The Unconstitutional Treatment of Transgender Prisoners

By Sophie Yates

Over the last few years, our cultural understanding of gender has become increasingly separated from our biological definitions of sex. People regularly include their preferred pronouns in introductions and email signatures while forms that ask for your gender information offer more options than simply male or female. And yet, despite our budding awareness of the complexities that underlie gender, many systems persist that actively reinforce and rely on the biology-centric gender binary (Sumner and Sexton 2016, 617; Jenness and Fenstermaker 2014; Agbemenu 2015). There is arguably no system more reliant on the conflation of gender and sex, in line with binary thinking, than the prison system. One of the most basic tenets of the United States prison system is gender segregation. This tenet, however, relies on the conflation of gender and sex, an assumption that is undermined by transgender and gendernonconforming individuals (Sumner and Sexton 2016, 637). Instead of adjusting to accommodate evolving understandings of gender, prisons have cemented their commitment to biology and in doing so have left a group unconstitutionally vulnerable (Agbemenu 2015, 11). The failure to provide transgender prisoners with access to gender confirmation surgery and to house prisoners according to their gender identity violates the Eight Amendment’s prohibition of deliberate indifference. The term “transgender” is an umbrella term that refers to people whose gender identity is different from the one they were assigned at birth (“Sexual Orientation” n.d.). In the past, this incongruence between one’s biological sex and gender identity could be diagnosed as Gender Identity Disorder (GID) (Halbach 2015). However, in the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), the American Psychiatric Association replaced the term GID with “gender dysphoria,” in order to reduce the stigma associated with the condition and eliminate exclusive binary-based language (APA 2013).According to the DSM-5, gender dysphoria is categorized by “[a] marked incongruence between one’s experienced/expressed gender and assigned gender” for at least six months and “is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning” (APA 2013). Under this definition, the significant stress caused by gender incongruence, rather than one’s transgender identity, is the diagnosable medical condition (Combs et al. 2018). Currently, the accepted treatment for transgender individuals who experience gender dysphoria is medically facilitated gender transition. The World Professional Association for Transgender Health (WPATH) regularly publishes revised versions of its Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (WPATH 2012). The most recent version, published in 2012, suggests that treatment plans be individualized and developed by individuals and their doctors, but states that plans may include “changes in gender expression and role…; hormone therapy;... surgery to change primary and/or secondary sex characteristics; and...psychotherapy” (Braver 2020). Numerous medical organizations have deemed these standards to be the best practices for treatment of individuals suffering from gender dysphoria, including the American Psychiatric Association, the American Medical Association, and the National Commission on Correctional Health Care. In 1976 the Supreme Court established that prisoners have a right to necessary medical care, and that failure to provide them with such could constitute deliberate indifference in violation of the Eighth Amendment’s protection against cruel and unusual punishment. Estelle v.

Gamble, 429 U.S. 97 (1976). In order to demonstrate that the prisoner’s constitutional rights have been violated, one must pass a two pronged test. The first prong requires that one show objectively that “a prisoner's particular medical needs constitute a ‘serious medical need’” (Halbach 2015). The second prong is a subjective prong and requires showing that the prison official acted with deliberate indifference. As of 2015, the Supreme Court has not set a standard for what constitutes serious medical need; however, lower court rulings can offer some unofficial standards (Glidden 2012). In the opinion of Mahan v. Plymouth County. House of Corrections, 64 F.3d 14, 18 (1st Cir. 1995), the First Circuit quoted their earlier ruling in Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir.1990), writing that a serious medical need is one “that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Mahan, 64 F.3d at 18. According to the Ninth Circuit, a serious medical need is “one that involves a substantial risk of serious harm if not adequately treated.” Kosilek, 889 F. Supp. 2d at 207 (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)). The Second Circuit posits a multi-factor analysis for determining whether a prisoner’s medical needs are sufficiently serious to mandate treatment. Citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998), the Court outlined three non-exhaustive factors for consideration: “(1) whether a reasonable doctor or patient would perceive the medical need in question as ‘important and worthy of comment or treatment,’ (2) whether the medical condition significantly affects daily activities, and (3) ‘the existence of chronic and substantial pain.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). The Supreme Court’s definition of what constitutes “deliberate indifference” is slightly more clear. According to the Court, deliberate indifference “lies somewhere on the continuum between negligent conduct and conduct engaged in ‘for the very purpose of causing harm or with knowledge that harm will result’” Farmer v. Brennan, 511 U.S. 825, (1994).When applied to the issue of prison healthcare, the Court has held that prison officials may be “deliberately indifferent if they purposefully fail to treat the medical need by denying, delaying, or interfering with prescribed care” (Church 2016). Prison officials are obligated under the Eighth Amendment to provide prisoners with medical care, however “this obligation is met in full measure by the provision of adequate services: services at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards” United States v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987). The standard of deliberate indifference extends to the realm of inmate safety as well. Officials may be liable for deliberate indifference if they know of and willfully ignore a substantial threat to inmate safety. Farmer, 511 U.S. 825. However, “[d]eliberate indifference to a prisoner's need is balanced against security concerns” (Church 2016). Prison officials can thus escape liability if they can demonstrate that their denial of certain medical treatments or failure to take reasonable steps to abate known risks to prisoner’s safety was “based on a reasonable safety concern” (Church). In general, receiving any form of healthcare while incarcerated is difficult, but the lack of education surrounding transgender health issues and limited access to mental health professionals who are qualified to diagnose gender dysphoria, creates a unique set of obstacles that transgender prisoners are forced to tackle (Braver 2020). With limited access to professionals and the requisite of professional diagnosis before receiving care, the health issues of many transgender prisoners are left unnoticed and untreated. Receiving a diagnosis; however, does not guarantee transgender prisoners adequate care. As of 2020, “nineteen states do not have policies addressing treatment for incarcerated transgender individuals” leaving these prisoners’

treatment to the discretion of their prisons (Braver). While some states have defined hormone therapy as an appropriate treatment for the serious medical need created by gender dysphoria, access to gender confirmation surgeries continues to be almost nonexistent. In fact, it was not until January of 2022 that a federal inmate was even approved for such a procedure, despite the medical community's belief in their life-saving nature (Porterfield 2022). The serious and sometimes deadly effects of failing to adequately treat gender dysphoria establish it as a serious medical need that prisons are constitutionally required to treat with the appropriate means, including, in some cases, gender confirmation surgery. That gender dysphoria presents a serious medical need can be determined using any of the lower court’s evaluation standards. The medical community has recognized the importance of treating gender dysphoria, emphasizing that the failure to treat it can lead to other “serious medical issues such as depression, suicidality and self-castration” (Brown 2014). The consensus of the medical community regarding the importance of treatment and the severity of consequences satisfies the First Circuit’s requirement that the need be diagnosed by a physician as mandating treatment and the Second Circuit’s requirement that a responsible doctor would perceive the medical need as important and worthy of treatment. Research has also found that twenty percent of transgender people suffering from gender dysphoria and lack access to gender-affirming care display suicidal tendencies (Rudolph 2021). The incredibly high suicide rates and the elevated risk for self mutilation make it clear that failure to properly treat gender dysphoria can have life or death consequences. Reports of suicide, self-harm, and self-castration due to the denial of gender-affirming care demonstrate that gender dysphoria poses “a substantial risk of serious harm if not adequately treated” as described by the Ninth Circuit. Proving that gender dysphoria is a serious medical need has not been a major challenge for those advocating for better healthcare for transgender prisoners. Although the Supreme Court has yet to rule it as such, as of 2016, six of the United States Courts of Appeals have done so, using Eighth Amendment analysis (Matricardi 2016). Despite the seemingly apparent consensus that gender dysphoria constitutes a serious medical need, disagreement persists regarding whether the failure to provide transgender prisoners with gender confirmation surgery constitutes deliberate indifference. One case that highlights this disagreement is Kosilek v. Spencer (Kosilek IV), 774 F.3d 63 (1st Cir. 2014), in which the First Circuit reversed the holding of the First Circuit panel in Kosilek v. Spencer (Kosilek III), 740 F.3d 733 (1st Cir. 2014). Kosilek was a transgender woman incarcerated in a men’s prison for the murder of her wife in 1992. Once imprisoned, she filed a suit against the Massachusetts Department of Corrections (DOC) for violating her Eighth Amendment right to adequate medical care. In Kosilek v. Maloney (Kosilek I), 221 F. Supp. 2d 156, 164 (D. Mass. 2002), the District Court recognized that her gender dysphoria presented a serious medical need, and she was provided with “hormonal treatment, female clothing, electrolysis, and continued mental health treatment.” Also at the recommendation of the gender identity specialist and consistent with WPATH’s Standards of Care, a year later Kosilek was considered for gender confirmation surgery (Church 2016, 23-24). Despite the recommendation of two doctors sex reassignment surgery would be the only adequate treatment, the DOC denied the request, stating that the WPATH standards on which the doctors relied were merely guideline and that the procedure raised concerns regarding security and housing. Kosilek requested an injunction, and the District Court approved, holding that “Kosilek suffered from severe gender dysphoria and that sex reassignment surgery offered the only adequate medical treatment pursuant to the Eighth Amendment.” (Church 2016, 24). The Court held that the DOC’s

position was inconsistent with prudent professional standards, and that denial was neither made in good faith nor based on reasonable security concerns. The First Circuit panel upheld this ruling, but reversed upon en banc review. The en banc court held that the circumstances did not support a finding of deliberate indifference in the prison’s failure to provide gender-confirmation surgery, as the current treatment was constitutionally adequate despite its departure from the WPATH Standards of Care. Kosilek IV, 774 F.3d at 87. In contrast, the Ninth Circuit found the exact opposite to be true. Edmo v. Corizon, 935 F.3d 757, 797 (9th Cir. 2019). Faced with a prisoner experiencing similar levels of gender dysphoria, the Court held that “when officials deny medically necessary GCS to an incarcerated transgender individual, the responsible officials are indeed deliberately indifferent” (Braver 2020). In their opinion, the Court identifies the WPATH Standards of Care as being the prudent professional standards for the health care of transgender individuals and that these standards should be used in determining transgender prisoners’ medical need for gender confirmation surgery. Failure to provide transgender prisoners with gender confirmation surgery when such a procedure is deemed as medically necessary by the governing medical standards, in this case the WPATH Standards of Care, is an act of deliberate indifference. Edmo, 935 F.3d at 792. The split in the Circuit leaves it to the Supreme Court to determine what factors should be considered in analyzing the necessity of gender confirmation surgery and “[t]he proper standard for determining what amounts to deliberate indifference by prison officials” (Braver 2020). Historically, the Supreme Court has given “deference to consensus in the medical community over outlier opinions” (Church 2016). In both Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005), the Court has referred to and relied on expert medical consensus in evaluating Eighth Amendment claims. Whether the Court would stick to this precedent is another question. Transgender prisoners are also disproportionately vulnerable due to prison housing practices (Jenness and Fenstermaker 2016). Most transgender prisoners are housed in facilities based on their sex assigned at birth rather than their gender identity. This housing policy has enormous impacts of the health and safety of transgender prisoners (Taylor, Lewis, and Haider-Markel 2018).Research has shown that “transgender prisoners are 13 times more likely than their non-transgender counterparts to be sexually assaulted in prison” (Jenness and Fenstermaker 2016). In one study, “Fifty-nine percent of transgender inmates…in California prisons reported being sexually assaulted while incarcerated” (Jenness et al. 2007). For transgender women, in particular, being “housed in a general population male prison rather than a female prison,” greatly exacerbates the risk that she will “suffer from violence and sexual assault” (Taylor, Lewis, and Haider-Markel 2018, 289). According to one author, for transgender women, men’s prisons are synonymouswith a “torture chamber of incessant sexual humiliation” (Rosenblum 2016). The increased victimization of transgender women may be a result of the unique environment of men’s prisons, that “tend[s] to reinforce and reward extreme masculinity and aggression” (Braver 2020). By displaying femininity in this hyper-masculine culture, these inmates become “ever-available targets of sustained derogation” (Jenness and Fenstermaker 2016).

In response to the epidemic of sexual assaults in prisons, the 2003 Prison Rape Elimination Act was enacted. In 2012, the Obama Administration built off of these initial guidelines with their enactment of the National Standards to Prevent, Detect, and Respond to Prison Rape (Department of Justice 2012). These standards included provisions specific to

the treatment and protection of transgender prisoners, including a mandated screening for risk of sexual victimization and abusiveness that acknowledges their increased vulnerability. Under these standards, housing decisions for transgender prisoners were to be made on a case-by-case basis to ensure the inmate’s health and safety, and would be reevaluated at least twice per year. In making these housing determinations, the officials must seriously consider a prisoners’ views regarding their own safety and “may not simply assign the inmate to a facility based on genital status” (Department of Justice 2012). According to the standards, protective custody and isolation from others may only be used as a temporary last resort when other, less restrictive measures are inadequate, thereby limiting the prison’s typical method of “protecting” transgender prisoners. While these standards theoretically offered a number of protections for transgender prisoners, a major constraint on the effectiveness of these standards was the Department of Justice’s failure to audit facilities to ensure compliance (Rudolph 2021). In 2018, President Trump reversed many of these Obama-era protections with his updated version of the Transgender Offender Manual which stated that initial housing be determined by the prisoner’s biological sex, and that “the designation to a facility of the inmate’s identified gender would be appropriate only in rare cases” (Gathright 2018). In January of 2022, President Biden reimplemented the Obama-era Transgender Offender Manual, but the effect of this on the housing of transgender prisoners remains to be seen (Sosin 2022).So long as policies give officials the unbridled discretion to determine housing on a case-by-case basis, transgender women will continue to be incarcerated in men’s prisons where they are unconstitutionally vulnerable to violence. By continuing to house transgender women in men’s prisons despite their vulnerability, corrections officials fail to “take reasonable steps to protect inmates against physical and sexual harassment and abuse,”as required by the Eighth Amendment (Cahill 2017). Dee Farmer, a transgender women incarcerated in a men’s prison filed a suit against prison officials, alledgeing that they acted with deliberate indifference when they placed her in the general prison population despite their knowledge of the presence of violent offenders and her increased risk of victimization. While being kept in the general prison population, Farmer was repeatedly raped and beaten by other inmates. The case, Farmer v. Brennan (1994), reached the Supreme Court in 1994. In their decision, the Court held that prison officials can be held liable under the Eighth Amendment when they act with “deliberate indifference” to inmate health or safety. According to the Court, to be deliberately indifferent, officials must know of and disregard “an excessive risk to inmate health or safety” Farmer, 511 U.S. at 837. Thus, it must be shown that officials had requisite knowledge of a substantial risk and that they failed “to take reasonable measures to abate it.” Farmer, 511 U.S. at 847–48. The Court also states that “evidence showing that a substantial risk of inmate attacks was “longstanding, pervasive, well-documented, or expressly noted by prison officials in the past,” along with circumstances that suggest the official being sued was exposed to “information concerning the risk and thus ‘must have known’ about it,” may be sufficient in demonstrating that the official acted with the requisite knowledge of the risk. Farmer, 511 U.S. at 842–43. With this decision, the Court indicates “that excessive risks include situations where an inmate belongs to “an identifiable group of people who are frequently singled out for violent attacks by other inmates” (Cahill 2017).

Based on this definition of deliberate indifference and the overwhelming evidence that transgender women in men’s prisons are at an exorbitant risk of being victimized, one could argue that the incarceration of transgender female prisoners in male prisons violates their

Eighth Amendment right to safety while incarcerated. Reports of transgender women experiencing elevated levels of violence in men’s prisons are “longstanding, pervasive, [and] well-documented.” Violence against transgender women in prison has even been portrayed in popular television shows such as Orange is the New Black. Based on the widespread publicity of the victimization of this group, it is reasonable to infer that the average person is aware of the greater risk transgender prisoners face while incarcerated. By continuing to house transgender women in men’s prisons, officials disregard a known “excessive risk to inmate health and safety,” and should thus be liable under the Eighth Amendment. Current Department of Justice Standards dictate that housing of transgender prisoners should be decided on a case-by-case basis considering a number of factors including the inmate’s own feelings about where they would feel safest. This policy, however, has numerous shortcomings. It recycles the ambiguous “case-by-case” standard mandated by the 2003 Prison Rape Elimination Act without implementing any safeguards to ensure that all factors are thoroughly considered. This may allow states to continue to claim that they have “carefully considered each placement even if every one of their 1,000 transgender prisoners was housed according to sex assigned at birth” (Sosin 2022). Another shortcoming is that this policy does not extend to state prisons, where, according to a 2020 NBC news investigation 0.3% of transgender prisoners are housed in facilities consistent with their gender identity (Sosin 2020). The immense discretion inherent in this policy provides no insurance for the safety of transgender prisoners, specifically transgender women, while incarcerated. By ruling that the incarceration of transgender women in men’s prisons in spite of evidence of their disproportionate victimization, is an act of deliberate indifference, the Court could establish a constitutional foundation for policies that mandate the housing of transgender women in women’s prisons. Such a ruling would guarantee that transgender women who wanted to reside in and would be safer in female facilities have the ability to do so. This ruling would also offer an opportunity to ensure the rights of transgender prisoners in state prisons, as the Eighth Amendment is applicable to the States through the Fourteenth. Not only would this change in housing policy likely reduce the violence faced by transgender individuals in prison, in doing so it would weaken one of their “strongest” arguments against providing transgender prisoners with access to gender-affirming healthcare. The standard of deliberate indifference does not hold officials liable for failing to provide adequate care when their failure to do so is based on safety concerns. Helling v. McKinney, 509 U.S. 25, 36-37 (1993). Thus, when denying gender-affirming care to transgender prisoners suffering from gender dysphoria, officials argue that due to the nature of hormone therapy and gender confirmation surgery, in that it affects physical appearance, create a security risk. Battista, 645 F.3d 449, at 451; Kosilek II, 889 F. Supp. 2d at 197-98; Soneeya v. Spencer, 851 F. Supp. 2d 228, 240, 247-48 (D. Mass. 2012). Capitalizing on the issue of sexual assault, prison officials attempt “to make this denial of medical care look like a display of concern for prisoner safety” (Agbemenu 2015). They argue that providing transgender women with care that could increase their presented feminity, these individuals would become a bigger target in the hyper-masculine detention environment. Thus, by denying transgender women this care, they are taking reasonable steps to ensure institutional security. By housing transgender women in women’s prisons, this concern for institutional safety becomes obsolete, as appearing feminine in a women’s prison would not be ostracizing and transgender prisoners are statistically safer in these facilities (Rosenblum 2000). The Eighth Amendment requires that prison officials take action to protect the health and

safety of persons while they are incarcerated. Estelle, 429 U.S. 97 (1976); Farmer, 511 U.S. 825. Nearly one in six transgender persons report having been incarcerated in their lifetime. In 2016, the incarceration rate of transgender individuals was twice that of the general population. With significant percentages of this community being subject to the prison system, their continued victimization is unacceptable. Current policies are insufficient in securing protections for members of this group. The denial of life-saving gender confirmation surgery and their continued incarceration in facilities that are demonstrably unsafe is unconstitutional. The current system was not built with this group in mind and will continue to abuse and overlook this community unless their right to gender-affirming care, which may include gender confirmation surgery, and safe living facilities becomes judicial precedent.

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