Laws as tactics.

• Author: Spade, Dean

It seems to me that the real political task in a society such as ours is to criticize the workings of institutions that appear to be both neutral and independent, to criticize and attack them in such a manner that political violence that has always exercised itself through them will be unmasked so that one can fight against them. If we want right away to define the profile and the formula of our future society without criticizing all the forms of political power that are exerted in our society, there is a risk that they reconstitute themselves....

--Michel Foucault (1)

This symposium invites us to consider the impact of Judith Butler's work on legal scholarship in the area of gender and sexuality. I am interested in reflecting particularly on trans politics and law for two reasons. First, because Butler's work has had such a significant impact on the emergence of the current iteration of trans politics of the 1990s and 2000s. Second, because I believe there is a great deal more that Butler's work can offer to significant questions facing trans resistance formations as the field of trans legal rights advocacy institutionalizes and as trans legal scholarship engages and responds to that institutionalization. In particular, I am interested in how Butler's work has provided analytical models for considering the role that norms and normalization play in both disciplinary and biopolitical

modes of governance relating to gender. This analysis is essential to understanding the limitations of certain legal rights frameworks for addressing harms created by racialized and gendered systems of meaning and control.

Broadly speaking, I want to think about how the work of both Butler and Foucault directs legal scholars and activists to reject a limited framework of fighting for our rights under the law. Instead, we are invited to consider how we come to understand ourselves as subjects of various legal regimes, how certain things come to be governed, how certain disciplinary and regulatory knowledges and practices congeal into institutional forms, (2) how the nation state formation is co-constituted with regularized categories of identity, what relations produce and reproduce racialized-gendered subjections, and how resistances can be conceived from within power relations that are never transparent or centralized. For trans politics and law scholarship, these inquiries constitute a necessary critical engagement with legal reform projects that are in conversation with Critical Race Theory, women of color feminism, queer of color critique, critical disability studies and other critical analytical methodologies that are providing key tools to the development of critical trans inquiry and practice.

This Article will look at how trans scholarship and activism have taken up disciplinary critiques of gender, often influenced by Butler, and suggest that further development of critical trans perspectives focused on sites of regularization is needed, for which Butler's work on govemmentality can be useful. To start, I describe some of the key concepts from Butler's work that have been taken up in trans politics and briefly review the distinctions Foucault offers between sovereignty, discipline and biopolitics. I then examine some of the ways that trans politics has critiqued disciplinary norms, looking at resistance to the medicalization of trans identity and the response to anti-trans feminism. Next, I look at areas where the operation of racialized-gendered normalization at the population level are being examined and might be further troubled by trans scholars and activists. Here I look at critiques of identity surveillance practices that use gender as a category of identity verification and critiques of certain trans law reform projects. Using Butler's work, I raise questions about the role of law reform in resistance to various sites of gender regularization and suggest areas of further inquiry that might be taken up by scholars and activists engaging a critical trans politics rooted in a skepticism about law reform projects.

Enough cannot be said about the influence of Butler's work, especially Gender Trouble, on the development of contemporary trans politics. Butler's articulation of gender as "the repeated stylization of the body, a set of repeated acts within a highly rigid regulatory frame that congeal over time to produce the appearance of substance, of a natural sort of being" (3) has broadly and deeply impacted the most central conversations about what a politics of trans resistance is resisting and what claims it might make. Butler argues that, "the body is not a mute facticity." (4) Gender has no truth but rather is a matrix of norms and repeated practices. "[I]f the inner truth of gender is a fabrication and if a true gender is a fantasy instituted and inscribed on the surface of bodies, then it seems that genders can be neither true nor false, but are only produced as the truth effects of a discourse of primary and stable identity." (5) "Femininity is thus not the product of a choice, but the forcible citation of a norm, one whose complex historicity is indissociable from relations of discipline, regulation, punishment." (6) Butler shows that gender is not a natural fact but instead a set of congealed, repeated practices that produce a field of regulation in which all people are compelled to perform gender. Doing so is a matter of survival. (7) Given this understanding of gender, she suggests a framework for building an analysis of gender that is, in my view, essential to theorizing feminist and trans resistance:

A political genealogy of gender ontologies, if it is successful, will deconstruct the substantive appearance of gender into its constitutive acts and locate and account for those acts within the compulsory frames set by the various forces that police the social appearance of gender. (8) Understanding gender as an effect of discourse rather than a cause and calling for an examination of disciplinary and regulatory sites of the production of gender initiates a strategic approach to resistance that departs from the production of certain truth claims that underlie liberal equality and equal opportunity arguments that are typically centered by legal reform projects. (9) Butler helps us to think through law and subjection from an understanding of power as productive rather than repressive, arguing that:

[S]ubject positions are always assumed in response to the reprimand of the law; acts of disobedience must always take place within the law using the terms that constitute us; subjects are always implicated in the relations of power but since they are also enabled by them they are not merely subordinated to the law.... [I]t would be no more right to claim that the term 'construction' belongs at the grammatical site of [the] subject, for construction is neither a subject nor its act, but a process of reiteration by which both 'subjects' and 'acts' come to appear at all. There is no power that acts, but only a reiterated acting that is power in its persistence and instability. (10) Butler's analysis of gender and her theory of performativity in particular provide an understanding of gender as a norm that operates in both the disciplinary and biopolitical modes that are essential terrain for law scholars and activists considering trans subjection and resistance. (11) Foucault describes disciplinary and biopolitical modes of power as distinct from sovereignty, providing a framework that, as I argue elsewhere, is particularly useful for examining the limitations of the understandings of power that underlie legal reform projects based in the anti-discrimination principle. (12) Foucault describes sovereignty as power rooted in the "right to kill" (wielded against individual heretics or other disobedient people) or in "subtraction"--the power to take away. This subtractive power is wielded by the sovereign with the aim of obedience to the law and the maintenance of sovereign power itself. (13) Discipline, on the other hand, establishes norms of good behavior and ideas about proper and improper categories of subjects. Foucault famously traces the invention of certain categories of sexual subjects, including the homosexual, the reproductive couple and the masturbating child, to argue that relations of power produced these identities through an explosion of discourse about sexuality in the Victorian period. (14) Disciplinary practices congeal in certain institutional locations such as the school, the factory and the clinic, where proper behavior is codified at the level of detail, and subjects are formed to police ourselves and each other according to these norms. Unlike discipline and sovereignty, biopolitics is concerned with population rather than individuals. Whereas sovereignty is defined by the right of the sovereign to kill, biopolitics is concerned with the distribution of life chances and the imperative to make live, to cultivate the life of the population. (15) Biopolitics develops as population grows and governments become concerned with birth and death rates, public health initiatives and the management of risks inherent in the population. From a law perspective, the rise of (often administrative) population-level interventions that we can understand as serving a care-taking function signals this mode of power. Immigration enforcement, social welfare programs, or multi-dimensional campaigns like "Welfare Reform," the "War on Drugs" or the "War on Terror" that mobilize a range of legal and administrative technologies (e.g. education policy, criminal punishment systems, methods of recordkeeping, family law doctrines, public housing regulations, surveillance technologies) are all examples of population-level interventions. These population-level interventions are mobilized in the name of promoting the life of the national population against perceived threats and drains and operate through sorting and...