This Comment argues that the Eighth Amendment litigation strategy to secure gender confirmation surgery for incarcerated transgender people is a non-abolitionist “reformist” reform that expands the criminal punishment system that perpetuates state violence against transgender people. This Comment proposes an abolitionist framework as a transformative approach to evaluating criminal punishment system reforms and securing gender-affirming care for transgender people, incarcerated or otherwise. This Comment then proposes two abolitionist steps towards trans justice, health, and liberation.
This Comment will first provide background on gender-affirming medical care, current medical standards for assessing gender-affirming care, and the standards that courts use to evaluate Eighth Amendment cruel and unusual punishment claims. Next, this Comment will examine three cases to demonstrate the legal and political contours of the circuit split over the Eighth Amendment litigation strategy: [Adree] Edmo’s case against IDOC and Corizon, Inc., Kosilek v. Spencer, and Gibson v. Collier. Finally, this Comment will establish a background for abolitionist thinking, propose an abolitionist framework to evaluate litigation strategies and reforms, evaluate the Eighth Amendment litigation strategy using this framework, and propose decriminalizing sex work and defunding the police as more substantial, abolitionist steps towards trans justice, health, safety, and liberation.