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Transsexual Prisoners

 Do transgender prisoners have a right to be housed in a facility consistent with their gender identity?

Transsexual people who have not had genital surgery are generally classified according to their birth sex for purposes of prison housing, regardless of how long they may have lived as a member of the other gender, and regardless of how much other medical treatment they may have undergone[1] -- a situation which puts male-to-female transsexual women at great risk of sexual violence.  Transsexual people who have had genital surgery are generally classified and housed according to their reassigned sex.

One mechanism that is sometimes used to protect transsexual women who are at risk of violence due to being housed in male prisons is to separate them from other prisoners.  This is referred to as “administrative segregation.”  On the positive side, placing a transgender or transsexual woman in administrative segregation may provide her with greater protection than being housed in the general population.  On the negative side, however, administrative segregation also results in exclusion from recreation, educational and occupational opportunities, and associational rights.[2]

 Do transsexual prisoners have a right to obtain hormone therapy while in prison?

Some transsexual prisoners are able to maintain their hormone treatment in prison.[3] The policy of the U.S. Bureau of Prisons is to provide hormones at the level that was maintained prior to incarceration. Specifically, the policy provides:

“It is the policy of the Bureau of Prisons to maintain the transsexual inmate at the level of change existing upon admission to the Bureau. Should responsible medical staff determine that either progressive or regressive treatment changes are indicated, these changes must be approved by the [Bureau of Prisons] Medical Director prior to implementation. The use of hormones to maintain secondary sexual characteristics may be continued at approximately the same levels as prior to incarceration, but such use must be approved by the Medical Director.”[4]

Even if the prison does provide hormones, however, there is no guarantee that they will be provided at the appropriate levels and with the necessary physical and psychological support services.[5]  In addition, it is often difficult for transsexual prisoners to document a prior prescription for hormones, either because of the practical difficulties and limitations imposed by incarceration, or because many transsexual prisoners are indigent and do not have private physicians willing to advocate for them.  Moreover, even when transsexual prisoners are able to provide sufficient documentation, prison officials may disregard or flout the policy.

The issue of whether a transsexual person is entitled to hormone therapy while in prison has been litigated extensively, based on the established constitutional principle that it is a violation of the 8th Amendment prohibition on cruel and unusual punishment for prison officials to exhibit “deliberate indifference” to a prisoner’s “serious medical needs.” Until the last several years, in almost every case, courts have ruled in favor of prison officials.[6] More recently, however, prisoners have had more success.[7]   

[1] See Farmer v. Brennan, 511 U.S. 825, 829 (1994); Farmer v. Haas, 990 F.2d 319, 320 (7th Cir. 1993).

[2] See Darren Rosenblum, “Trapped” in Sing Sing: Transgendered Prisoners Caught in the Gender Binarism, 6 Mich. J. Gender & L. 499, 530 (2000).

[3] See Dennis Duggan, Is Treatment for Sex Change a Prison Perk?, Newsday, Dec. 13, 1994, at A14 (noting that, at the time of the article, there were seventy prisoners on hormone treatments in New York State prisons and seventeen in the New York City prisons).

[4] Bureau of Prisons Health Services Manual, Program Statement 6000.3, § 6803.

[5] See Rosenblum, supra note 62, at 545.

[6] See Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997) (recognizing that sex reassignment is the only effective treatment for transsexual prisoners, but holding that it is permissible to withhold treatment from transsexual prisoners in light of fact that neither public nor private health insurance programs will pay for sex reassignment); Long v. Nix, 86 F. 3d 761 (8th Cir. 1996) (holding that prisoner diagnosed with gender identity disorder had no right to cross-dress or to estrogen therapy); Brown v. Zavaras, 63 F.3d 967 (10th Cir. 1995) (rejecting equal protection claim brought by pre-operative male-to-female transsexual based on evidence that Colorado provided hormone therapy to non-transsexual prisoners with low hormone levels and to post-operative male-to-female transsexuals); White v. Farrier, 849 F.2d 322 (8th Cir. 1988) (holding that male-to-female transsexual prisoner is not entitled to cross-dress or wear cosmetics and does not have a constitutional right to hormone therapy); Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987), cert. denied, 484 U.S. 935 (1987) (holding that transsexual prisoner is constitutionally entitled to some type of medical treatment for diagnosed condition of transsexualism, but she “does not have a right to any particular type of treatment, such as estrogen therapy”); Jones v. Flannigan, 1991 U.S. App. LEXIS 29606 (7th Cir. 1991) (same); Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986) (same); Lamb v. Maschner, 633 F. Supp. 351 (D. Kansas 1986) (holding that transsexual prisoner had no right to hormone therapy). See also Cuoco v. Mortisugo, 222 F.3d 99 (2nd Cir. 2000) (holding officials entitled to immunity against claim by transsexual pre-trial detainee who was denied hornomes).

[7]. See South v. Gomez, 211 F.2d 1275, 2000 WL 222611 (9th Cir. 2000) (finding 8th Amendment violation where a prisoner’s course of hormone treatment was abruptly cut off after being transferred to a new prison). Cf. Kosilek v. Nelson, 2000 WL 1346898, at * 3 (D. Mass. 2000) (assuming without deciding that transsexualism is a serious medical need, but finding insufficient evidence of deliberate indifference). Cf. Wolf v. Horn, 130 F. Supp. 2d 648 (D. Pa. 2001) (noting that abrupt termination of prescribed hormonal treatment by a prison official with no understanding of Wolfe’s condition, and failure to treat her severe withdrawal symptoms or after-effects, could constitute “deliberate indifference”).

  See also Phillips v. Michigan Department of Corrections, 731 F. Supp. 792 (W.D. Mich. 1990), aff’d, 932 F.2d 969 (6th Cir. 1991) (granting preliminary injunction directing prison officials to provide estrogen therapy to a pre-operative transsexual woman who had been taking estrogen for several years prior to her transfer to a new prison and distinguishing failure “to provide an inmate with care that would improve his or her medical state, such as refusing to provide sex reassignment surgery” from “[t]aking measures which actually reverse the effects of years of healing medical treatment”).  

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