Gender punitivism: Queer perspectives on identity politics in criminal justice

Introduction

In June 2018 in Buenos Aires, Argentina, Criminal Court no. 4 sentenced one of the murderers of Diana Sacayán, a renowned travesti ¹ activist who had been assassinated in her apartment in 2015 (Jenner, 2018; López, 2018). A large portion of the local LGBT community celebrated the court ruling, where this was considered a hate crime motivated by gender violence; the term ‘travesticide’ was used for the first time in Argentine legal history; and the gravity of the case was acknowledged, sentencing the defendant to life imprisonment. In this article, we engage with this case, and more broadly with the Argentine context, to examine the convergence of identity politics and punitivism, two tendencies that give shape to numerous experiences in LGBT activism and state policies. By doing this, we hope to contribute to queer criminological perspectives on identity and gender normativity, on the one hand, and on justice, punishment and reparation, on the other.

The travesti community has great visibility in Argentina. Although the universe of people who do not identify with the assigned gender is wide and varied (as are their forms of activism), it is often represented as a homogeneous community following the pattern of trans feminine, particularly travesti, experiences. In this context, when addressing the high murder rates of travesti and trans people, LGBT activism has often focused on ‘travesticide’, a term that circulates in communities but has not (yet) been incorporated into the criminal code. Despite the Sacayán verdict recognizing her murder as a ‘travesticide’, the offence cited throughout the judicial process was ‘homicide qualified with hatred of gender identity and the use of gender violence’ (art. 80, Federal Criminal Code).

In 2016, Blas Radi and Alejandra Sardá-Chandiramani carried out an investigation to clarify the conceptual contours of ‘travesticide’ and distinguish it from other ones in use, such as ‘hate crime’ or ‘femicide’. They understand travesticide as ‘the end of a continuum of violence that begins with the expulsion of home, exclusion from education, the health system and labour market, [. . .] criminalization, social stigmatization, pathologization, persecution and police violence’ (2016). This definition implies a double movement, which will be important for our analysis: first, from the subjective conditions of the perpetrator to the objective conditions of the victim; second, from private order to public order, which allows to account for state responsibility in impunity and the absence of public policies.

These (and other) features of violence against gender non-conforming people, and the dilemmas in confronting them, have been addressed by queer criminology, a field with varying approaches and results (see Ball, 2014b; Woods, 2014 for two divergent overviews). One of the most common approaches is to add LGBT subjects to the criminological inquiry, in the hope of shedding light on previously neglected individuals, communities and issues. Others, such as ours here, seek to move beyond mere inclusion. As a form of critical criminology, queer criminology can contribute more radical insights on punishment, accountability, the ways of identifying victims and perpetrators, prison, the justice system, violence and strategies to face it, and criminology itself (Ball, 2014a; Ball et al., 2014; Hulsman et al., 1993). As a queered form of criminology, it can consider topics such as the interplay between criminalization and hegemonic visions of gender, sexuality and the body (Boukli, 2017); the various forms of normalization that the criminal and justice systems operate on non-conforming subjects (Buist and Lenning, 2016; Girschick, 2011); the instrumental use of identity and of the fight against gender-based violence for the exclusion and normalization of racialized and other marginalized subjects (Bassichis et al., 2011; Meyer, 2014); and the history and potential of queer and trans* grassroots organizing when imagining and practicing abolition (Stanley and Smith, 2011), among many others. Therefore, in this work, we do not intend to merely use a pre-existing theoretical framework by applying it to a specific case study, but rather to perform queer criminology and contribute to its reimaginings, particularly (in our case) in relation to identity, power relations and the links between activism and criminal justice.

The reflections that follow are part of a broader research project where we examine the paradoxes of rights involved in the recognition of gender identities that differ from that assigned at birth. We are interested in looking into how such recognition can – and often does – have inadvertent negative consequences on people’s material conditions of existence and access to rights. In a context where rights are explicitly gendered, such change reconfigures the range of rights that can be claimed, including those pertaining to social security, parental leaves, health care, and child custody, among others. A clear example of this is in the tension between the right to gender identity and the right to reproductive health, where the former implies giving up the latter, in cases where rights such as abortion are legally defined as only pertaining to women (Radi, 2019). In our understanding, this tenacious link between (a certain) gender and rights is largely due to the impact of identity politics in the current strategies of social movements.

On this occasion, we will use the case of the ‘travesticide’ verdict in order to focus on the implications of gender identity reinscription in the realm of criminal justice. As a country often considered exemplary in terms of gender-related legislation (Muntarbhorn, 2017; UNDP, 2013), Argentina offers an interesting scenario to examine what happens when social movements articulate their demands in terms of identities instead of problems and turn to criminal justice in search of solutions for said demands. We will consider what commitments underpin these strategies, and what their implications are, particularly regarding the relationship between harm and reparation. Analysing such issues can provide valuable insights to be considered not only theoretically, but also by activists and policymakers in contexts where such changes are still part of the agenda for the future: what will we encounter down the road if we succeed in advancing this agenda? More concretely, what are the implications of identity-driven strategies for social change in progressive contexts, and what are the commitments when social change is interpreted as demands for criminalization?

We will address these questions, first, by considering the ways in which rights and citizenship are gendered and how this collides with contemporary notions and experiences of gender. We contend that gendered citizenship and rights limit approaches to violence against gender non-conforming communities and often force subjects to choose between rights. In the third section, we will examine the implications and limitations of understanding ‘inclusion’ as the symbolic recognition by the criminal justice system, therefore reducing rights to punitivist outcomes. Finally, the concluding remarks return to queer criminology as a radical critique and imagination towards a future of gender self-determination and justice.

Identity politics, gendered rights

The debate on identity politics has a long and troubled history in social justice movements, and in activism and the academy more broadly (Cervulle and Pailler, 2015; Curiel, 2002; Gamson, 1995). Independently of how identity politics is valued, the role of identity in political strategies is undoubtedly a crucial factor when imagining politics in general and radical political projects in particular. This appears to be especially the case in a context which, as we shall see, is organized by a deeply ingrained intertwining of politics, rights and (specific forms of) gender.

Such intertwining may be better understood when broken down into four steps. First, politics is more often than not conceived in terms of rights: political struggles are struggles for rights, addressing a social need is interpreted as a way of guaranteeing the right to a certain good (such as education or reproductive health), and being politically progressive is tantamount to defending or demanding certain rights. Second, rights come forth as the passport to citizenship, as literature on sexual citizenship has amply shown (e.g. Richardson, 2015; Sabsay, 2012). From this perspective, being a citizen and participating in the political struggles means having access to certain rights and exercising them in ways recognizable and identifiable by the political community. Consequently, how rights are defined and distributed determines the inclusion and exclusion of subjects (particularly sexed and gendered subjects). As Diane Richardson (2015) has noted, an analysis of ‘the terms through which discussion of sexual citizenship is typically articulated highlights the mobilisation of a particular kind of self, a particular kind of subject as entitled to claim rights’ (p. 9). In effect, and this is the third and crucial point, the allocation of rights is gendered: certain rights are attached to certain genders, and thus access to them is only legally possible, and perhaps even conceptually imaginable, for people who identify with the required gender in a manner that is intelligible and acceptable following social and political standards. As a consequence, subjects must define their identity to gain (or request) access to rights, and in contexts that enable legal change of sex and/or gender markers, opting for this right reconfigures the range of other rights they can claim access to.

If politics (and policies) are so deeply entangled with identity, then how are they affected by contemporary notions and experiences of gender? The definition of gender identity provided by the Yogyakarta Principles (2007), incorporated into the Argentine Gender Identity Law (no. 26.753, 2012), understands it as a subjective experience, independent of the assigned sex, sexual characteristics, or identity documents. Under this perspective, the catalogue of possible identities exceeds the two categories formerly thought to exhaust it, and ‘gender identity’ cannot just be added to our previous nomenclature without qualifications: it must be understood as a component that completely alters the equation. As such, legal change regarding gender identity should propel us to review and redesign previous conceptions and social institutions built around the understanding that there are two sexes and two genders, as sides of one same coin.

However, the articulation of the Gender Identity Law with state institutions (such as schooling or health services) still seems to follow an ‘aggregational logic’ that has neutralized its destabilizing potential, as the novel definition of gender identity is folded into an institutional architecture structured as if such identity was permanent and reflected objective factors (Radi and Pérez, 2018b). For instance, in Argentina, sexual and reproductive rights are still considered ‘women’s rights’ both by state policies and most activist organizations, official retirement age is different for women and men, and several institutions maintain segregated facilities.

Feminist activism has been key for this configuration, as its strategies have generally sought to protect the category ‘woman’ from rights violations through legal change (such as legislation pertaining to violence against women, electoral quotas, or measures against wage gaps). Leaving aside the debate on who can, may or should inhabit the category ‘woman’ (as opening this discussion is in itself profoundly cissexist), our point is that gendering rights in such a way forces people to define their gender in admissible ways, while it can only collect a synchronic view of gender, a static picture that is unable to consider, among other things, how people came to be that gender, or what it has meant throughout their existence to live that way.

Thus, identity is reified, levelled down into one single category unable to contain intersectional vectors of power and privilege. Each one of the resulting labels is placed a priori in a pre-existent social location of oppressor or oppressed, victim or perpetrator, rights bearer or rights violator, good citizen or bad citizen. In this direction, Leticia Sabsay (2012) notes how through liberal sexual politics, ‘the possibilities of being integrated as a sexual rights-bearing subject [are] normalised according to the ideals of a sexual diversity based in normalised and discreet identities’ (p. 617). In addition, such reification and dichotomization of identities, social locations and rights rests on universalist, Eurocentrist frameworks that reinforce global distributions of rights and desert: although the ‘sexual subject does not need to conform exclusively to heterosexual norms’, it still must follow ‘other western sexual norms that would entitle it to become lesbian, gay or transgender in such terms that all sexual rights might be attested to it’ (Sabsay, 2012: 610). As explained above, when the access to rights (and citizenship) is attached to identities (e.g. ‘women’s rights’ instead of ‘sexual and reproductive rights’), it becomes contingent upon specific forms of performing said identity, which are delimited by hegemonic notions of what gender, sex and sexuality are.

Conservative understandings of gender and sexuality are thus consolidated as ‘a determining factor in the allocation of the rights (and to a lesser extent, responsibilities) associated with citizenship’ (Lister, 2002: 191; see also Gledhill, 2013). Conversely, those who cannot or do not comply with one of the available gendered labels are expelled from theoretical and political intelligibility. In practice, this is often expressed in the form of a conflict of rights: when interacting with institutions (including, among others, the criminal law system), gender non-conforming people may be forced to give up certain rights to access others. Where institutions fail to incorporate the current conceptions and experiences of gender, the right to gender identity hinders other policies that are the only path offered by the state (and by many social organizations) to access a wide array of rights.

The Sacayán verdict illustrates what happens when specific identities are attached not only to rights, but also to locations in the victim/perpetrator divide. Diana Sacayán was a well-known travesti activist whose work largely focused on the defence of this identity. Yet, as gender-related violence is primarily (often exclusively) understood in terms of violence of men against women (the Argentine ‘Law on Gender Violence’ is actually a ‘Law of Violence against Women’ ² ), the process involved institutions such as the Special Prosecutor Office on Violence against Women and legal references such as the Argentine Criminal Code, which raises the sentence to life imprisonment in the case of murder ‘of a woman when it is perpetrated by a man and includes gender violence’ (art. 80). This already exposes some of the paradoxes inherent to the implementation of gender identity recognition, when other rights (e.g. protection from violence) are gendered: wherever only women are conceived by the law as victims, and men only as perpetrators, someone who does not abide by either of those identities must choose between their right to gender identity, and their right to state protection from other violations. In the Sacayán case, invoking the figure of ‘gender violence’ available in the Criminal Code meant construing her as a woman. In other words, while the state acknowledged that there is such a thing as violence based on gender (adding ‘gender violence’ as an aggravating circumstance), it still failed to recognize identities beyond female and male.

These conceptions of state protection and gender(s), however, do not only affect people who do not identify as male or female. Trans people assigned female at birth, for instance, are in a particularly delicate situation with respect to the negotiation of their rights: if the victim of a gender-based murder had been a trans man, the normative framework on gender violence would have been unable to support the case. Knowing these tensions, and considering that young poor men are among the preferred targets of police selectivity, many young trans men preventively choose not to legally change their identities and hold up their hormonal treatments, so as not to fall into the grip of police targeting and avoid the dilemmas of prison housing. ³

Punitivism and the mirage of inclusion

Doubts around the efficacy and adequacy of criminal justice as an instrument for social movements are currently shaking gender- and sexuality-related activisms locally and internationally. Such controversies are part of broader and long-standing debates on social movements, the state and punitivism, and engaging them calls for some clarifications. First, that any inquiry into the articulation between social movements and the state in Argentina and/or Latin America must acknowledge the complexities of this relationship in our region (including the co-optation of the former by the latter, which unsettles that very divide), and its impact on feminist and LGBT agendas. In this context, appealing to legal strategies to address social problems is heir not only to the turn to legal reform that has largely transformed global activism (Spade, 2009) since at least the 1980s, but also to a history of local activism seeking to propel social change through public state policies (Delamata, 2013; Diez, 2011). ⁴ Second, we must stress that punitivism, or the worldview whereby punishment is a fitting instrument to solve problems, goes well beyond the state apparatus and shapes everyday practices, understandings and interactions (Gilmore Wilson, 2017; Lamble, 2011; Lydon, 2012). Punitivism is expressed in the innumerable ‘punitive impulses’ that affect our intimate relationships and ‘the ways that we deal with personal conflicts’ in a variety of contexts, including work, home, school, or community spaces (Lamble, 2011: 254) – and, of course, activism.

Our preoccupations here stem from the realization that a considerable portion of identity-based activism is deeply committed to progressive punitivism, that is, the ‘academic and popular’ logic ‘that wields the classic weapons of punitive law – shaming, stigmatization, harsh punishment, and denial of rehabilitation – in the service of promoting social equality’ (Aviram, 2019). ⁵ We hope to show how progressive punitivism can consider the specific realm of criminal law and punishment as advisable or preferred interlocutors within the state and its institutions.

Now, how is progressive punitivism expressed specifically in gender-related activism? In line with global tendencies (Bassichis et al., 2011; Lamble, 2013; Macaya, 2019; Núñez, 2019), local activism is increasingly supportive of the creation of new criminal figures as a strategy to tackle gender- and sexuality-related social problems. Thus, among the demands for a ‘gender perspective’ in the state, and particularly in the justice system, we find a request to translate discriminatory social practices targeting (certain) women and/or (certain) gender non-conforming subjects into legal figures punishable by criminal law. This has resulted in figures or aggravating circumstances such as ‘femicide’ and ‘hatred’ (Law 26.791, 2012), or ‘street harassment’ (Law 27.501, 2019).

Such figures create a feeling of protection by the state and of a long-awaited inclusion in the citizenship contract. This was evident in the effervescence surrounding the Sacayán verdict, interpreted by many as a historical turning point for travesti rights (and gender non-conforming communities more broadly). Key figures in LGBT activism rightly pointed that the inclusion of ‘travesticide’ in the verdict meant an unprecedented recognition by the state of the abuse endured by these subjects: now the state finally ‘sees’ travestis, and acknowledges the specific forms of violence that affect them – finally, ‘institutions can read hatred towards gender identity’ (López, 2018). Not only can they read it: they also understand its graveness, as the longest possible sentence allowed by law was applied.

The promise of inclusion in a social contract historically denied to certain subjects, and of protection from abusive ‘others’, can strongly allure historically marginalized communities into investing in the appeals of criminal justice. In the light of a collective history of exclusion, it is indeed an important turn: as travesti activist Lohana Berkins stated early on during the Sacayán process, ‘for us justice had never arrived, and when it did, it arrived in a punitive manner’ (Escales and Cárdenas, 2017: 248). However, the fact that (certain agents within) the state decides to include an individual case in the realm of victimhood does not necessarily imply that either that person or their community will be protected by the state more broadly. As discussed above with the concept of ‘sexual citizenship’, the different institutions that compose the state have their own preconceptions of what demographics are best fit for their support, and target certain populations accordingly (Boukli and Renz, 2018; Gilson, 2016; Sánchez, 2012).

This raises the question, should demands still be articulated as if the way in which the state can ‘see’ a collective and its needs is by appearing in the grounds of a verdict (and/or adding a criminal figure), and assigning it the highest possible sentence? The relationship of historically marginalized subjects with the state goes well beyond the investment in its system of punishment, although for certain populations it seems to be the most direct platform for inclusion. Such limitation of possibilities – one of the elements, in our view, that sustain punitive models of governance – faces us with a number of problems. First, that the ‘protection’ of certain identities through criminal law ‘frequently reinforce[s] rather than undermine[s] social inequality’, as the ‘stranger danger’ narratives supporting them have been historically ‘used to stereotype marginalized race and social class groups’ (Meyer, 2014: 114–115). Second, that these demographics saluting state punishment are precisely among the ones most affected by it. Travestis have been historically targeted by law enforcement and are disproportionally incarcerated (particularly South American migrants) with an expeditiousness largely due to law reforms related to the ‘war on drugs’ (Escales and Cárdenas, 2017; Procuración Penitenciaria de la Nación, 2018b). Third, we are referring to populations that have historically been denied justice when they have sought it in the criminal justice system, as is the case with those denouncing queer bashing or abuse from the armed forces (Conrad, 2012; Greenberg, 2011; Radi and Pecheny, 2018a).

These issues converge in the broader issue of how and why we turn to imprisonment as a solution to social problems, and lead us to take a closer look into the expectations deposited in the Sacayán verdict. Judging by the conversations that took place at the time, three main reasons seem to support its celebratory reception: (1) state recognition of a non-hegemonic identity (hailing the use of the terms ‘travesti’ and ‘travesticide’ as a gesture of reparation), (2) its acknowledgement of the specific problems it faces (‘travesticide’, as different from ‘femicide’ or ‘homophobic crime’) and (3) the opening of a space within the criminal legal system for a historically marginalized group to seek justice.

However, optimism in these three regards can only function on the basis of a number of assumptions, which should be called into question: what do we intend to do – and what are we doing – when we turn to criminal justice to tackle social matters? How do we understand state recognition, and what price are we willing to pay for it, when it comes under the form of new arguments for punishment or harsher sentences? A queer framework is particularly helpful to address this, as well as the interplay between gender normativity, state disciplining of non-conforming subjects and the possibilities and limitations of identity-based activism. It compels us to reconsider our strategies and, ultimately, to radically reimagine our horizons.

Dean Spade (2015) provides useful methodological tools to shift our focus when examining the assumptions and implications of resorting to criminal justice to address social matters. He proposes three key shifts: (1) assessing the strategies of activism not on the basis of their intentions or objectives, but of their actual consequences for the lives of the most vulnerable subjects among us; (2) displacing focus from the perpetrator perspective (and its related ideas of guilt and causality) to the broader context and structural factors leading to a specific form of violence, in line with the insights offered by critical race theory (Freeman, 1978) and feminist criminologies (Núñez, 2019; Pitch, 2014); and (3) turning our attention from legal change to the administrative realm and how it affects the distribution of life opportunities.

This can help us analyse the prevailing optimism vis-à-vis the Sacayán verdict, and its underlying assumptions. The celebration described above presupposes, first, that expanding the universe of criminal justice is a desirable form of state recognition. It also assumes that such space opened within the legal system will not be turned against those it purportedly benefits – a particularly striking assumption when applied to a population with a long-standing record of criminalization (Radi and Pecheny, 2018a). In relation to the approach to citizenship and identity addressed above, it also assumes that being included (i.e. named) as a possible victim within the criminal system is a passport to rights, and therefore to citizenship. Such a performance of the justice system could certainly be defended as an improvement against the lack of due diligence, or downright complicity, historically granted to the travesti community. Although this is of course empirically true, it is also evident that it entails assessing the results of our strategies against the standards of profoundly biased institutions, which have been historically prominent in the exercise of violence against travesti and trans people. Are we unable to extend our political imagination beyond that?

Finally, positive readings of this case seem to consider that the gestures listed above may fulfil a reparatory function. The link between identity and reparation, mediated through punishment, seems particularly troublesome. As we saw in the previous section, cissexist perspectives on citizenship impose serious limitations: the Sacayán case, for instance, was addressed as an episode of ‘gender violence’, although criminal legislation in Argentina understands such figure as ‘violence against women’, while Sacayán’s life and activism were articulated to a large extent around the affirmation of travesti as an identity in itself. Considering this, can the fact of including ‘travesti’ identity under the realm of ‘woman’ (through the figure of ‘violence against women’) be considered a form of recognition? Is this recognition a means to reparation? And how so? Reparation here seems to work at a symbolic level, whereas the problems it would purportedly ‘repair’ are material – including death in the hands of particular individuals, and also police targeting, criminalization and imprisonment.

How we conceptualize crime seems to account for part of this conundrum: the issue of travesticide can only be considered properly addressed in this case, if we contend that the problem is the existence of bad, hatred-driven people that kill travestis, and therefore punishing such individuals repairs the damage inflicted on the travesti community. Here, we find two crucial difficulties. First, there is a fundamental gap between individual cases and community wellbeing built on broader social change: current criminal law can only attend to individual infractions, whereas the problems it is set to address are structural and collective. As Aviram (2019) has remarked in her analysis of progressive punitivism, this perspective functions ‘under the unproven assumption that the case will produce systemic change’, and ‘waiting for an incident to occur so that the social reaction to it will trigger reform hangs the success of reform on the happenstance of particular occurrence’. Second, in the Sacayán verdict, judges made sure to stress that the problem travestis face is not individual, but structural – in fact, Radi and Sardá-Chandiramani (2016) articulate their definition of ‘travesticide’, later invoked in the verdict, around its being a social, structural and lifelong phenomenon. This is why the authors allot a large portion of responsibility for travesticides to the state, both through acts (with its active involvement in violence and discrimination against these communities) and omissions (its negligence in guaranteeing life opportunities that could diminish their risk of violent death).

Identity and punitivism: Some closing remarks

The case under analysis sheds light on some of the issues raised by the alliance of social movements with identity politics and punitivism. It also helps us understand how our conception of the political subject, and specifically the gendered citizen, determines the type of responses forged to address the problems that worry us as a collective, including those state policies and legal strategies we celebrate.

Taking queer criminology as a merely additive resource, that is, one that only calls for the addition of LGBT subjects to criminological reflections, might lead us to adhere to celebratory narratives such as the one prevalent in the aftermath of the Sacayán verdict. These narratives are characterized for hailing the inclusion of a gender non-conforming identity under existing legal institutions as a sign of reparation for historically marginalized groups, and of their incorporation into sexual citizenship. We do acknowledge the importance of symbolic inclusion and of change (albeit individual) in the role accorded to travesti identity within the legal system, contra allegedly ‘post-identitarian’ politics that abandon the struggle for rights altogether, due to the risk of falling prey to identity politics. As Paula Viturro (2005) warns, ‘this is too costly a strategy, when the lack of rights equals civil death’ (p. 297–298), and particularly where the state may still function, to a certain extent, as a provider of basic guarantees.

But our aim has been to use this case as a means to contribute to queer criminology as a more radical shift, which invites us to ‘push as far as possible away from the terms, categories, and assumptions that are generally used to think about the world, and reformulate the conceptual ground on which such work is carried out’ (Ball, 2014b: 550). This analysis has allowed us to lay out how identity-based activism, and its advocacy for gendered rights, forces gender non-conforming subjects to a catch-22 situation in which they must choose between rights, most notably between legal recognition of their gender identity, and safety vis-à-vis the criminal state apparatus. Reading identity through the lens of queer theory and the criminal system from the tradition of radical queer and trans* thought and activism can help us understand how current forms of gender-related activism can lead us to stray from our dreams of gender self-determination (Stanley, 2014) and reimagine how we can resume that radical path. This entails reassessing the role of (traditional concepts of) identity in violence and exclusion and evaluating how our meanings of justice, reparation and inclusion play out for the most vulnerable subjects in their interplay with activism and law.