By Hallel Yadin, Rutgers University-New Brunswick ‘19
While many Americans have accepted a degree of surveillance—the monitoring of citizens in their everyday lives, whether or not they warrant suspicion—in their daily lives, transgender citizens are subject to different degrees of surveillance than non-transgender Americans. This paper will explore four different ways trans people are surveilled or are under threat of becoming surveilled in the United States: in online spaces, medically, through identification documents, and through laws governing restroom usage. The paper will also draw on the work of Michel Foucault, a French philosopher, critic, and social theorist who wrote extensively on how different forms of surveillance maintain power structures. Surveillance can often lead to the erosion of trans people’s rights.
An angle that is often underexamined is “New Media,” specifically dating applications (apps) and websites. Dating apps are immensely popular; over one in five young adults now reports using them.[1] Although these statistics are not broken down by sexual orientation, it is a fair assumption that this growth is reflected in transgender users of dating apps given the historical precedent of queer communities congregating in online spaces.[2] Queer people (which includes trans people) often find community online, since they have nowhere else to go. They also date online for a variety of reasons: avoiding having to come out; a lack of options in “real life”; and the abundance of dating apps specifically for queer men, queer women, and queer people are all reasons. Therefore, there are many trans folks self-identifying as such in dating apps. This can become alarming when placed in the context of broader conversations about Internet security.
A parallel can be drawn to other marginalized communities in online spaces. For instance, hundreds of Silicon Valley engineers pledged to never create a Muslim registry after Donald Trump was elected president of the United States.[3] During the presidential campaign, Trump advocated for a national registry of Muslim citizens, which alarmed many people who drew a connection between that registry and Adolf Hitler’s Jewish registry in Nazi Germany. The pledge demonstrated the industry’s recognition of its potential to engage in targeted surveillance of vulnerable populations. However, as several journalists and writers have subsequently noted, the creation of a registry not necessarily be within the control of individual developers. There are enormous amounts of data on Internet users stored. A Muslim registry would be made of metadata whose security lies in legal limbo. Since transgender people often congregate online, potentially more so than other marginalized groups, it would be a straightforward affair for prominent dating applications such as, say, Tinder to compile information on those transgender users. This is a worthwhile concern when considering digital privacy overall.
Another way transgender people are constantly surveilled is in medicine and psychiatry.[4] Medical and psychological practitioners often demand proof that someone is “truly” transgender before allowing them access to treatment and transition procedures they require. The transgender experience is often defined as a straightforward female-to-male or male-to-female transition, despite the fact that people’s identities may be more complex. Therefore, this medical gatekeeping can deny people necessary care. For example, transgender activist Dean Spade had a complex history with what we would now call gender dysphoria[5] and found that many therapists, whose letters he needed to obtain surgery, dismissed his experience because he did not fit into a fairly rigid definition of “transsexual.” He writes, “To [a] counselor, my failure to conform to the transsexuality he was expecting required my immediate expulsion from that world of meaning at any cost. My desire couldn’t be for SRS [sex reassignment surgery] because I wasn’t a transsexual, so it must be for cosmetic surgery, something normal people get.” This form of surveillance can lead to the denial of care for transgender people.
The impacts of these practices go beyond individual patients’ experiences. Toby Beauchamp, a professor of women’s and gender studies at the University of Illinois at Urbana-Champaign, writes, “Two major forms of surveillance operate through medical and psychiatric institutions: first, the monitoring of individuals in terms of their ability to conform to a particular medicalized understanding of transgender identity; and second, the expectation that medical transition should enable those individuals to withstand any scrutiny that would reveal their transgender status. These forms of surveillance also reach beyond medical contexts to influence law, policy, and social relations.”[6] The medical establishment is trusted, and its parameters for providing care are used to shape policy and public opinion. When that establishment surveils transgender people’s transitions, it can leave those who do not have a “standard” trans experience behind. This supports a Foucauldian argument that although states have powerful surveillance systems, their most powerful tool in their citizens who surveil each other. Foucault gives the example of students in a classroom ostracizing a child who misbehaves, thereby eliminating the need for the child to receive a formal punishment from their teacher.[7] Citizens often police each other in the same way. Although there is no law or decree that physicians and psychiatrists require their patients to remain in narrow gender roles, they do anyway. While transgender adults are not comparable to misbehaving children, the mechanism is similar. As Dean Spade writes, “Foucault’s view of governance and discipline as a mesh of power relations that increasingly insinuate themselves, in capitally fashion, into ever-more intimate aspects of life.” Medical and psychiatric gatekeeping is a form of surveillance imposed upon trans bodies by private citizens, not actors of the state.
Furthermore, the American government surveils trans bodies—and, indeed, its entire population—through identity documents like driver’s licenses, passports, and birth certificates. Identity documents can be a fraught element of a person’s gender transition. Depending on the state, there can be many obstacles to changing the gender on your legal identification, including proof of surgery and court orders. These barriers can be impossibly costly: surgery, for example, costs tens of thousands of dollars and is rarely covered by insurance. Only 21% of trans people who have transitioned report updating all their identity documents, and 33% report updating no identity documents whatsoever.[8]
This inaccessible form of state surveillance can negatively impact trans people’s lives. For example, the Social Security Administration still “gender matches,” which is when employers run background checks on potential employees, thereby disclosing people’s transgender status. If one’s gender in the Social Security database does not match their gender, Social Security sends the person running the background check a letter. Although the Social Security Administration has stopped gender matching for private employers, it still does gender matching for public employees, and many people have consequently lost jobs.[9] Furthermore, having inconsistent documentation—say, a driver’s license with one gender and a passport with another—creates hurdles in people’s daily lives whenever they encounter government bureaucracy. Plus, it can “out” folks when they do not want to be ousted. These are just a few ways that having inconsistent or inaccurate identity documents can complicate or diminish the quality of daily life, and it is a fact of life for many transgender Americans.
Finally, surveillance of transgender Americans occurs through the restriction of public accommodations, particularly restrooms. For example, laws that would require students to use bathrooms that match their gender assigned at birth have been proposed in South Dakota and Virginia. These laws would necessitate surveillance of transgender students using the restroom, as the only way to verify one’s gender assigned at birth is state documentation. They are also designed to deny trans students access to bathrooms, which are public accommodations, as many trans people are uncomfortable using the bathroom of the gender they were assigned at birth.
Currently, these rarely pass in states. The law proposed in South Dakota was vetoed by Governor Dennis Daugaard.[10] The Virginia law did not pass either,[11] and a few state-level cases have been decided allowing transgender students to use the restrooms of their choice: Doe v. Regional School Unit 26 (Maine) and Mathis. V. Fountain-Fort Carson School District 8 (Colorado).[12] Both cases were decided on the basis of state-specific statues. Even North Carolina’s highly-publicized “bathroom bill” had portions repealed.[13] However, the status of protections at the federal level is ambiguous. Recently the case of a teenage boy named Gavin Grimm made national headlines. Grimm is a transgender boy whose Virginia high school did not allow him to use the boys’ restroom at school. The case was meant to go the Supreme Court after the United States Court of Appeals[14] for the Fourth Circuit supported the high school’s decision; however, on March 6, 2017, the Supreme Court announced that it would not take the case and there would be no ruling. This occurred after the Trump administration withdrew certain protections for trans students, including the right to use restrooms that match their gender identities.[15]
Grimm announced in July 2017 that the case would return to the Court of Appeals, where the Court will consider whether Grimm’s lawsuit should be dismissed as he is no longer a student because he graduated and therefore is no longer receiving injury. The Court will also rule on whether Grimm can sue for sex discrimination under Title IX of the Education Amendments of 1972, which stipulates gender equity in federally-funded schools.[16] Therefore, as of this writing in August 2017, Grimm’s high school’s decision is supported by the law and it is uncertain if Grimm has any recourse. If this Virginia law is supported and leads to similar laws being enacted more broadly, transgender people will unavoidably be surveilled, and the results of that surveillance will be to deny them access to public spaces.
Transgender people face scrutiny in online spaces, from the medical community, in their identity documents, and in public bathrooms, leading to the denial of services like accurate identification documentation to public restroom use. This surveillance follows patterns that Michel Foucault described when discussing how surveillance maintains the status quo at the expense of marginalized groups. Transgender people are historically a particularly vulnerable population, and the increased possibility of surveillance should be a pressing concern, especially as laws that repeal the rights of transgender citizens gain traction within the federal government.
[1] Aaron Smith and Monica Anderson, “5 facts about online dating,” Pew Research Center, 2 Feb. 2016, http://www.pewresearch.org/fact-tank/2016/02/29/5-facts-about-online-dating/.
[2] Bryce J. Renninger, “‘Where I can be myself … where I can speak my mind” : Networked counterpublics in a polymedia environment,” New Media and Society, 17, issue 9 (2015), accessed August 10, 2017, http://journals.sagepub.com/doi/abs/10.1177/1461444814530095.
[3] “Our pledge,” neveragain.tech, 2016.
[4] Dean Spade, “Mutilating Gender,” in The Transgender Studies Reader, ed. Susan Stryker and Stephen Whittle (New York: Routledge, 2006), 315-332.
[5] Gender dysphoria is distress caused by one’s body not reflecting their gender.
[6] Toby Beauchamp, “Surveillance,” Transgender Studies Quarterly, 1, no. 1-2 (2014): 208-210, accessed August 10, 2017, http://tsq.dukejournals.org/content/1/1-2/208.full#ref-3.
[7] Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (London: Alan Lane, Penguin, 1977).
[8] “Identity Documents & Privacy,” Trans Equality, http://www.transequality.org/issues/identity-documents-privacy.
[9] “FAQ About Identity Documents,” Lambda Legal, https://www.lambdalegal.org/know-your-rights/article/trans-identity-document-faq.
[10] Jessica Glenza, “South Dakota ‘genital check bill’ vetoed after outcry from transgender supporters,” The Guardian, March 1 2016, https://www.theguardian.com/us-news/2016/mar/01/south-dakota-genital-check-bill-vetoed-trangender-bathrooms.
[11] Graham Moomaw, “Bill to force transgender students to use bathroom of biological sex dies in House committee,” Richmond Times-Dispatch, Feb. 9, 2016, http://www.richmond.com/news/virginia/government-politics/bill-to-force-transgender-students-to-use-bathroom-of-biological/article_ce51251b-0420-5973-b793-f68be631a7a4.html.
[12] “Public Accommodations,” Transgender Law Center, accessed August 10, 2017, https://transgenderlawcenter.org/legal/public-accommodations.
[13] Camila Domonoske and James Doubek, “North Carolina Repeals Portions of Controversial ‘Bathroom Bill,’” National Public Radio, March 30, 2017, http://www.npr.org/sections/thetwo-way/2017/03/30/522009335/north-carolina-lawmakers-governor-announce-compromise-to-repeal-bathroom-bill.
[14] The Court of Appeals decides appeals for district courts.
[15] Adam Liptak, “Supreme Court Won’t Hear Major Case on Transgender Rights,” The New York Times, March 6, 2017, https://www.nytimes.com/2017/03/06/us/politics/supreme-court-transgender-rights-case.html.
[16] Dawn Ennis, “Gavin Grimm will finally have his day in court,” LGBTQ Nation, July 5, 2017, https://www.lgbtqnation.com/2017/07/gavin-grimm-will-finally-day-court/.
