Identity, Gender and the Law

Bathroom Law, or Lex Lavacrum as I called it in an earlier post, again consumes the nation.  The bathroom, specifically the public bathroom (as opposed to the private bathrooms located in our residences) is it seems the "darkling plain" on which the battle of gender identity and the law will be fought here in God's Favorite Country. our Great Republic.  At least, it is the battleground in which we take the most interest at this time.

I can't help but feel that this does us no credit.  That is to say, that our abiding and intense concern over those with whom we will defecate and urinate seems, well, unworthy.  Granted, these are acts which normally are not matters in which we take pride or of which we boast, and so we're not inclined to put them on display.  Many of us find the acts embarrassing.  Some find them shameful.  Nevertheless, they are acts in which all of us must engage; nobody will be surprised to find them being done in a public bathroom.  Is the fact that we don't like to do them when those with particular genitalia are present something which merits the imposition of a law?

So, our fascination with Bathroom Law seems to me unseemly.  But that's not really the issue I wish to address in this post.  Rather, I'd like to consider gender from the legal standpoint, or in any case from a legal standpoint.  When I do so, I think certain problems may arise in creating, enforcing and interpreting law when it comes to gender issues.  Have these already been addressed?

The photo above is of a statue of the ancient Egyptian Pharaoh Akhenaten.  He was remarkable in many ways.  One of the ways in which he's been remarked on is with regard to his appearance as depicted by the ancients.  That appearance is said by some to be unusual in several respects, one of which is that it is androgynous, of indeterminate sex due to the wide hips, for example.  It seems to be the case he's depicted in a style different from that of other pharaohs of other times, that his is a more realistic portrayal or it's possible that he was deliberately depicted in this particular way for religious or other reasons.   We don't know, really.  The famous bust of his wife Nefertiti, though, is remarkable only for its beauty. If the artists of the time were portraying royalty more realistically that at other times, it seems she was lovely and he was somewhat peculiar.

Androgyny isn't the same as identity or gender, even now, at least not necessarily.  And we don't know what if anything it meant in ancient Egypt, if we're honest with ourselves.  Whether it led the ancient Egyptians to question gender in any respect is, as far as I'm aware, unknown.  I think it's reasonable to believe that the ancients thought of sex generally differently than we do, and suspect that it wasn't a concern of the kind it is now.  I have no idea whether there was any concern in ancient times over where and with whom one expelled waste, but also suspect there wasn't the kind of concern then that there is now.  The Romans, we know, had public latrines, but I'm unaware of any source or evidence indicating they had different ones for each sex.  I doubt they did.

The Romans and other ancient cultures distinguished between male and female genders, though.  That seems clear enough.  Are we being asked not to do so now?  If so, are we being asked to do so only in certain respects or entirely?

Precisely what is gender discrimination if it is to be prohibited by law?  It would seem one would first have to determine what "gender" means.

From the legal point of view, I find myself uncomfortable with the tendency to say that a person "identifies with" a certain gender, or no gender at all.  If identity is how we think of ourselves, it isn't clear to me that this is something that is necessarily to be protected by the law.  A person may think of himself/herself as many things but it doesn't follow the law should treat them as what they think they are; obviously, for example, the fact that particular people may identify themselves as Nietzscheian super humans and so beyond the law doesn't mean that the law shouldn't apply to them. If person X identifies with being black, but is in fact Caucasian, would discrimination against that person because of such self-identification be actionable?

Gender apparently according to current definition is something which need not be associated with the possession of particular genitals.  It is thought to be, like so much else is thought to be these days, a social construct.  I'm not as dismissive of social norms as some, but whether the law should strictly adhere to them or protect or enforce them is a separate issue.

For good or ill, though, the law is something which relies a great deal on definitions.  Especially from the standpoint of enforcement, it's essential that it be reasonably clear how the law is to be applied.  If gender cannot be determined by reference to genitals or something else which can be established with relative ease like sexual organs, how can it be established? 

Is it established merely by whatever someone may think they are, or say they are?  Are we to be prohibited from discriminating against people because they say they are of a particular gender?  Are there physical or psychological tests that determine one's gender, or lack of it?  If there are, can these tests be practically applied by, e.g., an employer or landlord?  A person may be mistaken in what a person thinks, though, and there are problems with applying or interpreting law based solely on what someone thinks at a particular time or in particular circumstances.  Is what someone thinks the determining factor when it comes to gender, i.e. is it not possible for someone to be mistaken about their gender?

The law hasn't yet progressed to the point where it can be established what someone thinks, so it must refer to what people say or do.  It would seem then to be limited in applying any law of gender discrimination based on what a person claims or does or how a person appears.  But surely, one may appear to be a man and still identify as a woman, and one may appear to be a woman and identify as a man?  It would seem then that appearance won't necessarily be useful.  So perhaps assertions are all the law would be able to latch onto.  I have a beard.  If I say that I identify as a woman, would I have the legal right to use the "women's" bathroom?

These may not seem particularly important concerns where public restrooms are concerned--well, I suppose they may be to those of us concerned, perhaps unduly, with bathrooms--but the law is ubiquitous in our society, as are litigants (and, yes, lawyers) and I think that eventually they must be dealt with in the law of gender.

Regarding Photorealism

I was at first inclined to wonder who would recognize what's depicted in this painting by Richard Estes, but though there likely are very few of them left in the world, it's probable that they've been seen by most of those living in one or another of the old movies TBS or some other channel shows at all times of the day.  Phone booths, once ubiquitous, are no more.  For that matter, there aren't that many public phones of any kind, either; at least, I haven't seen them, or more properly noticed them.

Still, charming as they are or were, one might wonder as well whether they're appropriate subjects of a painting, even when painted so realistically.  Especially so, when painted so as to resemble a photograph. 

Of course, painters have often enough painted objects such as flowers and fruit in bowls with considerable accuracy.  But only certain artists are photorealists, who paint from life or from photographs to create a work which seems to be a picture taken by a camera, and do so deliberately.    I would imagine that some would be compelled to ask--Why?

For my part, I find such paintings and what seems to me to be the idea behind them quite alluring, even perhaps amusing in an ironic or sardonic sense.  The thought of an artist painting a picture to mimic another picture, made not by an artist but by a camera, a machine, appeals to me.  Is it a comment about the pretensions of art?  Is the artist noting that what artists do is little more than what a camera does?  Is the artist demonstrating that what we do, when we see, is make a snapshot or video of the world?  Is photorealism a celebration, or criticism, of dualism generally?  Am I composing too many rhetorical questions?

It may be that photorealism is a reaction to art which seems to studiously avoid the real.  "Modern Art" I suppose some would call it; art that deliberately depicts the normal, day to day world and normal day to day people and things not as we see them, but as the artist wishes us to see them and think of them.  If so, I sympathize somewhat with such a reaction, though I have nothing against the varieties of Modern Art and find many such paintings quite attractive.  At the same time, however, I don't find them appealing as statements of any kind about us or the world, or the artist, at least of any profound meaning.  The may be so intended, but if so I'm too dull to perceive or be enthralled by them.

I have no pretensions when it comes paintings.  What I find appealing in the work of the photorealists, beyond the fact that I find the thought of painting photographs or creating paintings which look like photographs strangely pleasant, is usually what is depicted in the painting; phone booths, diners, street scenes, reflections of cityscapes in large windows, sometimes various kinds of Americana.  I admire the skill and patience involved in painting images so exactly.

And also, I think there is something about the real--the world in which we live--that is itself compelling and powerful, that has impact, even when it is familiar and mundane.  It may not be beautiful, it may even be horrible, but it's where we live and we're a part of it, no matter how hard we may try not to be.  There can be skill involved in photography, even art, but there's more skill involved in painting the world than operating a camera, and skill is admirable when it creates.  Photorealism is honest, and the honest perception and depiction of the world is admirable as well.

Vidal's Messiah

I've read a good deal of Gore Vidal's work, but only recently read his Messiah, though it was published in the 1950s and so has been available for reading for quite some time.  There are other works of his I haven't read.  I haven't read Myra Breckenridge, for example, or The City and the Pillar.  Perhaps I will some day.

I'm an admirer of Vidal the author, but not necessarily of Vidal the person or TV personality.  His personality doesn't intrude on the books I've read; that is to say, his personality as it appeared on TV talk shows of the past.  It can be a mistake, I think, for good writers to appear on such shows, as they're asked to participate in order to provoke and do so gladly, which I think diminishes them.

This particular novel describes the origin and "progress" of a religious movement based on the insight of a curiously charismatic former mortician's assistant that death is not just something we shouldn't fear, but something we should want.  The protagonist of the book is given some similarities to Vidal himself, as when he first begins his portrayal of the "messiah" in question and the way in which the movement developed, we find that at the time he met the man, he was involved in researching the Emperor Julian for purposes of writing about him.  Vidal of course wrote a novel about the emperor entitled, unsurprisingly, Julian, which was published ten years after Messiah.

For reasons not entirely clear, the message that death is desirable is enchanting to all who hear it; or, at least, all who hear it while seeing the one who speaks it, called John Cave in the novel.  People find it liberating as it extinguishes the fear of death.  Vidal or the Vidal figure, called Eugene Luther, is one of Cave's first converts though he is as might be expected a reluctant one.  Luther is aware of the fact that the claim that death isn't to be feared is not a new one, even in the form expressed by Cave, who thinks it to be an endless sleep, without any form of personal immortality.  It is in fact ancient, and one can see it in the works of Lucretius and the Stoics and Epicureans before him.  But wanting to die seems an odd premise for a religion.

Early in the book, it's hypothesized by Luther and others that Cave's remarkable appeal is the result of some kind of hypnosis.  Cave himself is portrayed as a simple and unassuming man, interested only in his rather narrow message, however; he doesn't seem at all intent on mesmerizing people or taking advantage of them in a sinister manner or indeed in any manner.

Cave and his message are taken up, though, by a publicist who milks the machinery of the media to its utmost in popularizing them both and broadcasting the message far and wide.   That machinery was formidable even in the 1950s.  Rich donors and converts appear, a corporation is formed.  Luther himself is retained to prepare a kind of introduction to Cave and his message, referencing and expounding on the philosophical basis for the message.  A kind of religious business is established.  The message spreads with great speed, throughout the world.  There is opposition from established religions, eventually there is violence against Cavism and the Cavites and ultimately violence by the them as they become well established and become the establishment, wielding political power to stamp out opposition.

The book is written as the recollections of Luther, who became a leader of a kind of heretical sect which thought the message death was not to be feared should be used to enhance life, not make death seem desirable and went into voluntary exile.  His writings which once formed the basis for the religion have been expunged.  The message is rewritten by those who didn't know the founder; the religion has become something different, something powerful, intolerant, oppressive, intent of saving and thereby dominating the world.

In researching the Emperor Julian, Vidal became quite knowledgeable about his attempt to restore paganism and eliminate the favors and status granted Christianity since the reign of Constantine.  He became aware of the manner in which Christianity became an institution over time and assimilated the Roman Empire, knew its holy books were written decades after Jesus lived, knew that other books regarding Jesus were proscribed, heresies were quashed, an orthodoxy established. 

I tend to think this satire by Vidal was primarily intended to reflect his views on what happened to Christianity, on the triumph of the Church rather than the message of Jesus which clearly appealed in a dramatic manner to many, but was over time changed, ignored, extinguished as deemed necessary by Christians when and after they accepted the "gift of Constantine" and gained the world while losing their souls.  There are too many parallels between the rise of Cavism and that of Christianity for me to think otherwise.  Another thoughtful book of Vidal the author, so much more admirable than Vidal the personality.

Damnatio Memoriae

The ancient Romans had a practice called Damnatio Memoriae, roughly translatable as the condemnation of memory.  It was a decree issued by the Senate ordering that all likenesses of a person, all references to the person made on monuments, paintings, mosaics, inscriptions and, it was to be preferred, on other records be erased.  It was an effort to obliterate a person from recorded memory; official memory in any case.  Such a decree was issued as to Tiberius' all-purpose stand-in Sejanus, when he finally ran afoul of the morose old emperor.


You'll see an example of the effect of the decree above.  That's a portrait of the Emperor Septimius Severus and his family, including his wife, the Augusta, Julia Domna and their son Caracalla, himself later emperor, most famous probably for his Baths.  You might notice the large dark spot under Julia's face.  There used to be another face there, that of their son Geta.  For a brief time, Caracalla and Geta ruled together after their father's death.  That didn't turn out well for Geta.  His brother had him murdered, and then as sole Augustus convinced the Senate to issue a decree of Damnatio Memoriae to remove him from history as he had been removed from this Earth.

Of course, if the intent of the decree was to erase someone from memory, or history, it didn't work in the case of either Sejanus or Geta.  We know well enough who they were.  It's likely, therefore, that the intent was not to do so but to instead deprive them and their memory of all public honor and esteem.  Such things were important to the Romans, and to the Greeks as well and Hellenistic and Greco-Roman society.  The notion of the afterlife wasn't particularly alluring or vivid to the ancients.  One's immortality was assured by undying glory and monuments to fame.

The Romans were not the only people who engaged in this practice.  Most recently the Soviets tried something along these lines.  Stalin did his best to eliminate some of those who were his rivals, real or imagined, from the history of the Russian Revolution.   An effort was made to do the same with him, in a minor way, as to the history of the Soviet Union.  When one has control of the methods by which reputations are made or unmade, and where one is an autocrat, there must be a certain
satisfaction in doing this to enemies, or it may be that it is advantageous in various respects.

What seems to have been an impossible task even in ancient times is certainly impossible now, as we leave our marks everywhere in photographs, records electronic and otherwise, on the Web, etc. nearly ad infinitum--whether we do so voluntarily or at the behest of someone else.  Or so one would think.  Might it actually be easier now than before, at least if the idea is to hide someone from those who lack the knowledge to determine when a person's name has been deleted from the Internet or electronic records  and how to receive that information?  Now that we live online, the ability to control what is or is not online takes on a particular importance.  What is or is not online may be all or most of what we know or can learn, or what we want to know, perhaps very soon.

If, though, we can't "erase" someone from history, can we insert someone, or some unreal someone, into it, especially now?  There are instances where people have believed in the existence of a fictional, fabricated person in the past, but perhaps it may be easier now to create an identity or at least a more detailed, ubiquitous person that we could in the past.  Human, face-to-face contact is becoming increasingly less important, less necessary.  We can fake personality and likeness with remarkable success these days.

Ah, the disturbing wonder of these times.  What a time to be alive.