AELE LAW LIBRARY OF CASE SUMMARIES:
Corrections Law for
Jails, Prisons and Detention Facilities
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Transsexual Prisoners
Monthly
Law Journal Article: Transsexual Prisoners:
Protection From Assault, 2009
(7) AELE Mo. L. J. 301.
Monthly Law Journal Article: Transsexual Prisoners:
Medical Care Issues, 2009 (8) AELE Mo. L. J. 301.
A federal appeals court ruled that a state does not inflict cruel and unusual punishment by declining to provide sex reassignment surgery to a transgender inmate. The plaintiff, a transgender Texas prison inmate in the custody of the Texas Department of Criminal Justice (TDCJ), filed suit challenging TDCJ Policy G-51.11 as unconstitutional under the Eighth Amendment, both facially and as applied. The plaintiff argued that Policy G-51.11 amounted to systematic deliberate indifference to his medical needs, because it prevented TDCJ from even considering whether sex reassignment surgery was medically necessary for him. The trial court granted summary judgment for the Director of TDCJ based on the merits of the plaintiff's Eighth Amendment claim. The federal appeals court held that the plaintiff failed to present a genuine dispute of material fact concerning the TDCJ’s deliberate indifference to the plaintiff’s serious medical needs under the Eighth Amendment because the claim concerned treatment over which there exists on-going controversy within the medical community. As another federal appeals court concluded in Kosilek v. Spencer, #12-2194, 774 F.3d 63 (1st Cir. 2014) (en banc), there was no consensus in the medical community about the necessity and efficacy of sex reassignment surgery as a treatment for gender dysphoria. The court also held that plaintiff could not state a claim for cruel and unusual punishment under the plain text and original meaning of the Eighth Amendment, regardless of any facts he might have presented in the event of remand. The court held that it could not be cruel and unusual to deny treatment that no other prison has ever provided. Gibson v. Collier, #16-51148, 2019 U.S. App. Lexis 9397, 2019 WL 1417271 (5th Cir.).
A Wisconsin prisoner stated that she was a transgender person who had identified as a woman her entire life. Prior to incarceration, in 2008, she received a diagnosis of gender dysphoria. After being incarcerated, she requested hormone treatment, triggering a multistep process that the Department of Corrections outlined in its then-new policy on Health Care Treatment of Gender Identity Disorder. It took the department over a year to evaluate her candidacy for hormone therapy. The DOC then refused to provide her with the treatment its own expert recommended, on the ground that she was within a month of release from the prison. Although the DOC’s Mental Health Director encouraged her to find a community provider to prescribe her hormones, the terms of her parole actually prohibited her from taking hormones or dressing as a woman. A federal appeals court concluded that the trial court prematurely rejected some of her claims in a lawsuit challenging this course of events. Persons in criminal custody are entirely dependent on the state for their medical care, so prison officials have a constitutional duty to provide inmates with the care they require for serious medical needs. The appeals court stated that prison staff members cannot wait for an inmate’s sentence to expire before providing necessary treatments. Additionally, state officials may not block a parolee from independently obtaining health care. The condition must be serious enough to trigger constitutional protection; otherwise, the nature of the disorder is irrelevant, the court commented. Further proceedings on these claims were required. Mitchell v. Kallas, #16-3350, 895 F.3d 492 (7th Cir. 2018).
A state prisoner was experiencing gender dysphoria. Born a woman, she displayed feminine characteristics and identified as female. She did receive medical care for her condition, but argued that the treatment was so inadequate that it violates the Eighth Amendment. The appeals court found that she produced undisputed evidence which showed the plaintiff received hormone treatment, testosterone-blocking medication, and weekly counseling sessions. A 1986 precedent, Supre v. Ricketts, #84-2803, 792 F.2d 958 (10th Cir. 1986), suggested that these forms of treatment would preclude liability under the Eighth Amendment. Given the evidence “no reasonable fact finder could infer deliberate indifference on the part of prison officials. And the district court did not improperly curtail [the plaintiff’s] opportunity to conduct discovery. Thus, we affirm the award of summary judgment to the prison officials.” Lamb v. Norwood, #317-3171, 2018 U.S. App. Lexis 18557 (10th Cir.).
The Federal Bureau of Prisons (FOP) on May 11, 2018 altered its guidelines for treatment of transgender prisoners in its custody. This represented a roll back of protections for transgender prison inmates introduced under former President Barack Obama after some prisoners challenged the policies in court. An inmate’s biological sex will now be used to make the initial decision as to where transgender prisoners are housed, instead of the gender to which they identify. The action came after four women held at a Texas detention center filed a federal lawsuit arguing that the previous prison guidelines, introduced in January 2017 just days before Obama left office, put them at greater risk of rape because they might have to share facilities with transgender women. Under the new guidelines, prison authorities are instructed to consider the health and safety of transgender inmates, as well as “whether placement would threaten the management and security of the institution and/or pose a risk to other inmates in the institution.” Transgender Offender Manual, Federal Bureau of Prisons Program Statement 5200,04 CN-1 (May 11, 2018).
A transsexual prisoner claimed that
defendant prison officials acted with deliberate indifference to her serious
medical needs by refusing to provide hormone replacement therapy for her Gender
Identity Disorder (GID). The plaintiff's claims against the defendants in their
official capacities were barred by sovereign immunity. The defendants in their
individual capacities were entitled to qualified immunity because the evidence,
even viewed in the light most favorable to the plaintiff, did not show an
Eighth Amendment violation. The appeals court noted that "numerous"
mental health professionals had evaluated the plaintiff, but that none of them
reached a diagnosis of GID or stated that GID treatment was appropriate. The
fact that the plaintiff disagreed with their medical judgment was no basis for
a federal civil rights claim. Reid v. Griffin, #15-1678, 2015 U.S. App. Lexis
21926 (8th Cir.).
A biologically male prisoner who is
transgender sought sex reassignment surgery, and the trial court granted an
injunction ordering the surgery. A federal appeals court then stayed the
injunction pending appeal. While the appeal was pending, the plaintiff was
released on parole. The appeals court found that the facts surrounding the
prisoner's release were not sufficiently developed to determine whether the
release occurred through ":happenstance" or the defendants' actions.
The appeals court ordered the trial court to conduct further proceedings to
make that determination, and consider whether or not to vacate its injunctive
order. Norsworthy v. Beard, #15-15712, 2015 U.S. App. Lexis 17447 (9th Cir.).
A federal appeals court revived a transsexual
male to female inmate's Eighth Amendment claim based on deliberate indifference
to her serious medical needs by denying her sexual
reassignment surgery (SRS) based on a blanket policy against such surgery. The
complaint plausibly alleged that the plaintiff had severe gender dysphoria,
based on repeated incidents of attempts at self-castration despite being
furnished hormone treatment. Even besides the blanket policy, the complaint
also sufficiently alleged that the defendant officials acted in reckless
disregard of an excessive risk to the prisoner's health in denying the surgery
solely based on a recommendation from a doctor with no prior experience in
transgender medicine. Rosati v. Igbinoso, #13--15984,
2015 U.S. App. Lexis 10860 (9th Cir.).
UPDATE: An anatomically male prisoner in their
mid-sixties suffering from gender identity disorder and self-identifying as a
female sued the Massachusetts Department of Corrections for not providing her
with sex reassignment surgery. It was providing her with hormonal and other
medical treatments. A prior federal appeals court panel decision held that the
plaintiff was entitled to taxpayer-funded sex change operation, and that refusing
to provide the procedure would violate the Eighth Amendment. The request for
sex reassignment surgery, the panel stated, was based on a serious medical
need, and the defendant correctional department refused to meet that need for
reasons amounting to a pretext that were not supported by any legitimate
penological interests. Kosilek v. Spencer, #12-2194, 2014 U.S. App. Lexis 951
(1st Cir.). The full federal appeals court, ruling en banc, reversed, finding
that, in light of the community standard of medical care, the adequacy of the
already provided treatment, and various concerns related to safety and prison
security at the medium-security facility where the prisoner was incarcerated,
the care currently provided did not violate the Eighth Amendment. Kosilek v.
Spencer, #12-2194, 2014 U.S. App. Lexis 23673 (1st Cir. en banc).
An
inmate suffering from gender identity disorder (GID) claimed that prison
officials' refusal to authorize sex reassignment surgery for her violated the
Eighth Amendment, particularly on the basis of their knowledge of prior
attempts at self-mutilation. The treatment provided, which included hormone
therapy, psychological counseling, and allowing her to live and dress as a
woman, she claimed, had not alleviated her constant mental anguish that caused
her attempts to castrate herself. The federal appeals court overturned a
dismissal of the lawsuit for failure to state a claim, since the claim asserted
was plausible on its facts. The complaint adequately stated a claim for deliberate
indifference to a serious medical need. De'Lonta v. Johnson, #11-7482. 2013
U.S. App. Lexis 2005 (4th Cir.).
A federal trial judge ruled that a transsexual
prisoner serving a life sentence without possibility of parole for murdering
his wife (after she expressed anger that he was wearing her clothes) was
entitled to sex reassignment surgery at government expense. His doctors had
indicated that sex reassignment surgery to make him female would be the only
form of treatment adequate to treat his severe gender disorder. While
incarcerated, he has twice attempted to kill himself and once tried to castrate
himself. The judge found that purported security concerns expressed by the
defendant officials were "a pretext to mask the real reason for the decision
to deny him sex reassignment surgery - a fear of controversy, criticism,
ridicule, and scorn." Denial of such surgery would violate the Eighth
Amendment, the judge stated in a lengthy opinion. It is believed to be the
first court decision in the U.S. ordering such surgery for a prisoner. Kosilek
v. Spencer, #00-12455, 2012 U.S. Dist. Lexis 124758 (D. Mass.).
A Wisconsin state statute that flatly prohibits
providing hormone therapy or sex reassignment surgery to transsexual prisoners
regardless of their medical needs is in violation of the Eighth Amendment. The
asserted interest in maintaining prison security did not justify denying
hormone therapy on the rationale that developing female secondary sexual
attributes, such as breasts, would subject transsexual inmates to an increased
risk of sexual assault. There was ample evidence that such prisoners are
targets for sexual assault even without hormone therapy. "Refusing to
provide effective treatment for a serious medical condition serves no valid penological
purpose and amounts to torture." Fields v. Smith, #10-2339, 2011 U.S. App.
Lexis 16152 (7th Cir.).
A prisoner convicted of child rape, kidnapping,
and robbery finished their sentence and was then civilly committed as a
sexually dangerous person. The prisoner, who is anatomically male but suffers
from gender identity disorder changed their name in 1996 from David to Sandy
and sought treatment including the administration of female hormones and access
to female clothing. These requests were rejected as "bizarre at best and
psychotic at worst." Ultimately one dose of female hormones was
administered in 2009, but then further treatment ceased. A federal appeals
court upheld a finding of deliberate indifference "or an unreasonable
professional judgment exercised--even though it does not rest on any
established sinister motive or 'purpose' to do harm." It also upheld an
injunctive order requiring hormone therapy, noting that it had been fifteen
years since the prisoner had requested such treatment and ten years since
medical professionals had recommended that it be provided. Batista v. Clarke,
#10-1965, 2011 U.S. App. Lexis 10308 (1st Cir.).
A New Jersey prisoner challenged the decision of
correctional officials refusing to diagnose him with gender identity disorder
(GID) and provide "appropriate psychological treatment." He claimed
to be a male to female transgender individual who although born biologically
male is "psychologically and emotionally female." This refusal was
based on evaluations by medical personnel finding that the prisoner did not
show "two major criteria" of GID, that is, "a strong
identification with the opposite sex, and a high level of discomfort with your
body." The correctional agency's policy also provided that sexual
reassignment surgery is an elective procedure and is not provided or available
to inmates. Rejecting the prisoner's claims, the appeals court noted that the
prisoner, who is thirty-three, had never been diagnosed with GID, and that
several evaluations by the prison psychiatric staff failed to reach such a
diagnosis. Finally, the prison did properly continue to provide mental health
treatment to the prisoner and encouraged him to discuss his feelings. The
failure to accept the prisoner's "self-diagnosis" of GID was not
arbitrary nor capricious and did not violate his constitutional rights. Smith
v. N.J. Dept. of Corrections, #A-3303-08T2, 2010 N.J. Super. Unpub. Lexis 2139.
Federal trial court denies correctional
officials' motion for reconsideration of order requiring them to provide
transsexual inmate with female hormone therapy and psychotherapy for treatment
of gender issues. The officials based their motion on a claim that the
prisoner's purported history of attempting to live like a female was not
substantiated. That evidence, however, was found by the court to really only
relate to the issue of whether or not the defendants were liable for allegedly
failing to previously diagnose and treat the inmate before he engaged in
self-castration, and was only "marginally" related to his diagnosis
and treatment for gender identity disorder (GID) after that castration. The
trial court ruled that GID was a life-threatening mental health condition if
untreated, in light of the prisoner's actions of self-mutilation and attempts
at suicide after having repeatedly requested treatment for GID. Gammett v.
Idaho State Board of Corrections, No. CV05-257, 2007 U.S. Dist. 66456 (D.
Idaho).
Placement of transsexual inmate, who lived life
as a female but had male genitalia, into administrative segregation for 14
months without an adversarial hearing or right to appeal did not violate her
due process rights. While the placement isolated the prisoner, it did not
extend the period of their confinement and did not impose an "atypical and
significant hardship" sufficient to violate due process, since the
prisoner was provided with the "ordinary essentials" of prison life.
DiMarco v. Wyoming Depart. of Corrections, No. 04-8024, 2007 U.S. App. Lexis
1497 (10th Cir.). [N/R]
Juvenile facility in Hawaii ordered to take steps
to remedy "pervasive" sexual, physical, and verbal abuse of lesbian,
gay, bisexual, or transgender juvenile wards, and to stop, except in
emergencies, using isolation as a means of "protecting" such wards
against abuse and harassment. Court rejects, however, the claim that staff
members violated the First Amendment rights of the juveniles by quoting from
the Bible or discussing religion with them, when there was no evidence that
these actions were based on the facility's policies. R.G. v. Koller, No.
Civ.05-00566, 415 F. Supp. 2d 1129 (D. Hawaii 2006). Subsequent decision at
2006 U.S. Dist. Lexis 21254. [2006 JB Jun]
Texas prison system did not violate transsexual
prisoner's constitutional right to adequate medical treatment by denying a
request for hormone therapy. Praylor v. Tx. Dep't of Criminal Justice, No.
04-50854, 2005 U.S. App. Lexis 25043 (5th Cir.). [2006 JB Jan]
Federal appeals court reinstates claim against
prison warden for alleged failure to protect transsexual inmate from an attack
by a maximum-security prisoner. Plaintiff prisoner raised a sufficient factual
issue as to whether the warden had knowledge of the possible risk to her safety
because of her vulnerability and her attacker's status as a
"predator," but failed to act to protect her. Greene v. Bowles, No.
02-3626, 361 F.3d 290 (6th Cir. 2004). [2004 JB May]
Placement of intersexual (hermaphrodite) prisoner
with both male and female characteristics in segregated confinement for 438 days
with severely limited privileges solely because of status of ambiguous gender
was not a violation of the Eighth Amendment. Such placement was not aimed at
punishment, but at protecting the safety of the inmate and other prisoners, and
the plaintiff prisoner was provided with all basic necessities. Court also
rejects equal protection claim. Continuation of administrative segregation
beyond 30 days, however, without a hearing and with no attempt to
"elevate" prisoner's living conditions was "completely arbitrary
and capricious," and lacked a rational basis. Prison officials should have
known this, and were therefore not entitled to qualified immunity, but only
nominal damages of $1 were awarded, in the absence of evidence of actual harm,
such as lasting mental or physical damages resulting from the segregated
confinement. Plaintiff would also be awarded expert costs, attorneys' fees, and
court costs as a prevailing party under 42 U.S.C. Sec. 1988. DiMarco v. Wyoming
Dept. of Corrections, 300 F. Supp. 2d 1183 (D. Wyo. 2004). [N/R]
Prisoner suffering from gender identity disorder
(GID) stated an Eighth Amendment claim for inadequate medical care based on
allegation that prison officials refused to provide any evaluation of and
treatment of this condition, and that state Correctional Department had a
policy prohibiting any hormone or surgical treatment for inmates suffering from
GID regardless of their medical condition. While the Eleventh Amendment barred
claims against prison officials in their official capacities, the plaintiff
prisoner stated a claim against the Commissioner of the New Hampshire
Department of Corrections in his individual capacity. Barrett v. Coplan, 292 F.
Supp. 2d 281 (D.N.H. 2003). [N/R]
State prison may not deny treatment of prisoner's
alleged gender identity disorder solely on the basis that he only initially
sought such treatment after his incarceration. Brooks v. Berg, No. 00-CV-1433,
2003 U.S. Dist Lexis 11911 (N.D.N.Y.). [2003 JB Oct]
Prisoner suffering from gender identity disorder
stated a claim for inadequate medical treatment based on alleged indifference
to their need for protection against self-mutilation following the withdrawal
of hormone therapy. De'Lonta v. Angelone, #01-8020, 330 F.3d 630 (4th Cir.
2003). [2003 JB Sep]
U.S. magistrate judge's prior participation in
settlement discussions in the case did not, by itself, require his recusal
under 28 U.S.C. Sec. 455(b)(1) for "personal knowledge of disputed
evidentiary facts concerning the proceeding." Magistrate judge does,
however, recuse himself because a settlement was previously reached, and the
current litigation required, among other things, resolution of a dispute
between the parties as to the meaning of the settlement agreement, for which it
was not beyond the realm of possibility that the magistrate judge could be
called as a witness by either side and he was also concerned about the possible
damage to the "appearance of impartiality." The case concerned a
pre-operative transsexual prisoner's claim against the federal Bureau of
Prisons seeking estrogen therapy. Black v. Kendig, 227 F. Supp. 2d 153 (D.D.C.
2002). [N/R]
Correctional officer and protective custody unit
manager could be liable for failing to protect biologically male prisoner
suffering from gender identity disorder, and appearing to be a woman, from
physical assault from another inmate in an all-male prison. Doe v. Bowles, No.
00-3159, 254 F.3d 617 (6th Cir. 2001). [2002 JB Feb]
Ninth Circuit holds that there were triable
issues as to whether hormone therapy was denied a transsexual inmate on the
basis of an individualized medical evaluation or as a result of a blanket rule,
which constituted deliberate indifference to the inmate's medical needs. Allard
v. Gomez, #00-16947, 9 Fed. Appx. 793, 2001 U.S. App. Lexis 13321 (9th Cir.
2001).
Eighth Circuit rejects an inmate's suit to
require the state to pay for sexual reassignment surgery; the state's Medicaid
program covered psychotherapy and medication for his gender identity disorder
but did not have to pay for the surgery. Smith v. Rasmussen, #99-3262, 249 F.3d
755, 2001 U.S. App. Lexis 8467 (8th Cir. 2001).
Second Circuit dismisses a pro se action by a
transsexual pre-trial detainee, claiming that he was denied estrogen treatments
while incarcerated. Cuoco v. Moritsugu, #98-2954, 222 F.3d 99, 2000 U.S. App.
Lexis 18376 (2d Cir. 2000).
The Fourth Circuit upholds a trial court's denied
of his request for a preliminary injunction requiring Virginia prison officials
to continue receiving hormone injections, that the inmate had received prior to
entering prison. The court concluded that the district court properly applied
the balancing of hardship analysis and did not abuse its discretion in denying
the requested relief. McCulley v. Angelone, #00-6211 #00-6438, 2000 U.S. App.
Lexis 14667 (4th Cir. 2000).
279:44 Correctional officers could be liable for
assaults on male-to-female transsexual prisoner allegedly caused by the
disclosure of prisoner's condition to other inmates; defendants were not
entitled to qualified immunity on failure to protect claim, but one defendant
did have qualified immunity on privacy/confidentiality of medical records
claim. Powell v. Schriver, No. 97-2851, 175 F.3d 107 (2nd Cir. 1999).
281:77 Federal Bureau of Prisons policy requiring
that a transsexual inmate provide documentation of hormone therapy before
incarceration in order to receive hormone therapy in prison did not violate
equal protection; policy was rationally related to a legitimate government
interest in protecting inmate health and safety. Farmer v. Hawk- Sawyer, 69 F.
Supp. 2d 120 (D.D.C. 1999).
272:126 Federal jury awards $750,000 in damages
to male-to-female transsexual placed with male prisoners after her arrest and
then strip searched to determine her gender. Schneider v. San Francisco, No.
97-2203, U.S. Dist. Ct. (N.D. Calif. April 16, 1999), reported in The National
Law Journal, p. B5 (May 3, 1999).
272:124 Federal Bureau of Prisons Medical
Director not liable for alleged failure to provide treatment to transsexual
prisoner; medical director's job did not require him to diagnose individual
patients or prescribe treatment and he was entitled to qualified immunity for
properly relying on local medical personnel to provide appropriate treatment.
Farmer v. Moritsugu, #98-5087, 163 F.3d 610 (D.C. Cir. 1998).
[N/R] Bureau of Prisons did not violate Eighth
Amendment rights of transsexual prisoner by refusing to adopt a new policy when
there already was an existing policy allowing for medical treatment in some
circumstances. Farmer v. Hawk, 991 F.Supp. 19 (D.D.C. 1998).
243:45 Refusal of prison officials to agree to
self-proclaimed male transsexual prisoner's requests to wear female clothes and
makeup, or to have hormone therapy and sex-change surgery, did not constitute
deliberate indifference to a serious medical problem when prisoner consistently
refused, over a 20 year period, to cooperate with psychological or psychiatric
evaluation attempts which were repeatedly made. Long v. Nix, 86 F.3d 761 (8th
Cir. 1996).
256:61 Transsexual prisoner has no constitutional
right to prison-provided hormonal and surgical treatment; denial of such
treatment is not "cruel and unusual" when its expense would make it
unavailable to the person of "average wealth" even if not in prison.
Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997).
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