Gender Is Carceral: On Racialized Gender Criminalization and Abolitionist Cis-Trans Coalitions

On May 8, 2022, Alabama Senate Bill 184 went into effect.¹ Under the law, doctors who provide trans health care to patients under the age of nineteen can face up to ten years in prison. Upon signing the law, Alabama governor Kay Ivey stated, “I believe very strongly that if the Good Lord made you a boy, you are a boy, and if he made you a girl, you are a girl” (Migdon 2022a). After being signed in April, the law was immediately challenged in several suits by Alabama families, physicians, and LGBTQ+ rights groups, though US district judge Liles Burke did not grant a preliminary injunction to halt the law's enforcement while the suit is ongoing (Migdon 2022c). But a federal judge did block the enforcement of a governor's directive in Texas that defined trans health care for minors as a form of child abuse pending the outcome of another ACLU suit (Goodman 2022). Soon after, the Texas Supreme Court lifted the injunction in claiming that lower courts had overstepped by trying to block the child abuse investigations from going forward. Parents of openly trans children in Texas thus continue to be investigated by the Texas Department of Family and Protective Services (DFPS).

Similar anti-trans bills have been introduced in the last few months in Arkansas, South Carolina, Idaho, Tennessee, Missouri, Oklahoma, Kentucky, Pennsylvania, Arizona, Iowa, Ohio, Mississippi, Louisiana, and several other states (thirty-four in total, according to the Freedom for All Americans legislative tracker [“Legislative Tracker” n.d.). While many of these bills target transgender youths’ access to medical and social transition, others target trans youths’ participation in sports, the availability of multi-gender or gender-neutral restrooms, and any existing state-protected civil rights for trans people. This recent wave of laws criminalizing transgender life is but one part of a broader genealogy of the criminalization of gender nonconformity in the United States. And we know, too, that the history of criminalization in this country has been unfailingly racialized—that the social science inherited from the postbellum period and Progressive era produced enduring discourses of Black criminality that explicitly relied on notions of gendered and sexual pathology (Muhammad 2010: xiv). Practices of policing and incarceration continue to rely on the conjunctional pathologization of sexual and gender nonconformity as well as racial difference. From municipal and state anti-cross-dressing laws to sex segregation within prisons, racialized gender regulation has been a consistent feature of the US carceral state since at least the nineteenth century (Sears 2015). Any coherent vision of abolitionist politics must therefore resist today's newest wave of anti-trans panic and propaganda.

Before World War I, at least forty-five US cities had anti-cross-dressing laws on the books. The policing of gender nonconformity frequently went hand in hand with efforts to clean up so-called vice: sex work, queer bars, and drug use. Even when anti-cross-dressing laws could not be used to justify arrest, police discretion often translated into arresting people whose appearance did not match the name or gender designation on their IDs for impersonation or suspected prostitution, as well as vagrancy, loitering, and other racialized crimes (Stryker 2017).

The 1965 Moynihan Report and the emergence of mass incarceration in the second half of the twentieth century elevated and intensified the stakes of a US criminological discourse that had always been raced, sexed, and gendered. Black feminist and Black trans studies scholars like Hortense Spillers, Sarah Haley, and C. Riley Snorton have all illuminated the ways in which Black people have been constructed outside of the white, cisgender, heteronormative gender binary since the days of slavery—with Snorton going furthest in reading the “trans in transatlantic” in his groundbreaking monograph Black on Both Sides: A Racial History of Trans Identity (Spillers 1987; Haley 2016; Snorton 2017). But even reactionary masculinist thinkers like Eldridge Cleaver have been sensitive to the ways in which a grammar of Black ungendering has been deployed to justify anti-Black violence (Cleaver 1968). Hence, while for much of US legal history, states and municipalities explicitly criminalized and policed practices of gender transgression, the criminalization and policing of Black people has also consistently been justified and shaped by ideas about the non-normativity of Black genders. In my remarks here, I reflect on how abolitionist praxis is and can be responsive to the reality that all of these histories have accumulated such that today, in this settler colony we call the United States, gender is carceral.

While Judith Butler's classic Gender Trouble is frequently understood to be an argument for the denaturalization of sex and gender, the book's Foucauldian register readily implies—for the reader willing to pay close attention—that gender is carceral. As Butler writes in a preface to the 1999 edition of the book:

Butler was (and is) interested in imagining alternative life-worlds in which gendered incarceration is impossible. But I want to suggest here that, with most other forces remaining constant—that is, with the world itself remaining relatively the same—the life of Butler's uncle as lived out among family and friends may well have been just as carceral his life in a prison. This is where Michel Foucault's ideas prove to be useful.

For Foucault, places like schools, hospitals, and workplaces function in conjunction with prisons to form a carceral network: a series of institutions that are not all formally affiliated with the state, but which nonetheless serve, expand, and embody state power (Foucault 1979). Foucault coined the terms biopolitics and anatamo-politics in an effort to explain how everyday people enforce laws and norms, beyond the formal structures of the state, which govern the terms of not just who lives and dies but also precisely how people are made to live (e.g., in a dress or in a suit). In abolitionist circles, Foucault has rightfully faced criticism for not appropriately citing some of the thinkers who influenced his ideas, including militant imprisoned intellectual George Jackson (Heiner 2007). Nonetheless, Foucault's contributions to post-structuralist theory are useful tools for analyzing the state and extra-state violence faced by gender-nonconforming people of color. Following Foucault, I contend that non-state actors frequently perform a carceral function in upholding gender norms. From parents who discipline the genderqueer practices of their children to catcallers who harass passersby for so-called cross-dressing, everyday people routinely appoint themselves as gender pigs: gender police. Even George Jackson, in one of his less noble moments, described people who did not subscribe to gender norms as “confused psychotics” (Jackson, Genet, and Jackson 1994: 48). To be gender nonconforming under gendered racial capitalism is to be constantly subjected to policing by the state and everyday citizens alike.

Before elaborating on the extra-state policing of racialized gender-nonconforming subjects—and its implications for the abolitionist movement—I want to note that, like Butler, I have my own personal investments in this issue. Early on in my transition as a Black transgender man, like many trans people, I found myself fearing everyday people almost as much as I feared the police. My body sent to outsiders what many would interpret as mixed signals regarding my sex and gender: a voice seemingly deepened by testosterone, some facial hair, masculine clothing, and breast tissue (albeit compressed by a binder). These signals left people feeling confused and outright tricked during ordinary daily interactions with me. In 2017, just one day after a New York Police Department officer randomly stopped me on the street, asked me for my ID, and sadistically questioned me regarding the “F” gender marker I had not yet changed, I was approached by a random man in a subway station who continually asked me, “Are you a man or a woman?” His voice got louder and louder as my train got later and later. Eventually, I simply left the subway station and decided to get home another way. Such occurrences were not rare before I got top surgery, after which I was more frequently (mis)perceived to be a cisgender man in the public sphere. But these two specific back-to-back interactions facilitated within me an organic intellectual instinct concerning the nexus of race, gender, and carceral violence. For both the cop and the man in the subway station, questioning who I was in relation to normative gender categories became a means of reasserting the fact that I was untenable. Despite later claiming that he knew I was “a transgender,” the cop initially feigned ignorance so as to imply that I was inherently disorderly, potentially criminal, and therefore a justified target for being brought to the precinct. Of course, he never took me there, just as the man in the subway station did not escalate his harassment to the level of physical violence. Both men, nonetheless—even if unwittingly—performed a carceral function: acts of psychological warfare that functioned to police, and potentially rein in, gender nonconformity (or at least its presence in the public sphere). Even though I was not as proximate to policing, poverty, and street harassment as many other Black transgender people—in part because I was not fully locked out of the formal, overground economy—I still witnessed gender as a carceral project well before I could understand or affirm this experiential instinct through historical or theoretical analysis.

Unfortunately, enemies of trans freedom and self-determination also seem to have an organic intellectual understanding of how extra-state gender policing functions. Texas governor Greg Abbott's directive to the state's Department of Family and Protective Services (DFPS) to investigate the parents of children who receive transgender health care relies on everyday citizens’ willingness to report violations of the cisnormative social contract to the state.² In a word: the directive deputized cis people. But while the Texas governor's directive deputized vigilante observers to aid in the criminalization of parents who support their transgender children, parental support of trans kids is, unfortunately, quite rare. More common is the strict gender socialization to which most of us were subjected by our families while growing up: being taught what to wear, how to talk, how to walk, how to eat, how to sit, where to go to the bathroom, and so on. Those of us who systematically failed our gender assignments as youths were also systematically punished for these deviations—typically until at least some level of conformity, or a general commitment to attempting conformity, could be extracted from us. In countless cases, when trans youth have courageously refused to conform, their families have abandoned them, and they have been forced onto the streets and into underground economies for survival—leaving them even more vulnerable to criminalization. In this way, extra-state gender policing frequently bears a direct relationship to gender policing by the state. Gender policing by family and community members is a key component of a broader carceral superstructure—a superstructure being expanded by people like Greg Abbott and egged on by political candidates like Pastor Mark Burns, who advocated for the relaunching of the House Un-American Activities Committee to investigate and execute teachers who educate youth on queer and trans issues for “treason” (Roos 2022).

I linger on the matter of extra-state policing because I think the issue is absolutely central to the question of coalition building between cis and trans abolitionist organizers. Such coalitions are imperative for building up enough power to defeat contemporary fascism. Extra-state policing is the zone wherein people we might otherwise assume to be natural allies in the fight against the carceral state demonstrate a complicity with anti-trans state violence. It is noteworthy that in Black communities—where there is nominal distrust of the police—many gender-conforming individuals continue to enact carceral violence through the extra-state policing of Black queer and trans community members. And policing, as we know too well in the United States, is deadly. In this light, we may be able to make sense of the reality that in the contemporary crisis of Black trans murders cisgender Black men are frequently found responsible for taking Black trans lives. While some have extrapolated from the work of C. Riley Snorton and other Black trans studies scholars the claim that “there are no cis black people”—a claim meant to emphasize shared stakes between all Black people who have been, wittingly or not, constructed outside of white, heteronormative gender ideals—such a claim obfuscates real differences in material conditions and relations to violence between cis and trans Black people. Our coalitions can and must simultaneously be attuned to shared stakes as well as real differences in our vulnerabilities to specific forms of violence. In this way, we can come to understand gender as a carceral phenomenon that influences the ways in which all of us are surveilled and policed, while also being honest about who faces the brunt of gendered violence such that we can collectively craft more successful anti-violence interventions.

Black trans organizers are at the forefront of crafting such interventions. Ky Peterson, a formerly incarcerated Black transgender man, cofounded Freedom Overground to support incarcerated trans and gender-nonconforming people—those who know perhaps most intimately that gender is carceral. In New York City, Black trans organizers cofounded the Black Trans Travel Fund, a collective that redistributes funds to Black trans women to self-determine safer travel options for them so as to limit their interactions with police or non-state street harassers. In Texas, organizations like allgo mobilize queer youth of color to build power and communities of care in the face of threats like Governor Greg Abbott's directive criminalizing transgender health care. The Knights and Orchids society, based in Alabama, works to provide transgender health care in a state in which only three endocrinologists offer hormone therapy to trans patients (Nast 2022).

All of these organizations work to protect and empower trans people of color amid a white power structure dedicated to repressing Blackness and gender variance. Black trans organizers, especially in the South, remind us of the intensity of our current political moment: that, despite our efforts, we are losing, that fascism continues to grow and threaten our livelihoods, and that collectively, we need to find a way to do more. The criminalization of all transgender health care—at any age—is clearly on the fascist agenda. (The slippery slope fallacy is only a fallacy if one's enemy does not sincerely plan on sliding all the way down the slope.) We must be prepared to resist the criminalization of trans life at every stage: on the streets, in classrooms, in medical offices, and in our own homes. Doctors, teachers, and parents must be prepared to break laws; the abolitionist movement must be prepared to strategize concomitant jail and prison support. As we renew our commitment to the sanctity of Black trans life, we must vow to conspire together in this moment without hesitation, against fear, against comfort, and for freedom.

I am grateful for the feedback of Phil Deloria and editor Marquis Bey on multiple drafts of this essay.

Notes

References