AELE LAW LIBRARY OF CASE SUMMARIES:
Corrections Law for
Jails, Prisons and Detention Facilities
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 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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