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Victory for Transgender People in Wisconsin Prisons

James Esseks,
Director, LGBTQ & HIV Project,
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June 7, 2010

The ACLU LGBT Project recently got a great decision (PDF) on a transgender rights issue from a federal court in Wisconsin. The result and the reasoning are a welcome sign that courts are starting to take transgender rights more seriously, and all the more heartening since the case arises in a prison context.

Prison doctors in Wisconsin, as in some other state prison systems, have for some time provided hormone therapy for some transgender prisoners, since hormones are part of the accepted medical treatment for many transgender people. Back in 2005, after the Wisconsin legislature got wind of this practice, it passed the “Inmate Sex Change Prevention Act,” which barred state prisons from providing hormone therapy or sex reassignment surgery to transgender prisoners. The new law over-rode the medical judgment of prison doctors and cut off hormone treatment. The ACLU, in partnership with Lambda Legal, sued immediately, securing a preliminary ruling that any prisoners already on hormone therapy could continue their treatments. Senior Staff Attorney John Knight, along with ACLU of Wisconsin Legal Director Larry Dupuis and lawyers from Lambda Legal, tried the case in the fall of 2007.

It took a few years to get a decision, but it was worth the wait. The federal trial court struck the statute down on two separate constitutional bases. First, the court held that the law violated the Eighth Amendment’s ban on cruel and unusual punishment of prisoners. The Eighth Amendment does not require first-rate medical care for prisoners, but it does require prisons to provide adequate medical care based on the individual needs of each prisoner. But as the court recognized here, the Wisconsin law actually prevents prison doctors from prescribing care that is medically necessary for some prisoners. Prison doctors, rather than Wisconsin’s legislators, should be deciding what care the state’s prisoners need.

The Eighth Amendment decision adds to a small but growing body of law recognizing that transition-related health care is medically necessary and that policies banning these treatments are unconstitutional.

We also argued that the law violated the Equal Protection Clause because it treated transgender prisoners differently for no logical reason. The state’s asserted reason for the ban on hormone therapy was that cutting transgender women prisoners off from hormones would decrease their feminine appearance and therefore decrease the risk of sexual assault by other prisoners. Although it is all too common for prisons to fail in their duty to protect transgender prisoners from violence and abuse, it was startling to see the government argue that it needed to deny necessary medical care in order to “protect” these prisoners. Courts that were uncomfortable with transgender people might have accepted that explanation as sufficient under the very deferential standard courts usually use for evaluating prison rules under the Constitution. But here the court focused on the fact that the state’s own prison security expert admitted that it was “an incredible stretch” to think that preventing some transgender prisoners from getting hormones would prevent future sexual assaults. He explained that hormone therapy “may or may not . . . have something to do with physical appearance,” which is just “one of many ingredients that may contribute to something that supports sexual attraction from one inmate to another which may or may not arise in the form of sexual assault.”

Such a clear-headed, logical, fact-based approach to the issue is a sign of the power of the Equal Protection Clause to expose bias in government. That courts are now able to get past the discomfort that many people feel about transgender people and apply such clear, dispassionate logic gives me great hope for the future and for other contexts in which transgender people are treated unfairly.

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