Supreme Court lets stand ruling that sides with transgender inmates

The US Supreme Court declined Monday to take up a case examining whether transgender prison inmates enjoy a constitutional right to government-funded sex change operations and hormone therapy.

The action leaves undisturbed a federal appeals court decision siding with transgender inmates in Wisconsin.  

Concerned about the use of state funding for ongoing hormone treatments that help certain male inmates look more female, lawmakers in Wisconsin passed the Inmate Sex Change Prevention Act. The law barred the use of any state funds for hormone treatments and/or sexual reassignment surgery.

Three Wisconsin inmates filed a class-action lawsuit. After a trial a federal judge struck down the 2006 law as a violation of the Eighth Amendment’s ban on cruel and unusual punishment. A panel of the Chicago-based Seventh US Circuit Court of Appeals agreed.

The appeals court noted that the Eighth Amendment requires state governments to provide medically-necessary treatment to inmates in their prison populations.

Prior to passage of the Inmate Sex Change Prevention Act, medical personnel in the Wisconsin prison system had determined that hormone therapy was medically necessary for the three inmates. As a consequence of the new law, this treatment was discontinued.

The appeals court did not rule that prison officials are required to provide hormone therapy or sex change operations, only that such treatments must be available to inmates if the prison’s own medical personnel determine they are medically necessary.

“Surely, had the Wisconsin legislature passed a law that [Department of Corrections] inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional,” the Seventh Circuit said. “Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture,” the appeals court said.

Prison officials had expressed concern that providing hormone treatments that would help certain inmates in an all-male prison appear physically more like a woman might make that inmate a more likely target for sexual assault in prison. Men who receive female hormone treatments develop breasts and experience a redistribution of body fat.

The appeals court dismissed that concern, noting that transgender inmates already face a substantial risk of such assaults.

In her brief to the court, Assistant Wisconsin Attorney General Jody Schmelzer had asked the high court to determine whether the Eighth Amendment requires state prisons to treat “gender identity disorder” (GID) with hormone therapy.

Ms. Schmelzer also asked the court to examine whether the Seventh Circuit overstepped its authority in affirming an injunction invalidating the state’s ban on sex-change surgery for prison inmates.

“The court of appeals upheld the injunction as to a procedure that no one had requested, let alone shown was medically necessary to prevent a significant risk of serious harm,” Schmelzer wrote. “It is undisputed that none of the plaintiffs were deemed in need of surgery or even requested it.”

The Wisconsin Attorney General’s Office said the appeals court erred by analyzing the case as if gender identity disorder was a potentially fatal physical medical condition, like cancer, rather than a psychological condition.

“Inmates with GID do not have any physical ailment – their bodies are healthy,” Schmelzer wrote. “The condition is a psychological condition and psychological treatments such as psychotherapy, antipsychotics and antidepressants are appropriate and work to reduce the risk of self-harm.”

The Eighth Amendment does not entitle inmates to specific treatments or the best care possible, Wisconsin officials argue, and courts should defer to the judgment of prison officials.

“A state law should be upheld under the Eighth Amendment as long as it allows for the availability of alternate treatments that, although not curative, work to manage the symptoms of a condition and diminish the risk of harm to a reasonable level,” Schmelzer said.

John Knight of the American Civil Liberties Union in Chicago said the Eighth Amendment prohibits deliberate indifference to a serious medical need.

Denial of treatment for severe GID “causes or creates a serious risk of depression, anxiety, suicidal ideation, suicide attempts, and self-mutilation or autocastration for transsexual people,” he wrote in his brief.

“Psychotherapy or psychotropic medication alone, without hormone therapy treatment (and in some cases, sex reassignment surgery), is simply not effective,” Mr. Knight said.

“For those who need it, sex reassignment surgery can be life-saving,” he wrote.

“The Seventh Circuit properly ruled that a state statute that prohibits prison doctors from providing what they deem to be medically necessary treatment for a serious medical condition violates the Eighth Amendment,” Knight said.

“Decisions about the proper course of medical treatment should be made by prison medical staff on an individualized basis” rather than with blanket bans on certain procedures and treatments, he said.

The case is Smith v. Fields (11-561).