BIOPOLITICAL AND NECROPOLITICAL CONSTRUCTIONS OF THE INCARCERATED TRANS BODY.

• Author: Zhang, Christoph M.

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).

INTRODUCTION

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 Nevertheless, the DOC rescinded the "freeze-frame" policy that it had adopted in response to litigation, a policy that categorically barred trans prisoners from receiving any gender-affirming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. This has made it possible and necessary for trans prisoners to parse their needs into existing Eighth Amendment jurisprudence through Estelle, which established that "deliberate indifference to serious medical need" falls into the category of "cruel and unusual punishments." (6)

Kosilek is one of many trans people (7) who have sought access to gender-affirming care behind bars. Asserting their rights under the First, Fifth, Eighth, and Fourteenth Amendments, (8) trans plaintiffs built a rich repertoire of legal strategies to frame their needs in the vocabulary of a Constitution whose writers did not contemplate their existence. This Article will focus its discussion on claims under the Eighth Amendment that prison officials have improperly withheld gender-affirming care. Due to the relative scarcity of such cases and the absence of Supreme Court guidance, all circuits cite one another; therefore, this Article will discuss them together. Despite a smattering of victories that have significantly expanded trans prisoners' access to hormone replacement therapy (HRT), courts and the public at large have been far less willing to accept essentially identical arguments for access to gender-affirming genital surgery. This was also evident throughout the Kosilek litigation, which ultimately spanned two decades. It produced what is likely the most comprehensive judicial treatment of a transgender prisoner to date in the form of four lengthy opinions between the Massachusetts District Court and the First Circuit Court of Appeals. (9) The opinions reveal a judicial struggle to resolve what is uncritically portrayed as the conflict between a transgender woman's medical needs and the discretionary security interests of prison management. This has resulted in an impasse (10) over what constitutes deliberate indifference that has, perhaps, obscured the meaning of "care" in the Eighth Amendment context.

This Article posits that the issue of gender-affirming genital surgery conjures competing constructions of the incarcerated trans body that reflect different conceptions of its relationship to state power. It offers a reading of this conflict as a clash between a biopolitical and a necropolitical conception of the incarcerated trans body. Biopolitics is a theory of state power that views the state as the arbiter and administrator of life and all life processes. Necropolitics, on the other hand, posits that sovereignty is defined by its power to mark out certain populations for social and literal death.

Part I explicates the concepts of biopolitics and necropolitics, drawing on the work of Michel Foucault and Achille Mbembe. In the biopolitical framework, the trans body is constructed as an object of medico-legal in(ter)vention. It is created when the subject is validated as transgender through medical diagnosis of gender dysphoria, which implies the need for health care. In the necropolitical framework, the trans body interrupts the regime of carceral subjugation, one aspect of which is gendered discipline, enforced in part through strict sex segregation. The trans body is inscribed with violence. It is imagined both as essentially inviting violence (in a men's prison) or as threatening it (in a women's prison).

Part II provides an overview of the Eighth Amendment cases brought by trans plaintiffs. It begins by reviewing the cases that develop the "deliberate indifference to serious medical need" test in the context of denial of gender-affirming care to trans prisoners. Following this background, Part II introduces the Kosilek case and narrates its lengthy history.

Part III undertakes a close reading of the Kosilek case, attending to the biopolitical and necropolitical logics that are mobilized by the parties and reflected in the court opinions.

Finally, Part IV will consider how courts and advocates might respond given the impasse between these two competing visions. I argue that for courts, ceding to the necropolitical logic presented by prison management in these cases abdicates their responsibility to protect prisoners' Eighth Amendment rights.

1. Biopolitical and Necropolitical Trans Bodies

   This Part lays out the theoretical groundwork for the ensuing discussion of how courts (re)construct the body of the incarcerated trans person in these decisions, especially Kosilek. Beginning with Foucault's concept of discipline, in the first section I discuss the implications of the sex segregation of the prison space for incarcerated trans people. In the second and third sections, I outline the theories of biopolitics and necropolitics respectively and discuss how each theory produces a way of viewing the incarcerated trans subject.

   1. Gender Discipline, Sex Segregation

      Michel Foucault theorized that modern state power acts on subjects through discipline. Discipline molds "docile" bodies by organizing space, time, and everyday activities in institutions such as schools, hospitals, and prisons. (11) Subsequent scholars including Sarah Pemberton have extrapolated a gendered dimension from this account. Pemberton argues that gendered bodies and identities come into being through gendered disciplinary power. (12) Within institutions and in everyday interactions, "individuals are assessed against gendered norms of appearance and behavior until they become self-disciplined gendered subjects who impose these norms on themselves." (13) The imposition of gendered norms begins with sex assignment at birth and persists through legal and administrative identification of an individual as a legally gendered subject. The United States is unique in that there is no singular, unified gender-administering regime. Instead, legal gender is a composite of a multitude of federal, state, and local agencies that administer gender classification independent of one another. (14) An individual seeking to change their legal gender must apply separately at each...