Cornell Journal of Law and Public Policy


Transsexualism, Incarcerated transgender people


People who are transgender and incarcerated face a unique set of human rights challenges. Courts have made progress protecting transgender people who are incarcerated by relying on the psychiatric diagnosis, Gender Dysphoria (GD), as grounds for legal protections. However, reliance on a medical model of gender has practical limitations and adverse social consequences. This model fails to protect the most vulnerable people of trans experience and contributes to stigma against the transgender community overall. The social and legal interests of people who are transgender and incarcerated would be better served if their rights were protected on alternate legal grounds.

Part I will offer background on gender theory. First, this Note will critique the binary system of gender. Next, this Note will discuss how the medical establishment has reinforced the binary system of gender by psycho-pathologizing gender transgression. Then, this Note will explain how courts have solidified this medicalized binary system by relying on the flawed assumption that transgender people inherently experience mental illness.1 Finally, this Note will propose an alternate formulation of gender, which prioritizes self-definition over medicalization.

Part II will apply this gendered framework to issues experienced by transgender people who are incarcerated. First, this Note will describe the disproportionate representation of transgender people in the criminal justice system and offer several explanations for this disparity. Next, this Note will discuss a variety of challenges faced by people who are transgender and incarcerated and describe how the legal system has addressed each issue. This Note will problematize legal reasoning that equates trans experience with mental illness and will explore alternative legal remedies that align with an inclusive and empowering conceptualization of gender.