Transgender, Gender Non-Conforming People Among First, Most Affected by War on Terror’s Biometrics Craze

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When Zev Al-Walid walks through an airport security scanner, he more or less willingly parts with his belt, his shoes and his pocket change, just like any other traveler. But by the time Walid – a man who was designated female at birth and later transitioned – is ready to reclaim his personal items, there’s often an extra hurdle blocking the path to his gate.

Walid, who travels frequently to the United States and countries around the world from his home in Western Europe, remembers a particularly bad trip through a US airport’s backscatter scanner machine.

“I wasn’t really privy to what the picture looked like or anything,” said Walid. “I could just hear the guy, in front of me, talking on the radio, presumably to the person looking at the image. And he was like, ‘Yeah. No. He’s right here. I’m telling you, he’s a man. I’m looking right at him.'”

“I felt physically ill after that,” said Walid.

Man, Woman, Terrorist

Since when did travelers’ gender become the Transportation Security Administration’s (TSA) business? Since at least September of 2003, when the Department of Homeland Security (DHS) issued an advisory warning against “Al-Qaeda’s continued efforts to plan multiple attacks against the US and US interests overseas.” The advisory included a list of potential terrorism targets, a mention of recent arrests of unnamed terror suspects and this warning: “Male bombers may dress as females in order to discourage scrutiny.”

Maybe there was verifiable intelligence about male terrorists who like to slip women’s wear over their explosive devices. Or maybe the wardens of the security state read one too many spy novels. But either way, bringing gender into the security arena has major consequences.

“My experiences shifted somewhat after 9/11,” Walid told Truthout, “but I’d say they shifted even more a few years after 9/11, when I started to get read not just as a brown person, but as a brown man.” Walid, who is Muslim, said that, before he transitioned, “My faith wasn’t visible, as I didn’t wear a headscarf, so there was nothing to set off alarm bells.”

“The whole, ‘You are a terrorist,’ kind of thing didn’t really play into the equation, because I don’t think women are seen that way as easily.”

Since the DHS advisory, at least two other factors have brought gender further into the national security equation. One is Secure Flight, the program begun in 2009 requiring passengers to disclose their birth date and gender to airlines to be compared with their government-issued photo ID, purportedly in order to reduce the number of false matches to names on the federal watch list.

The other is the widespread use of body scanners.

Because gender has become one of the first markers in the technology-centric race for body-based data – known as “biometrics” in surveillance-speak – transgender and gender non-conforming people have been some of the first and most directly affected.

In an investigation begun during our “Surveillance in the Homeland” series on civil liberties in post-9/11 America, Truthout uncovered how their experiences illustrate what’s at stake when the human body becomes a data point in the war on terror.

Trans 101

This story is about people, not their anatomy, except that in the case of airport scanners, this last vestige of individual privacy is on the table. Transgender people’s experiences vary as widely as the human mind and body, but trans communities have mapped out some common ground in language, experience and even documents such as the Transgender Law Center’s (TLC) fact sheet, Trans 101. The title might be considered a nod to the ad hoc teaching gig some trans people are thrust into simply by virtue of their identities – Is that your real name? Did you have a sex change? Why should I let you onto this flight? – and for a two-page crash course, it goes a long way in dispelling gendered assumptions that underlie security measures like body scanners and Secure Flight.

According to TLC, “Transgender people (very broadly conceived) are those of us whose gender identity and/or expression that does not or is perceived to not match stereotypical gender norms associated with our assigned gender at birth…. Some [transgender people] take hormones but have no surgery or vice versa. Some take low-doses of hormones or go on and off. For some trans people, altering genitalia is important. For others, it is not.”

So, what does this have to do with the war on terror?

Does This Machine Make My Body Look Dangerous?

In what is billed as an effort to tone down digital strip searches like the one Walid underwent, the TSA is rolling out a new type of body scanner, which uses an apparently less visually invasive technology called millimeter wave. According to TSA spokesman Mike McCarthy, the agency purchased 300 of the machines in 2011 with an option to purchase 200 more and the president’s fiscal 2012 budget requests funding for an additional 275.

The manufacturer’s web site touts the millimeter wave scanners’ potential as “an image-free solution” that “eliminates privacy concerns.”

In the detailed images backscatter machines generate, “You see rolls of fat, you see scars, things like that,” said Mara Keisling, executive director of the National Center for Transgender Equality, which has worked with the TSA for several years to address privacy and civil rights concerns for transgender travelers.

Millimeter wave machines are designed to locate any “anomalies” on a traveler’s person and superimpose them onto a generic image of a human form, leaving the traveler’s body on the safe side of the digital curtain.

But before someone sets foot inside a millimeter wave machine, security staff must press one of two color-coded start buttons: pink for women, blue for men.

The pink and blue buttons, fitting for an old-fashioned baby shower or sex-segregated restrooms, are an odd accessory for a national security investment. According to McCarthy, “These buttons allow the system to maximize detection capabilities based on the gender presented by the passenger at the checkpoint.” When contacted with inquiries about how the scanners operate, the manufacturer referred Truthout to the TSA. In the course of a phone interview and follow-up emails and voice mails to McCarthy, more detailed questions about how the scanners use gender to function went unanswered. A fact sheet authored by the manufacturer, L-3, says the scanners use radio waves and software to scan and process data, but no information is included about how the choice of either the pink or blue button changes the way the machines work.

Without these details, it’s difficult to say whether the technology is effective, but what is clear is that, before a scan can begin, the machines must rely on the unpredictable technology of human perception. (Truthout’s Freedom of Information Act (FOIA) request seeking operational information about the scanners and related matters is pending.)

McCarthy said TSA agents select which button to press according to the gender presentation travelers are determined to be making at the security checkpoint.

Keisling thinks this is a bad idea.

“Let’s say they hit the blue button,” she said. “There’s three kinds of people for whom they might hit the blue button, all of whom the TSA agent perceives to be male. And the person might be the person who has stereotypical genitalia, a normal-sized penis and testicles. But the person might be somebody who has disproportionate, or unexpectedly large genitalia; or unexpectedly small, or no genitalia.”

In this way, people whose bodies don’t conform to TSA agents’ expectations of their perceived or stated gender – whether those expectations are encoded in a device or the human mind – become targets of suspicion.

McCarthy said he did not have immediate knowledge about whether or how TSA staff are trained to determine a person’s gender presentation and his responses to follow-up phone calls and emails regarding this question and others did not address the issue. McCarthy did say the TSA “accepts passenger declaration, when offered.” He did not say how travelers’ privacy would be protected in this case.

Requests for documents regarding TSA staff training and protocols regarding travelers’ gender are also included in Truthout’s FOIA filing.

Just the Beginning

The emphasis on gender in security settings at airports across the country foreshadows a more widespread use of the of human body as a tool for surveillance.

In February, National Lawyers Guild Director Heidi Boghosian told the Indypendent that New York police are scanning the irises of political activists arrested during protests and detaining those who refuse to be scanned.

Meanwhile, the web site of the FBI’s Next Generation Identification (NGI) program says it will collect body-based, or “biometric” information, including iris scans and facial imaging.

According to the site, NGI “is not … a tool to expand the categories of individuals from who the fingerprints and biometric data may be collected,” but NGI falls under the umbrella of the Office of the Director of National Intelligence, which has at its fingertips a massive web of databases including NGI.

According to journalist and author Elliot Cohen, the FBI has already expanded its biometric database to include people who have not been accused of crimes, such as detained immigrants and people awaiting trial.

“The goal has been to include as many legally innocent people as possible, allegedly to help solve more violent crimes, but we can expect that eventually, all of us will have a biometric data file on tap,” said Cohen in a 2011 interview with Truthout.

Other as Threat

“It’s a mistake to think about these issues as solely the problem of trans people and more useful to think about how these mechanisms sort people,” Seattle University Law Professor Dean Spade told Truthout in an interview last year.

“All the data that’s collected about us … have different kinds of racial and gender norms embedded in them,” said Spade. “They’re part of this broader ideology of supporting this certain type of person: the male worker, European immigrants but not other kinds of immigrants, etcetera.” Spade’s statement might sound academic, but for Walid, its implications are very real. And, frequent flier that he is, he plays the sorting game like a pro.

Walid, who is gay, said he has revealed his queer identity more than once in an effort to ease the scrutiny of security staff – and it works. “We’re taught to fear violence from religious fundamentalists, religious extremists, hyperconservative types. So sometimes, being seen as a member of the LGBT community can actually defuse some of that tension,” he said.

“These measures are not designed to root out Ru Paul,” said Walid. “They’re designed to address a particular kind of fear. So, I guess what I was doing was moving myself from one category of undesirable to another.”

But what happens when the “undesirable” category is a moving target?

“It’s anyone’s guess whether I will be stopped for being a man traveling with a woman’s documents, for being brown-skinned, or simply for having Arabic writing in my passport, ” wrote Walid in “Pilgrimage,” his essay contribution to the collection “Gender Outlaws: The Next Generation.”

Some security profiling, such as that targeted at Muslims, appears to be deliberate. Unintentional profiling can have consequences no less grave. Transgender people – whose identities may be misjudged as “disguises” or otherwise threatening misfits of some predetermined norm – may not land in a prison in Cuba, but the punishment for being labeled a threat, even temporarily, can still be severe.

A De Facto No-Fly List

Since 9/11, privacy has shrunk for everyone who sets foot in an airport, but the consequences are not necessarily universal. Many transgender men and women choose to keep their trans status private, for a variety of reasons that range from a desire to avoid being targeted by hate violence to a preference to live fully in a present identity, rather than a past one. For them, trading privacy for the right to board a plane can be so risky that their freedom of movement is compromised.

“Beyond the more concrete standards of identification documents, many people go by different identities and/or names in different aspects of their lives,” trans-rights scholar and University of California San Diego postdoctoral Fellow Toby Beauchamp explained in an email. “For instance, people may be unable to use their preferred gender presentation or name in their jobs, or with their families, but be able to do so in other areas of their lives.”

Psychologist Katherine Rachlin told the authors of a 2011 article published in Social Research how her patients’ freedom of movement shrank as scanners proliferated in airports across the country, landing them on a de facto no-fly list.

Scanners “were a major topic in therapy,” said Rachlin. “Patients had increased anxiety and even panic attacks just contemplating the possibilities” of being publicly outed. “Those prone to depression went deeper into depression as their option to travel was taken away.”

Restricted mobility also creates economic and professional problems. Keisling said an attorney acquaintance of hers missed an argument in federal court because he was detained for so long due to suspicions about his gender presentation. And more than once, Walid has turned down consulting projects to protect his privacy.

“It could be the sponsoring organization is going to have to write you a visa letter and sponsor embassy procedures,” said Walid, whose passport says he is female. “If the embassy has any questions about inconsistencies between my passport and the rest of my application, they might call them to clarify and that would disclose what I consider to be confidential medical history.”

For Walid, the problem is not limited to international flights. “I cannot travel on business unless my travel companions, the person booking the ticket and the person authorizing the funds for travel are all aware that I am trans,” he wrote in “Pilgrimage.”

The prevalence of hate violence against transgender people also points to the need for privacy in many cases. “If I’m at La Guardia, it’s one thing,” said Keisling. “If I’m at some small airport where the agent is the wife of my son’s gym teacher, if I get outed, everybody in town finds out. In certain circumstances, that can cause economic hardship and, in some cases, violence.”

So Many Ways to Be a Suspect

Scanner nightmares aside, Walid said that, apart from inconsistencies in the sex markers on his ID, “I look like a dude and no one would think to question it.”

“I think I am spared a lot of trouble because no one really questions my gender,” based on his appearance and manner, said Walid.

Walid’s experience points back to Spade’s warning: this isn’t just about the rights of transgender people; it’s about how falling outside of a narrow category can become dangerous. As the DHS advisory and other gendered security measures have come to the fore, “Anyone whose gender appears improper or ambiguous may come under special scrutiny,” said Beauchamp.

A static, binary concept of gender – think checkboxes labeled “M” and “F” – is not only common in societal attitudes and a foregone conclusion in the design of millimeter wave scanners; it’s also cemented in government documents scrutinized under Secure Flight, such as drivers licenses, birth certificates and passports.

“I have a lot of empathy for genderqueer people whose sex markers on their ID can never be accurate,” said Walid. “Maybe somebody I’ll be able to change my passport, but if you’re genderqueer, it could feel like there’s no end in sight.”

Trans-rights advocates have long challenged the notion of checkbox gender. TLC’s Trans 101 document explains: “Gender is (at least!) a 3 dimensional space that allows motion. One way to picture gender is as a gender galaxy – a space with an infinite number of gender points that can move and that are not hierarchically ordered.”

Even before the war on terror, government ID requirements played a major role in reinforcing the male/female paradigm. As security measures such as scanners and Secure Flight identity requirements rely more on gender to confirm that travelers are who they say they are and to examine their bodies for anomalous “threats,” people who don’t fit neatly into those checkboxes – whether the ones on official paperwork or the ones in people’s minds – pay a high price.

And according to Beauchamp, not everyone pays at the same rate. Floating in the ether alongside the scanners’ radio waves are security staffs’ personal assumptions about not only gender, but other categories, such as race. “The longstanding cultural framing of black men as excessively violent, sexual, or aggressive – as too masculine – or the framing of Asian men as diminutive or submissive – as not masculine enough – means that these people’s gender presentations and gendered behaviors may be scrutinized more carefully than would the appearance of a person perceived to be white,” said Beauchamp.

When “Different” Is Dangerous, Who Can Be Safe?

Kai, a 19-year-old college student from the Midwest, identifies as third gender. Kai, who withheld a last name and prefers to be referred to by “they” instead of “he” or “she,” might never know why they were selected for a pat-down search during a trip with their family.

At a small Florida airport, Kai’s family was returning from vacation when something – the baggy sweatshirt Kai was wearing? The behaviors Kai exhibits due to Asperger’s? A security staff member’s flash of paranoia on a slow day? – bought Kai a trip to the pat-down room.

“I walked through security just fine, through the metal detector,” said Kai. “The guy who was standing on the other side looked at me for a really long moment without saying anything and then was like, ‘I think we should pat you down,’ and sort of mumbled about my sweatshirt.”

It is TSA policy that travelers undergoing pat-downs be searched by a security staff member of the same gender that the traveler is presenting, but it is unclear how such a policy might provide for non-binary gender identities. (TSA’s internal track record does not speak well for its gender protocols. Last year, the agency paid a five-figure settlement to former employee Ashley Yang, a trans woman who was forced to present as a man while she was on the clock. Yang was reportedly fired for using the women’s bathroom.)

“They spent several minutes basically arguing about who should give me the pat-down, while I was standing there,” said Kai. “They were loudly arguing in the middle of the airport, all the while my family standing by, including my little sister, who I was not out to at the time.”

“I have Asperger’s, so I find it very difficult to explain myself. I didn’t know what to do,” said Kai.

Kai was fortunate to be traveling with their family, whom Kai describes as “very supportive.” But what is eerie about Kai’s experience is that, like Walid, it’s anyone’s guess which of Kai’s attributes will make Kai a target.

“I feel like I’m singled out because my gender is one issue,” said Kai. At the same time, “I feel nervous because of habits I have because of being autistic, that it will attract the attention of security.”

An ongoing survey by the National Center for Lesbian Rights of travelers’ complaints about gender discrimination at airport security points to potential problems at Philadelphia International Airport, George Bush Intercontinental Airport, John Wayne Airport, Charlotte Douglas International Airport, San Francisco International Airport, Los Angeles International Airport, Southwest Florida International Airport and Indianapolis International Airport. Complaints included being outed in front of other passengers, being subject to inappropriate comments about gender and having to undergo a body scan without the alternative of a pat-down search, among others.

Some respondents identified as male, some as female, some as neither exclusively male or female. But their gender identities, at least by some measures, are ultimately irrelevant in post-9/11 America, where – as Walid and Kai have already discovered – there may soon be as many ways to be a suspect as there are to be yourself.