Dr. Jillian T. Weiss

Incarcerated Transgender Woman Can Pursue Case for Appropriate Medical Care

Filed By Dr. Jillian T. Weiss | June 11, 2010 1:00 PM | comments

Filed in: The Movement, Transgender & Intersex
Tags: Eighth Amendment, prison medical care, prisoner rights, transgender prison

Federal, state and local authorities in charge of jail and prison inmates are responsible for their health care. This is a big responsibility, because the U.S. incarcerates about 2.5 million people, more than any nation on earth. Appropriate medical care is also a Constitutional duty, because denial of appropriate medical care constitutes cruel and unusual punishment prohibited by the Eighth Amendment.

Transgender prisoners have had a very difficult time getting appropriate medical care, partly because of prejudice and ignorance on the part of prison officials, and partly because denial of medical care is quite routine in U.S. prisons, particularly for anything even remotely related to mental health. While there are many corrections officials who do the right thing (and I know some personally), many do not, and the troubles of trans prisoners are legion.

The court system has adopted a system of general indifference to claims about prisoner medical care, and the law generally permits them to ignore such claims. Even after the US Supreme Court admitted somewhat grudgingly in 1994, after years of scoffing by prison officials, that putting transwomen in with male prisoners just might result in an Eighth Amendment violation when they got raped and sexually assaulted, the prison system has treated trans prisoners in an especially brutal and uncaring fashion. Prison-industrial complex, anyone?

Now comes news from Massachusetts that a federal judge has decided that Vanessa Adams, a federal prisoner incarcerated in Missouri, may pursue her claims to appropriate transgender medical care in federal court.

While Ms. Adams' case has a long way to go before it can be called successful, trans prisoners have had so little success over the years that even the mere admission that she has a hypothetical right to appropriate medical care can legitimately be called a victory. Her story, however, is all too common.

More on Ms. Adams' case, and the background of trans prisoner issues, after the jump.

Here's the press release from NCLR with the horrific facts of this case:

A U.S. district court judge in Massachusetts has denied the government's request to dismiss the case of Vanessa Adams, a Federal Bureau of Prisons (BOP) inmate with gender identity disorder (GID). For years, the BOP denied Ms. Adams treatment for her serious medical condition. As a result, Ms. Adams attempted suicide multiple times when prison doctors failed to provide any treatment. She eventually removed her own genitals. Ms. Adams now challenges the federal policy that prison doctors and other medical providers used to justify the denial of her treatment.

At issue is BOP's so-called "freeze frame" policy in which treatment for any prisoner with gender identity disorder is frozen at the level being provided when he or she entered BOP. In other words, because Ms. Adams did not receive treatment for GID before being incarcerated, BOP would not provide it to her after her incarceration.

Vanessa Adams is being represented by Gay & Lesbian Advocates & Defenders (GLAD), Florida Institutional Legal Services (FILS), the National Center for Lesbian Rights (NCLR), and Bingham McCutchen LLP. The organizations hold the position that people should receive medically-necessary treatment for serious health conditions while in our nation's prison system, including transgender-related health needs.

"Unfortunately, despite the fact that GID is well-recognized as a serious medical condition, individuals with GID face stigma and bias. In Vanessa's case, stigma and bias alone have deprived her of the medical attention she needs. By filing this case, she seeks to ensure that transgender inmates with serious medical needs get appropriate care, just as prisoners with heart conditions and diabetes should," said Jennifer L. Levi, Transgender Rights Project Director for GLAD.

Cassandra Capobianco of Florida Institutional Legal Services added, "It is critical not only for Vanessa's health and safety but for the good of other prisoners that BOP's policy be changed."

"We're pleased that the judge recognized the inhumanity of the BOP policy, and that Vanessa will have her day in court," said Shannon Minter, Legal Director of NCLR.

In its June 7 ruling, the Court rejected BOP's argument that Ms. Adams' claim should be invalidated because the prison finally started her on hormones. Citing the BOP's consistently callous conduct toward Ms. Adams, the fact that BOP could stop Ms. Adams' treatment at any time, and the fact that BOP continues to enforce its freeze-frame policy, the Court ruled that the question of the constitutionality of the policy remains open.

This case will now in all likelihood proceed to trial.

More information about Adams v. Federal Bureau of Prisons, including the complaint and the decision, can be found at www.glad.org and www.nclrights.org.

The Bureau of Prison's "freeze frame" policy is nothing more than an excuse to deny care. It's as if they denied care to someone who developed heart disease, because, well, they didn't have heart disease when they came into prison. The idea that appropriate treatment for trans prisoners is somehow a privilege simply shows how uncaring most prison authorities are about transgender people.

And then their tactics: okay, this one finally got a complaint into the legal system, so we'll treat this one, and say it's a moot point, so there's no precedent saying we have to treat trans prisoners appropriately.

Callous Disregard of Trans Prisoners Is Endemic to the System

Here's another case that demonstrates the kind of cruelty that pervades the system.

Gammett v. Idaho State Bd. of Corrections
2007 WL 2186896
US District Court for Idaho
July 27, 2007

Idaho prison guards refused to recognize that this trans woman had a non-traditional gender identity, despite her 75 requests over time for treatment, and refused her treatment. She had some co-occurring mental disabilities, and her gender identity disorder became so severe that she tried to commit suicide, and later essentially operated on herself, successfully removing her hormone-producing organs. Although it is well-acknowledged that people in such cases need to have hormone replacement in order to prevent some serious physical problems, the prison guards cruelly mocked her by offering her testosterone replacement or nothing.

When sued, the Idaho jailers said she did not have gender identity disorder, but instead said their docs had diagnosed her at different times with a lot of other mental conditions, ranging from "sexual disorder not otherwise specified," bipolar disorder, antisocial personality disorder, and/or attention deficit disorder with hyperactivity (ADHD). Basically, they just picked anything out of a hat, other than gender identity, just to keep her from what she needed.

The court recognized that hypogonadism is a serious physical problem. In trans women, lack of hormones can cause dangerously-high body fat accumulation, muscle wasting, osteoporosis, severe fatigue, difficulty concentrating, hot flashes, irritability, and major depression.

Five months after the self-castration, the guards finally let her be seen by an endocrinologist. This Dr. Christensen wrote a report in which he said that he cruelly told her all of the physical dangers of hormone deprivation, including the unproven idea that she would get heart disease. Then, after frightening her with all of the medical problems she was going to have, he refused to prescribe estrogen.

Why? Because he said she needed an evaluation by a psychologist with experience in gender transition. Of course, that was something she'd been asking for a long time, something which the prison guards had long refused to give her.

I can hear the prison guards laughing now at her plight.

In addition, to these cruel jokes, the Idaho guards seem to have taken particular pleasure in levying a disciplinary offense against her, and then offering to make a disciplinary offense report "go away" if she took testosterone.

In response to a request inquiring about treatment for gender identity disorder, the CMS psychologist, told her to get art therapy.

Fortunately, the federal judge, recognizing the absurd cruelty of the Idaho jailers, ordered that she receive appropriate female hormone therapy and psychotherapy to address her gender identity issues. While the person in this case receive some small measure of justice, finally, it stands as an illustration of the cruelties of the prison system towards transgender health.

Want another travesty of justice? Here you go:

Stevens v. Williams
2008 WL 916991
US District Court for Oregon
March 27, 2008

This federal court tossed out a claim by a male-to-female transsexual prisoner for transgender medical care, based on the mere fact that a state court, which had obviously bungled the case, had also rejected the claim.

The federal judge acknowledged that an inmate's transsexualism is a serious medical need to which prison officials may not be deliberately indifferent without violating the Eighth Amendment. But he abdicated any responsibility to inquire into the facts of this case. He breezily admitted that the state court had made no record of the proceedings, findings of fact, or conclusions of law, and there was no way to tell whether the issues had been properly addressed. However, he said that was no concern of his. The only thing required by the law is a chance to present the case, and that was given, even if it was improperly denied. "As a result, Stevens is precluded from relitigating his [sic] Eighth Amendment claim for deliberate indifference to his [sic] serious medical needs."

-----

There Are Some Successes And You Can Help

There have been some successes in this field. Here's one that happened last month, in relation to a Wisconsin statute that prohibited the provision of any hormones to any trans prisoners in Wisconsin jails and prisons.

Fields v. Smith
2010 WL 1929819
E.D.Wis.,2010.
May 13, 2010

Wisconsin inmates, who were diagnosed with Gender Identity Disorder (GID), broughtan action against officials, alleging, among other things, that officials violated the Eighth and Fourteenth Amendments by enforcing a Wisconsin statute preventing medical personnel from providing hormone therapy to inmates with GID and from evaluating inmates with GID for possible hormone therapy.

The District Court, C.N. Clevert, Jr., Chief District Judge, held that:
(1) GID or transsexualism was "serious medical need" for purposes of Eighth Amendment;
(2) enforcement of the statute against inmates violated the Eighth Amendment and the Equal Protection Clause;
(3) the officials' defense, that certain inmates seeking treatment for gender issues might not need hormone therapy, was no defense

Here's the press release on Fields v. Smith from Lambda Legal.

The treatment of transgender people in our nation's prisons and jails is nothing short of shameful. In our quest for better treatment in workplaces and government offices for those fortunate enough not to have had a serious run-in with the criminal justice system, we must remember that there are thousands of us locked away with not a friendly face in sight. We must not forget them.

Lambda Legal, NCLR, the Sylvia Rivera Law Project and others are doing important work in trans prisoner rights. Please consider making a donation to this important work. Another option is to become a pen pal, providing friendship to those who are in desperate straits. One I know of is T/I/G Prisoner Pen Pal Project (151 1st Ave #228 NY, NY 10003).

Thank you to all who are helping in this fight for justice.


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What a ridiculous post.

First, this was nothing more than a denial of the motion to dismiss. At this stage in the case, the court has to assume that everything in the complaint is factually true and then decide whether the case can be dismissed anyway. Surviving such a motion is hardly a victory. It simply means that this trans criminal has avoided getting the boot at the starting gate.

This criminal will not win, because all the government has to do is put on enough evidence to show that the BOP's policy is reasonable. They don't have to "win" a scientific debate over GID. There are many things over which prisoners will try to kill themselves. The prison's duty is to take reasonable steps to prevent suicide. It doesn't have a duty to satisfy the prisoner's underlying needs.

Second, there is no way that a ruling that gives trans criminals the "right" to taxpayer-funded hormones and surgery will survive the 1st Circuit or the Supreme Court, assuming it ever gets there.

It would have been nice of you to mention who it was that this trans criminal killed, maimed, or otherwise victimized. It also would be good to know whether those victims get any free medical care. Maybe you could let us know when you will be posting about this on TPB.

Why don't you tell us which kinds of medical care are appropriate and which kinds of medical care should be disallowed by the US Justice System?

Why don't you tell us how the US Justice System is supposed to levy harsher punishments against trans prisoners than against cis prisoners. Please feel free to justify this anti-humanitarian position at length, if only to serve your ideolological framework.

It does not matter whether she stole a loaf of bread or cooked and ate Hansel and Gretel - denial of medical care is not punishment, but revenge for the bloody-minded. Those who talk "tough" are people who likely have never seen the inside of a prison, and maybe wouldn't last long there.

Amy Hunter Amy Hunter | June 11, 2010 10:21 PM

Thank you for posting this Jillian-

While this may not be a precedent setting ruling, talking about it has tremendous merit.

Treatment of transpeople in jails, prisons and homeless shelters is often atrocious. In Michigan prisons, the State places you in the population which matches your sex-as defined by your genitals. The local Gospel Mission, (once my home), does the same. This shelter receives state and federal funds for general operations expenses. The Kalamazoo Co. emergency shelter also follows the State of Michigan guidelines for housing of trans clients. During negotiations over language for Kalamazoo's non-discrimination ordinance, I sat down with the directors of The Gospel Mission. My first appeal was to persuade them to change the policy to allow transpersons to be housed according to the gender they assert or present. An unequivocal "NO" was the not entirely unexpected response. I then asked if they would, at the very least, give a transperson information about where they would be housed appropriately, again a firm "NO". This truly confused me-"what on earth could be wrong with offering homeless people options for proper shelter?" The answer was shocking, "it would be like sending a pregnent girl for an abortion"--WOW.

Simple respect for human dignity demands that we talk about abuse of people who are not in a position to fight for themselves. It does not matter if you are homeless, a prisoner, disabled, mentally ill--whatever the disadvantage, we as a society have an obligation to learn that we all deserve to be treated humanely.

Your post is bloody minded, not mine. From your post, one could conclude that you don't care a whit about this person's victims. You don't say a word about them and you likely never will. Your only concern with this case is that the criminal is trans.

Your casual use of the phrase "denial of medical care" is meaningless. It simply assumes your conclusion (that this criminal is entitled to "medical care" that includes hormones). In fact, "medical care" in prison does not include every medical option and every medical procedure available, even if some of those options and procedures would be the preferred course of treatment under ideal conditions. Free care provided by prisons is basic care. It must meet minimum standards, not optimal standards. It might be preferable and medically justified for every prisoner to demand a personal dietician, a yoga instructor, a chiropractor, and a chair with lumbar support. But they have no entitlement to such "care". Nor does a trans criminal have any entitlement to hormones. If lack of hormones is causing suidicidal tendencies - which oddly never manifested before the taxpayer started footing the bill for her "care" - then put her in PC and/or on suicide watch.

Interestingly, a few months ago, a trans writer posted here about a case in which a trans criminal who was imprisoned after having undergone hormone treatments had a right to continue the treatments in prison. It was argued that to stop the treatment after it had started was fundamentally different from demanding that the therapy commence after incarceration. Now you demand that the taxpayers start therapy that this criminal was somehow able to live without for years prior to incarceration. Trans activists should get together and figure out which lies they want to disseminate to the public.

I suspect that you'd be one of the first to object to HIV+ prisoners being prescribed a weekly aspirin tablet rather than retrovirals.

Treatment doesn't have to be optimal: but it has to be reasonable, and commensurate with the medical condition. There's plenty of caselaw on this.

This was best expressed in the case involving the Wisconsin Inmate Sex Change Prevention Act, which you no doubt heartily approve of. The prison medics stated under oath that they didn't have sufficient budget to deal with the physical health problems - let alone any mental ones - of trans prisoners denied hormones. They argued on the basis of money - it's cheaper to keep them on appropriate medications.

I know you don't like trans people - but how much extra in taxes are you willing to pay to have them suffer and die?

The whole idea behind the prohibition of "cruel and unusual punishment" is that we're supposed to be better than that.

The Sylvia Rivera Law Project also has correspondence program.

http://srlp.org/penpal

They'd better get these decisions through now, because the climate is turning more and more against prisoners. Did something wrong? Lock em up and throw away the key!

Compassion is dead.

It kills me how most of the posts on this topic fill up with "It's prison, not Club Med!" comments as if prisoners go to jail just for the medical treatment.

Usually I have strong opinions on issues like this, but I must admit to some ambivalence here.

On the one hand, of course I support prisoners getting proper medical treatment while incarcerated. On the other hand, however, there are many law-abiding transsexuals (myself included) who cannot access hormones consistently because we cannot afford them and the required medical treatment.

The question I wrestle with is should an incarcerated transperson, (presumably) a criminal, have greater access to hormones because they are wards of the state than those of us who obey the law but must do without hormones solely because we can't afford them?

I'm not saying I have an answer here, but it's that unanswered question that prevents me from giving full and wholehearted support here.

Rebecca - to far too many law enforcement people, there's no such thing as a "law abiding transsexual".

Remember - to get this kind of treatment, all you have to do is be arrested and denied bail. You could be waiting for months for it to get to trial, even though you're innocent and can prove that.

All it takes is for you to be assaulted, and someone to call the police. Odds of you getting charged are non-zero, even if you were knocked unconscious by the first blow.

Remember, African Americans are still arrested in some places for "driving while black". I know one trans woman stopped by a cop because she was driving slowly, looking for the right turnoff, who was arrested (and I kid you not) on suspicion of being a British Spy.

She got an apology from the desk sergeant, but not all do. Some get beaten up instead. While not having broken a law is a good defence, it's not perfect. Not for cis people, and less so for trans. Most jurisdictions aren't like that - but some are.

Amy Hunter Amy Hunter | June 13, 2010 7:22 AM

Thanks for your honest musing Rebecca.

I think however, that your question is about apples and oranges. Do we not, in this country, face two significant discrimination issues?

--All people, including transpeople should have equal access to appropriate healthcare.

--All prisoners, including transpersons have a constitutional right to appropriate healthcare.

Yes, it would seem unfair that an inmate could potentially have better access to healthcare than a (presumably) law-abiding citizen. There are unquestionably (and sadly) prisoners who receive better healthcare for other legitimate conditions than those who are economically disadvantaged.

We have a responsibility as a society to solve both of these problems. Incarceration should never constitute cruelty-and no citizen, law-abiding or otherwise should ever need to go without healthcare.

I have an answer.

If you are sent to jail with a legitimate prescription for estrogen, spirolactone, HIV treatment, Prozac; fine you keep getting the prescription.

If you arrive in jail without a legitimate prescription, then you should go through the same diagnosis process of any other prisoner. Outside of HRT I don’t support any other medical procedures related to transition for transgender prisoners.

There are numerous issues regarding the treatment, safety, legal process, and incarnation rates for too many folks in this country. I do not see transgenders as facing issues of any greater outrage or injustice than millions of other inmates.

I have a great deal of respect for the work of an org like SLRP and think it’s an area where trans folks could provide real support in all fifty states, rather than this merry-go-round of ENDA at the national level.

Unauthorised medication is considered contraband. Prisoners are not allowed to pay for optimal treatment, if that's not being provided.
This applies to prisoners on remand, awaiting trial too.

Thanks so much for this post, Jill. The medical necessity of transition related treatment, for those trans people who need it, is well established and affirmed by WPATH, the AMA, and the American Psychological Association. When inmates are singled out for denial of essential medical care because they are trans, they are punished for how they were born rather than for the crimes of which they were convicted. This inflicts suffering and humiliation apart from that experienced by other inmates. These practices are deliberately unusual and gratuitously cruel.

I'll add that the Gender Identity Center of Colorado has for many years published the Trans in Prison (TIP) Journal, distributed free of charge to over 500 inmates nationwide. Your financial support of this important project is very much needed and appreciated. See gicofcolo.org/tip.aspx/

This is not a black and white issue. Consider the case of Richard Speck who viciously murdered 8 nurses in 1966 (those of us of a certain age will never forget this case). In prison he convinced the State he was really a transsexual after first attempting a "supermale" defense by claiming (falsely) he was XYY.

His is not the only case like this.

On the other hand, transwomen who have accessed black market hormones due to poverty should be allowed to continue hormone use in prison, anything less is inhumane and a case on just this point was made by a friend of mine a couple of years ago on behalf of a transwoman prisoner.

Frankly, I do not believe that someone who never sought any treatment for transsexuality prior to incarceration should expect it afterwards but those who have self medicated or been under treatment should have that treatment continued.

In the past I have been contacted by trans prisoners who expected me to lie to prison officals on their behalf about being members of our religion. It is not a simplistic one size fits all issue at all.

Oh, on surgery provided by the State to prisoners, until such time as Medicare and Medicaid cover it, the State should not provide it to a prisoner. That is an issue of basic fairness.

twinkie1cat | June 15, 2010 3:42 AM

Jails and prisons consistently disregard the need of inmates of all types because they are not considered human beings and are guarded by people who have their jobs because they don't know how to do anything better. Transprisoners are particularly vulnerable because there is no one more bigoted than those uneducated bigots who work in the prison systems. It has taken federal lawsuits, often handled by the ACLU, to give prisoners even basic rights. The jails around Atlanta have been for years under supervision to prevent medical care abuse. Legal action is the only way to make them create humane environments.

As for what the woman did to get locked up goes, it really does not matter. She was not sentenced to X number of years to be denied medical care like prisoners are assigned to "hard labor". It is apalling how conservative even liberals get when it comes to dealing with those who are locked up.

But remember, you yourself could accidentally run over someone and kill them and you would not have to be drunk to be charged, either. If the victim's family had a good lawyer and a vengeful heart whining about "closure", you, any of you conservatives could go to prison for what was a total accident and might be there for years. You could also be charged with drug possession even if you did not know the person you were riding with had dope and go to prison for that. A lot of people do, especially when they cannot afford an attorney.