Become a Patreon!

 Abstract

Excerpted From: Marc Spindelman, Queer Black Trans Politics and Constitutional Originalism, 13 ConLawNOW 93 (2022) (87 Footnotes) (Full Document)

LGBTQIA+ communities are still learning how and why to center Black trans lives in their individual and collective politics. These communities are coming to understand the power of saying--as the Black Queer & Intersectional Collective of Columbus, Ohio has explained--“that the liberation of Black LGBTQIA+ people will lead to liberation for all people,” including all LGBTQIA+ people, and that “the freedom of Black queer and trans people cannot exist if another group is oppressed; our liberations are intertwined.” As these understandings take root outside the collectives and collective practices that help produce them, they are yielding cascading transformations in political consciousness that are reshaping what LGBTQ life is and what LGBTQ politics are about.

Here, I seek to think with queer Black trans politics--and in particular, from among their far-ranging commitments, their intersectional understandings and demands to center Black trans lives--about a set of questions nested in federal constitutional law. Nominally, the aim is to reflect on a real-time constitutional situation--driven by the Supreme Court's newly enthroned constitutional originalist project--that has placed the constitutional abortion right first announced in Roe v. Wade and reaffirmed by Planned Parenthood v. Casey on the brink of extinction. Vitally important in its own terms, this extinction is one that many fear (even as some others hope) will lead to LGBTQ constitutional rights and protections likewise being eliminated. The conceptual configuration around this potential one-two punch--played out around what the Court's ruling in Dobbs v. Jackson Women's Health Organization will do to the abortion right and to LGBTQ constitutional rights by implication--expresses conventional forms of legal consciousness and the politics that they have helped inspire. Produced by and within legal outlooks that have traditionally operated in single-axis identity terms, these ways of understanding constitutional developments around Dobbs miss what queer Black trans politics can readily see: The conventional constitutional fields of abortion rights and LGBTQ rights are not wholly distinct, related only in a legal series, but rather are aspects of a larger constitutional law that intersect and cross-inflect one another, and that likewise intersect and cross-inflect the Court's constitutional race equality jurisprudence, itself a jurisprudence of colorblind constitutionalism increasingly organized under the sign of constitutional originalism, that has been turning against pro-Black, including pro-Black trans, and hence LGBTQ, positions for some time.

On one level, these understandings make the work of thinking with queer Black trans politics look like a familiar intersectional intervention. In important ways, it is. The present effort broadly joins calls for moving from traditional forms of legal and political consciousness defined by single-axis identity thinking about race, sex, and LGBTQ identity and rights toward newer and more complex--not to forget, more socially accurate--forms of intersectional thinking about them and how they work. This undertaking is thus aligned with longstanding intersectional praxis pushing to reconceptualize basic outlooks on U.S. constitutional civil rights. Beyond demonstrating some of the transformative possibilities of thinking with queer Black trans politics, however, the argument in these pages also shows that intersectional praxis is making its way into civil rights litigation while also giving shape to conservative resistance to it. On this level, thinking with queer Black trans politics offers opportunities to glimpse how intersectional thinking is functioning, if not by name, as a tool not only supporting, but also opposing, pro-Black intersectional praxis. This opposition has formally begun at times to recast progressive civil rights like abortion and LGBTQ rights in anti-Black terms as means of restricting or clawing them back. Venturing forth from queer Black trans politics' intersectional and centering demands thus draws this creeping anti-Black intersectional practice into focus. It also helps to explain it by exposing moments when queer Black trans people personify the threats to existing race-sex-sexuality-gender-identity orders that so many people, prominently including many social conservatives, fear and oppose.

Building on understandings that emerge from queer Black trans politics, the present work is structured as follows. Part I begins with a pro-Black, queer, and trans-aligned perspective on the Court's race equality jurisprudence--a perspective that opens onto a critical topography of LGBTQ constitutional rights. From there, discussion shifts in Part II to how queer Black trans politics inform analysis in the abortion right setting, focusing on important dimensions of the Dobbs litigation, including how different legal actors imagine Dobbs mapping onto--and thus implicating--LGBTQ constitutional rights. Building on this engagement, Part III then takes up what constitutional originalism looks like from a perspective informed by queer Black trans politics. Here, constitutional originalism appears to be more than a force that has constrained pro-Black politics, and more than a force poised to decimate the constitutional abortion right in Dobbs. Originalism, on this understanding, is also a project that implicates LGBTQ constitutional positions--positions that have been in its sights all along as expressions of constitutional race equality and constitutional abortion rights guarantees. The Conclusion, Part IV, summarizes how a queer Black trans politics-inspired perspective refracts constitutional politics in distinctive ways that reveal some of the powers of insight and foresight that queer Black trans politics possess. Among the many other things they do, queer Black trans politics offer perspectives on, and positions within, LGBTQ politics that LGBTQ communities should seriously engage in the days ahead, as--in the aftermath of Dobbs and anticipating other constitutional originalist transformations-- political and constitutional challenges to LGBTQ rights continue to mount. Queer Black trans politics teach that the security of LGBTQ rights remains largely in LGBTQ people's hands.

[. . .]

As everyone awaits the Court's decision in Dobbs, this much is certain: Queer Black trans politics--significantly themselves politics of precarity built at the de-centered margins of social, including political and legal, life--entail ample resources for generating new angles of vision on how power is organized and deployed, including by the Supreme Court through its originalist project, now plainly on the march. Thinking with queer Black trans politics helps to illuminate some of the ways that pro-Black intersectional thinking is now being met--and reworked--by different legal actors in politically regressive directions through practices of intersectional thinking that, without necessarily using those terms, racially recast progressive rights claims, like claims about abortion and LGBTQ rights, in order to stop or defeat them. Even more, thinking with queer Black trans politics broadly indicates the ongoing need to rethink how constitutional civil rights are conceived. Challenging dominant forms of legal and political consciousness, that work--if not in precisely the same ways as more well-known forms of intersectional praxis that engage constitutional civil rights--may seem to some to be utopian, perhaps pointless, even downright dangerous, given how it may imperil established constitutional civil rights guarantees. Still, the high stepping of the Supreme Court's now-majoritarian originalist project, precisely by circumscribing and eliminating existing civil rights protections, may paradoxically help clear space for the intellectual and legal work of building a constitutional future out of intersectional ideals--including the prospect that intersectionality writ large might hold room center stage for queer Black trans lives.

It is presently difficult to imagine a pro-queer-Black-trans constitutionalism that, as a national consensus position, delivers queer Black trans people the constitutional promises of liberty and equality that they deserve. This is especially true now that so many progressives are expressing a principled skepticism about the Supreme Court's central place within U.S. legal and political life. That the prospects of a Supreme Court-centered constitutionalism will secure the future of queer Black trans liberation are so dim may, in different terms, actually be just fine to some who embrace queer Black trans politics. Queer Black trans collectives, as well as queer Black trans activists and organizers, have variously suggested they are broadly uninterested in entrusting queer Black trans people's welfare and futures to institutional and political governors or other social managers who have, sometimes with the cooperation of “white club” LGBTQ politics, left queer Black trans communities largely to fend for themselves, their security, their lives, and their worlds.

Recognizing queer Black trans politics' illuminating powers--powers that can help to demystify what conventions of legal and political consciousness represent as happening in the current constitutional and political moment--it seems practically wise for LGBTQ communities to give these politics a broad-based and active witness. If, realistically, the time for that witness may not have quite arrived, it soon may--in that moment of urgency and even crisis, if and when Dobbs comes down as expected, threatening the doctrinal foundations of LGBTQ constitutional rights up on the hill, which seem so likely to foment new, on-the-ground political challenges to established LGBTQ rights. Who has missed some of the more prominent anti-trans and anti-gay ways these challenges have already started heating up? As the fire that has been burning in the valley of LGBTQ rights moves up the hill, it may, at last, become clear that queer Black trans politics are in a genealogical line that traces back to the forbearers of today's LGBTQ communities and the forbearers of race and sex equality rights. At the margins and outsides of normative social life, queer Black trans politics have been being forged in distinctively intense fires of oppression that exist in those social locations. These politics can thus withstand that heat as they chart political pathways forward.

Looking ahead to political conflicts within LGBTQ communities whose contours are already possible to discern: As older “white club” LGBTQ politics increasingly experience the temptation to reassert and recenter themselves at the expense of queer Black trans political “freedom-dreaming and visionary world-making,” it will be important to remember that queer Black trans politics require a major flex and deep self-transformation for those inclined to the old LGBTQ political ways. As even some LGBTQ allies who claim solid queer Black trans political credentials have been learning and teaching, these self-transformations are, for many, much easier to think or speak about than to practice and live. The depth of queer Black trans challenges to established “white club” ways of living and doing politics, including identity politics, will, therefore, require repeated reassurances and reminders about what has lately been being gained by efforts that many LGBTQ people and institutions have engaged in, as they have re-centered themselves, their politics, and their identities around pro-trans, and, often separately, around pro-Black LGBTQ politics. The question is whether the comfort and the past successes of the old political ways will again win out over the politics and identities of precarity and location. These politics are hard, but they have queer Black trans liberation--and the liberation of all people--directly in their sights, not as practices of “trickle down” so much as “trickle up” politics.

A palpable sense is afoot within the spaces that queer Black trans politics are building. It suggests that LGBTQ communities--like so many others--are facing critical inflection points that will define the futures and freedoms that people in these communities have or lack. Here is Raquel Willis during the 2020 Brooklyn Liberation March, thinking aloud about Black trans lives that have been needlessly and tragically lost before their time, and about all the Black trans spirits that have passed over, prophesying while declaring the realities and dreams of queer Black trans power: “And the reckoning is here. The reckoning is here, y'all.” The reckoning is here. Then, looking to the future--the future we all now inhabit and the future that has also yet to arrive--Willis asked a question that must now, in some way, be asked again and again: “So when you leave here today, we might be silent today, but tomorrow we're not gonna be silent, right?”

The kind of political reckoning, speech, and action that Willis spoke toward-- the inward-looking and outward-facing reckoning that LGBTQ communities now confront--involves both individual and collective political struggle that must be seen, understood, and acted upon as such. If it is to succeed, gaining all LGBTQ people the kind of liberation that many have yearned for as the animating, multigenerational spirit of hope for LGBTQ communities' transformative politics, this struggle must be undertaken as Chase Strangio said in a loving remembrance honoring Lorena Borjas, “the mother, guardian, hero and healer of the transgender community in Jackson Heights, Queens”: “Every single day, relentlessly.”

Isadore and Ida Topper Professor of Law, Michael E. Moritz College of Law, The Ohio State University.

Become a Patreon!