The States Regulation of Gender and Sexuality

The States Regulation of Gender and Sexuality

Written by Carter Lynn Thurmond

2015

Copyright 2015 by Carter Lynn Thurmond.

All rights reserved. This book or any portion thereof may not be reproduced or used in
any manner whatsoever without the express written permission of the publisher except
for the use of brief quotations that are cited.
First Printing: 2015.
Written April 2015.
Minneapolis, MN

http://transdyke.wix.com/carterlynnthurmond

TABLE OF CONTENTS

Introduction......1
The Criminal Justice System....2
The Criminalization of Queerness and the States Regulation of Gender
and Sexuality.......5
Anarchisms Creative and Destructive Functions..10
Bibliography...16

Introduction

The states regulation of gender and sexuality is widespread, from

its promotion of heteronormativity to its criminalization of queerness. In
this paper, I first examine the rise of the states use of the criminal justice
system in the United States to recapture blacks as a response to the
abolition of slavery, which leads to my examination of the states
criminalization of queerness in society. I also define heteronormativity and
queerness where heteronormativity is upheld over, and against, queerness.
I then explain how heteronormativity, with its emphasis on the married
heterosexual couple and their biological children, is enforced and
maintained by the state through the criminal justice systems
criminalization of queerness. In the last section of the paper, I take a closer
look at anarchisms negative and generative politics as a step towards a
solution to the states regulation of gender and sexuality. Within
anarchisms negative politics, I advocate for the abolition of the criminal
justice system and the decriminalization of queerness. Then, to address
anarchisms generative politics, I suggest the creation of an alternative
society where gender and sexual self-determination is realized.

The Criminal Justice System

Before moving on to an examination of the states regulation of

gender and sexuality, I will first briefly explore the rise of the criminal
justice system in the United States. Legislative policies that criminalize
wrongdoing, the polices use of violence against wrongdoing, and
imprisonment as a form of punishment are increasingly perceived as a
solution to the United States social problems, such as poverty and violent
crime.1 Because the United States perceives criminalization and
imprisonment as a solution, we now have the largest prison population in
the world.2 The PEW Center on the States reported in 2008 that the United
States imprisons 1 in every 100 people, which amounts to a staggering
25% of the worlds prison population.3 Also, 1 in 31 adults are either on
probation, parole, or incarcerated,4 and 1 in 3 Americans have a criminal
1 Dean Spade, Normal Life: Administrative Violence, Critical Trans
Politics, and the Limits of Law, (Brookland: South End Press, 2011), 53.
2 Nicole Flatow, The United States Has The Largest Prison
Population In The WorldAnd Its Growing, 18 Sept. 2014, Think
Progress,
17
Apr.
2015,
<http://thinkprogress.org/justice/
2014/09/17/3568232/the-united-states-had-even-more-prisoners-in-2013/>
3 Spade, 54.
4 Jason Lydon, Tearing Down the Walls: Queerness, Anarchism, and
the Prison Industrial Complex, Queering Anarchism, Ed. C.B. Daring, J.
Rogue, Deric Shannon, and Abbey Volcano, (Oakland: AK Press, 2012),
203.
2

record.5 Over 60% of prisoners are people of color with 1 in 3 black men
imprisoned during their lifetime.6 Also, women are the fastest growing
segment of the imprisoned population.7
The ever-expanding growth of the criminal justice system
originally was a response to the abolition of slavery. Angela Davis pointed
out that after the abolition of slavery, southern prisons began to expand
drastically and went from being almost entirely white to primarily
imprisoning Black people.8 Along with the expansion of the criminal
justice system, new criminal behavioral codes (such as drunkenness and
vagrancy) were passed to easily incriminate and recapture blacks into the
criminal justice system.9 These infamous laws are referred to as the Black
Codes, and they reinstated the states control over blacks, now within
prisons instead of plantations. One telling example of the states transition
of control over blacks from a plantation system to a prison system is the
Louisiana State Penitentiary or what is more commonly referred to as
Angola. Angola is the United States largest maximum security prison with
6,400 prisoners on 18,000 acers of land where prisoners are forced to labor
for the state on a meager wage.10,11 What is most telling about Angola is
5 Flatow.
6 Spade, 54.
7 Ibid.
8 Ibid.
9 Ibid.
10 Top 10 Most Notorious Prisons In The U.S., 4 Oct. 2011, News
One, 18 Apr. 2015, <http://newsone.com/1565605/most-notorious-prisonsin-the-us/>
11 Personal communication during a tour of Angola when I visited
through AmeriCorps in 2014. Our tour guide told us there were 6,400
inmates at that time. He also told us inmates make our state road signs and
3

not its prison population size nor its meager wage system but the fact that
it used to operate as five plantations before it was a prison.12 These five
plantations after the abolition of slavery became what we know today as
Angola, making apparent the states new locus of control over blacks.

license plates, grow their own vegetables to sustain themselves, and run a
processing plant, among many other tasks. They are paid pennies for their
labor, literally. Some make 20 cents per hour, some a little more, some
less. As more of a side note (a horrifying one), maximum security inmates
at the prison are allowed one call per month, an hour of exercise outside
their cell per day, and a fifteen minute shower per day. Also, if they
misbehave during meal time, their food is blended together into a loaf and
fed to them in that form for seven days. They also have German shepherds
surrounding the camp trained to bite if an inmate tries to escape.
12 Personal communication. The tour guide told us it used to be five
plantations.
4

The Criminalization of Queerness

and the States Regulation of Gender and Sexuality

What essentially began as the states criminalization of blacks has

led to the increasing criminalization of queerness.13 Before elaborating
upon the criminalization of queerness, I will quickly define
heteronormativity and queerness, which will give us a framework to
understand how gender and sexuality is regulated by the state. Then I will
explore the states promotion of heteronormativity and its criminalization
of queerness. Lastly, I will conclude with an anarchist perspective as a
solution to the states regulation of gender and sexuality.
Heteronormativity is a set of standards that dictate what one must
do with their gender and sexuality to be accepted and validated by
society; heteronormativity is also systematically upheld and idealized
over, and against, queerness.14 Examples of heteronormativity include
sexual and romantic relations with the opposite sex, conforming to
masculine and feminine gender norms based on ones sex, getting married,
and having children. Queerness, on the other hand, is anything that does
13 Spade, 53.
14 Catherine L. Thurmond, The False Idealization of
Heteronormativity and the Repression of Queerness, MA Thesis,
Louisiana State University, 2015, <http://etd.lsu.edu/docs/ available/etd03282015-24357/unrestricted/Thurmond_thesis.pdf>, (accessed 19 Apr.
2015), v.
5

not conform to an ideal heteronormative narrative. Queerness is defined

by a set of standards and norms that dictate what one must not do with
their gender and sexuality, which is systematically condemned,
prohibited, and silenced.15 Examples include divorce, masturbation,
breaking gendered dress codes, teenage sex and pregnancy, having
children or sex outside of marriage, abortion, having an LGBTQ identity,
and the expression of sexuality in general. The distinction between
heteronormativity and queerness is false, however. Since no one can
consistently maintain all that an ideal heteronormative narrative entails,
everyone embodies queerness in one way or another, even if one simply
masturbated as a child or had sex at a young age.
The state explicitly promotes heteronormativity. The enforcement
and maintenance of heteronormativity, in particular the married
heterosexual family that raise their biological children, is state sanctioned
and widely promoted by the state, promising to secure our safety and
social belonging.16 For example, marriage promotion policies using federal
funding have been on the rise, particularly the enactment of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, which
attempts to reduce the rate of divorce and single parenting through the
implementation of marriage education workshops and fatherhood
programs.17 Not only is heteronormative marriage promoted through
15 Thurmond, 2.
16 Tanya McNeill, Sex Education and the Promotion of
Heteronormativity, Sexualities, 16.7 (2013): 829.
17 Melanie Heath, State of Our Unions: Marriage Promotion and the
Contested Power of Heterosexuality, Gender and Sexuality, 23.1 (2009):
27-8.
6

federal funding by the United States; it also comes with a variety of state
benefits such as retirement and death benefits, family leave policies,
health care decision making and access, taxation, [and] immigration.18
Furthermore, many sex education school curricula funded by the state
explicitly promote heteronormativity by endorsing abstinence-only and
abstinence-until-marriage, messages about properly gendered behavior
and proper sexual behavior, and the articulation of LGBTQ identities and
sexualities as deviant and pathological.19 As of 2013, in Alabama, Arizona,
Mississippi, Oklahoma, South Carolina, and Utah, state law mandates that
homosexuality be presented negatively in sex education.20 Also, many
states still define marriage as the union of one man and one woman,21
and thirteen states currently still ban same sex marriage.22
Heteronormativity is not only funded and valued by the state. The
state also regulates sexual and gender behavior through its relegation of
queerness within its institutions. Since heteronormativity is ideologically
conceived by the state as the proper and natural way of being, queerness is

18 Heath, 31.
19 McNeill, 827-9.
20 McNeill, 829.
21 Sarah Bollasina Fandrey, The Goals of Marriage and Divorce in
Missouri: The States Interest in Regulating Marriage, Privatizing
Dependency, and Allowing Same-Sex Divorce, St. Louis University
Public Law Review, 32.2 (2013): 447.
22 37 States with Legal Gay Marriage and 13 States with Same-Sex
Marriage Bans, 17 Apr. 2015, Gay Marriage ProCon, 19 Apr. 2015,
<http://gaymarriage.procon.org/view.resource.php? resourceID=004857>.
7

seen as a threat to the state, which responds with force and violence to
maintain heteronormativity.23
Furthermore, the state criminalizes queerness. The states criminal
justice system with its prisons and police is one expression of the states
maintenance of heteronormativity through its violence against queerness.
For example, law enforcement officers are the third largest category of
perpetrators of violence against LGBT people.24 One survey of LGBT
youth in gay neighborhoods in New York City found that 98% of
respondents had experienced police harassment or violence.25 With the
power to stop and arrest people and the ability to utilize force as a tool
of order maintenance law enforcement officers are given the right to
surveille and control queerness.26 The public display of deviant forms of
gender and sexuality are violently policed by law enforcement who charge
people under quality of life offences such as lewd conduct and public
indecency laws.27
There are many examples of queerness being violently policed.
First, there are still instances of the raiding and surveillance of gay
bathhouses and bars.28 Right now, police are arresting many sexual and
23 Ed. C.B. Daring, J. Rogue, Deric Shannon, and Abbey Volcano,
Queer Meet Anarchism, Anarchism Meet Queer, Queering Anarchism,
(Oakland: AK Press, 2012), 3.
24Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock, Queer
(In)Justice: The Criminalization of LGBT People in the United States,
(Boston: Beacon Press, 2011), 47.
25 Mogul, Ritchie, and Whitlock, 52.
26 Mogul, Ritchie, and Whitlock, 50-1.
27 Mogul, Ritchie, and Whitlock, 53.
28 Mogul, Ritchie, and Whitlock, 53, 55.
8

gender nonconforming individuals off the streets for such offences like
indecent exposure, public sexual indecency, obscenity, and sexual
misconduct.29 This particularly effects gender nonconforming gay men and
transgender women of color who are presumed to be sex workers by
police officers.30 Undercover police sting operations are currently still
being utilized to specifically target and arrest individuals who have gay
sex in public restrooms and parks.31 Sex work is also violently policed and
criminalized. For example, it is quite common for sex workers or those
perceived to be sex workers to be rounded up, arrested, and charged under
loitering with intent to prostitute by the police on a nightly basis.32 The
United States is now also beginning to criminalize abortion with the
enactment of anti-abortion and feticide laws. Because of these laws, we
have seen the mass closure of abortion clinics, increasing abortion costs
due to the reducing number of abortion providers, a required 24 hour
waiting period before being allowed to receive an abortion, and a
requirement to perform ultrasounds before an abortion procedure.33
Furthermore, this past March the first woman was charged, convicted and
sentenced to 20 years in prison on charges of feticide even though it
was known she had a miscarriage and the baby was stillborn.34
29 Mogul, Ritchie, and Whitlock, 53, 58.
30 Mogul, Ritchie, and Whitlock, 53.
31 Mogul, Ritchie, and Whitlock, 57-8.
32 Mogul, Ritchie, and Whitlock, 61.
33 Physically Intrusive Abortion Restrictions as Fourth Amendment
Searches and Seizers, Harvard Law Review, 128.3 (2015): 951-2.
34 First Woman In US Sentenced for Killing a Fetus, 31 Mar. 2015,
NBC News, 21 Apr. 2015, <http://www.wncn.com/story/ 28664509/firstwoman-in-us-sentenced-for-killing-a-fetus#.VRrrUl9jBtk.twitter>.
9

10

Anarchisms Creative and Destructive Functions

So how can we, as a society, address the states regulation of

sexuality and gender, which promotes heteronormativity and criminalizes
queerness? A closer look at anarchism, which is defined by both a desire to
destroy and a desire to create,35 can offer us some vantage point to move
forward. As Bakunin said, the passion for destruction is a creative
passion too.36 This destructive impulse acknowledges anarchisms
negative politics, which is defined by a desire to break with the existing
society.37
One way anarchisms destructive function can address the
criminalization of queerness is through the abolition of the criminal justice
system itself, which is based in punishment, police violence, and the
stripping of ones civil rights, such as the right to vote. The abolition of the
criminal justice system would entail the abolition of the use [of]
surveillance, policing, and imprisonment as solutions to economic, social
and political problems.38 The criminal justice system is often represented
as a system of protection from those who commit violence, such as rapists
35 Ed. Daring, Rogue, Shannon, and Volcano, 8.
36 Abbey Volcano, Police at the Borders, Queering Anarchism, Ed.
C.B. Daring, J. Rogue, Deric Shannon, and Abbey Volcano, (Oakland: AK
Press, 2012), 33.
37 Daring, Rogue, Shannon, and Volcano, 7-8
38 What is the PIC? What is Abolition, Critical Resistance, 25 Apr.
2015, <http://criticalresistance.org/about/not-so-common-language/>.
11

and murderers. Yet, those who murder and rape make up less than 1% of
all criminalized offences.39 In fact, the majority of prisoners are serving
time for nonviolent crimes, such as drug possession offences. The
American Civil Liberties Union, for example, estimates that nonviolent
offenders could account for as much as 85 percent of the federal prison
population that was sentenced to life in prison without the possibility of
parole.40 Furthermore, not only does the criminal justice system
perpetuate and enable violence through its use of retribution as a tactic of
social control, it also does not reduce rates of crime. For example,
numerous studies have shown that prisons are not effective in
rehabilitating or reforming offenders, ha[ve] not been shown to be a strong
deterrent, and ha[ve] achieved only temporary public protection.41
In terms of addressing anarchisms destructive function, the
decriminalization of queerness is one immediate tactic that could decrease
the states right to control our gender and sexuality. The decriminalization
of queerness would involve the abolition of a wide variety of state
regulations that dictate our gender and sexual behavior.42 The
decriminalization of queerness would also deter the states control over
39 The Queer, Feminist, and Trans Politics of Prison Abolition,
Aug. 2008, Prisoner Correspondence Project, 25 Apr. 2015,
<http://prisonercorrespondenceproject.com/QFT_prison_abolition_full.pdf
>, 32.
40 A Living Death: Life without Parole for Nonviolent Offences,
Nov. 2013, American Civil Liberties Union, 25 Apr. 2015,
<https://www.aclu.org/files/assets/111813-lwop-complete-report.pdf>, 24.
41 The Queer, Feminist, and Trans Politics of Prison Abolition, 28.
42 Jerimarie Liesegang, Tyranny of the State and Trans Liberation,
Queering Anarchism, Ed. C.B. Daring, J. Rogue, Deric Shannon, and
Abbey Volcano, (Oakland: AK Press, 2012), 87.
12

and policing of gender and sexuality. However, addressing just the

decriminalization of queerness is not enough since the criminal justice
system relies on other criminal offences to inadvertently justify the
criminalization of queerness. For example, a private LGBT club in Detroit
was raided by the police in 2003 where over 350 people were handcuffed,
forced to lie down on the floor and detained for up to 12 hours while
being physically and verbally assaulted by the police who slammed them
into walls, kicked them in the head and back, and referred to them as a
bunch of fags.43 The police were given the authority to raid the club not
because they were queer but because the officers claimed to be enforcing
building and liquor codes. This example shows that the states use of
criminalization in general must be abolished to secure gender and sexual
freedom. Furthermore, the decriminalization of sex work, abortion, and
the public expression of supposedly deviant forms of queerness will help
bring an end to the states explicit control over sexuality and gender.
As I stated earlier, anarchism also has a creative impulse, one that
allows for a generative politics where alternative institutions not only can
be imagined but also created.44 Within an anarchist point of view based in
both its negative and generative politics, the abolition of the states
criminalization of queerness is not enough since the criminalization of
queerness only addresses anarchisms negative politics. To address
43 AJ Trager, Policing Gender and Sexuality in 2015, 15 Apr. 2015,
Pride Source, 25 Apr. 2015, <http://pridesource.com /article.html?
article=71009>.
44 Martha Ackelsberg, Preface, Queering Anarchism, Ed. C.B.
Daring, J. Rogue, Deric Shannon, and Abbey Volcano, (Oakland: AK
Press, 2012), 8.
13

anarchisms generative politics, an anarchist liberatory position on gender

and sexuality would involve a society based in the self-determination of
gender [and sexual] identity and inclination and freedom from coercive
gender [and sexual] assignment.45 From birth until death, one would no
longer be obligated to fulfill strict gender roles that assigns one as either a
feminine subject or a masculine subject nor would one be obligated to
fulfil sexual expectations, such as the expectation to have sex and get
married, particularly to the opposite sex. Furthermore, if our selfdetermination over our gender and sexual lives was truly realized, our
schools would no longer have the right to regulate and control our gender
and sexuality, and the states promotion of heteronormativity through the
use of federal funding would come to an end. In a society where our
gender and sexual self-determination is realized, we would be free of the
states restraints that currently direct and control our bodies, minds,
desires, and the way we interact with each other.
In summary, the states use of the criminal justice system to
criminalize queerness and its promotion of heteronormativity results in
queerness being perceived as a threat to the state. The state with its violent
instruments of control, such as the police or the threat of imprisonment,
maintains heteronormativity through its violence and also maintains the
criminalization of queerness. To realize an anarchist society where gender
and sexuality are no longer under the states control, anarchisms negative
and generative politics must be addressed. First, there is the abolition of
45 Stacy Aka Sallydarity, Gender Sabotage, Queering Anarchism,
Ed. C.B. Daring, J. Rogue, Deric Shannon, and Abbey Volcano, (Oakland:
AK Press, 2012), 52.
14

the criminal justice system and its criminalization of queerness, which

addresses anarchisms negative politics. Then, there is anarchisms
generative politics, which would lead to peoples self-determination of
their gender and sexuality.

15

Bibliography
37 States with Legal Gay Marriage and 13 States with Same-Sex
Marriage Bans. 17 Apr. 2015. Gay Marriage ProCon. 19 Apr. 2015.
<http://gaymarriage.procon.org/ view.resource.php?
resourceID=004857>.
A Living Death: Life without Parole for Nonviolent Offences Nov.
2013. American Civil Liberties Union. 25 Apr. 2015.
<https://www.aclu.org/files/assets/111813-lwop-complete-report.pdf>.
Daring, C.B., J. Rogue, Deric Shannon, and Abbey Volcano. Queering
Anarchism: Addressing and Undressing Power and Desire. Oakland:
AK Press. 2012. Print.
Fandrey, Sarah Bollasina. The Goals of Marriage and Divorce in
Missouri: The States Interest in Regulating Marriage, Privatizing
Dependency, and Allowing Same-Sex Divorce. St. Louis University
Public Law Review. 32.2 (2013): 447-485. Academic Search
Complete. Web. 19 Apr. 2015.
First Woman in US Sentenced for Killing a Fetus. 31 Mar. 2015. NBC
News. 21 Apr. 2015. <http://www.wncn.com/story/
28664509/first-woman-in-us-sentenced-for-killing-afetus#.VRrrUl9jBtk.twitter>.
Flatow, Nicole. The United States Has The Largest Prison Population In
The WorldAnd Its Growing. 18 Sept. 2014. Think Progress. 17
Apr. 2015. <http://thinkprogress.org/justice /2014/09/17/3568232/theunited-states-had-even-more-prisoners-in-2013/>.
Heath, Melanie. State of Our Unions: Marriage Promotion and the
Contested Power of Heterosexuality. Gender and Sexuality, 23.1
(2009): 27-48. Academic Search Complete. Web. 19 Apr. 2015.

16

Liesegang, Jerimarie. Tyranny of the State and Trans Liberation.

Queering Anarchism. Ed. C.B. Daring, J. Rogue, Deric Shannon, and
Abbey Volcano. (Oakland: AK Press, 2012). Print.
McNeill, Tanya. Sex Education and the Promotion of Heteronormativity.
Sexualities. 16.7 (2013): 826-846. Academic Search Complete. Web.
19 Apr. 2015.
Mogul, Joey L., Andrea J. Ritchie, and Kay Whitlock. Queer (In)Justice:
The Criminalization of LGBT People in the United States. Boston:
Beacon Press, 2011. Print.
Physically Intrusive Abortion Restrictions as Fourth Amendment
Searches and Seizers. Harvard Law Review. 128.3 (2015): 951-2.
Academic Search Complete. Web. 25 Jan. 2015.
The Queer, Feminist, and Trans Politics of Prison Abolition. Aug. 2008.
Prisoner Correspondence Project. 25 Apr. 2015.
<http://prisonercorrespondenceproject.com/
QFT_prison_abolition_full.pdf>.
Queer People and the PIC, Critical Resistance, 25 Apr. 2015,
<http://criticalresistance.org/wp-content/uploads/2012/06/Ab-ToolkitPart-2.pdf>.
Sallydarity, Stacy. Gender Sabotage. Queering Anarchism. Ed. C.B.
Daring, J. Rogue, Deric Shannon, and Abbey Volcano. Oakland: AK
Press, 2012. Print.
Spade, Dean. Normal Life: Administrative Violence, Critical Trans
Politics, and the Limits of Law. Brookland: South End Press, 2011.
Print.
Thurmond, Catherine L. The False Idealization of Heteronormativity and
the Repression of Queerness. MA Thesis, Louisiana State University,
2015. http://etd.lsu.edu/docs/ available/etd-03282015124357/unrestricted/Thurmond_thesis.pdf (accessed 19 Apr. 2015).
17

Top 10 Most Notorious Prisons In The U.S. 4 Oct. 2011. News One. 18
Apr. 2015. <http://newsone.com/1565605/most-notorious-prisons-inthe-us/>.
Trager, AJ. Policing Gender and Sexuality in 2015. 15 Apr. 2015. Pride
Source. 25 Apr. 2015. <http://pridesource.com/article.html?
article=71009>.
What is the PIC? What is Abolition. Critical Resistance. 25 Apr. 2015.
<http://criticalresistance.org/about/not-so-common-language/>.

18