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University of Chicago Law Review

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Abstract

In August 2021, the Indiana Court of Appeals prohibited a transgender teenage boy (H.S.) from changing the gender marker on his birth certificate. Because he was fifteen at the time, his parents had filed the petition on his behalf.1 As his parents testified, changing the gender marker on a young trans person’s birth certificate is more than a formality. It makes it possible for them to obtain a passport and driver’s license that match their identity, helping to avoid incongruities in gender regulation that can run the gambit from confusing to dangerous.2

The appellate panel was split. Legally speaking, the case turned on applying the “best interests” test to the evidence presented.3 But beneath that legal question was an epistemological conflict over the definition of gender and the circumstances under which it can change. The trial court judge and appellate panel members disagreed not only on these questions but, by extension, over which sources of gender knowledge to credit as authoritative. The case did not necessarily depend on interpretation of gender, but it reveals how the courtroom can be a crucible where competing epistemologies from medicine, public discourse, and lived experience collide.

This dynamic echoes a central theme in Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life before Stonewall, an important new work of legal history by Professor Anna Lvovsky.4 Vice Patrol is a study of antihomosexual policing in U.S. cities between the fall of Prohibition and the Stonewall Rebellion. It expands historical understanding by following antihomosexual enforcement through the rungs of the legal system—from municipal police tactics to appellate review at the Supreme Court. Beyond these contributions to the history of sexuality, however, the book reveals how public discourse filters into and through the judiciary.

Visibility is the clarion call of LGBT politics, but Vice Patrol scrambles the signal. Lvovsky takes familiar moments of gay visibility as her starting point, showing how media attention hardened stereotypes about gay culture. Those stereotypes had a curious afterlife in the legal system, leading to “epistemic gaps” between enforcement institutions.5 On her account, courts did more than showcase public debates over the nature of homosexuality: they “directly intervened” by “applying the weight of the law to recognize certain claims as authoritative over others—to establish binding truths about queer social and sexual practices.”6 By elaborating on this process, Lvovsky reveals the “regulatory underside” to gay cultural visibility.7 As French philosopher Michel Foucault quipped almost fifty years ago, “[v]isibility is a trap.”8

Vice Patrol offers a novel history of the visibility trap. It integrates interventions in legal history, history of sexuality, and queer theory with remarkable ease. Lvovsky brings new insight to a question that has puzzled scholars across several fields: Why and how does cultural representation lead to increased state repression? Blending impressive archival research with sophisticated theoretical analysis, Lvovsky follows cultural knowledge into the legal system to offer a fresh diagnosis of the problem and how it develops. In her discovery of “epistemic gaps,” she uncovers a key mechanism of the visibility trap.9 Disagreements between the police and the courts, not internal consensus about the purpose and object of regulation, enable legal regimes to “maintain and even expand their power over policed groups.”10 On this account, epistemic gaps are the missing piece to understanding how the visibility trap actually works. Part I of this Book Review draws out the book’s primary arguments to elaborate this theory, offering additional context for non-specialists and pressing on a few of the claims. Part I also reveals a latent argument in Vice Patrol about visibility itself, showing how Lvovsky brilliantly disentangles the forms of cultural salience, stereotype, and self-representation that often fly under the banner of “visibility.”

In Part II, the Review tests Lvovsky’s visibility theory against contemporary transgender visibility politics. Reading antitransgender policing and transgender civil rights struggles through Vice Patrol gives us a new way to understand how regulated people can harness knowledge about their communities to influence its path through legal institutions. Recognizing the limits of visibility, Vice Patrol suggests that strategic unintelligibility can be an important tool to fight repression.

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