Thanks to the prohibition of cruel and unusual punishment in our Constitution, we have some simple and basic legal rules when it comes to prison health care. Prisons must provide the people in their custody adequate health care. Prisons can’t ignore people’s serious health needs. Decisions about what treatments people need must be made by health care professionals with the necessary expertise, not prison bureaucrats. Prisons can’t have blanket policies that say no one can ever get a certain form of health care, even if doctors say they really, really need it.

Yesterday a federal court invoked these very uncontroversial legal principles to rule that California prison officials must provide Michelle-Lael Norsworthy, a transgender woman incarcerated at a men’s prison, with gender confirming surgery her doctors and medical experts say she desperately needs. Read more »

Doctor: Gender confirming surgery a necessity for Michelle

Michelle has for years suffered severe physical and mental distress because the prison flatly refused to provide her with surgical care she needs to treat her gender dysphoria. Her treating doctor determined that gender confirming surgery was “a clinical and medical necessity for her health and well-being.” Still the prison refused.

Some – though not all – transgender people need health care related to gender transition. According to the widely accepted Standards of Care for transgender healthcare, hormone therapy is often necessary to help align a person’s gender identity (the gender one knows themselves to be on the inside) and physical characteristics. However, for some people hormone therapy is insufficient or causes health risks. The Standards of Care state:

While many transsexual, transgender, and gender-nonconforming individuals find comfort with their gender identity, role, and expression without surgery, for many others surgery is essential and medically necessary to alleviate their gender dysphoria.

In Michelle’s case, her doctors and medical experts say she needs gender confirming surgery. The prison argued that giving her hormone therapy was all they had to do, even though hormones had not effectively resolved her distress and were risky for her to take because of other medical conditions. The court correctly ruled that constitutionally adequate health care is the treatment doctors say a prisoner actually needs, not treatment that isn’t working.

Thanks to the preliminary injunction granted yesterday, Michelle will now hopefully get gender confirming surgery. She told the court that she is “a woman trapped in a man’s body,” and that without the ability to conform her body to her gender identity, her spirit is “imprisoned in a way that causes excruciating pain and frustration,” and she can't “complete her existence or complete who she is.”

Everyone not only deserves adequate health care but also the ability to be themselves and to feel comfortable in their own skin.

We at the ACLU congratulate Michelle Norsworthy, and her lawyers at Transgender Law Center and Morgan Lewis & Bockius LLP, on this important victory.

Melissa Goodman is the Director, of the LGBTQ, Gender & Reproductive Justice Project at the ACLU of Southern California.

California created the nation's first paid family leave (PFL) program for workers more than a decade ago. The groundbreaking legislation has since helped many people meet their family caregiving obligations and bond with their children. But the system is flawed and needs a tune-up.

California's system is unique because it allows workers to get paid time off to bond with a newborn or adopted child or care for sick family members (a child, spouse, parent, parent-in-law, sibling, grandparent or grandchild). Only two other states have PFL programs. In the rest of the nation parental and family leaves don't come with pay -– thanks in part to our country's sad distinction as the only developed nation without a national paid leave program. Employees are just magically expected to meet their family caregiving obligations while losing their means to buy food and pay the rent or mortgage. California's program is funded entirely through worker contributions, not the state. It’s a benefit program we pay into through our paychecks.

So what's wrong with the system?

• There is no guarantee you won't be fired for using the program. If you work at a California company with fewer than 50 employees -– and 40 percent of California workers do -– the PFL law does not prohibit your employer from firing you. The program provides only for wage replacement (money); it doesn't give you job protection. Workers in California have job protection for taking family leave through the federal Family Medical Leave Act and the California Family Rights Act. But those laws only apply to companies with 50 or more employees. And they don't protect you if you've taken the leave to care for a sibling, grandparent, or grandchild. You may, in some instances, be protected by gender discrimination laws, but that is complicated and depends on the facts in each case. So there's a big gap and if you're at a smaller company, you use the leave program at your own peril. In a 2011 survey of those who knew of the PFL program and needed it, 37 percent said they did not apply because they feared they would be fired or face negative consequences at work.

• People are expected to live on half-pay. When you use the PFL program you take a 45 percent pay cut. Chances are, you can't afford to do that. The program gives workers only 55 percent of their pay, not full pay. In that 2011 survey, nearly a third of respondents who were aware of PFL did not apply for it when family needs arose because the wage replacement was too low. The low benefit, coupled with increased financial burdens when having a baby or caring for a relative, makes it financially impossible for many workers to use the program.

• After six weeks of paid leave, you're stuck resorting to unpaid leave again or returning to work. Let's be honest here. Six weeks of paid time usually is not enough to meet a typical person's caregiving obligations or to bond with a new child. If you are a parent, did you feel sufficiently bonded with your child at six weeks and ready to spring back to work, energized from your four hours of sleep per night? And while some people use the family leave program to care for family members with short or one-time medical needs, many people use the program to care for loved ones with chronic conditions who, over the course of the year, need more than six weeks of care. If you want a comparison here, look at the 38 Organization for Economic Cooperation and Development member states–the United States' peers–that provide a median of five full months of paid leave to new parents.

Good news on the horizon

• Expanding Access to Family Leave (SB 406) - This bill, sponsored by Senator Hannah-Beth Jackson (D-Santa Barbara), will expand the job protection in the California Family Rights Act to cover employers that employ five or more people (dropping it from 50 employees) and to cover leaves taken to care for a grandparent, grandchild, sibling, parent-in-law or child (without restriction to age or dependent status).

• Strengthening Paid Family Leave for All Families Act (AB 908) - This bill, sponsored by Assemblymember Jimmy Gomez (D-Los Angeles), will raise the wage replacement rate from 55 percent to as much as 80 percent depending on income, and extend family leave to 10 weeks. All workers who have funded the PFL program through deductions from their own paychecks deserve robust wage replacement while on leave and a sufficient amount of time to concentrate on what matters most--bonding with a new baby or caring for a seriously ill loved one--without risking severe financial hardship.

If you agree that workers should be able to meet their family caretaking responsibilities without risking losing a much-needed paycheck, and that California's paid family leave program should be strengthened, write to your state representatives to support these bills when they have the chance. Find your representative here.

Melissa Goodman is senior staff attorney at the ACLU of Southern California.