The Trans-Exclusive Archives of U.S. Capital Punishment Rhetoric

Transgender Communication Studies Histories, Trends, and Trajectories Edited by Leland G. Spencer and Jamie C. Capuzza LEXINGTON BOOKS Lanham• Boulder• Ne;,, York• London Leland G. Spencer IV 198 CONCLUSION Sadly, the support Weekley received in the immediate aftermath of his coming out eventually abated. In 2013, Weekley left Epworth United Methodist Church and moved across the country to begin a doctoral program in ministry at Boston University School of Theology. Explaining his decision on his blog, Weekley wrote: After publicly disclosing my history as a transgender man I struggled for three years to continue local church ministry and provide leadership and education for my denomination concerning the authenticity and spiritual experiences of many transgender persons of faith. Despite verbal support promised by many people, actions by my bishop, district superintendents, several colleagues, and some members of the congregations I served proved othenvise. One of the Chapter Thirteen Legal Discourse The Trans-Exclusive Archives of U.S. Capital Punishment Rhetoric Peter Odell Campbell and Cory Holding most painful personal truths I learned through this process is exactly how deep, and often subconscious trans-phobia actually is in our culture. I still believe some of those v..·ho hurt and abused me and my family do not accept as true that they did so. (2013) Taken as a whole, Weekley's experience reflects a wide range of the influence of religious co=unication on transgender lives. Weekley's faith in God and trust in God's love sustained him for many years, abiding through his transition and nearly three decades of ordained ministry. Religious faith not only made meaning for Weekley, but offered hope and promise in the midst of his bodily transition. After coming out, Weekley discovered how quickly the honeymoon could end (and I invoke a cisnormative and heteronormative metaphor here intentionally and reflexively). Religious co=unities, for Weekley, also functioned as a source oftransphobia., of violence, of fear. People's real, material, embodied lives intersect and interact with religious co=unication. Sometimes, those encounters act violently on trans lives. Other times, those encounters offer tremendous hope for transformation-Dr perhaps even transfiguration. NOTES L I originally accessed Weekley's sermon from the Epworth United Methodist Church Web site in February 2010, though the sermon has since been removed from the site. Weekley (2011) expanded on his story in his memoir, In from the Wilderness. A substantial excerpt of "My Book Report" appears in the book itself_ 2. I borrow this phrase from Martin Luther King, Jr.'s «Letter from a Blrrningham Jail." See King (1992). The official ｬ｡ｮｧｵｾ＠ of U.S. law has a significant, and sometimes understated, degree of sovereign control not only over those individuals forcibl btt t . di . . di . ysu Jec o 1 s i=e ate Juris ctions (such as someone brought up on criminal charges), but also over all possibilities of present and future life within the borders of the United States (Campbell , 2012, 2013) . US . . 1egal 1anguage ｾｨｯｵｬ､＠ be studied as something to be feared and strategized against. A specifically transgender approach to such a project, however, poses some difficulty. The vast body of U.S. institutional legal rhetoric contains within it what K-_ J. Rawson (2009)_ has called ambiguously transgender archival spaces. In this chapter, we tum m particular to U.S. judicial and administrative rhetorics of capital purushment and_ incarceration. The total set of these discourses forms ｬ･ｧｾＬ＠ rhetoncal archives wherein the exploration of "trans people and trans lives (West, 2013, p. 9) _is a morally questionable undertaking. To name many people caught up m these archives' discursive fields "trans" ｾｶｩｯｬ･ｮｴ＠ act. But, U.S. rhetorics of capital punishment would be ｵｮｷ･ｬｾｯｭＬ＠ ｾ､＠ pnson ｟｡ｾＧＮＱｳｴｲＰｮ＠ are core tools in the ongoing statist project of gender policmg trans people (TransJustice, 2005, pp. 227-228). . Trans personhood can exist both variously and simultaneously as an idenl!1y form and a more or less "temporary" set of "contextualized experiences" and practices (West, 2013, p. 14). We argue that transgender studies in legal ｲｾ･ｴｯｮ｣＠ must find ways to answer the question of how to approach fields of discourse (such as official capital punishment rhetoric) wherem· tr h d · "unr al· ,, ans persone 1zable (Butler, 1999, p. viii), but to do so in ways that do not oo is 199 200 Peter Odell Campbell and Cory Holding replicate the appropriation of "transgender" as a "mere tropological figure" in academic arguments about the various limits of linguistic categorization (Namaste, 2000, pp. 14-15; see also, West, 2013). In what follows, we offer a rhetorical distinction between certain de jure and de facto forms of U.S. capital punishment rhetoric. From this distinction, we argue for building a space conducive to critical analysis of state-institutional legal language within the field of transgender communication studies. We hold together: the absence and unrealizability of named trans life in the official language of capital punishment law and the unofficial deadly consequences of articulations oftransgender life-in-prison by judicial and administrative rhetors. We view this critical combination as an opportunity to turn these archives of erasure, absence, and failure toward a productive and hopeful end. By mapping the discursive structure of cisnormative punishment institutions, trans rhetorical study can provide useful resources to the effort to abolish those very institutions. TRANSGENDER STUDY IN THE RHETORIC OF LAW In writing a chapter about transgender studies in legal rhetoric (which is largely, although not exclusively, a sub-field of communication studies), we face a productive challenge. Existing legal rhetorical work in transgender studies is rich, useful, provocative-and rare. Few transgender-inclusive studies of U.S. judicial or administrative punishment rhetoric have been published by communication scholars in communication studies outlets (for examples of the exceptions that prove the rule, see Chavez, 2011; Cloud, 2014). This may be because the turn in queer and trans communication, history, and legal studies away from the policy pronouncements of statist institutions and toward the language and procedures of the administrative entities responsible for implementing law in the daily lives of U.S. residents is relatively new (Canaday, 2009; McKinnon, 2011; Spade, 2011). But it could also be due to the procedural, ethical, and political difficulties inherent to any transgender study about a body ofrhetoric that works to exclude and punish any form of trans identification within its boundaries. Our goal in this chapter is to help articulate a mode of explicitly transgender inquiry about the rhetoric of U.S. punishment and prison administration. While our focus in this chapter centers on civilian prisons, many of our conclusions could apply just as strongly to military prisons. Any form of transgender study is necessarily rhetorical. "Transgender" is a recent addition to our lexicon. The word itself is a collocation, an assemblage of two words constellated on the basis of overlapping relationships of 1 similarity, difference, and mutual reference (Threadgold, 1997, p. 102). As Rawson and Williams (2014, p. 2) described it, transgender is simultaneous- Legal Discourse 201 discursive signifier for an active "rhetorical landscape" of idenly: a ｦｬｯ｡ｾ＠ tJty. categones and subject positions and an ontology demarcated by a set of var10us "trans-gender" practices of being and relation (Rawson 2009 131, emphasis in original). ' ' p. _In the language of U.S. legal institutions (the language of courtrooms, legislatures, and governmental administration) transgender functions more as a device for .violently defining trans people in terms of previously cons1:1:'cted categones of illness and deviance than as a progressive statist recogmtJon of trans people's self:identification. Most often, however, transgender works as both at the same tJme (see, for example, Havlik, 2012). Isaac West (2008, 2010, 2013)-the critic responsible for much of the communication ｾｴｵ､ｩ･＠ work in transgender legal rhetoric-works accordingly through an mvers10n of legal scholarship's typical focus on state-institutional authors. Followmg m part David Valentine (2007), West takes a subject-focused, ethnographic approach to transgender study. He writes about quotidian legal rhetonc as ｴｲｾ＠ people both expenence and produce it. For West (2013), the practJce ofwntJng about law via trans people's everyday legal articulations ?flaw and c11:Jzensh1p works as a necessary corrective to scholars interested m transgender only as a hermeneutic device for their own self'referential ｴｨｾｯｲ･ｩ｣｡ｬ＠ explorations of categorical failures in legal discursive forms. fu this wa?''. West's wo:k r:ms parallel to other recent ®ting by queer, trans, and ac1:Jv1st commU!IlcatJon scholars who focus on the possibility of trans life per ｾ･＠ as a foi:n and strategy of performative resistance to oppressive cisnormatJve rhetoncs produced by statist institutions (see, for example, McKinnon, 2014). of transgender study as rhetorical entails a recognition of But ｣ｯｮＬ･ｩｾｧ＠ transgender s inherent polysemy. Transgender is a term both for self-identJficatJon ｾ､＠ for the organizational and institutional interpellation of others. I: 1s a dev:ce .use.d for good and ill by activist, medical, and legal organizatJons and mstJtutJons seeking to make sense of evolving realities of sex and gender ｩ､･ｮｾｴｹＮ＠ As an U!Ilbrella term (Rawson & Williams, 2014, p. 2), trans.gender 1s a VItal resource for many different people erased by subsU!IlptJon ｾｮｴｯ＠ other U!Ilbrella terms like queer (or female, male, person). It is also a permc10us termmolog1cal force for the collapsing together of race sexual class, sex, and gender difference under the sign of a single new identlty forn: (ValentJne, .2007; Rawson, 2009; West, 2013; Rawson & Williams, 2014). Here at the mtersect10n oftransgender studies and trans-exclusive institutional legal rhetoric, we are mindful of Rawson's (2009, p. 131) eloquent descnptJon of transgender research in an archive of sources that pre-date the term-because m such an archive it would be difficult, in a certain terminological sense, . . to "explore trans people and trans lives" as the primary fio cus of an exp11c1tly transgender scholarly inquiry. 202 Peter Odell Campbell and Cory Holding Rawson (2009, p. 131) considers a hypothetical archivist's interaction with a set of papers written by a "female-born person of colour who often passed as male and used the identity label 'bulldagger. "' If the archivist names this person, or labels their papers, as transgender, the archivist "disrespectfully and oppressively" names "an identity ... that already has a name." The name the scholar chooses interpellates a person of color into a rhetorical form that, for all of its necessity and potential, is also freighted with practices of white-normative racial erasure. Naming this person "trans" might erase who they are or were. But this possibility must be weighed always against the possible consequences of not naming. If the researcher, aware of the violence they might do, chooses not to name the archival subject, or label their papers, as transgender, they risk participating in the archival subject's erasure from the "long lineage of other people who trans-gender"-and in this way, also participate in the ongoing white-normative erasure of trans, gender nonconforming, and genderqueer people of color. Rawson's scenario invites the question of whether transgender communication study should privilege a focus on the communicative outputs and experiences of self-identified trans people (as we believe West argues). In general, we believe transgender communication study should do so. But in this chapter, we depart from this standard on methodological and terminological grounds. From our out•ider, public archival research perspective, no sclfidentified trans people live on death row. The rhetorical archives constituted in officially produced discourses of U.S. capital punishment and prison administration are so effective in their violent cisnormativity that they erase any possibility of meaningful trans life for many who are caught up in their jurisdiction. We take the tension in Rawson's hypothetical scenario between the choice to name or not name an archive as transgender as the basis for refusing either choice. Instead, we suggest a transgender rhetorical study of archives 1hat trans-gender, but should not be named trans*-this is, a study of those "archives of failure" wherein transgender articulation and identification carries the least possibility and 1he greatest risk. The officially produced discourses of U.S. capital punishment and prison administration form a de facto-existing in reality, if not by right in lawsystem of cisnormative capital punishment that operates in two forms. First, it demands execution for people whose trans personhood is ei1her non-existent or unspeakable, but none1heless marks them for dea1h. Second, it operates 1hrough laws and procedures whose de jure---in law-purpose of protecting vulnerable prison populations works as a cover for 1he laws' de facto function of acting as a transgender dea1h penalty. West's practice oflegal inquiry in communication is generally consistent wi1h the broadly anti-establishmentarian foci of queer legal studies. Transgender scholarship that focuses on what 1he queer legal theorist Leslie J. Moran (2009, p. 295) called "black letter" law-that is, research focused Legal Discourse 203 literally on 1he letter of1he law-risks reproducing what West (2013, p. 21) called an "archive of failure." Research limited to 1his "black letter" archive West argued, moves attention away from powerful and innovative forms of anti-cisnormative resistance found in everyday transgender legal articulations. Again, we tend to agree--except that an overbroad application of this anti-black letter me1hod ignores the particular context of de jure U.S. punishment rhetoric and other U.S. legal rhetorics that work de facto to punish and even to kill (Campbell, 2012). There is in fact a dea1h penalty for being trans (and in particular, trans and poor, trans and black, trans and immigrant, trans and queer) in 1he United States. This rhetorical death penalty is rooted in prisons and death rows, but it reaches out from spaces of incarceration to affect trans gender, gender nonconforming, and genderqueer life "on 1he outside." There are trans people who experience relative safety from the effects of 1his de facto dea1h penalty-but this safety is in no small part a function of structurally inherent forms of race, citizenship, gender, class, familial, and other privileges. Analysis grounded in transgender 1hat would avoid replicating racialized and other problematic blind spots often implicated in the use of the term must take up transgender as a varied and intersectional identity form (Spade, 2011; West, 2013). In particular, any study of U.S. transgender legal rhetorical identifications and articulations SrDuld be grounded in the fact that trans people of color specifically are more subject to official and unofficial forms of state violence than any other identity group in 1he United States (Davis, 2014; Wideman, 2014). This means that ifthe language procedures of U.S. punishment administration imply trans failures, 1hese failures help to delineate those transgender subject positions (intersectionally implicated in race, ethnicity, gender, class, sexuality, nationality, family, and citizenship status) through which people are more capable of everyday articulations of trans resistance. Any such resistance, of course, is often met wi1h violent repression and dea1h. But 1hese violent responses are most likely to be directed at trans people who are poor, black, and queer. Turning our rhetorical critical attention away from legal "archives of failure" will not help to change this fact. As we argue elsewhere, rhetorical legal methods offer an opportunity for an anti-establishmentarian insistence on 1he value of understanding "how" certain state-institutional rhetors make 1heir claims (Campbell, 2012; Constable, 2004, p. 78). An occasional focus on legal rhetorical archives of [trans] failure need not fall into the trap of trans-effacing scholarship that West (2013) and Viviane K. Namaste (2000) warned us of. Instead, we call for trans, legal, rhetorical study as one tool in 1he multi-pronged scholarly and activist effort to abolish 1he places of incarceration where these archives offailure are produced and maintained. 204 Legal Discourse Peter Odell Campbell and Cory Holding DE FACTO PUNISHMENT Two concepts in legal scholarship represent potential resoun:es for realizing transoender archive of trans-exclusive death penalty rhetonc. The first 1s a ｾｯｬ･｣ｴｩＧｮ＠ of theories that examines sentencing procedures in trials of women convicted of death-eligible crimes to argue that capital punishment serves as the ultimate arbiter for policing and maintaining patriarchal gender norms m th United States. The second is a concept called the "accidental death penalｴｹＧｾ＠ -a legal rhetorical construction designed to frame administrative ｦ｡ｩｬｾ･ｳ＠ in the treatment of mentally ill mmates as v10lat10ns of the U.S. ｾｯｮｳｴｊＮｵﾭ tion' s Eighth Amendment prohibition on cruel and unusual ｾｵｭｳｨ･ｮｴＮ＠ These theories seek to explain the de facto discnmmatory reality of legal statutes and procedures that might seem like "facially neutral" attempts at distributing and ordering justice (Siegel, 1998, p. 31). Taken toget'.'er, they suggest a hermeneutic for an explicitly ｴｲ｡ｮｳｧ･､ｾ＠ study of Jud1c1_al and other discourses oflegal administration that assumpt1vely deny the legitunate existence of transgender people. But we do not want to take an add-transand-stir approach to existing theories-or to existing ｩｮｾｴ｟ｕｯ｡ｬＮ＠ archives (Butler, 1990; Morton, 1994). We aim ｩｾｳｴ･｡､＠ to JO!ll eXlstJ.ng projects that attempt to force a space for transgender rnqurry within certam v10lently c1snormative legal rhetorical ardri ves-archives that exclude but matter to trans · us lives. . The distinction between de jure and de facto law 1s common m . . judicial practice and scholars.hip. The terms. are not ｾ･｣ｳ｡ｲｩｬｹ＠ ,1;"utua11;, exclusive: de jure means "by nght" or "according to law ; de facto, _m fact. The juxtaposition of the two terms is used by legal rhetors (both JUdi?1al and ·tical) to signal instances where judicial precedent or legal statute nnght not ｾｬｩ｣ｴｹ＠ require a certain consequence, but nonetheless in actual fact make it so. Reva Siegel (1998, p. 31) used the distinction between de Jure and de facto forms of racial segregation to argue that even after the ･ｾ､Ｍｭ｟＠ the constitutional outlawing-of legally mandated (de jure) racial segregat10n, "many facially [de jure] neutral state practices" are in actual fact (de ｾ｡｣ｴｯＩ＠ continued forms of mandated discrimination. In this example, the "demise of de jure segregation" did not bring an end to, or even a substantial dii:im1shment of, racial caste in the United States because de Jure ｳ･ｧｲ｡ｾｯｮＮ＠ has been replaced with various statutes and judicial precedents that mamtam a system of de facto white supremacy (Siegel, 1998, p. 56). Comparisons among de jure and de facto forms _of la': can be useful for rhetorical legal analysis because they enable a cons1deratJ.on of the meanmg and effect of legal language beyond the prima facie statements o_f pobc1es, statutes, and judicial opinions (Constable, 1998, 2004):2 e think this 1s particularly true in the context of jurisprudential rhetonc_ unphcatJ.ng trans people in capital punishment. An exclusive focus on the discourses of either '!f 205 de jure or de facto systems of execution would not be adequate for the project of mapping out the rhetorical system through which U.S. polities kill trans people, and people who trans-especially not for the purpose of helping to abolish that system. Our alternative, a rhetorically constituted de facto death penalty, exists as a collocation of deadly punishment discourses targeted simultaneously at all transgender people in the United States, and also toward non-trans identified people subject to U.S. capital sentencing procedures, who are executed because they somehow "trans-gender." TRANS(-)GENDER CAPITAL PUNISHMENT To read the official archives of U.S. law, one would think that trans people are not subject to capital punishment. Presently, there appear to be no persons who are imprisoned for capital crimes and awaiting execution in U.S. state or federal prisons who publicly identify or have been identified in popular media or public legal documents as trans people. It may or may not actually 3 be the case that there are no trans people on death row-but trans people are disproportionately represented in all forms and levels of jail and prison as a result of systematic legal, racial, and economic marginalization and active targeting by police and citizens (Spade, 2006; Tarzwell, 2006; West, 2013). Sydney Tarzwell (2006) and Dean Spade (2011) argued accordingly that there is a coherent, multi-level punishment system of targeted antitrans administrative violence directed especially against immigrants, noncitizens, people of color, queer people, and poor people who are transgender (Spade, 2011 ). This system of administrative violence is not specifically mandated in any U.S. law-but its effects are real, and sometimes deadly (Bassichis, 2007; Spade, 2011). The question of whether any trans persons are presently subject to capital punishment is, therefore, mostly irrelevant to the fact that every day trans people face the threat of death at the hands of the state. One possible reason for the absence of any explicitly transgender voices in the archives of U.S. capital punishment rhetoric is that any trans-identification "on the row" could have potentially deadly consequences. The late 1970s saw the enactment of a series of state and federal statutes written with the de jure purpose of eliminating arbitrary and capricious decision making from capital sentencing procedures (Baldus et al., 1998; Barmer, 2002). These statutes require comparative evidence about the "aggravating and mitigating circumstances" of a capital convict' s crimes to be presented in the post-conviction, sentencing phase of a capital trial as a guide for a jury's deliberations about whether to hand down a death sentence(§ 921.141, Fla. Stat., 2013). In the late 1990s, a group of feminist law students, including Jenny Carroll (1997) and Melinda O'Neil (l'l.99), published a series of in- 206 Legal DiscoUl'Se Peter Odell Campbell and Cory Holding fluential law notes arguing that aggravating and mitigating circumstances laws, as applied in particular to women convicted of death-eligible ｣ｲｩｭｾｳＬ＠ have had the de facto effect of establishing the U.S. system of death penalties as a mechanism by which the nation-state enforces normative expectations for femininity. Prosecutors charged with malting "aggravating circumstances" arguments in favor of executing women (persons whom the court defines as female) convicted of capital crimes frame their targets as "evil women"-'"crazed monsters' deserving of nothing more than extermination" (Carroll, 1997, p. 1416· O'Neil, 1999, p. 221). Prosecutors accuse these people of performing_.'..in the commission of the crime they are convicted of, in their daily lives or both-such grossly '"unladylike' behavior" that they can no longer be eligible for the paternalistic protective impulses of U.S. judicial actors (Shapiro, 1999, p. 459). They are found guilty of the de facto crime of murder particularly inconsistent with a judge or jwy 's notions offeminine ideals. For Carroll (1997, p. 1451), the apparent "scarcity" of women on death row is actually the best evidence for the gender-disciplinary "power" of U.S. capital punishment. Death row, according to these theories, is our national society's ultimate demarcation of a "limit-experience" of tolerable feminine behavior (Foucault, 1991, p. 18). We find these theories persuasive. But one problem with them, as Barbara Cruikshank (1999, p. 1115) put it, is that "not all women" convicted and sentenced to death "are 'women,"' and, we add, not all men who must undergo U.S. capital sentencing are men. Both the prosecution of _capital punishment in the United States and its contrarian study by femm1st anti-death penalty scholars are simultaneously and mutually ｧ･ｮ､ｾｲ＠ and cisgendered. The dominant abolitionist archives of sex- and gender-!Illphcated U.S. capital punishment discourses are places wherein trans people have been presumptively erased. . . . . We argue that an appropriate corrective would not, m this case, he m Rawson's "naming" option. It may be more productive-and perhaps more ethical-to recognize that transgender's potential as a progressive mode of signification and self-identification might begin to break d_own within the most oppressive and circumscribed spaces of U.S. mcarceratton. As Ruthann Robson (1998, p. 35) observed, "while sexual identity is arguably always socially constructed, it is difficult to fathom more 'constructing' circumstances than the threat of being executed." In any de jure pumshment context (as we will discuss in a following example), an accused or ｣ｯｾｶｩｴ･､＠ persoi:'s identity is forcibly subordinated to legal rhetoncal 1denttficat10n at the whim of judicial and bureaucratic state officials. A person's means for resisting the consequences of this oppressive identification is heavily determmed by mtersectional circumstances of racial, class, citizenship, gender, sexuality, and other forms of privilege that are beyond their control. The study of "trans 207 people and trans lives" as they exist and resist under the sign of U.S. capital punishment rhetoric would often be a study that privileges the resistive potential of those certain people who are more able to be who they are in incarceral spaces. Instead, we suggest that the unrealizability of trans life within the archival space of U.S. capital punishment rhetoric's discursive field signals the de facto operation of de jure capital punishment as a deadly warning directed not just at trans gender people per se, but at people who dare to trans-gender within the long reach of U.S. law. Such a theory disaggregates the gender policing effects of capital punishment away from the supposed targeting of gender transgressive members of putatively fixed identities (women convicted of murder). Instead, the procedural rhetoric of capital sentencing can be approached and resisted for what it is: one of many statist tools in the violent administration of cisnormativity. THE" ACODENTAL DEATH PENALTY" In 1992, Michelle Lynne Kosilek was convicted in Massachusetts of firstdegree murder for the death of Cheryl Kosilek. From the year of her conviction, Kosilek has been in litigation with the Massachusetts Department of Corrections (DOC) over the DOC's refusal to provide her access to sex reassignment surgery. On January 17, in Kosilek v. Spencer (No. 12-2194, !st Cir. 2014), a panel for the United States Court of Appeals for the First Circuit upheld the District of Massachusetts's 2012 order that DOC Commissioner Luis S. Spencer must provide Kosilek this "medically necessary" surgery, as failure to do so without "penological justification" subjects her to "'unnecessary and wanton infliction of pain'" in violation of the U.S. Constitution's Eight Amendment prohibition on cruel and unusual punishment (Kosilekv. Spencer, 2012, p. 115; Kosilekv. Spencer, 2014, p. 3). The case is now awaiting an "en bane" decision from the entire First Circuit bench. Throughout the process of her investigation, arrest, trial, appeal, and Eighth Amendment litigation, Kosilek has been subject to a variety of forms of"gender policing" by agents of the state. In the 1996 Massachusetts Supreme Judicial Court opinion upholding Kosilek's conviction, Justice Neil L. Lynch insisted on referring to Kosilek by her male birth certificate name and with masculine pronouns--despite the fact that Kosilek had legally taken the name Michelle, and that, in Lynch's words, a "single justice of this court [had permitted] the defendant ... to refer to himself [sic] as Michelle Kosilek" throughout the high court's consideration of her appeal (Commonwealth v. Kosilek, 1996, p. 449nl). Lynch's diction is not some accident of procedure in judicial composition. We read it as a deliberate judicial rebuke to Kosilek for both being and living as trans. Writ4_ig for the District of Massa- 208 Peter Odell Campbell and Cory Holding chusetts in Kosilek v. Spencer (889 F. Supp. 2d 190, D. Mass., 2012) District Judge Mark L. Wolf used Kosilek's name, Michelle, but referred to her throughout the District Court's opinion with the masculine pronoun. Wolfs pronoun use is subsequently explicitly corrected in direct quotations of his opinion by First Circuit Judge Ojetta Rogeriee Thompson (2014, p. 55). Both name and pronoun use are, therefore, clearly a choice available to judges. Lynch seems to complain that Kosilek was "permitted" to call herself by her own name during her appeal proceedings; the evident contempt Lynch displays for this permission may have had some influence on the Massachusetts Supreme Judicial Court's negative view of Kosilek's claims in her own defense (McKinnon, 2009). We dwell on Lynch and Wolfs cissexist naming decisions to emphasize how Kosilek has been treated by both prison administrative and judicial rhetors. As Kosilek (2011, p. 9) writes: I'm a prisoner, a transsexual currently transitioning to female \Vhile living in a men's prison. It is ... the most humiliating and reactionary environment in which to transition from one identified gender to another, but I had no choice in the matter . . . the realities of prison life are too complex to properly explaID ... but some have results that are so far out of proportion to their intended purpose that they can fill one's days with grief. This set of de facto results of seemingly mundane prison policies has material and even deadly consequences for any prisoners situated similarly to Kosilek. Federal courts have so far recognized the medical necessity ofKosilek's demand for access to sex reassigmnent surgery. In an amicus brief filed with the First Circuit on Kosilek's behalf, lawyers for Gay and Lesbian Advocates and Defenders (GLAD) and other organizations characterize the Massachusetts Department of Corrections as a cynical state institution that would rather risk the death of a prisoner than face the possibility of public opposition to providing Kosilek with necessary care (GLAD et al., 2013). Taken at face value, GLAD's framing of Kosilek's case is evocative of a legal theory developed by Elizabeth Alexander in support of her own Eighth Amendment litigation-what Alexander calls an "accidental death penalty" for mentally ill prisoners. In 2008, Alexander (pp. 3-5}-the director of the National Prison Project of the American Civil Liberties Union Foundation--coined the term "accidental death penalty" in reference to certain policies common to U.S. prison administration treatment of mentally ill prisoners. One of Alexander's clients, Timothy Souders, was a physically and mentally ill person imprisoned in March 2006 at the Southern Michigan Correctional Facility. Souders died on August 6, 2006, in administrative segregation, or solitary confmementwhere he was held in conditions so severe that his death became a predictable outcome. Broadly, "accidental death penalty" references the deadly conse- Legal Discourse 209 quences Souders and many other prisoners face as a direct consequence of a series of intersecting "public policy choices" in an era of mass incarceration. The "accidental death penalty" works as a legal rhetorical tool for positing that "systemically inadequate care" (including the use of solitary confinement as afon::' of treatment) in ｾ･＠ treatment of mentally ill prisoners represents a v10lat10n of U.S. constitutional prohibitions on cruel and unusual punishment (Alexander, 2008, p. 7). Kosilek's case, which depended on Kosilek's (2011, p. 9) self-identified and legally recognized gender identity disorder (GID), suggests that trans prisoners may also form a set of incarcerated people who are subject to this "accidental death penalty," constituted simultaneously in medicalized adminｩｳｴｲ｡ｾｶ･＠ ｾｯｬｩ｣･ｳ＠ toward trans prisoners, and the medical interpellation of certam pnsoners as transgender or transsexual regardless of their self-identifi:ation. "Systemically inadequate care" is a reality for transgender, gender vanant, gender non:conforming, and genderqueer prisoners. Trans people are almost always denied access to gender affirming medical treatment while they are incarcerated (Tarzwell, 2006, p. 170). Rare exceptions to this denial occur in situations involving trans, gender non-conforming, and genderqueer people who-with and without their consent-have been given a diagnosis ofGID. A GID diagnosis represents one of the only chances for any incarcerated person to experience trarnsgender affirmation from their supervising inst1tut1on. But at the same tune, the prison views the diagnosis as a label of mental illness. GID diagnoses thus render trans people (and/or people interpellated by prison medical staff as trans) doubly vulnerable to prison policies that use ｾｯｨｴ｡ｲｹ＠ confinement as a catch-all mechanism for both "treating" mentally m mmates, and for addressing violence directed against trans prisoners by pnson guards and by other prisoners at the direction and behest of prison guards (Tarzwell, 2006). If the rhetorical archive of Alexander's accidental death penalty included the experiences of trans prisoners, then Kosilek' s eventual victory in court could be celebrated as a repudiation of the accidental death penalty-an ｾｸ｡ｭｰｬ･＠ of a prisoner rescuing herself from prison administration policies so ｭ｣ｯｾｰｴ･ｮ＠ as:? be deadly. The District Court's language of no "penolog1caljust1ficat1on for the DOC's denial ofKosilek's requested care could set a po:verful precedent for raising instances of administrative incompetence (not Just toward trans people) to the level of willful constitutional violation. We argue, however, that Kosilek's case represents something more insidious than an "accidental death penalty." Kosilek might win--even at the United States Supreme Court-and we do not diminish the significance of such a victory, one resulting from a person courageously taking up the only arms. available_ to her Ｑｾ＠ the fight to live her life. But the rhetorical study of judicial rhetoric must mclude an analysis of certain judicial argumentative choices in addition to the immediate consequential effects of judicial opin- 210 Peter Odell Campbell and Cory Holding ions. The success of Kosilek' s Eighth Amendment claim depends on continued judicial recognition that her case meets various brightline criteria-specifically, that the DOC's refusal ofsex ｲ･ｾｳｩｧｭｮｴ＠ surgery ､ｾ･ｳ＠ ｾｯｴＬｮｳｩﾭ tute a "o-ood faith" effort to further a "legitnnate penological objective (Kosilek v. Spencer, 2012, p. 115). The Supreme Court's Eighth Amendment finding in Furman v. Georgia of capricious and arbitrary ｰｲｯ｣･､ｵｳＮｾ＠ ｣ｾｰｩﾭ tal sentencing led directly to the creation of aggravating and nntigatmg circumstances statutes (Baldus et al., 1998). Kosilek's case will also inspire the creation of new de jure procedures for treating trans imnates that purport to meet whatever criteria for good faith "legitimate penological objectives" judicial rhetors choose to set. We should not assume that these criteria would have a net positive impact on the lives of trans people subject to the U.S. criminal justice system. In fact, based on precedent, we should probably assume the opposite. District Judge Wolf's casually violent discursive treatment of Kosilek occurs in the context of what is otherwise a relatively "favorable" instance of judicial treatment of a trans person. As such, Wolf's pronoun use underwrites a broader reality. The death penaltyfor trans prisoners is not the "accidental" result of cruelly incompetent pnson poh01es for mental illnesses or GID. It is instead a de facto death penalty constituted in existing official and unofficial policies directed specifically against trans people. . . . . . . A trans person's experience oflife m pnson and p!l is likely to be characterized primarily through violence. This is a rhetorical ｲ･ｾｩｴ｟ｊＧＬ＠ pr?duced and maintained through the persuasive language of pnson admrmstration. Prisoners interviewed for the Sylvia Rivera Law Project's (SRLP) "Report on the Treatment of Transgender and Intersex People in New York State Men's Prisons" (Bassichis, 2007) reported not only that prison guards and other correctional employees are primarily responsible for violence against trans prisoners, but that this violence is accompanied, enabled,_ and committed via rhetorics of cisgendering discipline. Bianca, "an SRLP client ... nnpnsoned in the general population," stated in the report that "the admillistration is against us. Something has to be done, and all they say is 'Act like a man!' ... the Inspector General said officers have a right to [rape] me. That I'm just a man and shouldn't be dressing like this" (Bassichis 2007, p. 19). Trans people are disproportionately subject to rape and sexual assault in ＨＲｾＱＩ＠ argued,_ the U.S. prisons and jails (Bassichis, 2007). But as ｓｰ｡､ｾ＠ primary legislative corrective to rape and sexual assault m pns?ns, the Prison Rape Elimination Act (PREA), is a highly effective mechanism for pnson administrators inclined to inflict violence against "prisoners of color and queer and trans prisoners," because the PREA's implementation gui_delines unsurprisingly emphasize "punishment tools" including both protective. and punitive solitary confmement. 4 In sum: trans people are shunted mto. pnson via other bureaucratic agencies; pnson adrnimstration pohcies are wntten to Legal Discourse 211 punish any instance of gender variance or non-conformity; legal statutes written for the ostensible purpose of protecting prisoners from assault have the opposite effect; prison officials consistently perform sometimes deadly violence against trans imnates; and this violence is both immediately physical and conveyed performatively through official and everyday cissexist speech. The concept of a de facto death penalty for trans prisoners facilitates the charge that when a trans person is injured or killed in the context of interaction with prison institutions, it is not merely an accident, or the result of an oversight stennning from an individual officer's criminal negligence, or even the by-product of unconstitutional and potentially criminal sets of prison administrative practices. Trans deaths in prison are the deliberate result of a rhetorically constructed system of cisgender discipline. Because prison policies purportedly designed to aid trans people work instead to hurt and kill them, the discursive procedures governing U.S. prison administration of trans people are in fact, if not in law, a rhetorical system of capital punishment for the de facto crime of being transgender. Officially, of course, such a thing is impossible. There could never be a de jure punishment for being trans-at least not in the present version of our constitutional state. A legal rhetorical perspective looks beyond the surface meaning of legal language, enabling an understanding of how the discursive operation of certain administrative policies nonetheless results in a set of de facto punishments for any person whose life stands in violation of cisgender legal normativities. CONCLUSION In this chapter, we attempt to follow some ofK. J. Rawson's archival advice for the transgender study of sets of institutional legal discourses that both implicate transgender people and presumptively exclude them. The collocation of rhetorics of U.S. capital punishment sentencing procedures directed against people who trans-gender and rhetorics of U.S. prison administration directed at transgender people forms an overlapping set of institutional legal arguments about the relative value to the U.S. polity of normatively stable vs. gender-divergent bodies, lives, ways of being, and relations. These explicit (de jure) and implicit (de facto) arguments have equally sovereign effects (Butler, 1997; Campbell, 2013). They have potentially deadly consequences for all gendered life within the reach of U.S. law. Cruikshank (1999, p. 1115) defines gender specifically on death row not as a form of identity, but rather a "terrain of contestation open to the condemned" for the purposes of antijuridical resistance. We take Cruikshank's definition as our first example of possible future study in trans legal rhetoric. Rather than ignore or erase "trans people and trans lives," the transgender study of capital punishment rhetoric ··--<1···· ·... ·.. 212 Legal Discourse Peter Odell Campbell and Cory Holding as an archive of trans unrealizability could enable future rhetorical critical celebrations of a certain possibility; namely, the possibility that people who are not, cannot, or must not be transgender might still, in certain circumstances, rhetorically perform transgender resistance to cisnormative legal institutions. Isaac West's pathbreaking work in queer and trans legal rhetoric warns of the danger in constantly reproducing "archive[s] of failure" related to trans life in the United States-something that our insistent focus on the interpellation of trans people into official punishment discourses certainly risks doing. But the critical positing of a rhetorically constituted, de facto death penalty for both transgender people in prison and people who trans-gender in U.S. legal jurisdictions can also be one contribution of communication studies scholarship to a growing anti-statist and anti-establishmentarian transgender archive of capital punishment and prison abolitionist resistance. That is, by promoting an understanding of its existence, rhetorical teaching and research about this de facto death penalty can be beneficial to those abolitionist scholar/activists in queer, feminist, and trans legal studies already working to resist the cisnormative state's disparate operations and effects (Meiners, 2011; Spade, 2011). We argue that this benefit places an obligation on scholars who carry out transgender rhetorical studies of U.S. legal language. In the context of U.S. punishment systems, a transgender rhetorical project intending to contribute to such an archive of resistance must be grounded in an uncompromising, antinormative telos of prison abolition. Our field includes a rich tradition of explicit opposition to the death penalty, to incarceration, and to other forms of judicial and statist rhetorical violence (see, for example, Hartnett & Larson, 2006; Morris, 2005). This tradition includes recent work in both queer and trans-focused rhetorical study (Chavez, 2011; Cloud, 2014; McKinnon, 2014; Rand, 2013). Some of this work is explicitly abolitionist-that is, focused on strategies for resisting and eliminating those statist and cultural institutions most responsible for racist, cisnormative, and heteropatriarchal violence. Dana L. Cloud (2014) and Sara L. McKinnon (2014), for example, recently explored ways in which the study of de jure institutional punishment rhetorics can help to celebrate and forward the potential for trans-identification to act as a powerful form of "political resistance" to legal structures of statist domination (Cloud, 2014, p. 81). At the same time, suspicion of overtly anti-establishmentarian political teloi has been, and remains, a persistent trend in rhetorical legal studies (Ono & Sloop, 1992). Jn their essay on the "Rhetorical Boundaries of'The Law,"' Marouf Hasian, Jr., Celeste Michelle Condit, and John Louis Lucaites ( 1996) insisted on separating critical legal rhetoric from critical race theory, critical legal studies, and other traditions that they argue do not take a nuanced enough approach to the complex role that judicial rhetors play in the nego- I 213 tiated processes of culture formation within the U.S. state. Indeed, we agree that one of the great benefits ofrhetorical inquiry into law is in U.S. rhetorical studies' methodological ability to recognize the simultaneously inherent and limited polysemy of any discourse, such that no given example of political/rhetorical enterprise can be entirely hegemonic, assimilationist, or revolutionary (Condit, 1989). In this vein, West (2013, p. 168) has recently urged transgender rhetorical scholarship to stand as a corrective to the insistent antinormativity common to much of contemporary queer and trans theory, particularly in the context of antinormative calls to reject the ethical and political utility of "demands for equality" within a heteronormative state. Unlike Hasian, Condit, and Lucaites's analyses of judicial rhetoric-in-culture, West forwarded his antiantinormative arguments in the context of a methodological shift away from institutional legal discourse in favor of critical celebrations of everyday forms of transgender resistance to cisnormative power structures. West's (2013, p. 173) response to anti-establishmentarian critics of "left legalism" is refreshingly not an apology for statist legal rhetors who speak superficially of nghts even as they further laws and policies designed primarily to maintain cisnormative, racist, and heteropatriarchal "hierarchies of value" in U.S. culture (Singh, 2004, p. 24). Instead, West (2013, pp. 176-177) called attention to trans advocates who demonstrate the "radical potential of performative contradictions" in forms of trans advocacy that celebrate the mutual compatibility oflegal-institutional and anti-establishmentarian movement efforts. As such, we propose a chiasmatic, simultaneous departure from and alignment with West in our own vision of a possible future for trans legal rhetorical scholarship in communication studies. West's legal rhetorical work is characterized by what we would call an anti-legal institutional and establishmentarian object-focus, even as he articulates an opposition to certain kinds of normative anti-establishmentarianism in the political teloi of his scholarship. In this chapter, and in some of our previous work, we insist on the value of focusing on legal institutional and establishmentarian archives for rhetorical analysis, even as we tend to argue for the normative position that rhetorical criticism of institutional legal discourses should be carried out in the service of anti-statist and establishmentarian politics. In short if West's scholarship involves extra-legal institutional object foci in the se:r0ce of anti-antinormative political goals, our work offers a limited defense of normative anti-establishmentarianism via the critical analysis of establishmentarian rhetoric. Broadly, we would like to see trans legal rhetorical scholarship occurring at all points within the matrix of antinormative or antiantinormative positions and institutional or extra-institutional contexts. We take McKinnon's (2009, 2011) ongoing foray into the study of quasi-judicial, - --- ---/ 214 Legal Discourse Peter Odell Campbell and Cory Holding bureaucratic legal speech as one major point of guidance for just such a future. For West (2013, pp. 177-178), leftist critics of "left legalism" often make the fundamental error of assuming that "demands for equality" work uniclirectionally against anti-establishmentarian projects that seek to craft "discursive systems of meaning free from already contaminated liberalism." West's analysis reminds us that law is rhetorical; it includes quotidian, ceremonial, and institutional languages. Calls like ours to reject certain ''transgender articulations oflaw" that engage with institutions may then be at best dancrerously naive, and at worst an elite academic form of disciplinary violen;e that repudiates the legitimacy of choices made by folks who are risking their lives, as it were, on the ground. West's view oftransgender rhetorical scholarship might caution us, for example, to temper our earlier description ofKosilek's left-legal resistance with a more explicit acknowledgment of the various, unpredictable, and possibly even abolitionist effects that might flow from the success of her Eighth Amendment claims. Our caution, however, is that West's representation of antinormative theories is fair with respect to some antinormative critiques of left-liberalism, but more accurately a caricature of other examples of this critical activist tradition. Many queer and trans antinormative objections to left-legal equality projects do not work in the way that rhetoricians are often tempted to claim. Rather, as Livingston and Campbell (forthcoming, p. 306) argued, it is more productive to describe many queer and trans antinormative critiques as establishing certain uncrossable brightlines for the "acceptable use" of leftliberal "legal reform" tools including legislative efforts to achieve legal mandates for equality and anti-discrimination. We follow Spade (2011, p. 162) in urging a particularly stringent version of this brightline test in situations where "law reforms [carmot] be part of dismantling violent regimes of administering life and death." It is true that academic critics can be too quick, as West (2013) argued, to dismiss activists' rhetorically strategic and creative reasons for pursuing legal equality projects for a variety of ends. But we believe that the ability through rhetorical methods to describe the existence of a de facto trans death penalty in de jure U.S. punishment discourses sets one such clear (if simultaneously fuzzy and contestable) brightline for future trans legal work. We advance the normative claim that future trans legal scholarship should not contribute any labor toward the further existence of incarceration institutions in the United States. As the disciplines of rhetoric and communication continue to exist as a component part of this incarceral nation-state, we as rhetorical and communication scholars should be wary of participating in any project that has the potential to facilitate the improvement of administrative discourse in U.S. prisons and other punishment systems. We should mamtarn this wariness even in situations where such improvement appears to foment 215 greater protections or equality for the most oppressed members of U.S. prison populations. The present reality of rhetorical violence clirected at trans people in U.S. prisons is an urgent crisis. It demands an unqualified, antistate equality, angry, abolitionist response (Spade, 2012). Our chapter does not do enough to celebrate daily articulations of trans resistance to the rhetorical structures of U.S. punishment systems. But future legal rhetorical studies of "trans people and trans lives" must do more to privilege trans folks who have to this point in our nascent sub-discipline been marginalized or ignored: that is, queer, person of color, poor, migrant, homeless trans activists whose articulations of law are explicitly anti-establishmentarian, anti-statist, antilegislative, anti-equality, and abolitionist. West (2013, p. 177) argued thatthe law, As a performative enactment ... is a diachronic resource invoked by individuals, and ... synchronically interpreted, redeployed, and modified. Viewed in this light, legal cultures must not be understood as hegemonically solidified cultural formations that inhibit agentic practices upon one's entrance into these discursive regimes. This demand for legal scholarship to embrace and so foment possibilities of agentic resistance even within what seem to be the most oppressive enactments of U.S. legal culture is the basis for West's (2013, p. 177) urge that legal scholars recoguize ''the need to approach legal cultures from the perspective of undoing rather than domination and subordination." Our perspective in this chapter is on domination and subordination, rather than undoing. West (2013, p. 177) called his "shift in perspective" from domination to undoing "an important supplement to institutionally based analyses of the law." We reverse this relationship, and offer our mode of trans investigation into trans-exclusive institutional legal rhetorical archives as an important supplement to West and other's quotidian rhetorical legal study. Ultimately, we hope that an institutionally focused mode of transgender legal rhetoric can become a basis for an abolitionist practice oflegal rhetorical criticism. We hope this rhetorical critical practice can help underwrite specifically trans understandings of judicial and administrative arguments about sex, gender, and identification; as a form of scholarly resistance to this country's de jure and de facto cisnormative regimes of capital punishment. NOTES 1. We take this particular definition of collocation from Terry Threadgold's (1997, p. 102) Feminist Poetics: Perfonnance, Histories. Threadgold's collocation references "patternings of lexical words recognized [and constituted by critics] on the basis of similarity, difference, and part/whole metonymic relations." ＭＮｾ＠ 216 Peter Odell Campbell and Cory Holding 2. Angela p. Harris (2011 ), for example, has described the generalized operation of heteropatriarchal violence (carried out as a device for establishing and maintaining hetero and andronormative pow·er hierarchies) in the U.S. criminal punishment system. This violence tends to be state-produced, state-enabled, and/or state-approved. It ''stretches across civil society and the state"; it is indiscriminate in its targets, and all too real in the lives of its victims {Harris, 2011, p. 17). But it is not reducible to or describable in terms of any one official form of statepunishment. It is the de facto result of a collocation of de jure punishment policies and dis- courses. 3. Prisons rarely keep records on trans inmates (Spade, 2006). When they do, the judicial and prison-admfilistrative conferral of the terms '<transgender" or "transsexual" on a subject of U.S. law is generally reserved for persons with an official, court-recognized diagnosis of "gender identity disorder" (GID) (p. 5, 46nl-2). Many trans people do not have a GID diagnosis, and persons with a diagnosis may also not identify as ''transgender" (Bassicbis, 2007). Finally, a condemned person seeking to still avoid execution would incur significant additional risk by publicly identifying or being identified as trans. 4. The recent case of Zahara Green is an instructive example. Green, a trans inmate held in a men's prison, filed suit against the facility alleging that when she was admitted into protective custody, prison officials deliberately placed her in the same cell as the potential assailant she had requested protection from (Green v. Calhoun, 2014). Chapter Fourteen Public Memory Historical Trans-cription: Struggling with Memory in Paris Is Burning Thomas R. Dunn Over the last twenty-five years, director Jenny Livingston's documentary Paris Is Burning (hereafter, PIE) has emerged as a consequential artifact for remembering the recent transgender past. Depicting the lives oflargely Black and Latino gay men and transgender people--often referring to themselves as "queens"-performing in the drag ball scene of 1980s New York City, the film continues to reach audiences in unexpected ways. While some members of the transgender community have thanked Livingston for preserving this era of the transgender past on film (Jones, 2013), PIB's reach far exceeds this community alone. Since 1990, the film has become a staple at film festivals, college campuses, academic conferences, and annual LGBT history celebrations (Prosser, 1998). It is assigned watching in feminist, queer, LGBT, and transgender history courses worldwide. The film is even required viewing for all contestants on the hit television series RuPaul's Drag Race, which remecliates the film's jokes, readings, and lingo for a new generation (Juzwiak, 2010). Meanwhile, the film's subjects, quotations, and performances have transfixed popular culture (Juzwiak, 2013; Jones, 2013). In short, while much of transgender history goes unrecognized (Feinberg, 1996), few rhetorical artifacts so broadly circulate the lives of transgender people in the past as PIE. Given the film's iconic status in U.S. culture, PIE has received significant critical attention (hooks, 1992; Butler, 1993; Prosser, 1998). However, despite its growing symbolic clout, PIE has not been considered from the standpoint of memory, particularly public_ memory. Over the last two 217