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Monday, February 27, 2017

Honesty, the constitution, and "Show me your papers"

I disagree slightly with Garrett Epps's interpretation of 1991's Supreme Court case, Florida vs. Bostick.

It seems clear that while the Supreme Court didn't identify a specific requirement that officers state that people being questioned may refuse to answer, it did state that their "conduct" must give people "no reason to believe that they would be detained if they answered truthfully or refused to answer".

It seems clear that the conduct in question failed this constitutional test, and was thus unconstitutional per standing court precedent.

Meanwhile, the Santa Cruz, CA police department is claiming that Homeland Security misled them about the nature of recent raids, which appear to have been partially intended to identify and capture illegal immigrants not suspected of criminal activity. The Constitutional implications of this are unclear to me; does misleading the government negate jurisdiction in some way? Can California refuse some federal immigration enforcement, on top of the refusal to report some information that some of its sanctuary cities already promise to do?

Luckily for us, not every possible government police or military action is legal or constitutional. For instance, the government may not monitor the content of individual phone calls without a warrant; government officials may not explicitly misrepresent their identities or roles in the course of investigating illegal activity; and government officials may not make people believe they are legally obligated to take some action, such as producing ID or submitting to a search, if they are not actually legally obligated to do so.

When Melania Trump became an illegal immigrant by violating the terms of her visa and performing paid work in the US, as all available evidence suggests, I am glad the laws and constitution were there to provide her some peace of mind that the government would not have carte blanche to use every means at its disposal, such as unwarranted wiretaps, false threats, false impersonation, and illegal demands to pursue and arrest her.

While I wish the Supremes had gone further and established an analog to Miranda rights, they did make it clear that not only are government agents violating your rights if they lie to you about them, they are violating your right even if they imply false information about your rights by their words or actions.

Routine violation of constitutional rights should be a criminal offense punishable by jail time, in my opinion. But I know the Supremes aren't with me there.

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Wednesday, February 15, 2017

Towards the validity of gender expression and perception

Angus Johnson linked to this American Conservative piece by Natasha Vargas-Cooper about Mount Holyoke's cancelling The Vagina Monologues in the face of pressure due to its perceived cisgender bias.

I have no idea of the details of the Mount Holyoke case, or of how accurately Vargas-Cooper is representing it; given my past reading of TAC, I don't trust them to give a fair hearing. And before the halfway point in the article I disagreed plenty with her aggressive traditionalism. But in the first dozen or so paragraphs, I thought she made a lot of sense.

I think there's a strange traditionalism embedded in new PC norms around trans identity. Far from seeing gender as fluid, the new norm demands that we simply shift inclusion in old gender binary systems. Contra, eg., RuPaul, who celebrates expression that transgresses these boundaries freely. (He makes his point cogently in a recent episode of Wesley Morris and Jenna Wortham's podcast, Still Processing)

Expressing and feeling maleness or femaleness can be valid always -- whereas there are those who would formally scold me if I responded to the male aspects of Caitlyn Jenner's expression, as if she has merely jumped from one gender straitjacket to another.

The regulation of pronouns is not a problem invented by shrill right-wingers -- it's really happening, and I think it is distinctly wrong. I find criticism of the Ontario Human Rights Commission policy overblown; its guidance focuses on acceptance and inclusion, and not on speech. But the New York City Commission on Human Rights's guidance is specific to speech and pronouns, and could lead to fines for those who don't use a trans person's preferred pronoun.

In practice, these speech violations won't necessarily conform to the stereotypical scene of a troglodyte looking a muscled and bearded lumberjack in the eye and snidely calling him "her". They could instead involve, say, a longtime coworker who mostly expresses as male asking to be called by a recently introduced pronoun, and well-intentioned coworkers repeatedly slipping up to the point that they have to be penalized or fired because of the lawsuit risk this introduces to the company.

The core problem is that gender identification is simply not the only component of gender, any more than author intent is the only component of reader experience. Aspects of cisgender like menstruation, genetalia, and erections are easy to make fun of as insufficient to withhold gender identity from people. But it is not them, in and of themselves, that dictate gender. Rather, they are aspects of complex systems of genetic and epigenetic expression of gender that affect bone structure, voice, hormones, sexual excitement and desire, and possibly more elements of development that we do not understand well. Every aspect of these expressions is malleable and has exceptions, and operates on a continuum; none of us is born wholly one gender or another, and taking hormone supplements really does shift one's gender expression, and therefore really does shift, expand or contract one's gender.

But these aspects are not meaningful only in one direction, valid only when reduced or acted on to bring expression in line with identity. As someone chooses, through identity only or through active alterations, to change their gender expression, aspects of their previous gender expression remain. To perceive these cis aspects is not, in and of itself, a betrayal or an act of denial of a trans person's identity. Expressing that perception may be done aggressively and dismissively, or it may be done unsupportively, or ignorantly, impolitically or merely out of familiarity with a trans person's older cis expression. There is a big difference between these; I care immensely about how I express this perception, and I think others should too. But that doesn't mean that subjectively perceiving these cis aspects is wrong. Neither is speech which reflects that perception wrong.

I certainly go out of my way to embrace and support the gender identification of trans people. I call Chelsea Manning "she", because she's a woman! (She's also a hero, for the record.) But Chelsea Manning is also a man, in ways that are significant. And if I say "he" once in a while, I'm not wrong. I am doing so, in fact, out of perceptiveness and attentiveness to Chelsea's expression, not out of stubbornness and ignorance. Even moreso if I call someone "he" or "she" who has asked to be referred to by a non-gendered pronoun, a word whose role as a shortcut is simply not part of a language I'm fluent in.

It is alarming to me that people are being expected not only to affirmatively try to embrace trans identities, but to shut off that perceptiveness. It really is demanding newspeak to rule that a building block of speech such as pronouns must be adapted to a feigned perception, or be judged hateful.

If you disagree with me, I have some sincere questions I'd like to know your answers to. I'll continue to refer to Chelsea Manning, she being someone we probably have similar information about. Before openly transitioning, but while internally feeling herself to be a woman, would you say that there was any significant way in which Bradley Manning was a man? If so, what are those ways? Cultured experience? Gender privilege? Physical development? Hormones? Did absolutely every aspect on that list cease to exist when she transitioned? If not, is it possible that perceiving Chelsea in some ways to be a man is valid, rather than prejudiced?

If you don't think there was any significant way in which Bradley was a man, why do you think most people who encountered Bradley thought of Bradley as a man? Predjudice?

If someone doesn't yet know that an acquaintance asks others to use a new, recently invented pronoun to refer to them, are they acting merely from prejudice if they use a gender pronoun to refer to them?

Someone made the point to me that a cop perceiving a black man as violent may also be being honest, but that doesn't make his predjudiced perception valid. I agree. I think the distinction is in the accuracy of the basis for the perception. If you look at a South Asian person and perceive them as Muslim, without knowing anything about their religion, your perception is based on false information; there is no evidence, in what you perceive, to indicate that this person is Muslim. But someone born cis female who transitions to male really did have female aspects in his early life, and will, often, retain some. To perceive those is not false prejudice. To fail in speech to override that perception may be unsupportive, and feel deeply hurtful, and that's why I try not to fail at that. But it is not actually incorrect, isn't immoral, and shouldn't be illegal.

Again, I find myself pleading with fellow progressives not to cede ground so easily to conservatives. The core tenets of progressivism are a bedrock that the vast majority of people support; it is foolish, and wrong, to push our principles with scorched earth, without balance and humanism, and thus to alienate and even punish would-be allies.

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Tuesday, February 14, 2017

The jackboot and the concern troll

A contrarian friend, whose contrarianism I have been pushing against since the election, linked approvingly to this essay by Liane Carlson on "moral luck".

I find this piece very much not true for me. I would much rather the madmen not be in power than that I feel heroic. If what she were saying were true, I think I'd hear friends expressing clarity of purpose and appreciating the soldier's role in a righteous war, more than I'd hear them ask for help with managing panic, weeping because their children are hated by the rulers, and asking for mental health recommendations.

Unfortunately, the opposite seems true, at least in my world.

Going further, I read this piece as applying a  lens I have long felt is ignorant and even complicit with oppression. That lens could be described as "what's really interesting about this power struggle is its epistemology".

You see the problem, for example, in reports about studies of bias that appear to lump liberals and conservatives together, without entertaining the question of what if would mean for evaluating the study to consider whose beliefs are, in the objective world, actually true. There is a genteel elitism in the perspective, from above the fray where the actual battles don't matter day to day; the worst perpetrators of this are the David Brookses and David Frums who hand wring about details while the world burns.

Even the Gaugin example trades in this sort of nonsense. The notion that his success as a painter bears on the morality of his family life is cocktail party flatulence.

Honestly, it's offensive to blather about moral luck like this. An autocratic leader and his horrendous cronies have taken power. Who gives a fuck if people are comparing him to Andrew Jackson or Hitler? The preoccupation with this or that nuance of people's epistemology is some bullshit.

Wake the fuck up.

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