2.1.2. Physical Enhancements—"Gender"

For purposes of the discussion of voting in the United States, we will start with a binary definition of "gender" as male/female or woman/man to trace the historical lines drawn regarding voting rights, recognizing that such a narrow definition is not only overly simplistic it is harmful. As Professor Judith Lorber explains: "Today's gender paradox is a rhetoric of gender multiplicity made meaningless by a continuing system of bigendered social structures that support continued gender inequality." [31]11.

Professor Peter Singer offered this initial possible response to Thomas Taylor's satire of Mary Wollstonecraft's "Vindication of the Rights of Women" in 1972—"A Vindication of the Rights of Brutes":

*"Women have the right to vote, for instance, because they are just as capable of making rational decisions as men are; dogs, on the other hand, are incapable of understanding the significance of voting, so they cannot have the right to vote."*<sup>12</sup>

For much of the history of the United States, there was no shared agreemen<sup>t</sup> that women were just as capable of making rational decisions as men. The right to vote in the United States, even prior to its formal construction through the United States Constitution, was a right for (white) male citizens only. According to the Preamble of the Declaration of Independence of 1776:

*We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed*. [34]

The express reference to "men" was intentional, and the fact that it was not necessary to state "white" was because of the predominant view that people of color—whether indigenous, immigrant, slaves or "free Blacks" were not created "equal" to white men. "The founding generation's republican vision—that is, the vision of the propertied white males who monopolized political power and promulgated the Constitution—can be reduced without too much distortion to a handful of fundamental ideas. Moreover, the preservation of liberty in a confederated republic depended on limiting full political participation and legal personhood to propertied white men. The majority of the population—women, black Americans, the indigenous nations, the poor—would take positions decisively subordinate to that of propertied white men in the new constitutional structure [15]."

Denial of the right to vote based on gender was still allowed under the United States Constitution for another three decades after the right was given to Black males. In 1920, the Nineteenth Amendment to the Constitution was ratified. The Nineteenth Amendment specifies that: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex." (emphasis added). Yet

<sup>11</sup> This harm extends across species. See also the work of pattrice jones exploring the intersection of "speciesism and sexism at the heart of not only domestic violence and other forms of husbandry but also landlordism, racism, and 'ecophobia'" [32] (citations omitted).

<sup>12</sup> Ref. [33] at 148–162. To be more accurate, this statement could be re-worded as "women are just as capable of making rational *and irrational* decisions as men are." In addition, we should not accept without challenge the assumption that "rationality" has a well-defined neutral meaning, nor that it is the *sine qua non* of voting. As will be suggested in Section 3, sympathy, empathy and emotional intelligence may all be equally valuable qualities, particularly for voters who have responsibilities toward non-voters who may be impacted by their vote.

similar "informal disenfranchisement" occurred for women of color as for Black men, even after the passage of the Nineteenth Amendment. It was particularly easy to make such disenfranchisement legal because the wording of the Nineteenth Amendment did not affirmatively give women the right to vote. Instead, it was phrased to prohibit denial of the right to vote solely on the basis of gender. States continued to use poll taxes and other voter suppression tactics to keep women of color from voting. Asian American women who lacked citizenship as of 1920 were still not entitled to vote, nor were indigenous women. Even worse, the enfranchisement of white women at the expense of other women was intentional, not accidental.

What are the potential implications for moderate human enhancement and voting? In the near term, we can see that voter ID laws could easily be used to disenfranchise humans who changed their genders from male to female, or who were enhanced such that they appeared to be of a different gender than listed in their identification documents. For example, states that require governmen<sup>t</sup> photo IDs, such as Georgia, can be daunting for transgender voters in the United States.<sup>13</sup> Similarly, if gender modifications could be made at will, it could be even more challenging to meet legal voting requirements that incorporated some element of gender for identification.

In the longer term, if a person's gender could be changed prior to birth, and if a certain gender was more favored than another gender, we might see a voting population skew, over time, as more parents made the choice to only have children of the favored gender. This type of gender imbalance has already happened in certain countries. For example, as of 2018, men outnumbered women by 70 million in China and India (as a combined total). "A combination of cultural preferences, governmen<sup>t</sup> decree and modern medical technology in the world's two largest countries has created a gender imbalance on a continental scale [37]." What would that mean for voting? Would all votes really be equal in the case of marked gender imbalance among the voters?<sup>14</sup> What would the composition of Congress be if voting men outnumbered women substantially in the United States, due to human enhancements, or vice versa [39]? The votes (and concerns) of the gender minority could be of less interest to the candidates for election, and to the elected representatives — or of more interest if they were tiebreakers in close races, as happened with newly-enfranchised members of certain tribes in Canada during the 1800s [8]. As will be suggested in Section 3, in such a situation, it would be particularly important to consider and be responsible for the humans in the minority. Before addressing that area, however, we will push the boundaries of "human" by considering voting implications of extreme human enhancements.

### *2.2. Extreme Human Enhancements and Voting*

Under our rough categorization, humans with extreme enhancements would typically be socially perceived as "inhuman" or "non-human" by humans who did not have similar enhancements. In such a scenario, it is not clear that the concept of "humanity" would still be meaningful as a method of drawing boundaries between conscious beings who have a right to vote—or to be entitled to representation if unable to vote directly.

Humans on a wider scale might elect to have extreme enhancements if they were safe, available, and particularly if they were reversible. Consider "Muffe" on a Danish children's show, who had horns implanted under the skin of his bald head [40]. Or Dennis Avner (also known as "Stalking Cat") who held a world record for the most permanent transformations to look like an animal [41]. These may be outlier examples now but the popularity of the "animal" filters on social media networks suggests that humans do enjoy

<sup>13</sup> "The strictest voter ID laws require voters to present government-issued photo ID at the polls, and provide no alternative for voters who do not have one [35]." In addition, "each state handles gender and name changes differently. In Georgia, a judge has to approve a name change. To change a gender marker on your driver's license, you need a doctor's letter saying you've had gender reassignment surgery. The problem is that there are different kinds of transgender surgeries, and some trans people don't ge<sup>t</sup> any surgery at all [36]."

<sup>14</sup> In the United States, for example, the 116th Congress from the 2018 Midterms had more women than ever. And ye<sup>t</sup> women still were only 25% of the Senate and 23% of the House, when they represented approximately 51% of the United States population as a whole [38].

pretending to be animals if they can still retain some element of humanity. In other words, one key part of such filters is that the person still be recognizable as the "cute" animal. If similar physical enhancements were reasonably reversible, they might be adopted more widely and they might be more extreme, such that the enhanced human was seen as more animal than human. In that case, unless the laws were changed, it is reasonably likely that they would be denied the right to vote in the United States since animals do not have the right to vote. A similar result would likely arise if an enhanced human had so many inorganic enhancements that they appeared to be a robot versus a human being.

Another example of an extreme enhancement might be a "cultured brain," such as that discussed by Professor Kevin Warwick:

*"It is quite possible to culture networks of dissociated neurons grown in vitro in a chamber. The neurons are provided with suitable environmental conditions and nutrition. A flat microelectrode array is embedded in the base of the chamber, thereby providing a bi-directional electrical interface with the neuronal culture. The neurons in the culture rapidly reconnect, form a multitude of pathways and communicate with each other by both chemical and electrical means. Although for most research in the field thus far, the neurons are typically taken from rat embryos, it is quite possible to use human neurons instead once sufficient connections have been made between the neurons so that, in research, the cultured brain is given a robot body with the ability to sense the world and move around in it"* [42]

Should a "cultured brain" grown from human neurons be treated as a person having a right to vote if it was implanted in a human body versus a robot body? Should it even matter which body a brain is in? If a human being, say, for example, Dr. Stephen Hawking, was only able to communicate via neural implants (versus only via a single cheek muscle as was the case toward the end of his lifetime), would he be stripped of his right to vote because he no longer had a body that functioned? Alternatively, a sentient and sapient nonhuman consciousness ("Artificial Intelligence Plus" or "AI+") could reside (permanently or even temporarily) in a human body, such as via neural implants that connected the body to the AI+, which could also extend globally via Internet connections and a public or private cloud-based network. Such AI+ might not need to be physically constrained to a particular body—and could move between host human bodies at will or occupy more than one human body at a time, in constant communication.<sup>15</sup> Another extreme enhancement example could be humans linked to form an extended consciousness, such as via Brain-to-Brain Interface (BBI) technology,<sup>16</sup> or even a "hivemind" of multiple enhanced humans (with both organic and inorganic based consciousness)<sup>17</sup> who shared an interconnected consciousness, which might be given no vote, one vote, or the number of votes of the humans who were linked together.

Would such enhanced humans be entitled to vote? If so, why, where (in which country or countries), and how many votes would they have? Such extreme enhancement scenarios put pressure on the relevance of the human body to "voting". As Dr. Chia Wei Fahn has articulated for disabled bodies as interrogating existing normative standards of humanity, "technological growth and innovative design are now seen as having a unique influence regarding disability and posthumanism; disabled bodies are a 'dynamic hybrid' that is focused 'not on borders but on conduits and pathways, not on containment but on leakages, not on stasis but on movements of bodies, information and particles' that transcend corporeal boundaries and join the biological to the technological in posthuman embodiment."<sup>18</sup>

<sup>15</sup> Such a scenario is described very powerfully in Ann Leckie's Imperial Radch science fiction trilogy, starting with *Ancillary Justice* [43].

<sup>16</sup> One specific form of BCI development, Brain-to-Brain Interface (BBI), may lead to particularly novel social and ethical concerns. BBI technology combines BCI with Computer-to-Brain Interfaces (CBI) and, in newer work, multi-brain-to-brain interfaces— ... in which"real-time transfer of information between two subjects to each other has been demonstrated [44]."

<sup>17</sup> Consider Professor Minoru Asada's hypothesis that a nervous system for pain sensation is necessary to shape the conscious minds of artificial (inorganic) systems [45].

<sup>18</sup> Ref. [46] (citing Nayar, P.K. *Posthumanism*; Polity: Oxford, UK, 2014).

For extreme enhancements, it is not clear whether "human DNA" should be required at all for voting rights, and if it is, in what percentage. Similarly, it is questionable whether the platform for the minds of such enhanced humans, whether neurons in the case of biological minds or silicon in the case of digital/software minds should be relevant to their voting rights.

Based on the history of discrimination in voting against those viewed as "other" as described above, a human who was enhanced to such an extreme level that they no longer appeared to be human at all—such as a full or hybrid inorganic or animal body, with varying transient embodiments, or with no embodiment whatsoever—would likely be denied the right to vote. It took Native Americans until 1924 to ge<sup>t</sup> the right to vote under federal law (and even until 1957 some states barred Native Americans from voting) [22]. Given this history, it seems unlikely that a cyborg with a human brain in a robot body (regardless of the source of the brain, birth brain versus cultured brain) or a "Frankenstein" with one person's brain implanted in another person's body would easily be given the legal right to vote, particularly if they were in the minority of the overall population and viewed as "freaks" or "less than human."<sup>19</sup> For example, in what might have been the first attack by non-enhanced humans on a human cyborg, Professor Steve Mann was wearing a system he called "EyeTap" physically connected to his skull. When he visited a restaurant in Paris, two employees allegedly tried to remove it from his head by force [47]. Given the prevalence of violent attacks (both in person and online) on those viewed as "other", such as transgender or gender-nonconforming individuals, as well as people who are physically or mentally disabled, it is likely that there would be efforts to prevent humans with extreme enhancements from voting, particularly if they were in the minority of the human population [48–50].

But what if certain enhancements, whether moderate or extreme, became the norm for the general population? In such a case, the non-enhanced might be (legally or practically) left behind when it came to voting.

### *2.3. Disenfranchisement of the Non-Enhanced or Less-Enhanced*

In the case of either moderate or extreme enhancements, there is a risk that if such enhancements become prevalent among the existing population of voter, non-enhanced or less-enhanced humans could be legally and effectively denied the right to vote. For example, if moderate or extreme enhancements that allowed for a particularly convenient method of voting became ubiquitous for other reasons, then there could be effective denial of the right to vote for those who lacked the wealth or resources to have such physical enhancements.
