Surgical Subjects and the Right to Transgender Health in Brazil

Abstract

In 2007, a Brazilian federal appeals court ruled that gender affirming care was guaranteed on the basis of the constitutional right to health. This is part of a broader process of the “judicialization” of the right to health in Brazil. In this essay, the author draws on fourteen months of ethnographic fieldwork conducted at a public gender clinic in southern Brazil to consider the experiences of transgender people who accessed surgery through the expanded public services that followed the litigation. The article argues that access to surgery does not, by itself, ameliorate the intersecting forms of vulnerability and exclusion experienced by the people followed by the author. Yet despite the limitations of a focus on surgery, expanded access to care does create possibilities for trans people to engage in diverse forms of self-transformation. The paradigm of access to gender affirming care through right-to-health litigation circumscribes the possibilities for social transformation within a set of biomedical technologies that come to stand for more radical change. Attending to the diverse forms of care and self-governance that trans people themselves labor to enact offers a more productive register for thinking about the socially transformative potential of the judicialization of health in Brazil.

In 2007, a Brazilian federal appeals court ruled that gender affirming care was guaranteed as part of the constitutional right to health (Associated Press 2007; Ventura 2011). This decision, which came out of an ação civil pública (public class-action lawsuit) initiated by transgender patients within the public health-care system, is part of a broader pattern of seeking access to care through the courts, termed the “judicialization of health.” As work within transgender studies has shown, the exclusive linking of legal recognition with specific kinds of medical authorization or intervention excludes many transgender people and even diverts attention from the health priorities of nonnormatively gendered people (Spade 2011; Valentine 2007). In particular, Brazilians who identify with the culturally specific category of travesti have been unable to access care because they are illegible within the anglophone discourse of medicalized gender identity that posits genital surgery as essential (Jarrín 2016; Teixeira 2011), a consequence of the subordination of Brazilian categories to hegemonic science (Silva and Viera 2014). Yet even if initially grounded in a biomedical model, access to gender affirming care might be taken up in different ways in a more holistic paradigm of health (Arán and Murta 2009).

In this essay, I attend to the experiences of transgender people who accessed surgery through the expanded public services that followed right-to-health litigation. What is the potential for social transformation through such a collaborative effort between transgender people, health professionals, and legal advocates to claim access to biomedical technology? I argue that access to surgery does not, by itself, ameliorate the intersecting forms of vulnerability and exclusion experienced by the people whom I followed. Yet despite the limitations of a focus on surgery, expanded access to care does create possibilities for trans people to engage in diverse forms of self-transformation.

This work draws on fourteen months of fieldwork conducted at a public gender clinic in Porto Alegre, Brazil.¹ I spent time observing in the hospital as well as outside the clinical arena. I followed patients to their homes, workplaces, and churches and spent time with their partners and families. In addition, I interviewed health professionals, lawyers, representatives of nongovernmental organizations, and scholars. I focus in detail on the stories of two transgender women, which are condensed from a series of interviews in clinical settings as well as in their homes. However, I do not claim that they are representative, nor do I mean to draw from them a coherent or totalizing narrative of Brazilian gender or transgender subjectivity. Rather, I hope to complicate the ways in which surgery is linked to subjection and belonging by addressing the complex consequences of rights-based access to biomedical technologies of gender in Brazil.

Clinical discourses produce ways of classifying people that do not capture the complexity of people's lives. As other scholars have shown, the figure of the “official transsexual” is generated in Brazil through an opposition to the categories of “travesti” and “gay” (Bento 2006: 23; Jarrín 2016). This mode of classifying does not begin to encompass the diversity of trans identity, much less the other forms of social difference with which gender is entangled. However, I am not arguing that clinicians are forcing trans people into pathologizing categories. The clinicians whom I observed were compassionate and sensitive to the social and economic challenges faced by their patients, and their work is limited by the same kinds of structural factors that impact their transgender patients (Metzl and Hansen 2014). Rather, I see the limitations of clinical discourses as a necessary starting point for understanding the experiences of transgender people and caregivers alike. This is true not only for those who are excluded from care but also for those who are able to access it.

The paradigm of access to gender affirming care through right-to-health litigation circumscribes the possibilities for social transformation within a set of biomedical technologies that come to stand for more radical change. At the same time, the stories of my transgender interlocutors point to the critical importance of ordinary and subjective modes of transformation in understanding their lives. The cases of Vitória and Laura that I discuss below illustrate the ways that clinical interventions fail to address the quotidian needs of many transgender people, but more importantly, they point toward the diversity of forms of care and self-governance that trans people themselves labor to enact. This in turn offers a more productive approach for thinking about the socially transformative potential of the judicialization of health in Brazil.

Theorist Lauren Berlant, in a conversation with Jay Prosser, warns about the risk of representing transgender people as “the inflated subjects of suffering who are only really living in relation to the transformative event or gesture” (2011: 186). The fantasy of the autonomous subject of transformation is central to the biopolitical regulation of trans people. Indeed, anthropologists, among others, have argued broadly for attention to the ordinary events that do not cohere into narratives of transformation. As Kathleen Stewart puts it, abstractions like neoliberalism and biomedicalization “do not in themselves begin to describe the situation we find ourselves in” (2007: 1).

The promise of surgical interventions might be a kind of “cruel optimism” in Berlant's words (2011). An exclusive focus on surgery, that is, might impede exactly the kinds of transformation that it promises by obscuring the more quotidian practices and forms of care that are necessary. But people can temporarily identify with a desire for transformation as part of an amalgam of strategies of the self. For this reason, I want to add to Berlant and Prosser's call for attention to the “ordinary forms of care, inattention, passivity, and aggression that don't organize the world at the heroic scale” (2011: 186). Transformation is also part of the fabric of everyday life, and it requires neither a radical politics nor a dramatized event to organize it. This refers not to a singular transformative event but, rather, to a series of acts of social recognition and orientations toward the future enacted by trans people as well as their families, legal advocates, and caregivers. This may occur within and at times be limited by neoliberal institutions—but those regimes do not exhaust its creative energy.

In what follows, I present the case of Vitória, whose story shows the possibilities that surgery enables as well as the way that medical interventions fail to address the most exigent needs of vulnerable people. I then turn to daily clinical practice to show how a complex set of desires are folded into the promise of surgery in the Brazilian context in which I worked, in part through the negation of travesti identities. I then discuss the case of Laura, whose quest to sustain a feeling of futurity in the wake of surgery shows the potentials that access to care enables but does not fulfill. I conclude by discussing, in the context of the judicialization of health in Brazil, how these cases might suggest a different register for assessing the transformative possibilities of right-to-health activism.

“Why Is This Not My Reality?”

Vitória sat across from me in the crowded café; it was the first time since her surgery that she had returned to the hospital. Her voice filled with frustration and optimism, she said:

I had met Vitória a month earlier, when I visited her in the hospital only days after she had undergone a gender affirming surgery. Vitória was a patient at a gender identity program operating in a public hospital in southern Brazil, one of the few to provide transition-related health care for free to poor patients through SUS (Sistema Único de Saúde), the Brazilian public health-care system.

“Since I was a child,” she explained several weeks after her surgery in her home, “I have always felt myself to be a woman. And I suffered a lot in school. I felt different from the other boys.” Around the time of eighth grade, she learned that she could go to the local health post to obtain hormones. But she told me that she wanted to pursue surgery: “I wanted to be a real woman.” When she was twenty years old, she was referred to the gender identity program in Porto Alegre. Vitória recalled, “My heart exploded with happiness. I felt like another person.” Access to surgery represented a possible future opening for Vitória.

Almost two years passed when I did not speak to Vitória, but a little more than a year and a half after her surgery, I visited her at her home. Vitória began to relate the events of the past two years: “So much has happened that when I tell you, you will be shocked.”

After her surgery, Vitória became depressed. She worked at several secretarial and custodial jobs but was constantly harassed, and she never stayed in one place for long. It took almost a year for her to change her name and sex on her official documents. “I had realized my dream of becoming a woman,” she told me. “Only, I wasn't able to be a beautiful woman . . . and that left me sad.” Vitória didn't earn enough to afford the clothes that she wanted, so she began to do sex work at night while working her other jobs during the day. “It's a sad life, humiliated like that in the street,” she said.

Vitória began a relationship with a client. He was a retired chief of police, three decades older than her, who said that he wanted to save her from her life of prostitution, and she moved into his apartment a month later. She told me that he paid for her clothing, cosmetics, and laser hair removal. At the time, she was working as an assistant at a preschool. But after a few months, she could no longer bear their arrangement. “He was very jealous. . . . It was hell to live with him; I could only bear to do it because I needed to.” She was accepted for a position in public employment doing custodial work at a school. Her boyfriend moved her to a new town and continued to pay her rent.

Vitória was ambivalent about her ex-boyfriend, explaining, “He's helping me because he is religious. He likes to help people, so he is helping me. But we are not living together. He gave me a lot; he gave me clothes; he gave me everything that I needed. And now I am living the life that I always wanted.” She registered this relationship as a difficult situation, not an abusive one, even though she was unequivocal about the power dynamics at play: “He was a father to me. My real father did nothing for me. Nothing. But him, no, he helped me with everything. Everything that I needed.” Later, she said, “He wanted very much for me to fall in love with him, but I couldn't do it. He made me cry and he fought with me.” It was this man who allowed her to live the life she had always wanted. Vitória told me that she could not return to sex work, no matter how much she could earn.

Gender affirming surgery for Vitória, perhaps like for many other transwomen in Brazil, meant achieving social recognition and personal actualization at the cost of gendered vulnerability to violence. Economic dependence made Vitória subject to the violent operation of male power and the emotional and psychological wounds it inflicted. Her story left me uncomfortable, especially with the entanglement of sexuality, beneficence, and fatherhood in the portrait Vitória had painted of her ex-boyfriend. I was unsettled by the intricate web of unfulfilled desires and needs, never quite spoken aloud but constellated by failed relationships and projects of transformation. Vitória, able to undergo genital surgery through SUS but not breast augmentation or facial hair removal (which were deemed cosmetic), was socioeconomically excluded from the promise of care supposedly made by the constitutional right to health.

Vitória had plans for her life now that she had a stable job. “Next year,” she told me, “I want to get breast implants. . . . And then I want to apply to adopt a child.” She explained that her public employment was “liberation.” She fell silent as she searched for the words to express her happiness and relief. But it was clear that her experience did not conform to the medicalized narrative that posits genital surgery as radically transformative; transcendent moments were made possible by obtaining independence tied to stable employment, and by glimpsing the possibility of altering her life trajectory. Vitória's story reveals the complex dynamics of class and gender that raise the question of what it means for poor transgender Brazilians to claim the right to transition-related health care.²

Vitória speaks of becoming a “real” and “beautiful” woman, pointing to desires beyond her struggle to find stable employment. Beauty is an arena of unique social potency. Anthropologist Alexander Edmonds has mapped the meanings and practices of beauty and the politics of access to cosmetic plastic surgery through the public health system in Rio de Janeiro, arguing that “for some workers and consumers on the margins of the market economy, physical allure can be an asset that actually seems to disrupt the class hierarchies that pervade many other aspects of their lives” (2010: 250). This is not to deny the reality of economic power but to see the body as a distinct site that is articulated with capitalist values in complicated ways. For Edmonds, “beauty culture becomes an arena of self-governance” that must be apprehended on its own terms (104). At the same time, the norms of beauty to which Vitória aspires are themselves produced by a racialized and classed social field. As Jarrín argues in his ethnographic work on plastic surgery in Brazil, beauty itself may be understood as a biopolitical domain. Unlike Edmonds, Jarrín understands plastic surgery as a “neoliberal extension of eugenic concerns that date back to the early twentieth century” (2015: 537). Although beauty might not be equivalent to class, becoming beautiful is not a means for Vitória to escape the precarity of her situation.

But whatever the limits of its power to transcend the operation of socioeconomic class, beauty has an affective valence. Embodiment involves multiple desires inextricably joined as they are inscribed on the indeterminate body (Salamon 2010), and so I read Vitória's struggle to become a beautiful woman as, in part, an attempt to find a name for the vulnerability she experiences, even if her capacity to alter her condition is limited. In this sense, Vitória's story shows how biomedicalized notions of transformation and inclusion miss the mark, pointing to ordinary needs that access to surgery does not address.

Surgery and Identity

What patients expect from surgery is shaped by the everyday activities of the gender identity program, which serve to secure their identifications within a frame of biomedical knowledge. As the director of the multidisciplinary team, a surgeon, commented in an interview, “We separate the psychology group from the surgery group, because I do not like to have anything to do with the diagnosis. They tell me, ‘this is the list of the patients you have to operate on,’ and I do the operation. We divide it like this, it is a kind of ethical procedure.” This leads to the institutional separation of surgical activities from psychological ones, in which the role of mental health clinicians is to provide the surgeon with patients who have “the right diagnosis.” What constitutes the right diagnosis is a combination of established criteria from standards such as the DSM (the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders) and Brazilian health regulations. The director stressed conservative treatment decisions: “If we have a doubt, we just don't operate. We try not to harm the patients, because the harm is definitive.” In this context, gender identity—and the problematic “right diagnosis”—is the basis for access to biomedical technology and social inclusion.³

Patients undergo a two-year period of group therapy every two weeks before being eligible for surgery. This two-year period was required by federal health regulations, although the format of group therapy was specific to this gender identity program. These therapy sessions are disruptive for many; for example, Vitória had to leave home before 5:00 a.m. to arrive for her 8:00 a.m. group therapy by bus; she did not return until the late afternoon. The requirement of such an investment of time to access surgery is one way in which the program assigns importance to the procedure and defines its relationship to the process of transformation. As Laura, who I introduce below, told me in an interview shortly before her surgery, “What is a transsexual? To be a transsexual is the fact that even though having to wait two years can be boring or inconvenient, she won't desist—she will insist, continue, and will complete those two years. Because it is a life goal.”

Laura's concern to locate herself in a socially defined field of terminology relating to identity categories centered on gender and sexuality, something that represented a great deal of time in group therapy sessions I observed, reflects the extent to which patients were forced to contend with the opposition between the terms transsexual and travesti. Travesti is a socially recognized category in Brazil that designates individuals who are assigned male at birth and may modify their bodies through hormones and silicone injections, among other practices, use female names and pronouns, and yet do not identify as women or as transgender (Kulick 1998). As Alvaro Jarrín shows, the legitimacy of the category “transsexual” is produced through a denial of travesti identity (2016). Thus an emphasis on the body—particularly the genitals—in patients' narratives is a bid for moral and social legitimacy in its appeal to medical authority and its disavowal of a travesti identity.

Patients experience a set of multiple desires: social mobility, legal security, a sense that their identities are socially legitimate, and access to a consumer market. The discourse of gender affirmation makes it possible to articulate these as a coherent narrative of surgical transformation. Yet it is a precarious coherence, painstakingly produced in clinical interactions. During one session, a participant put forward the theory that she was a transsexual because she felt that she was almost a woman, “but for this one detail.” However, she said this with some irony because she was participating in a two-year period of group psychotherapy to correct this “detail”—this detail was clearly of great importance to her. This exchange was iterated many times during my fieldwork.

Another illustrative session was spent in a tensely confrontational exchange between the psychologist and a patient, Júlia. The psychologist was trying to explain that it was possible that there would be some less-than-perfect results from the surgery, even serious complications: “You have to be conscious of the fact that you won't be one hundred percent.” Júlia exclaimed, “Stop!” “What if,” the psychologist asked, “you don't have pleasure afterwards?” Júlia responded, “I don't think about that, because I will!” The psychologist insisted, “If you aren't afraid, you are a little disconnected.” Júlia seemed frustrated as the time for the session ran out.

However, Isabella seemed to embody the positive attitude that Júlia was reluctant to admit: she told the group that people think that the surgery “will change everything, everything will be different. But it isn't like that.” She explained to the rest of the group that facing prejudice and discrimination would continue to be difficult. The surgery helps, Isabella said, but it does not change things by itself. Another patient spoke up, rejecting Isabella's focus on prejudice, and said that the most important thing was how she felt about herself and her body. The psychologist asked the entire group why they wanted the surgery, and they gave nervous, hesitating answers: “To make myself adequate,” “Because I was born a woman,” “Because it was always my dream.” As the psychologist explained the importance of having realistic expectations from the surgery, Isabella supplied the word fugir—to escape—hinting at the complex desires folded into one embodied transformation.

These diverse responses show that patients are not naively optimistic or merely playing along with what they think clinicians expect. These encounters reveal the work that must be done to sustain the potential of surgery to represent social transformation. This occurs through identification with the category transexual and disavowal of the category travesti, in both explicit conversations about language and silences around topics such as sex work, as group participants were reluctant to speak about sex work, frustrating their therapists. The need to distance oneself from markers of travesti identity further ensures that practical and economic concerns will be marginalized or ignored, beyond a simple focus on genital surgery. In doing so, patients invested a great deal in the potential of surgery. Laura, whose story I discuss below, struggled to maintain this sense of futurity in the days after her surgery.

“That's the First Thing—To Believe”

Laura was frustrated and felt she could not move forward until she had genital surgery. “I had already lived as a woman for a long time before I entered the gender identity program, which shows that [the genital surgery] is a small detail,” Laura told me in our first interview. She was using hormones, but she told me, as we sat in a cafe, that genital surgery was “extremely important.”

After her surgery, Laura said, she would be able to change her legal sex marker, finish school, and become certified as a nurse technician. Most importantly, she told me, she would be able to find a husband; since the end of her first, eleven-year relationship, each of her relationships ended when her partner discovered that she was transgender. Laura, in her late thirties, often told me how frustrated she was that she was single.

Laura remarked to me, “The day that I die I want to put an epitaph on my grave: ‘Here lies Laura, who fought her whole life against nature. Finally, nature won.’” Laura laughed and explained, “We fight against our hair, we fight against our Adam's apples, we fight against our noses, and we fight against our genitals. We fight whether or not other people know. So, we fight our whole lives against nature until the day it conquers us.” Laura saw her life as a struggle, striving for bodily actualization as well as social acceptance.

When I asked Laura about her experience in group therapy, she told me that little had changed, and that “the only thing that nobody, obviously, likes is having to wait two years. Because everybody wants to have the surgery as quickly as possible. But I think that these two years, in many cases, are important.” Laura explained, “I think that many people enter thinking that they know everything. . . . As time passes in the group, they see the differences of opinion and the doctors clarify things. I think that sometimes people begin to perceive that they are not transsexuals, or that they have to change a certain way of thinking about life.” Laura never seemed to doubt her identity, nor did she describe her experience in therapy in terms of changing her perspective on life. She was skeptical about the possibility that some transgender people might not want to undergo genital surgery as soon as possible.

Laura had high expectations for her surgery: “My expectations are the best possible. Because, for me, it will completely change my life.” Laura's surgical objectives were also social—to find a husband, to change her name. At this point, Laura had already been a patient for over a year. The team was nervous because they felt that Laura hoped to gain too much from surgery, and that they thought that she had a good chance of being disappointed with the results. What does it mean to desire too much, and what does it mean when clinicians point this out?

Laura met with the clinical team for a final interview, in which she would confirm her desire for surgery. The social worker asked her if she had any fears about the surgery. “None,” Laura replied, “because I think that the group always serves to address our doubts. . . . So, we know that it is a surgical procedure, that it can result in pain for one person, and not for another, and that there may or may not be complications. So, we know that it will be different for everybody. But I am extremely confident in believing that everything will be completely correct.”

The team pressed Laura, and the surgeon explained: “The result depends on many factors, including the genitalia that the person has, the skin, et cetera. It depends on the scar formation, and its healing. Every person is different. So, we cannot know how it will be in the end.” The clinicians rightly see the need to caution Laura about the risks of surgery, and Laura struggles to find a balance between too much desire (unrealistic expectations) and too little (ambivalence about the surgery or about the genitals she currently has).

“We know that there are many people who are . . . completed, and everything transpired perfectly. So, I think that I, too, will be one of these people. I believe it, you know? Because that's the first thing—to believe,” Laura said, uttering this last phrase with a slight laugh and perhaps a sense of irony; she seemed eager to move on and to avoid addressing the social worker's doubts about her expectations for the surgery. She continued, “With any kind of surgery, we know that there could be a complication or some issue. But I always believe that it isn't anything that can't be fixed or made better.” The interview ended shortly after, leaving the clinical team frustrated by their skepticism about Laura's comprehension of the risks of the genital surgery. But despite their discomfort, the team decided that Laura met the criteria for undergoing surgery: she underwent a vaginoplasty and facial feminization surgery.

I visited Laura in the hospital several times during her recuperation; the day after her surgery, she was in intense pain, but that subsided quickly, and she was released six days afterward. I visited Laura at home the day after she returned there to recover, a week after the day of her surgery. Laura is poor; at the time, she had been working intermittently taking care of an elderly woman, and the house where she lived alone was a dimly lit concrete box adorned only with a small table and a makeshift bed. Her mother lived on the next street, and she was recovering there, since it was difficult for her mother to walk back and forth between the houses. Her mother's anxiety about Laura's surgery had abated, she told me, now that the most difficult part was past. Laura, however, was impatient. She said that after the first day, she felt very little pain, but she was uncomfortable and anxious for her recovery to be complete. She lamented the fact that she was still single: “I am totally alone. Me and God.”

As I continued to visit Laura at home, it became clear that she negotiated her conflicts of identity outside the clinic, and a new picture of her desire emerged. Laura's relationship with biomedical knowledge and practice was complicated. It was necessary, in her perspective, insofar as it enabled her to access medical transition. Furthermore, the power of medical authority enabled her to use her medical transition as leverage to legitimate her identity in her social world. However, emotional and practical support came from her family and religious community. At this point in her life, Laura received a great deal of support from her Seventh Day Adventist church group, which would pray weekly for Laura's successful surgery or rapid recovery. Laura tried, successfully as far as I knew, not to reveal the nature of her surgery to the church group, telling them instead that she was scheduled for an appendectomy.

I returned to Laura's home a year later. The space was still uncomfortably bare, but she had a few more pieces of furniture and had begun tiling a corner of the main room. Laura described her struggle to find work, taking course after course at a local vocational training center but never finding a job. Marcelo, her boyfriend, worked as a nighttime security guard, which he liked because it gave him time to study English. Laura told me that she hoped that if Marcelo could learn English, he would be able to find lucrative work in the tourism industry. Laura's plans to become certified as a nurse technician and to return to Europe, where she had lived decades earlier, had been abandoned, at least temporarily. Laura seemed intent to talk about Marcelo, emphasizing his role as breadwinner, although she spoke English much better than he did. Yet despite her relationship with Marcelo, life for Laura remained in a future tense, displaced onto a different job or place. In her struggle to sustain this futurity, Laura shows how her own transformation is shaped indirectly by the figure of the travesti, as she contends with these unfulfilled desires that escape the register of the surgically focused transexual identity.

When I returned a few weeks later and spoke to Laura alone, she confided that she was distressed about her relationship with Marcelo. Things became difficult when, during one of their first dates, she was outed in a chance encounter with Marcelo's brother-in-law. Laura took Marcelo to the shore and told him about her gender identity. “Then when I had told him everything, he said, ‘Look, this doesn't make the littlest difference. You are good just as you are.’” But, she added anxiously, “I don't know if this is just a fantasy of mine, but I think that my relationship with him has never been quite the same.”

Marcelo's mother cut ties with him, and he fought with his family. Laura surprisingly thought of the law in this moment: “I said that what I was going to do was enter a lawsuit against them. They will say that I am not a woman, I will say that I am a woman, I will prove legally that I am a woman, because it was the law of Brazil that gave me my documents, which state: female.” I was struck by her recourse to the state when she said, “The only right I had to defend myself was to say, I am going to court, and we can fight in court.” She told me that Marcelo's mother relented when she began to talk about a lawsuit, but that in the process, her community and church had all learned about the conflict. “It was a horrible thing,” she told me. “It's something you just don't do, destroy the life of a person like that.”

Laura had left the church group that had supported her and had been such a major part of her life in the past. A new pastor came, and he did not accept her the way that her old pastor had. From a biomedical perspective, Laura had completed the process of transition in terms of gender, but she was still in a state of suspension, waiting for a moment of transformation in terms of work and relationships to bring her the kind of happiness she wanted. I asked her how she felt about her medical transition. She answered, “I would say, 70 percent. Why not 100 percent? I think that maybe . . . although my mother doesn't think so, I think I still need some cosmetic surgery. To become a little more beautiful.” I thought of Vitória, and of Laura's words before her surgery: “I always believe that there is nothing that cannot be fixed, repaired, or made better.”

Judicialization and Transgender Rights

Cross-cultural work on gender variance tends to minimize political economy by assigning difference to a monolithic and immutable “culture” and ignoring the complex historical, technical, and socioeconomic production of gendered identity (Towle and Morgan 2006). Yet recent critical work within transgender studies points to the analytic importance of class difference and focusing an economic lens on issues that have been constructed exclusively as questions of “gender identity” (Irving 2008; Valentine 2007). This suggests that some rights-based strategies may fail to address the urgent needs of the most marginalized transgender people, as legal scholar Dean Spade argues, because in a neoliberal context, such advocacy is more likely to justify the very institutions that exclude nonnormatively gendered people (2011). Yet this critique may take for granted the normative force of the law, instead of interrogating it as a lived practice, as Isaac West contends (2014).

Brazil is a unique case not only because of culturally specific categories such as travesti but also because of the possibilities created by the right to health, guaranteed in Brazil by the constitution of 1988. Starting with HIV/AIDS activists in the 1990s, patients have successfully won the right to access health care in court, especially in the form of pharmaceuticals. The effects of this judicial activism are highly contested. Some critics argue that this “judicialization” of the right to health has been co-opted by a pharmaceutical industry eager to reshape that right as a right to consume medical technologies—especially pharmaceuticals (da Silva and Terrazas 2011; Ferraz 2011). Yet others see this phenomenon in a more positive light. As anthropologist João Biehl argues, the judicialization of the right to health in Brazil creates a space where individuals make demands on the state and achieve recognition even if on an individual basis. Drawing on a database of right-to-health lawsuits in the state of Rio Grande do Sul, Biehl and colleagues found that judicialization “largely serves the disadvantaged who turn to the courts to secure a wide range of medicines, more than half of which are on government formularies and should be available in government health centers” (Biehl, Socal, and Amon 2016). “The judicialization of health,” Biehl writes, “has, indeed, become a para-infrastructure in which various public and private health actors and sectors come into contact, face off, and enact limited ‘one by one’ missions” (2013: 431). Not radically upending market rationality, these juridical subjects are nevertheless able to maneuver within this political field.

The federal court decision about access to gender affirming care supports this way of understanding the judicialization of health. In his 2007 ruling, Judge Roger Rios held not only that access was justified by the right to health, but also that failing to provide gender affirming care constituted gender-based discrimination prohibited by the constitution. In his view, the right of transgender people to access transition-related health care is not just a right to health in the face of pathological suffering. In an interview in Rio de Janeiro, legal and public health scholar Miriam Ventura explained that this legal creativity came from a group of legal scholars during the era of HIV/AIDS activism who believed that justice could not be reduced to the law: “All rights have an ethical foundation. Therefore, the law does not restrict rights. The law cannot restrict rights; the law must make itself adequate to rights.” Judge Rios was hopeful about the social and ethical potential of this innovative vision of the law; when I asked him what was the impact of his decision to order SUS to pay for gender affirming care, he told me, “It is in the sense of breaking with the gender binary.” As the stories of Laura and Vitória suggest, the possibilities enabled by such a lawsuit are not simply the value of access to surgery but also the more complex and varied subjective and social work that follows this access, even when transgender people as well as health and legal professionals struggle to render it visible in official discourse.

Conclusion: Surgical Subjects

While biomedical technology may stand for inclusion or transformation, a narrow focus on surgical intervention limits the ability of public institutions to meaningfully redress the exclusion of transgender people. What happens in the process is that gender affirming care, including surgery, comes to stand for a broader desire for inclusion and a more radical transformation of society that cannot be articulated in clinical or legal discourse. While people like Vitória and Laura were able to access gender affirming surgery, the state failed to address their social vulnerability, in ways that were made invisible, in Vitória's case, or pathologized, when, in Laura's case, health professionals wondered whether Laura desired, “too much.” Yet Vitória and Laura both point to the ordinary forms of care and diverse projects of transformation that may emerge from expanded access to health technology secured through right-to-health litigation.

In the final ruling on the class action, Ellen Gracie of the Supreme Federal Tribunal temporarily suspended the decision by Judge Rios's court, saying that although transgender people “merit the full respect of Brazilian society and the Judiciary,” owing to the “suffering and hard realities of transsexuals,” the court could not order the executive branch of government to change its policy by including a new procedure in the public health system (Ventura 2011). This is part of an ongoing debate in Brazil about the power of courts to make decisions about the right to health in general and not on an individual basis. Although not compelled by a court, the Ministry of Health accepted the logic of the ação civil pública and approved access to gender affirming care before the case could be heard by the entire Supreme Federal Tribunal.

Patients such as the ones I worked with were granted a minimum of services deemed medically necessary; other care, such as breast augmentation or facial hair removal, which might have been socially much more significant, was deemed cosmetic. However, the quotidian practices of transformation of transgender subjects like Vitória and Laura point to the vital potential of access to care, even within a neoliberal framework. Subjectivity is a distinct field of self-authorship, not fully determined by the state or the market, and it must be attended to on its own terms.

Transformation may be an object of desire or a proxy for another desire. Michelle, another patient, told me in the days after her genital surgery that it “isn't the thousand wonders they said it would be.” When I met her a year earlier, she told me that her hopes for the surgery were to “set everything right.” Reflecting on her own struggles, Michelle told me, “Life isn't always a brightly colored rainbow. So, in the midst of darkness, we have to find ourselves.”

Claims to transgender rights tenuously link trajectories of individual transformation with macro processes of social transformation, which in turn provide the conditions for articulating personal and intimate experiences. Surgery here is both a metaphor and a concrete basis for imagining different life possibilities and social worlds. When I spoke to Michelle a year after her surgery, months after she expressed her disappointment and frustration to me, she was extremely happy, and seemed almost to be a different person:

These transgender subjects do transform their lives even in the face of stigma and within the impossible confines of a biopolitical discourse that renders their existence precarious. The expanded access to care made possible by the judicialization of the right to health is not a world-changing event, but it does open a space for trans people's desire to transform local social worlds and initiate new lines of belonging.

Joshua Franklin is an MD/PhD student in anthropology at the University of Pennsylvania. Franklin's research interests include gender and sexuality, mental health, and Brazil. Currently, Franklin is beginning a project to explore the impact of care and role of medical institutions in the lives of transgender and gender-nonconforming young people in Philadelphia.

Acknowledgements

I would like to gratefully acknowledge João Biehl, Adriana Petryna, and Alex Gertner for their wonderful guidance. I would also like to thank the medical anthropology writing group at the University of Pennsylvania, the editors of this issue of TSQ, and the anonymous peer reviewers for their insightful comments. All translations from Portuguese to English are my own. This research was supported by grants from the Fulbright US Student Program and the Brazilian Studies Association.

Notes

References