Author’s Note: This article discusses sexual and physical violence targeting incarcerated trans women.
Amid the ongoing wave of anti-trans legislation in the U.S., it can be tempting to see the courts as a forceful, if unexpected, defender of trans rights. At the time of writing, all of the seven federal district courts and one of three courts of appeals asked to rule on state laws cutting off trans youth from life-saving medical care have decided to block these laws on grounds of unconstitutionality. And until the full Eleventh Circuit came out the other way at the end of last year, every other court of appeals that had considered trans students’ access to school facilities ended up siding with the trans students.
Indeed, one prominent legal commentator recently went so far as to suggest that there may even be a “case for optimism about LGBTQ rights in the United States” after all.
But that’s not the whole story. While U.S. courts have, by and large, recognized that legal guarantees of gender equality extend to trans people, the law has failed to view as instances of gender inequality most inequalities in fact faced by trans people because of our distinctive relations with gender. In the most striking cases—that is, pretty much all across the board—courts have struggled immensely with the now-standard defense that it is not even conceptually possible for anti-trans legislation to raise concerns about gender equality when such legislation is designed specifically to harm trans people of any gender.
Thus, just this summer, Tennessee’s Attorney General argued—and the U.S. Court of Appeals for the Sixth Circuit agreed—that the state’s ban on gender-affirming care for trans youth cannot be said to violate constitutional requirements of gender equality because the “prohibitions apply equally to males and females . . . with no preference for one over the other.”
Making matters worse, the law’s failure to see the gender in transgender equality is not an isolated oversight. Rather, it is directly enabled by a gender-neutral, cis-centric conception of gender equality that now dominates legal and public imagination.
To achieve gender equality, according to this dominant conception, is to eliminate discrimination on the basis of sex itself, which then gets conflated with genitalia, sex assignment at birth, and an ever more elusive, if not teleological, “biological sex.” Gender, so construed, is all about the sex difference, and gender equality becomes that delicate match between differences in the underlying reproductive biology and differences in the resulting social treatment.
The extensional and explanatory inadequacies of the dominant conception of gender equality, I argue, are made especially apparent by the law’s systematic failure to protect incarcerated trans women’s life, health, and bodily integrity. In this light, I want to examine a recent case—one of the first successful constitutional challenges of its kind—brought by Ms. Cristina Iglesias, an incarcerated trans woman, against the federal government.
Iglesias v. Federal Bureau of Prisons draws out many of the irreducibly gendered ways in which trans womanhood is abused, degraded, and objectified even to the point of being bureaucratized by carceral institutions—crucial features of gender reality intimately known to lived trans lives and yet rarely acknowledged beyond the small, newly-burgeoning philosophical scholarship on trans feminism. Encapsulating the law’s failure to conceptualize the social reality of gender as incarcerated trans women know and live it, Iglesias provides a critical case study for why we can’t begin to do justice to transgender equality until we take the gender in it seriously.
For over twenty-seven years, Ms. Iglesias was assigned by the Federal Bureau of Prisons (BOP) to numerous men’s facilities, where she inevitably became a target for sexual and physical assault, forced prostitution, voyeurism, exhibitionism, propositions, suggestive comments, and threats of sexual and physical violence.
Between February and March 2021 alone, male gang leaders raped Ms. Iglesias on five different occasions—including once at knifepoint—and demanded $10,000 from her in exchange for her life. A year earlier, a male cellmate held her hostage in protest of being assigned to the same cell as a trans woman, and she had to be rescued by force. After being refused sex, another man put a hit on her and sought an opportunity to be with her alone.
“Other prisoners have frequently exposed themselves to me, groped me, watched and attempted to watch me when I shower, and demeaned me in other ways, including asking to see my breasts,” she later told the district court.
Infuriatingly, Ms. Iglesias’s experience is hardly unusual. National survey data reported by the U.S. Department of Justice suggested that as many as 39.9% of trans persons in federal and state custody were sexually assaulted in the preceding twelve months (the baseline prevalence was estimated to be 4.0% for all incarcerated persons). As for trans women in particular, a recent study of the California system put the rate at 69.4% for sexual assault and 80.3% for physical assault throughout incarceration.
And yet, BOP staff responded to Ms. Iglesias’s complaints by threatening to lock her with a sex offender. They frequently misgendered her and repeatedly refused to transfer her to a women’s facility. When they put her in so-called protective custody in 2021, they took her to showers that “are built in a way that reveals [her] breasts,” and they allowed her to shave only once a week, resulting in her being ridiculed as a “bearded woman.”
Meanwhile, even though the BOP had understood that Ms. Iglesias was a trans woman ever since she entered federal custody in 1994, it stubbornly refused to provide her with gender-affirming care, further jeopardizing her life and health.
Without meaningful access to gender-affirming care, Ms. Iglesias was forced to live through endless depression and anxiety. She was put on suicide watch a total of twelve times, and she attempted self-surgery in 2009. To cope with the “torture,” the “nightmare,” the “living hell” that was her facial hair, she resorted to wearing makeup 24/7 in addition to getting up before everybody else just so she could shave alone.
“I struggle every day,” she explained to a BOP psychologist in 2017, “waking up in this body.”
But the BOP never allowed any person under its custody to receive gender-affirming permanent hair removal, no matter their gender. And before 2011, it provided gender-affirming hormones only to those who had already been on them prior to incarceration—an infamous “freeze frame” policy that continues to be practiced by certain states. Although the federal government then rescinded its hormones policy in settlement of a constitutional challenge, and Ms. Iglesias quickly asked to initiate gender-affirming hormones, the government did not approve her request until four years later.
The denial of gender-affirming care on one hand and the decision to assign her to men’s facilities on the other worked together to trap Ms. Iglesias in an infuriating catch-22. Among the BOP’s written criteria for transferring a trans woman to a women’s facility is that her hormone levels be “maximized.” Not only is maximizing hormone levels a strangely worded requirement with no discernable medical basis, but the BOP did not even provide Ms. Iglesias with high enough dosages of estrogen to achieve those levels in the first place.
Not being allowed to transfer to a women’s facility then meant Ms. Iglesias could not satisfy the government’s unwritten rule for gender-affirming surgery: testifying before the district court, a BOP official explained that the government would not even “consider surgery” if a trans woman had not lived in a women’s facility for twelve continuous months. Indeed, the BOP’s requirements for gender-affirming surgery have been so stringent that it was not until December of last year that the first person under BOP custody could finally receive this life-saving care.
Besides weaponizing her hormone levels, the BOP cited both Ms. Iglesias’s own comfort and “the safety of [cis] female peers” as justification for refusing to transfer her to a women’s facility, clear benefits to her own life and safety apparently notwithstanding.
But remarkably, when pressed for actual evidence for its proffered safety concerns, the BOP could appeal only to one instance in which a trans woman asked to be transferred back because “she didn’t feel comfortable around her peers” and another where a lesbian trans woman “disrobed . . . outside in the open” and “used some strong and vulgar language really to talk about her attraction to her female peers.”
Then, in a truly telling moment, the government conceded on cross-examination that it would never send a cis woman with similar “difficulty with peers” to a men’s facility—even if, that is, she had requested the transfer in the first place. Perhaps sensing the irony, the BOP official attempted to explain it away by stressing that “it speaks to the difficult space that transgender women are in.”
“Well,” replied Ms. Iglesias’s counsel, “I think it speaks to the fact that the Bureau of Prisons doesn’t see transgender women as women.”
To Ms. Iglesias, the explanation for why she was singled out for extensive sexual abuse could not be plainer. “I have suffered numerous sexual assaults in BOP custody,” she broke it down for the district court, “because I am a transgender woman in men’s prisons.”
The court, however, had its own ideas.
Misconstruing Ms. Iglesias as arguing only that she had to endure extensive sexual abuse “due to the denials in being housed in a women’s prison,” the court apparently didn’t think she meant that the sexual abuse was therefore “due to her gender identity,” never seeming to grasp the notion that her transfer requests were denied precisely due to her gender identity. Thus, the court held, Ms. Iglesias did not even manage to allege that the extensive sexual abuse, including the government’s systematic failure to prevent it, could raise an issue of gender equality in the eyes of the law.
The Iglesias court then proceeded to analyze the denial of transfer as its own separate issue. Here, the court finally agreed that the denial—again, considered in isolation from its role in the sexual abuse—likely violated constitutional requirements of gender equality.
According to the court, however, that was not because the BOP’s treatment of Ms. Iglesias might have had something to do with the social meaning of trans women’s bodies as epitomized in their sexualization, objectification, and dehumanization in male prisons—that is, because she was a trans woman locked up with men, as Ms. Iglesias herself argued. Instead, the court suggested that it was because the BOP “houses inmates, by default, in the prison of their gender assigned at birth”—which the court immediately proceeded to equate with their “genitals”—without, in Ms. Iglesias’s case, fulfilling an important “penological purpose.”
That the Iglesias court’s analysis implicitly assumes a cis-centric standard is made explicit by its treatment of trans people as members of our imposed, but not lived, sex. The inequalities that trans women are subject to because we are trans women, so construed, become discrimination against persons assigned male at birth but now identifying as female. They become discrimination against persons with “male genitals,” persons whose estrogen levels have yet to be “maximized”—never trans women on trans women’s own terms.
All the while, trans women are harassed, beaten, raped, and killed, all because trans women’s bodies are not only biologically but socially female—meaning, sexually available by dominant social definition and systematically violated in our everyday life.
The Iglesias analysis exemplifies the conception of gender equality assumed by both mainstream sex discrimination law and much of popular political discourse today. Mistaking sex for gender for a biological difference, this dominant conception does not appreciate that sex has a social meaning, a meaning that makes all the difference for trans women’s precarious survival in male prisons. Nor does it appreciate the centrality of that social meaning—the centrality of gender—to sex discrimination in law as in life.
Because the thing is, discrimination against trans women does not occur because of our gorgeously diverse bodies reduced all the way down to our “male genitals.” It occurs, and it wrongs trans women, because of the meaning forced onto our bodies by a cisheterosexist society that relentlessly fetishizes and degrades trans femininity, normalizes and trivializes its abuse, and then blames and justifies the entire operation on our perceived gender noncompliance in the first place. In Ms. Iglesias’s case, this unequal social meaning is part and parcel of the BOP’s unapologetic objectification and dismissal of trans womanhood, materializing in the government’s spectacular failure to protect her safety and dignity precisely because she is a trans woman.
To the extent that the dominant conception of gender equality makes transgender equality intelligible to an overwhelmingly cisgender world, then, it does so at the expense of trans people’s lived genders, our lived gender realities, and “an entire life that has been lived with dignity in a competing cultural world”—a world that trans people build and maintain for each other in a deliberate effort “to create possibilities for agency, self-expression and authenticity,” to negotiate the social conditions for “understanding, recognition, joy, and affirmation” on our own terms, as trans philosophers Talia Bettcher, Rowan Bell, and E. M. Hernandez and Archie Crowley have beautifully argued.
It is no accident that the dominant conception of gender equality approaches gender in ignorance of its social meaning. By ensuring that most gender inequalities in social reality will not be cognizable as gender inequalities in political and legal analysis, the dominant conception has all but eliminated gender inequality. This remarkable achievement then functions ideologically to limit and undermine sex discrimination law, robbing plaintiffs in fact devastated by gender inequality of the only legal avenue of redress that might actually have a chance of speaking to their lives on their own terms.
Reflecting the narrow reach of sex discrimination law permitted by the dominant conception, the Iglesias complaint didn’t even attempt to pursue the BOP’s failure to provide Ms. Iglesias with proper gender-affirming care as a violation of gender equality. Instead, it raised the issue solely under the Eighth Amendment’s prohibition of cruel and unusual punishments, which had been interpreted by the Supreme Court to extend to “deliberate indifference to serious medical needs of prisoners”—formally and substantively gender neutral.
While advocates for trans plaintiffs have been broadly successful in getting courts to recognize gender dysphoria as a serious medical need by playing along with its pathologization into a mental disorder, deliberate indifference as a standard—which requires courts to assess the constitutionality of the denied serious medical need from the subjective point of view of prison officials—has so far proven difficult, if not impossible, before six of the eight federal courts of appeals that had a chance to decide the issue in one procedural posture or another. At the very least, courts have by now made it a de facto requirement that an incarcerated trans person endure the most extreme harm and then some more just to be in a position to stake a claim to gender-affirming care.
In front of the unusually sympathetic Iglesias court, the strategy of arguing that the denial of proper medical care for gender dysphoria—just like any other serious medical need, gender neutral—constitutes a form of cruel and unusual punishment backfired only to an extent.
Although the court sided with Ms. Iglesias on gender-affirming surgery, it got hung up on permanent hair removal, a procedure that the BOP had dismissed as merely “cosmetic.”
If “she is allowed to shave, socially transition, and she receives hormone therapy,” the court reasoned, then Ms. Iglesias would have to wait until after gender-affirming surgery proves inadequate “treatment for her gender dysphoria” in order to show deliberate indifference as to the denial of permanent hair removal. After all, the court thought, gender-affirming surgery already “includes genital hair removal” and—this is breaking news to trans women—“also helps with facial hair” (“but it doesn’t—it won’t help enough,” according to the expert testimony that the court cited in support of that very proposition).
Here, we clearly see the limitations of construing gender-affirming care as primarily a remedy for a heavily pathologized gender dysphoria: if surgery could on its own mitigate the “frustration, anxiousness, angst, and reported psychological damage as a result of the lack of treatment,” then denying facial hair removal would not be cruel and unusual, never mind what having a five o’clock shadow might mean to a trans woman and her already hard-fought survival—a meaning trans women did not sign up for, but whose consequences we are forced to live through.
Obscured by a gender-neutral appeal to the Eighth Amendment, in this light, is the social and political significance of gender-affirming care as a crucial condition for, and direct requirement of, trans people’s equal standing and dignity. This is not to say that the denial of gender-affirming care to incarcerated trans people constitutes no cruel and unusual punishment. The point is that it is such a cruel and unusual punishment precisely because of what that care means socially and politically to our capacity for breathing in our own bodies, for taking charge of our lives on our own terms, and for speaking in our own voices for that very first time—in short, because of what it means to our gender.
Ms. Iglesias began her legal battle back in April 2019. For nearly a year, she had to litigate her case on her own until the court eventually appointed her counsel. Two years into the litigation, the federal government finally agreed to transfer her but continued to fight the lawsuit.
In December 2021, Chief Judge Rosenstengel of the U.S. District Court for the Southern District of Illinois ruled in part for Ms. Iglesias, marking the first time in U.S. history that a court had ordered the federal government to evaluate a trans person for gender-affirming surgery. But at the time, Ms. Iglesias was on track to be released by the end of the following year. The government thus resorted to creating egregious delays in an apparent attempt to run out the clock, twice forcing the court to threaten BOP officials and government attorneys with sanctions.
Earlier this year, after four long years of litigation, Ms. Iglesias became one of the first trans persons ever to receive gender-affirming surgery in federal custody. Meanwhile, the federal government has yet to provide gender-affirming surgery to any incarcerated trans person who hasn’t sued. (For trans persons under state custody, litigation can take more than twenty years, only to end in despair.)
Iglesias has been celebrated as a historic victory, and it most certainly is. I still remember the pain stuck in my chest when my heart broke into pieces that night reading her increasingly desperate handwritten petitions. I’m so relieved for Cristina Nichole Iglesias. I’m so relieved for what this victory means to her. And I’m so relieved for what it could mean for the 1,200 trans people currently surviving in federal prisons—about 0.8% of the federal incarcerated population.
But we should not mistake relief for optimism. Trapped in a gender-neutral, cis-centric conception of gender equality, even courts as sympathetic to trans plaintiffs as the court in Iglesias have managed to see transgender inequality only where it’s stripped entirely of gender, dolled up first as a biological difference and then as a mental disorder.
Because let’s be real: what courts have yet to meaningfully allow trans people, is gender equality under the law.
Special thanks to Rowan Bell and Suzanne Dovi for incredibly helpful comments and discussions.
Ding
Ding is a graduate student at the University of Arizona. She works on issues in feminist political philosophy, social metaphysics, and philosophy of law. Her dissertation examines the ways in which transgender equality not only poses difficult challenges to, but sheds unexpected light on, our concept of gender equality.
