March 27, 2012
By Scottie Thomaston
Wisconsin passed the “Inmate Sex-Change Prevention Act”, a law that maliciously targeted people who are transgender to deprive them of necessary life-saving and life-affirming medical care. Three people who were serving prison time sued for prisoner access to this medical care, for prisoners to continue receiving prescribed hormones and care from qualified doctors who would monitor their hormone treatment. The Act was challenged in federal court on the grounds that it violated the Eighth Amendment’s ban on cruel and unusual punishment as well as the Fourteenth Amendment’s Equal Protection Clause. The plaintiffs won in District Court and again at the Seventh Circuit Court of Appeals.
The U.S. Supreme Court on Monday declined to hear Wisconsin’s appeal of a ruling that struck down the state’s effort to ban all hormone treatment and sex-change surgery for transgender prison inmates.
Three such inmates challenged the law in 2006, and a federal judge in Milwaukee granted a preliminary injunction to allow their hormone treatments to continue, then heard a full trial in 2007 before ruling in 2010 that Wisconsin’s 2005 Sex Change Prevention Act was unconstitutional on several grounds.
Chief U.S. District Judge Charles N. Clevert found that the law amounts to “deliberate indifference to the plaintiffs’ serious medical needs in violation of the Eighth Amendment,” because it denies hormone therapy without regard to those needs or doctors’ judgments. He found the law unconstitutional on its face and also in violation of the inmates’ rights to equal protection.
The statute reads:
The [Wisconsin Department of Corrections] may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery.
The Seventh Circuit’s opinion, which was upheld today, begins by recalling the findings of fact made by the District Court below. One of the first things the judges note is that experts testified that gender dysphoria is incredibly serious and requires the type of medical care denied to these patients under the Wisconsin law:
These experts explained that GID can cause an acute sense that a person’s body does not match his or her gender identity. Even before seeking treatment and from an early age, patients will experience this dysphoria and may attempt to conform their appearance and behavior to the gender with winch they identify.
The feelings of dysphoria can vary in intensity. Some patients are able to manage the discomfort, while others become unable to function without taking steps to correct the disorder. A person with GID often experiences severe anxiety, depression, and other psychological disorders. Those with GID may attempt to commit suicide or to mutilate their own genitals.
The accepted standards of care dictate a gradual approach to treatment beginning with psychotherapy and real life experience [*554] living as the opposite gender. For some number of patients, this treatment will be effective in controlling feelings of dysphoria. When the condition is more severe, a doctor can prescribe hormones, which have the effect of relieving the psychological distress.
The defendant’s argument is a familiar refrain:
Defendants do not challenge the district court’s holding that GID is a serious medical condition. They contend that Act 105 is constitutional because the state legislature has the power to prohibit certain medical treatments when other treatment options are available. And defendants argue that Act 105 is justified by a legitimate need to ensure security in state prisons.
In other words, defendants argue that medical treatment should be given or denied based on legislative judgment, not a doctor’s considered expert judgment after that doctor reviews a patient’s case file. If legislators don’t think certain groups of people deserve certain care, whether or not it’s deemed medically necessary, those legislators should be able to ban it.
(More analysis below in the extended entry)
The other part – the idea that allowing people who are transgender (along with everyone else) to have access to health care in prisons would somehow erase “security” from prisons – is based on a stereotype of people who are transgender as “deceitful” and “confusing”, throwing everything into chaos and destroying the line between the sexes. And, according to the defendants, providing hormone therapy would also make prisons less secure because sexual assaults would increase.
The defendant’s arguments rely largely on two precedents arguing for the most part that it is not cruel or unusual to deny prisoners expensive and unnecessary medical care and the Seventh Circuit shot those down:
The court’s discussion of hormone therapy and sex reassignment surgery in these two cases was based on certain empirical assumptions — that the cost of these treatments is high and that adequate alternatives exist. More than a decade after this court’s decision in Maggert, the district court in this case held a trial in which these empirical assumptions were put to the test. At trial, defendants stipulated that the cost of providing hormone therapy is between $300 and $1,000 per inmate per year. The district court compared this cost to the cost of a common antipsychotic drug used to treat many DOC inmates. In 2004, DOC paid a total of $2,300 for hormones for two inmates. That same year, DOC paid $2.5 million to provide inmates with quetiapine, an antipsychotic drug which costs more than $2,500 per inmate per year. Sex reassignment surgery is significantly more expensive, costing approximately $20,000. However, other significant surgeries may be more expensive.
And the court notes that, since the treatment is medically necessary and often life-saving and since there was no evidence showing that other proposed treatments would be as effective, that favors the plaintiff’s claims:
More importantly here, defendants did not produce any evidence that another treatment could be an adequate replacement for hormone therapy. Plaintiffs’ witnesses repeatedly made the point that, for certain patients with GID, hormone therapy is the only treatment that reduces dysphoria and can prevent the severe emotional and physical harms associated with it.
It is well established that the Constitution’s ban on cruel and unusual punishment does not permit a state to deny effective treatment for the serious medical needs of prisoners.
They compare the treatment to other familiar types and reach the obvious conclusion that:
Surely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional.
Given this fact, it should be an easy question: medical care is medical care, and denying treatment to people in prison violates the Eighth Amendment’s ban on cruel and unusual punishment.
They move on, arguing that Gonzales v. Carhart, which had banned so-called “partial birth” abortion, applies to this case because they said it proves doctors may be barred from performing certain individual procedures by legislatures. The court says the case isn’t relevant here because:
there was no evidence of uncertainty about the efficacy of hormone therapy as a treatment. Just as the legislature cannot outlaw all effective cancer treatments for prison inmates, it cannot outlaw the only effective treatment for a serious condition like GID [Gender Identity Disorder].
In arguably one of the most offensive positions taken in a case like this, the claim is put forward that allowing doctors to provide medical care to prisoners who are transgender would be a security risk because it would increase sexual assaults against those prisoners. This utterly horrendous victim-blaming argument is spelled out this way:
Defendants have also argued that Act 105 is justified by the state’s interest in preserving prison security. Defendants’ security expert, Eugene Atherton, testified that more feminine male inmates become targets for sexual assault in prisons. Because hormone therapy alters a person’s secondary sex characteristics such as breast size and body hair, defendants argue that hormones feminize inmates and make them more susceptible to inciting prison violence.
Thankfully, none of the federal courts that heard this argument bought into it:
But the district court rejected this argument, noting that the evidence showed transgender inmates may be targets for violence even without hormones. Atherton himself, in his deposition, testified that it would be “an incredible stretch” to conclude that banning the use of hormones could prevent sexual assaults. Id. at 868. In the Colorado Department of Corrections, where Atherton worked for many years, the state had a policy of providing necessary hormones to inmates with GID. Atherton testified that this policy was reasonable and had been implemented effectively in Colorado.
The final argument introduced involves a procedural claim that the suit couldn’t be brought because the plaintiffs weren’t seeking treatment themselves. But, the court says, the suit is a facial challenge against the whole Act, and the Act itself “removes even the consideration of hormones or surgery for inmates with gender issues and the DOC halted evaluations of inmates with GID for possible administration of hormone therapy[.]” The court says the District Court did not abuse its discretion when it enjoined the entire Act.
The Act will remain struck down, but it won’t affect treatment of transgender prisoners nationwide.