Racialized Criminality and the Imprisoned Trans Body: Adjudicating Access to Gender-Related Medical Treatment in Prisons

Article excerpt

THE CRIMINAL JUSTICE SYSTEM AND PRISON SYSTEM PLAY A CENTRAL ROLE IN THE production of race, citizenship, gender, and sexuality in the contemporary United States. With over two million people in U.S. jails and prisons and over seven million people under U.S. correctional supervision--including prisons, jails, detention centers, parole, and probation--well over half of whom are people of color, the criminal justice system is an important site of U.S. social formation (Wacquant, 2001; SRLP, 2007; Western, 2006). Discourses of racialized criminality pervade U.S. society, constructing people of color as inherently criminal and deviant, and normalizing the mass incarceration of communities of color. This racialized criminality is marked by and defined, in part, through non-heteronormativity. Imprisoned people's bodies and rights are interpreted through constructions of racialized criminality and non-heteronormativity. Through textual readings of a sample of published district and circuit court decisions from the past 10 years that address lawsuits brought by imprisoned trans people who have challenged their lack of access to gender-related medical care, I examine how discourses of racialized criminality stick to imprisoned trans (1) bodies and mediate the ways in which courts understand imprisoned trans people's rights and their claims to access to gender-related medical care.

I aim, in part, to mark the ways in which race and racism continue to pervade legal discourses of gender, sexuality, and rights in a purportedly "colorblind" society. As Critical Race Theorists have pointed out, legal understandings of "rights" are racialized and contingent on historical and ongoing structures of racial inequality and oppression. Contemporary legal "colorblind" discourse is, in fact, a racial ideology that works to erase the formal whiteness of institutions while reentrenching and naturalizing patterns of racialized subordination (Crenshaw, 1997). Our access to rights is mediated by our social location, identities, and bodily attributes--not

just race, but also immigration status, gender, sexuality, ability, etc. In other words, rights are understood to belong naturally to certain bodies and communities and not to others. Race is never mentioned in these cases, but the courts' readings and adjudication of imprisoned trans people's rights are racialized and socially mediated. The courts' legal and social narratives of violence, accessibility, normativity and deviance, inside and outside, and innocence and guilt are filtered through the symbols, concepts, and imagery of race and racialized criminality (Jones, 1997). The racialized, white-supremacist logic of the U.S. prison system and constructions of racialized criminality stick to these imprisoned bodies (Saldanha, 2006).

I take up the law as a scholar versed not in legal studies, but rather in forms of cultural critique because culture and social constructions of gender, sexuality, and race shape the way in which the law is articulated and adjudicated. The law plays an important role in producing cultural discourse, structures, and hierarchies. As Ian Haney Lopez (2006: 87) explains, the law is a "system of ideas about the world" and is an essential component in the social production of knowledge. It is also instrumental in the production, consolidation, and institutionalization of the normative and the construction of the normative citizen as white, heterosexual, able-bodied, and male (Reddy, 2005). The law purports to be colorblind and socially neutral, but it naturalizes existing racial and economic relations and hierarchies and works to hide machinations of power (Ewald, 1990). By naturalizing and legitimizing certain bodies, acts, narratives, and knowledges and delegitimizing and criminalizing others, the law plays a coercive, violent, and productive role in U.S. society (Foucault, 1995; Cover, 1993; Mezey, 2003). Reading these decisions through textual analysis allows me to illuminate the social and cultural assumptions and discourses embedded in them. …