Corrections Law
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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 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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