The Gender Panopticon: Artificial Intelligence, Gender, and Design Justice

Abstract

Using recent research from data scientists and technologists, this article argues that we are at a contradictory moment in history regarding the intersection of gender and technology, particularly as it affects LGBTQ+ communities. At the very same moment that we see the law embracing more and more visibility regarding gender identities and fluidity, we also see an even greater reliance on surveillance technologies that are flatly incapable of working beyond the binary of male and female. These technological limitations become even more fraught in today’s age, where we face an unprecedented degree of surveillance – gender-related, and otherwise--than we have ever seen in history. When a binary system of gender merges with the binary nature of code, the result fails to integrate LGBTQ communities, particularly nonbinary and transgender populations, erasing them from view. Using insights from a wide range of studies on artificial intelligence technologies – automated body scanners, facial recognition, and content filtering on social media, we argue in this Article, that we need to grapple with the reality that the relationship between technology and gender is far more complicated than the law currently suggests. Technology companies, along with multiple courts, colleges, and workplaces, must realize that the binary presumptions of male and female identity are largely outdated for some, and often fail to capture the contemporary complexity of gender identity formation. The question for legal scholars and legislatures is how the law – and technology -- can and should respond to this complexity. In the final sections, we discuss some of the legal implications of these technologies of surveillance, looking at both law and the design of technology, and turn to some of the normative possibilities to develop greater equality and gender self-determination.