One of the most pervasive questions for the American legal system is how to deal with questions of identity — how to create and enforce laws that deal with the slippery question of who someone is rather than the more concrete questions of what they do. Identity is woven into the fabric of American law, an institution that evolved from English colonists who wanted to use its punitive power to reify their own moral fiber as compared to that of the indigenous people around them, and later to reinforce the institution of slavery. The infrastructure hasn’t changed, but our cultural vocabulary of identity has grown much more complex, as have its markers and signifiers. LGBT identities are in some ways uniquely tricky for legal classification and enforcement, because we aren’t always visibly marked; even gay people (sometimes) have trouble identifying other gay people by how we dress, behave, or move through the world; how can the law do so? That’s a tough question to puzzle out, but Lord does it try.
We can see the question of how to track identity through external indicators play out in a lot of ways — is job discrimination against a woman who wears suits gender discrimination, since wearing a suit wouldn’t be a problem if she’s a man? We see it in the hoops LGBT asylum seekers are required to jump through — if bisexual asylum seekers are “capable” of “normal” relationships, does asylee status track along identity, or behavior? Most pressingly, what options does a legal entity (like the federal government) have if it wants to suppress or disempower LGBT identities?
This week, the Trump administration had its best success so far with its unhinged campaign to ban trans people from military enlistment; the Supreme Court agreed to allow the ban to go forward, despite injunctions from other courts. History, we like to say, is circular. In a post love-wins USA, many of the concrete markers that the larger culture associates with gay identity — specifically those having to do with having our relationships with people of the same sex recognized — are now legally indistinguishable from that of the larger population, if not necessarily culturally or socially. Instead, we’ve circled back to the underlying thinking of the 1950s. In the late 2010s and especially under Trump, gender and gender conformity are back under the legal microscope in a move that targets the gender nonconformity fundamental to aspects of gay identity for many, and also increasingly and dangerously, trans people.
In the frenzy of cultural conversation around Prop 8, a t-shirt slogan became popular: “Legalize Gay.” It was tongue in cheek, obviously, but the phenomenon it pointed up is real: the effort to keep same-sex unions meaningless in the eyes of the law was an effort to sideline, minimize and disempower the people who have those unions, gay people as a group. This is far from a new approach; one can think of the systematic efforts toward forced assimilation of Indigenous people in the US, prohibiting people from speaking their own language in their homes, practicing their own religion; taking children to boarding schools thousands of miles from home to make sure they grew up away from every cultural touchstone. The logic then and now was that if you can prohibit the defining actions and experiences that a group shares, you can effectively outlaw a people out of existence. If a federal government wanted to do the same to queer and trans people, they would have to answer the question: what defines us?
There are some historical precedents to what the government thinks the answer to that is. Presentation has always been a major part of how institutions of power make sense of our identities (or fail to). The infamous three-item rule, linked to how police justified their crackdowns on gay gathering spaces like Stonewall Inn, required wearing at least three pieces of clothing commensurate with their assigned gender at birth. As Austen and Abby explained, the rule was about gender but also about trying to enforce a kind of legibility in general — we are an anxiety-inducing, illegible bunch by nature!
This wasn’t just McCarthyism at its finest (although that did have a lot to do with it); laws outlawing cross-dressing or “masquerading as the opposite sex” actually go back to the mid-nineteenth century… wearing [men’s] clothing wasn’t just a social taboo, it was a criminal act. …Starting in the 1840s and continuing well into the 20th century, ordinances were passed in cities making it a crime for a man or a woman to appear in public “in a dress not belonging to his or her sex.” In the nineteenth century these laws had little to do with any sort of moral outrage over men and women wearing clothes that were atypical for their sex. …The thought that clothing might be used to mask someone’s true nature, rather than to reveal their character, was incredibly unsettling in this period. Thus, cross-dressing laws were less about gender policing (although that is inherently a factor), and more about trying to ensure that first impressions were as accurate and reliable as possible. By the time we get to the 1950s, however, these laws continued to be enforced almost exclusively because of a moral panic over “deviant” sexualities that would surely rip apart the very fabric of American society and turn us all into pinko commie dykes.
Laws enforcing gender conformity in presentation have the effect of incentivizing hetero- and cisnormativity, and also have the larger function of providing a pretext for scrutinizing gender presentation at all — in an anecdote Austen and Abby cite from Boots of Leather, Slippers of Gold one woman describes how she was pulled out of her car to have her outfit evaluated:
I’ve had the police walk up to me and say, “Get out of the car.” I’m drivin’. They say get out of the car; and I get out. And they say, “What kind of shoes you got on? You got on men’s shoes?” And I say, “No, I got on women’s shoes.” I got on some basket-weave women’s shoes. And he say, “Well you damn lucky”‘ ‘Cause everything else I had on were men’s–shirts, pants.
She was allowed to go — but the fact is she was pulled out of the car at all, and routinely. Even if individuals “pass” these evaluations of gender conformity, the reality of their legal standing has been shaped by the fact that they’re subject to that specific evaluation at all — that part of what we accept as a day to day reality is state monitoring of behavior and presentation related to sex and gender, or more plainly, “being visibly queer or trans in public.”
State surveillance of personal choices was also the underlying premise of the notorious Texas sodomy law that Lawrence v. Texas struck down — an attempt to approximate criminalizing being gay by criminalizing gay sex, even when had in private, consensually and between adults. The Lawrence v. Texas ruling didn’t strike it down until 2003; as of 1960, every state in the US had an anti-sodomy law in the books, some which caused anyone convicted of it to lose their right to vote. Lawrence v. Texas was notable in that not only did the decision written for it address privacy concerns — that John Lawrence and Tyron Garner were entitled to their privacy, but also that the sex they had been having in the privacy of Lawrence’s apartment wasn’t immoral or illegal in the first place. In an America where gay sex was no longer an outlawed facet of being gay — and several years later, when marrying someone of the same sex no longer was either — things became more complicated.
As LGBT activists have increasingly relied on expansive interpretations of Title VII and Title IX (outlawing “discrimination based on race, color, religion, sex, or national origin” and the promise that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” respectively), LGBT identity has become increasingly tied to gender and gender expression. Progressive legal strategy that tries to anchor protections for LGBT people to already-existing protections based on gender has become more dominant as Trump’s Congress has meant that the courts are a surer bet than a Republican legislature for forcing change; the same legal precedents are being relied upon for issues of public accommodations access for trans people, employment discrimination against cis lesbians, and bathrooms and locker rooms for trans students, and legal questions about how their genders are expressed, perceived and taken into account (or not) are at the crux of these rulings.
At the same time, we’re seeing a level of documentation of and vocabulary around gender that we’ve never had before. Whereas self-identification was previously a personal or social exercise, our social media accounts now often literally label us; our preferences on dating apps or porn sites create a paper trail about who we sleep with, who we love, who we are. There are legal pathways and frameworks for changing gender marker on ID, as circuitous and punishing as they are; recent legal advances mean that in several places in the US, you can have a nonbinary gender marker on your legal documentation.
On the flip side of that coin, Utah is considering passing legislation that would bar changing gender markers altogether. As has always been true for LGBT people, the visibility often required for institutional change carries risks: police departments in progressive cities often now ask for pronouns when making arrests, but anecdotally, many report that answering honestly if you’re trans or nonbinary means that you’re taken directly to solitary. The paper trail required to change your name and gender marker means you’re essentially marked as trans forever within government records; now, under an openly anti-trans administration, trans women are reporting their passport renewals are being denied.
Danni Askini, whose documents have read “female” since she transitioned in 1998 at age 16, was denied the right to renew her passport because “failed to disclose” that she was transgender, she told [the Advocate]. She said the U.S. Passport Office told her in June that after 20 years of having a passport that matched her gender identity, she needed to provide proof of gender transition.
The Trump administration has been openly antagonistic to trans people in a variety of ways — removing Obama-era support for trans students, obviously attempting to ban trans people from joining the military (successfully so, for now, it would seem), and chipping away at the Title VII anti-discrimination advances made in the courts under Obama. More insidiously, though, the language the administration has used in these efforts indicates that they’re trying to make meaningless the frameworks of gender and queerness that LGBT people have spent generations making accessible and liberating for ourselves and each other. In December of 2017, the CDC was quietly issued a memo outlining words they should stop using altogether in official documents; “transgender” was one of them. Just in October, the Trump administration floated an internal memo which proposed enshrining an institutional definition of gender that deliberately disallowed for trans people’s existence:
The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing.
The threat of ‘genetic testing’ was likely empty; even the Trump administration doesn’t really think that’s a viable option logistically. The real point was exploring establishing a collective worldview that doesn’t include trans people in it.
This week, the Supreme Court agreed to allow the trans military ban to go forward. The Pentagon’s official reaction to the news and backlash to it was, at best, baffling:
“As always, we treat all transgender persons with respect and dignity. (The Department of Defense’s) proposed policy is NOT a ban on service by transgender persons. It is critical that DoD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world. DoD’s proposed policy is based on professional military judgment and will ensure that the U.S. Armed Forces remain the most lethal and combat effective fighting force in the world,” Lt. Col. Carla Gleason, a Pentagon spokesperson, told CNN.
The only sentence of that statement that actually speaks to the question at hand — the military ban — only does so in that it baldly contradicts everything about it. The ban on transgender military members is not a ban, because we respect trans people and would not ban them; we’ve always been at war with Oceania, etc.
There have always been and will always be parties in power who wish we, where ‘we’ is the diverse and complicated spectrum of LGBT identities, did not exist and who will use whatever tools are at their disposal to do so. One of those tools is the legal and judicial apparatus, which is a double-edged sword, as it’s also one of our potential pathways to greater liberation and safety. As always, their ability to stamp out who we are is dependent upon their understanding of how we act, what we want and need, our values and our defining shared cultural experiences — right now, what’s most visible and fearful to them is the messy, complex and necessary conversation about gender and its intersections with queerness we’ve managed to advance over the last generation.
The battles we’re fighting haven’t changed much; they never really do. We want to be safe both in private and in public, able to keep our families and communities safe too, and recognized by our government to the degree that we can navigate a cold cruel modern world with the same level of difficulty our straight and cis counterparts can. For a generation or so, especially after the AIDS epidemic cruelly highlighted how unvalued gay lives were and how meaningless our family relationships were considered, a primary battleground for these fundamental issues was ensuring recognition and protections for our relationships and demanding acknowledgement of our inherent worth and our resilience. More recently, in a shifting cultural context that recalls the 1950s in a lot of scary ways, the legal paradigm has become once again how our community’s genders and expressions thereof — the degree to which we agree to make them visible and legible or not.