In this book, I have tried to illuminate the relation between gender identity, sexual identity, and aggression in the courtroom and in the popular imagination through a slow phenomenology of one single case, a case in which the illogics of transphobia, homophobia, and racism were on clear display. Phenomenology, as I have aimed to show, can give us insight into the conditions that enable such an episode of violence, as well as a way of reading its aftermath. It can help us see those things anew, see situations and people that our sedimented habits of thought have prevented us from seeing well, or prevented us from seeing at all. Letting that space of unknowing permeate what we see can offer a more ethical way of relating to otherness.
Latisha King was murdered nearly ten years ago. The public visibility of transpeople, and the recognition of trans identity, have fundamentally shifted our cultural landscape since that time, and we might be tempted to conclude that the case is merely a relic of an earlier, less-enlightened era. Yet many of the presuppositions about gender nonconformity on display in the King case, and the attendant attributions of aggression to the gender nonconforming, are not merely persisting but gathering frightening new momentum in the wake of the Trump presidency, and it remains to be seen what will become of the gains made by the trans community in the coming months and years. The case of Latisha King is not as anachronistic as it should be in our present moment. What does seem true is that the visibility of transpeople has ushered in a new era, one in which their identities are increasingly legible at the same time that there is transphobic backlash against that visibility, powered by what Tobias Wolff has named an “ugly genocidal fantasy” about transpeople.1 This backlash is weaponizing both visibility and invisibility in order to police, to contest, and to erase the very existence of transpeople.
***
On February 22, 2017, as I was completing the writing of this book, the U.S. Department of Education, under the direction of Betsy deVos, and the Justice Department, under the direction of Attorney General Jeff Sessions, co-authored an untitled Dear Colleague letter.2 The purpose of that letter was to withdraw the policy and guidelines set forth in two previous letters authored by the Obama administration in 2015 and 2016, which directed public schools to treat a “student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” As the May 2016 letter put it, “This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” The practical impact of these Obama-era guidelines included mandating, under Title IX, that students be able to use the bathroom and locker room that corresponded to their gender identity, even if it was not the same as their sex assigned at birth. That support was delivered publicly in a press conference held by Attorney General Loretta Lynch on May 9, 2016. In her statements, she specifically addressed the trans community with these words: “We see you, we stand with you, and we will do everything we can to protect you going forward.”3
The Trump administration’s February 22 letter does not anywhere in its two pages mention the word “transgender.” It notes that the occasion for its issue was the previous administration’s interpretation of Title IX, which “has given rise to significant litigation regarding school restrooms and locker rooms.” That earlier interpretation, which the February 22 letter calls “novel,” was put forth in guidance documents that, according to the new administration, “did not contain extensive legal analysis,” and thus the Department of Education and the Department of Justice rescinded the prior letters “in order to further and more completely consider the legal issues involved.” With its withdrawal of protection for transpeople, whom the letter targets yet refuses to name, the Justice Department nullified the support offered by the previous administration.
The legal issues, according to the language of the letter, are the sanctity of sex-segregated facilities, a stated concern shared by a number of recent bills proposed or passed by state legislatures that require transpeople to use the restroom corresponding to the sex designation on their birth certificates. These bills sometimes imply and sometimes state explicitly that they are about the safety of girls and women and are intended to protect them from sexual harassment and assault. (Just as concern about the sanctity of life does not, in the social conservative imagination, extend to the life and well-being of a child once she leaves the womb, concerns that a woman should be protected from sexual harassment or assault seem to vanish once she leaves a sex-segregated restroom.) These include the “Texas Privacy Bill,” SB6, which declared itself to be addressing the “privacy” of sex-segregated facilities, and HB2, the North Carolina “Public Facilities Privacy and Security Act,” which was approved into law in 2016. The term “privacy” in these bills has a dual action, naming a right to privacy for women and girls in women’s restrooms, a right that the bill aims to protect. But “privacy” is also asserted as the proper domain for the gender expression of transpeople. Gavin Grimm, the Virginia teenager whose sued for the right to use the bathroom matching his gender identity, was told when he was barred from the boys’ facilities at his school that he would be required to use a janitor’s closet. A number of bills and ordinances passed at state and local levels require trans students to use “private” changing and showering facilities. Privacy, then, names a right that is being authored in order to allow cisgendered students to move through sex-segregated public spaces without any trans students present. The right to privacy means a right to public space purged of transpeople. And privacy, for trans students, means being publically outed as trans, and then being removed from that public space for being trans.
According to the February 22 letter, the difficulty with the prior guidelines is that they relied on an ambiguous definition of the word “sex.” By way of contrast, it notes that “a federal district court in Texas held that the term ‘sex’ unambiguously refers to biological sex.” Thus, the letter maintains that the Obama administration’s deployment of the term “sex” was ambiguous but that sex itself is not, and that it is the restoration of “sex” to its prior status as uncontested and unambiguous that is the aim of the letter. One of the many confounding contradictions in the letter: if what is at issue is the biological sex of the person seeking entrance to the restroom, then that person would seem to be covered by Title IX, which ensures that individuals are not discriminated against on the basis of sex, but it is precisely that protection that the letter is revoking. Transgender people are, in essence, unsexed by this document. It is not just the bathroom from which they are being ejected—it is the category of sex itself. Within this horizon, there is no transgressing or traversing gender. Indeed, there appears to be no such thing as “gender” at all. There is only “biological sex,” a bodily fact that cannot be disputed.
The stupidities of this position are manifest and many. One of the most glaring is how “biological sex” is defined in this document and in new legislation proposed in state and local governments around the country. In February of 2016, the South Dakota legislature approved a bill (later vetoed by the Republican governor) that would force public school students into the bathroom and locker room corresponding to their “biological sex,” which the bill defines as “a person’s chromosomes and anatomy as identified at birth.” By claiming that sex is “biological sex,” the letter seems to assert that sex is equal to genital shape. But note that this is not the advancement of a simple materialism that would conflate a person’s sex with that person’s genitals. The genitals to which it refers are the genitals of a newborn, genitals that may have no relation at all to one’s current physical body. This is an understanding of “biological” that is almost entirely dematerialized from the phenomenology of the body, either in its appearance from the outside or in its feeling from the inside. In insisting that the letter on the birth certificate is the arbiter of sex, irrespective of one’s genitals, sex becomes the property of a document rather than a body, a manoeuver that I have explored in detail elsewhere.4
The public pushback from trans activists and allies has already been vehement and thorough. Chase Strangio has recently written about the difficulties with the terms “male bodied” and “female bodied” in media coverage of trans people.5 Janet Mock, in an opinion piece for the New York Times critiquing the new bathroom legislation, offered these observations: “When trans students are told that they cannot use public facilities, it doesn’t only block them from the toilet—it also blocks them from public life. It tells them with every sneer, every blocked door, that we do not want to see them, that they should go hide and that ultimately they do not belong. When schools become hostile environments, students cannot turn to them.”6 Mock’s piece points to the ways in which these anti-trans policies transform a once-welcoming space into a hostile one through exclusion, by sanctioning the exile of trans youth. The title of her piece, “Young People Get Trans Rights. It’s Adults Who Don’t,” points to the generational divide on the question of trans rights. It also calls to mind Aliyah, the student at E. O. Green Junior High, who characterized Latisha’s gender with more precision than any of the adults in the school or in the courtroom: “I don’t think that Larry is gay, he’s transgendered. It’s a big difference.”7 As Mock emphasizes, the reach of anti-trans bathroom regulations are wider than just bathrooms; they are about the policing of trans bodies. This legal struggle is not about bathrooms any more than desegregation was about water fountains, lunch counters, or municipal buses. The point is to purge transpeople from public spaces. To make them disappear.
***
On February 23, the day after the Trump administration’s Dear Colleague letter was released, MSNBC’s Hardball with Chris Matthews hosted a panel discussion on the new anti-trans legislation, featuring actress Laverne Cox, Mara Kiesling from the National Center for Transgender Equality, and Travis Weber from the Family Research Council. Matthews started by asking Weber which bathroom he thought Cox and Kiesling should use, if not the women’s room? Weber refused to answer, dodging the question each of the half-dozen times Matthews posed it. Cox, like Janet Mock, pointed out that the issue was not about bathrooms and not about genitals, but about the right of trans people to exist in public space. “My transition,” she said, “was about me existing in public space, and because I was able to do that I was able to thrive. That’s all we want.”
Weber then objected to the other panelists’ discussion of trans rights, asserting that theirs were not the rights being abridged: “Whose rights are being overlooked here? The girls who are going into locker rooms.” Weber was then challenged again by Matthews:
Matthews: Who has standing on this, besides transgender people? Your side of the argument is that people are harmed by transgender people going into the bathroom they feel comfortable in. You say people are harmed by that. Who is harmed?
Weber: Students in high schools.
Matthews: Who is harmed?
Weber: Students in high schools.
Matthews: Describe them. What’s the harm?
Weber: I think we all understand what the harm is.
Matthews: I don’t.
Weber: A fourteen-year-old girl in the locker room, someone comes in with male genitalia into their locker room, of course they are going to be harmed. Their rights are not being protected here.
We all understand what the harm is. Weber appeals to common sense, to what we all know, what we all understand. Common sense rallies in response to a shock, the shock of a trans woman in the women’s restroom, a nonevent that is transformed into a shock through the coercions of common sense. It confidently asserts what “we all understand,” an appeal both blatant and a dog-whistle, to fantasies of trans predation. Undeterred by Matthews’s response that he does not understand what “we all” understand, and unresponsive to Matthews’s demand for a phenomenological account of harm (“Describe them”), Weber trots out the myth, as false and outrageous as it is oft-repeated, of trans women representing a danger to cis girls. And, through this instant reversal, he transforms transpeople, who are overwhelmingly the victims of harassment and assault in bathrooms and other public spaces, into the agents of the violence, rather than its target. As the above exchange also shows, not all trans people are equally hailed and targeted by this new legislation. The threats whom these laws imagine are, for the most part, transwomen specifically, rather than transpeople in general. As Paisley Currah makes clear, the logic that trans women present a threat in a bathroom is just another iteration of the fear that they present a threat per se. This is a new resurrection of an old front for an old hatred, “trans panic” playing out in different terrain.8
Again and still, gender identity is read as a form of sexual behavior. Again and still, non-normative gender expression is conflated with sexual aggression. Like so many fantasies, this one conspires to bring about the thing that it most fears through its insistence that transpeople use the bathroom of the sex they were assigned at birth. In the guise of protecting girls from men in the women’s room, the policy ejects (trans) women from the bathroom and forces (trans) men into that bathroom instead, insuring with one fell swoop that (trans) women will indeed be at heightened risk for harassment and violence in the mens’ bathrooms to which they have been remanded and that (cis) women will now be sharing sex-segregated bathrooms with (trans) men. The policy is perfectly performative, bringing into existence exactly the situation—men in the women’s room—that it purports to be solving. Again and still, it is mandating violence in the name of safety.
Transpeople—and trans children and young adults in particular—have indeed become more visible in the years since the killing of Latisha King. But what this new wave of anti-trans legislation demonstrates is that visibility is not in itself a sufficient condition to insure the protections of transpeople. Indeed, we can note the ways in which these bathroom bills are designed to disappear transpeople, but not before first rendering them hyper-visible. The current administration’s address to the trans community is the precise inverse of Lynch’s declaration of recognition and solidarity: We will not see you, we will not stand with you, and we will do everything we can to strip you of protection going forward. You are retroactively crossed-out.