One Small Step for Wisconsin, One Giant Leap to the Back Burner for the Other Forty-Nine


Author: Pamela Newell 

 

Biography: Professor Pamela Newell is a legal writing scholar. She is known for her legal appeals on behalf of children.  She is currently working on a non-criminal way to approach domestic violence matters. She received her B.A. in English from the UNC at Chapel Hill in 1997 and her J.D. from UNC School of Law in 2000. She received her LL.M. in Law and Government from American University in 2009. After law school, Professor Newell clerked at the NC Supreme Court with Former Chief Justice Henry E. Frye. She is now in private practice.

 

Abstract: Prisons that have policies refusing to treat inmates suffering from gender dysphoria violate the inmates’ Eighth and Fourteenth Amendments rights against cruel and unusual punishment and discrimination. Examples of cruel and unusual punishment include prison officials’ failure to continue cancer treatment for inmates, deciding to offer cheaper and less effective treatments, and refusing medical treatment altogether to inmates with medical needs.
To keep taxpayers from paying for sex reassignment surgeries for inmates with gender dysphoria, Wisconsin passed the Inmate Sex-Change Prevention Act. The Act prevented prisoners with gender dysphoria from receiving certain medical treatment, up to and including sex reassignment surgeries. Three Wisconsin inmates sued, stating that the Act was unconstitutional. The federal district court agreed with the inmates. Wisconsin appealed to the Seventh Circuit Court of Appeals, which also decided that the Act was unconstitutional.
Federal courts across the nation disagree about how to treat cases regarding inmates diagnosed with gender dysphoria. Usually, when federal courts (which are regional) are in disagreement, also called a “split in authority,” the United States Supreme Court (which all courts must follow) will hear a case to decide the issue once and for all, resolving the split. However, when Wisconsin petitioned to be heard by the U.S. Supreme Court, the Court refused. The Supreme Court passed on a perfect opportunity to resolve the split in authority and decree that no state shall withhold transgender treatment to prisoners pursuant to the Eighth and Fourteenth Amendments.

In 2005, the Wisconsin state legislature passed the Sex Change Prevention Act, a law that prevented all hormone treatments and sex-change surgeries in the state of Wisconsin. Multiple inmates sued, challenging the Act in Fields v. Smith. A United States district court found in favor of the transgender inmates, and the Seventh Circuit Court of Appeals upheld the district court’s decision. The State of Wisconsin appealed to the United States Supreme Court. However, the Court decided not to hear the case in 2012, which allowed the circuit court’s decision to stand.

Although this is a victory for Wisconsin state prisoners, the law does not extend beyond Wisconsin’s borders. The United States Supreme Court should have accepted the case and decreed that anti-transgender laws violate the United States Constitution, particularly in the wake of so many prisoners in other states suing for treatment and the split among the circuit courts about specific state policies that prevent treating gender dysphoria (GD).

 

Definition of Transgender and Gender Dysphoria

The Diagnostic and Statistical Manual of Mental Disorders (DSM), Fourth Edition (DSM-IV) was published in 1994, followed in 2000 by the DSM-IV, Text Revision, or DSM-IV-TR. It was in use during the Fields v. Smith case. These editions include transgender identity and GID as disorders.

Transgender “is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth.” Gender dysphoria (GD), or gender identity disorder (GID) is a “mental disorder [whereby individuals] are uncomfortable with their apparent or assigned gender and demonstrate persistent identification with the opposite sex.”

There are four components of GID: (1) evidence of a strong and persistent cross-gender identification, which is the desire to be, or the insistence that one is of the other sex; (2) evidence of persistent discomfort with one’s assigned sex or a sense of inappropriateness in the gender role of that sex; (3) the individual must not have a concurrent physical intersex condition (e.g., androgen insensitivity syndrome or congenital adrenal hyperplasia); and (4) evidence of clinically significant distress or impairment in social, occupational, or other important areas of functioning. Furthermore, the cross-gender identification should not merely be a wish for any perceived cultural advantages of being the other sex. Instead, GID adults are preoccupied with their desire to live as a member of the other sex.

People suffering from GD were considered disabled under the DSM-IV. They tend to be socially isolated, which causes low self-esteem. Adults regularly experience anxiety and depression. The disability is so strong that gender dysphorics are preoccupied only with pursuits that will lessen their gender distress. For example, they frequently immerse themselves in their appearance. There are no physical abnormalities.

Based on evaluations at adult gender clinics, those with GD tend to be male, although the disorder is present in females too. Furthermore, some males will attempt or successfully perform castration or penectomy upon themselves. Additionally, some males may work as prostitutes, attempt suicide, and engage in substance abuse. Females experiencing GD tend not to be as socially ostracized than men.

 

Background for Inmate Rights

Eighth Amendment

The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. Most of the case law regarding the Eighth Amendment is about excessive penalties and capital punishment; however, the Eighth Amendment also requires that the government must provide for the basic necessities of life. For example, a federal court stated that “a state must provide within such living space reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities (i.e., hot and cold water, light, heat, plumbing).”  Within the demand that prisons offer sanitary living conditions to inmates, a prison must also provide them with medical care. A failure to provide medical treatment, when indicating a “deliberate indifference to serious medical needs of prisoners,” results in “the ‘unnecessary and wanton infliction of pain’ … proscribed by the Eighth Amendment.”   

Accordingly, there are two parts to the test of whether an alleged deprivation is cruel and unusual punishment. The first part of the test is objective: was the deprivation sufficiently serious? The second part is subjective: did the prison officials act with sufficiently culpable states of mind?

 

Serious medical need

The first element of an Eight Amendment violation, “serious medical need,” is defined as a need that has been diagnosed by physicians as mandating treatment, or one that is so obvious that even a lay person would easily recognize necessity for a doctor’s attention. The Eighth Amendment’s ban against cruel and unusual punishment obliges prison authorities to provide medical care for prisoners’ serious medical needs. Additionally, a “serious medical need,” for purposes of an Eighth Amendment claim, occurs where denial or delay of medical assistance causes an inmate to suffer a life-long handicap or permanent loss. The Eighth Amendment protection against deliberate indifference to prison health problems extends to conditions that threaten to cause future health problems, as well as current serious health problems. It is evident when physical ailments are serious. For instance, an inmate with a broken limb would need immediate medical aid. Likewise, it is a serious condition where a physician refuses to remove a suture wire from an inmate’s abdomen after hernia surgery.

Another example of a serious medical need can be found in Perez v. Oakland County, where an inmate suffered from schizophrenia that made him suicidal. Perez attempted suicide in his cell in October 2002, only a month or so before his successful suicide in November 2002. “Th[e] October attempt prompted the caseworker/counselor to place Perez in an observation cell under an active suicide watch.” During this time, the prison psychiatrist failed to continue to treat the inmate for his schizophrenia. A federal court reversed the trial court’s decision that favored of the prison and sent the case back to trial because the jury needed to decide whether Perez suffered from a serious medical need.

On the contrary, in Desroche v. Strain, the inmate suffered from attention-deficit hyperactivity disorder (ADHD). The federal court held that his ADHD was not a serious condition and, thus, any denial of medical care for such condition did not violate his Eighth Amendment rights. Further, courts have discussed other examples of injuries that do not qualify as a serious medical need, including (a) when an inmate failed to complain of broken fingers for two days; (b) swollen, bleeding wrists from too-tight handcuffs; and (c) where an inmate had full range of motion in his shoulder despite continuing pain from an old injury. In none of these cases did the prisoner show that denial or delay of medical assistance would cause a life-long handicap or permanent loss.

 

Deliberate indifference

The second elements in an Eighth Amendment violation is deliberately indifference to the prisoner’s medical need(s). The test is whether the prison official acted with wanton disregard for the inmate’s rights. Obduracy or wantonness, not inadvertence or good faith error, characterizes prison officials’ deliberate indifference to prisoner’s constitutionally protected needs.

For example, in Richardson v. Penfold, a prisoner was attacked and sexually assaulted after reporting that other inmates were threatening him. The prisoner told the prison officials about being raped but did not reveal the names of the perpetrators because he was afraid of retaliation. He asked simply to be left inside his cell at all times. Prison officials did not respond to the inmate’s request. Subsequently, the inmate was raped multiple times. At trial, the inmate argued that prison officials acted with deliberate indifference by failing to protect him from the attack. The trial court decided in favor of the prison officials. On appeal, the court reversed the decision, reasoning that “  ‘[a] defendant acts recklessly when he disregards a substantial risk of danger that either is known to him or would be apparent to a reasonable person in his position.’ ”

Likewise, in U.S. ex rel. Miller v. Twomey, a different appellate court noted that “[the Eighth] amendment may be violated either by the intentional infliction of punishment which is cruel or by such callous indifference to the predictable consequences of substandard prison conditions that an official intent to inflict unwarranted harm may be inferred.”

Unfortunately, inmates with gender dysphoria are treated differently from other inmates with recognized mental health issues because prison officials do not understand their condition and dismiss gender dysphoric inmates’ requests as passing whims.

 

Fourteenth Amendment

In Farmer v. Hawk-Sawyers, a federal district court addressed the issue of whether prison officials violated Farmer’s Fourteenth Amendment rights. The Fourteenth Amendment protects citizens from discrimination based on gender. Farmer was a pre-operative male-to-female transsexual. Farmer claimed that the Bureau of Prisons (BOP) was discriminating in its treatment of transsexuals and had failed to treat her GD.

The BOP had two policies regarding medical treatment of inmates: (a) prison officials would give inmates “medically mandatory” or “presently medically necessary treatment, but (b) prison officials would maintain a transsexual inmate at the level of hormone therapy existing upon admission. Inmates suffering from other mental disorders, such as schizophrenia, depression, or manic-depression, need not submit documentation of prior treatment in order to receive treatment for their illnesses while incarcerated. Thus, there is an extra burden on GD inmates to find and submit documentation.

The BOP had not provided Farmer with hormone therapy as treatment for her GD, despite her assertion that she was prescribed and had been undergoing hormone therapy for several years prior to incarceration. Even if Farmer met the qualification to receive the hormone therapy, the BOP would still not administer hormones to Farmer because she had AIDS, and they were concerned about complications and risks to her health that may arise.

Accordingly, the court decided that even though Farmer had correctly articulated a Fourteenth Amendment argument, she was not guaranteed any particular treatment since the BOP had given a reasonable excuse to deny the treatment.

 

Illustrative GD Cases

Federal District Court Cases where Prisons had Policies Against Treating GD

 

The “Standards of Care” set forth by the World Professional Association for Transgender Health give guidelines for treating GID. The guidelines state that the following are appropriate ways to diagnose GID: “Initiation of hormone therapy requires that the patient has: (1) persistent, well-documented gender dysphoria; (2) the capacity to make informed treatment decisions; (3) attained the age of majority; and (4) has reasonable control over any medical or mental health concerns.” As to the proper means of treatment, “[t]he vast majority of follow-up studies have shown an undeniable beneficial effect of sex reassignment surgery on postoperative outcomes such as subjective well-being, cosmesis, and sexual function.”

In Brown v. Coombe, an inmate filed a lawsuit, claiming that prison officials exhibited deliberate indifference to her GID. Although, the inmate told prison officials that she believed she suffered from GID, the court decided that the inmate did not have a case because she had never been diagnosed with GID.

In Soneeya v. Spencer, a prisoner sued prison officials for infringing upon her Eighth and Fourteenth Amendments rights. The inmate was diagnosed with GID in 1990; her records showed that she had a history of self-mutilation, including an attempt to castrate herself, and suicidal tendencies.

However, in 2010, the Department of Corrections (DOC) adopted a policy that forbade laser hair removal, cosmetic surgery, and sex reassignment surgery as treatments for GD inmates, no matter the circumstances. A federal court noted that the blanket ban on certain types of treatment, without consideration of the medical requirements of individual inmates, is exactly the type of policy that was found to violate Eighth Amendment standards in other federal cases. Even though the Department of Corrections offered to treat resulting depression or anxiety, “treating the symptoms is not a substitute for treating Soneeya’s underlying condition.” The DOC could not claim that Soneeya was receiving adequate treatment for her serious medical needs because it had not performed an individual medical evaluation aimed solely at determining the appropriate treatment for her GID under community standards of care.

 

Split in the Circuit Courts of Appeal Regarding the Appropriate Treatment(S)/Policies for GD Sufferers

 

The federal circuit courts of appeal do not have a universal way of dealing with GD/GID cases. This causes a split, meaning that federal circuit courts, which are all on the same appellate level, decide these cases in a non-uniform way. This means that an inmate suing for treatment in one federal district may receive a court ruling very different from the exact claim of an inmate in another district, thereby causing confusion in the law. The U.S. Supreme Court often resolves such “circuit splits” by providing a uniform law to be applied across all circuit courts. This is why the U.S. Supreme Court should have agreed to hear arguments in Fields v. Smith, to resolve the inconsistencies in the law regarding prison officials treating inmates for GD/GID.

First Circuit

In Battista v. Clarke, a prisoner with GD requested hormone therapy, female garb, and female accessories. The prison’s health care provider “offered strong support for the GID diagnosis, [and] asserted that harm could easily occur without adequate treatment, and recommended hormone therapy [for Battista] as medically necessary.” Despite the recommendation, prison officials were concerned with Battista’s safety and decided that a feminine appearance would put him at risk for sexual assault. Eventually, after doctors had been prescribing hormones for Battista, prison officials administered the hormones once but caused delays in administering additional doses. At trial, the district court required the prison officials to give Battista hormone therapy due to their deliberate indifference to her GID. The First Circuit Court of Appeals affirmed this decision and determined that although the prison officials correctly took Battista’s safety into consideration, the unnecessary delays in treating Battista sufficed to show deliberate indifference.

 

Second Circuit

In D’villa v. Schriver, D’Villa sued prison officials because a corrections officer told other inmates that D’Villa was HIV-positive. As a result, other prisoners harassed and attacked D’Villa. The trial court pointed out that D’Villa had not shown an injury harmful enough to be “sufficiently serious” to fall under the Eighth Amendment’s “cruel and unusual” umbrella. The Second Circuits set the trial court’s decision aside, stating that the trial court had acted arbitrarily and did not give a real reason as to why the harm was not serious enough.

 

Third Circuit

In Wolfe v. Horne, inmate Wolfe sued after the prison medical director abruptly discontinued the hormones she was taking prior to her incarceration. Even after a psychiatrist recommended the hormones be reinstated, the medical director still refused to treat Wolfe. As a result, all hormonal effects dissolved and Wolfe suffered severe withdrawal symptoms, including migraines, nausea, cramps, hot flashes, and hair loss. As Wolfe reacquired masculine physical features, she became suicidal.

The Third Circuit stated that inmates were only entitled to “some” kind of medical attention and noted that some courts have rejected demands for hormonal therapy by transgender people who did not take hormones outside of the prison setting. However, since Wolfe had a private doctor prescribe the hormones before she was incarcerated, circuit court allowed the lawsuit to progress.

 

Fourth Circuit

In De’lonta v. Johnson, the inmate sued the prison for failing to provide GID treatment. De’Lonta had been diagnosed with GID and was a pre-operative transsexual prior to being incarcerated. While in prison, De’Lonta attempted to castrate herself in efforts to perform her own sex reassignment surgery because the GD distress was so overwhelming. However, prison officials offered her no real treatment because of the Virginia DOC’s policy that prevents medical staff for treating gender dysphoria. Her only treatment was a continuance of her hormone therapy and counselling, which only heightened her urge for castration. Her symptoms persisted, and in 2010, she had to be hospitalized after another self-castration attempt. De’Lonta asked to stop seeing her counselor and repeatedly requested sex reassignment surgery pursuant to the GD treatment guidelines established by the “Benjamin Standards of Care.” The standards call for one year of hormone therapy and as the opposite sex and then sex reassignment surgery for those with serious symptoms. Nonetheless, the prison denied the treatment. She was never evaluated by a specialist concerning sex reassignment surgery.

De’Lonta sued, claiming that the prison consistently denied her appropriate treatment. The federal district court determined that De’Lonta had not been approved for the surgery and threw out her Eighth Amendment claim. On appeal, the prison argued that De’Lonta was just complaining about her preferred choice of treatment, and the surgery was not approved, although the prison conceded that De’Lonta suffered from a serious medical need. The Fourth Circuit decided that De’Lonta had proved a deliberate indifference to her serious medical need for the following reasons: (1) the defendants were always aware of De’Lonta’s GD and its effects on her; (2) the Standards of Care include sex-change surgery as an option to treat GD; and (3) the medical staff refused to evaluate her about the suitability of surgery. The court concluded that it did not matter that the prison provided other treatment to De’Lonta. In fact, it gave this analogy:

Imagine that prison officials prescribe a painkiller to an inmate who has suffered a serious injury from a fall, but that the inmate’s symptoms, despite the medication, persist to the point that he now, by all objective measure, requires evaluation for surgery. Would prison officials then be free to deny him consideration for surgery, immunized from constitutional suit by the fact they were giving him a painkiller? We think not.

 

The court ordered that De’Lonta’s case move forward.

 

Fifth Circuit

In Praylor v. Texas Dept. of Criminal Justice, prison officials refused to provide Praylor with hormone treatment because of its policy that prevents medical staff from performing certain treatments for gender dysphorics. Praylor sued so that the prison would provide her with “hormone therapy and brassieres.” The medical director testified that Praylor did not qualify for hormone therapy because of: (a) the length of her term; (b) the prison’s inability to perform sex change operation; (c) lack of medical necessity for the hormone; and (d) disruption to the all-male prison. The Fifth Circuit admitted that it had never reviewed this type of case and looked to other circuits, stating that “[o]ther circuits that have considered the issue have concluded that declining to provide a transsexual with hormone treatment does not amount to acting with deliberate indifference to a serious medical need.” The court then listed cases in only three other circuits where the plaintiff was not able to prove serious medical need and/or deliberate indifference.

The Fifth Circuit erred in Praylor by failing to consider that there are just as many cases in circuits that show plaintiff able to prove serious medical need and/or deliberate indifference. The Fifth Circuit also failed to address the policy to see if it treated transsexuals differently. Furthermore, the Fifth Circuit did not even address “serious medical need;” it just made assumptions about this first element.

 

Sixth Circuit

In Titlow v. Correctional Medical Services, Inc., the plaintiff was biologically male, but considered herself a woman. She had been diagnosed with GID prior to her incarceration and had received silicon injections in her breasts to make them bigger. During her incarceration, several physicians recommended that Titlow receive a surgical consultation, but the Michigan DOC denied the consultations.

Under the medical claims review policy, only the prison physician can appeal a treatment decision from the Correctional Medical Services. Titlow was treated by three doctors, and the Committee considered Titlow’s request for surgery three times. It approved her request only on the third appeal. The court held that the Committee denied Titlow’s requests twice with no reason provided. Accordingly, the Sixth Circuit Court of Appeals held that the medical director interfered with a constitutional right and knew of Titlow’s problems, but did not do anything about them.

 

Seventh Circuit

In Fields v. Smith, the subject of this article, the Seventh Circuit Courts of Appeals reviewed the Inmate Sex Change Prevention Act, a Wisconsin statute that prohibited medical treatment for GD inmates, including hormone therapy and sex-change surgeries. The district court invalidated the statute because it was unconstitutional on its face based on the Eighth and Fourteenth Amendments.

On appeal, the Seventh Circuit Court of Appeals noted that an argument about cost is no longer effective for prisons because prisons spend so much money on other ailments and so little on GD treatment. Further, the defendants did not produce any evidence that another treatment could be an adequate replacement for hormone therapy. Plaintiffs’ expert witnesses repeatedly made the point that, for certain patients with GD, hormone therapy is the only treatment that reduces dysphoria and can prevent the severe emotional and physical harms associated with it. The appellate court held that “[h]aving determined that the district court properly held that [the] Act [] violates the Eighth Amendment, both on its face and as applied to plaintiffs, we need not address the district court’s alternate holding that the law violates the Equal Protection Clause.”

 

Eighth Circuit

In White v. Farrier, an inmate, White, suffered from GD and “requested electrolysis, cosmetic surgery, hormone therapy, a sex change operation, female clothes and cosmetics, and a transfer to a women’s prison.” She wrote several letters to the warden indicating her extreme distress with her GD. The warden responded denying the request. Prison officials referred White’s request to a psychiatrist and medical consultant, who decided that White did not need any specific medical treatment. As a result, White went on hunger strikes, threatened to commit suicide, and attempted to castrate herself several times. In response, prison officials provided medical care for his physical injuries and placed him in protective custody or administrative confinement.

White brought an action under the Eighth Amendment and the federal district court determined that the prison did not provide White with any medical treatment when a minimal treatment plan could have been put in place. The court noted that the treatment plan might not preclude hormone therapy. On appeal, the Eighth Circuit Court of Appeals stated that transsexualism is a serious medical need and that the prison officials did not have the expertise to diagnose White or decide upon treatment.

Eight years later, in Long v. Nix, the Eighth Circuit reviewed another case where the inmate suffered from GD. Long arrived at the prison in female attire, but prison officials would not allow her to wear female clothes until after Long went on a hunger strike. As a result, prison officials allowed her to wear make-up and female attire until 1981, when a member of the Iowa Parole Board complained. Long repeatedly requested hormones and a sex-change operation; the prison refused. A psychologist evaluated Long and found that Long’s cross-dressing had developed into intense gender dysphoria. He suggested that Long needed treatment for depression and anxiety, but he did not recommend hormone therapy or surgery because he opined that Long did not meet the criteria.

Long sued, alleging that the defendants violated her Eighth Amendment right by refusing to provide appropriate living conditions and medical treatment. At trial, the district court decided that Long’s Eighth Amendment rights were not violated because her GD did not constitute a serious medical need for which treatment was mandated and the defendants were not deliberately indifferent to her needs. The Eighth Circuit upheld the district court’s decision based on the fact that the issue was merely a dispute over type of treatment that did not rise to the level of cruel and unusual punishment.

These two cases illustrate that even in the Eighth Circuit alone, there is a split as to whether GD is a serious medical need. It was assumed to be one in White, but not discussed thoroughly in Long.

 

Ninth Circuit

In Allard v. Gomez, Allard sued prison officials for deliberate indifference to her GD in violation of the Eighth Amendment. Allard was incarcerated at the California Medical Facility, which had a department-wide policy that denied therapy for GD, regardless of the medical recommendations for treatment of any given individual.

The state referred Allard to a psychologist experienced in the area of GD, who conducted a thorough evaluation over a period of months. He recommended that Allard receive hormone therapy. Yet, in Allard’s repeated appeals seeking hormone therapy, the prison officials based their denials on a general policy of approving hormonal treatment only on the basis of medical need, ruling that Allard’s GD could not qualify as a medical need. The district court determined that there was no dispute that GD is a serious medical need. The only issue before the court was whether prison officials acted with deliberate indifference. The Ninth Circuit Court of Appeals disagreed with the district court and stated that there was still the issue of whether hormone therapy was denied on the basis of an individualized medical evaluation or as a result of a blanket rule and the issue should be determined by a jury.

Tenth Circuit

In Supre v. Ricketts, Supre, a biologically male inmate with GD, asked prison officials about the types of treatment available to her. She requested female hormones, but the request was denied. Prison officials entered her into a treatment program and were advised of the dangers of hormone treatment by psychologists and psychiatrists. Nonetheless, after continued self-mutilations, Supre’s testicles became severely injured and had to be surgically removed by a physician at the Colorado State Hospital in 1981. She was evaluated by several doctors, but the prison physician overruled recommendations of estrogen therapy and instead ordered testosterone replacement therapy and counselling. Supre had gone back to self-mutilation of her genitals. Prison officials eventually paroled Supre early because she was becoming so difficult.

This case is an example of the fact that prisons are not ready for gender dysphorics. All they know is to fight strongly against hormones and sex reassignment surgery, or to parole people so that they do not have to deal with the issue, through some “policy,” without understanding the reasons.

 

Eleventh Circuit

In Kothmann v. Rosario, Kothmann sued the chief health officer at a female prison operated by the Florida DOC for violating his Eighth Amendment rights. Six years before becoming incarcerated, Kothmann was diagnosed with GID. His doctor prescribed hormone therapy, a hysterectomy, an oophorectomy (removal of ovaries), and a double mastectomy, as part of Kothmann’s medical treatment for GID. When Kothmann arrived at the penitentiary, he advised the medical staff of his GD diagnosis and continuing sex reassignment therapy. However, the defendant repeatedly denied his requests for hormone treatment and did not treat his GD at all. The defendant had the authority to grant or deny medical care, to approve referral and consultation requests, and the duty to supervise other medical staff and ensure the provision of adequate medical care to inmates. The prison also refused to allow Kothmann to see a specialist.

The defendant did not allow the GD treatment because: (a) Kothmann’s prison medical records only showed that Kothmann had received some outpatient mental health counseling, but did not show that it was for GD; (b) Kothmann did not arrive at the prison with a prescription for testosterone; (c) Kothmann was not diagnosed with GD while at prison; (d) GD was not a life threatening condition; and (e) Kothmann did not present with gender dysphoria during his mental health and psychiatric evaluations while incarcerated.

The district court decided in favor of Kothmann. On appeal, the defendant argued that no law clearly establishes that inmates have a right to receive hormone therapy as treatment for GD, and the Florida DOC had a policy that specifically prevented doctors from prescribing hormones to inmates. The Eleventh Circuit Court of Appeals agreed that although an inmate does not have a right to any particular type of medical treatment, the prison must provide constitutionally adequate medical treatment. The court decided that the defendant was deliberately indifferent to a serious medical need because (1) in the medical community, hormone therapy is the medically recognized, accepted, and appropriate treatment for GD; (2) the defendant knew of Kothmann’s diagnosis, his hormone treatment history, and his medical need for continued hormone treatment; and (3) the defendant knowingly refused to provide Kothmann with medically necessary hormone treatment.

 

D.C. Circuit

In Farmer v. Moritsugu, The D.C. Circuit Court of Appeals faced the question of whether the medical director of the BOP can be held personally liable under the Eighth Amendment for injuries a GD inmate suffered. Farmer is a pre-operative male-to-female transgender inmate who was in and out of jail. The BOP had a separate policy regarding treatment for inmates with GD, which provided maintenance at the level of change when the inmate was admitted. The defendant (the medical director) responded that Farmer had received counseling, but belittled her transsexualism as just a general emotional state that did not present a specific mental health problem that he could isolate for treatment. The circuit court decided that the defendant was not the correct person to address Farmer’s treatment requests and decided that Farmer failed to establish an Eighth Amendment violation, even though Farmer begged for treatment for her GD.

The circuit court did not examine the policy itself. Even if Farmer and other plaintiffs in different jurisdictions never challenged the unfair policy on treating inmates with GD, some court should have considered the question of these policies. Because the courts have not resolved this and there is a split among the circuit courts regarding treatment for transgender inmates, the U.S. Supreme Court should have stepped in to mend the split after the Wisconsin Inmate Sex-Change Act was struck down.

 

Wisconsin’s Inmate Sex-Change Prevention Act

Konitzer’s Prison History

The Wisconsin Sex Change Prevention Act arose out of the Konitzer v. Frank decision. In April 1982, “Donna” Konitzer, a male-to-female transgender inmate, was first incarcerated in the Wisconsin DOC. She was released three separate times with her most recent period of incarceration beginning in December 1994. In 1988, she told a prison psychiatrist that she believed she was transgender.  When she was out of prison on a release, she began receiving treatment from a counseling center, which diagnosed her with GID, enrolled in group therapy, and was referred for hormone therapy. Konitzer initiated electrolysis, dressed as a woman, and only dealt with people who supported her belief that she was a woman.

However, after taking hormones for three months, Konitzer became addicted to cocaine and stopped her treatment. Her female development ended. While still addicted to cocaine, she committed several crimes, which led to her arrest in June 1994. Konitzer was transferred to several prisons. In one prison, she used a razor blade to attempt a castration, resulting in one exposed testicle and excessive blood loss. She also tried to disfigure her scrotum with nail clippers.

The DOC diagnosed Konitzer with GID in December 1999 and prescribed hormone therapy. The disconnect between Konitzer’s male body and her female identity caused her a great deal of stress, and as a result, she was also diagnosed with post-traumatic stress disorder. To relieve this stress, Konitzer tried her best to live as a female while incarcerated.

When Konitzer’s current period of incarceration began, she did not have any physical female development. Nonetheless, her GD did not subside, and her distress worsened because she was living as a male. Konitzer attempted to obtain prescribed female hormones, but a nurse denied her request. In November 1999, Konitzer wrote defendant Sharon Zunker, then Director of the Bureau of Health Services, requesting hormone therapy and an orchiectomy (removal of both testicles). Again, her request was denied. Nonetheless, Dr. Metodio Reyes requested authorization to continue Konitzer’s hormone therapy. The following day, WDOC Medical Director George Daley approved the request.

While at a different prison, Konitzer sought the help of Dr. Gerald Wellens in getting makeup and female undergarments. The warden, Daniel Bertrand, did not allow Dr. Wellens to provide the items because, “‘if you let one inmate wear a bra and panties, then they’ll all want to wear a bra and panties.’ ” Despite this, Konitzer found a way to make cosmetics and obtain female undergarments.

In early January 2001, Konitzer attempted suicide by hanging because she was depressed over a prison guard sexual assaulting her and because she was not receiving treatment for her GD. Also in January 2001, “Konitzer cut skin away from his scrotum and tied a cord around her testes to cut off the blood flow because she hated living as a male.” Konitzer was taken to a hospital, where surgeons removed her left testicle and portions of the right testicle. Konitzer sued because the doctors would not remove the entire right testicle. In September 2002, she was again moved to another prison, the Wisconsin Resource Center (WRC), because she continued to disfigure her genitals. One of the defendants, Byran Bartow, was the WRC director and managed policy-making and signed all of the policies and procedures, including ones for medical treatment. The inmates at WRC were all male and had mental health issues. However, there are no set diagnoses for WDOC to send inmates to WRC. When a prisoner is sent to WRC, the staff at WRC performs a medication review, medical assessment, and psychiatric evaluations. The staff formulates a plan for the prisoner and places them in a program or series of programs based on the intake.

When Konitzer was transferred to the WRC, she had “three sets of women’s underwear, three bras, one nightgown, and six sets of men’s bikini style underwear. The WRC confiscated the items. Konitzer filed an offender complaint, stating that a prison official had confiscated the six sets of men’s bikini underwear as female clothing and that they should be returned. The staff returned the underwear to Konitzer.

 

Konitzer v. Frank

In 2003, Konitzer sued the Wisconsin DOC for violating her Eighth Amendment rights by failing to administer the proper treatment for GD for herself and all other Wisconsin prisoners.

Konitzer absolutely did not want to live life as a male and attempted suicide several more times by electrocution and by crushing her hyoid bone in her neck with a nylon cord. On May 15, 2006, in an effort to help herself with her GD symptoms, Konitzer attempted to castrate her remaining testes. She was rushed to the hospital, and doctors had to remove the remaining testicle. Since May 17, 2006, she has lived in a WRC cell containing a private toilet. “A window shutter over the door prevents other inmates from viewing Konitzer in compromising situations, such as when she uses the toilet, but staff are still able to see her during rounds.” Since this change was implemented, inmates have not insulted Konitzer about her living situation. Moreover, she has stopped being assaulted.

Contemporaneously, the WRC medical staff requested that Konitzer be referred to a specialist for recommendations on her treatment. In September 2006, Dr. Roger Kulstad recommended that Konitzer use (1) Vaniqa cream, a hair growth retardant, for a hair follicle infection on her face; (2) Rogaine; and (3) a bra, for adequate breast support.

Meanwhile, Director Bartow, leader of the WRC, decided that the WRC would not treat any male inmate as a female and especially would not do so in Konitzer’s case due to WDOC policy. “Regarding the prospect of treating Konitzer as a female, Bartow maintained that “ ’if our team was convinced and had a convincing argument that is what really needed to be done for his case, I would arrange to have him go somewhere else, by whatever means it took, because we don’t do that here.’ ” Yet, Konitzer continued to wear makeup and feminize her appearance at the WRC, despite the policy.

Konitzer has been seen by many specialists. Collectively, they have diagnosed her with: GD and an assortment of other conditions including post-traumatic stress disorder and antisocial disorder.

All of the doctors suggested similar, but vaguely different treatments. Konitzer hired Dr. Frederic Ettner, who recommended that she receive the following: (1) complete physical examination and laboratory testing including hormonal assessment; (2) HRT (hormone replacement therapy), specifically non-conjugated estrogens, i.e. estradiol valerate (bio-identical) in the form of patch, gel, or cream; (3) anti-androgen finasteride to block exogenous androgens and stimulate scalp hair and decrease body hair; (4) consistent follow-up every three months; and (5) coordination with psychiatrists and psychological recommendations.

Dr. F. Ettner, Konitzer’s other doctor, stated that “refusing to provide Konitzer with the real-life experience puts [her] at risk for castration and self-harm, and that the frustration of living with an untreated gender condition always has disastrous consequences.” She further testified:

Standard of care does not specify a list of particular ingredients that will create the image that Donna Down Konitzer needs to establish a level of well-being. It does, however, provide a guideline, and in that guideline, the thrust of it is to help these people consolidate an identity that is ego-syntonic and causes them to feel comfortable and safe in this world, therefore, the real-life experience, so they get practice in living 24 hours a day, seven days a week in their preferred gender.

 

The doctors still disagreed over whether Konitzer was receiving the standard level of medical care needed. In the lawsuit, the defendants argued that there was no evidence that Konitzer had a serious medical need to which they were deliberately indifferent. The defendants also argued that the district court should not require them to allow: (a) only female officers to do strip searches on Konitzer; (b) Konitzer to use makeup and wear female undergarments; (c) Konitzer to be addressed by her female name; and (d) Konitzer to use of hair removal/growth products.

The U.S. District Court in the Eastern District of Wisconsin discussed similar cases in other circuits and noted that there would be a different result in a case where there had been a total failure to provide any kind of medical attention at all.

The district court, although part of the Seventh Circuit, agreed with the Tenth Circuit that a federal court should defer to the informed judgment of prison officials as to the appropriate form of medical treatment. However, the district court admitted that no such informed judgment had been made with Konitzer. The district court determined that Konitzer was entitled to some kind of medical care, although the court refused to order a specific type of treatment.

The defendants appealed to the Seven Circuit Court of Appeals, which looked at almost every similar case in the circuit courts for guidance. The Seventh Circuit stated that Konitzer’s GD was a serious medical need, which was evidenced by her disfiguring her genitals and attempting suicide. Yet, the circuit court entertained the defendants’ argument that they had not been deliberately indifferent to Konitzer’s GD. It noted that the defendants’ argument was based on the fact that Konitzer has constantly been evaluated and “treated” by doctors. The defendants stated that their treatment just happened to be different from what Konitzer and her doctors believed was the right treatment.

The circuit court agreed with the district court’s decision and stated that the prison’s refusal to provide Konitzer adequate medical treatment put her at risk of self-harm. The court determined that a reasonable jury could find that the defendants were deliberately indifferent to Konitzer’s serious medical need when they failed to provide her with the second step of treatment from the Standards of Care, the real-life experience, in the face of her repeated self-mutilations and suicide attempts. What the defendants were doing to treat Konitzer was not working. The circuit court sent the case back to the district court for a jury trial.

 

The Passage of the Wisconsin Inmate Sex Change Prevention Act

Prior to the passing of the Inmate Sex-Change Prevention Act (“the Act”), Wisconsin allowed its DOC to treat inmates suffering from GD; the DOC provided hormone therapy for severe cases of gender dysphoria, but refused to provide surgical therapy. In response to Konitzer’s lawsuit, the Wisconsin legislature passed the Act (Wis. Stat. § 302.386(5m)) in 2005 and it went into effect on January 24, 2006. The Act’s purpose was the following:

An Act to create 302.386 (5m) of the statutes; relating to: a prohibition against using state funds or resources or federal funds to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery to alter the appearance of a prisoner or forensic patient so that the prisoner or forensic patient appears more like the opposite gender.

 

In response, five inmates filed suit in Fields v. Smith against the warden, prison doctor, manager of the prison’s health services unit, director of the Wisconsin DOC’s Bureau of Health Services, and the DOC secretary. The number of plaintiffs dropped to three after two were released from jail. The Wisconsin DOC recognized that all of the inmates suffered from GD.

 

Fields v. Smith

The three remaining plaintiffs were “Andrea” Fields, Matthew “Jessica” Davidson, and Vankemah Moaton. Fields is a male-to-female transgender inmate, who has taken females hormones since 1996 and underwent a breast augmentation in 2003 before being incarcerated in 2005. Davidson is a male-to-female transgender inmate, who had attempted suicide before being put on hormone therapy in 2005. Moaton is a male-to-female transgender inmate, who had been taking female hormones since the 1990s. In 2006, the DOC stopped the hormone therapy based on the Act. All of the inmates who lost their hormone therapy experienced nausea, muscle weakness, loss of appetite, increased hair growth, skin bumps, body aches, voice deepening, breast reduction and leaking, mood swings, mental and emotional instability, hot flashes, and depression. Plaintiffs sued to reinstatement their hormone therapy. The district court ordered that the hormone therapy continue, and the plaintiffs’ negative symptoms subsided after their hormone therapy was restored.

Plaintiffs also claimed that the defendants subjected them to cruel and unusual punishment, violated their rights to equal protection and asserted that the Wisconsin Act was unconstitutional. At trial, Dr. Ettner, who was also Konitner’s expert, testified to facts about GD similar to what she advocated for Konitzer. All parties had medical doctors, but just like Konitzer’s case, they differed as to whether GD was a serious medical need. Only one of the defendants’ witnesses actually said that GD was not a mental disorder.

The Wisconsin DOC set up a “gender identity committee” in 2002, which consisted of two psychiatrists, the Bureau of Health Services Director James Greer, a warden, and a psychologist. The committee was supposed to “‘consult on policy with respect to gender dysphoria, to review individual cases, to make determinations about hormonal treatment, especially starting new treatment, and then to consult in a clinical fashion to the psychologists and psychiatrists who are within the institutions about gender dysphoria matters.’ ” This should have been an innovative way to treat gender dysphoria in prisons. Prior to the committee’s formation, the prisoner simply continued whatever treatment s/he was taking at the time of incarceration. Ideally, if an inmate wanted a new prescription for hormones, the GD Committee would meet and come up with a treatment plan. However, this approach took prison doctors’ discretion to treat GD away and left the decision to bureaucrats. In no way would this positively affect inmates.

At the end of the medical testimony, the district court held that:

[t]he statute applies irrespective of an inmate’s serious medical need or the DOC’s clinical judgment if at the outset of treatment, it is possible that the inmate will develop the sexual characteristics of the opposite gender. The reach of this statute is sweeping inasmuch as it is applicable to any inmate who is now in the custody of the DOC or may at any time be in the custody of the DOC, as well as any medical professional who may consider hormone therapy or gender reassignment as necessary treatment for an inmate.

 

The court invalidated the Wisconsin statute. On appeal, the Seventh Circuit determined that the district court was correct and agreed with the invalidation of the Wisconsin Act. Yet, the United States Supreme Court refused to hear a further appeal, which could have restricted any other state outside of the reach of the Seventh Circuit from attempting to pass a similar statute.

 

Supreme Court and National Impact

The law is set in Wisconsin and the other states of the Seventh Circuit—Illinois and Indiana; there can be no blanket rule against treating gender dysphorics. The U.S. Supreme Court’s refusal to hear the appeal essentially means that it agrees with the Seventh Circuit, the lower court, and did not believe further action needed to be taken because the federal court in the Seventh Circuit ruled correctly. But the question is still open in all of the other circuits. The U.S. Supreme Court could have set the law for the nation by taking the case and formally extend the law to protect gender dysphoric inmates nationwide. Even in the face of the split in authority among the federal circuit courts as demonstrated above, the U.S. Supreme Court irresponsibly refused to review the Seventh Circuit’s decision, which is only binding in the states of the Seventh Circuit—Wisconsin, Illinois, and Indiana. This leaves an outstanding opportunity wasted, perhaps, until another inmate in another circuit commits suicide, tries to castrate himself, or is repeatedly sexually assaulted based on gender dysphoria.

 

Conclusion

The Justices should be ashamed that they shied away from an issue of this magnitude. The Eighth Amendment is part of the Bill of Rights, which encompasses perhaps the most important constitutional rights. The Eighth Amendment protection against cruel and unusual punishment keeps a measure of decency in our penal system. The United States is no developing country with an openly corrupt government that seeks to treat its inmates as examples or for fear tactics. Prisons are made to keep unlawful members of society separated from the community. However, separation does not require policies to humiliate prisoners in need of medical treatment. Even if a medical need seems unusual, its uniqueness does not mean it should be ignored. If a medical professional does not understand a medical need, a specialist should be called in. Many of the problems stem from a lack of understanding of gender dysphoria and discrimination against gender dysphorics. There is no room in the penal system for either. As the highest administer of penal rights, the U.S. Supreme Court should have ensured that constitutional rights against cruel and unusual punishment and discrimination apply to all, especially transgender inmates.

 

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