Survey of Expanding Transgender Inmate Rights

by Michael T. Davis & Tina Cheng         

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The issue of whether the Eighth Amendment requires that transgender inmates receive hormone therapy or sex reassignment surgery has been frequently litigated. Many transgender inmates in jurisdictions throughout the country have filed lawsuits under 42 U.S.C. § 1983, alleging that prison officials violated their Eighth Amendment right to be free of cruel and unusual punishment by exhibiting deliberate indifference to their serious medical needs. To succeed on an Eighth Amendment claim, a plaintiff must show both an objectively serious medical need and that prison officials were subjectively (i.e., deliberately) indifferent to that need. See Estelle v. Gamble, 429 U.S. 97, 104 (1976).

Courts now almost universally accept that gender dysphoria is an objectively serious medical need deserving of treatment.  See, e.g., Kosilek v. Spencer, 774 F.3d 63, 86 (1st Cir. 2014) (en banc); De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013); White v. Farrier, 849 F.2d 322 (8th Cir. 1988); Meriweather v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987).  Gender dysphoria is a long-term condition in which a person experiences a marked difference between the individual’s expressed/experienced gender and the gender others would assign to him or her. Although the terms transsexualism or gender identity disorder (“GID”) have been used in the past to describe this condition, the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition replaced those terms with “gender dysphoria” to better characterize the experiences of affected individuals.

While circuit courts accept that gender dysphoria requires treatment, they are divided as to what the Eighth Amendment requires for that treatment, generally applying one of two overarching legal principles in their analyses. Some circuits abide by the general principal that, while the inmate has the right to treatment for gender dysphoria, the inmate is not entitled to their specific treatment of choice. See, e.g., Praylor v. Texas Dep’t of Criminal Justice, 430 F.3d 1208, 1209 (5th Cir. 2005); Long v. Nix, 86 F.3d 761, 766 (8th Cir. 1996); Meriweather, 821 F.2d at 413; Supre v. Ricketts, 792 F.2d 958, 962-63 (10th Cir. 1986).  These courts tend to accept that, so long as the inmate is receiving some form of treatment for gender dysphoria, there is no deliberate indifference. See, e.g., Supre, 792 F.2d at 963.

Other circuits temper this principle with recognition that the prison must provide constitutionally adequate medical treatment, which may be very specific in the context of gender dysphoria. See Estelle, 429 U.S. at 103-06. In 2011, the Seventh Circuit affirmed a district court’s ruling that Wisconsin’s Inmate Sex Change Prevention Act was unconstitutional because it denied the use of state funds for hormone therapy or sexual reassignment surgery which could be the only constitutionally adequate treatment. Fields v. Smith, 653 F.3d 550, 556, 559 (7th Cir. 2011). The court explained, “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.” Id. at 557. The Seventh Circuit also determined that the district court did not abuse its discretion in concluding that the prison officials’ evidence failed to establish any security benefits associated with a ban on hormone therapy. Id. at 558.

In 2012, the World Professional Association for Transgender Health (“WPATH”) issued specific recommendations for treatment of individuals with gender dysphoria. The Fourth Circuit Court of Appeals summarized the WPATH standards:

The Standards of Care, published by [WPATH], are the generally accepted protocols for the treatment of GID. They establish a “triadic treatment sequence” comprised of (1) hormone therapy; (2) a real-life experience of living as a member of the opposite sex; and (3) sex reassignment surgery. The Standards of Care explain that although the first two treatment options provide sufficient relief for some patients, others with more severe GID may require sex reassignment surgery. Pursuant to the Standards of Care, after at least one year of hormone therapy and living in the patient’s identified gender role, sex reassignment surgery may be necessary for some individuals for whom serious symptoms persist. In these cases, the surgery is not considered experimental or cosmetic; it is an accepted, effective, medically indicated treatment for GID.

De’lonta, 708 F.3d at 522-23. In De’lonta, the Fourth Circuit held that, even though the inmate was receiving hormone treatment, and mental health consultations, and was allowed to live and dress as a woman, she still stated a plausible claim for deliberate indifference because prison officials denied her sex reassignment surgery. Id. at 525. The court noted that officials had provided the inmate with the first two prongs of treatment under the WPATH standards. Id. However, “just because Appellees have provided De’lonta with some treatment consistent with the GID Standards of Care, it does not follow that they have necessarily provided her with constitutionally adequate treatment.” Id. at 526 (emphasis in original). The court acknowledged that inmates do not have the right to treatment of their choice, but analogized sex reassignment surgery to a situation when prison officials prescribe painkillers to an inmate that requires surgery. Id. Thus, while prison officials “and the district court are correct that a prisoner does not enjoy a constitutional right to the treatment of his or her choice, the treatment a prison facility does provide must nevertheless be adequate to address the prisoner’s serious medical need.” Id.

Courts are trending toward accepting that hormone therapy and sex reassignment surgery may be constitutionally required because they may be the only medically adequate treatments for gender dysphoria. In fact, some courts have ordered defendants to provide sex reassignment surgery in response to motions for injunctive relief. In Kosilek v. Spencer, 889 F. Supp.2d 190 (D. Mass. 2012), the district court granted an injunction requiring the Massachusetts Department of Corrections to provide sex reassignment surgery to an inmate. However, the en banc First Circuit Court of Appeals ultimately reversed the district court after finding that the care provided to the inmate did not violate the Eighth Amendment, thus preventing the grant of injunctive relief. Kosilek v. Spencer, 774 F.3d 63, 89 (1st Cir. 2014) (en banc). The Northern District of California also recently granted an inmate injunctive relief and ordered the California Department of Corrections and Rehabilitation (“CDCR”) to provide sex reassignment surgery to an inmate with gender dysphoria. Norsworthy v. Beard, 87 F. Supp.3d 1164, 1187 (N.D. Cal. 2015). The Court cited De’lonta for the proposition that providing some medical care did not preclude a finding of deliberate indifference, especially in light of the WPATH standards. Id. The Court ordered CDCR to “take all of the actions reasonably necessary to provide [the inmate] sex reassignment surgery as promptly as possible.” Id. at 1195. CDCR appealed, but the inmate was released on parole one day prior to oral argument, rendering the appeal moot. Norsworthy v. Beard, 802 F.3d 1090, 1091-92 (9th Cir. 2015).

Because an inmate’s right to hormone therapy or sex reassignment surgery is becoming more clearly established, the defense of qualified immunity is also becoming less viable. “[Q]ualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The Supreme Court has established a two-part test for determining whether an officer is entitled to qualified immunity. Id. at 235-36. The court must determine “whether [the] plaintiff’s allegations, if true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002) (citation omitted). The court must also determine whether the constitutional right allegedly violated was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If the plaintiff satisfies both parts of the test, the official is not entitled to qualified immunity.

In an unpublished opinion, the Eleventh Circuit rejected a qualified immunity defense because at the time of the inmate’s incarceration in 2010, “the law was sufficiently clear to put [the official] on notice that refusing to provide [the inmate] with what she knew to be medically necessary hormone treatments was a violation of the Eighth Amendment.” Kothmann v. Rosario, 558 F. App’x 907, 912 (11th Cir. 2014) (unpublished). At least one district court within the Eleventh Circuit has followed Kothmann. See Diamond v. Owens, —F. Supp.3d —, 2015 WL 5341015, at *18-19 (M.D. Ga. Sept. 14, 2015) (citing Kothmann and holding that “the law was sufficiently clear” to alert defendants that their refusal to provide the inmate with treatment they knew was medically necessary or to refer her for treatment violated the inmate’s Eighth Amendment right to adequate medical care).

As courts accept the WPATH standards as the medically accepted standard of care, it seems likely that they will continue to rule in favor of transgender inmates who seek specific forms of treatment, such as hormone therapy or sex reassignment surgery.

Michael T. Davis and Tina Cheng are Associates at Nall & Miller, LLP in Atlanta, Georgia and they are both graduates of the University of Georgia School of Law.  Both Michael and Tina practice in the area of constitutional and governmental liability, specifically in the context of correctional health care law. Michael can be reached at mdavis@nallmiller.com, and Tina can be reached at tcheng@nallmiller.com.