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11 DEAN SPADE What’s Wrong with Trans Rights? Rights discourse in liberal capitalist culture casts as private potentially political contests about distribution of resources and about relevant parties to decision making. It converts social problems into matters of individualized, dehistoricized injury and entitlement , into matters in which there is no harm if there is no agent and no tangibly violated subject. —Wendy Brown, States of Injury A s the concept of trans rights has gained more currency in the last two decades, a seeming consensus has emerged about which law reforms should be sought to better the lives of trans people.1 Advocates of trans equality have primarily pursued two law-reform interventions: antidiscrimination laws that list gender identity and/or expression as a category of nondiscrimination , and hate-crime laws that include crimes motivated by the gender identity and/or expression of the victim as triggering the application of a jurisdiction ’s hate-crime statute. Organizations like the National Gay and Lesbian Task Force (NGLTF) have supported state and local organizations around the country in legislative campaigns to pass such laws. Thirteen states (California, Colorado, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia currently have laws that include gender identity and/or expression as a category of antidiscrimination, and 108 counties and cities have such laws. NGLTF estimates that 39 percent of people in the United States live in a jurisdiction where such laws are on the books.2 Seven states now have hate-crime laws that include gender identity and/or expression.3 In 2009, a federal law, the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, added gender identity and/or expression to federal hate-crime law. An ongoing battle regarding whether and how gender identity and/or expression will be included in the Employment Non-Discrimination Act (ENDA), a federal law that would prohibit discrimination the basis of sexual orientation, continues to be fought between the conservative national gay and lesbian organization, the Human Rights Campaign (HRC), legislators, and a variety of organizations and activists seeking to push an inclusive bill through Congress. Antidiscrimination bills and What’s Wrong with Trans Rights? 185 hate-crime laws have come to define the idea of “trans rights” in the United States and are presently the most visible efforts made by nonprofit organizations and activists working under this rubric. The logic behind this law-reform strategy is not mysterious. Proponents argue that passing these laws does a number of important things. First, the passage of antidiscrimination laws can create a basis for legal claims against discriminating employers, housing providers, restaurants, hotels, stores, and the like. Trans people’s legal claims when facing exclusion in such contexts have often failed in the past, with courts saying that the exclusion is a legitimate preference on the part of the employer, landlord, or business owner.4 Laws that make gender identity/expression–based exclusion illegal have the potential to influence courts to punish discriminators and to provide certain remedies (e.g., back pay or damages) to injured trans people. There is also a hope that such laws and their enforcement by courts would send a preventative message to potential discriminators, letting them know that such exclusions will not be tolerated; these laws would ultimately increase access to jobs, housing, and other necessities for trans people. Hate-crime laws are promoted under a related logic. Proponents point out that trans people have a very high murder rate and are subject to a great deal of violence.5 In many instances, trans people’s lives are so devalued by police and prosecutors that trans murders are not investigated or trans people’s murderers are given shorter punishments than are typical in murder sentencing. Proponents believe that hate-crime laws will intervene in these situations, making law enforcement take this violence seriously. There is also a symbolic element to the passage of these laws: a statement that trans lives are meaningful, often described by proponents as an assertion that trans people are human. Additionally, proponents of antidiscrimination laws and hate-crime laws argue that the processes of advocating the passage of such laws, including media advocacy representing the lives and concerns of trans people and meetings with legislators to tell them about trans people’s experiences, increase positive trans visibility and advance the struggle for trans equality. The data-collection element of hate-crime statutes , through which certain government agencies...

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