Over the past month, North Dakota has passed a law targeting protestors who wear masks, Texas is considering forbidding people from using bathrooms consistent with their gender identity, and the European Court of Justice just gave a green light to employers who wish to forbid their employees from wearing religious head veils at work.

These laws have different motivations and they each impose unique threats: suppression of free speech, sex discrimination, racial animus, and religious bias.

But they also have a common effect—they impose barriers to entry into the public square, and, therefore, participation in democratic society. Each law concerns who can access public space and on what terms. And, if left in place, they threaten to disenfranchise large groups of people from forms of embodied democracy, even more fundamental and cherished than the voting booth.

By potentially requiring Dakota Access Pipeline protestors to remove all face coverings, North Dakota directly suppresses any symbolic message communicated by the mask, while also disrupting individual ability to engage in anonymous political speech. Now, to express dissent—to, in essence, engage in participatory democracy—a protestor likely must surrender their identity and succumb to facial surveillance.

By dictating that people use the bathroom corresponding to their so-called “biological sex,” defined as the sex listed on one’s birth certificate, Texas’s pending SB6 legislation discriminates against transgender people and forces them to use a bathroom inconsistent with their gender identity and expression.  This outs intimate information about them every time they use a public restroom and potentially subjects them to ridicule and violence. The legislation also deters transgender people from entering the public square in the first instance and suggests that, to do so, they must accede to the state’s arbitrary determination of who they are.  In this way, the bill denies trans people agency over their own identity and forecloses access to venues where they could contest the state’s determination, burdening their ability to participate in public life and denying their existence.

By empowering employers to forbid workers from wearing Islamic head veils, as it did last week, the European Court of Justice perpetuates and gives comfort to efforts targeting the veil and Islam more broadly. Beyond potentially shielding anti-Islamic employment actions, this decision also imposes obstacles on Muslim women’s ability to be seen and heard in the public square. As political theorist Judith Butler has explained, veil restrictions “condition [] entrance into the public sphere” on compulsory disaffiliation with one’s religion. Rather than representing a purported feminist liberation of Muslim women, veil restrictions force women out of public spaces and into the home, while ignoring the veil’s potential as a liberating, empowering symbol.

Of course, these particular efforts targeting protestors, transgender individuals, and Islamic head veils are not isolated. Anti-mask laws already exist in several states and were used to suppress Occupy Wall Street protestors at Zuccotti Park. Not long ago, anti-hoodie legislation was introduced in Oklahoma, seemingly motivated by Trayvon Martin-inspired hoodie protests. Over a dozen other states are considering so-called bathroom bills during this legislative session and North Carolina passed the first bathroom bill, HB2, last year. Likewise, the European Court of Justice opinion follows on other efforts to unveil Muslim women, including France’s 2004 ban on head veils in public schools and the European Court of Human Rights 2014 decision approving France’s separate ban on full-face veils while in public.

Without question, questions of racism, classism, transphobia, and Islamophobia are at the center of these battles. And because identity politics plays a powerful role in the passage and enforcement of these laws, it will—and should—play an important role in reversing them.

But it is equally important to understand the common thread among these efforts—transformation of the public square from a place where divergent ideas can be expressed by diverse people, to a homogeneous zone where only those who look, act, and believe the same thing can participate. If access to the square is limited or lost in this way, it will be harder still to change these discriminatory laws at the ballot box or in the courts.

Each of the laws also targets embodied political action.  Embodied political action—for example, showing up to a protest, wearing a head veil when it is frowned upon, visiting the bathroom consistent with one’s gender identity, or using encryption technology, such as Signal, to communicate and avoid surveillance—is powerful, in part, because it is performative. In other words, in addition to verbal critiques of the hegemonic laws at issue, embodied political acts themselves directly communicate, signal opprobrium of the laws, and offer reimagined methods of social organization.

Part of the political power of these actions is derived from their fidelity and integrity to the values they espouse—embodied political actions live the kind of democracy they preach. As I have expanded on elsewhere, when people gather together in protest, they contest prevailing neoliberal political governance and suggest there are other ways to conceive of participatory democracy. When individuals attempt to maintain privacy in public through obfuscation technologies or face/head coverings, they express resistance to surveillance regimes and help shape community norms regarding privacy. When people use the bathroom consistent with their gender identity, they challenge and reshape prevailing gender norms.

While these are but a few examples of different types of embodied, expressive resistance, these deviant actions all have the power to erode, dismantle, or recraft social structures.

Thanks to incredible movement activists, there is a growing reawakening recently to the importance of embodied political action, as evidenced by massive and sustained protests organized by Black Lives Matter, the Women’s March, the immigrant rights movement, the Standing Rock Sioux, queer activists, and others. And certainly those in positions of authority recognize the potency of embodied political action. For that, one need look no further than President Donald Trump’s anguish over the January 21, 2017 Women’s March dwarfing his inauguration crowd, Press Secretary Sean Spicer’s frustration at the prospect White House staffers may be using encrypted communication technologies that performatively critique government surveillance, or law enforcement, such as the NSA, purportedly targeting for additional surveillance and regulation those who attempt to maintain their privacy.

Seemingly disparate laws seeking to target and further isolate certain marginalized groups are symptomatic of a broader epidemic foreclosing access to the public square, which raises the stakes for collective, embodied, performative political action and highlights, even further, the necessity of broad-based coalition building. For, while marginalized groups may be targeted for various reasons, they are all, to varying degrees and in different, subtle ways, being pushed from the public square—being denied civic participation. Meaning that these laws are not just about one group or another. They are about all of us.

This article draws from my scholarship, Performative Privacy, forthcoming in the U.C. Davis Law Review.   

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