Transgender Inmates Have Right to Treatment, Says Seventh Circuit

In 2005, the Wisconsin legislature adopted the Inmate Sex Change Prevention Act, which prohibits the state’s Department of Corrections from providing hormonal therapy or sexual reassignment surgery to inmates suffering from Gender Identity Disorder.  Five years later, a federal judge in the Eastern District of Wisconsin found that the Act violates the Cruel and Unusual Punishments and Equal Protection Clauses, and enjoined its enforcement.  Fields v. Smith, 721 F. Supp. 2d 830 (E.D. Wis. 2010).  The Seventh Circuit has now affirmed that ruling through a decision earlier this month in Fields v. Smith (No. 10-2339).

The decision has provoked considerable outrage (see, for instance, the comments on the Journal Sentinel webpage here), much of which seems premised on doubts that GID is a “real” medical problem.  However, GID is recognized in the American Psychiatric Association’s authoritative Diagnostic and Statistical Manual of Mental Disorders, and the state conceded that GID is a serious medical condition.

Given this concession, the court’s analysis seems a fairly straightforward application of established Eighth Amendment principles:

 

“Prison officials violate the Eighth Amendment’s proscription against cruel and unusual punishment when they display ‘deliberate indifference to serious medical needs of prisoners.’” Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). In this case, the district court held that plaintiffs suffered from a serious medical need, namely GID, and that defendants acted with deliberate indifference in that defendants knew of the serious medical need but refused to provide hormone therapy because of Act 105.  (7)

Although some earlier Seventh Circuit cases had suggested that hormone therapy and sex reassignment surgery were not required by the Eighth Amendment, the Fields trial produced evidence that undermined the assumptions of the earlier opinions;

The court’s discussion of hormone therapy and sex reassignment surgery in these two cases was based on certain empirical assumptions—that the cost of these treatments is high and that adequate alternatives exist. More than a decade after this court’s decision in Maggert, the district court in this case held a trial in which these empirical assumptions were put to the test. At trial, defendants stipulated that the cost of providing hormone therapy is between $300 and $1,000 per inmate per year. The district court compared this cost to the cost of a common antipsychotic drug used to treat many DOC inmates. In 2004, DOC paid a total of $2,300 for hormones for two inmates. That same year, DOC paid $2.5 million to provide inmates with quetiapine, an antipsychotic drug which costs more than $2,500 per inmate per year. Sex reassignment surgery is significantly more expensive, costing approximately $20,000. However, other significant surgeries may be more expensive. In 2005, DOC paid $37,244 for one coronary bypass surgery and $32,897 for one kidney transplant surgery. The district court concluded that DOC might actually incur greater costs by refusing to provide hormones, since inmates with GID might require other expensive treatments or enhanced monitoring by prison security. . . .

More importantly here, defendants did not produce any evidence that another treatment could be an adequate replacement for hormone therapy. Plaintiffs’ witnesses repeatedly made the point that, for certain patients with GID, hormone therapy is the only treatment that reduces dysphoria and can prevent the severe emotional and physical harms associated with it. Although DOC can provide psychotherapy as well as antipsychotics and antidepressants, defendants failed to present evidence rebutting the testimony that these treatments do nothing to treat the underlying disorder.  (9-10)

In explaining why these facts warranted relief under the Eighth Amendment, the Seventh Circuit suggested an interesting hypothetical:

Surely, had the Wisconsin legislature passed a law that DOC 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.  (11)

Having found an Eighth Amendment violation, the court chose not to analyze the Equal Protection issues.  (18)