Summary And Opinion

NORMAL LIFE

NORMAL LIFE

Administrative Violence, Critical Trans Politics, and the

Limits of Law

DEAN SPADE

South End Press Brooklyn, NY

copyright © 2011 by Dean Spade

Any properly footnoted quotation of up to 500 sequential words may be used without permission, as long as the total number of words quoted does not exceed 2,000. For longer quotations or for a greater number of total words, please write to South End Press for permission.

Discounted bulk quantities of this book are available for organizing, educational, or fundraising purposes. Please contact South End Press for more information.

Cover design by Josh MacPhee/Justseeds.org Page design and typeset by Josh MacPhee/Justseeds.org

Library of Congress Cataloging-in-Publication Data TK

South End Press PO Box 24773 Brooklyn, NY 11202 http://www.southendpress.org southend@southendpress.org

Printed by union labor on acid-free, recycled paper.

Contents

Preface 7

Introduction: Rights, Movements, and Critical Trans Politics 19

1 Trans Law and Politics on a Neoliberal Landscape 49

2 What’s Wrong with Rights? 79

3 Rethinking Transphobia and Power— Beyond a Rights Framework 101

4 Administrating Gender 137

5 Law Reform and Movement Building 171

Conclusion: “This Is a Protest, Not a Parade!” 205

Acknowledgements 229 Index 233 About the Author 249

Preface

7

In 2002, I opened the doors of the Sylvia Rivera Law Project (SRLP). I had raised enough grant money to rent a desk and a phone at a larger poverty law organization, and had spread the word to other service providers like drug treatment centers, legal aid offices, mental health centers, needle exchanges, and community organizations that I would be providing free legal help to trans people. I never would have guessed the number of people who would call the organization for help or the gravity and complexity of the problems they face.

My first call came from the men’s jail in Brooklyn.1 Jim, a 25-year-old transman, was desperate for help; he was facing a se- vere threat of rape and already experiencing harassment. Jim is a trans person with an intersex condition.2 He was raised as a girl, but during adolescence began to identify as male. To his family he remained female-identified, but in the world he identified as male, changing clothes every night when he returned home and trying to avoid contact between his family and everyone else he knew. The stress of living a “double life” was immense, but he knew it was the only way to maintain a relationship with his fam- ily, with whom he was very close.

When Jim was nineteen, he was involved in a robbery for which he received a sentence of five years probation. During the second year of that probation period, Jim was arrested for drug possession. He was sentenced to eighteen months of residential

8 NORMAL LIFE

drug treatment and sent to a male residential facility. In what was a purportedly therapeutic environment, Jim discussed his inter- sex condition with his counselor. His confidentiality was broken and soon the entire staff and residential population were aware of Jim’s intersex condition and trans history. Jim faced a threat of rape and the staff of the facility refused to help or protect him. Out of fear and self-protection, he ran away from the facility.

I met Jim after he had turned himself in, wanting to deal with his outstanding criminal charges so that he could safely apply to college and get on with his life. Jim was now in a Brooklyn men’s jail, again facing a threat of rape. The jail administration’s refusal to continue Jim’s testosterone treatments had caused him to menstruate; when Jim was strip searched while menstruating, other inmates and staff learned of his status.

Jim and I worked together to convince the judge assigned to his case that Jim could only safely access drug treatment services in an outpatient setting because of the dangers he faced in resi- dential settings. Even when we had convinced the judge of this, we faced the fact that most programs were gender segregated, and would not be safe places for Jim to be known as a trans person with an intersex condition. When I contacted facilities to find a place for Jim, staff at all levels would ask me questions like “Does he pee sitting or standing?” and “Does he have a penis?” indicating to me that Jim would be treated as a novelty and his gender and body characteristics would be a source of gossip. Some facilities said they would not accept Jim because they were not prepared to work with someone like him. Those that did not outright refuse his application indicated their inadequacy to provide him with appropriate treatment. The few lesbian and gay drug treatment programs I identified seemed inappropriate because Jim did not identify as gay and was, in fact, quite unfamiliar with gay and lesbian people and somewhat uncomfortable in queer spaces. Eventually, the judge agreed to let Jim try outpatient treatment on a “zero tolerance” policy where a single relapse would result in jail time. Jim, under enormous stress, engaged in treatment where

Preface 9

he was always afraid he might be outed and where his participa- tion in the daily hours of group therapy required hiding his iden- tity. Not surprisingly, Jim relapsed. Now he would be sentenced to prison.

When I went before the judge to request that Jim be placed in a women’s prison because of his well-founded fear of sexual assault in men’s facilities, the judge’s response was, “He can’t have it both ways.” Once again, Jim’s gender and body status and his inability to successfully navigate the gender requirements of the extremely violent systems in which he was entangled—because of his involvement in criminalized activity stemming from his poverty—was considered part of his criminality and a blamewor- thy status. The judge “threw the book” at Jim, sentencing him to the maximum number of years possible for violating parole and requiring him to serve the time in a men’s prison.

Another client I met around the same time was Bianca, a nineteen-year-old transwoman. Bianca came to me for help with a range of issues. First, she wanted to sue her high school. In 1999, Bianca was attending public high school in the Bronx. After strug- gling with an internal understanding of herself as a woman for several years, Bianca eventually mustered the strength to come out to her peers and teachers. She and another transgender student, a close friend, decided to come out together. They arrived at school one day dressed to reflect their female gender identities. The two students were stopped at the front office and not allowed to enter school. Eventually, they were told to leave and not come back. When their parents called the school to follow up and find out what to do next, their calls were not returned. They were given no referrals to other schools, and no official suspension or expulsion hearings or documents. I met Bianca three years later. She had been unable to obtain legal representation, and when I began in- vestigating the possibility of a lawsuit, I discovered that the statute of limitations had expired. She no longer had a viable legal claim.

When I met Bianca, she was homeless, unemployed, and try- ing to escape from an abusive relationship. She was afraid to go to

10 NORMAL LIFE

the police both because of fear of retaliation from her boyfriend and because she rightly feared the police would not only refuse help, but also humiliate, harass, or hurt her because she was trans. All of her identification (ID) indicated a male name and gender; there would be no way for her to interact with the police without being identified as a trans person. As we searched for places for Bianca to live, we ran up against the fact that all of the home- less shelters insisted on placing her according to birth-assigned gender; Bianca would be the only woman in an all men’s facility, and she was afraid of the abuse she could face in such a situa- tion. Women’s shelters for domestic violence survivors refused to recognize her as a woman and thus were unwilling to take her in. When Bianca applied for welfare, she was given an assignment to attend a job center as part of participation in a workfare pro- gram. When she tried to access the job center, she was brutally harassed outside, and when she finally entered and attempted to use the women’s rest room, she was outed and humiliated by staff. Ultimately, she felt too unsafe to return and her benefits were terminated. Bianca’s total lack of income also meant that she had no access to the hormone treatments she used to maintain a femi- nine appearance, which was emotionally necessary and kept her safe from some of the harassment and violence she faced when she was more easily identifiable as a transwoman on the street. Bianca felt her only option for finding income sufficient to pay for the hormones was to engage in criminalized sex work. At this point, she was forced to procure her hormone treatments in un- derground economies because it would have been cost prohibitive to obtain her medication from a doctor since Medicaid—had she even been given those benefits—would not cover the costs. This put her in further danger of police violence, arrest, and other vio- lence. Additionally, because Bianca was accessing intravenously injected hormones through street economies, she was at greater risk of HIV, hepatitis, and other communicable diseases.

Preface 11

Jim’s and Bianca’s stories, it turned out, were not unusual. As the calls continued to pour into SRLP, I found there was an enormous number of people facing a series of interlocking problems related to being basically unfathomable to the administrative systems that govern the distribution of life chances: housing, education, health care, identity documentation and records, employment, and public facilities, to name but a few. My clients faced both the conscious bias of transphobia that produces targeted violence as well as numerous administrative catch–22s that render basic life necessities inaccessible. Each client’s story demonstrated the inter- weaving of these different types of obstacles. On the bias side, I heard consistent reports of police profiling, police brutality, and false arrest; sexual harassment and assault; beatings and rapes; fir- ings from jobs; evictions; denials and rejections from caseworkers in social service and welfare agencies; rejections from legal services; and family rejection. The impact of each of these situations was exacerbated by the ways gender is an organizing principle of both the economy and the seemingly banal administrative systems that govern everyone’s daily life, but have an especially strong presence in the lives of poor people. My clients did not fit into gendered administrative systems, and they paid the price in exclusion, vio- lence, and death. Most had no hope of finding legal employment because of the bias and violences they faced, and therefore turned to a combination of public benefits and criminalized work—often in the sex trade—in order to survive. This meant constant exposure to the criminal punishment system, where they were inevitably locked into gender-segregated facilities that placed them according to birth gender and exposed them to further violence. For immi- grants seeking an adjustment of status that would enable them to live legally in the United States, just one prostitution charge could destroy their eligibility. Even admitting that they had ever engaged in sex work to an immigration lawyer would disqualify them from receiving assistance with the adjustment of status process.

Non-immigrant clients also faced severe documentation problems and specific catch–22s related to identification and

12 NORMAL LIFE

health care. Proof of having undergone gender-confirming health care, especially surgery, is required by the majority of ID-issuing agencies in the United States including Departments of Motor Vehicles (DMVs), the Social Security Administration (SSA), and departments issuing birth certificates to change gender on the ID.3 However, the majority of private health insurers and state Medicaid programs have rules excluding this care from coverage, which means that those who cannot pay for this care out-of- pocket probably cannot get it and thus cannot change the gen- der on their IDs. In New York, this care is deemed essential for changing gender on birth certificates, though the state simultane- ously has a Medicaid program that explicitly excludes this care from coverage. For most trans people, these rules make getting correct ID nearly impossible. Not having appropriate identifica- tion creates difficulties and dangers when dealing with employers or the police and other state agents, trying to travel, attempting to cash checks, or entering age-restricted venues: the person’s trans identity is exposed every time ID is shown. These barriers make it exceedingly difficult for trans people to gain the economic re- sources necessary to obtain gender-confirming health care if this is something they want or need. These administrative policies and practices severely constrain access to health care and employment for most trans people.

The stories I heard from my first clients and continued to hear from the trans people I met through my work at SRLP portrayed a set of barriers—both from bias and from the web of inconsis- tent administrative rules governing gender—that produce signifi- cant vulnerability. The impact of these conditions ranges across subpopulations of trans people: even those with class privilege, education, white privilege, US citizenship, physical and mental ability perceived as average or above, and English-language skills experience many of these hurdles. Those with such privileges have many of the same ID problems, often cannot afford health care, experience incidents of physical attack, have their parental rights terminated by courts, are arrested for using bathrooms or barred

Preface 13

from gender appropriate bathrooms at work and/or school, are discriminated against in hiring, are discriminated against by in- surance companies, and lose family support. Most experience a downward mobility in terms of wealth/income because of their trans identities. However, access to certain privileges that serve in determining the distribution of life chances (e.g., whiteness, per- ceived ablebodiedness, employment, immigration status) often of- fer some individuals degrees of buffering from the violences faced by people of color, people with disabilities, immigrants, indigenous people, prisoners, foster youth, and homeless people. The most marginalized trans people experience more extreme vulnerability, in part because more aspects of their lives are directly controlled by legal and administrative systems of domination—prisons, welfare programs, foster care, drug treatment centers, homeless shelters, job training centers—that employ rigid gender binaries. These intersecting vectors of control make obtaining resources especially difficult, restrict access to zones of retreat or safety, and render every loss of a job, family support, or access to an advocate or a health care opportunity more costly. The most marginalized trans populations have the least protection from violence, experience more beatings and rapes, are imprisoned at extremely high rates, and are more likely to be disappeared and killed.

This book looks at the conditions that are shortening trans people’s lives and investigates what role law plays in produc- ing those conditions and what role law could or should play in changing them. In the last two decades, the public discourse about trans identities and trans rights has changed significantly. Concern about the exclusion of trans people from gay and lesbian political strategies has heightened. Media coverage of trans issues has increased. Emerging trans political formations have begun institutionalizing by creating new nonprofit organizations and professional associations focused specifically on trans issues, work that also produces new terminology, knowledge, and advocacy tools concerning gender identity and expression. These develop- ments are raising important questions about trans politics. What

14 NORMAL LIFE

is the relationship of trans political strategy to the strategies of the lesbian and gay rights work that has garnered so much atten- tion in the last three decades? What role should law reform play in trans political strategy? How will forming nonprofits focused on trans issues impact trans people’s lives and trans resistance politics? Who should lead and what forms of leadership should trans politics utilize? What relationship does trans politics have to other political movements and issues? Specifically, how does trans politics interface with anti-racism, feminism, anti-capitalism, anti-imperialism, immigration politics, and disability politics?

In proposing what role law reform should have in trans resis- tance, this book draws from the insights of Critical Race Theory, women of color feminism, queer theory, and critical disability studies to reveal the mistakes and limitations of white lesbian and gay rights strategies. Critical political and intellectual tradi- tions have generated a vivid picture of the limitations of reform strategies focused on legal equality for movements seeking trans- formative political change. These traditions have highlighted the ineffectiveness of the discrimination principle as a method of identifying and addressing oppression, and have illustrated that legal declarations of “equality” are often tools for main- taining stratifying social and economic arrangements. Further, these traditions provide ways of understanding the operations of power and control that allow a more accurate identification of the conditions trans people are facing, and the development of more effective strategies for transformation than the liberal legal reform framework permits. Scholars and activists in these tradi- tions such as Ruth Gilmore, Andrea Smith, Angela Davis, Lisa Duggan, Grace Hong, Roderick Ferguson, Chandan Reddy, and Angela Harris4 describe the operation of key political develop- ments, such as the decreasing bargaining power of workers, the dismantling of welfare programs, the growth of the prison indus- trial complex (PIC) and immigration enforcement, and the rise of the nonprofit formation, and also identify the complexities involved in practicing resistance politics in an age of cooptation

Preface 15

and incorporation. This book examines these questions from a critical trans political perspective, applies the analysis these tradi- tions have developed to the struggles facing trans people, and il- lustrates the ways trans resistance fits into the larger frameworks being developed in these conversations.

To that end, the chapters that follow raise concerns that have emerged with the institutionalization of the lesbian and gay rights agenda into a law reform-centered strategy. These concerns cau- tion trans scholars and activists to learn from the limitations of that approach. The compromises made in lesbian and gay rights efforts to win formal legal equality gains have come with enor- mous costs: opportunities for coalition have been missed, large sectors of people affected by homophobia have been alienated, and the actual impact of the “victories” has been so limited as to neutralize their effect on the populations most vulnerable to the worst harms of homophobia. Further, the shifting discourse and strategy of lesbian and gay rights work toward privatization, criminalization, and militarization have caused it to be incorpo- rated into the neoliberal agenda in ways that not only ignore, but also directly disserve and further endanger and marginalize, those most vulnerable to regimes of homophobia and state violence.

This book demands a reconsideration of the assumption that trans politics is the forgotten relative of the lesbian and gay rights strategy, and that its focus should be to seek recognition, inclusion, and incorporation similar to what has been sought by lesbian and gay rights advocates. Instead, I suggest that a more transformative approach exists for trans politics, one that more accurately conceptualizes the conditions trans people face and more directly strategizes change that impacts the well-being of trans people. Such an approach includes law reform work but does not center it, and instead approaches law reform work with the caution urged by the critical traditions to which trans politics is indebted and of which it is a part. It makes demands that exceed what can be won in a legal system that was formed by and exists to perpetuate capitalism, white supremacy, settler colonialism,

16 NORMAL LIFE

and heteropatriarchy. It is rooted in a shared imagination of a world without imprisonment, colonialism, immigration enforce- ment, sexual violence, or wealth disparity. It is sustained by social movement infrastructure that is democratic, non-hierarchical, and centered in healing. This book aims to describe some of what that critical trans politics requires and suggest what models we al- ready have and might expand for practicing critical trans politics.

NOTES 1. These two case studies are adapted from my article, “Compliance

Is Gendered: Transgender Survival and Social Welfare,” in Transgender Rights: History, Politics and Law, eds. Paisley Currah, Shannon Minter, and Richard Juang, (Minneapolis: University of Minnesota Press, 2006), 217–241.

2. “Intersex” is a term used to describe people who have physical conditions that medical professionals assert make them difficult to clas- sify under current medical understandings of what constitutes a “male” or “female” body. Because of these understandings, they are often targets for medical intervention in childhood to make their bodies conform to gender norms. Extensive advocacy has been undertaken to stop these in- terventions and allow people with intersex conditions to choose whether or not they desire medical intervention that would bring their bodies into greater compliance with gender norms. Jim is a person with an intersex condition who is also transgender, but there is no evidence that people with intersex conditions are more or less likely than others to have a trans identity. For more information, see www.isna.org.

3. I have not included a complete list of current policies in this vol- ume because they change frequently. However, my article “Documenting Gender,” Hastings Law Journal 59 (2008):731-842, includes descriptions of state and local policies and their requirements as they existed at the time of publication. Advocacy organizations such as the Sylvia Rivera Law Project (www.srlp.org), the National Gay and Lesbian Task Force (www.thetaskforce.org), the National Center for Lesbian Rights (www. nclrights.org) and the National Center for Transgender Equality (www.

Preface 17

nctequality.org) can be contacted to obtain updates about changes to these policies.

4. See, e.g., Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (Berkeley and Los Angeles: University of California Press, 2007); Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003); Grace Kyungwon Hong, The Ruptures of American Capital: Women of Color Feminism and the Culture of Immigrant Labor (Minneapolis: University of Minnesota Press, 2006); Roderick Ferguson, Aberrations in Black: Toward a Queer of Color Critique (Minneapolis: University of Minnesota Press, 2003); Chandan Reddy, Freedom with Violence: Race, Sexuality and the U.S. State (Durham, NC: Duke University Press, 2011); Angela P. Harris, “From Stonewall to the Suburbs? Toward a Political Economy of Sexuality,” William and Mary Bill of Rights Journal 14 (2006): 1539–1582; Lisa Duggan, The Twilight of Equality? Neoliberalism, Cultural Politics, and the Attack on Democracy (Boston: Beacon Press: 2004); and Andrea Smith, Conquest: Sexual Violence and American Indian Genocide (Cambridge, MA: South End Press, 2005).

19

This book has two primary goals. First, it aims to chart the current trajectory of trans politics, one that I argue is reca- pitulating the limits of leftist, lesbian and gay, feminist, and anti- racist politics that have centered legal recognition and equality claims. Second, it seeks to elaborate on the possibilities of what I understand as a critical trans politics—that is, a trans politics that demands more than legal recognition and inclusion, seeking instead to transform current logics of state, civil society security, and social equality. In developing this two-fold account of con- temporary trans politics I aim to reveal the indispensability of trans organizing and analysis for both leftist thinking and left social movements. Additionally, I aim to address specific sites of intersection where trans activists and organizers can and are find- ing common cause with some of the most important political agendas of our time: prison abolition, wealth redistribution, and organizing against immigration enforcement. Further, I hope to show how critical trans politics practices resistance. Following the traditions of women of color feminism, this critical approach to resistance refuses to take for granted national stories about social change that actually operate to maintain conditions of suffer- ing and disparity.1 It questions its own effectiveness, engaging in constant reflection and self-evaluation. And it is about practice

Introduction Rights, Movements, and Critical Trans Politics