'What was he wearing?'
'He was asking for it!'
'If you're not going to be a REAL MAN, don't use the men's room.'
The most unsettling unexpected consequence of my arrest has been the trans legitimacy and image maintenance conversations it has spurned. People all over the internet seem to be wondering: Is my claim to use the men's room legitimate? Have I failed to meet the conditions of manliness (or transmanliness) such that the arrest was deserved? What do I look like? Trans people and non-trans people alike have been making arguments on list serves, comment boards, and in emails to me with varying levels of blame about my arrest. To some, whether or not I am to blame depends on whether or not what I did was illegal (which it was not). To others, whether or not I am to blame depends on how much I look like a man. And a third set seem to be saying that the fact that this experience happened to me means that it was deserved, because I failed to pass as a man and that is my shortcoming.
Ow. It is awful to be told that something so humiliating, unsettling, violating, and violent was treatment I deserved. But more than that, it is frightening to be finding out the strict limits that people who would identify themselves as trans or trans allies have on what dignity gender non-normative people are entitled to. Am I only entitled to use the bathroom that I want to use if I can 'pass' as a man all the time? If I fail to conform my gender presentation such that I consistently pass as male or female all the time, do I not deserve to pee anywhere? If I don't choose to or can't afford body alteration or the procedures of changing my legal sex, do I not deserve to express my gender identity? One non-trans ally-identified progressive lawyer told me that my public statement (excerpted on p. 1) expressed too much "outrage." He felt that people wouldn't relate to it because I wasn't understanding enough of the cop's confusion. As he told me this, he continually referred to me as 'she' despite the fact that I've been out to him as 'he' for over a year. Why does he need to defend the cop's confusion in such an egregious case, where I clearly offered the cop the relevant info and was still arrested for nothing? Why am I not entitled to outrage for false arrest, simply because my gender is confusing to him?
The limits of who deserves 'liberation' and under what conditions were particularly noteworthy when I was contacted by City Council Member Christine Quinn's office. Her staff reached out to me about my arrest, pledged support, and offered advice about contacting various service providers. However, less that two weeks later I attended a community board meeting where she was handing out a flyer about how she's working hard to increase police presence and arrests to 'clean up' the West Village streets that are populated by low-income trans youth and people of color. Youth and queer advocates have been loud and visible about the police harassment, brutality, and false arrests of trans and queer low-income people in the gentrified West Village, but Quinn has chosen to champion the interests of yuppie transphobic racists. Apparently, when a white, educated FTM gets arrested in Grand Central, politicians are willing to rally against transphobia, but when queer, low-income trannies and youth are systemically and routinely fucked over by the cops, well, that's just law and order.
This problem of what counts as a 'legitimate' trans-ness, who is entitled to a quest for equality, and how the fight becomes so narrow that it only protects people who aren't usually in harm's way extends also to legal strategies being used to supposedly secure rights and recognition for us. What legal precedent exists about the establishment of gender for trans people and about our rights is closely and restrictively tied to the medicalized models of gender resistence that already haunt us at every turn. Those who've responded with blame to my arrest have often focused on whether I have an "M' on my license. Although I firmly believe that I would have been arrested even if I had shown I.D. and even if my I.D. had said 'M', I still must observe that the regulatory processes necessary to achieve such a legal gender change are unfathomably fucked up. In many states, a gender change would not be possible without spending the hundreds of thousands of dollars and risking extreme health detriments to have both upper and lower reconstructive surgery (which very few FTMs get both because of expense and the inadequacy of the procedures currently available), a hystorectomy, and taken hormones, and having documentation from medical and psychiatric specialists. Almost none of this is covered by insurance. And beyond all of the implicit classism in that assertion, we have people like me who DON'T WANT a gender-cohesive, gender-normative, state-sanctioned body and mind. How can I invest in a liberation project that requires me to conform to seriously invasive gender-adjusting procedures and processes in order to deserve to pee without false arrest?
Additionally, as we've seen in the recent custody battle in Florida involving an FTM father, when the law does address trans people, it determines our rights based on our ability to conform to a very restrictive version of 'male' or 'female.' In that case, the father has been forced to testify about whether he is capable of penile penetration, and other intimate details, in order to prove his 'manliness' such that his custody rights will apply. Do non-trans men have to prove specific sexual functions in order to get custody rights? As usual, trans people are held to a level of gender conformity that non-trans people never are, erasing the gender diversity that exists among all people, and using trans bodies to legitimize restrictive and sexist gender dichotomies (which we're then blamed for by anti-trans 'feminists' like Janice Raymond, of course).
So, as a trans person, and as a lawyer, how do I resist the contortion of my narrative to fit gender policing ideologies? How do I struggle for trans legal rights, equality, and dignity without engaging in legal narratives that further overdetermine gender difference and 'biology as destiny'? And how do I deal with the pain of rejection and blame from my own supposed community members who see my post-top-op, no hormones, faggy, dykey, pervy appearance as justification for any degradation I run into?
This experience, and the ways in which my body has become a battleground for debate about what constitutes a legitimate trans complaint, who deserves freedom and bathroom access, and whether it is okay that we live in a police state, has only further convinced me of the necessity of a grassroots, unapologetic, non-medicalized, broadly inclusive movement for free gender expression of all people. I see my arrest as intimately linked to movements for public space in New York city, anti-police brutality work, feminism, anti-racism, efforts to end the policing of mothers on public benefits and in public hospitals, queer liberation, the overthrow of capitalism, and resistence to the war on dissent being waged right now. Let's just say, its time for Tranarchy. Whether you know it or not, we're fighting for your freedom, and we're fighting to win.
dean spade is a poverty lawyer in new york city.