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Court Strikes Down Wisconsin Law Prohibiting Medical Treatment for Transgender Prisoners

James Esseks,
Director, LGBTQ & HIV Project,
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August 8, 2011

Last Friday, we got a fabulous ruling from a federal appeals court striking down a Wisconsin law that prohibited prison doctors from prescribing medically necessary treatments for transgender prisoners. It’s a great step forward in the ACLU’s continuing effort to explain to courts and to the country that transgender people have health needs that should be taken seriously by our health care system.

For many transgender people, access to transition-related health care is crucial to their ability to live consistently with their gender identity. This health care takes many forms — psychological counseling, hormone therapy, presenting in the new gender, and, for some people, a range of surgical procedures. But since our society often doesn’t consider this health care to be necessary or believe that transgender people have a legitimate medical condition, most insurance plans don’t cover it.

As advocates for transgender people, the ACLU’s challenge is to find ways to change the popular notion that transition-related health care is cosmetic or optional, rather than medically necessary to address a person’s serious distress. In the private health care world, we can and do advocate with employers and insurance companies for better coverage, but there are few legal claims we can bring.

But we can sue over the care provided to people in government custody — prisons, immigration detention facilities, or foster care group homes — because the Constitution requires that the government address people’s medical needs in those contexts. Bringing lawsuits over the care received in government custody not only helps people who are being mistreated, but also helps build a broader consensus that this care should be accessible to all transgender people. Wins like this can lead to coverage for transition-related health care in government programs like Medicaid and Medicare, and eventually to coverage under private insurance plans as well.

The 2005 Wisconsin law at the heart of this case was called the “Inmate Sex Change Prevention Act,” and barred prison doctors from prescribing hormone therapy or surgery to transgender prisoners. The ACLU, in partnership with Lambda Legal, sued and got a preliminary ruling that any prisoners already on hormone therapy could continue their treatments. Last spring, the federal trial court struck down the law in its entirety, and last Friday, the federal appeals court agreed. Wisconsin argued that the law was constitutional because the state still provided some treatment — psychological counseling and antidepressants — for transgender people.

The appeals court was having none of it:

“Surely, had the Wisconsin legislature passed a law that…inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional. Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture.”

Strong words indeed, but that’s just what we need if we’re going to change the way the country understands the medical needs of transgender people.

(Cross-posted to Pam’s Hosue Blend.)

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