Keynote address.

• Author: Spade, Dean
• Position: Symposium

Reflecting on the title of this symposium, I was thinking about the metaphor of "the frontier" and what it means to place our conversations about gender and US law in the context of US law as a project of settler-colonialism. In particular, the title of this symposium made me think about how the theorization and practice of resistance to coercive gender norms is often invested in narratives of citizenship and belonging that undergird colonialism and white supremacy. How does an understanding of genocide and slavery as the conditions of the creation of the US nation-state and US law impact our analysis of the relationship between law and gender? (1) The title of this symposium evokes the most basic questions that legal scholars and activists must ask ourselves as we seek to transform systems that we understand as harmful or violent. What is the law? What is violence? Are racialized-gendered distributions of harm and violence incidental to American law and the US nation-state or co-constitutive with it?

One theme that has been touched on by today's discussions is the concern over cooptation and how resistance struggles can be co-opted into narratives of citizenship and belonging in law that actually reinforce conditions of subjection. Some of the most interesting work emerging in trans studies and trans activism is taking up critiques of universalism that underlie rights claims. Scholars and activists are questioning what it means to make rights claims that frame trans resistance in terms of demands for privacy, inclusion, recognition and liberty. We are examining how such claims can end up legitimizing and strengthening conditions of subjection and violence. These inquiries bring to light significant questions about what role law reform should have in resistance struggles and require us to

center an understanding of the racialized and gendered violence that is produced by and constitutes American law

For example, some of us have been questioning whether it is wise to use privacy arguments to talk about what is wrong with the experiences trans people are having with various policy changes that are emerging out of the "War on Terror." Since 2001, a range of policies and administrative practices have emerged in the US that have increased identity surveillance. Many of these operate by comparing pools of data that are collected for different reasons and had not previously been compared in order to look for inconsistencies. (2) Others operate by adding more data requirements to various documents and systems. (3) Because the laws and policies that govern when trans people can change their gender markers on various forms of ID and in various agencies' records are inconsistent both in writing and in application, because most of these policies inappropriately demand medical evidence not available to most trans people, and because most trans people have a difficult time navigating this matrix of inconsistent policies, most trans people cannot get their gender markers changed with all of the agencies and institutions that track their identity information. The result is that many trans people are having increasing problems doing any of the activities that can involve having to present ID: working, driving, navigating airports, dealing with police, dealing with immigration authorities, dealing with financial institutions, and other essentials. One way to frame these conditions and the broader problem of policies that require medical evidence about trans people's bodies in order to change gender on government documents and records is to articulate it as a violation of the privacy rights of trans people. We can argue that being required to provide detailed medical documentation about our bodies and histories in order to access drivers licenses, Social Security records, birth certificates, immigration documents and the like deprives us of a universal right to privacy. However, there are significant concerns about what this argument participates in obscuring. Disability activists, women of color feminists, poor people's movements and other resistant formations have long critiqued the idea of a universal right of privacy in American law. They have argued that privacy has operated as a false universal and that this false promise actually reproduces and supports racialized-gendered violence. The notion that there are separate public and private spheres has often made violence and exploitation of vulnerable people impossible to address in the law. (4) The history and contemporary realities of permitting rape and other violence within the home and of denying labor rights and benefits like social security to domestic workers are examples of this. (5) The private/public distinction has also operated to justify the targeting of certain populations for abuse and detention. Its logic has obscured how law structures dependency and the distribution of life chances such that certain populations, such as welfare recipients, women, and people with disabilities are constructed as forgoing their right to privacy because they cannot meet arbitrary norms of independence that hide the forces that subsidize and support the lives of white men, high wage earners and the wealthy, and people constructed as able-bodied. The universality of privacy has also been questioned by populations targeted by law enforcement as they experience high levels of state intrusion into realms that have been labeled "private" for those privileged populations who are protected and enriched by law enforcement. They cite the forced sterilization of women of color and people with disabilities, the disproportionate intervention of child welfare services in the families of people of color, (6) the routine strip searches of arrestees and detainees, (7) the frequent home invasions of police and immigration authorities in communities of color, (8) and the disproportionate sexual violence experienced by women of color at the hands of police, (9) as examples of how the "right to privacy" is contingent on whiteness, maleness, and wealth. Their critiques have shattered the illusion of a universal right to privacy and have suggested that invoking such a right participates in a reproducing a fantasy about the fairness, neutrality and universality of law that undergirds white supremacy, ablism, sexism and economic injustice.

When we consider using privacy claims to resist the conditions trans people are experiencing under the increased identity surveillance regimes that are part of the War on Terror, the limitations of universal rights claims are particularly visible. The identity surveillance practices in question are designed to target immigrants and have been part of policy changes that have severely harmed immigrant communities by massively increasing the criminalization and imprisonment of immigrants, exposing immigrants to increased violence, deportation, and economic exploitation. (10) To take up arguments that assert the privacy fights of trans people usually means to articulate the problems that trans people are running into with these policies as separate from the problems that these policies were designed to create for trans and non-trans immigrants and to fail to contest those designs. Articulating a privacy argument that demands a fix for some of the ways that trans people are getting caught up because of inconsistent gender designation change policies suggests that identity surveillance in general and immigrant scapegoating and targeting in the name of national security are not problems and are not concerns of trans politics. Such a strategy both participates in affirming those policy priorities and in dividing trans communities into those who will benefit from fixing the trans-specific issues with these policies and those whose immigration status, disabilities, imprisonment or other vectors of vulnerability will mean that such fixes will not reduce the harm of War on Terror policy changes they experience. Claims of universal rights tend to carry this danger--they both obscure the conditions under which such rights are anything but universal, and they divide the populations in whose name the right is being articulated into those whose race, class, gender, immigration and ability characteristics might make the fight seemingly applicable and those who will remain outside the scope of protection. Rights claims articulate a demand for belonging in the national population encompassed in the "us" of the nation, and because that "us" has always been and remains constituted by the designation of "others,'' (11) those claims to belonging necessarily shore up the arrangements that produce populations targeted for abandonment and violence. (12)

In contemporary trans politics, the most visible articulation of universal rights claims frameworks emerge in the quest for trans-inclusive anti-discrimination laws and hate crimes laws. The demands to be included in these laws possess the same limitations described above. First, although anti-discrimination laws and hate crimes laws have not eliminated or event made a significant dent in employment discrimination or targeted violence faced by those who have been formally included in them for decades, these demands are made as if what the law says about marginalized groups actually determines their fates. A common belief exists that the main target of resistance movements by marginalized populations should be to get the law to say "good" things about that group and to get the law to not say "bad" things about that group. (13) In fact, legal inclusion and recognition demands may, at times, reinforce the logics of harmful systems by justifying them, contributing to an illusion of fairness and equality, or reinforcing the targeting of certain "drains" or "internal enemies" by carving the group into "the deserving" and "the undeserving" and addressing only the issues of the favored sector. The relationship of lesbian and gay law...