Gender & Sexuality Law Blog

Tomorrow starts the Thanksgiving travel crunch and there is much hullabaloo about the new TSA airport screening regulations.  Depending on the airport, one should expect either to have their body scanned or patted down in new and more thorough ways.  Apparently the new regulations are so invasive that an Arkansas man has filed an action in federal court claiming that the agency’s new screening rules are detrimental to his “emotional, psychological and mental well-being” even though the Little Rock National Airport does not yet have the full-body scanners.  Is the claim that Robert Dean, the plaintiff in the lawsuit, is suffering injury to his emotional, psychological and mental well-being because he won’t be intimately frisked?  Hard to know.

But seriously, I find it interesting that this has garnered so much attention.  When I went through the Raleigh-Durham airport last week, returning home from a talk at UNC (what a great law school, by the way), the guy behind me got singled out for “secondary screening” the old fashioned way – they wanted to “wand” him and go through his bags.  He was there with his lovely wife and two cute kids, and he made all sorts of jokes with the TSA fellow who pulled him aside, about the new screening treatment (which he wasn’t, by the way, getting): “Should we get a room?  He he he.” “My wife’s gonna be pretty jealous with you, uh, rootin’ around ‘down there’.” “Are you wearing a condom?”  Like that.  In front of the wife and kids, who were mortified.

Whatever.

The reason I raise the issue here is not to rehearse the objections raised by many others questioning the fact that it is usually scans of women’s bodies that appear in the media objections to the new technology (on the presumption that women are more violated than men in having their outlines portrayed on a video screen), or that having a stranger at the airport touching you in places you aren’t comfortable with is some kind of sexual violation, but for four other reasons:

1. The latent homophobia underlying some of the objections to a person of the same-sex as the passenger touching the passenger in what gets labeled as “the private body.”

2. The particular problems that transgender people are now facing in deciding to travel by air.  Both the body scans and the pat downs threaten to reveal “information” about trans people’s bodies in ways that are surely going to generate inappropriate and discriminatory reactions by TSA employees when the new procedures reveal objects under the passenger’s clothing such as binding, packing or prosthetic devices which may show up as unknown or unusual images on a body scan or patdown.  These as well as wigs or hairpieces may require additional screening if they are bulky or not form-fitting, and may lead TSA personnel to do additional screening.  The National Center for Transgender Equality has issued a fact-sheet on how trans travelers ought to anticipate and handle the inevitable problems they’ll encounter under the new regs.  The fact-sheet notes that:

- You have the right to choose whether a pat down is conducted in the public screening area or in a private area, and, if in a private area, whether to be accompanied by a travel companion.

- You have the right to have manual search procedures performed by an officer who is of the same gender as the gender you are currently presenting yourself as. This does not depend on the gender listed on your ID, or on any other factor. If TSA officials are unsure who should pat you down, ask to speak to a supervisor and calmly insist on the appropriate officer.

- You should not be subjected to additional screening or inquiry because of any discrepancy between a gender marker on an ID and your appearance. As long as your ID has a recognizable picture of you on it, with your legal name and birth date, it should not cause any problem.

3.  Many TSA employees are no doubt under-enthusiastic about implementing these new regs.  There will surely be issues for them in terms of workplace stress and even, in some circumstances, allegations that the regs create a sexually hostile work environment.  We live in a sex-phobic enough culture that being asked to pat down travelers in areas of the body that are commonly understood as “private” and/or “sexual” will be deemed inappropriate and illegal.  Indeed, it would have been a great strategy for Robert Dean, the Arkansas plaintiff, to include a TSA employee as a co-plaintiff in his lawsuit.  I don’t endorse this approach, but I wouldn’t be surprised if we see it raised.

Gov. Christine Whitman Frisks a Suspect in 1996

4. In interesting ways, this policy forces “regular” travelers to experience what many urban, black and brown men have had to manage for years and years at the hands, literally, of police – an invasive violation of bodily integrity in the absence of probable cause.  But this issue extends well beyond the abusive treatment of men of color by police.  New York City has agreed to pay $33 million in  damages to approximately 100,000 pretrial detainees arraigned on misdemeanors and lesser offenses who were illegally strip searched at admission to a City jail between 1999 and 2007, even though there was no reason to believe they were concealing drugs or contraband. And just last spring Justice Clarence Thomas, dissenting from the rest of the Supreme Court, thought it was reasonable for public school officials to search a 13 year old girl by having her strip down to her underpants and bra and shake them to see if any “contraband pills” dropped out, (he used a baseball bat in a pocket metaphor that was almost too bad to believe).

So now “respectable” white men are being subjected to treatment to which all the rest of us have always been vulnerable.  No wonder they’re upset, but it’s interesting they weren’t standing up for the privacy rights of friskees when this sort of thing was taking place prior to the implementation of the new TSA regs.