Federal Appeals Court Holds that State May Not Refuse Hormone Therapy for Transsexual Prison Inmates

In a unanimous ruling announced on August 5, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit upheld a decision by Chief Judge Charles N. Clevert, Jr., of the U.S. District Court for the Eastern District of Wisconsin holding that a Wisconsin law banning hormone therapy or sex reassignment surgery for transsexual inmates in that state is unconstitutional.  Judge Clevert had ruled in Fields v. Smith, an action brought by Lambda Legal and the ACLU on behalf of three Wisconsin inmates whose hormone therapy was cut off after the statute was passed, that the law violated the 8th Amendment's ban on cruel and unusual punishment as well as the 14th Amendment's requirement of Equal Protection of the Laws.

In an opinion by Judge Joan B. Gottschall of the U.S. District Court for the Northern District of Illinois, who was designated to sit on the appellate panel, the court of appeals upheld Judge Clevert's 8th Amendment ruling, and found it unnecessary to rule on the 14th Amendment claim.

Under the 8th Amendment, prisoners are entitled to at least minimally adequate health care when confined in the custody of state prisons.  Since prisons do not allow inmates to purchase their own medications or bring in outside medications, inmates are at the mercy of prison officials when it comes to dealing with their health care issues.  The Supreme Court has ruled that the 8th Amendment is violated if prison officials are indifferent to serious medical needs of prisoners, and in prior cases federal courts have come to agree that gender dysphoria or transsexualism may create a serious medical need.

Complying with this obligation, prison officials had authorized hormone therapy as medically necessary treatment for three Wisconsin inmates.  Press stories about taxpayers subsidizing "sex changes" for inmates caused a political storm in the Wisconsin legislature, resulting in the enactment in 2005 of the Inmate Sex Change Prevention Act (called Act 105), under which the Department of Corrections was prohibited from spending any money or using any of its resources or funds passing through the state treasury "to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery."  After the law was passed, the prison discontinued hormone therapy for the three plaintiffs in this case, resulting in immediate physical and psychological harm to them.  A quick application to the federal court won a temporary order to restore their hormone therapy as the case was unfolding.

The trial court heard expert testimony that led it to conclude, as numerous other federal courts have concluded, that gender dysphoria is a serious medical condition and that, depending upon how it affects a particular individual, hormone therapy may be necessary medical treatment.  Although there has been litigation in other jurisdictions about cases in which prisons had refused to initiate hormone therapy for inmates who declared their gender dysphoria after being incarcerated, this was an unusual case of a state passing an absolute ban on such treatment resulting in discontinuing therapy for inmates who had been receiving it. 

The prison officials sought to defend the statute by arguing that it was justified by penological concerns about prison security. They argued that the feminizing effects of hormone therapy on transsexual prisoners was likely to exacerbate the risks of sexual attacks by other inmates.  This argument was undermined by one of their own witnesses, who had previously been employed in the Colorado prison system and testified that the administration of hormone therapy for transsexuals in that system had not led to an increase in sexual attacks.  Indeed, the evidence showed that transsexuals in prison are in danger of attacks even without the feminizing effects of hormone therapy.

In this case, the plaintiffs were confronted with two outdated old 7th Circuit opinions that arguably cast doubt on constitutional claims for hormone therapy.  Judge Gottschall explained that the "discussion of hormone therapy and sex reassignment in these two cases was based on certain empirical assumptions — that the cost of these treatments is high and that adequate alternatives exist."  She pointed out that the evidence introduced in this case disproved those assumptions.  Hormone therapy is less expensive than various other forms of medical treatment that are routinely provided in prisons, including particularly the anti-psychotic drugs that are routinely administered to inmates with personality disorders to maintain order in the prisons.  She also noted that the expert testimony showed that there is a medical consensus in support of hormone therapy as a necessary treatment, and that in some cases the alternative of psychological counseling is not sufficient.

"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," wrote Gottschall.  "Surely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with [counseling] therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional.  Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture.  Although Act 105 permits DOC to provide plaintiffs with some treatment, the evidence at trial indicated that plaintiffs could not be effectively treated without hormones."

The state also argued that Act 105 could not just be struck down on its face, because hormone therapy was not always necessary to treat gender dysphoria, but the court found this argument to be beside the point.  On its face, the statute prohibits a form of treatment that has been shown as medically necessary for some inmates, and thus was facially unconstitutional.  Nobody was arguing that inmates who do not need hormone therapy to treat their gender dysphoria are nonetheless constitutionally entitled to receive it.   The court also rejected the argument that the statute could not be totally invalidated because, they argued, it was constitutional to refuse sex reassignment surgery to inmates.  Surgery had not been much discussed or considered in the trial court, however, since the plaintiffs in this case were suing to continue their hormone therapy, and there was a good argument that the defendants had actually waived their objection on this ground prior to appeal. 

But the court of appeals concluded that both forms of treatment were appropriately covered by the trial court's injunction against enforcement of Act 105, inasmuch as the statute rules out treatments that might be deemed necessary in particular cases, which clearly violates the 8th Amendment requirement that prisons provide medically necessary treatment for serious medical conditions.

Although the Wisconsin statute was one-of-a-kind, the ruling is nonetheless important beyond Wisconsin because it adds appellate precedent supporting claims by transgender inmates to receive appropriate medical treatment while incarcerated, and may be cited as a potential trump card should legislators in other states propose similar restrictions.

The case was a joint effort by Lambda Legal, the ACLU of Wisconsin, and the ACLU LGBT Project.  The trial attorney, John Knight from the ACLU, also argued the appeal to the 7th Circuit.

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