ABSTRACT
Black trans life has recently taken center stage in the liberal mind. The machine of diversity, equity, and inclusion has increased visibility of Black transness in a variety of arenas. We are now seen on red carpets, earn book deals, and play prominent roles in television shows and films. Yet the potential for our violation remains constitutive of our embodiments as we are coerced to interact with the World. As these co-constitutive inclusions and violations indicate, the affectual theatre of progress for Black trans people is in full swing.
The embrace of impossibility may be the heftiest tool for legal scholars analyzing this paradoxical regime. How might the impossibility of Black vitality within U.S. juridical order lead us to a legal scholarship that insists on law’s abandonment, toward a legal scholarship that properly situates the discourse of queer and trans rights in the hold of the ship, in the afterlife of slavery? Here the impositions of this impossibility take center stage, pushing beyond legal scholarship’s death- ridden love affair with political pragmatism, its retention of the nation state and, to quote Anthony Farley, its unanswered “prayers for freedom.”
This work primarily serves as a reflection of what reckoning with the figure of the human as an imposition on Black queer/trans vitality in legal discourse may look like. I interrogate the historical progression of queer humanist legal changes, arriving at the careful and particular creation of a queer subject for whom human being is a possibility—particularly examining Lawrence v. Texas and Obergefell v. Hodges. My reading of Lawrence v. Texas examines the unfolding of the legal ideology of the queer human, centering the horrifying slippage between queer desire and black ontological precarity as a necessary tool for the establishment of queer personhood via gay rights. Lawrence evidences the piecemeal process of creating state-worthy subjectivities, attending to the deathliness of queer sex by trapping it within the already established rubrics of monogamous home-oriented structures of sexual/romantic relations. Following that, Obergefell v. Hodges opens up the workings of legal precedent and the principle of harm, revealing the saliency of the human to their proper function. Here the piecemeal project continues, necessitating marriage to create vitality for the queer family. Finally, Bostock v. Clayton caps off the queer humanist project by attending to the queer worker and setting the stage for a trans inclusive humanist project by interrogating gender and queer corporeality. Through the conundrums exposed in these cases, this study presents, for scholars of the law, a fruitful call to reorient ourselves toward a critical analysis of U.S. juridical order that has no bounds.
