April 07, 2015 Practice Points

Transgender Inmates Make Strides Securing Constitutional Right to Adequate Medical Care

By Joseph Hanna

On Thursday, April 2, Federal Judge Tigar for the Northern District of California ordered the state's department of corrections to provide transgender inmate, Michelle-Lael Norsworthy, sexual reassignment surgery finding that denying the surgery is a violation of Norsworthy's Constitutional rights. This ruling is the first state-mandated reassignment surgery in California, and the second such ruling in the U.S. The ruling has been viewed by transgender rights advocates as a significant win, however, other groups have criticized the ruling's implications.

Michelle Norsworthy is currently serving a life sentence in an all-male prison following her conviction for murder. In 2000, she was diagnosed with severe gender dysphoria, a disease in which the afflicted is born one gender and identifies with the other. She began hormone therapy upon diagnosis, however, and claims sexual reassignment surgery to be the only treatment for her condition. Judge Tigar agreed.

Judge Tigar's ruling holds that the weight of the evidence showed the only "adequate medical treatment" for Norsworthy is surgery. Additionally, failing to provide adequate medical treatment is a violation of the Eight Amendment's prohibition of cruel and unusual punishment. The California Department of Corrections argued in front of Judge Tigar that sexual reassignment is not medically necessary and that surgery could have serious negative consequences. If Norsworthy has the surgery, she will be at greater risk of further rape (she has already been raped six times and contracted Hepatitis-C). The alternative of transferring her to a female prison, corrections argues, would pose a risk to those inmates given Norsworthy's history of domestic violence.

The court, however, did not find the counseling and hormone therapy to be enough treatment for Norsworthy's gender dysphoria. Judge Tigar found that the inmate's symptoms are persistent and denial was based on reasons unrelated to medical need—that the department has a blanket policy barring such a treatment for inmates.

The ruling has been criticized for its imposition on taxpayers for the high cost of the surgery. The Department of Corrections stated it is unfair to make taxpayers spend up to $100,000 for an inmate's surgery. Kris Hayashi, executive director of the Transgender Law Center, claims that corrections grossly exaggerates the cost. Hayashi claims the cost would range from $15,000 to $30,000. Also, Hayashi points out that the state has already expended a substantial amount of taxpayer money in defending the lawsuit and denying the surgery.

The court's ruling comes at a significant time where other transgender inmates are also alleging constitutional violations for failure to receive proper medical care. One day after the ruling, the U.S. Department of Justice weighed in on a similar issue.

Ashley Diamond, a transgender inmate in Georgia, is currently waging a legal battle to secure hormone therapy while in prison. Diamond was on a hormone regimen prior to imprisonment for burglary. Since becoming incarcerated and being denied her hormones, Diamond has lost breast mass and experienced physical pain and muscle spasms. The Department of Justice filed a brief in her case acknowledging that refusing adequate treatment for a recognized mental illness amounts to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. The Supreme Court can also soon have its say on the issue.

Michele Kosilek spent over 10 years arguing a violation of her constitutional rights when she was denied sexual reassignment surgery in a Massachusetts prison. Federal Judge Wolf granted her reassignment surgery in 2012 as the only adequate treatment for her severe gender dysphoria. A three-judge panel for the First Circuit upheld the decision. The Department of Corrections appealed to the full First Circuit, which overturned the lower decision by a 3–2 vote. Last month, Kosilek appealed to the Supreme Court of the United States arguing that the First Circuit did not defer to prior findings of fact, exceeding their duty.

Though the issue is simmering at the moment, the Supreme Court may not feel compelled to take on the case as only two state courts have found that denying sexual reassignment surgery to transgender inmates rises to the level of cruel and unusual punishment. Whether the Supreme Court hears the case or not, the publicity and awareness generated is surely well-received by a transgender community fighting daily for equal protection of its rights under the law.

Keywords: minority trial, litigation, transgender, sexual reassignment surgery, Eighth Amendment, inmates

Joseph Hanna is with Goldberg Segalla LLP in New York, New York.

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