Enforcing Gender: The Constitution of Sex and Gender in Prison Regimes

Author(s): Sarah Pemberton

Source: Signs , Vol. 39, No. 1, Women, Gender, and Prison: National and Global Perspectives
(Autumn 2013), pp. 151-175
Published by: The University of Chicago Press
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 S a r a h Pe m b e r t o n

Enforcing Gender: The Constitution of Sex and Gender

in Prison Regimes

A lthough Michel Foucault is famous for his work on both sex and
criminal punishment, he never considered these issues in relation to
each other. Foucault pays no attention to the sex, gender, or sexuality
of prisoners or to whether the institution of the prison or the norms
instilled through disciplinary power might be gendered. The use of male
pronouns throughout the English translation of Discipline and Punish
ðFoucault 1995Þ suggests that disciplinary subjects and those responsible
for conducting surveillance are presumptively male.1 Foucault’s later work
on sex and sexuality in The History of Sexuality ð1990Þ and Herculine Bar-
bin: Being the Recently Discovered Memoirs of a Nineteenth-Century French
Hermaphrodite ðFoucault 1980Þ does not consider the role of prisons and
the criminal justice system in establishing sex and sexuality.2 Moreover,
Foucault’s neglect both of gender ðincluding masculinityÞ and of women
is noticeable throughout his work, provoking criticism from feminists and
accusations that he overlooks “the gendered character of many disciplinary

Thank you to Mary Hawkesworth, the editorial staff at Signs, and two anonymous re-
viewers for Signs for their invaluable guidance and feedback. My thanks go to Barbara Arneil,
Bruce Baum, John Bretting, Ryan Combs, Rita Dhamoon, Heath Fogg Davis, Kiki Jamieson,
Laura Janara, Margaret McLaren, Christy Munro, Penny Weiss, and Angelia Wilson for con-
versations and comments about this work. Thanks also to audiences at the American and West-
ern Political Science Association Meetings and participants at the 2008 Critical Resistance
Conference.
1
The question of gendered language is more complex in the original French, but it is
beyond the scope of this article to analyze the gendered implications of the French language
or of Surveiller et Punir ðFoucault 1975Þ in particular. However, the terms homme and
hommes ð“man” and “men”Þ appear far more frequently in that text than femme and femmes
ð“woman” or “wife,” “women” or “wives”Þ, suggesting that Foucault’s subjects of analysis are
presumptively male. A search of Surveiller et Punir using Google Books reveals that the word
homme occurs on forty-one pages in the book and hommes on sixty-one pages, whereas femme
occurs on six pages, and femmes on only five.
2
Herculine Barbin was an intersex person in nineteenth-century France whose sex was
legally reclassified from female to male. Foucault found Herculine’s diary in the archives of the
French Department of Public Hygiene and had it republished with his commentary as Her-
culine Barbin: Being the Recently Discovered Memoirs of a Nineteenth-Century French Her-
maphrodite ðBarbin 1980Þ.

[Signs: Journal of Women in Culture and Society 2013, vol. 39, no. 1]
© 2013 by The University of Chicago. All rights reserved. 0097-9740/2013/3901-0007$10.00

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152 y Pemberton

techniques” ðMcNay 1992, 11Þ. In this article, I attempt to remedy this

lacuna by examining the ways that sex and gender are constituted through
prison regimes.
This article is divided into two parts: a brief exploration of the theoret-
ical literature around sex, gender, and sexuality, followed by an analysis of
the policies of sex segregation for prisoners and an account of how these
policies are linked to the constitution of sex and gender in prisons. Despite
Foucault’s failure to address gender in his analysis of sex and sexuality and
the “undeniable androcentrism” ðMcLaren 2002, 17Þ of his work, his ideas
are valuable for understanding contemporary power relations around sex,
gender, and sexuality. I argue that binary categories of sex and gender are
constructs produced by prevailing discourses and techniques of power and
that the policies of sex segregation in both the English and American prison
systems contribute to the construction and naturalization of these catego-
ries, with negative consequences for transgender and intersex people. Fur-
ther, I suggest that sex segregation enables gendered prison regimes that
contribute to the production of specific forms of masculinity and feminin-
ity among prisoners, with consequences extending far beyond the criminal
justice system.
The theoretical framework of this article is based on Foucault’s work
and subsequent literature in the fields of feminist theory, queer theory, and
transgender studies. However, I provide an empirical analysis of the con-
temporary prison systems of the United States, and of England and Wales,
and therefore my methodology differs from Foucault’s genealogical ap-
proach.3 Over the past three decades English and American penal philos-
ophy and practices have changed significantly in ways that challenge Fou-
cault’s account of the disciplinary prison, including through tough-on-crime
policies that have greatly increased prison populations ðGarland 2001Þ. I
have discussed the significance of these changes elsewhere ðPemberton
2009Þ, so my analysis in this article will refer to broader changes in penal
policy only insofar as they relate to issues of sex and gender in English and
American prisons.4

3
There are three distinct prison systems within the United Kingdom: those of England
and Wales, Scotland, and Northern Ireland. Although I will be referring to laws or institutions
that apply throughout the United Kingdom, such as the 2004 Gender Recognition Act, my
analysis of prison populations and policies is confined to England and Wales. To avoid continu-
ally repeating the phrase “England and Wales” ðwhich, inconveniently, lacks a commonly accepted
abbreviationÞ, I will at times use the term “English” when referring to England and Wales.
4
Although my argument is partially empirical, the central purpose of this article is to un-
cover and theorize gendered techniques of power. I am not developing a causal explanation of
existing policies or an exhaustive comparison of transgender law and imprisonment in England

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 S I G N S Autumn 2013 y 153

Even aside from Foucault’s work on the subject, empirical analysis of

the English and American prison systems suggests at least three reasons to
believe that issues of sex, gender, and sexuality in prison regimes deserve
attention. First, sex segregation in English and American prisons contrasts
with the absence of sex segregation in most schools, universities, work-
places, and many medical facilities. These policies of sex segregation mean
that there are separate men’s and women’s prisons, or occasionally a dis-
tinct women’s block enclosed within a larger men’s prison, causing prob-
lems for transgender and intersex people. This raises questions about why
sex segregation is imposed in some institutions and not others and casts
doubt on Foucault’s ð1995Þ claim that the techniques of power in the prison
are essentially identical to those elsewhere.5 Since men’s prisons have differ-
ent dress codes and behavioral norms from women’s prisons, this policy of
sex segregation also contributes to the construction and reinforcement of
normative masculinity and femininity among prisoners.
The second reason for analyzing issues of sex and gender in prison re-
gimes is that the vast majority of prisoners are male. In 2009 only 7 percent
of prisoners in America ðBureau of Justice Statistics 2010, 17–18Þ and
5 percent of prisoners in England and Wales were women ðMinistry of
Justice 2009, 6Þ, so more than nine out of ten prisoners are men. Al-
though female incarceration rates in the United States have risen faster
than male incarceration rates in recent decades ðDavis 2003, 65Þ, prison
populations are likely to remain predominantly male. Some scholars attrib-
ute the overrepresentation of men in prisons to gender norms and the di-
vision between public and private realms, which means that women are
primarily disciplined by other institutions, such as the family ðFreedman
1981, 134; Howe 1994, 162Þ. In contrast, criminologists tend to explain
the lower incarceration rates of women as a product of their lower offend-
ing rates ðWalklate 2004, 4–5Þ, particularly for more serious and violent
offenses ðCoyle 2005, 67Þ. Regardless of the underlying cause, this pre-

and Wales and in the United States. In providing a broad comparative analysis of the gender
recognition policies in two very different societies, I have inevitably been unable to fully ex-
plore the particulars of either case, and I hope that the insights provided by the comparison
outweigh the reduction in detail about each jurisdiction. Regrettably, there are many impor-
tant issues that I cannot address here, including an examination of how gender, race, and class
relate to patterns in criminalization, policing, and sentencing. A comparison of the varying
prison regimes in the thousands of men’s and women’s facilities in England and Wales and in
the United States is also beyond the scope of this analysis.
5
A comparative analysis of which institutions in England and Wales, and in the United
States, use formal policies of sex segregation and which do not, where informal sex segre-
gation is prevalent, and the reasons and implications of these policies is unfortunately beyond
the scope of this article. This is a promising area for further research.

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154 y Pemberton

ponderance of men in the English and American prison systems suggests

that the connections between gender and the prison deserve investigation.
Third, the overrepresentation of racialized minorities in English and
American prisons calls for attention to how race intersects with sex and
gender in these criminal justice systems. In 2009 the American male prison
population was 39 percent black, 21 percent Latino/Hispanic, and 33 per-
cent white, so racialized and ethnic minorities constituted over half of the
1,443,500 men imprisoned ðBureau of Justice Statistics 2010, 27Þ.6 This
overrepresentation of racialized and ethnic minorities is even more prob-
lematic given the huge scale of imprisonment in the United States, which
has the highest incarceration rate in the world ðWalmsley 2009, 3Þ. In 2009
there were 502 sentenced prisoners per 100,000 US residents ðBureau
of Justice Statistics 2010, 1Þ, and “black non-Hispanic males had an im-
prisonment rate ð3,199 per 100,000 US ResidentsÞ more than 6 times
higher than white non-Hispanic males ð497 per 100,000Þ” ð9Þ. These
trends have led Loı̈c Wacquant ð2001Þ to describe American prisons as
“the pre-eminent institution for signifying and enforcing blackness” ð119Þ.
In England and Wales during 2009, 27 percent of prisoners were from
black and minority ethnic groups, of which black people were the largest
group at 14 percent ðMinistry of Justice 2010, 8Þ. In 2009 approximately
12.1 percent of the population in England and Wales was from black and
minority ethnic groups ðOffice for National Statistics 2011, 6Þ, so racialized
and ethnic minorities are substantially overrepresented among prisoners.
Although female incarceration rates are much lower, in both cases racial-
ized and ethnic minority women are imprisoned at higher rates than white
women.

Theories of sex, gender, and sexuality

In Discipline and Punish, Foucault provides both a genealogy of criminal
punishment and a critical diagnosis of the techniques of power in 1970s
Western societies. Foucault’s central argument is that the modern prison
exemplifies disciplinary power, which involves constant surveillance and the
assessment of individuals according to minutely detailed norms. By exer-
cising control over “ ‘docile’ bodies” ðFoucault 1995, 138Þ through means
such as the timetable and through detailed control of activity, discipline
thereby molds the mind or soul. The efficiency of disciplinary power lies
6
Although many American scholars and activists prefer the term “people of color” to
“minorities,” that term is not commonly used in the United Kingdom. In this article, I use
the terminology of racialized and ethnic minorities when making comparisons between En-
gland and America and refer to “people of color” in reference to the US case alone.

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 S I G N S Autumn 2013 y 155

in the way that subjects internalize its norms and the process of surveil-
lance, thus transforming unruly prisoners into orderly and conformist sub-
jects. Although discipline originated in prisons during the early nineteenth
century, it spread into other institutions such as schools and eventually
to society as a whole, producing a “great carceral network” ð298Þ. However,
Foucault concludes by rejecting this account of the rehabilitative prison,
arguing that prisons do not normalize subjects but instead produce a cate-
gory of delinquents. The supposedly normalizing effects of the disciplin-
ary prison are revealed to be a ruse by which prisons mark prisoners out as
distinct, necessarily fail to correct them, and through this failure justify the
further extension and intensification of disciplinary power.
Foucault’s engagement with issues of sex and sexuality occurs in the first
volume of The History of Sexuality and his commentary to Herculine Bar-
bin. In The History of Sexuality, Foucault ð1990Þ argues that what we un-
derstand as sexuality and as sex are not natural but have instead been con-
structed through regimes of power and truth. This insight leads Foucault
to reject the idea that there are preexisting biological categories of male
and female. Instead, Foucault states that discourses of sexuality produced
the concept of sex, which is a “fictitious unity” of anatomy and sensations
ð154Þ. Since sexuality emerged during the nineteenth century as a priv-
ileged site for truth about the self, particularly in the Catholic practice of
confession, Foucault rejects the idea that power operates to repress sex-
uality. Instead, he argues that sexuality is produced through medical dis-
courses and the requirement that people should talk about it and that sex-
uality is part of broader strategies of power that he terms “bio-politics” ð139Þ.
Biopolitics involves knowledge of and government over the population as
an entity, through means such as control of infectious diseases, birthrates,
and death rates. Foucault therefore regards sexuality as uniquely important
because it is located at the intersection of biopolitical governance of the
whole population and the targeting of individuals by disciplinary power.
Given that Foucault encountered Herculine Barbin’s memoirs while re-
searching The History of Sexuality, it is not surprising that there is overlap
between these two texts. Herculine Barbin’s narrative begins with her/his
experience of being educated in a girls’ boarding school and later of teach-
ing in a similar school where s/he developed a romantic relationship with
Sara, the daughter of the school’s owner ðBarbin 1980Þ.7 When people grew

7
It is difficult to know what pronoun to use in reference to Herculine Barbin because we
do not know Herculine’s self-identified sex, gender, or pronoun preferences. One option is to
use a gender neutral pronoun such as “ze,” but such pronouns often carry a connotation of a
gender identity outside of the masculine-feminine binary and risk retroactively imposing an

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156 y Pemberton

suspicious of Herculine’s relationship with Sara, Herculine confessed the

relationship and her/his concerns about her/his body to a prominent priest,
leading to a medical examination. The doctor who performed this exami-
nation concluded that Herculine was more male than female, advised her/
him to pursue a legal change of sex, and informed Herculine’s employer,
who fired her/him. After this revelation of her/his “true sex” ð122Þ, Her-
culine was prevented from contacting Sara, adopted a male identity, and
moved to Paris, where s/he was unhappy, unable to find work, and eventu-
ally committed suicide.
Throughout the memoirs, Herculine avoids reference to her/himself in
sexed or gendered language, and Herculine’s self-identification is therefore
unclear. Herculine reports that Sara referred to her/him using masculine
qualifiers ðBarbin 1980, 58Þ, but we are not told whether Herculine assented
to this practice. Although Herculine does not provide a sex/gender self-
identification, Foucault ð1980Þ projects an identification—or more accu-
rately a lack of identification—onto the narrative: “What she evokes in her
past is the happy limbo of a non-identity, which was paradoxically protected
by the life of those closed, narrow, and intimate societies where one has the
strange happiness, which is at the same time obligatory and forbidden, of
being acquainted with only one sex” ðxiiiÞ.
In both the introduction to Herculine Barbin’s memoirs and The His-
tory of Sexuality, Foucault explains categories of sex as products of pre-
vailing discourses and power relations, stating that “at the bottom of sex,
there is truth” ð1980, xiÞ. Foucault portrays self-identification in terms of
these binary sex categories as an effect of hegemonic power relations and
fails to consider the possibility that such self-identification might be an ex-
pression of autonomy or resistance. This interpretation of Herculine’s nar-
rative in terms of nonidentity therefore reflects Foucault’s belief that resis-
tance is evidenced only by the refusal to identify within existing categories
of sex and sexuality.
Although Foucault ð1980, 1990Þ does not analyze how sex and sexual-
ity are constituted by disciplinary institutions such as the prison, he explores
the interrelation of discipline and biopower in the 1977–78 lectures at the
Collège de France. Here, Foucault ð2007Þ reintroduces the government of
the population that he describes as biopower in The History of Sexuality

interpretation of Herculine’s gender. Given the lack of a self-identification in Herculine’s

narrative, I have chosen to refer to Herculine by “s/he” and “her/his” since this captures the
legal change of sex and gender that is central to Herculine’s narrative. I am aware that this is
an imperfect solution, particularly given that “s/he” and “her/him” are often considered of-
fensive terms when applied to transgender people, but given the available pronouns in English
it is the least problematic way I have found for referring to Herculine Barbin.

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 S I G N S Autumn 2013 y 157

ð1990Þ but has reconceptualized these techniques as governmental ratio-

nality, or “governmentality” ðFoucault 2007, 108Þ. Foucault argues that
discipline is not replaced by the introduction of governmentality and the
attempt to manage the population as an entity but that governmentality
makes it even more important to regulate individuals and thus requires dis-
ciplinary practices and institutions. The exercise of governmentality there-
fore depends on a network of institutions, practices, and mutually reinforc-
ing techniques of power, leading Foucault to theorize power in terms of “a
triangle: sovereignty, discipline, and governmental management” ð107–8Þ.
The account of the subject that emerges from Foucault’s work is one
in which bodies are never natural or outside power but are shaped by and
interpreted through discourses and techniques of power. Foucault’s anal-
ysis ð1990, 2007Þ is most persuasive in showing how governmentality re-
lates to sex and sexuality through statistics that deploy and naturalize bi-
nary categories of biological sex while erasing the existence of intersex
people such as Herculine. Foucault ð1990Þ also outlines how government-
ality and discipline overlap to construct normative heterosexuality with its
accompanying ideas of sexual intercourse and binary biological sexes that
are defined in terms of genitals. However, at this point Foucault’s analysis
ceases because he neither provides an account of how disciplinary techniques
construct sex and sexuality nor analyzes how sex and sexuality relate to gen-
der. Foucault’s inattention to gender and the gendered nature of disciplinary
power has been remedied by subsequent scholars, including Sandra Lee
Bartky ð1988Þ, who argues that feminine identities are constructed precisely
through “those disciplinary practices that produce a body which in gesture
and appearance is recognizably feminine” ð64Þ. Bartky provides numerous
examples of gender-specific disciplinary practices, from diet and exercise, to
the differences in how men and women walk and sit, to practices of depila-
tion, skin care, and hairstyling.
Bartky’s account of the construction of gendered identities through dis-
ciplinary surveillance and assessment according to gendered norms connects
the pieces of Foucault’s analysis. If the discipline that Foucault identifies is
often—if not always—gendered, then individuals are assessed against gen-
dered norms of appearance and behavior until they become self-disciplined
gendered subjects who impose these norms on themselves. This suggests
that gendered identities of men and women come into being through dis-
ciplinary institutions, such as schools, and everyday interactions that enforce
gendered discipline. However, for an account of how gender relates to the
idea of binary sex categories, one must turn to other scholars, such as the bi-
ologist Anne Fausto-Sterling. Fausto-Sterling ð2000Þ suggests that the
current two categories of biological sex are constructs based on the idea

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158 y Pemberton

of binary gender identities and that from a biological perspective the two
binary sex categories could be replaced by five categories that would take
account of intersex people. Similarly, Judith Butler ð1999Þ draws on the ex-
istence of intersex people to suggest that the idea of binary biological sexes
is a product of binary categories of gender. Butler and Fausto-Sterling there-
fore undermine the account of sex and gender developed by feminists such
as Simone de Beauvoir ð1957Þ, in which sex is a natural, immutable, and pre-
discursive foundation on which socially constructed gender identities de-
velop: “If the immutable character of sex is contested, perhaps this construct
called ‘sex’ is as culturally constructed as gender; indeed, perhaps it was al-
ways already gender, with the consequence that the distinction between sex
and gender turns out to be no distinction at all” ðButler 1999, 10–11Þ. Hav-
ing rejected the idea that categories of gender are based on biological sexes,
Butler develops an account of gender as performative, that is, as an iterative
practice that brings into existence what it purports to represent. Moreover,
Butler uses feminist psychoanalytic theory to retheorize the relationship be-
tween sex and sexuality in terms of “the compulsory order of sex/gender/
desire” ð9Þ, which she argues is founded on a taboo against homosexuality.
Like Foucault ð1990Þ, Butler traces binary sex categories to sexuality, but she
extends and deepens Foucault’s analysis by theorizing the role of gender in
relation to both sex and sexuality and by providing an account of individ-
ual agency and resistance. However, the obvious difficulty with Butler’s ac-
count of gender as performative and sex as indistinguishable from gender
is her failure to take account of the materiality of the body. While there
are multiple ways that one could performatively enact gender, including the
parody of gender through drag as Butler suggests, one is simultaneously
constrained and enabled by a body that has given features such as height
and facial shape. Although bodies are interpreted through multiple dis-
courses such as gender, race, and disability, and such interpretations de-
pend on the context, bodies are not infinitely or instantly malleable, and this
affects the identities that one can performatively enact.
To capture the relationship between the material body and a subject that
is constituted by power but nonetheless exercises agency, the term “soma-
technics” has been developed to describe how bodies are constantly shaped
and modified by technologies ðSullivan 2009, 133Þ. The concept of soma-
technics indicates that the features and appearance of our bodies are not
immutable but are consciously modified by the subject in various ways.
Examples of somatechnics include piercings, tattoos, cosmetic surgery, and
practices such as exercise and diet and, therefore, range from expensive
medical treatments to everyday activities. The performative nature of gender
means that both normatively gendered and gender-variant people use so-

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 S I G N S Autumn 2013 y 159

matechnics to modify their bodies in ways that confirm their sex/gender

identities. While some transgender people use gender-confirming technol-
ogies such as hormones or surgeries, many cisgender ði.e., nontransgen-
derÞ people employ technologies such as body building to confirm their
masculinity or use dieting or breast implants to achieve an ideal of femi-
ninity. Sex is therefore constructed by gender in two senses: through the
interpretative framework that is applied to a body and in the somatech-
nics used to alter that body in accordance with gendered norms.

Transgender prisoners and the enforcement of binary sex and gender

Both the English and the American prison systems employ binary sex/
gender categories for classifying prisoners and placing them in either a men’s
or a women’s prison. This classification of transgender prisoners using bi-
nary sex/gender categories means that no official figures are available about
the number or placement of transgender people in prisons, making it difficult
to analyze their incarceration rates or treatment. However, George R. Brown
and Everett McDuffie ð2009, 280Þ estimate that in 2007 there were at least
750 transgender prisoners in America, of whom the vast majority were trans-
gender women placed in men’s prisons, and that transgender people are
overrepresented among prisoners. Despite the shared policies of sex seg-
regation and use of binary sex/gender categories, the approaches to trans-
gender people in the English and the American prison systems differ con-
siderably. The variation in the way transgender prisoners are handled
within these prison systems is the product of two key differences between
the United Kingdom and the United States: the different processes for
changing one’s legally recognized sex/gender identity and their different
health care systems. The process for legally changing one’s sex/gender usu-
ally requires some form of medical documentation and may require the
completion of a specific form of treatment, so gender recognition and health
care are often interrelated. Given that gender recognition policies vary be-
tween American jurisdictions and agencies, and that transgender people
are very diverse, any comparison between the approaches toward trans-
gender people in the United Kingdom and the United States risks over-
simplification. Nonetheless, these differences in gender recognition pol-
icy and health care mean that transgender people in the United Kingdom
are more likely than those in the United States to gain legal recognition of
their self-identified gender and are, therefore, more likely to be held in a fa-
cility that is consistent with their self-identification.
The classification of transgender people in the United Kingdom is gov-
erned by the 2004 Gender Recognition Act ðchap. 7Þ, which allows for

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160 y Pemberton

people to alter their legally recognized gender by applying for a gender

recognition certificate. The act employs the terminology of “gender,” not
“sex,” and establishes criteria for changing one’s legal gender that require
a medical diagnosis of gender dysphoria but do not mandate any specific
forms of treatment or gender-confirming surgery. Transgender people in
the United Kingdom who receive a gender recognition certificate would
therefore be placed in an institution with prisoners of that sex/gender;
that is, a male-to-female transgender person would be placed in a women’s
prison, and a female-to-male person in a men’s prison. By contrast, there is
a bewildering variety of policies for the sex/gender recognition of trans-
gender people in the United States, with a range of criteria being employed
by different federal agencies, across the states, and among different insti-
tutions within a single state. Prisons are among the most restrictive insti-
tutions in the United States and commonly use gender recognition policies
based on genitalia.8 As a result, the categorization and placement of trans-
gender people in the American prison system often conflicts with their self-
identification.
The 2004 Gender Recognition Act creates a legal process for transgen-
der people in the United Kingdom to gain official recognition of a change
in their binary sex/gender identity. The act creates gender recognition pan-
els composed of medical practitioners and lawyers, whose purpose is to eval-
uate the applications made by transgender people seeking a legal change in
their gender. The legislation stipulates that all people over eighteen ðthe age
of legal majorityÞ can apply for a gender recognition certificate on the basis
of “living in the other gender” or having formally changed their gender in
a territory outside the United Kingdom.9 In order to receive a gender rec-
ognition certificate, applicants must be deemed to meet four criteria out-
lined in the act, of which the first two are medical: first, diagnosis with gen-
der dysphoria and, second, documentation from two medical professionals
outlining the diagnosis and treatment for gender dysphoria. The remain-
ing two criteria relate to applicants’ self-identification and gender expres-
sion: third, living under their self-identified gender for at least the past two
years and, finally, that the applicant “intends to continue to live in the ac-
quired gender until death.”10 The 2004 act does not stipulate what kind
of treatment for gender dysphoria will be regarded as sufficient but leaves

8
See Rosenblum ð2000, 568Þ, Edney ð2004, 331Þ, Tarzwell ð2006, 192Þ, and Brown and
McDuffie ð2009, 287Þ.
9
Gender Recognition Act, 2004, applications for gender recognition certificate, sec. 1,
http://www.legislation.gov.uk/ukpga/2004/7/section/1.
10
Gender Recognition Act, 2004, applications for gender recognition certificate, sec. 2,
http://www.legislation.gov.uk/ukpga/2004/7/section/2.

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 S I G N S Autumn 2013 y 161

this issue open to the judgment of the gender recognition panel. It is there-
fore unclear whether gender-confirming surgery is necessary to obtain a cer-
tificate, whether hormone treatment would be regarded as sufficient, or
whether a certificate could be granted without any bodily interventions be-
ing provided as treatment for gender dysphoria.
The result of receiving a gender recognition certificate is explained in an
oddly worded section of the legislation, which states: “Where a full gender
recognition certificate is issued to a person, the person’s gender becomes
for all purposes the acquired gender ðso that, if the acquired gender is the
male gender, the person’s sex becomes that of a man and, if it is the female
gender, the person’s sex becomes that of a womanÞ.”11 Unlike the rest of
the act, this provision refers not only to someone’s gender but to someone’s
sex, although it then refers to sex as “that of a man” or “of a woman,” which
seems to conflate sex and gender. The implications of this passage regard-
ing the relationship between sex and gender are open to interpretation and
have been the cause of some controversy among commentators ðSharpe
2007; Jeffreys 2008Þ. However, the phrase “for all purposes” indicates
that receipt of a gender recognition certificate means that someone’s self-
identified gender would be recognized by all institutions within the United
Kingdom, including the criminal justice system.12 Those who receive a cer-
tificate will be granted government identification stating their newly rec-
ognized gender, including a reissued birth certificate. Further, applicants
for gender recognition certificates are protected from having their previous
gender disclosed under “prohibition on disclosure of information” provi-
sions. These provisions stipulate that the details of an applicant’s medical
treatment and gender history must not be shared with members of the pub-
lic, such as employers, and can only be revealed to other government offi-
cials for specified reasons such as “preventing or investigating crime.”13
Given that transgender people have differing preferences about their
bodies, and that treatments such as surgery and hormone therapy are not
always medically appropriate, the lack of specified bodily interventions
makes the 2004 act more inclusive than the policies in many other ju-
risdictions and has led to calls for similar legislation in the United States
ðAllen 2008Þ. Nonetheless, many gender-variant people would not be
able to obtain formal recognition of their self-identified gender under the

11
Gender Recognition Act, 2004, consequences of issue of gender recognition certificate
etc., sec. 9, http://www.legislation.gov.uk/ukpga/2004/7/section/9.
12
The 2004 act includes a few stated exceptions, such as competitive sports, where some-
one’s acquired gender may not be recognized after receipt of a gender recognition certificate.
13
Gender Recognition Act, 2004, supplementary, sec. 22, http://www.legislation.gov
.uk/ukpga/2004/7/section/22.

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162 y Pemberton

provisions of the act, and presumably these people would not have their
self-identified gender recognized by prisons. Those ineligible for a gender
recognition certificate include everyone under age eighteen, people who
self-identify outside of a man-woman gender binary, and those who do
not understand their gender identity as fixed or stable for the remainder
of their lives. The use of medical criteria in the application process for a
gender recognition certificate also means that transgender people who re-
fuse medicalization or a diagnosis of gender dysphoria would be unable
to gain legal recognition of their self-identified gender. Moreover, the un-
certainty about what forms of medical documentation and treatment will
be deemed necessary and sufficient by the gender recognition panels means
that some transgender people might be refused a certificate if they were un-
willing or unable to undergo those treatments ðe.g., genital surgeryÞ. This
concern about the required treatments is made more acute by the parlia-
mentary debates on the act, in which the government demonstrates a belief
that surgery would usually be involved, and by the gender recognition panel
guidance document stating that those who have not undergone surgery
need to explain this decision to the panel when applying ðSharpe 2007, 39Þ.
In the United States there is no comprehensive gender recognition stat-
ute, so policies regarding the sex/gender identity of transgender people dif-
fer between federal and state jurisdictions and between agencies within a
given jurisdiction. The most inclusive policies categorize people according
to their self-identified gender and would therefore place a self-identified
woman in a women’s facility regardless of her legal status or medical his-
tory. Although policies based on gender self-identification are unusual, they
are used by a handful of institutions within the United States, including
the homeless shelters in New York City and San Francisco ðSpade 2008, 737Þ.
More commonly, institutions will recognize a sex/gender identity that dif-
fers from the one given at birth if the individual has received a medical di-
agnosis and treatment related to sex/gender. In most states the Department
of Motor Vehicles will reclassify someone’s gender if provided with medi-
cal documentation ðAllen 2008, 171; Spade 2008, 771–72Þ. The most re-
strictive policies toward transgender people stipulate that the sex/gender
assigned at birth can never be formally changed, which is the practice in
Tennessee ðSpade 2008, 735Þ. While Dean Spade argues that most prison
authorities in the United States employ gender recognition policies based
on birth sex ð735Þ, most scholars state that prisons usually classify and place
inmates according to their genitalia.14 In theory, a genitalia-based place-

14
See Rosenblum ð2000, 568Þ, Edney ð2004, 331Þ, Mann ð2006, 105Þ, Tarzwell ð2006,
192Þ, and Brown and McDuffie ð2009, 287Þ.

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 S I G N S Autumn 2013 y 163

ment policy means that transgender people who have undergone genital
surgeries would be placed in appropriate institutions.
The theoretical implications of a sex/gender recognition policy based on
genitalia are different from those of a policy based on an unchangeable birth
sex/gender, but the two policies overlap because the sex/gender identity
assigned to a child at birth is almost always based on genitalia. Given that
a large majority of transgender people within the United States have not
undergone genital surgery ðGrant et al. 2011, 72Þ, the practical implications
of a genital placement policy are the same as those of a birth-sex/gender
policy for most transgender prisoners, that is, placement in a facility that is
inconsistent with their self-identified gender. A genitalia-based placement
policy is also likely to cause difficulties even among transgender people who
have undertaken genital surgeries because it assumes binary categories of
sex/gender that conflict with the experiences of many transgender people
and ignores the possibility that people may have nonnormative genitals. For
example, under a genitalia-based system of classification it would not be
clear whether a transgender woman who had undergone a penectomy ðsur-
gical removal of the penisÞ but not vaginoplasty ðsurgical construction of
a vaginaÞ should be placed in a men’s or a women’s facility. Placement pol-
icies based on genitalia are also liable to invite harassment and invasive
searches by prison staff seeking to categorize transgender people, which can
facilitate violence and sexual assault ðTarzwell 2006, 180Þ.
Despite the lack of official figures about transgender prisoners, activ-
ists are documenting the experiences of transgender people in the Amer-
ican criminal justice system and have identified a vicious circle of nonnor-
mative gender, poverty, and imprisonment ðGehi and Arkles 2007; Sylvia
Rivera Law Project 2007Þ. The combination of discrimination and the
placement of transgender prisoners in facilities that conflict with their self-
identified gender leads to high rates of verbal, physical, and sexual assaults
against transgender prisoners, sometimes from both prisoners and guards
ðRosenblum 2000, 525; Peek 2004, 1239–40; Mann 2006, 105Þ. These
problems are particularly acute within men’s prisons, where being per-
ceived as feminine places one at the bottom of the prison hierarchy and
makes one particularly vulnerable to rape.15 The high incidences of HIV
and hepatitis C among prison populations and the nonavailability of con-
doms in most prisons ðdue to the fact that sex is against the rulesÞ mean
that prison rapes involve a high risk of infection with life-threatening dis-
eases ðRosenblum 2000, 524Þ.

15
See Rosenblum ð2000, 523Þ, Edney ð2004, 331–32Þ, Peek ð2004, 1226Þ, and Mann
ð2006, 105Þ.

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164 y Pemberton

As I discuss in the introduction to this section, the fact that gender rec-
ognition policies usually involve medical documentation means that the
different health care systems in the United Kingdom and the United States
have different implications for transgender prisoners. The British National
Health Service provides universal health care to citizens ðand, in practice,
to many noncitizens who are residents in the United KingdomÞ that is free
at the point of use and thus does not exclude the poor or unemployed.
The treatment provided under the National Health Service includes men-
tal health services, hormone treatment, and gender-confirming surgeries
such as genital surgeries, and in principle all transgender adults in the United
Kingdom should have access to appropriate health care. In practice, there
are significant limitations in the provision of health care to transgender
people in the United Kingdom, including ignorant or prejudiced doctors,
the need for referral to a relatively small number of specialists, long wait-
ing times for some treatments ðespecially surgeriesÞ, and the more restricted
health care available to prisoners ðEquality and Human Rights Commis-
sion 2009Þ.
In contrast, virtually all health care in the United States is paid for by a
combination of private insurers, the state in the form of Medicare and Med-
icaid, and directly by users. A substantial number of people in the United
States have neither private health insurance nor government provision, and
around 50.7 million Americans, or 16.7 percent of the population, were un-
insured in 2009 ðUS Census Bureau 2010, 22Þ. Even those Americans with
health insurance are likely to have restricted access to gender-confirming
treatments, and particularly to expensive treatment such as genital surger-
ies, which in most states are not covered by Medicaid ðGehi and Arkles 2007Þ
and are often not covered by private insurers ðSpade 2008, 755Þ. Pooja S.
Gehi and Gabriel Arkles ð2007Þ argue that these Medicaid exclusions re-
produce racialized and class inequality and create a “legal Catch-22—being
required to show proof of medical care for legal recognition of their iden-
tities but being denied that care by Medicaid” ð8Þ. Transgender prisoners
often have even less access to gender-confirming health care because many
prison systems deny access to hormone treatment, and prisoners are al-
most always denied any form of surgery.16
Health insurance is both expensive and frequently tied to employment,
so unemployed or underemployed people in the United States are partic-
ularly likely to be uninsured. The high unemployment rates for transgen-
der people in America, which Jaime M. Grant and colleagues ð2011Þ esti-

16
See Rosenblum ð2000, 543–46Þ, Edney ð2004, 334–36Þ, Tarzwell ð2006,180–81Þ,
and Brown and McDuffie ð2009Þ.

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 S I G N S Autumn 2013 y 165

mate to be twice the national average, therefore lead to a vicious circle of

disadvantage. If a gender-variant person faces discrimination in employ-
ment and therefore cannot get a job that would provide health insurance,
then the unavailability of health care will restrict that person’s access to
gender-confirming treatments. Employment outcomes for transgender peo-
ple are also affected by the unequal treatment and discrimination experienced
by transgender youth, which often acts as a barrier to education ðGrant et al.
2011Þ. Transgender youth who face harassment, rejection, or abuse at the
hands of their families, peers, or teachers may drop out of school or run away
from home, potentially leading to homelessness and permanently lost edu-
cational opportunities ðMarksamer 2008, 73–74Þ.
Identity documentation creates a further barrier to legal employment
because identification that does not match someone’s self-identified gen-
der would out that person as transgender to a potential employer. Even trans-
gender people who possess some identity documents matching their self-
identification ðe.g., a driver’s licenseÞ have been outed to employers when
government cross-referencing of their identity documents reveals an incon-
sistency in their gender identity between different records ðSpade 2008,
738Þ. Barriers to employment may be particularly acute for higher status jobs
that tend to involve more restrictive norms around dress and gender pre-
sentation, which can result in gender-variant people being restricted to poorly
paid and insecure work.
The difficulties in obtaining legal work, employment discrimination, and
the high cost of gender-confirming surgeries lead some transgender people
in the United States to illegal activity and so-called survival crimes such as
prostitution ðRosenblum 2000, 554–55Þ. Further, there is a common as-
sumption among American police officers that transgender women are pros-
titutes, resulting in high levels of surveillance, harassment, invasive searches,
arrests, and prosecutions ðSylvia Rivera Law Project 2007, 16; Grant et al.
2011, 158Þ. Transgender people of color in the United States experience
particularly high rates of police discrimination and victimization, and Grant
and colleagues ð2011Þ find that 38 percent of black respondents who had
contact with the police experienced harassment, 15 percent were physically
assaulted by police, and 7 percent were sexually assaulted ð160Þ. Transgen-
der people also face discrimination in many other areas, including their ac-
cess to housing and to welfare services. Many welfare facilities, such as drug
treatment programs, homeless shelters, and shelters for victims of domes-
tic violence, are segregated by sex/gender and therefore miscategorize or
exclude transgender people ðSpade 2008, 752–53Þ. Transgender people of
color experience multiplicative disadvantages, including higher rates of
unemployment, housing discrimination, and police harassment than white

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166 y Pemberton

transgender people ðGrant et al. 2011, 4–6Þ, and the continuation of ra-
cialized income and wealth disparities means that race and class dynamics
are often entwined. These multiple interlocking forms of discrimination
lead Grant and colleagues to conclude that in America, “transgender and
gender-nonconforming people face injustice at every turn” ð2Þ.
Given the evidence that binary sex categories are constructed, one can-
not approach contemporary prison systems with the assumption that the
segregation of male from female prisoners is a representation of biological
fact. If binary sexes are a construct produced by sexuality and by binary con-
ceptions of gender, then policies of sex segregation and the use of binary
sex/gender categories in prison statistics are an exercise of power that rein-
forces and naturalizes binary sex/gender categories. The invisibility of trans-
gender people within prison statistics is therefore both part of the exercise
of governmentality and an example of how “subjugated knowledges” ðFou-
cault 2003, 7Þ are erased by the prevailing regime of truth. The sex segre-
gation of prisoners also enables the application of gender-specific disciplinary
norms within prisons in order to produce normative masculine and feminine
identities, as I discuss in the following section. In short, and as Foucault’s
work repeatedly shows, there is no outside to power and no way of disen-
tangling it from truth.

The enforcement of masculinity and femininity

Sex segregation of prisoners enables and contributes to the production of
masculinity and femininity because men’s and women’s prisons employ
different rules and different norms of conduct. The history of punishment
over the past two centuries has involved repeated attempts to normalize
female prisoners according to white, middle-class conceptions of accept-
able femininity, in which women were regarded as wives and homemakers
ðRafter 1990, xxxiiÞ. Although prison regimes have become less overtly
gendered due to the imposition of more standardized penalties and pro-
cedures, in practice this has involved the extension of norms from men’s
prisons instead of the achievement of gender-neutral practices ð202; Coyle
2005, 67Þ. However, both English and American prisons continue to im-
pose sex/gender-specific discipline on prisoners, albeit in more subtle and
informal ways than in the past. One source of informal sex/gender disci-
pline lies in the far smaller numbers of female than male prisoners, which
means that there are relatively few women’s prisons and that female pris-
oners receive little attention ðCoyle 2005, 66Þ. The scarcity of women’s
institutions means that women tend to be held much farther from their

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 S I G N S Autumn 2013 y 167

homes and families than is the case for men, adding an extra dimension
to their punishment by impeding social ties and support ð68Þ. Similarly,
the shortage of women’s prisons sometimes means that the only women’s
prison in a region is high security, which leads to women being placed in
a higher security institution than is necessary and can make women’s pun-
ishment more severe than that of men who commit similar offenses. The
practice of strip searches and internal cavity searches by—often male—
guards is also experienced by prisoners as a form of violence, described by
Angela Y. Davis as “an everyday routine in women’s prisons that verges on
sexual assault” ð2003, 63Þ.
Many analyses of women’s imprisonment observe that “women are dis-
ciplined in constricting gender-specific ways” ðHowe 1994, 131Þ and iden-
tify attempts to instill feminine norms among female prisoners. One exam-
ple is the tendency for women’s prisons to provide educational, vocational,
and health programs that focus on traditionally feminine skills or occupa-
tions such as beauty, needlework, flower arranging, cooking, and cleaning
ðBosworth 1999, 103–4; Rosenblum 2000, 534Þ. There are also different
rules for physical appearance and dress in men’s and women’s prisons,
which reinforce sex/gender stereotypes and create difficulties for transgen-
der prisoners who may be denied clothing consistent with their sex or gen-
der identification ðRosenblum 2000, 549Þ. Transgender prisoners may be
reported for disciplinary violations for wearing banned clothing or for hair-
styles that conflict with the gendered rules and norms of the institution
ðSylvia Rivera Law Project 2007, 31Þ. Further, there are higher rates of pun-
ishment for infractions in women’s prisons than in men’s prisons ðHowe
1994, 147Þ, which suggests that women are subject to a more restrictive
disciplinary regime. These disciplinary infractions may be the result of ten-
sions between competing ideals of femininity, and Mary Bosworth argues
that prison regimes encourage traditional “passive feminine behaviour”
ð1999, 105Þ that conflicts with contemporary values of autonomy and
agency and thus provokes resistance from prisoners.
It is equally important to consider how masculinity is constituted within
prisons, and here it is helpful to draw on Raewyn Connell’s ð1987Þ concept
of hegemonic masculinity. Hegemonic masculinity is constructed in op-
position to both femininity and subordinated masculinities and is pro-
duced by the state in institutions such as the military, police, and prisons.
Connell’s ð1987Þ analysis is based on Antonio Gramsci’s ð1971Þ concept of
hegemony as ideological dominance that is backed up by force, and she
argues that hegemonic masculinity is produced through dynamics of co-
ercion, hierarchy, and repression. Connell’s analysis is particularly helpful

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168 y Pemberton

for understanding prison systems because it emphasizes the institutional

context in which hegemonic masculinity develops and its enforcement
through a combination of ideological norms and the threat of violence.
In a large number of men’s prisons in America, and some in England and
Wales, the prevailing form of masculinity is defined in terms of aggres-
sion, violence, homophobia, and domination over women. Moreover, mas-
culinity is entwined with sexuality to form a hierarchy in which sexual dom-
inance and penetration are associated with a high status, whereas those who
are weaker, younger, less aggressive, or perceived as feminine in appearance
or behavior hold low status and are targets for sexual assault ðSabo, Kupers,
and London 2001; Peek 2004, 1226Þ. This form of masculinity is an exag-
gerated version of the hegemonic masculinity identified by Connell ð1987Þ,
which is exacerbated by the institutional environment within prisons and has
been termed “toxic masculinity” ðKupers 2005, 714Þ.
Although Foucault’s account of the disciplinary prison is accurate in-
sofar as prisons are highly rule-bound institutions, the norms within
prisons do not only reflect official policies. The architectural designs of
prisons vary widely, depending on factors such as the number and security
rating of the prisoners, but no English or American prisons correspond to
the panopticon that Foucault ð1995Þ regards as exemplifying disciplinary
power ðJohnston 2000Þ. Instead, most prisons involve a large number of
inmates who may interact with one another in areas such as the dining hall,
exercise yard, bathrooms, educational and recreational facilities, and often
in shared cells. In addition to the formal rules, norms within prisons are
partially shaped by the views and behavior of guards, staff, and inmates. If
prison authorities ignore, condone, encourage, or exhibit highly aggres-
sive, sexist, and homophobic behavior, then such behavior tends to spread
because prisoners who act differently are likely to be perceived as weak and
become vulnerable to attack. Prisoners may therefore seek to establish an
identity as dominant and dangerous in order to protect themselves from
violence and sexual assault; in short, they adopt toxic masculinity in the
attempt to become safe.
In many men’s prisons in America, the dominant form of masculin-
ity involves physical strength, aggression, exercising the threat of violence
toward other prisoners, and sexually dominating other prisoners, includ-
ing through rape ðSabo, Kupers, and London 2001Þ. Within such con-
texts, subordinated masculinities may involve physical weakness, a lack
of aggression, and either “voluntary” sexual submission or an inability to
fight off rapists. The punitive turn in recent decades has exacerbated the
tendency toward toxic masculinity within prisons as a result of changes
such as overcrowding ð4–5Þ. The very high incarceration rates of racialized

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 S I G N S Autumn 2013 y 169

and ethnic minority men in America, which are in large part due to the
war on drugs and racial profiling on the part of the police ðMauer 2006Þ,
mean that these gendered dynamics also intersect with race, ethnicity, and
class. Large numbers of poor, undereducated, black men spend years in
violent and repressive prisons and may become accustomed to using the
threat or actuality of violence as a survival tactic. Some ex-prisoners return
to society with the ethos of toxic masculinity and may perpetuate violent
forms of masculinity within their communities. The presence of threatening
ex-prisoners and gangs within many poor black communities in America can
cause this aggressive form of masculinity to spread, as sociologist Patricia
Hill Collins ð2004Þ observes: “Given this social context, it will be extremely
difficult to convince Black men that they should renounce aggression and
violence. In a predatory climate created by prison, street, and some elements
of Black youth culture, being perceived as ‘weak’ could get you killed” ð211Þ.
Official tolerance for and exercise of violence in many American prisons
thus creates an environment of toxic masculinity, and the racialized and eth-
nic disproportionality of prison populations means that some men are far
more likely than others to be subjected to this environment. While Foucault
ð1995Þ describes the prison as constituting delinquency instead of provid-
ing normalization, contemporary prisons contribute to the spread of violent
forms of masculinity instead of promoting nonviolence. The question of
how to encourage nonviolent and nonsexist forms of masculinity, includ-
ing what Athena D. Mutua ð2006Þ terms “progressive black masculinities”
ð5Þ, is not a simple one. However, given that prisons enforce binary con-
ceptions of sex and gender and contribute to toxic masculinity, imprison-
ment is unlikely to be a large part of the solution. Recent scholarship also
indicates that punitive criminal justice policies were introduced in America
partly as a deliberate strategy to impede greater racial equality ðWeaver 2007;
Murakawa 2008Þ and that imprisonment increases overall racialized in-
equality, thus reducing the life chances of many black men, women, and
children ðWestern 2002Þ. It seems likely that a combination of local anti-
violence efforts and the provision of better education, health care, drug
treatment, housing, employment opportunities, child care, and so on, in dis-
advantaged communities would be a more effective way to develop nonvio-
lent forms of masculinity than current policies of punitive policing and
incarceration.

Conclusion
There are both clear similarities and important differences in the policies
toward transgender people in the English and the American prison sys-

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170 y Pemberton

tems. Both these prison systems use binary categories of sex/gender, use
sex segregation, provide limited gender-confirming health care to pris-
oners, fail to use self-identification as the basis of their gender recogni-
tion and placement policies, and involve the risk of harassment and vio-
lence toward transgender prisoners. However, while the 2004 Gender
Recognition Act in the United Kingdom means that the gender recog-
nition policies in prisons are ðin principleÞ no different from those in other
institutions, American prisons are more restrictive than institutions such
as the Department of Motor Vehicles. The American prison system en-
forces highly restrictive binary sex categories based on genitalia, thereby
miscategorizing and marginalizing most transgender people. In contrast,
the existence of comprehensive gender recognition legislation and univer-
sal health care in the United Kingdom means that the English prison system
reinforces binary gender categories that are more likely to be consistent with
prisoners’ self-identification. Nonetheless, limitations in both the 2004 act
and the provision of gender-confirming health care in the United Kingdom
mean that some transgender prisoners in England and Wales will be cate-
gorized and placed in facilities that conflict with their self-identification.
By using Foucault’s ð2007Þ account of the “triangle: sovereignty, disci-
pline, and governmental management” ð107–8Þ, one can see the multiple
and overlapping ways in which sex and gender are constructed within con-
temporary prison regimes. Statistics about prison populations are an exam-
ple of how governmentality serves to construct binary sex/gender identities
while erasing the existence of transgender and intersex people, and these
statistics also construct racialized identities. Given the high incarceration
rates of young black men, the construction and naturalization of sex, gen-
der, and racialized categories strengthen the historical association between
masculinity, blackness, and crime and are liable to further encourage racial
profiling by police. Furthermore, discipline within prisons is exercised both
formally and informally to enforce gendered dress codes and behavioral
norms. The final part of the triangle of power is sovereignty, or physical vio-
lence toward the body ðFoucault 1995Þ. The regular exercise and constant
threat of violence within many prisons means that sovereign power is in
continuous operation, providing a strong incentive for people to exhibit nor-
malized sex and gender identities and contributing to the spread of toxic
masculinity.
As should be clear from the contrast between the gender recognition
policies for transgender people in the United Kingdom and the United
States, sex/gender norms depend on historical and cultural context and on
change over time, including through government policy and legislation.
In recent years there has been a tough-on-crime approach employed in

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 S I G N S Autumn 2013 y 171

both the United Kingdom and the United States, involving more inten-
sive policing for drugs and minor offenses, more punitive sentencing, ris-
ing prison populations, and more severe prison regimes ðGarland 2001Þ.
Unfortunately, the conceptualization of criminals in terms of danger is
becoming a self-fulfilling prophecy because prisons that are overcrowded
with young men from deprived backgrounds are often violent institutions
that instill an aggressive, sexist, and homophobic form of masculinity.
Tough-on-crime policies have thereby contributed to the spread of toxic
masculinity within men’s prisons in America and within communities whose
young men are incarcerated at high rates. Given that 1.6 million people are
held in American prisons ðBureau of Justice Statistics 2010, 1Þ and that the
United States has the world’s highest incarceration rate ðWalmsley 2009Þ,
greater attention should be paid to how imprisonment shapes sex and gen-
der identities.

Postscript
Policies for transgender people in US prisons have been amended in the
National Standards to Prevent, Detect, and Respond to Prison Rape adopted
on May 16, 2012. Under the new standards, placement of transgender and
intersex prisoners should be based not on genitalia alone but on a case-by-
case judgment that takes into account the risks of sexual assault and is re-
assessed at least twice a year. In addition, the new policy prohibits guards
from searching transgender or intersex prisoners solely for the purpose of
determining their genital status, requires training for guards about LGBTI
people, and introduces better reporting procedures for sexual assault. These
rules are now in effect in federal prisons, and state and local facilities are
motivated to adopt the standards by the prospect of losing 5 percent of
their Department of Justice prison grant funding if the state governor does
not certify full compliance. It is too soon to assess the impact, but in prin-
ciple the new standards should increase the likelihood of transgender
women being placed in women’s prisons and reduce intrusive searches by
guards.
Department of Government and International Affairs
University of South Florida

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