Already Something More: Heteropatriarchy and the Limitations of Rights, Inclusion, And the Universal

J Sebastian

There have been significant expansions in civil and human rights for queer and trans[1] people, yet systemic power relations that cause violence and harm continue. How might we account for this contradiction? This article examines how this problem does not exist in the “misapplication of rights” but rather in the root connections between heteropatriarchy, settler colonialism, and universal rights. This article argues, by way of engagement with a genealogical inquiry into the colonial disciplining of “civility” through the imposition of the gender binary and heterosexuality, that demands for LGBT inclusion into the sphere of universal protection via rights-based redress is inherently limited because of its colonial construction. This article builds from contemporary queer and trans critique of the mainstream gay rights agenda, and aims to demonstrate that incorporation through the achievement of rights-based inclusion ultimately will not shift the deeper power dynamics of heteropatriarchy within settler colonialism.

Keywords: Universal rights, heteropatriarchy, colonialism, queer, transgender

[This article is part of the first issue of Abolition: A Journal of Insurgent Politics]


What is it we are seeking when our movements call for justice?  Is it rights?  Rights have served as a tool of contestation to challenge exclusionary practices and differentiated treatment for various groups over the course of the development of the United States.  Several historic milestones reached since the early 2000’s represent the narrative of inclusion through rights-based struggle.  The gay rights movement secured the right to marriage through the 2015 U.S. Supreme Court case Obergefell v. Hodges, at which point mainstream gay rights advocates celebrated the achievement of full equality.[1]  The Civil Rights movement demanded access to political participation and the exercise of equal rights that set the stage for Barack Obama to be elected president in 2008, a moment that prompted liberals and conservatives alike to declare the United States as postracial.[2]  The Indigenous Rights caucus of the United Nations produced a ratified document of the Declaration on the Rights of Indigenous Peoples (UN DRIP) in 2007, to which many have pointed as a sign of recognition and reconciliation between Native and settler societies.[3]  But despite the recent increase in legal claims to inclusion through civil and human rights protections, state violence and harm still continues, especially against marginalized communities on the intersectional bases of race, class, gender, sexuality, religion, and disability, among other markers of difference.[4]

Scholarship in the burgeoning field of critical Ethnic Studies has demonstrated that the hierarchies constructing racial, gender, sexual, and class-based differences are rooted in the systemic power relations of settler colonialism—white supremacy, capitalism, and heteropatriarchy.  Standardized ideas about social relations constitute these systems through determining difference as a marker for disciplining.  Audre Lorde reminds us that difference is not a bad thing—it is something that strengthens our communities.[5]  Determining difference as a marker for disciplining is foundational to how these power dynamics continue.  In particular, Native and Indigenous feminist theories address the foundational dynamic of heteropatriarchy in legislating colonialism.[6]  Heteropatriarchy functions to discipline difference into a naturalized system of social relations through the imposition of a male/female gender binary, compulsory heterosexuality, and dyadic nuclear family relations.  This mode of relationality, foundational to settler colonialism, attempts to foreclose other understandings of gender, social relations, and kinship networks.[7]  This power dynamic arose through a specific socio-political worldview that privileges whiteness, wealth, conformity with the gender binary, and compulsory heterosexuality as natural, rational, and civil.[8]  These relations are not predetermined or endemic to social relations.  Rather, they are a product of a particular trajectory of organizing socio-political relations that we can trace to the rise of colonial-modernity.[9]

As an analytic, colonial-modernity reflects the way in which colonialism has been foundational to modernity.  The rise of colonialism instituted a massive shift in socio-political relations that cohered systemic power relations through hierarchies of difference.  As anti-colonial theorist Patrick Wolfe has articulated, colonialism is not an event, but a structure; its logics recur through systemic colonialism, settler colonialism, and neocolonialism. Using a genealogical methodology, I employ an unconventional rereading of the first legal legitimization of Spanish colonialism by sixteenth-century Spanish jurist Francisco de Vitoria in order to engage the relationship between universal rights and civility within colonialism.  The conventional reading credits Vitoria as the father of universal human rights, as extending universal rights to all people.[10]  This article instead offers an alternative lens on the history and origin of universal rights to show how Vitoria’s work determined the legitimate exercise of universal rights through heteropatriarchal standards of civility.[11]  The concept of civility furthers heteropatriarchal disciplining of social relations into accordance with Western (European/Christian) norms and standards.[12]  I argue that Vitoria’s work constructs a set of shared universal rights on implicitly exclusive terms by fundamentally limiting who is capable of exercising universal rights.

Given the historical construction of universal rights and civility, this essay considers what it means to still talk in terms of furthering universal rights today.  Because the structure of settler colonialism is ongoing, Vitoria’s legitimation of Spanish colonialism through universal rights are deeply embedded in the ongoing ideology of colonial-modernity.  Placing Vitoria’s work alongside queer and trans scholarship and activist critiques of mainstream LGBT rights demonstrates the ongoing consolidation of heteropatriarchy through notions of civility as embedded in the law to condition privileged access to an inherently exclusionary universal.  The notion of so-called universal rights operates to bring people into parity with one another, based on the determination of such standards as set by the West.  However, examining the emergence of the notion of the Western-universal through Vitoria’s construction of universal rights reveals the issues in our present as part of the long-standing power relations of colonial-modernity.  Under this construction, how could universal rights fundamentally function as universal?

The genealogy of abolitionist methodologies engages the root of systemic power relations.  In that vein, I consider that if heteropatriarchy functions through colonial notions of civility, then the work of queer and trans politics should not seek further inclusion in those systems by competing for more space on the system’s terms.  This inquiry is focused on centering how power is consolidated, and how power moves, particularly through the function of the law.  The next part of this article analyzes Vitoria’s construction of universal rights through heteropatriarchal civility.  The last section then engages the work of critical trans activists and scholars to frame how contemporary rights-based inclusion fails to facilitate a change in material conditions for people most impacted by harm, especially in the hands of the state, because it is conditioned by heteropatriarchal standards of civility.  In order to critically engage the concept of universalism in our society—what ideas it represents and why—we must unpack the ongoing foundational relationship of heteropatriarchy and settler colonialism within rights discourse.  In turn, by engaging the limitation of rights through their construction, we might then be able to center questions about how we can build toward something more.

Universal Civility

The civilizing mission is entrenched within the project of colonialism.[13]  The concept of civility, in its most basic definition, articulates a difference between those who demonstrate the proper elements of civilization, and those who are considered to be uncivil.  Federal Indian Law scholar Robert Williams Jr. argues that the link between civility and conquest is deeply embedded in Western society, going back to Greco worldviews.[14]  Throughout Vitoria’s argument, this distinction between civil and uncivil is constantly at work, most notably in his framing of all Native peoples as “barbarians” in violation of natural law.  In today’s terms, the discourse of civility extends into determinations of proper citizenship, respectability, and normalcy, as will be addressed further in the third section.  Engaging the use of civility in determining universal rights offers a critical connection between calls for inclusion into a Western universal inherently structured through heteropatriarchy and racialization.

The origins of modern universal rights

Spanish King Charles V called upon Vitoria in 1537 to legally justify the project of colonialism and its institutions.[15]  Responding in part to the narratives of brutal conquest by the conquistadores, Vitoria needed to demonstrate that Spanish conquest was operating under the proper legal accordance.[16]  In particular, Vitoria was called to demonstrate that the Spanish had appropriate “just title,” or legal rights, to be in the New World.[17]  Delivered forty years after Columbus landed in the Americas, Vitoria’s work reflects the terms of the massive shift in socio-political relations, which by that point had violently conjoined Europe, the Americas, West Africa, and spread into the Philippines and south Asia through the coherence of systemic racial chattel slavery, emergent capitalism, and the missionizing spread of Christian conquest.[18]

In answering the question of what title justified the Spanish colonial conquest, Vitoria was confined to the legal justification of the late Middle Ages.  However, as Vitoria delineates throughout the lecture On the American Indians, none of the standard justifications worked in this instance.[19]  Vitoria himself held that when the Spanish landed in the New World, they had no just title for conquest: “In conclusion, the Spaniards, when they first sailed to the land of the barbarians, carried with them no right at all to occupy their countries.”[20]  Because of earlier precedence he must follow, Vitoria also dismisses legitimate title on the basis of “discovery,” as well as on the basis of spreading Christianity.[21]  Though these two concepts will surface again as determinants for intra-European colonial competition, they are not the foundational basis on which the origins of colonialism are legally legitimized.[22]

Vitoria provided the legal justification for Spanish colonial expansion into the Americas as predicated on the denial of Native societies’ exercise of universal rights through their relegation to the uncivil.  Vitoria utilizes the framework of a universal, which does not actually contemplate inclusion for all, but rather privileges inclusion only for the civil European.  I argue that this construction has immense implications for the function of universal rights today.  Vitoria cannot rely on the traditional medieval frameworks of European law to justify the colonial project, because none of them actually work to justify Spanish conquest.  It is of a new order.  Vitoria must articulate a legal standard that will allow the lucrative endeavor of Spanish colonialism to continue, so that Spain is not found in violation of legal doctrines and potentially forced to forfeit its expansive project to another European crown.[23]  In order to solve this dilemma, Vitoria resorts to a reformulation of a millennia-old Roman legal concept: the law of nations.[24]  Under Vitoria’s formulation, the law of nations enables all nations to exercise the universal rights to trade, travel, and preach.  Vitoria espouses that the law of nations serves as the authority to create binding rights under which all nations operate.  He further legitimates this notion of rights by claiming it will create a “common good” for humanity.[25]

The law of nations is important because it allows Vitoria to place European and Native societies into the same plane of legal jurisdiction.[26]  Through the law of nations framework, Vitoria determined that the Spanish were legitimately occupying their New World holdings through the right of the Spanish to travel,[27] preach,[28] and Vitoria’s elevation of the right to trade.[29]  This essentially allows for him to justify the extension of European governance, socio-political relations, and law into the Americas.  The law of nations entitles Europeans to exercise the rights to trade, travel, and preach wherever they may go.  Through establishing this jurisdictional framework, Vitoria argues that the Spanish are entitled to exercise these universal rights as the legitimate grounds for colonial expansion.  Furthermore, under the medieval doctrine of Just War, people kidnapped into enslavement from continental Africa are legitimately bought and sold under the universal right to trade.[30]  The doctrine of Just War, as part of the legal framework justifying conquest of Indigenous people not only in the Americas but also in continental Africa, positions originary modern legal justifications for enslavement as outside the law of nations, but ultimately conditioned into the legality of the extension of the European universal, especially in relation to the universal right to trade.

Once Vitoria configures the law of nations as the universal framework joining the vast socio-political orders of the new world and the old world, he then determines that the exercise of universal rights are delimited for societies that are uncivil.[31]  He explains this through the grounding of the law of nations in “natural law,” which is governed through reason: “What natural reason has established among all nations is called the law of nations.”[32]  Reason is the demonstration of civility, which Vitoria argues Native peoples possess.  Vitoria states, “The proof of this is that they are not in point of fact madmen, but have judgment like other men.  This is self evident, because they have some order (ordo) in their affairs . . . which indicates the use of reason.”[33]  However, Vitoria determines that Native societies possess only the capacity for reason as demonstrated by their uncivil aberrant cultural practices, which in turn justifies disciplining them into conformity with civilized Christian standards.[34]

The determination of reason does not entitle Native people to legitimately govern their own land.  Vitoria uses the formation of a universal jurisdiction that binds all societies in order to hold that European ideology should be the standard for global governance and social relations. Under the right to preach, Vitoria justifies the imposition of civility through spreading Christianity to correct those who are in a state of sin and violation of natural law as the duty of the Spanish: “Since all those peoples are not merely in a state of sin, but presently in a state beyond salvation, it is the business of Christians to correct and direct them. Indeed, they are clearly obliged to do so.”[35]  By constructing Native societies as in possession of universal reason and within the same universal jurisdiction, Vitoria can claim that because their socio-political practices differ from Europeans, they must be properly brought into accordance with true reason—as civility, as justified under the law of nations.

Vitoria bases the determination of uncivility upon natural law violations.[36]  This list of violations of natural law comprises various offenses including but not limited to sodomy, lesbianism, polygamy, buggery, bestiality, and cannibalism.[37]  In this configuration, any framework for relationality that does not conform to European standards is considered a violation of natural law and a sin against the state of nature.  Violations of natural law are categorically marked in distinction to proper comportment with Christian European standards.  Anything that did not conform to European Christian social relationality was thus considered to be a violation of natural law and therefore uncivil.  These violations of natural law that form the basis of Vitoria’s justification of the civilizing project are the foundational premises of colonial heteropatriarchy.

Additionally, under the law of nations, Vitoria states that if Native peoples resist Spanish conquest they are in violation of the Spaniard’s universal rights to trade, travel, and preach: “If the barbarians attempt to deny the Spaniards in these matters which I have described as belonging to the law of nations, that is to say from trading and the rest . . . and they insist on replying with violence, the Spaniards may defend themselves, and do everything needful for their own safety.  It is lawful to meet force with force.”[38]  Vitoria argues that if the Spanish are doing no harm then Native societies are not legitimately entitled to resist Spanish occupation.[39]  Any Native resistance, read as a violation of universal rights, then subjects Native societies to legitimate warfare, conquest, and enslavement under the doctrine of just war: “But if the barbarians deny the Spaniards what is theirs by the law of nations, they commit an offense against them.  Hence, if war is necessary to obtain their (Spanish) rights, they may lawfully go to war.”[40]

Vitoria relies on the reconfiguration of the law of nations because there is no precedential legal doctrine that will justify the large-scale development of the project of colonialism.  As political theorist Duncan Ivison argues, rights are a reflection of social relations.[41]  I argue that Vitoria’s work reflects the profound shift in social relations that systemic colonialism institutes, which, in turn, is a distinct shift from the operation of medieval rights.  Medieval rights did not cohere to a singular, stabilized definition in the same way we think of the modern individuated right.[42]  Traditional theories of rights development place the emergence of modern rights in the Enlightenment.  Enlightenment theory certainly had an important role in shaping the individuated right.  However, I am interested in challenging this narrative to instead consider how Vitoria’s universal rights of colonialism configured a transition to individuated rights centuries before the Enlightenment.

Vitoria grounded the emergence of the individuated right by determining which groups of people were entitled to access it through heteropatriarchal notions of civility.  Positioning the origination of modern rights in this formative historical moment, as opposed to in the Enlightenment, recognizes the impact of the already-forming colonial conditions of racialization, gendering, and sexual disciplining as in fact determinative of the ontological construction of universal rights.  By reflecting the shift in socio-political relations of colonial-modernity, Vitoria constructed a framework of universality that inherently excluded those marked as uncivil from accessing it.  Vitoria was operating from a particular position of European colonial power. How can this positionality account for all people, as if it is in fact a universal that all peoples have built and agreed upon?

Disciplining the universal

Moving from this close reading, we will turn to secondary-source analysis reflecting the attempted foreclosure of the myriad of possibilities of social relations through the civilizing mission that instituted systemic heteropatriarchy.  The universal rights of the law of nations, and specifically the right to preach, configured the disciplining of natural law violations through the violent heteropatriarchal ordering of compulsory dyadic heterosexuality, the gender binary, and the attempted eradication of all other possible socio-political-spiritual-relational frameworks.  Implicit in this framing are the embedded dynamics of anti-Blackness, anti-Indigeneity, anti-pagan, and anti-Muslim that cohere within the colonizing fervor of Spain and other European countries, for which a wider and deeper analysis than the scope of this article can provide is necessary.  There are many important implications for Vitoria’s construction of universal rights within emergent iterations of modern systemic power relations.  For the purposes of this article, I am particularly focused on the construction of civility through the imposition of heteropatriarchy to discipline all societies into the universal standards of colonial-modernity.

The disciplining and criminalization of gender nonnormativity and sexual acts between people not perceived as in compliance with the dyadic male-female gender binary is well documented throughout the colonial register.[43]  In 1519, Hernan Cortez sent a letter to Spanish King Charles V asking for permission to punish Native peoples on the basis of claiming all Native peoples as sodomites engaging in “abominable sin.”[44]  The Spanish historians that published the General History of the Indies beginning in 1526 detailed many firsthand reports claiming homosexuality and gender transgressions were common in Native societies, which continued to fuel justifications for conquest prior to Vitoria’s legal examination.[45]  People who presented outside the gender binary were often the first to be targeted for violence and death.  Native Studies Scholar Scott Morgenson argues that as the precursor to establishing colonial rule, people who did not conform to the gender binary gender were explicitly targeted within structures of colonial conquest.[46]  In “Extermination of the Joyas,” Native Studies Scholar Deborah Miranda demonstrates that under early Spanish colonial-military rule, Native peoples who presented outside the gender binary were specifically targeted for violent death through attack by dogs.[47]

Settler colonialism functioned through this dynamic to produce a universally regulated social order that enforced certain types of social relations as primary and natural—namely that of the male-female gender binary and of heterosexual relations in accordance with the structures of the nuclear family.[48]  These constructions of gender and sexual identity formation then operated to condition the power relations of settler colonialism.[49]  The formation of colonial heteropatriarchy, which secured juridical order based on natural law precepts, ordered settler colonial structures of governance and laid the groundwork for establishing new legal systems.  Morgenson argues that Western law worked to uphold heteropatriarchy as a social structure that was “universalized whenever settler societies come to be structured by a heteropatriarchal binary sex/gender system.”[50]  This phenomenon then became normalized not just to settlers or the Indigenous nations they occupy, but also applied to the whole world, which attempted to force the totality of all societies to conform to the Western universal.  Heteropatriarchy worked to undergird universal rights as the social and legal constructs that cohered, as both objective and legal, the violent incoherence of settler colonial governance.

In the narrative of Western development, gender is often framed as a binary that all cultures have, and gender nonconformity is framed as a new development arising in the West.  Colonial Studies scholar Maria Lugones emphasizes the importance of not naturalizing gender within critiques of colonialism so as to see the imposition of the gender binary not just as normative but as tied to the violent domination at work in differentiating notions of freedom through colonialism.[51]  Different understandings of gender, sexuality, and socio-political relations existed across not only the New World and Europe but also across the whole globe. Some social structures had an understanding of three genders, more than three genders, and some did not determine relations on a gendered relation at all.[52]  African Gender Studies scholar Oyéronké Oyewùmí argues that the construct of gender itself is a colonial imposition, showing how in Yoruba society, gender was not an organizing principle prior to Western colonization.[53]  Native Studies scholar Qwo-Li Driskill argues that “Two-Spirit” is a term that signifies resistance to definitions of sexuality and gender of colonialism, as reflective of other forms of relationality outside of heteropatriarchy.[54]  Native feminist work has articulated the differing relations of Indigenous kinship as opposed to nuclear families not dependent on heteropatriarchal formations of power relations.[55]  My intent here is not to position all Indigenous societies as holding the same relationship to gender and sexuality, or that those varied relations were not without their own complications.  Those are not my stories to tell.  I am focused instead on the imposition of a singular, universal structure for social relations that position the gender binary and heteropatriarchy as the standard form of relationality within colonial-modernity.

The construction of the universal in Vitoria’s work is a false one—one that on its face is objective and all encompassing, but that in effect only operates to bring Indigenous societies into the universal so as to be disciplined, justifiably killed, enslaved, and fundamentally constructed as the “other” to the European settler.  Through this framework, Indigenous societies writ large—across the globe—are legally differentiated from the European as inferior.  This positions non-Europeans, including enslaved Africans, as conscripted to status of almost human and never achievable human, as already racialized in distinction to the superior, civil European.[56]  This is not to elide the differentiated treatment and experience of how the racializing logics of anti-Blackness and Native erasure develop and function differently within colonial-modernity, alongside other racialized hierarchies.[57]  Rather, positioning this relationality under colonialism demonstrates the fundamental contradistinction of the (white) European, who is, by virtue of the very construction of the universal on the standards of European civility, implicitly entitled to exercising universal rights.  Through this reading, we can locate how logics of racialization functioned to construct civility under colonialism as European supremacy, and its subsequent outgrowth of white supremacy.  From within the framework of colonial-modernity then, white supremacy, heteropatriarchy, and capitalism cohere as foundational systemic power relations that condition differentiated racialized and gendered treatment and access within our present institutions.

The universal is constructed as a space only to be governed by Europeans, who are positioned as superior based on determinations of civility.  This lays the groundwork for global Spanish colonialism as well the grounding framework for European colonial expansion.  This dynamic is one that from the advent of colonial-modernity will not be fundamentally challenged by Western powers.  The main contestations that develop in the West concerning the legitimacy of colonialism will center competition over which European entity will govern the newly-constructed universal, not the more fundamental question of whether or not colonialism should exist.  The grounding of Europeans as the civil, superior, and legitimate governing entity, capable of exercising universal rights, is fundamentally determined through this foundational legal codification of colonialism.

The disciplining of peoples into civility is well embedded in Western societies, both in external and internal conquest.  Within the trajectory of Western society, uncivility has been characterized as a myriad of practices and acts—paganism, polygamy, mysticism, witchcraft, and gender transgressions, among many others.[58]  The quest to discipline social relations into civility continued to develop through the expansion of Roman-Christian Europe, in the persecution of the mystics, deviant formations of Christianity, the witch trials, the disciplining of paganism, the courtrooms of the Spanish Inquisition, the reification of a natural state of social relations, and in the construction of gender as a stable and determinate category predicated on a binary.

There is much more work to be done in tracing the genealogy of the heteropatriarchy and civility prior to colonialism as well as in tracing the connections between racialization and civility than this article cannot adequately attend to.  Given this, I offer a focused reading of Vitoria’s construction of civility within the founding of colonial-modernity to consider how these determinations of civility continue to manifest in contemporary mainstream LGBT politics that center inclusion narratives.  These narratives produce harmful standards of respectability as a prerequisite for state sanctioned inclusion, reinforcing rather than undermining heteropatriarchal and white supremacist standards of civility.  To position Vitoria’s work as a point of origin for the trajectory into our present demonstrates that the law has always disciplined deviance.  Under this framework, the law cannot confer universal rights in a restorative way but will instead continue to reify and recondition the hierarchies at work within colonial-modernity.

Reformations of Power

What does reflecting on the concept of Vitoria’s universal rights offer our present moment?  The law carries within it the residue of so-called civility that defines standard social relations as based in the gender binary, dyadic relationships, and nuclear family structures as the basis for normative social relations.  The state condones and privileges practices that conform to Western standards of what is considered to be normal gender presentations, sexual relations, and household configurations.  As such, the determinations of what is civilized continues to function in part through legal codifications of comportment to heteropatriarchal social norms.

In understanding civility as the formative determination for inclusion in the universal, we can trace connections to calls for inclusion today.  Universal rights have been touted as a means of relieving disenfranchisement and harm.  However, despite recent gains in the area of the mainstream gay rights agenda, harm and violence continues to devastatingly impact queer and trans communities, especially for people living in the intersections of disability, undocumented status, low income, street economy survival, and or as targets of racialized state violence.  By engaging contemporary queer and trans critiques of calls for incorporation, this final section addresses the stakes of inclusion focuses on the question of who is left out and at what costs.  The implication of this inquiry is that we must rethink standardized notions of gender, sexuality, and social relations as stable categories and instead consider that their enforcement functions as a key aspect of how Western power is continually consolidated.  Foregrounding how constructs of gender and sexuality are foundational to Western power demonstrates that racial heteropatriarchy is a deeply rooted systemic power relation, and that so long as access to rights remains predicated on conformity, increased inclusion will not ultimately alter this dynamic. 

Universal inclusion

The recent gains of the mainstream LGBT rights agenda, such as the passage of gay marriage, contestations over trans inclusion in the military, and the repeal of Don’t Ask, Don’t Tell, position homonormativity—a striving to be “just like you”—as the desired state for queer and trans people.  But this narrative is harmful, especially for people who cannot or do not want to comply with determinations of “normal” sexuality and gender.  For instance, issues concerning gender conformity are receiving a lot of attention in our current moment.  With the rise of transgender celebrities increasing transgender visibility, debates centering access for trans-inclusive bathrooms and healthcare, and contestations over raising transgender children, we are seeing more mainstream media engagement concerning gender nonconformity than ever before.  Alongside increased visibility, however, the notion of acceptable adherence to the male/female gender binary still persists, leaving gender nonconforming people who cannot or do not want to conform to the gender binary more susceptible to violence, exclusion, and harm.  Projects that seek inclusion into the heteropatriarchal mainstream universal are incentivized based on proximities to normal and acceptable constructions of gender as it reaffirms the gender binary.  Trans, genderqueer, and gender nonconforming people who do not fit within the heteropatriarchal expectations of the gender binary are further displaced through systems of power that read nonnormative bodies as threats or impossibilities.[59]

Trans activist and poet Alok Vaid-Menon argues that greater transgender visibility and acceptance has not worked to alleviate harm for nonbinary people:


The rest of us—whose identities are more fluid, more difficult for strangers to comprehend and relate to—may not be visible in media but are more noticeable on the streets. As it stands, according to a nationwide survey by the National Center for Transgender Equality, nonbinary people, especially those of us who are people of color, are more likely than binary trans people to attempt suicide, be harassed by the police, live in abject poverty and be sexually and physically assaulted. What has become evident is that so many of us who do not pass as male or female are still regarded as disposable by both cis and trans communities. Too often, efforts to gain acceptance and rights for trans men and trans women has meant ignoring those of us who are not as easily categorized.[60]


Although political gains have produced changes that encourage wider acceptance of trans people, this often operates through a focus on trans people who are read on one side of the gender binary.  Heteropatriarchy compels people toward conforming to conceptions of gender framed as biological and understood primarily through scientific facts about distinct and separate “male” and “female” categorizations that correlate to expected behaviors, presentations, and social roles.  When we understand the ways that heteropatriarchy works to construct trans, genderqueer, and many other formations of gender nonconformity as problematic divergences from this binary, we can work to focus less on inclusion into spaces that reaffirm those power relations and instead focus on other formations of social relationality that not only work to dismantle those systems but also center nonnormative ways of being that people are already practicing.

Creating new categories for inclusion through the law will not lead to the acceptance of gender nonconformity, because the standards for inclusion are rooted in notions of civility and conformity with the gender binary.  Trans activist and legal scholar Dean Spade states that legibility under the law will not resolve the fundamental misrecognition of gender nonconformity for trans identified people.[61]  Spade’s work in Normal Life articulates how the law incorporates bodies under notions of legibility.  This work demonstrates that to create more medical or administrative categories that resolidify which trans bodies demonstrate acceptable gender conformity is to fundamentally misrecognize possibilities outside the gender binary.  The proliferation of further categorization operates on the terms of the law, and is therefore already determined by heteropatriarchal relations.  Under systemic heteropatriarchy, the law disciplines people into legibility so that the state can determine access and benefits on the basis of deservedness, conformity, and criminality.

Given that systemic social relations are rooted in heteropatriarchy, rights-based inclusion is limited because it cannot work to undo heteropatriarchy as the system of power that continuously produces the construction of acceptable formations of sexuality and gender.  Our very notions of what gender is have been conditioned through a regulation toward a rigid male-female binary that is enforced through the state-based practices of gender marking on IDs and birth certificates, in schools, in placement in prisons and gender segregated facilities, through access to benefits, healthcare, and a myriad of other mechanisms of demarcation.  An analytic centering the power relation of heteropatriarchy understands that it is not better access to rights or “proper” placements in institutions like prisons that should be the aim of queer and trans resistance work, but rather a focus on dismantling the systems of power that produce notions of deviance as threats to a white supremacist and heteropatriarchal social order.

Critical queer and trans scholarship has demonstrated that that the law is a limited apparatus for preventing harm because it seeks to grow the very structures that often produce the most harm for queer and trans people.[62]  Narratives of state incorporation through access to rights frame only certain issues such as marriage and military participation as “gay issues,” eliding the larger systems such as immigration detention, regulatory youth services, imprisonment, and difficulty in accessing state benefits and services that affect all people, including queer and trans people.  Hate crimes legislation, under its stated goal of protection against racially and sexually motivated violence, has not decreased the likelihood of harm for queer and trans people.  Instead, it has expanded policing and prisons as sites that violently affect queer and trans people, especially those who are low income and of color.  Hawaiian scholar and trans activist Kalaniopua Young details how the dynamics of heteropatriarchy and settler colonial rule enforce legal and juridical apparatuses to justify the encapsulation of Indigenous peoples into the carceral space of prisons and policing: “The legal system has long been a site for legitimizing this process of land and cultural dispossession and ongoing indigenous alterity. According to this logic, at any point one can be silenced and forcibly pushed into camps and reserves and be labeled threatening to a liberal sensibility that sees itself as progressive, civil, modern, and multicultural.”[63]  Queer and trans people of color have always been fighting from a politics of struggle and survival against state violence working from the intersections of race, class, gender, and sexuality.[64]  The rise of the movement for mainstream gay rights co-opted these liberation politics into mainstream rights-inclusionary campaigns to uphold heteronormative values of class ascendancy, marriage, and military participation that non-mainstream movements continue to counter.

The specificity of the formation of colonial relations is important for framing calls to enter into the space of the universal through rights-based redress.  Native Studies scholars Maile Arvin, Eve Tuck, and Angie Morrill argue that incorporation through civil rights functions as a project of expansion into a “multicultural universal” to maintain settler colonialism.  By incorporating more people into the project of the United States, settler colonial governance is routinely secured and expanded to elide the ongoing conditions of occupation and genocide that maintain it.  Arvin, Tuck, and Morrill argue against this type of multicultural inclusionist project because it works to naturalize settler colonialism, heteropatriarchy, and capitalism: “The prevalence of liberal multicultural discourses today effectively works to maintain settler colonialism because they make it easy to assume that all minorities and ethnic groups are different though working toward inclusion and equality, each in its own similar and parallel way.”[65]  Flattening the conditions of oppression for different categories of people through multicultural inclusionist laws and policies works to reaffirm the notion that these issues can be overcome if groups conform to standards of white life and achieve recognition through rights.  Multiculturalism assumes not only that all groups of people fighting for rights have equal concerns, but that the universal will be able to account for all of them.  A relational analysis instead allows us to understand that different groups of people experience different proximities to the systems of settler colonialism, white supremacy, and heteropatriarchy, and receive different access to their privileges and benefits.  This framework then allows for a rearticulation of concerns based not on formal inclusion into the universal through flattened positionalities of “diverse” groups, but rather through a focus on the dismantlement of the very systems that produce such privileges and inequalities in the first place.

These important critiques have demonstrated that gaining rights and protection under the law does not fundamentally shift the conditions of violence that continue to most impact low-income, trans and gender nonconforming people, people with disabilities, Native people, immigrants, and people of color.  An abolitionist politics formulates an analysis of why inclusion and equality into a universal predicated on unequal distributions of wealth through racial capitalism and state violence founded on settler colonialism will not deter the harm facing queer and trans people but rather recondition the continued expansion of the systemic violence of the universal.

Trans activist and filmmaker Reina Gossett frames the importance of what is at stake when inclusion into the protected realm of the state is the primary goal of movement work.  Gossett articulates that the contemporary moment has produced an increased visibility for trans people both in the media and in the eyes of the state, but that this is happening alongside increasing and extremely high rates of violence affecting the trans and queer community.  Gossett ultimately argues that increasing visibility and inclusion does not equate to increasing safety:

So often, visibility uses the lens of respectability to determine who, even in the most vulnerable communities, should be seen and heard. I believe that, through the filter of visibility, those of us most at risk to state violence become even more vulnerable to that violence. When we’re trying to be normal, when we’re trying to be included in a culture that never wanted us to be in the first place, we don’t get to talk about our lives. We don’t get to talk about sex work, we don’t get to talk about being disabled, we don’t get to talk about prison, or homelessness, or living with HIV. And if we can’t talk about those parts of our lives, we can’t come up with the strategies we need to survive, the strategies that give us the power to defend all parts of ourselves and our communities. And I’m saying that those least respectable ways of being, those most undesirable ways of being, are some of our communities’ most profound ways of living against the state. . . . I think about the profound relationships and structures for care that were created by people being deeply and utterly disrespectful to and disloyal to the state and its morals. What I’m saying is that we don’t need to be in a formal organization to do this profound anti-state work. Just by hanging out and being social, just by taking care of each other, we are already doing the work that state doesn’t want us to do. So when the state invites us in, we have to ask what ways of being the state will demand that we stop doing, as a condition for inclusion? What ways of being, that help us survive and thrive, do normalcy, respectability, and visibility never allow for?[66]

Gossett articulates how the production of visibility for queer and trans people forecloses discussion about aspects of people’s lives that are not deemed acceptable for inclusion into the universal, exemplifying how seeking state-based inclusion into a so-called multicultural and diverse universal functions through narrativizing queer and trans people as normal and deserving of incorporation at the expense of those who do not fit those narratives.  Following Gossett’s inquiry, when we seek inclusion into the white supremacist and heteropatriarchal universal, what do we risk losing from our lives that is in fact essential to a celebration of nonnormative understandings of social relationality?  What might be at stake in passing over the very aspects of our lives that formulate different relationality outside of incorporation into the intensive regulation and violence of the state?  An abolitionist framework must consider the inherent limitations of rights-based inclusion into the universal because of the colonial construction of civility.  Through framing universal rights as originating in the attempt to legitimize colonial-modernity, we can move away from rights and toward fighting for something more.

Beyond the universal

Under the violent conditions dictated by the systemic power relations of white supremacy, heteropatriarchy, and capitalism, rights operate as a form of self-defense, one that is necessary to engage in supporting every day survival and resistance.[67]  That work is immensely important, and happens every day in the most material of circumstances—getting people out of prison or out of immigration detention, fighting for trans inclusive healthcare, and getting people back on state benefits when they have been kicked off, among many other instances.  The position of this argument is not that those things are not vitally important or urgently necessary.  Rather, my point is to consider that calls for inclusion through universal rights positioned as solving harm and exclusion are ultimately unable to deliver fundamental and material change of systemic power relations and state violence.  For queer and trans people most affected by these conditions, legal recognition has not worked to undo the underlying systemic power relations mediating violence and harm.

The concept of the universal is one borne out of inherently limited access—of those who are considered civil within a system that predetermines which bodies will have an easier time accessing the protections, privileges, and benefits of the state.  I have argued that the concept of inclusion into the universal is always already limited by its colonial construction—its framework is conditioned by white supremacy, heteropatriarchy, and capitalism.  This affects all people, but queer and trans people of color occupy a pronounced positionality within the intersectional spaces between these three systems of power.  If the goal of resistance work is to abolish systems of power, and in turn to abolish colonialism, then as long as colonialism and its ongoing instantiations of settler colonialism and neocolonialism continue, rights will never bring about the change queer and trans people are seeking.  So we must ask ourselves, when we seek justice, is it rights that we seek?  Or is it the “something more” we have always already inhabited?  Mainstream LGBT people, white people, and people with access to wealth must all disengage from the benefits of these systemic power relations to consider something different, something that will not bring more people further up in the hierarchy so that the structure grows, but rather something that will seek to dismantle it altogether.  For, in the words of Audre Lorde, the master’s tools will never dismantle the master’s house.[68]

We already practice this critical work within our everyday lives.  Our communities are invested in practices of care; in resisting the confines of “expected” behavior; questioning logics of heteropatriarchy in our lives; working through our own understandings of gender outside a strict gender binary; offering support, healing, and harm reduction practices outside what the state condones; working through our own constructions of conflict resolution and community accountability; creating chosen families, practicing polyamorous relations, engaging in friendships that center love, and working beyond heteronormative constructions of jealousy and property-based relations that found heteronormative dyadic expectations.  From the moment colonialism extended its violent reaches through projects of Western imperial expansion, Indigenous people and people living under colonialism worldwide have been resisting colonial heteropatriarchy.  We are engaging in everyday practices of building and rebuilding, practicing, learning, and relearning how to live and love in the face of these systems, resisting calls for conscription into the interrelated and violent disciplinary projects of heteropatriarchy, capitalism, white supremacy, and colonialism.  This work demonstrates that in these practices, we are already something more than what we are told the universal space of inclusion will offer.

Ongoing histories and practices of struggle and resistance have demonstrated what is at stake when our focus is solely on inclusion into the universal.  Moving from a space that questions universal inclusion while fighting for a redistribution of resources through many tactics allows for a consideration of what possibilities for relationality are foreclosed when engaging primarily in rights-based redress, as well as what other possibilities exist for offering other ways of being in the world.  In order to fully account for the realm of the universal, framing the development of universality as occurring within the rise of colonial-modernity can expose the dynamic between rights and the legitimations for colonialism as based on heteropatriarchy.  To see these power relations not as separate, but in fact as constitutive of the formation of the “universal” of modernity, exposes the limitations of rights-based incorporation as a fundamental reaffirmation of settler-colonial state power used to negotiate the freedom and legitimacy for some as constantly conditioned on the unfreedom and illegitimacy of others.

As critical queer and trans movement work has articulated, resistance to these power relations is the work that involves everyone, which must comprise leaving behind our investments in inclusion under the façade of universal equality and open our eyes to the ongoing work that is already happening through engaging with communities in resistance.  The lives we live are complicated lives, with complex and intertwined relationships to colonial heteropatriarchal logics.  Our histories are multifaceted, and live through us in our ongoing struggles.  Let us remember to tell these histories as they are—in their complications, in their difficulties, and in the hope of what it means when we work through and against them in building together.

And in holding this, we must also hold the awareness that the institutions and projects of the universal will always seek to co-opt us, to bring us in so that we may have the privileges to fight their wars and marry in their churches and extract their profits and expand their diversity; so that we might have a coveted set of rights promised to all deserving citizenry, the right to carry on the neocolonial and imperial violence that is the project of the United States, the right to settle and perpetuate investment in this stolen land, the right to the pursuit of multicultural white supremacist happiness.  And so we must also carry with us the knowledge that their prisons will never make us safer, that their laws will never fully include all of us, and that the ability for only some to climb over that wall and blend into cookie-cutter streets at the expense of those continually pushed out, murdered, and ignored will never be enough.

Part of this ongoing work, built through the resistance and struggle over the past five hundred years as methodologies of abolitionism, is to look for those convergences, to seek the layers upon layers of consolidation, the concentric genealogies, not necessarily as purely linear or chronological but through a framework that can support the move to resist inclusion into a universal that has always maintained a limited access into its exclusive realm.  We may hold within us the understanding that these logics run deep, but so too, do we.  In this we work, learn, love and fight toward something more.  We move toward a sense, deep and across many realms, that there is always something more, and in our resistance, in our survival, and in our remembered names, we are already something more.

About the author:
J Sebastian is a graduate student in Ethnic Studies at the University of California, Riverside and holds a Juris Doctor from the City University of New York School of Law.  As a white genderqueer scholar and activist, they seek to critically engage constructions of whiteness, power, and the law.  This article developed through early dissertation research after the passing of gay marriage in 2015.  J’s dissertation expands on these arguments to consider relationship between colonial iterations and rights-bearing subjecthood through engaging with Black feminist critique and Native feminist theories of the gendered, racial, and heteronormative foundations of the human.  J is also involved in community organizing committed to practices of abolition, anti-prison work, queer and trans resistance, and anti-oppression in communities and labor movements.  They would like to thank the following people for their support with the process of this article: Mackenzie Gregg, Ren-yo Hwang, Jaimie Morse, Megan Neal, Dylan Rodriguez, and Loubna Qutami.  J can be reached at [email protected].



Anghie, Antony. Imperialism, Sovereignty, and the Makings of International Law. Cambridge: Cambridge University Press, 2005.

Anghie, Antony. “The Evolution of International Law.” Third World Quarterly 27, no. 5 (2006): 739–53.

Araujo, Robert John. “The Catholic Neo-Scholastic Contribution to Human Rights: The Natural Law Foundation.” Ave Maria Law Review 1 (2003): 159–74.

Arvin, Maile, Eve Tuck, and Angie Morrill. “Decolonizing Feminism: Challenging Connections between Settler Colonialism and Heteropatriarchy.” Feminist Formations 25, no. 1 (2013): 8–34.

Black, Antony. Political Thought in Europe 1250–1450. Cambridge: Cambridge University Press, 1992.

Boast, Richard P. “The ‘Spanish’ Origins of International Human Rights Law: A Historiographical Review.” Victoria University of Wellington Law Review 41, no. 2 (2010): 235–72.

Cavallar, Georg. The Rights of Strangers, Theories of International Hospitality, the Global Community, and Political Justice Since Vitoria. Burlington, VT: Ashgate, 2002.

Conrad, Ryan, ed. Against Equality: Queer Revolution Not Mere Inclusion. Oakland, CA: AK Press, 2014.

Coulthard, Glen Sean. Red Skin, White Masks: Rejecting the Colonial Politics of Recognition. Minneapolis: University of Minnesota Press, 2014.

Crenshaw, Kimberlé. “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law.” In Critical Race Theory: The Key Writings that Formed the Movement, edited by Kimberlé Crenshaw, Neil Gotanda, Gary Peller, and Kendal Thomas, 103–22. New York: The New Press, 1995.

Delgado, Richard and Jean Stefancic. Critical Race Theory: An Introduction. New York: New York University Press, 2012.

Deloria, Vine Jr., Custer Died for Your Sins: An Indian Manifesto. Norman: University of Oklahoma Press, 1969.

Driskill, Qwo-Li. “Stolen From Our Bodies: First Nations Two-Spirits/Queers and the Journey to a Sovereign Erotic.” Studies in American Indian Literatures 16, no. 2 (2004): 50–64.

Dube, Saurabh. “Introduction: Colonialism, Modernity, Colonial Modernities.” Nepantla: Views from the South 3, no. 2 (2002): 197–219.

Federici, Silvia. Caliban and the Witch: Women, the Body and Primitive Accumulation. New York: Autonomedia, 2004.

Fitzpatrick, Peter. “Terminal Legality: Imperialism and the (de)composistion of Law.” In Law, History, Colonialism: The Reach of Empire, edited by Diane Kirkby and Catherine Coleborne, 9–25. Manchester: Manchester University Press, 2001.

Garza Carvajal, Frederico. Butterflies Will Burn: Prosecuting Sodomites in Early Modern Spain and Mexico. Austin: University of Texas Press, 2003.

Gossett, Che, Riena Gossett, and A.J. Lewis. “Reclaiming Our Lineage: Organized Queer, Gender-Nonconforming, and Transgender Resistance to Police Violence.” S&F Online 10.1–10.2 (2011/2012).

Gossett, Reina. “What Are We Defending?” Reina Gossett (blog), April 6, 2015. Accessed November 4, 2016.

Graham, Lorie M., and Siegfried Wiessner. “Indigenous Sovereignty, Culture, and International Human Rights Law.” South Atlantic Quarterly 110, no. 2 (2011): 403–27.

Hanke, Lewis. 1932. “Pope Paul III and the American Indian.” Harvard Theological Review 30(2): 65–102.

Ivison, Duncan. Rights. Montreal: McGill-Queen’s University Press, 2008.

Lorde, Audre. “The Master’s Tools Will Never Dismantle the Master’s House.” In Sister Outsider: Essays and Speeches, 110–14. Berkeley, CA: Crossing Press, 1984.

Lowe, Lisa. The Intimacies of Four Continents. Durham, NC: Duke University Press, 2015.

Lugones, Maria. “Heterosexualism and the Colonial/Modern Gender System.” Hypatia 22, no. 1 (2007): 186–209.

Lugones, Maria. “The Coloniality of Gender.” Worlds & Knowledges Otherwise (Spring 2008): 1–17.

Miller, Robert J. Native America, Discovered and Conquered: Thomas Jefferson, Lewis and Clark, and Manifest Destiny. Lincoln: University of Nebraska Press, 2008.

Million, Dian. Therapeutic Nations: Healing in an Age of Indigenous Human Rights. Tucson: University of Arizona Press, 2013.

Miranda, Deborah A. “Extermination of the Joyas.” GLQ: A Journal of Lesbian and Gay Studies 16, nos. 1–2 (2010): 253–84.

Mogul, Joey L., Andrea J. Ritchie, and Kay Whitlock. Queer (In)Justice: The Criminalization of LGBT People in the United States. Boston: Beacon Press, 2011.

Muldoon, James. Popes, Lawyers, and Infidels: The Church and the Non-Christian World 1250–1550. Philadelphia: University of Pennsylvania Press, 1979.

Morgenson, Scott Lauria. “Theorising Gender, Sexuality, and Settler Colonialism: An Introduction.” Settler Colonial Studies 2, no. 2 (2012): 2–22.

Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Oyewùmí, Oyèrónké, ed. African Gender Studies: A Reader. New York: Palgrave Macmillan, 2005.

Oyewùmí, Oyèrónké. The Invention of Women: Making an African Sense of Western Gender Discourses. Minneapolis: University of Minnesota Press, 1997.

Pagden, Anthony. Lords of All the World: Ideologies of Empire in Spain, Britain and France c.1500–c.1800. New Haven, CT: Yale University Press, 1998.

Rifkin, Mark. When Did Indians Become Straight? Kinship, the History of Sexuality, and Native Sovereignty. New York: Oxford University Press, 2011.

Robinson, Cedric J. Black Marxism: The Making of the Black Radical Tradition. Chapel Hill: University of North Carolina Press, 2000.

Schmitt, Carl. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. New York: Telos Press Publishing, 2006.

Scott, James Brown. The Spanish Origin of International Law: Francisco De Vitoria and His Law of Nations. Union, NJ: Lawbook Exchange, 1934.

Smith, Andrea. Conquest: Sexual Violence and American Indian Genocide. Cambridge, MA: South End Press, 2005.

Spade, Dean. Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of the Law. New York: South End Press, 2011.

Stanley, Eric A., and Nat Smith, eds. Captive Genders: Trans Embodiment and the Prison Industrial Complex, 2nd ed. Oakland, CA: AK Press, 2015.

Torre, Joseph M de. “The Roots of International Law and the Teachings of Francisco de Vitoria as a Foundation for Transcendent Human Rights and Global Peace.” Ave Maria Law Review 2, no. 123 (2004): 123–51.

Trask, Haunani-Kay. From a Native Daughter: Colonialism and Sovereignty in Hawai’i, rev. ed. Honolulu: University of Hawai’i Press, 1999.

Trexler, Richard C. Sex and Conquest: Gendered Violence, Political Order, and the European Conquest of the Americas. Ithaca, NY: Cornell University Press, 1995.

Tuhiwai Smith, Linda. Decolonizing Methodologies: Research and Indigenous Peoples. New York: Palgrave, 1999.

Vaid-Menon, Alok. “Greater Transgender Visibility Hasn’t Helped Non-Binary People – Like Me.” The Guardian, October 13, 2015.

Vitoria, Francisco de. “On the American Indians.” In Vitoria: Political Writings, edited by Anthony Pagden and Jeremy Lawrence, 231–92. Cambridge: Cambridge University Press, 1991.

Vogue, Ariane de, and Jeremy Diamond. 2015. “Supreme Court Rules in Favor of same-sex marriage Nationwide.” CNN, June 27, 2015.

Weheliye, Alexander G. Habeas Viscus: Racializing Assemblages, Biopolitics, and Black Feminist Theories of the Human. Durham, NC: Duke University Press, 2014.

Williams Jr., Robert. “The Medieval and Renaissance Origins of the Status of the American Indian in Western Legal Thought.” 57 Southern California Law Review 1 (1983).

———. Savage Anxieties: The Invention of Western Civilization. New York: Palgrave Macmillan, 2012.

Wynter, Sylvia. “Unsettling the Coloniality of Being/Power/Truth/Freedom: Towards the Human, after Man, its Overrepresentation—An argument.” CR: The New Centennial Review 3, no. 3 (2003): 257–337.


[1]. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). For discussion of “full equality,” see, for example, Ariane de Vogue and Jeremy Diamond, “Supreme Court Rules in Favor of Same-Sex Marriage Nationwide,” CNN, June 27, 2015, accessed October 20, 2015,

[2]. Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction (New York: New York University Press, 2012), 26.

[3]. For discussion of this point, see, for example, Lorie M. Graham and Siegfried Wiessner, “Indigenous Sovereignty, Culture, and International Human Rights Law,” The South Atlantic Quarterly 110, no. 2 (Spring 2011): 403–27, doi: 10.1215/00382876-1162516. For a critique of this line of argument, see, for example, Haunani-Kay Trask, From a Native Daughter: Colonialism and Sovereignty in Hawai’i, rev. ed. (Honolulu: University of Hawai’i Press, 1999); Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples (New York: Palgrave, 1999); Glen Sean Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014); Dian Million, Therapeutic Nations: Healing in an Age of Indigenous Human Rights (Tucson: University of Arizona Press, 2013).

[4]. See, for example, Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of the Law (New York: South End Press, 2011); Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock, Queer (In)Justice: The Criminalization of LGBT People in the United States (Boston: Beacon Press, 2011); and Eric A. Stanley and Nat Smith, eds., Captive Genders: Trans Embodiment and the Prison Industrial Complex, 2nd ed. (Oakland, CA: AK Press, 2015).

[5]. Audre Lorde, “The Master’s Tools Will Never Dismantle the Master’s House,” in Sister Outsider: Essays and Speeches (Berkeley: Crossing Press, 1984), 110–14.

[6]. See, for example, Maile Arvin, Eve Tuck, and Angie Morrill, “Decolonizing Feminism: Challenging Connections between Settler Colonialism and Heteropatriarchy,” Feminist Formations 25, no. 1 (Spring 2013): 8–34.

[7]. Arvin, Tuck, and Morrill, “Decolonizing Feminism,” 13.

[8]. Following Oyèrónké Oyewùmí, I use the term “worldview” to describe Eurocentric privileging of the visual to represent the cultural logic of European societies, as opposed to “worldsense,” which Oyewùmí uses to describe non-Western cultures’ world frames that privilege many senses other than the visual, or a combination of senses. Oyèrónké Oyewùmí, The Invention of Women: Making an African Sense of Western Gender Discourses (Minneapolis: University of Minnesota Press), 2–3.

[9]. Though a contested term, for purposes of this article I place colonial-modernity as formations of modernity grounded in colonialism. See Saurabh Dube, “Introduction: Colonialism, Modernity, Colonial Modernity,” Nepantla: Views from the South 3, no. 2 (2002): 203. See also Maria Lugones, “Heterosexualism and the Colonial/Modern Gender System,” Hypatia 22, no. 1 (Winter 2007): 192.

[10]. Francisco de Vitoria is often considered by scholars within disciplines such as political theory and international law as the “father” of international law and human rights, though these titles are the source of constant debate.  See, for example R.P. Boast, “The Spanish Origins of International Human Rights Law: A Historiographical Review,” Victoria University of Wellington Law Review 41, no. 235 (2010): 235–71; Joseph M. de Torre, “The Roots of International Law and the Teachings of Francisco de Vitoria as a Foundation For Transcendent Human Rights and Global Peace,” Ave Maria Law Review 2, no. 123 (2004): 123–51; Robert John Araujo, “The Catholic Neo-Scholastic Contribution to Human Rights: The Natural Law Foundation,” Ave Maria Law Review 1, no. 159 (2003): 159–74.  Vitoria’s work received a resurgence during the early twentieth century, when the American international lawyer James Brown Scott’s work on Vitoria positioned him at the beginning of a line of political thinkers important in the development of international law.  For general readings on Vitoria, see James Brown Scott, The Spanish Origin of International Law: Francisco De Vitoria and His Law of Nations (Union, NJ: Lawbook Exchange, 1934); Anthony Pagden, Lords of All the World: Ideologies of Empire In Spain, Britain and France (New Haven, CT: Yale University Press, 1998); Carl Schmitt, The Nomos of the Earth in the International law of the Jus Publicum Europaeum (New York: Telos Press Publishing, 2006).  In regards to critical readings of Vitoria, Antony Anghie argues for critical interpretation of Vitoria’s work within the formation of International law; see Antony Anghie, Imperialism, Sovereignty, and the Makings of International Law (Cambridge: Cambridge University Press, 2005). Federal Indian Law scholar Robert Williams Jr. connects Vitoria’s work to U.S. Federal Indian policy; see Robert Williams Jr., The Medieval and Renaissance Origins of the Status of the American Indian in Western Legal Thought, 57 S. Cal. L. Rev. 1 (1983).

[11]. The position of this argument is also to constantly question and critically analyze concepts such as and similar to the notions of the universal, civility, and normalcy throughout this essay.

[12]. Arvin, Tuck, and Morrill, “Decolonizing Feminism,” 8–34.

[13]. Anghie argues that the set up of Vitoria’s “civilizing mission” of colonialism as a way to exclude non-Europeans and conquer the land, and also to examine how this civilizing mission operates in relation to jurisprudential paradigms regarded as radically different, as a part of the larger project that aims to address the relationship between colonialism and international law. Anghie, Imperialism, 12.

[14]. Robert Williams Jr., Savage Anxieties: The Invention of Western Civilization (New York: Palgrave Macmillan, 2012).

[15]. Lewis Hanke, “Pope Paul III and the American Indian,” The Harvard Theological Review 30, no. 2 (April 1932): 65-102.

[16]. Francisco de Vitoria, “On the American Indians,” in Vitoria: Political Writings, eds. Anthony Pagden and Jeremy Lawrence (New York: Cambridge University Press, 1991), 234, 238, 244.

[17]. Vitoria states, “This whole dispute and relection has arisen because of these barbarians in the New World, commonly called Indians, who came under the power of the Spaniards some forty years ago, having been previously unknown to our world. My present discussion of these people will be divided into three parts: first, by what right (ius) were the barbarians subject to Spanish rule?” Vitoria, “On the American Indians,” 233.

[18]. Lisa Lowe, The Intimacies of Four Continents (Durham, NC: Duke University Press, 2015); Cedric Robinson, Black Marxism: The Making of the Black Radical Tradition (Chapel Hill: University of North Carolina Press, 2000).

[19]. Anghie, Imperialism, 15.

[20]. Vitoria, “On the American Indians,” 264.

[21]. For reference to discovery as an unjust title, see discussion of “third unjust title, that possession of these countries is by right of discovery,” in Vitoria, “On the American Indians,” 264; for reference to Christianity as unjust title, see discussion of “fourth unjust title: that they refuse to accept the faith of Christ, although they have been told about it and insistently pressed to accept it,” in Vitoria, “On the American Indians,” 265.

[22]. On the Doctrine of Discovery, see, for instance, Robert J. Miller, Native America, Discovered and Conquered: Thomas Jefferson, Lewis and Clark, and Manifest Destiny (Lincoln: University of Nebraska Press, 2008).

[23]. James Muldoon, Popes, Lawyers, and Infidels: The Church and the non-Christian World 1250–1550 (Philadelphia: University of Pennsylvania Press, 1979), 142.

[24]. Vitoria states, “My first conclusion on this point will be that the Spaniards have the right to travel and dwell in those countries, so long as they do no harm to the barbarians, and cannot be prevented from doing so. The first proof comes from the law of nations (ius gentium), which either is or derives from natural law, as defined by the jurist: ‘What natural reason has established among all nations is called the law of nations.’” Vitoria, “On the American Indians,” 278.

[25]. Vitoria states, “But even on the occasions when [the law of nations] is not derived from natural law, the consent of the greater part of the world is enough to make it binding, especially when it is for the common good of all men.” Vitoria, “On the American Indians,” 281.

[26] Angie, Imperialism, 20.

[27]. In addressing the first “just title” for Spanish occupation, “of natural partnership and communication, Vitoria states that “the Spaniards have the right to travel and dwell in those countries, and cannot be prevented by them for doing so,” as a right derived from the law of nations. Vitoria, “On the American Indians,” 278. In this section, Vitoria cities Augustine for the denial of right of passage as an iniuria [injury] sufficient for war. Vitoria, “On the American Indians,” Question 3, Article 1, Section 1, in “On the American Indians,” 278n75.

[28]. Vitoria addresses this point at length within the section titled “Just titles by which the barbarians of the New World passed under the rule of the Spanish.” See Question 3, Article 1, 278–84. Additionally, in the discussion of the second possible just title, “for the spreading of the Christian religion,” Vitoria states, “my first proposition in support of this is that Christians have the right to preach and announce the Gospel in the lands of the barbarians,” citing biblical scripture for this basis, and continues: “Second, it is clear from the preceding article, since if they have the right to travel and trade among them, then they must be able to teach them the truth if they are willing to listen, especially about matters to do with salvation and beatitude, much more so than about anything to do with any other human subject.” Vitoria, On the American Indians,’ Question 3, Article 2, Section 9, in Political Writings, 284.

[29]. Within the first just title, “of natural partnership and communication,” legitimated through the law of nations, Vitoria states as the second proposition that the Spaniards may lawfully trade: “In the first place, the law of nations (jus gentium) is clear that travellers may carry on trade so long as they do no harm to the citizens; and second, in the same way it can be proved that this is lawful to divine law. Therefore any human enactment (lex) which prohibited such trade would indubitably be unreasonable. Third, their princes are obliged by natural law to love the Spaniards, and therefore cannot prohibit them without due cause from furthering their own interests, so long as this can be done without harm to the barbarians.” Vitoria, “On the American Indians,” 279–80; On Vitoria’s elevation of the right to trade to the status of a universal right, see Georg Cavallar, The Rights of Strangers, Theories of International Hospitality, the Global Community, and Political Justice Since Vitoria (Burlington: Ashgate, 2002).

[30].  See, for example, Robinson, Black Marxism, 110.

[31]. Anghie states that in Victoria’s formulation, natural law is the new “universal” system, a “novel system of universal natural law.” Anghie, Imperialism, 19.

[32]. Vitoria, “On the American Indians,” 278. Situated within the Roman concept of the law of nature, European relations and social order were naturalized through the “capacity for reason” as resting primarily with Christian-Europeans: Roman law was thought of as the common basis for legal criteria and procedures and facilitated the expansion of property rights, contracts, and commercial transactions needed for an expanding mercantile society. At the root of Roman law were the principles of the “law of nature,” which Black states embodied both the ten commandments and the law of nations (ius gentium), which primarily referred to “property rights, the sanctity of promises and principles of justice to be observed in buying, selling, lending, borrowing, letting, and hiring.” Antony Black, Political Thought in Europe 1250–1450 (Cambridge: Cambridge University Press 1992), 89.

[33].Vitoria, “On the American Indians,” 250.

[34]. Fitzpatrick argues that Vitoria first includes the Indians in the “universal order” and then expels them for purposes of not matching the norms of European society and “natural reason.” Peter Fitzpatrick, “Terminal Legality: Imperialism and the (de)composition of Law,” in Law, History, Colonialism: The Reach of Empire, eds. Diane Kirkby and Catherine Coleborne (Manchester: Manchester University Press, 2001), 11. Additionally, Antony Anghie argues that while Vitoria acknowledged the Indigenous peoples had their own governance structures and thus were not “incapable of reason,” this same ability for reason bound the Indigenous “other” to the system of natural law and the law of nations: “Consequently, it is almost inevitable that the Indians, by their very existence and their own unique identity and cultural practices, violate this law, which appears to deal equally with both the Spanish and the Indians, but which produces very different effects because of the asymmetries between the Spanish and the Indians.” Antony Anghie, “The Evolution of International Law,” Third World Quarterly 27, no. 5 (2006): 743.

[35]. Vitoria, “On the American Indians,” 284.

[36]. Within the discussion of the 5th just title of the “defense of the innocent against tyranny,” Vitoria refers to Question 2, Article 5: the fifth unjust title, the “sins of the barbarians,” where he defines what sins against the law of nature encompass: either as “sins against the law of nature in a universal sense as ‘theft, fornication, and adultery,’” as well as “sins against natural law” and “against the natural order,” defined through the biblical use of “uncleanness” as “pederasty, buggery with animals, or lesbianism,” along with an extensive discussion of “sodomites.” Vitoria, “On the American Indians,” Question 2, Article 5, Section 40, in Political Writings, 273.

[37]. Vitoria, “On the American Indians,” 273.

[38]. Vitoria, “On the American Indians,” 282.

[39]. “It is an act of war to bar those considered as enemies from entering a city or country, or to expel them if they are already in it. But since the barbarians have no just war against the Spaniards, assuming they are doing no harm, it is not lawful for them to bar them from their homeland.” Vitoria, “On the American Indians,” 278.

[40]. Vitoria, “On the American Indians,” 282.

[41]. Duncan Ivison, Rights (Montreal: McGill-Queen’s University Press, 2008), 10.

[42]. See Ivison, Rights.

[43]. Frederico Garza Carvajal, Butterflies Will Burn: Prosecuting Sodomites in Early Modern Spain and Mexico (Austin: University of Texas Press, 2003).

[44]. Richard C. Trexler, Sex and Conquest: Gendered Violence, Political Order, and the European Conquest of the Americas (Ithaca: Cornell University Press, 1995), 1.

[45]. Trexler, Sex and Conquest, 1–2.

[46]. Scott Morgenson, “Theorising Gender, Sexuality, and Settler Colonialism—An Introduction,” Settler Colonial Studies 2, no. 2 (2012): 14.

[47]. Deborah Miranda, “Extermination of the Joyas,” GLQ: A Journal of Lesbian and Gay Studies 16, nos. 1–2 (2010): 257–58. Miranda cites a 1513 case of Spanish conquistador Vasco Nunez de Balboa, who recounted, “coming upon about 40 indigenous men, all dressed as women, engaged in what he called ‘preposterous Venus.’ He commanded his men to give the men as a ‘prey to his dogges,’ and the men were torn apart alive.” Miranda continues, stating that “by the time the Spaniards had expanded their territory to California, the use of dogs as weapons to kill or eat Indians, particularly joyas, was well established,” 258.

[48]. Arvin, Tuck, and Morrill, “Decolonizing Feminism,” 13–15.

[49]. Morgenson, “Theorizing Gender,” 14–15.

[50]. Morgenson, “Theorizing Gender,” 13.

[51]. Lugones, “Heterosexualism,” 186–87.

[52]. Maria Lugones, “The Coloniality of Gender,” Worlds & Knowledges Otherwise (Spring 2008): 8–11; see also Oyèrónké Oyewùmí, ed. African Gender Studies: A Reader (New York: Palgrave Macmillan, 2005).

[53]. Oyewùmí, The Invention of Women, 31.

[54]. Qwo-Li Driskill, “Stolen From Our Bodies: First Nations Two-Spirits/Queers and the Journey to a Sovereign Erotic,” Sail 16, no. 2 (Summer 2004): 52.

[55]. Arvin, Tuck, and Morrill, “Decolonizing Feminism,” 14–15; see also for example Mark Rifkin, When Did Indians Become Straight? Kinship, the History of Sexuality, and Native Sovereignty (New York: Oxford University Press, 2011).

[56]. See Sylvia Wynter, “Unsettling the Coloniality of being/power/truth/freedom: Towards the Human, after Man, its Overrepresentation—An argument,” CR: The New Centennial Review 3, no. 3 (2003): 257–337; as well as Alexander Weheliye, Habeas Viscus: Racializing Assemblages, Biopolitics, and Black Feminist Theories of the Human (Durham, NC: Duke University Press, 2014).  For a discussion of enslaved Africans as incorporated through the logic of just war, see Robinson, Black Marxism, 111.

[57]. For a discussion of racialized hierarchies under colonialism, see also Lowe, Intimacies of Four Continents.

[58]. See Silvia Federici, Caliban and the Witch: Women, the Body and Primitive Accumulation (New York: Autonomedia, 2014); Muldoon, Popes, Lawyers, and Infidels 76–88; Williams, Jr., Savage Anxieties.

[59]. Spade, Normal Life, 41.

[60]. Alok Vaid-Menon, “Greater Transgender Visibility Hasn’t Helped Non-Binary People—Like Me,” Guardian, October 13, 2015,

[61]. Spade, Normal Life.

[62]. Ryan Conrad, ed., Against Equality: Queer Revolution not Mere Inclusion (Oakland, CA: AK Press 2014); Eric A. Stanley and Nat Smith, eds., Captive Genders: Trans Embodiment and the Prison Industrial Complex, 2nd ed. (Oakland, CA: AK Press, 2015).

[63]. Kalaniopua Young, “From a Native Trans Daughter: Carceral Refusal, Settler Colonialism, Re-routing the roots on an Indigenous Abolitionist Imaginary,” in Captive Genders, 88.

[64]. Che Gossett, Riena Gossett, and A.J. Lewis, “Reclaiming Our Lineage: Organized Queer, Gender-nonconforming, and Transgender Resistance to Police Violence,” S&F Online 10.1–10.2 (2011/2012),

[65]. Arvin, Tuck, and Morrill, “Decolonizing Feminism,” 10.

[66]. Reina Gossett, “What Are We Defending?” Reina Gossett, April 6, 2015,

[67]. Kimberlé Crenshaw, “Race, Reform, and Retrenchment,” in Critical Race Theory: The Key Writings that Formed the Movement, eds. Kimberlé Crenshaw, Neil Gotanda, Gary Peller, and Kendal Thomas (New York: The New Press, 1995), 117.

[68]. Lorde, “The Master’s Tools,” 111.

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