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Excerpted From: William B. Heberling, Stop Surveilling My Genre!: On the Biometric Surveillance of (Black Trans) People, 20 Seattle Journal for Social Justice 861 (Spring, 2022) (254 Footnotes) (Full Document)


WilliamBHeberlingBlack trans people exist and should not be erased by an anti-black and transphobic system of government. We are in your communities living resiliently. We desire. For many of us, we simply want to live a life of peace and joy. In other cases, we are just as ambitious as the most ambitious people you know. We are going through things that are at the same time extremely similar to you and extremely different. Our lives matter.

I was legally adopted in December 2020, which, for me, included a significant name change. I had not felt aligned with the gendered expectations of my former name for years before my adoption, but had not necessarily felt dysphoria toward it either. I feared the consequences that such a significant name change might have on my life, knowing that I had already had countless experiences with TSA pat downs due to my Black and nonbinary status and having been engaging in this research project for some time, all at the height of the coronavirus pandemic. As I have navigated updating government documents and the like, the work that I have produced here feels like an intervention that is directly necessary for my survival. Despite having an extremely fluid and ever-changing gender identity, I notice my gender constantly monitored by state institutions, for reasons that have yet to prove any relevance for how I live my life, while this monitoring simultaneously demands that I be and remain in one rigid, easily identifiable category at all times. Beyond that, I was summoned into government offices where other people in closely overlapping positions were allowed to have their needs met without the added risk that accompanied social contact. The likelihood that there will be more pandemics in the years to come makes the dangerous consequences of our current regime of surveillance on my life that much more obvious. Thus, I have spent copious time contemplating what I want for myself and how to bring such a world into being.

This paper is the result of a yearlong attempt to read critical texts alongside my legal education. I found myself drawn to the texts of celebrated Jamaican scholar Sylvia Wynter, whose scholarship focuses on Black Studies, because in law school, we often glaze over the social beliefs that guide the production and maintenance of laws, as though they were naturally occurring and not socially and politically constructed. I am fascinated by the way Wynter has described Man as “law-likely,” adhering to a set of prescribed, though narratively invented, impetuses. Wynter's use of the phrase “law-like” condenses concepts many lawyers will find familiar, such as prescription, legislation, and judgment; and that judgment also involves understanding how certain genres or epistemes appear to be more law-like than others, and thereby how being human is indeed a praxis. From my studies, I determined to write a text that thinks jurisprudentially--that is, scientifically--about the way that law functions as a repository of codified beliefs that cluster and bear witness to broader connections between privacy, the law, and power. To understand these connections, I needed to embrace thinking across disciplines. Thus, the work below moves between, through, and around a multiplicity of knowledge bases. The guide quotes are intended to introduce and orient the reader to the text in ways that legal analysis alone cannot. Indeed, they embody the motion inherent in transforming theory into practice. Accordingly, I hope they allow you to join me in “the difficult labor of thinking the world anew.”

This comment will provide an analytical framework to correct an unjust system of lawmaking that continues to romanticize the ongoing traumas Black trans people experience. This framework is one that refuses the ongoing violence of colonization while remaining attuned to the lived experiences of Black trans people. Specifically, I develop a conceptual framework that must be used when considering acts related to identity and the surveilling of bodies. I then apply this framework to the REAL ID Act (“the Act”) and proposed reforms to it as an example of how my framework might operate in praxis. In applying this framework to the REAL ID Act's mandate that states gather gender information on identification cards and the broader regime of state surveillance and securitization, I will make explicit the consequences of our current system on Black trans vitality. I focus on the collection of gender markers because the forced categorization interpolates Black trans people into an enactment of being human that necessarily fractures any sense of self-recognition. I have chosen to talk explicitly about the experience of Black trans people because in many ways we live under a binary racial system where people are Black or nonblack. This does not mean that we cannot account for the individual experiences of various racial and ethnic identities--in fact, Wynter's work does this well through a relational analysis--but rather that Black experience is seen as a floor of sorts; as argued by the second guide quote, the institution of slavery has determined how humanity is defined, and all other identities function by comparing their experience to that of the slave position.

Surveillance technologies are largely unregulated by federal laws, even though many are just as destructive as weapons of mass destruction. In many cases, federal, state, and municipal governments extract data from their residents in ways that are dangerously unknown to the general public. This lack of regulation is intimately tied up with and symptomatic of our present social order's desire to surveil certain bodies in order to preserve the genre of Man as eugenically preferred.

Moreover, I am interested in the REAL ID Act because it marks a shift in the United States that required all persons receiving an Identification Document card to submit to a universal biometric data collecting regime. The Act sought to increase national counterterrorism efforts by standardizing the biometric data collected by state licensing departments across the United States. The Act's widespread mandate, although connected to historical patterns of surveillance against Black bodies, was also a fundamentally different way of tracking people. It has given way to the explosion of new and more deeply invasive forms of technology. In effect, it has sanctioned a new wave of privatized security, wherein corporations who are unaccountable to the surveilled are developing and storing data in ways that outpace that of the federal government. The Act's emphasis on collecting biometric facial recognition has led companies like Target, Facebook, Amazon, and more to race toward developing the best biometric technologies in order to secure the corporate sustainability that is guaranteed by government funding. Thus, this comment does not think of these corporations as discrete from the federal government, but rather, as institutions working together to form overall state interests. Frighteningly, some artificial intelligence skeptics have gone as far as to warn the public that algorithms created by these companies might soon be making government decisions. Given that we know that many of these biometric surveillance technologies rely on racist, sexist, and anti-poverty artificial intelligence algorithms, this regime poses a deep threat to Black trans people. As such, my paper must also focus on the overall norm/mode(l)/genre of surveillance the REAL ID Act is situated within.

Ultimately, the REAL ID Act is just one concrete example of the federal government's desire to monitor and police colonized bodies endlessly through systems of surveillance. These systems of surveillance often trap people of Black trans experience into the archipelagos of poverty, social death, and carcerality. Absent an intervention in the underlying ideologies that produce these regimes of surveillance, we are headed toward a world of surveillance that can track individuals across the globe through DNA is surely a world foreclosed to Black trans vitality. Because the central modality of this source of harm involves the military industrial complex and the prison industrial complex, we must leverage interdisciplinary methods to challenge the (un)conscious codes of symbolic life/death that form the seemingly invisible conviction that biometric surveillance keeps us safe. These methods of challenge will require that we think of surveillance as a poverty-hunger-habitat-energy-trade-population-atmosphere-waste-resource problem that stems from the genre of Man and its overrepresentation and that cannot be solved in isolation.

Section II will address background information to understand how our current framework positions Black trans people as sites of vulnerability before turning to an overview of the Act. Section III will introduce a theoretical framework proposed by Sylvia Wynter, inter alia, that will guide my treatment of the policy discussions in the rest of this comment. Section III.B will then explore how regimes of surveillance are always already antiblack technologies that render our lives subhuman, before closing with an examination of the ways that traditional modes of policymaking have failed to address these concerns. Section IV, relying on the frameworks discussed in Section III, will challenge current policy proposals to change the Act by exploring how they ultimately reproduce Black trans people as dysgenically chosen for damnation. Finally, Section V will attempt to grapple with these challenges by proposing a new mode of changemaking for Black trans people that recognizes our collective power to enact new ways of being that do not rely on the aspects of our present social order that continue to (re)produce the surveillance of our bodies.

My comment demands an answer to the question of who we are and how to best express our values. Like the Black feminist ancestors who formed the Combahee River Collective, I believe freedom, autonomy, and self-determination for Black trans people will necessitate freedom from all oppressions. These themes will reoccur frequently throughout this paper. I hope that my intervention here will enable us to find new relational ways of being that move us “onto the possibility ... of our fully realized autonomy of feelings, thoughts, behaviors.” Perhaps then and only then we might be able to “work toward new iterations of livability and inhabitability of this planet.”

[. . .]

Ultimately, the above strategies fail because they rely on status quo understandings of humanity--that is, one that leaves the genre of Man as a stand in for all human experience. Instead, we might take the challenge this comment posits as an opportunity to sit at home in those genres of being that reside in moments of critique. Through Wynter's concept of sociogeny, we can enact new and relational ways of being that allow us to reframe our subjective understanding of the processes of racialization that produce gender as knowable and fixed. This will require new cognitive mappings about our relationship to the earth and the very constitutive terms by which we think of ourselves as individuated selves--a deconstruction of the notion of self-possession and its fiction of non-dependence--and the genre of Man.

Here, I want to remind legal communities that “it's okay not to have this prescriptive list of what it will look like, right, because we have to collectively build it together. And at any given time, there are so many things sitting on our imaginations, which make it kind of impossible to see through what we have now.”

This paper has attempted to trace the archipelagos of surveillance present in the REAL ID Act and its proposed reforms in the hopes that my analysis might also help us to think through even the most mundane choices. This requires us to work to undo the socialization we have received from the initiation systems of traditional societies, such as the kinds of learning we often receive in legal communities, which is designed to reproduce the order of society. We might be able to trace the histories of corporations profiting off the development of surveillance technology, as Angela Davis and others have recorded, and recognize the transformation of those same companies into the Targets and Amazons of today, who cooperate with police to criminalize poverty.

Whatever we do, it must “[d]isrupt the everyday social order.” This requires that we abandon normative concepts of safety and deservedness, which tell us that “some people deserve to have a claim to a liveable life, have a claim to a family, a safe place to be, care, and others deserve to be disappeared by the state.”

We might begin to think of justice and accountability as contextual, we can craft processes that specifically speak to the suffering of whole communities, and we can speak to the suffering of individuals. When we come to terms with the fact that some people can live only because other people die, we can start to push ourselves to develop new ways of protecting our communities. On a practical level, if we look through the lens of Black trans experience, we know that communities can thrive without aid from state institutions. For example, the Combahee River Collective distributed care packages that included materials on self-defense, ways of protecting each other, and ways to combat violence that did not hinge on a kind of politics of rescue but rather a kind of nurturing self-sufficiency.

Now, what was really interesting to see, when these spaces were occupied was what grew up around them. There were educational classes for kids. There was political education, there was amazing artwork. There was food being served to everyone who came. There were history lessons, amazing sculptures. So all of this is something which is not only very inspiring, but possibly a blueprint and something which we should be learning from.

These stories remind us of what is possible when we move outside of biocentric models of humanity.

Ultimately, it takes a massive investment in restorative processes to correct for massive acts of violence. Only a radical disinvestment away from status quo reforms could begin to prevent us from dragging the bad decisions of the past into the future.

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