There is no “transgender exception” to the Eighth Amendment of the Constitution—the provision that prohibits “cruel and unusual” punishment. That prohibition obligates prisons to treat inmates’ serious medical needs regardless of their sexual orientation. And that treatment includes gender-affirming surgery for the most severe forms of gender dysphoria.
In a friend of the court brief filed in the Ninth Circuit Court of Appeals, the ACLU and other civil rights organizations argued that the California Department of Corrections and Rehabilitation (CDCR) should be required to provide Michelle-Lael Norsworthy’s medically necessary care for her gender dysphoria. The ACLU was joined by a dozen other organizations that work to protect the rights of prisoners and lesbian, gay, bisexual, trans and queer (LGBTQ) people.
The corrections department has provided Michelle with counseling and low doses of hormone therapy to treat her condition, but they are not working. That treatment is not alleviating the “excruciating” pain and suffering she experiences by not being able to conform her body to her gender identity–the gender she knows herself to be internally. The treatment also poses serious health risks due to a liver condition.
For these reasons, Michelle’s treating clinician determined that surgery for her gender dysphoria was “a clinical and medical necessity for her health and well-being.” A number of medical and mental health professionals with expertise in transgender health care agree. Her clinician’s recommendation was fully in line with professional standards that guide transgender health care. According to those standards, some people need medical treatment to align their gender identity and their physical characteristics.
While psychotherapy and/or hormone therapy is a sufficient treatment for many transgender people, there is overwhelming medical consensus that for some others with the most severe forms of gender dysphoria, gender-affirming surgery is the only available treatment that can address their pain and suffering.
CDCR refuses to provide Michelle with the surgery, the only treatment that would adequately address her serious medical needs. The department agrees that Michelle has a serious medical need, but it takes the position that it has fulfilled its constitutional obligation by giving her some treatment even though it has proved ineffective.
That argument is just flat-out wrong and plainly so if you pause for a second and take it out of the misunderstood world of transgender health care. Imagine, say, a prisoner has ovarian cancer. Now imagine that the prison provided her with radiation therapy but it did not eradicate the cancer and her doctor decided that a hysterectomy was now medically necessary to treat her cancer. No prison official would argue with a straight face – and certainly no court would accept – that the prison was free to ignore the doctor’s conclusion and refuse to provide the surgery.
That’s basically what CDCR is arguing in Michelle’s case, and we provided a number of reasons why that argument is wrong under very basic Eighth Amendment law. Our brief also argues that the district court was quite right to look at well-established professional standards of care when rejecting the prison’s position that gender-confirming surgery was merely elective and need not be provided.
In a nutshell, we argued there is a clear constitutional rule at play here: the Eighth Amendment requires the state to provide medically necessary treatment to prisoners with serious medical needs in a manner consistent with prudent professional standards and appropriate to the individual prisoner’s current medical condition. There is no “transgender” exception to that rule.
Melissa Goodman is director of the LGBTQ, Gender & Reproductive Justice Project at the ACLU of Southern California. Follow ACLU_SoCal.