30-C-1. Access to Gender-Related Medical Care
Many transgender prisoners seek access to gender-related medical care while in prison. The most common requests are for hormone treatments and gender reassignment surgery. For general information about your right to adequate medical care while in prison, see Chapter 23 of the JLM, "Your Right to Adequate Medical Care."
(a) Serious Medical Need and Deliberate Indifference
The Supreme Court established in Estelle v. Gamble that "deliberate indifference" to a prisoner's "serious medical needs" violates that prisoner's Eighth Amendment right to be free from cruel and unusual punishment.22
Circuit courts have regularly found that "transsexualism," also known as "gender dysphoria" or "gender identity disorder,"23 is a "serious medical need" that meets the Estelle standard.24 Many federal courts have held that transgender prisoners are therefore constitutionally entitled to some type of medical treatment for their condition.25 Nevertheless, most of these courts have held transgender prisoners do not have a constitutional right to any particular type of treatment, so long as they receive some kind of treatment, such as psychological counseling.26 Under these rulings, prison officials do not violate the Eighth Amendment when, based on their professional judgment, they refuse to provide a prisoner with the particular treatment she or he requests.27 As a result, most courts that have considered the question have denied transgender prisoners' requests for hormonal treatment while still upholding their right to medical care.28
Several more recent federal court decisions, however, suggest that courts are beginning to recognize circumstances in which prisons are required to provide hormonal therapy. In Phillips v. Michigan Department of Corrections, for example, a Michigan federal court granted a preliminary injunction directing prison officials to provide estrogen therapy. The prisoner had been taking estrogen since she was a teenager, but was prevented from doing so in prison. As a result, she started experiencing a physical transformation and severe depression.29 The Phillips court held that denying hormonal treatment in this case caused "irreparable harm" and violated the Eighth Amendment:
It is one thing to fail to provide an inmate with care that would improve his or her medical state, such as refusing to provide sex reassignment surgery or to operate on a long-endured cyst. Taking measures which actually reverse the effects of years of healing medical treatment ... is measurably worse, making the cruel and unusual determination much easier.30
Despite these encouraging developments in a few federal courts, courts in many other jurisdictions have continued to deny claims by transgender prisoners for hormonal treatment.31 Prisoners who are unable to demonstrate that they previously received hormone treatment before incarceration may still face an uphill battle, despite recent reform to the federal Bureau of Prisons policy.32 As cases indicate, the original determination made by prison medical personnel, rather than prior treatment history, will be given the greatest weight by the courts.33
(b) Access to Gender Reassignment Surgery
Courts generally do not require a prison to pay for or conduct any surgery, either genital or non-genital, related to a prisoner's gender identity or transition.34 If you are diagnosed with gender dysphoria by prison medical staff, then the prison may be required to give you treatment to comply with the Eighth Amendment.35 It may be difficult to get staff to diagnose you with gender dysphoria. In the case that you successfully are diagnosed with GD, you will not have a choice in what treatment you receive because treatment decisions are left to prison health care staff.36 If the "choice" of treatment is unacceptable to you, you can always refuse. If you feel that your medical need for gender reassignment surgery is not being addressed, you can try to show an Eighth Amendment violation. To do this, a prisoner must show (1) proof of a serious medical need, and (2) a prison's deliberate indifference to that need.37 Unless a doctor is willing to say that the chosen option would not address the serious medical need, prison health care providers have options to choose your treatment. Therefore, there is a chance that even if gender reassignment surgery is an option, it may not be chosen by the prison.38
Finally, if you experience health complications as a result of a prior...
