Gender Workshop: Justice Foreshortened is Justice Only in the Eyes of Jerkwads Edition

Online Gender Workshop, as ever, is brought to you by your friendly, neighborhood Crip Dyke.

Recently prolific news aggregator Lynna brought to my attention a legal case concerning someone guilty of sexual assault out of the Land of Silver that, shall we say, fails to glister overmuch. Unlike the attractive sparkle of a rich acanthite vein (which, it should be noted, was never found in Argentina: a premature naming by aspiring and greedy colonizers), this case burns with the unflickering monochromaticity of a neon sign reading, “ALL THE TRIGGER WARNINGS”.

The DailyKos commented on a article (which was hardly longer) on a case that is, frankly, appalling.

A three judge panel ruled that a lower court must truncate the sentence originally imposed on a man convicted of sexual assault. The reasoning?

The six-year old child molested by his soccer-program supervisor had been previously molested by the child’s own father. This was sufficient indication, said the appeals panel majority, that the child was gay, and was seducing adults. The sentence presumed that the soccer-program supervisor was entirely to blame for the molestation, but this was an error to these two judges, given the child’s clearly seductive qualities.

This is all horrible enough, and there is plenty of feminist analysis of rape-victim blaming. There are plenty of queer theorists writing about the construction of gayish, gayifying gayness and the conflation of same with sexual aggressor. The reason for writing about this case here is yet a further insult by the court: the child was less able to be traumatized, and thus the molester committed less trauma, deserving a lesser sentence, because the child had been “had been accustomed to situations of cross-dressing”. It isn’t clear to me [because my Spanish is barely competent to decipher a short written document of obvious context and subject that is placed in front of me, and far from sufficient to perform pro-active searches of the Argentinian legal domains necessary to find and decipher the text of the decision] whether this means the child was cross-dressed by his father, or if the child witnessed the father’s cross-dressing or something else, though the phrasing as translated makes it seem unlikely this was a spontaneous, solitary, self-motivated cross-dressing on the part of the child.

In the words of the Daily Kos’ Krotor:

Judge Piombo said that the earlier molestation by the father had left the boy “depraved” and thus this newer assault was not “gravely outrageous.”

The depravity, I have gathered, is both of a type to make the child a gay sexual aggressor that likely seduced the soccer club headman, and also to make the child a feminine trans*-thing who is too damaged (as evidenced by cross-dressing) to have been much further damaged by the latest victimizer. Thus at least some of the sentence reduction appears to be what we would call an expression of trans* oppression, though the concepts and words for gender and sexual orientation have a different relationship to each other in Latin America than they do in English North America or English-dominant countries around the world.

We’ve previously discussed how certain feminisms necessitate the creation, development, and propagation of transfeminisms. The critique made necessary here isn’t made necessary by feminisms or the actions of feminists. No, the critique is made necessary by Judges Jerkwad and Jerkwad who appear to be anything but feminist. Without more details, it’s hard to tell if a trans* advocacy approach might-just-possibly be sufficient to oppose the judges’ thinking in this case, though given how much of the body of work on rape, childhood sexual assault and victim blaming has been developed within feminism, it seems impossible to me to oppose without a joint feminist-trans* advocacy analysis to hand. In short, this case too demonstrates the need for a robust transfeminism.

But where can we get that? Fortunately, many writers identifying as transfeminist or with a transfeminist bent have already developed some of those tools. Lisa at A Radical Transfeminist has an excellent and thoughtful post that’s quite relevant (despite being focused on adult-adult interactions), and Emi Koyama’s Transfeminist Manifesto is still relevant despite being written 15 years ago and receiving later caveats from its author as both Transfeminism and Koyama herself grew and thought.

But I’d like to focus on something else, something more specific and thus less generalizable, but nonetheless important: the case of Dee Farmer.

Urvashi Vaid vastly overstates the case when she says that SCOTUS held

that Dee Farmer, a black transgender woman who had experienced a brutal rape and assault at the US Penitentiary at Terra Haute, Indiana, could hold prison officials accountable for their “deliberate indifference” to the risk of harm they knew she faced as a transgender woman.


Rather, SCOTUS announced that Farmer wasn’t entirely and preemptively barred from seeking in court to hold prison officials accountable. The standard for holding such officials “accountable” and the nature of the “accountability” offered (monetary judgement, not actual individual accountability such a losing a job or being prosecuted by the feds for criminal violations of civil rights) however, make Vaid’s description something very close to false. As a result of the SCOTUS ruling in Farmer v Brennan, Farmer could theoretically prevail in a suit and get some money. As a practical matter, this was never remotely likely. Moreover, the one thing Farmer had a realistic chance at getting, an injunction requiring certain actions protective of Farmer be taken in the future, has literally nothing to do with accountability for past choices of her jailers.

Marjorie Rifkin’s summary and analysis of Farmer’s case is much better (and longer) than Vaid’s, but correspondingly less positive about the potential for Farmer and future prisoners seeking protection from rape. In all of this hopelessness, why bring up a decision whose sole positive holding seems to be summarized by the oft-cited passage of Justice Souter’s majority opinion,

gratuitously allowing the beating or rape of one prisoner by another serves no “legitimate penological objectiv[e],”  any more than it squares with ” `evolving standards of decency,’ ” Being violently assaulted in prison is simply not “part of the penalty that criminal offenders pay for their offenses against society.”

Wow. Gratuitous beating and rape serves no legitimate penological objective? How advanced we as a culture have become that we could state such a thing as early as 1994! [The court, of course, reasonably withholds judgement on the legitimate penological objectives served by non-gratuitously allowing rape.] And this is our landmark case on the toleration of prison rape? Rape that those in prisons intended for females and those in prisons intended for males have experienced at the hand of guards and other inmates run by our federal government for, at the time, over two whole centuries?

And yet, there is something quite worthwhile here, something that comes directly from the articulations of this Black, trans* fraudster. We find it not in Souter’s opinion, but in Blackmun’s concurrence where he refuses to be limited by the opinion’s focus on deliberate indifference:

A punishment is simply no less cruel or unusual because its harm is unintended. In view of this obvious fact, there is no reason to believe that, in adopting the Eighth Amendment, the Framers intended to prohibit cruel and unusual punishments only when they were inflicted intentionally.

The Cruel and Unusual Punishments Clause was not adopted to protect prison officials with arguably benign intentions from lawsuits. The Eighth Amendment guarantees each prisoner that reasonable measures will be taken to ensure his safety. Where a prisoner can prove that no such reasonable steps were taken and, as a result, he experienced severe pain or suffering without any penological justification, the Eighth Amendment is violated regardless of whether there is an easily identifiable wrongdoer with poor intentions.

Here we have not only the expression of a court maintaining that even trans* folk may not be callously and gratuitously subjected to rape while in government control, but also the court’s dignified, snark-free version of the feminist observation intent is not magic.

Here, because of the suffering and hard work, because of the ideas and insistence of a Black trans* woman, we find the first transfeminist decision of the US Supreme Court. And it comes as early as trans people ourselves were even able to coin the term transfeminism, having been initiated in 1989, before I am aware that any person used the word transfeminism, and before US trans* communities themselves had ever attempted to articulate an understanding of how to usefully frame the causes and consequences of the rapes of trans* persons.

While in some ways, it is only to be expected that a movement must begin before it can be named and recognized, before it can come together to do work at the level of a community, we must never let it be forgotten that it was Dee Farmer who forced SCOTUS to concede that the US is not permitted to observe and tolerate rapes of non-trans* prisoners as well as trans* prisoners.

We must never let it be forgotten that when trans* persons are able to articulate transfeminism, when articulations of transfeminism are made by persons respectable to those with the power to change lives, transfeminism benefits persons of every gender and every sex.

But how does that happen? How is it that Dee Farmer was the first to succeed in getting a decision against official tolerance of rape when sympathetic (to the powerful :gag:) Martha Stewarts are being sent to prisons on an ongoing basis, and were for generations before 1994?

There may be any number of reasons that play a role, but it’s clear from my own activism that the overt contempt with which so many feel comfortable treating trans* folk created a record that could not be ignored by the court. Martha Stewarts may, indeed, be raped in prison, and officials may very well tolerate it, but they are far more circumspect, knowing that even though prisoners are dehumanized in a general way, the Martha Stewarts have someone on the outside who loves them, who can make a sympathetic case for them. It is the very unlovability with which trans* people are labeled that makes it possible to compile the evidence of cruelty impossible to ignore in a venue of powerful-people-under-scrutiny such as the US Supreme Court. Denied an easy legal reason to tolerate only the rape of trans* prisoners, and faced with the obvious facts that prisons do indeed subject trans* prisoners to rape, and faced with the implausibly deniable, but nonetheless denied, official welcome of some rapes of some prisoners, SCOTUS did the only thing it could do: it ruled that the government may not knowingly tolerate risk of rape to any of the people it takes into its power.

A transfeminist opposition to rape has already helped – if only marginally – at least the millions who have spent time in US jails or prisons since the passage of the 2003 Prison Rape Elimination Act pushed forward by Farmer’s favorable decision.

We have every reason to believe, then, that a strong and non-trans*-supported transfeminist opposition to rape and sexualized violence in Argentina will benefit every survivor of rape or sexualized assault. Not only those that are women or girls. Not only those that are straight. Not only those that use the significant social and physical power any Argentinian 4 year old possesses to escape becoming “accustomed to situations of cross-dressing”.

It is the revolution of the despised that advances the rights of all.

Today that requires that we embrace transfeminism.




  1. FossilFishy (NOBODY, and proud of it!) says

    I have to agree with your reasoning Crip Dyke. Makes perfect sense to me.

    That said, my brain keeps crashing against the rocks of the motivation for this post. How in the hell could anyone think that further abuse heaped upon a child who has already been harmed is anything other than outrageous? What an incredible lack of compassion.

    Struggle as I do to never other folks, those judges strain my ability to recognise their humanity. I cannot force myself into seeing the world through their biases, no matter how hard I try. If I’m ever wanting for a concrete example of evil in the world, this will serve perfectly. And that saddens me to the point of wishing an end to the whole damn world if it meant no more atrocities like this.

    Shit. Today’s a write off. I’m going to hug my child, cherish Ms. Fishy, smile at everyone who makes eye contact and hope that tomorrow I won’t be so hollow inside.

  2. says

    The hollowness never leaves you. Once you know certain things about this world you stay hollow, and it messes you right the fuck up. All you can do is try and clean some of the horror up before you shuffle off this moral coil.

  3. erichoug says

    While I strongly support feminism, LGBTQ rights and Transfeminism, I feel like this article misses the larger picture. The child in question is SIX FUCKING YEARS OLD!!!!

    It doesn’t matter if he is wearing a dress, a suit, a sarong or a papa smurf costume. THE CHILD IN QUESTION IS SIX FUCKING YEARS OLD!!!!! And the judges in this case want to reduce the sentence of the man who raped this child because he wore a dress. Just to point it out when you are SIX FUCKING YEARS OLD your sexual identity is about as developed as your pubic hair is. So, whether this child is gay/straight/bi/trans etc. is completely immaterial to the argument as is previous assaults, as is whether or not he occasionally wore a dress. the child in question is SIX FUCKING YEARS OLD!!!