Abstract
Excerpted From: T. Anansi Wilson, Black, Trans(gressive) Lives: Furtive Blackness & the Surround of Extralegal Violence, 26 Georgetown Journal of Gender and the Law 1223 (2025) (375 Footnotes) (Full Document)
“If slavery persists as an issue in the political life of black America, it is not because of an antiquarian obsession with bygone days or the burden of a too-long memory, but because black lives are still imperiled and devalued by a racial calculus and a political arithmetic that were entrenched centuries ago. This is the afterlife of slavery--skewed life chances, limited access to health and education, premature death, incarceration, and impoverishment.” --Saidiya V. Hartman, Lose Your Mother: A Journey Along the Atlantic Slave Route
“After the Egyptian and Indian, the Greek and Roman, the Teuton and Mongolian, the Negro is a sort of seventh son, born with a veil, and gifted with second-sight in this American world, -- a world which yields him no true self-consciousness, but only lets him see himself through the revelation of the other world. It is a peculiar sensation, this double-consciousness, this sense of always looking at one's self through the eyes of others, of measuring one's soul by the tape of a world that looks on in amused contempt and pity. One ever feels his two-ness, -- an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body, whose dogged strength alone keeps it from being torn asunder.” (1997 [1903]: 38) [This passage henceforth referred to as the “Strivings” text. --W.E.B. DuBois
“History isn't something you look back at and say it was inevitable, it happens because people make decisions that are sometimes very impulsive and of the moment, but those moments are cumulative realities.” “We are fighting for our lives.” --Marsha P. Johnson, BlaQueer NonBinary Activist & Leader of Stonewall Riots
The wider society is still replete with overwhelmingly white neighborhoods, restaurants, schools, universities, workplaces, churches and other associations, courthouses, and cemeteries, a situation that reinforces a normative sensibility in settings in which black people are typically absent, not expected, or marginalized when present. In turn, blacks often refer to such settings colloquially as “the white space.” --Elijah Anderson
When writing articles for law journals, I often find myself in a bit of a panic. No, not panic in the sense that I am overwhelmed with erratic thoughts nor a “sudden or overpowering fright” in the sense of the noun; though that is not a totally dissimilar experience. Instead, my experience is more aptly described by the classic understandings of the adjective form “of, relating to, or resembling the mental or emotional state believed induced by the god Pan” and/or “of or relating to the god Pan.” Pan, the Greek deity, was said to possess a stentorian voice resembling that of the heralds of Olympus. As the lore goes, when the ancient Greek gods were in battle against a legion of giants; it was the loud and overwhelming shout of Pan that instilled fear in the giants and enabled the victory of the old gods. While I do not consider myself a deity--and it may seem exceptionally queer to cite Greek mythology in a paper portending to center BlaQueer Trans folks--this is neither an exaltation of mythology nor the rote academic performance of narcissistic grandeur.
The shout of Pan, and the attending feeling or state of mind that it allegedly resulted in, is not dissimilar from the plight of the BlaQueer person in law, legal academia, or society. This witnessing of fright, tantamount to the double consciousness referenced above by DuBois--and the recognition of such--is instead less illustrative of internal dilemma, disorder, or a diagnosis arising from the DSM and wantonly applied to Black and BlaQueer and Trans people, but instead yet another piece of embodied evidence of both the ways in which the body keeps score and in internal accounting of the ordering and disordering of Black and BlaQueer life and death. The voice of the god Pan was an announcement of his presence both received and reinterpreted as a cause for fear, a signal of the unraveling of the preferred order of the recipient, and above all an existential threat that required extraordinary fight or flight.
The panic I experience in writing this piece, or any law review article or essay, is both rote and unique. It is rote insofar as it has become a familiar, if unwelcome, feature of scholarship about Black and BlaQueer living and dying. It is unique because it is a burden only affixed to those both fluent in the methods of sociolegal death-dealing and the ontological violence of the semiotics of law, legal reasoning, and its attendant academic norms. Writing in these mediums about issues concerning the ways in which Black and BlaQueer people live and die, or lived and are killed, requires the writer to sit with the weight of unending death and the illusory, but precedential, promise of justice. Put differently, the ways in which law orders and disorders the way Black and BlaQueer people live and die--and the impossibility of creating a cognizable grammar of redress or route to justice--is reflective of both the current social order and the afterlives of slavery. This panic, for me, operates as both a sociopolitical navigational tool for mapping power and an analytic tool for understanding how precedents and other sociolegal logics of antiBlackness and queerphobia operate together to render Black and BlaQueer people furtive and thereby in and outside of law. We, and by extension our arguments, are seen as inherently furtive and strictly scrutinized as if our livelihoods cannot possibly be understood as a compelling interest, entitled to intellectual, social, or legal redress. We are rendered inside of the law, insofar as we are always, already reachable by its disciplinary arm but consistently outside of the reach of the protective powers of jurisprudence. The panic here then, is not illogical, but instead the embodiment and experience of a lived and inherited logic--not dissimilar from what DuBois called “double consciousness”--that allows and requires me to not only consider what I'm writing and arguing, but to also anticipate how my arguments, if not my very presence and daring in the academy, will be taken up through precedential logics of antiBlackness and queerphobia in White space. Scholars such as L. Bennet Caper and Renee Nicole Allen have done a great deal of work to expand and explicate the notion of White space, the status of a social life and calculus that is determined by the norms, desires, fears, and logics of white folks as determinative and dispositive. In other words, panic here is the experience of confronting and working through the question of “And what of the B[LACK] [and BlaQueer] in Black letter law?” while also contending with the reality that Black and BlaQueer people are strictly scrutinized, via a legal and social inversion of the Fourteenth Amendment and jurisprudential constraints on government intrusion on protected classes and fundamental rights, all while being on the run for/of our lives. It is from this state of panic, knowing and anticipation that this essay arises.
In beginning my research on this topic, I was astounded to see how little work had been done on the issues surrounding Black Trans Youth and the law. What little I found concerned two things: 1) methods and manners of Black Trans Death and 2) the onslaught of laws that facilitate and give symbolic incentives and permission for legal, social, policy, economic and physical violence. These stories, these lives, the lives of Black trans youth, however, do not begin at the tomb, despite it being the unrivaled and primary space of consideration for Black trans life. Black trans life must be understood, like all of Black life, as more than mere matter or cannon fodder for the next culture or battle for the retention and accumulation of power and this consideration and regard should not require the perfect trans person. In articulating the formulation of the fundamental right to marry, Justice Kennedy reminds of the sacrosanct right to human dignity. This right, regard and call to human decency should not and must not require perfection. To require perfection, excellence or contrived performances of our desired understandings of humanity, in order to situate BlaQueer and Trans people as deserving of life, is to further situate them outside of the category of the human, the citizen and those deserving of regard. As Zakiyya Iman Jackson--Associate Professor of Literature at Duke University--has often said: “Black excellence is the wrong answer to a racist question.” The right question is, “how has our socio-legal construction of the public and private spheres impacted the way BlaQueer and Trans people live and die?” This essay is a first attempt at, and an invitation, to answer it.
All too often, when speaking of Black trans people--if they are spoken of at all --the conversations begin with debates, discussions and pleadings concerning what trans people “deserve.” This is true for those of us who practice care work, as well as those dripping with studied malice. This is, of course, if the presumption and prescription of the category of personhood is present at all; evidencing a universal skepticism of Black trans humanity. In sum, beginning with or having a discussion, on the basis of deservability belies and gives evidence to the reality of a shared logic that has created a built social, legal, political, libidinal, erotic, and economic reality that marks BlaQueer and trans life as excess, debt and simultaneously too little of a good thing and far, far too much of a bad thing that is commonly understood as a contagious, infectious condition or state of being. In her groundbreaking work, In The Wake: On Blackness and Being, Christina Sharpe pushes those considering Black living and dying to theorize and act from “the modalities of Black lives lived, in, as, under, despite Black death” into the ways that ““Black life and Black suffering.” The quote below enables us to imagine another way of encountering BlaQueer and trans life as well, as they too, exist in the wake; and it provides an apt articulation of the intent and genealogy of this essay.
I want In the Wake to declare that we are Black peoples in the wake with no state or nation to protect us, with no citizenship bound to be respected, and to position us in the modalities of Black life lived in, as, under, despite Black death: to think and be and act from there. It is my particular hope that the praxis of the wake and wake work, the theory and performance of the wake and wake work, as modes of attending to Black life and Black suffering, are imagined and performed here with enough specificity to attend to the direness of the multiple and overlapping presents that we face; it is also my hope that the praxis of the wake and wake work might have enough capaciousness to travel and do work that I have not here been able to imagine or anticipate.
In this essay, I posit the practice of descriptive analysis and critical, theoretical engagement as a type of “wake work” and “care work.” As Sharpe puts it, in In The Wake: On Blackness and Being, “that to be in the wake is to occupy and to be occupied by the continuous and changing present of slavery's as yet unresolved unfolding.” This articulation of the wake is specifically concerned with “ongoing state-sanctioned legal and extralegal murders of Black people” and foundational to the articulation is the notion of Black death is foundational to the American project, especially citizenship and that antiBlackness is embedded in the apparatus of American democracy. In their review of this groundbreaking text, L.G. Fournier posits ““thinking” itself as a type of care and underscores the “autotheoretical” genre and methodology as one that is particularly generative for ways of understanding the way antiBlackness shapes our world, especially for non-Black peoples who lack our lived experiences. Indeed, noting the interventions of Black scholars and artists using autotheoretical methods she writes “from Claudia Rankine's description of 'the condition of Black life’ as “one of mourning' in a 2015 New York Times article, to Achille Mbembe's “necropolitics,' which begins where Michel Foucault's 'biopolitics' falls short” she highlights the ways Black scholars and artists have long explicated the ways that suffering has been uniquely fastened to Black life, with the spectre of death always in plain view. The mention of Mbembe, in relationship to Foucault, is particularly illustrative of the importance of situating scholarship about Black people, within the realities of Black lived experiences, rather than mere traditional, rote frameworks. The specificity of the Black experience with domination demands more; Mbembe's intervention with necropolitics necessarily moves beyond Foucault, to mark not only how states wield sociopolitical power to control life; but more immediately for Black folks, how this power is used to order death. Importantly, she notes, “Death, grief, and mourning are always a part of life, but they take on different valence in relation to Blackness, which the contributions of thinkers like Mbembe and, now, Sharpe, show. Wake work keeps that death-in-life ever in view.” This essay is a continuation of that tradition and an invitation to legal scholars and practitioners to think differently about the role that law--particularly the presumptions and social precedents that undergird it--plays in sustaining and extinguishing BlaQueer, and specifically trans, life. This is an invitation, if not a demand, to produce work that keeps “death-in-life” ever in view.
The policing power, central to U.S. statecraft, that animates and powers racial formation and dislocation in the United States is a legal power that is also extralegal, sociocultural and intramural. [ ... ]To be simultaneously Black and Queer--BlaQueer--and alive, is to be necessarily furtive. It is to move, indeed, to live, without leave. Without permission. It is to be seen and (mis)understood as being in flight from one's duty to perform the labors and languages of compulsory heterosexuality--in Blackor what Christina Sharpe calls “racialsexualgender.” In other words, we evade the compulsory performances of normative racialsexualgender in ways that are marked as both fugitive and furtive. We flee the things that are not true of our desires, that do not emanate from our own pleasures, erotics and predilections; and we evade the gaze that might uncover these resistances and respond with its terror, because we know that to assert our desires is to be marked as furtive, as justifiably disappeared, lashed or otherwise violated. To be BlaQueer then, is to be furtive in plain sight. Furtivity is a BlaQueer theory--a BlaQueer gaze, analytic and embodied politic--that provides an important intervention to, and a connective tissue among, the fields of law, Black Studies, Black Queer Theory and Black Feminist Theory.
This essay does not follow the traditional format of legal scholarship; because the topic and the people it concerns--Black and BlaQueer people and our experiences writ large--are not traditional concerns of legal academia. This is not a defiant essay; but merely one that defies the White norm of manners, or “the method of performance, or embodiment of servitude, that bends Black appearance [ ... ] and personhood to the will and desires of the white gaze” in order to give accurate accounting, albeit non-exhaustive, of Black trans life. It is also not experimental, as the method and manner of scholarship here are well established in academic genres that explore and center Black life. It is, though, quite queer, quite Black and invites the reader to explore the legal and extralegal implications of beginning with the experiences, conditions and state dis/ordering of Black life, suffering and death as critical sites of inquiry--rather than mere tragedy or accidents of history--for the edification and proper accounting of American law and its lives beyond the courtroom.
[. . .]
“Subject to radical skepticism and verification in the best instances and to being dismissed as unreal or brainwashed in the worst, trans children's consistent experience in this country is to be excluded from having a voice, from having a say in the public battle over whether they should find themselves allowed to be, as if such determinations are not procedurally genocidal in their holding open the door to a world where trans life would be violently extinguished from growing in the first place. We have not even yet begun to ask what it would mean to let trans children name their own desires and be recognized as entitled to direct their own affairs.”
“If childhood is already a very dangerous time and space for children in the United States, trans childhoods--and, so much more specifically and insistently, black trans and trans of color childhoods, nonbinary trans childhoods, low-income trans childhoods, disabled trans childhoods, and undocumented trans childhoods--have been evacuated of formal meaning and abandoned by adults as less-than-human precincts, caustic reminders of the effects of a culture in which the delusional adoration of the rosy figure of the Child abuts the most heinous quotidian modes of violence in the lives of real children. We make children vulnerable by the force of law, the deprivation of their economic earnings, and the infantilization of their personalities, only to raid their bodies, minds, and souls to enrich an order of things that cannot stomach their savvy and enviable divergences from normativity.”
The quotation above, from the scholar and historian Jules Gill-Peterson--a trans woman of color--describes the conditions that Black trans children are forced to reckon with. The litany in the beginning gives flesh to both the arguments and data and displays how Black trans people--men, women and gender non conforming folks--as well as those positioned similarly proximal to violence, are contending with death and gratuitous violence from the womb to the tomb. It shows us that at only eleven years old, children are grappling with how to evade violence and are engaged in internal debates about whether life is worth living. It shows us that children's voices and control over their own bodies is undermined as they are regarded as beloved chattel at best and objects subject to wonton, trivial and overwhelming scrutiny and regulation. As Gill-Peterson writes, these early incursions against their self-expression and bodily autonomy creates a precedent and controlling logic of regard; put differently, when trans children are disabled from the freedom of expression and bodily autonomy, these dispossessions permeate throughout their social and political life. It results in the high number of sexual violence experiences by gender non-conforming children and young adults and their social status as property opens the door for similarly high sexual abuse by police and staff within the criminal legal system. These contacts with the police, as noted in earlier data, have the effect of lower trust in government institutions; which further diminishes trans access to the political sphere and power. This further precarity locks transgender and gender expansive people into poverty; even in states like New York, where they are almost as likely to have a bachelor's degree as cisgender people, they remain in deep poverty.
Various legal interventions have been proposed to sustain the lives of Black trans people and queer people writ large. These range from advancing the Equal Rights Amendment and passing the Equality Act to increasing representation in civil society and police reform. These would all be welcome interruptions to the red record compiled above. However, changes in law are only as successful as the public's commitment to spirit and enforcement of them. Just as anti-Blackness and racism continue to hamper the enforcement of the Reconstruction Amendments and Civil Rights Acts, transphobia, anti-BlaQueerness and queer antagonism will ensure incomplete and uneven enforcement of these laws. In this brief recounting alone, we have seen how the First Amendment right to freedom of expression has been molested to both protect the “right” of a teacher to decide what to call someone whatever they want--and by extension, the seizing and weaponizing the power of an individual to self-identify--but also to regulate how gender itself is expressed via clothing. These actions exist in open violation of the logic in Bostock and the Courts' holdings in prior school free speech questions, which is consistent with a long American history of schools being hostile to inclusion of students or only accommodating them with ““deliberate speed.”
This essay has attempted to map the margins of BlaQueer and trans life--especially the world that youth are made to contend in--and compile a litany that might help us make sense of the data underlying, and logics undergirding these conditions. In order to intervene and disrupt the cyclical ordering of legal and extralegal violence, we must first begin to imagine all children as more than mere property or extensions of adults. We must rearticulate the contours of legal personhood and the access children have to fundamental rights and privileges; as well as the mundane accouterments of human being, like self-expression, self-determination and bodily autonomy. We must question our desires for the level of control and domination we currently have and seek to wield. We must also reckon with our violent experiences with gender identity; that which is imposed on us by tradition and culture and the licentious expressions of gender that irritate, panic or unnerve us. We must reckon with our desire to seize and control other people's bodies in order to attain comfort and manage our emotions as an afterlife of slavery and colonialism that continues to impact our vision with its refracted lens. Perhaps, most clearly and importantly here, we must contend with the roots and routes of American anti-Blackness and our inability to fully imbibe a past that is not past, but always, already present, precedential and controlling in our laws, our logics and our libidinal economy.
T. Anansi Wilson is a visiting associate professor of law at the University of Kansas School of Law and the founding director of the Center for the Study of Black Life and the Law.
