Faculty Post: Bringing Disability Justice to Analysis of Trans* Legal Issues

by Gabriel Arkles, Legal Research and Writing Professor

In 2006, Christina Sforza, a homeless Latina transgender woman, went to a MacDonald’s in NYC with her friends. While there, she used the women’s restroom. Trans women should always be able to use the restroom that matches their gender identity, but in this case she didn’t have an alternative anyway: the men’s room was out of order. Christina even asked an employee which restroom to use and the employee pointed her to the women’s room. Nonetheless, when she was inside it someone began pounding on the door and threatening to kill her unless she came out. When she did, a MacDonald’s manager began beating her with a lead pipe on her chest, groin, head, and arms. Employees began chanting “Kill the faggot!” Christina’s friend called the police. Christina was on the floor bleeding when the police arrived. Still, when her attacker accused her of being a “man in the women’s restroom,” the police arrested Christina rather than her attacker. While the charges against Christina were ultimately dismissed, the police threatened to arrest her again when she tried to make a complaint against her attacker.

This is Christina’s story, more or less as I have retold it over the course of the eight years since the incident occurred. Recently, I listened again to footage in which Christina tells her own story. One major difference between her telling and mine struck me. In my version, I left out the fact that she is diabetic. “I take four shots of insulin a day to keep myself alive, keep my limbs going.” She was going to the bathroom to give herself an injection. When the police arrested her, “they left behind [her] insulin” even though she explained that she was diabetic and still needed a shot. They wouldn’t take her to the hospital for treatment until they tried to remove her handcuffs and found that they couldn’t because her wrists were so swollen. I left chronic illness and ableism out of my retelling of her story, and thus out of the analysis I was seeking to build about state, corporate, and interpersonal violence against low-income trans women of color.

I share this story not to self-castigate, but to give an example of what I believe is a much wider phenomenon. I think lawyers, educators, and scholars often leave out issues of disability, chronic illness, and ableism in many contexts. In trans* legal advocacy and scholarship specifically, most discussion of disability has been quite limited. It has often revolved around the debate over whether otherwise non-disabled trans* people should use disability-based claims in discrimination litigation. The very framing of the terms of this debate can erase the existence of trans people with (other) disabilities. Also, because this debate typically emerges in the context of discrimination claims, it fails to fully engage with other legal regimes that have a major impact on the lives of disabled trans* and gender nonconforming people, particularly those who are also low-income and/or people of color.

Activists, organizers, and artists across the country—many of them queer and trans* disabled people of color—have created vibrant spaces and struggles for disability justice and uncovered past forms of resistance. Leaders like Mia Mingus, Eli Clare, and Reina Gossett challenge us to think of disability justice as inextricable from other movements for social justice, illuminate connections between ableism and other forms of oppression and injustice, inspire us to move beyond myths of independence to a focus on interdependence, and insist on accessibility as a starting point rather than a finish line. A few legal scholars and practitioners, like Dorothy Roberts, Beth Ribet, and Chase Strangio, have done brilliant critical work at the intersections of disability, gender, and race.

When we follow their lead and start with a disability justice framework—or simply listen to the whole stories of people like Christina—a whole other range of concerns and questions emerge as central to trans* legal issues. Areas like criminal law, prison law, civil commitment law, government benefits, family law, and immigration law come into focus. And it becomes clear that, as always, we have a lot to learn and a lot of work to do—and that, as always, we are not doing it alone.

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