Gender Data in the Automated Administrative State
74 Pages Posted: 16 Feb 2023
Date Written: February 14, 2023
In myriad areas of public life—from voting to professional licensure—the state collects, shares, and uses sex and gender data in complex algorithmic systems that mete out benefits, verify identity, and secure spaces. But in doing so, the state often erases transgender, nonbinary, and gender-nonconforming individuals, subjecting them to the harms of exclusion. These harms are not simply features of technology design, as others have ably written. This erasure and discrimination are the products of law.
This Article demonstrates how the law, both on the books and on the ground, mandates, incentivizes, and fosters a particular kind of automated administrative state that binarizes gender data and harms transgender, nonbinary, and gender-nonconforming individuals as a result. It traces the law’s critical role in creating binary gender data pathways every step of the way, from legal mandates to their collection on forms, through their sharing via intergovernmental agreements, and finally to their use in automated systems procured by agencies and legitimized by procedural privacy law compliance. At each point, the law mandates and fosters automated governance that prioritizes efficiency rather than inclusive goals, thereby erasing gender diverse populations and causing dignitary, expressive, and practical harms.
In making this argument, the Article challenges the conventional account in the legal literature of automated government in general as devoid of discretion, reliant on technical expertise, and the result of law stepping out of the way. Quite the contrary. This Article shows that civil servant discretion persists, that expertise is often secondary to stereotypes and perceptions of common sense, and that the automated state is a product of law.
The law’s role in creating this automated state has been mostly hidden from view. It is a puzzle of statutes, on-the-ground policymaking, interagency agreements, efficiency mandates, and policy-by-procurement. To piece this puzzle together, this Article is one of three in a series to rely on a novel data set of over 9,000 government forms, hundreds of public record requests, direct interviews, and in-depth statutory analysis. Using these tools, the Article provides a critical account of sex and gender data in the automated state and challenges the legal literature’s traditional account of automation’s effects and its relationship to law. The Article concludes with principles for reforming the state’s approach to sex and gender data from the ground up, focusing on privacy law principles of necessity, inclusivity, and anti-subordination.
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