Academic journal article Columbia Journal of Gender and Law

Biopolitical and Necropolitical Constructions of the Incarcerated Trans Body

Academic journal article Columbia Journal of Gender and Law

Biopolitical and Necropolitical Constructions of the Incarcerated Trans Body

Article excerpt

To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison s failure to provide sustenance for inmates may actually produce physical torture or a lingering death. Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.

Brown v. Plata, 563 U.S. 493, 510 (2011).


Michelle Lynne Kosilek is a sixty-eight-year-old White trans (1) woman currently incarcerated in the general population of Massachusetts Correctional Institution at Norfolk (MCI-Norfolk), a medium security men's prison managed by the Massachusetts Department of Corrections (DOC). Since 1992, Kosilek has been serving a life sentence without the possibility of parole. (2) From the very beginning of her incarceration, Kosilek has relentlessly sought access to gender-affirming care. In 1992, she filed a pro se lawsuit in the District Court of Massachusetts pursuant to 42 U.S.C. [section] 1983 against the DOC, seeking damages and injunctive relief, and arguing that their refusal to provide her treatment for gender identity disorder violated her Eighth Amendment right to adequate medical care. (3) Under the standard established in Estelle v. Gamble, (4) a plaintiff must affirmatively show (a) a serious medical need and (b) "deliberate indifference" on the part of the defendants. Kosilek's medical need was demonstrated by the diagnosis of gender identity disorder (GID; now called gender dysphoria). The second prong, the deliberate indifference standard, proved much harder to meet. Nevertheless, the DOC rescinded the "freeze-frame" policy that it had adopted in response to litigation, a policy that categorically barred trans prisoners from receiving any gender-affirming care they had not been prescribed prior to incarceration. Kosilek eventually gained access to hormone therapy and electrolysis. The battle continued, however, over access to gender-affirming genital surgery, or "sex reassignment surgery" (SRS) as it was called by the courts and the parties in this case.

Access to gender-affirming care of one's choice is crucial to the self-determination of trans people. Gender-affirming care refers to any regimen or procedure administered by the medical establishment that trans people may elect to receive, with the aim of modifying their bodies to match their internal sense of gender. The notion of "care" captures only a subset of gender-affirming somatechnics, or technologies of body modification. Many trans people may not view transness as essentially medical, but certain somatechnics are only available through a process of medical consultation and diagnosis by a licensed expert. Not all trans people seek gender-affirming care, and many who do cannot access it. The restrictions on somatechnics are governed both by the field of medicine (in defining health, illness, and care) and by legislation (licensing health care professionals who may legally prescribe or operate on patients).

In using the term "care" throughout, this Article is also implicated in the transmedicalist framework that currently structures access to gender-affirming somatechnics. Transmedicalism refers to the understanding of transness as an essentially medical condition.

A critical implication of transmedicalism is the supposition that experiencing gender dysphoria is necessarily a part of being trans, which is inconsistent with the lived experiences of many trans people. A diagnosis of gender dysphoria (GD) requires "clinically significant distress" or "impairment in the functions of daily life," (5) and such a diagnosis is a pre-requisite to receiving most forms of gender-affirming care. Although being trans is not a medical condition, transmedicalism structures access to gender-affirming substances and procedures. …

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