• Leon Laidlaw

Trans Representation and the Criminological Implications

While gender variance can be traced back to ancient civilizations (Califia, 1997), transgender individuals – those who do not identify with, or express, the cultural traits, norms, and behaviours typically associated with the sex they were assigned at birth – tend to be conceptualized as fraudulent or deceptive (Bettcher, 2014). As will be demonstrated, this deceiver representation has serious implications for the trans population. When engaging with the criminal justice system, trans individuals are viewed as subjects of suspicion.

Embedded in the very structures of Western society is a hegemonic assumption that all individuals are content with the gender they were assigned at birth (Serano, 2007). This cisnormative assumption reinforces rigid cultural norms associated with men and women and fosters the invisibilization of the transgender population. Whether in the social sphere or foundational to institutional policies and procedures, transgender individuals encounter oppression. Cisgenderism, also called cissexism (Serano, 2007), refers to trans oppression based on the belief that trans identities are pathological or less natural than, or are inferior to, cisgender identities (Gavriel Ansara & Berger, 2016; Lennon & Mistler, 2014). Indeed, trans identities are highly suspect, likely reinforced by biological determinism – the view that sex is biological, from which gender is a derivative (Nicholson, 1999). As a result, a form of transphobia can manifest, predicated on the belief that sex constitutes reality, whereas gender is a mere appearance (Bettcher, 2014). This unique form of transphobia grounds the conceptualization of trans individuals as deceptive (Bettcher, 2014; Bettcher, 2007).

Normative assumptions foundational to criminal justice policy and procedure overlook the needs of the transgender population, who are at heightened risk of engaging with the system. Frequently, trans people are captured by the system through their engagement in criminalized industries, such as sex work or the drug trade (Grant et al., 2011), following discrimination in the mainstream job market (Bauer et al., 2011; Badgett et al., 2007). Arising from law enforcement’s tendency to stereotype and profile transgender people as criminals (Nadal, Skolnik, & Wong, 2012), the trans community is subject to heightened surveillance, increasing their likelihood of being drawn into the system for petty offences, such as public nuisances or loitering (Amnesty International, 2005; Minter & Daley, 2003).

In the US context, for example, you may get charged with ‘peeing while trans’ (Jacobs, 2015). Legislation prohibiting trans people from using the bathroom that aligns with their gender identity or expression, colloquially referred to as ‘Bathrooms Bills’, have sparked significant debate in recent years. The fear-mongering myth of the predator ‘man dressed as a woman’ in order to victimize ‘real women’ reinforces such discriminatory laws. Amidst this dialogue, trans women are not only denied their identities as real women, but are likened to predators and pedophiles, much like the mid-20th century representation of homosexuals.

Alongside blatantly discriminatory laws, this deceiver representation resonates throughout the system. Whether it is accusations of fraud because they do not reflect their legal name and sex (Minter & Daley, 2003), or being subject to humiliating and dehumanizing frisks or strip searches in order to ‘verify’ gender (Sylvia Rivera Law Project, 2007; Daley, Kugler, & Hirschman, 2000), those working within the system view trans individuals as subjects of suspicion. Both the failure to implement inclusive policy (Buist & Stone, 2014; Nadal, Skolnik & Wong 2012) and provide standard training on trans issues (Miles-Johnson, 2016) reveals the systemic nature of trans oppression and discrimination. Because of cisnormative assumption, trans identities are only visible upon identification; in doing so, experiences of transphobic harassment and discrimination (Woods et al., 2013; Minter & Daley, 2003), and in most severe cases, physical and sexual violence (Grant et al., 2011; Stotzer, 2014), often ensue at the hands of police.

The fact is, the trans population, especially female-identified trans persons and trans people of colour, are among the most marginalized and vulnerable populations in Western societies. In light of stigma and social rejection (Miller & Grollman, 2015; Erich et al., 2010) and an increase in hate crimes and violence (National Coalition of Anti-Violence Programs, 2015; The SF LGBT Center, 2015) against trans persons in recent years, protection of the community is imperative. Nevertheless, as few as 1-in-10 crimes are reported to police (Testa et al., 2012) and this underreporting is often attributed to a fear of secondary victimization (Xavier et al., 2004) or a lack of police response (Graham, 2014; Woods et al., 2013). In some cases, police simply do not believe reports of victimization because they feel deceived, or lied to, because of their gender presentation (Buist & Stone, 2014; Minter & Daley, 2003). Indeed, cisgenderism and transphobia enables violence against the trans community (Bauer & Scheim, 2015; Lennon & Mistler, 2014), yet experiences of victimization are overshadowed by their conceptualization as untrustworthy, criminal subjects.

While cisnormativity erases trans identities, institutional policies and procedures reliant on the gender binary oppress gender variant individuals and transphobia fuels maltreatment from those working within the system. In order to depart from the deceiver conceptualization that generates these systemic harms, trans identities should no longer be viewed as fictitious; but rather, as valid as cisgender identities. As Butler (1990) reminds us, “Genders can be neither true nor false, neither real nor apparent, neither original nor derived” (p. 180). What is warranted is mere acceptance and inclusion within the system in order to help alleviate trans discrimination and afford the population their legal rights and protections.

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