and continues to be a reality. Trans parents who already have children were and still are legally the mothers and fathers of their children, because in Finland motherhood and fatherhood are decreed on the basis of gametes (sperm) and acts (giving birth), not juridical sex. Paradoxically, the government acknowledged this in its bill. Moreover, the Trans Law that does not require the permanent sterility of applicants, so it is possible in some cases for some people to regain their fertility—for instance, by ceasing hormone treatment. The law also does not require trans people to destroy their sperm or eggs, making it possible to reproduce in the future with the help of reproductive technologies and surrogates. That in Finland trans people should not be able to reproduce, while there is legislation to address situations in which it occurs nonetheless, is another example of the way in which disciplinary power over sex/gender/kinship is neither absolute nor totalizing but rather contradictory as it always involves a convergence of various biopolitical discourses of sex. It is in these leaks and cracks that we find subtle forms of resistance to power, going hand in hand with the legislation aiming to suppress it.

With increasing pressure from civil society to reform the Trans Law, these power dynamics can also be expected to be radically altered in the future. Finland's current right-wing coalition government has stated that it does not intend to amend the Trans Law during its current term; therefore, much depends on the results of the parliamentary elections in 2019. While it is difficult to predict what the landscape of power/knowledge will look like should sterilization and psychiatric diagnosis requirements be abolished and replaced with self-determination, it is worth bearing in mind Foucault's key insight on the omnipresence of power: “[it] is everywhere, not because it embraces everything, but because it comes from everywhere” (Reference Foucault1981, 93). Although the removal of psychiatric and medical requirements from gender recognition laws is likely to make life easier for those wishing to change their legal sex, the other ways in which it might reconfigure the landscape of power over sex and gender is unclear. In other words, the abolition of sterilization requirements may displace one form of regulation, but only in the context of a multiplicity of power relations that continue to circulate and shape subjectivities, rationalities, and practices. The point, thus, is to grasp the shifting points of both power and resistance. As gender self-determination is already a possibility in other European states such as Denmark, Malta, Ireland, and Norway, further research needs to be conducted in order to understand what new rationalities and practices of regulation and normalization rise to prominence when disciplinary state-sanctioned prerequisites for recognition are removed. Only then is it possible to grasp what is at stake in the circulation of liberal discourses such as freedom and equality in relation to the production, regulation, and discipline of trans bodies and subjectivities across different regulatory times and contexts.