Dean Spade on queer liberation and the law

Yesterday I listened to the Yale Law School lecture by Dean Spade on “the limitations of current popular legal equality demands emerging under the ‘trans rights’ framework.” So fucking brilliant, I listened to it twice! He talks really quickly and, as the audience is academic, uses jargon freely. It definitely requires full attention to follow, but as a non-professional, non-academic activist/thinker I was able to follow all the main points. This might be a bit overwhelming as an introduction to these issues, but if you are interested dive in!

I would like to add that I wasn’t taking notes while I was listening to this, though I did take a few immediately after, and that this is my recollection. I started writing this just to get my friends on facebook interested in listening to it but it just kept growing to something far too long for that purpose. So it could be that I have made errors, and it is for sure that I have omitted material which may be of more interest to others than it is to me. In any case, if this interests you I would highly advise listening on your own.

Hate crimes

It was helpful to me to hear an decent articulation from Spade of uneasiness with hate crime legislation and its relationship to the “criminal justice” system, which is something I have always felt but had a hard time describing. These issues were in my mind after reading about the recent gay bashing win in Oshawa, which was described this way by the Xtra:

After the judge handed down a guilty verdict Feb 24 in the schoolyard bashing of an Oshawa lesbian couple, Jane Currie and Anji Dimitriou, teary-eyed and beaming outside the courtroom, declared the moment “a win for the gay community.”

The article, in common with everything else I’ve read on the subject, is quite light on describing exactly how adding “hate crimes” on already-existing legislation around assault has any significance in the lives of queers. There doesn’t seem to be any reasonable strategy to prevent queer bashing from happening, because assault is already illegal, obviously if someone is breaking this law, a law which they are incredibly likely to be aware of, they either do not care about the repercussions, or are prepared to risk legal consequences for the benefits of committing the assault. Adding a secondary, more obscure law, has no reasonable chance of deterring the crime from happening. So what is the motivation? Vengeance?

The photos in this example present an image that also got me thinking. The two kissing white women juxtaposed with the man of colour made me wonder if the brunt of hate crimes legislation, like the rest of the “criminal justice” system, will fall disproportionately on communities of colour and indigenous people (not to mention people with psychiactric disabilities and working class people). And what will be the composition of the group who seeks to prosecute? Will it be white (in regards to sexuality/gender) middle class people? While Stats Canada does say that the majority of hate crimes are racially motivated, I can’t find information regarding ethnicities of the perpetrators. Of course such an argument would only be suggestive of selective enforcement, although coupled with existing information about rates of illegal acts vs rates of arrest/charges/incarceration, and how these are evidenced to be racially disparate (i.e. crimes are committed equally by all people, but are noticed disproportionately in certain groups) a picture could be painted.

But back to Spade’s lecture.

The framework of anti-discrimination legislation

Some interesting new ideas about anti-discrimination legislation and its inadequacy regarding non-individualized/systemic discrimination against entire communities. Such as “there are no grocery stores in this area” as an example. Who is to blame? Under the anti-discrimination framework, an individual or group who consciously made the decision to withhold access to food must be found, and that must be proved, in order to begin redressing the issue.

I also really liked the concept of liberal/legalistic obsession with naming a perpetrator in acts of discrimination, and the necessity to prove intent in order for anything illegal to have been done. It is totally inadequate to address the major issues that make life difficult/unpleasant for many folks, or as Spade puts it (borrowing from Max Weber) “reducing ‘life chances.'” Which is an interesting turn of phrase; I am fond of explaining the concept of privilege as being the systems that concentrates “luck” into the hands of some groups at the expense of others. This is another angle on the same concept it seems.  Also, “discrimination” is based in a faulty analysis of the nature of oppression, framing it as individual acts, rather than a tendency within an economy, or culture, enforced systemically.

No idle academic, Spade is deeply involved in the on-the-ground work of trans justice through is founding and ongoing work with the Sylvia Rivera Law Project in NYC, which describes itself as working

to increase the political voice and visibility of low-income people and people of color who are transgender, intersex, or gender non-conforming. SRLP works to improve access to respectful and affirming social, health, and legal services for our communities. We believe that in order to create meaningful political participation and leadership, we must have access to basic means of survival and safety from violence.

At the talk I saw on February 11th at Carleton, Spade said something along the lines of, “I don’t need to know what the law says, because I see what it does.” Highlighting the importance of the effects of the law above and sometimes even in juxtaposition to its language will further demonstrate the importance of grassroots activism as central, and legislative changes as nice but not crucial.

Things for trans activists to chew on

From this background, Spade questions the mimicry of the GBL rights movement by the trans movement. He specifically suggests that trans justice work within the legal framework should focus on removing paperwork barriers that trans people face to medical care, appropriate ID etc, rather than on naming them in legislation. He further suggests that generalized economic justice work is needed as trans people suffer disproportionately from poverty, and homelessness.

As regards to “hate crimes,” Spade points to the legal system, prisons, police and other elements of “justice” as the overwhelming source of violence against trans folks. (I would be very interested to know his source for this, considering my understanding that numbers about on-trans violence are almost impossible to find. My guess would be that it is based on his experience as an advocate at SRLP.) In this context, he correctly questions the usefulness of engaging with this system as a primary means to liberation, citing the experiences of the Civil Rights movement, who’s experiments with this sort of strategy have borne less than satisfactory results.

I was thinking about this subject a month ago when bill C-389, which would add protections for trans people under the Canada Human Rights Act, and add trans identity to the list of identities protected under “hate crimes” legislation, got more traction. Just like queer identities being protected by such measures, I am deeply skeptical of the actual on-the-ground value of such changes. While I wouldn’t say I opppose laws like this, I don’t know that they are an important place to be putting the very limited resources which are devoted to the elimination of gender trouble in Canada.

For example, it would be nice to know that my gender identity wasn’t going to be a barrier to my obtaining employment. However, with the lack of a militant union movement, existing legislation regarding labour relations, workplace conditions and workers’ well-being (as minimal as it is in its scope) is routinely ignored at all levels. Adding a few sentences here and there to a few documents doesn’t have much power if those documents are ignored on the whole. Furthermore, as noted earlier, Spade identifies the necessity of finding a “perpetrator” who demonstrably, knowingly intends to commit an act of discrimination. Such an individual is rarely identifiable in most cases of difficulty finding work. How could I ever prove that I was not hired because of trans status? Plausible deniability and “innocent until proven guilty” make it almost impossible. Added to that, in rare cases where such grounds are available, redress available through the legal system (cash or unrealistically, forced hiring) are not satisfactory at addressing the root issues—instead they have the maximum effect of helping employers become more savvy at hiding discriminatory practices they may conduct.

Non-profit and middle class leadership vs “trickle up” in social justice movements

Staying on the ball, Spade also mentions the way the non-profit complex gives philanthropists undue say in the direction of social justice movements, because they decide what projects get funding, instead of communities deciding what issues are most important.This idea is more fleshed out in INCITE! Women of Color Against Violence‘s book, The Revolution Will Not Be Funded: Beyond the Non-profit Industrial Complex, which I have not read, but it’s on my reading list. (I tend to de-prioritize reading things that I’m pretty sure I already agree with in favour of reading about issues I’m unsure of.)

Of course the centralizing of non-profits puts people with the most privilage, who have the most access to the skills and resources required to obtain funding (education, socialization and informal social contacts among others) at the center of social movements as professional or staff activists. Spade links this tendency to push privileged people to the center of movements with the prioritizing of issues such as gay marriage over all others. Frankly the apparent importance of gay marriage and to an even larger extent, the whole “gays in the military” over everything else has always puzzled me.

Spade proposes as an alternative a model of “trickle up” social justice works, where the needs of the most oppressed people are dealt with first, on the understanding that the lives all people will be improved by this. This is a brilliant concept, a great simple way of articulating the systemic equivalent of what’s called “anti-oppression” when undertaken individually. “Trickle up” avoids some of the pitfalls of anti-oppression, particularly the annoying moralism, instead asking about what the most effective way to work is, where best to spend our resources, and proposing some general guidelines.

I can’t wait to read his book. Gender Is Compliance: Trans Politics and Law Reform in a Neoliberal Landscape! I pre-ordered it from Amazon. Hopefully not too much Foucault.

Reading list & more research needed

Dean Spade’s Writing

Description of Spade’s book says, “The average lifespan of a transgender person is twenty-three years.” is this true? source?

Who ends up being targeted by hate crimes legislation, and who “benefits” from being the victim? Class/gender/race?

What is the source of the statement that the legal system is the site of most violence against trans people? Such a hard thing to quantify. TDOR?