Dr. Jillian T. Weiss

Incarcerated Trans Prisoners Entitled To Medical Care

Filed By Dr. Jillian T. Weiss | August 08, 2011 2:30 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: Eighth Amendment, Fields v. Smith, prison medical care, prisoner rights, transgender prison

prison_cell.jpgThere has been a long-running battle in the prison system to deny appropriate health care to transgender and transsexual inmates. On the outside, there's plenty of discrimination against trans people who need health care, but on the inside, they can simply tell you that they're not going to let you receive medical care.

Lambda Legal and the ACLU have chalked up another victory in the fight against the callous indifference that pervades the prison system. In Fields v. Smith, Lambda Legal and the ACLU filed a federal lawsuit on behalf of three transgender women incarcerated in Wisconsin, Andrea Fields, Jessica Davison, and Vankemah Moaton. The case challenges a 2005 Wisconsin law that bars access to hormone therapy or sex reassignment surgery for prison inmates and others in state custody. Prison doctors used to be allowed to determine proper treatment for transgender inmates, but this new law strips them of that power. The plaintiffs received a court order to continue receiving treatment as the case moves forward.

Wisconsin is the only state in the country that has passed a law barring its Department of Corrections from providing medically necessary care to transgender inmates.

The plaintiffs won in the lower court, and that judgment was affirmed by the appeals court. You can read the decision here, in which Judge Joan Gottschall, writing for the Seventh Circuit, blows away the state's argument that it's okay not to give proper health care to trans inmates because some inmates don't really need hormones.

Dru Levasseur, Lambda Legal's amazing transgender rights attorney, said. "The court correctly ruled that denying prisoners medical treatment constitutes cruel and unusual punishment. The medical needs of transgender people don't disappear once they enter prison. We're glad that the court has ruled that the legislature cannot outlaw the only effective treatment for some people with Gender Identity Disorder."

This case is only one of hundreds of cases around the country where trans inmates are not receiving proper care, but it is the only state in the nation that explicitly banned trans health care. Last year, I wrote a post on some of the other horrific cases that have occurred, and I reprint it here so you can see the type of thing that goes on behind the wall of prisons all the time, out of sight and out of mind.

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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."

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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).
Here's one from the Sylvia Rivera Law Project: http://srlp.org/penpal

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

imgsrc


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Angela Brightfeather | August 8, 2011 4:54 PM

"Wisconsin is the only state in the country that has passed a law barring its Department of Corrections from providing medically necessary care to transgender inmates."

Jillian, for the record, the state of North Carolina's legislature also voted over 7 years ago that Transgende prisoners in the NC Penal System would be denied hormone therapy, or any other medical treatment in connection with transition.

I personally have visited a number of TS women who are in jail and were living full time as women...in one case for over 15 years and she was still pre-op because she could never afford the surgery, but had every other manifestation and physical attibute of being a woman. In her particular case, when I visited I asked her if I could intercede on her behalf with the system and to have her put into a more protected part of the jail, away from the male population. and she practicially screamed at me not to, "because that would mean solitary and that is where they keep all the nut jobs, and I'd last about two days there."

Trans women in jail in NC have and are going through hell. If Lambda Legal wants some real fertile ground to till, send them down here to NC and make it quick.

It'd be nice if we could make progress on this outside of prisons as well. In a lot of places, the only difference in the story is that the person's not behind bars. Isn't that a shitty way to treat a human being?