Treatment for Transgender Inmates: Adapting the 8th Amendment to 21st Century Concerns
Treatment for Transgender Inmates:
Adapting the 8th Amendment to 21st Century Concerns
Erica Trachtman, J.D. Candidate
The Eighth Amendment proscribes the infliction of cruel or unusual punishment. Although the clause was originally adopted due to concerns over torture, Eighth Amendment jurisprudence has grown to encompass the minimum constitutional standards that prisoners are entitled to during their confinement. One of these standards is the provision of medical care; withholding care for serious medical needs constitutes an “unnecessary and wanton infliction of pain.” But just what qualifies as a serious medical need or necessary medical care is subject to debate and a constantly evolving body of medical knowledge. Currently pending before the Supreme Court and scheduled for conference on March 16, 2012, is a petition involving an issue at the frontier of that debate—whether the Eighth Amendment requires the provision of hormone replacement therapy to transgender prisoners.
In 2005, the Wisconsin legislature passed the Inmate Sex Change Prevention Act (Act 105). The law prohibits the Wisconsin Department of Corrections from authorizing the use of any funds to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery for transgender inmates. It was passed after a Wisconsin inmate, Scott Konitzer, filed a lawsuit seeking a sex-change operation and claiming that denial of the surgery would violate the Eighth Amendment. Representative Mark Gundrum, one of Act 105’s authors, vehemently opposed the idea that the Constitution requires the provision of such treatment, explaining: "I think the Founders of our country—when they wrote that clause—they were envisioning preventing people from being burned in oil or burned at the stake, not simply refusing to use taxpayer dollars to allow inmates to get a sex change or breast implants or whatever else."
The American Civil Liberties Union and Lambda Legal disagreed. They filed a lawsuit in the U.S. District Court for the Eastern District of Wisconsin on behalf of three Wisconsin inmates. The three male-to-female transgender individuals had each been diagnosed with Gender Identity Disorder (“GID”). GID is classified as a psychiatric disorder in the DSM-IV, the psychiatric community’s preeminent manual for the classification of mental illnesses. Individuals with GID often suffer from severe anxiety, depression, and other psychological issues, as they identify strongly with the gender that does not match their own physical characteristics. After a trial in which both sides presented substantial expert testimony about GID, its treatment, and its potential effects on prison safety, the district court, in a 40-page opinion, held that Act 105 was unconstitutional under the Eighth Amendment.
On appeal to the Seventh Circuit, Wisconsin did not challenge the labeling of GID as a serious medical condition, but the State maintained that the legislature has the power to prohibit certain medical treatments when other treatment options are available. It also argued that Act 105 was justified by the need to ensure security in state prisons. Interestingly, the Seventh Circuit had previously addressed the treatment of transsexual prisoners over twenty-four years ago. In Meriwether v. Faulkner, the court held that a transsexual prisoner who was denied treatment of any kind had a valid claim under the Eighth Amendment. At that time, however, the court also concluded that “given the wide variety of options available for the treatment of gender dysphoria and the highly controversial nature of some of those options, courts should defer to the informed judgment of prison officials as to the appropriate form of medical treatment.”
In an opinion by Judge Gottschall, the Seventh Circuit held that the views expressed in Meriwether and its progeny reflect outmoded empirical assumptions. He explained that the notion that hormone therapy and sex reassignment surgery were particularly costly forms of medical treatment had been laid to rest at trial: the cost of providing hormone therapy is between $300 and $1000 per inmate per year, similar to the cost of providing a common antipsychotic drug. Further, while reassignment surgery can cost up to $20,000, coronary bypass and kidney transplant surgeries, which the Wisconsin Department of Corrections had provided to inmates in the past, can cost over $30,000.
The pertinent standard according to both the trial court and Judge Gottschall was articulated in Estelle v. Gamble: prison officials violate the Eighth Amendment’s proscription against cruel and unusual punishment when they display “deliberate indifference to serious medical needs of prisoners.” Under the Gamble standard, refusing to provide effective treatment for a serious medical condition like GID serves no valid penological purpose and amounts to torture. Judge Gottschall’s opinion found fault with the State’s inability to produce evidence of an adequate alternative to hormone therapy. While psychotherapy and antipsychotics have been found to help alleviate some symptoms of GID, they do nothing to treat the underlying disorder. The court went on to compare Act 105 to a law that would limit the treatment of inmates with cancer to only therapy and painkillers. The Court also rejected the State’s argument that hormone therapy would incite prison violence, as transgender inmates are constant targets for violence even when they aren’t undergoing hormone therapy.
In upholding the district court’s decision to enjoin the entirety of Act 105, Judge Gottschall iterated the statute’s facial invalidity, writing, “[I]n this case, the effect of Act 105 is to withdraw an ongoing course of treatment, the result of which has negative medical consequences. In other cases, the effect of Act 105 is to prevent . . . medical personnel from evaluating inmates for treatment because such evaluation would be futile in light of Act 105's ban on the treatment they may determine to be medically necessary for the health of the inmate.”
In its petition for certiorari, Wisconsin invited the Court to resolve the important, but unsettled question of how much and what kind of medical treatment a state is required to make available to inmates in cases involving psychological conditions, like GID. Wisconsin rebuffed the analogy of GID to cancer, noting that while cancer is a purely physical condition that results in death when left untreated, GID is a psychological condition experienced by individuals with healthy bodies. The State also emphasized that alternate treatments, like antipsychotics and antidepressants, remained available under Act 105, and despite the Seventh Circuit’s assertion otherwise, there is no precedent imposing the requirement under the Eighth Amendment that a state completely cure a medical condition. The State cites a prior Seventh Circuit decision, Forbes v. Edgar, for the notion that the Eighth Amendment does not entitle inmates to demand specific care and indeed, inmates are not entitled to the best care possible.
The Court has not decided a case involving standards of prisoner care under the Eighth Amendment since the 1980s. At that time, the Court noted, “It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause . . .” It would be difficult to classify Wisconsin’s decision to provide transgender inmates some form of treatment, just not the best treatment, as wantonness. The legislature also doesn’t appear to have been acting in good faith, however, given the reasonable cost and established medical knowledge regarding the effectiveness of hormone replacement therapy. By eliminating hormone therapy as an option wholesale, the state needlessly took away the discretion of prison officials to determine which inmates are in need of the treatment. In a sense, they acted with deliberate indifference.
Melvin Gutterman, The Contours of Eighth Amendment Prison Jurisprudence, 48 SMU. L. Rev. 373, 374-75 (1995).
Id. at 382 (internal citations omitted).
Fields v. Smith, 712 F.Supp.2d 830 (E.D. Wis. 2010). The district court also found the act unconstitutional under the Equal Protection Clause of the 14th Amendment, but the appellate court did not address that when it affirmed the district court’s decision.
821 F.2d 408 (7th Cir. 1987)
Id. at 414.
Field v. Smith, 653 F.3d 550, 555 (7th Cir. 2011).
429 U.S. 97 (1976).
653 F.3d at 556.
Id. at 557.
Brief of Petitioner at 10, Smith v. Fields, No. 11-561, (7th Cir. Aug. 5, 2011).
112 F.3d 262, 267 (7th Cir. 1997).
See Whitley v. Albers, 475 U.S. 312 (1986).