The Cis State II
No Promo...Género? Or, How I Learned to Stop Worrying and Love My State-Assigned Gender
Several recent entries in the exercise of what I would call specifically cisgender state power, ranging from legislative to administrative:
Alabama criminalized providing gender-affirming health care to trans people under the age of nineteen, with a punishment of up to ten years in prison. (A federal judge has placed a preliminary injunction on some parts of this law, but allowed others to go into effect.)
The Ohio House passed HB 151, which in banning trans girls from participating in high school and college level sports would enforce “internal and external” genital examinations of any child accused of being trans.
Florida’s Agency for Health Care Administration issued a report as a pretext to ending Medicaid coverage for trans healthcare to adults, full stop.
Police in Tennessee reportedly burst into the bedroom of a 16-year-old trans girl while she was streaming on Twitch to apply pressure on her to enter foster care, or attend a poorly resourced online school. The situation stemmed from her being labeled a “truant” because she cannot safely attend school under state anti-trans education policies.
After the Texas Supreme Court gave its blessing, the Texas Department of Family and Protective Services has resumed investigating some families with trans children for child abuse.
“The cis state” refers to a strategy of state power that defines citizenship through an obligatory alignment of physical anatomy with legal gender markers and visual appearance. Crucially, in making this alignment a condition of access to public life, as well as a policeable, punishable status when it is not achieved or maintained, the state also reserves for itself the exclusive right to define what counts as legitimate anatomy, gender, and appearance. Even trans people who experienced those three axes of their lives as aligned in the past, for instance, suddenly no longer do. Most never did. (The state will, as we see in the above examples, override bodily autonomy, parental rights, nondiscrimination law, medical standards of care, and any other hypothetical check on its power.)
While the cis state may be a matter of moral conviction for some true believers who understand the reduction or elimination of trans people to be a desirable political and policy goal in and of itself, it is nevertheless best understood as a strategy. Making cis the official gender of the state is a means by which the state works to emancipate itself from the political power of trans and other gender variant people. This is one of the oldest moves state power can make to legitimize itself: declaring a population uncivil in order to disenfranchise, dispossess, and immiserate them. It was not only Marx’s first example of the liberal state’s justification for its monopoly on power; it was the central alibi and engine of colonial state expansion around the world, from the British in India to the white planter class in Hawai’i.
The liberal state that grants individual rights and the authoritarian state that represses them here are effectively indistinguishable, or rather two variants of the same exercise of power. The ostensible end of rule of law, whether in the passage of obviously unconstitutional bills, or in courts granting relief to them, is a strong indicator. Much like with the end of abortion rights, these developments remind that, as Eric Stanley writes in Atmospheres of Violence, “anti-trans/queer violence is foundational to, and not an aberration of, modernity. Related, rather than imagining the law as the mechanism through which relief from such harm might be offered, it is one of the methodologies of proliferation” (5).
Although each of the five examples above ideologically scapegoats trans people to an explicitly eugenic end (in ejecting them from public life as uncivil, the state deliberately attempts to reduce their life chances—and quality of life, if they survive the attack), it is also worth emphasizing that each modality of state power being exercised long preexisted the anti-trans pretense. Anti-trans political violence only extends and regenerates canonical forms of state power.
States have frequently criminalized medical care, perhaps most famously in the case of birth control and abortion. Jails and prisons routinely sexually assault people as a matter of policy when they enter a carceral institution. Medicaid coverage has been deliberately taken away from or withheld from disabled people through work requirements. The school to prison pipeline has criminalized Black and brown children as truants. And the child protection system has been deployed to dismantle Black, indigenous, and migrant kinship structures. To these bloody and ongoing histories of statecraft, the cis state adds new armature, rather than a new methodology, let alone a fall from some previous grace.
Mistaking the forest for the trees remains a problem.
Shades of this living situation have been the de facto experience for many trans populations in the past and present (mostly poor trans women, sex workers, and street kids), especially if state power was already targeting them in ways that made transphobia or trans misogyny an expedient accelerant. They simply have never been declared official state policy.
One important conclusion from this is that any opposition to the cis state would need to be on the grounds that such state power is and has always been illegitimate, no matter who it targets or why. Isolating the latest trans iteration is not the strongest (or even most accurate) grounds on which to understand this exercise of state power. Recently I’ve suggested that the most compelling grounds on which to see anti-trans projects as directly connected to the statecraft of race, disability, gender and citizenship are materialist. A cisgender state in emergence today is, after all, a thoroughly neoliberal one. It is an arm not just of authoritarian rule—though its Evangelical, white supremacist, and anti-democracy constituencies are important to understand—it is also a vehicle of austerity. Labeling populations uncivil allows the state to defund them, which is often easier than killing them. Trans life is fast becoming privatized to the extreme. Coupled with criminalization, austerity means not only that you must pay for your own private little gender identity, but that you will be both barred from working in the formal labor economy to do so and the means of gender self-determination might themselves be illegal.
Any reversion to the legal status quo that preceded the past few years—however incredibly unlikely that is as a future—would not undo the cis state. It would rather preserve the fundamental vulnerability to state power’s investment in race and gender that has so easily metastasized under this moment’s anti-trans fervor.
The legalization of same-sex marriage in the US in 2015 seemingly has done very little to forestall today’s anti-gay and anti-trans political violence, including its legality. One concrete measure of this is that legal same-sex marriage did not bring about the end of state-level laws under the banner of “no promo homo.” Queer legal scholar Cliff Rosky explains in a Columbia Law Review essay that there remained after Obergefell a suite of state-level discrimination against gay and lesbian people, much of which targeted children in public education. These laws had taken root in the 1990s and 2000s. “No promo homo” meant simply that the state reserves the right not to protect, recognize, or even endorse, anything gay—including the fact that gay people exist. This it could maintain even while granting marriage licenses to gay people. One of the most common ways to enshrine no promo homo was through state education laws banning curricular discussions of anything that approached acknowledging there were gay people in the world. By one count in 2018, Rosky reports, twenty states still retained these laws on the books.
The legal doctrine of no promo homo worked in tandem with a much older and implicit affirmative promo hetero: the mass of laws that affirmatively codify heterosexuality under the law as a requirement for full citizenship. Marriage law was only one version of the state’s promotion of heterosexuality. Abstinence only sex education laws, or even abstinence promotion provisions in the federal Social Security Act, as Rosky points out, at one time disbursed millions of dollars towards promoting and requiring heterosexuality, too. As Cathy Cohen and Laura Briggs have both detailed, the state promotion of heterosexuality doubled as a form of racist statecraft that explicitly targeted Black and brown women on the basis that they did not “culturally” live up to the norms of American heterosexual family organization, labor, and reproduction.
The ghosts of this moment abound in today’s “Don’t Say Gay” laws, which have had to partially evolve the legal means by which to entrench and expand the principle. Instead of no promo homo, Florida’s law tried out a slightly different tactic that on its surface has the advantaged of not appearing to discriminate. It could be rendered as “no promo sexualitatis,” or “no promo genus,” though neither of those rolls off the tongue and the whole Latin thing is tedious. Florida law technically forbids classroom discussion of any gender or sexuality under a certain age. In order to isolate and target gay and trans children, everyone has to be punished. From a strict point of view under the law, discussing heterosexuality, or even the fact that there are men and women in the world, is prohibited.
This strategy, which could also be described (without Latin this time) as “shooting yourself in the foot out of spite,” of course comes with a powerful insurance policy. The law is not designed for effective censorship as much as to destroy public education. Its mechanism of enforcement is parental lawsuit against school districts, with the latter footing the bill. Even if queer or trans allies wanted to challenge the classroom discussion of heterosexuality or non-trans and binary gender, they would only be satisfying the spirit of the law, which wants public schools to crumble under the weight of endless litigation.
In short, the means by which to challenge the law are themselves self-destructive. Even other affirmative rights like the right to same-sex marriage, however long it will last in a post-Roe v. Wade US, cannot outmaneuver this state power.
The comparison between no promo homo and the cis state is useful not only because they work in largely the same way, but also because both projects co-exist today. What strikes me as most important in their relationship, however, is that both anti-gay and anti-trans state projects rely on an ambiguous affirmative investment in putatively “normal” sexuality (heterosexuality) and gender (non-trans people’s gender, aka cisgender).
At a practical level, it’s not possible to craft policy that can make these distinctions without significant overlap and blanket harm to straight and non-trans people. That’s why criminalizing gender affirming care requires legal carve-outs to continue to enforce nonconsensual medical harm on intersex children, or even the legal practice of circumcision. It’s why to keep trans girls out of sports, Ohio would not only allow genital inspections of all children, but also legally protect those who implement them from complaints—including, presumably, of sexual assault.It’s why ending Medicaid for trans people in Florida requires pretending that trans people’s use of hormones or surgeries is new and experimental, instead of equally as old and legitimate as non-trans people’s use of the same. And it’s why investigating families with trans children for child abuse relies on the general public to inform on their community, employing the flimsiest of subjective viewpoints as catalyst.
I don’t, however, see this as a weakness in the cis state. In Histories of the Transgender Child I argued that the history of gender becoming cis overwhelmingly suggests that the many inconsistencies, contradictions, leakage points and hypocrisies of gender are, precisely, its fundamental strength. Endlessly adaptable, and quite immune to being proven wrong or caught in a lie, making policy based in the fantasy that the state can tell the difference between trans and non-trans people is what makes it so flexible and resilient. Because it can never successfully do what it promises—draw a hard line between trans and non-trans people—the cis state can ignore all of its failures as equally irrelevant. That is another way of defining impunity.
As long as state power to administer gender and sexuality is increased, extended, and regenerated, I doubt the inconsistencies of the cis state’s strategy will get in its way. There will be much paranoia and in-fighting, as when the same extremist accusations of being “groomers” lobbed at gay and trans people were for a moment directed at conservative politicians. But do not mistake that intramural politics of purity for the night before the house of cards falls apart under its own weight. The cis state is, despite its teeth, perversley weightless.
Until state power loses its effective monopoly on the violence of administering gender and sexuality writ large, it will carry on targeting politically unpopular minorities, no matter the absurdity. The state has no shame and it cannot be shamed. It is fundamentally impersonal.
From the bill: “No agency or political subdivision of the state and no accrediting organization or athletic association that operates or has business activities in this state shall process a complaint, begin an investigation, or take any other adverse action against a school or school district for maintaining separate single-sex interscholastic athletic teams or sports” (p3).