TRANS LAW AND POLITICS ON A NEOLIBERAL LANDSCAPE

In order to effectively conceptualize political and economic marginalization, shortened life spans, and an emergent notion of organized resistance among the set of gender rule-breakers currently being loosely gathered under a "trans" umbrella, and to raise questions about the usefulness of law reform strategies in this resistance, it is important to consider the context in which these conditions are embedded. The concept of neoliberalism is a useful tool for describing the context in which emergent forms of trans resistance are appearing. Scholars and activists have used the term "neoliberalism" in recent years to describe a range of interlocking trends in domestic and international politics that constitute the current political landscape. The term is slippery and imperfect. Neoliberalism is used to mean lots of different things by lots of different people, and it is sometimes used to refer to conditions that we could understand as not new at all, like state violence toward people of color, US military imperialism, and attacks on poor people. However, I find the term useful because it allows space for critical insight into the range of practices producing effects at the register of law, policy, economy, identity, organization, and affect. It helps us look at a set of things together and understand their interlocking relationships rather than analyzing them in ways that make us miss key connections.

Neoliberalism has not only shaped the larger social, economic, and political conditions that trans people find themselves in, but has also produced a specific lesbian and gay rights formation that trans politics operates in relation to. The concept of neoliberalism is useful both for raising concerns about the effects of the lesbian and gay rights formation on trans people, and for calling into question the usefulness of the lesbian and gay rights model for trans law reform efforts.

Neoliberalism has been used to conceptually draw together several key trends shaping contemporary policies and practices that have redistributed life chances over the last forty years. These trends include a significant shift in the relationships of workers to owners, producing a decrease in real wages, an increase in contingent labor, and the decline of labor unions; the dismantling of welfare programs; trade liberalization (sometimes called "globalization"); and increasing criminalization and immigration enforcement. Neoliberalism is also associated with the rollback of the gains of the civil rights movement and other social movements of the 1960s and '70s, combined with the mobilization of racist, sexist, and xenophobic images and ideas to bolster these changes. Further, the emotional or affective registers of neoliberalism are attuned to notions of "freedom" and "choice" that obscure systemic inequalities and turn social movements toward goals of inclusion and incorporation and away from demands for redistribution and structural transformation.

At a broad level, the advent of neoliberal politics has resulted in an upward distribution of wealth. Simply put, the rich have gotten richer and the poor have gotten poorer. The real wages of Americans have not increased since the 1970s, and the bargaining power of workers trying to improve the conditions under which they labor has declined significantly. Today fewer workers are part of labor unions, and major law and policy changes have made it harder for workers to organize and utilize tools like labor strikes to increase bargaining power and push demands. More workers have been forced into the contingent labor force, working as "temps" of various kinds without job security or benefits. At the same time, these developments are lauded by proponents of neoliberalism as increased "flexibility" and "choice" in the job market, where workers are portrayed as having more of an entrepreneurial role in their own employment as independent contractors. In reality, workers have lost real compensation, in terms of both wages and benefits. These changes in the relationship between workers and owners, and the reduction in unionization in particular, have resulted in the loss of certain important benefits that were fought for — and won — by organized labor forces in some industries and for some employees. Benefits such as old age pensions and health care that many used to access through their jobs have disappeared as labor has been restructured.

During the same period state programs to support poor people, people with disabilities, and old people have also been dismantled. As a result, more and more people have been left without the basic safety nets necessary to ensure their very survival. The real worth of already inadequate benefits has continuously decreased since the 1970s while the laws and policies governing these programs have simultaneously changed to exclude more and more people from eligibility. Lifetime limits, new provisions excluding immigrants, family caps limiting benefits for new children entering a family, and new regimes of work requirements imposed on those in need of benefits were introduced in the 1990s to "end welfare as we know it." These drastic policy changes have left millions of poor people with less access to basic necessities: these changes have destroyed public housing projects, greatly reduced vital health and social services, and produced a significant increase in the number of people living without shelter.

Globally, the upward distribution of wealth has been aided by trends of trade liberalization combined with coercive rules imposed upon poor/indebted countries by rich/grantor countries. Both of these elements create rules that reduce the ability of countries to protect their workers and natural environments from exploitation and build programs like education and health care systems that increase the well-being and security of their own people. Trade agreements like the North American Free Trade Agreement (NAFTA) and the proposed Trans-Pacific Partnership (TPP) are used by corporations to attack rules that protect workers or the environment, arguing that such rules are barriers to "free trade." At the same time, organizations such as the International Monetary Fund (IMF) and the World Bank place limitations on what indebted countries can do, forcing them to focus on producing cash crops in order to make payments on debts instead of investing money in basic necessities and infrastructure within the country, or growing sustenance crops to feed their people. The structures of trade liberalization and coercive debt allow wealthy countries and corporations to perpetuate resource extraction against poor countries and their populations, leaving their people in peril. These conditions drastically impact the life spans of people in poor countries: deaths from preventable and treatable disease, hunger, and environmental damage are the direct result of economic arrangements that divest exploited nations of control over local human and natural resources. These conditions also produce increased migration as people flee economic, political, and environmental disasters seeking safety and a means of survival. Many of these people risk enormous danger, and even death, when traveling to rich countries. And when — or if — they arrive, they then face racism, sexism, xenophobia, homophobia, transphobia, economic exploitation, and criminalization.

These changes in global economic arrangements, such as the emergence of "free trade agreements" and debt schemes that replaced prior forms of colonialism with new ways of controlling countries, have also had significant impacts within the United States. Domestic job loss has resulted as corporations move their operations to places with more exploitable and unprotected workforces. As more and more working class people feel the effects of economic restructuring that reduces their earnings and employment security, politicians and the media offer racist and xenophobic scapegoating to exploit this dissatisfaction, preventing the discontent from producing interventions on these economic agendas. As workers in the United States experience the impacts of their declining power, the media and government have shaped messages that channel frustration at these changes into policies of racialized control rather than economic reforms that might benefit those workers.

Sexist, racist, and xenophobic images and ideas have been mobilized in the media and by politicians to transform growing economic loss and dissatisfaction into calls for "law and order." Increasingly, social problems rooted in poverty and the racial wealth divide have been portrayed as issues of "crime," and increased policing and imprisonment have been framed as the solution. The last thirty years have seen a massive growth in structures of law enforcement, both in the criminal punishment and immigration contexts, fueled by the rhetorical devices of the War on Drugs and the War on Terror. Numerous law changes have criminalized behaviors that were previously not criminalized and drastically enhanced sentences for existing crimes. Mandatory minimum sentences for drug violations have severely increased the significance of drug convictions, despite an overall reduction of drug use in the United States during this period. "Three strikes" laws, which create a mandatory extended prison sentence for people convicted of three crimes listed as "serious," have been adopted by almost half the states in the United States, contributing to the drastic growth in imprisonment. Behaviors associated with being poor, such as panhandling, sleeping outdoors, entering public transit without paying the fare, and writing graffiti have also been increasingly criminalized, resulting in many poor and homeless people ending up more entangled in the criminal system. Many cities have taken up "quality of life" policing strategies that target for arrest people in the sex trade, homeless people, youth, people with disabilities, and people of color as part of efforts to make cities comfortable for white gentrifiers. The result of these trends has been a rapid growth of imprisonment such that the United States now imprisons one in 100 people. With only 5 percent of the world's population, the United States now has 25 percent of the world's prisoners. Over 60 percent of US prisoners are people of color; and one in three Black men now experience imprisonment during their lifetimes. Native populations also experience particularly high rates of imprisonment; at a rate of 709 per 100,000, the imprisonment rate for Native populations is second only to the rate of imprisonment for Black people, estimated at 1,815 per 100,000. Women are the fastest growing segment of the imprisoned population. The rate of imprisonment for women has increased at nearly double the rate of men since 1985 and there are now more than eight times as many women locked up in state and federal prisons and local jails as there were in 1980. "War on Drugs" policy changes account for much of this shift — 40 percent of criminal convictions leading to incarceration of women in 2000 were for drug crimes. Two-thirds of women imprisoned in the United States are women of color.

Such trends have prompted many commentators to observe that imprisonment of communities of color is an extension of systems of chattel slavery and genocide of indigenous people. Angela Davis has described the historical trajectory that formed the criminal punishment system as a response to the formal abolition of slavery. As she and others have pointed out, the Thirteenth Amendment's abolition of involuntary servitude includes a very important caveat: "except as punishment for crime, whereof the party shall have been duly convicted." As Davis traces, in the years following the abolition of slavery, southern prisons drastically expanded and went from being almost entirely white to primarily imprisoning Black people. New laws were passed — the Black Codes — that made an enormous range of behaviors (e.g., drunkenness and vagrancy) criminal solely if the accused was Black. These legal schemes permitted the newly freed slaves to be recaptured into a new system of forced labor, control, and racial violence. The nature of imprisonment changed during this time, taking on the methods of punishment common to slavery, such as whipping, and implementing the convict leasing system that allowed former slave owners to lease the labor of prisoners who were forced to work under conditions many observers have suggested were even more violent than those of slavery. The contemporary criminal punishment system finds its origins in this racially targeted control and exploitation of Black people, and its continuation of those tactics can be seen in its contemporary operations. As Davis asserts,

Here we have a penal system that was racist in many respects — discriminatory arrests and sentences, conditions of work, modes of punishment. ... The persistence of the prison as the main form of punishment, with its racist and sexist dimensions, has created this historical continuity between the nineteenth- and early-twentieth-century convict lease system and the privatized prison business today. While the convict lease system was legally abolished, its structures of exploitation have reemerged in the patterns of privatization, and, more generally, in the wide-ranging corporatization of punishment that has produced a prison industrial complex.

The specific origins of the criminal punishment system in relation to chattel slavery has not limited the targets of that system to Black people. While Black people continue to be the primary targets, other people of color and poor white people are also profoundly impacted by caging and policing, both through the criminal punishment system and the immigration enforcement system. In the last decade, the War on Terror has prompted a massive growth in immigration enforcement, including imprisonment, significant law changes reducing the rights of people imprisoned in immigration facilities, and an overhaul of the administrative systems that govern identification in ways that lock immigrants out of basic services and make them more vulnerable to exploitation. In the last decade law changes at both the state and federal level have made it more difficult to get ID and government benefits. Some of these changes have been fueled by well-publicized campaigns such as the 1994 campaign to pass Proposition 187 in California, a law that aimed to ensure that undocumented immigrants could not use public services such as health care, education, and other social services. The 2005 REAL ID Act, passed by Congress, focused on changing how states issue driver's licenses in order to prevent undocumented immigrants from obtaining ID. Many other law and policy changes that garnered less attention similarly reduced access to key services and ID for undocumented people. During the same period, the federal government has increased its enforcement of immigration laws, imprisoning and deporting more people and creating new programs, like the controversial "Secure Communities" program, that increase the use of state and local criminal enforcement resources for targeting immigrants.

Law and policy changes that have increased criminalization and immigration enforcement have been implemented through the utilization of some important reframings. In the wake of the political upheaval of the 1960s and '70s, where strong social justice movements' demands for redistribution and transformation gained visibility and were then systemically attacked and dismantled by the FBI's Counter Intelligence Program (COINTELPRO) and other governmentally orchestrated operations, conservatives regrouped using racist, sexist, and xenophobic scapegoating. Movement organizing and social protest became "crime" and increasingly "terrorism," justifying the imprisonment of political activists from effective organizations and the ongoing surveillance and criminalization of dissent. Additionally, the War on Drugs changed how drug use is perceived, flooding the culture with racist images of dangerous, violent drug users and dealers. Understandings of drug addiction as a health issue, to the extent that they existed, were replaced by the framing of drug abuse as a criminal issue, with punishments for drug possession increasing significantly. The War on Drugs resulted in massive prison expansion to accommodate a growing mass of drug offenders serving increasingly long sentences. New laws like the Americans with Disabilities Act (ADA) of 1990 specifically identified drug users as people to be excluded from protections aimed at eliminating stigma from health impairments. Even though drug abuse declined precipitously in the United States starting in the mid 1970s, confinement of people based on drug convictions in state and federal prisons increased 975 percent between 1982 and 1996. With the advent of the War on Terror in 2001, an enormous range of law and policy changes resulting in locking up immigrants was justified through a new framing of all immigration policy issues as "terrorism prevention." This criminalizing framework extends to the realm of social welfare policies. The notion of people defrauding welfare and Social Security Disability benefits systems was popularized by media "exposés" on the topic, contributing to the racist portrayal of the poor as criminal and supporting policies reducing poverty alleviation programs and enhancing punishment systems. At the same time, law changes dealing with drug use or possession included eliminating eligibility for college financial aid and public housing for people with drug convictions and enhancing the barriers to employment, credit, and social services for communities targeted by increased policing and imprisonment. Fueled by racist, sexist, and xenophobic scapegoating, the last four decades have seen simultaneous slashes to social services and massive growth of state capacities to surveil, police, and imprison, suggesting a disingenuity to the "small government" credos of politicians.