NOW YOU SEE ME: PROBLEMS AND STRATEGIES FOR INTRODUCING GENDER SELF-DETERMINATION INTO THE EIGHTH AMENDMENT FOR GENDER NONCONFORMING PRISONERS.

Author:Bright, Lizzie
 
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TABLE OF CONTENTS INTRODUCTION 138 I. BACKGROUND 140 II. STANDARDS OF CARE: CONVENTIONAL AND EMERGING MODELS 145 A. GNC-Inclusive Models of Care 146 B. Fixed Binary Models of Care 146 C. Models of Care and the Eighth Amendment 148 III. THE EIGHTH AMENDMENT: LOOKING AT EVERYONE EXCEPT THE PRISONER 150 A. The Basic Framework: Serious Medical Need and Deliberate Indifference 150 B. Deference to Medical Knowledge 152 IV. CASE LAW: CHALLENGES AND OPPORTUNITIES FOR GNC 156 A. Challenges: When Courts Let Prisons Use Their Own Problematic Experts and Policies to (Mis)Treat Inmates 156 B. Opportunities: Shifting Subjectivity and Refocusing Prisoner on the 160 C. A Case that Could Win? 166 CONCLUSION 169 INTRODUCTION

Americans have become more aware of issues facing the transgender community in the past several years--Caitlyn Jenner's "coming out," Laverne Cox's role on Orange is the New Black, and Gavin Grimm's case challenging a school's bathroom policy have all garnered national attention. (1) Laverne Cox has spoken publicly about the plight of transwomen in prison, (2) and "[t]he issue of whether a transsexual (3) person is entitled to hormone therapy or sex-reassignment surgery while in prison has been litigated extensively." (4) Yet, virtually no cases have been brought by prisoners seeking gender-affirming (5) care that is not aimed at fixed binary "male to female" or "female to male" transition. Most problematically, even correctional (6) facilities that do have protocols in place providing for medical care for transgender inmates (7) tend to use standards of care that cover only fixed binary transition. (8)

In her article Feminism and the (Trans)gender Entrapment of Gender Nonconforming Prisoners, Julia Oparah details the experiences of a gender nonconforming (GNC) former prisoner, Bakari. (9) Bakari, who identifies as genderqueer, (10) which to them means neither wholly male nor female, was housed in a California prison according to their perceived biological sex. (11) While "penal systems are premised on the existence of a rigid gender binary," Bakari asserted their "right to gender self-determination, including the right to embrace a shifting and fluid gender identity." (12) People like Bakari exist in this country's many prisons, and they face high hurdles to receive the gender-affirming medical care they deserve as human beings.

Showing courts, which defer to medical expertise in their Eighth Amendment jurisprudence, that there are medical protocols inclusive of GNC identities is a viable first step in this process of restoring gender self-determination to GNC prisoners. This Note will examine strategies and barriers to getting GNC-competent medical protocols in front of courts, with the goal of challenging the prevailing prison medical regime of fixed binary-based care and ultimately moving the law toward a self-determinative model of gender identity. (13)

  1. BACKGROUND

    While locked up, Bakari observed higher levels of victimization of gender nonconforming prisoners by staff, such as punishing individuals within the "women's" prison who grew facial hair. (14) Prison abolition group Black and Pink's 2015 report likewise found that nearly 80% of trans and gender nonconforming ("TGNC") prisoners experienced emotional suffering as a result of having to conceal their gender while locked up. (15) The report also found that over a third of TGNC individuals surveyed had used hormones prior to being incarcerated, and 44% reported being denied hormones once incarcerated. (16) While the overall prevalence of TGNC individuals in the U.S. may be low, this community is disproportionately represented in America's correctional system: almost one in six transgender people in the U.S. has been locked up in a state or federal prison, and nearly half of all black transgender Americans have been incarcerated. (17) Forty-three percent of the TGNC-identified individuals surveyed by Black and Pink had a diagnosis of Gender Identity Disorder or Gender Dysphoria ("GID" or "GD"), and nearly one-third of TGNC prisoners were denied a GID/GD diagnosis when they sought one. (18) One of these two diagnoses is typically required before accessing gender-affirming care in prison. (19) While it is becoming more common for prisons to provide hormone therapy for some transgender inmates and, for example, for prisons to allow transwomen to wear feminine clothing in prison, access to surgery and care for all TGNC people behind bars is far from the norm. (20)

    It is vital to note that many of the transgender inmates seeking gender-affirming care in American prisons likely do identify within the binary--meaning as men or women, and not as a non-binary gender(s). (21) Their claims and the courts' binary-based responses might therefore accurately reflect plaintiffs' self-identification (though even after a hard-fought gender-validating win in court, transgender inmates face heightened levels of violence back in prison). (22) In healthcare access just as in what has come to be whitewashed as the "gay rights movement," transgender individuals, especially transwomen of color, are trailblazers. (23) It is their claims of a right to gender-affirming care that will continue to pave the way, now and in the future, for care that is not couched in binary transition.

    The case law surrounding transgender prisoners has focused mostly on the experiences of transwomen. (24) The reliance of courts on medical diagnosis pathologizes transgender persons, granting them rights only when they are defined as abnormal or sick. (25) Excluded from legal protections are those who do not seek diagnosis or medical care in relation to their gender identity. (26) Also excluded are those who do seek care but not with a goal of permanent transition from one end of the binary to the other. (27) For example, a GNC person who seeks temporary hormone therapy to achieve certain secondary sex characteristics but not others (28) may be denied treatment under the current diagnostic regime and may not have the sort of binary-based evidence of medical need (for example, a constant lifelong desire to live as "the opposite sex" (29)) currently relied on by courts in Eighth Amendment litigation.

    Numerous authors have tackled the issues arising from transgender prisoners' Eighth Amendment access to medical care claims from the lens of pathology. (30) Medical diagnosis reinforced by legal standards defines TGNC individuals on terms set by doctors and courts--rather than allowing TGNC individuals to define themselves. (31) The end result is the perpetuation of "simplistic binaries, which squeeze out anything or anyone that doesn't fit" but that are legible to mainstream society. (32) What remains less discussed than the pathologizing of transgender persons via binary-based medical diagnosis is the elimination of gender fluidity and non-binary identities under the current legal-medical regime. In particular, the current structure of Eighth Amendment jurisprudence does not allow room for gender self-determination and instead emphasizes the subjective view of prison officials and institutional medical opinion. (33) GNC prisoners may be forced to bring their Eighth Amendment denial of care claims in the mold of binary-transition-care claims instead of as GNC individuals. But newer GNC-inclusive medical standards that enable patients to self-define their identities already exist, and these standards are one way to undo the erasure of GNC prisoners under the current Eighth Amendment denial-of-care regime. Although the integration of these newer guidelines into the case law is a real challenge for prisoners, a handful of cases demonstrate possible pitfalls and paths to getting non-binary conceptions of gender in front of the courts.

    The issue addressed in this Note--how to achieve gender self-determination for TGNC prisoners by litigating standards of care not based on a fixed gender binary--is but a tiny piece of the TGNC-equality puzzle. Other authors have already noted that equal protection claims are often a "losing strategy" for transgender plaintiffs because the Supreme Court appears unwilling to expand those classifications receiving heightened scrutiny under the Fourteenth Amendment. (34) Equal Protection arguments may not leave room for true gender self-determination beyond the binary if Equal Protection is based on fixed "immutable" traits--though immutability itself may not be sacrosanct in determining suspect classifications. (35) The criminalization of TGNC people--particularly of gender nonconforming individuals (36) and transwomen of color (37)--has far-reaching consequences that necessitate multiple approaches. As with other intersecting marginalized and surveilled communities, the effects of criminalization of TGNC individuals impacts their access to housing, education, and employment. (38) The very fact that a body of case law exists dealing with access to gender-affirming care for TGNC individuals behind bars is a symptom of the greater penalization of the TGNC community. (39) In order to dismantle the systemic oppression of TGNC individuals, litigants and activists must deploy multiple strategies inside and outside the courtroom--and always under the leadership of the TGNC community. This Note is intended only to outline one possible--and imperfect--route for moving toward self-determination for a subset of the TGNC community in the United States

  2. STANDARDS OF CARE: CONVENTIONAL AND EMERGING MODELS

    The medical model of gender, which utilizes psychiatric diagnosis of Gender Identity Disorder/Gender Dysphoria ("GID"/"GD") to legitimize transgender status in the eyes of the law, can secure rights for transgender individuals. (40) But the currently dominant iteration of the medical model "assumes that two genders exist and enforces the norms typically associated with these genders." (41) The medical model has enabled access to rights and protections, but at a cost: the...

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