Circuit Split Arises Over Transgender Prisoner Rights
It is well known that the Eighth Amendment to the Constitution prevents cruel and unusual punishment. However, what constitutes cruel and unusual punishment is a decision that is left to the court’s’ discretion. There is a deep divide as to whether core issues such as the death penalty meets the standard of cruel and unusual punishment. If there is a disagreement over these central issues, the hot button issues will inevitably have a profound disagreement. Currently, there is a circuit split amount the federal courts of appeals as to whether denying a transgender prison sex reassignment surgery constitutes cruel and unusual punishment.
The Eighth Amendment has been interpreted in a variety of situations, including the medical needs of prisoners. In Estelle v. Gamble, the United States Supreme Court held that a prisoner’s Eighth Amendment medical rights are violated if there is deliberate indifference to serious medical needs of prisoners constitutes the usury and wanton infliction of pain. It has been argued that denying transgender people their healthcare surrounding their gender dysphoria meets this standard.
Being transgender means that a person’s biological sex does not match their gender expression. Most, if not all, transgender people use hormone replacement therapy to start their transition. However, hormone replacement therapy only provides secondary sex characteristics. Total sex-reassignment surgery is needed to “complete” the transition. Sex-reassignment surgery is a long, painful, and expensive process. It is no small feat and is major surgery.
Almost all circuits that have examined this issue, the First, Fifth, Seventh, and Tenth Circuits, hold that a doctor withholding sex reassignment surgery from a transgender person is not cruel and unusual punishment. However, the courts all come to this conclusion with different reasoning. The First Circuit held that providing transgender women access to hormones, hair removal, and access to feminine attire was enough to avoid a claim of cruel and unusual punishment. The Court found that denying gender reassignment surgery to a transgender female was not a violation of the Eighth Amendment and listed various practical reasons. The Court noted that providing the surgery would create issues with security and housing. Further, the healing process after sex reassignment surgery is long and painful. Prisons are filthy, and the risk for infections is high.
The Seventh Circuit took a similar approach and found many practical issues with offering the surgery. The Tenth Circuit found that hormone therapy and psychological treatment were sufficient care. Down in the Fifth Circuit, it took a characteristically conservative approach. In fact, the Fifth Circuit held that it actually would be unusual if a prison granted sex-reassignment surgery.
What happened in the Edmo case?
In Edmo v. Corizon, the Ninth Circuit broke from its fellow circuits and created the split. The Court chose to focus on a standard developed by the World Professional Association for Transgender Health. This standard is a medical standard of care that was created to determine whether gender reassignment surgery for an individual is required. The WPATH criteria are six factors that psychologists use. Those factors are: persistent well-documented gender dysphoria, capacity to make fully informed decisions and to consent for treatment, age, medical or mental health concerns must be controlled if present, twelve continuous months of hormone therapy, twelve continuous months of living in a gender role that is congruent with their gender identity.
In this case, the Plaintiff was suffering from severe gender dysphoria. The Plaintiff had tried to castrate herself and even attempted suicide. The Court rejected the idea that any medical care makes a prison doctor immune from an Eighth Amendment claim. Although the prison doctors, in this case, denied the plaintiff gender reassignment surgery, the Court held that they did not violate the Eighth Amendment because the psychologists had legitimate medical reasons for denying the surgery. The Plaintiff’s mental health issues alone were so severe to run afoul of the WPATH medical factors. However, although this Plaintiff was not “ready” to have sex reassignment surgery based on medical standards, the Court held that if a prisoner meets all six medical criteria for sex reassignment surgery, it would be cruel and unusual punishment for the prison to perform the procedure.
Based on these facts, the Court held that sex-reassignment surgery is a medical necessity. Therefore, the Ninth Circuit set a new precedent and held that the state must pay for the sex-reassignment surgery of a prisoner to avoid running afoul of the Eighth Amendment.
It is unclear if this circuit split will result in a United States Supreme Court decision. However, given the conservative supermajority of the Court, the Court would almost certainly side with the majority of circuits and hold that denial of sex reassignment surgery is not a violation of the Eighth Amendment. A textualist and originalist view of the Eighth Amendment would show that denying sex reassignment surgery in prison does not rise to a Constitutional violation. Overall, there are many practical and medical considerations that come into play here, the biggest being the cost and overall healing process of such a major surgery. As transgender people become more accepted in society, it will be interesting to see how the law develops.
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