The Eighth Amendment to the United States Constitution protects against “cruel and unusual punishment.” What constitutes “cruel and unusual” has been left to the courts to sort out, and this standard has become even more complicated when courts assess the medical needs of patients in prison.
The Eighth Amendment has been interpreted in a variety of situations, which includes protecting the medical needs of prisoners. In the case of Estelle v. Gamble (1976), the United States Supreme Court set the standard violation of prisoner’s Eighth Amendment medical rights as “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain.” In recent years, courts have used this standard to discern if those with gender dysphoria are entitled to sex-reassignment surgery while in prison, and if withholding the surgery constitutes a violation of their Eighth Amendment rights.
Is it a violation of the Eight Amendment for a physician to elect not to perform sex-reassignment surgery on a person in prison who experiences gender dysphoria?
Recently, the Ninth Circuit created a split amongst the circuit courts over sex-reassignment surgery in prison under the Eighth Amendment. The court chose to focus on a standard created by the World Professional Association for Transgender Health (WPATH), which is a medical standard of care that was created to decide the necessity of a patient’s sex-reassignment surgery. This court looked at if the prisoner fell under this standard, and if it was a violation of the Eighth Amendment to not grant surgery if a patient does fall under the standard.
In Edmo v. Corizon, Inc. (2020), the plaintiff alleged that her Eighth Amendment rights had been violated because she was denied sex-reassignment surgery by her doctor who elected to keep her on a hormone regiment. The plaintiff had been diagnosed with depressive disorder, anxiety, alcohol and drug addiction, and gender dysphoria. The plaintiff had tried to castrate herself and attempted suicide multiple times. The State argued that WPATH was not the only medical standard, and, even if it was used, the plaintiff failed to meet some of the criteria, including that the plaintiff’s medical health concerns were not well controlled and the plaintiff had not lived twelve continuous months in her gender role because she was in prison. The court ultimately decided to use WPATH to determine the medical standard of care, concluding that the plaintiff was treated with deliberate indifference because the doctor knew the plaintiff had attempted to castrate herself in the past and still did not perform the surgery. The court held that sex-reassignment surgery is a medical necessity and that the doctor violated the plaintiff’s Eighth Amendment rights which protect against “cruel and unusual punishment.” The court therefore mandated that the “state pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment.”
First, Fifth, Seventh and Tenth Circuits
The First, Fifth, Seventh and Tenth Circuits all take a different position from the Ninth Circuit on the Eighth Amendment’s protections. Each of these courts has held that a doctor withholding sex-reassignment surgery is not “cruel and unusual punishment” for a prisoner under the Eighth Amendment. However, each court comes to their conclusion for slightly different reasons.
In Kosilek v. Spencer (2014), the First Circuit reversed the district court’s decision to grant injunctive relief to a plaintiff who did not receive sex-reassignment surgery. While the First Circuit recognized the existence of WPATH, it did not heavily rely on it for the court’s decision. The court decided that the current treatment for the plaintiff (hormone, hair removal, and access to “feminine attire”) was enough, and the doctor’s decision not to provide sex-reassignment surgery did not violate the plaintiff’s Eighth Amendment rights. The court also found compelling evidence that security would be a difficult problem to solve post-surgery, and that the current medical regimen did not create the same housing problem as sex-reassignment surgery.
The Fifth Circuit held in Gibbson v. Collier (2019) that declining to perform sex-reassignment surgery on a prisoner did not violate the prisoner’s Eighth Amendment rights. The court held that because of medical disagreement over the necessity of sex-reassignment surgery, including disputes in the medical community over WPATH, the surgery could not be definitively called a necessity. The court also stated that it was not “cruel and unusual punishment” to withhold a medical treatment that no other prison had previously given to inmates. The court went so far as to say it would be unusual if the prison did grant treatment.
The Seventh Circuit looked at if the state had qualified immunity in the case of a prisoner being refused sex-reassignment surgery. In Campbell v. Kallas (2019), the plaintiff was on a hormone regimen and her doctors refused to provide her with sex-reassignment surgery. The Seventh Circuit, similar to the First Circuit, acknowledged challenges that providing housing for inmates with sex-reassignment surgery could create. The court also acknowledged WPATH, arguing that the 12 month real-life criteria standard was important and could not be fully experienced in prison. The court ultimately decided to reverse the district court’s decision to deny qualified immunity.
In Lamb v. Norwood (2018), the Tenth Circuit decided to uphold the summary judgment decision of the district court and found that the prison officials did not violate the plaintiff’s rights. The court decided that prison officials were not acting with indifference when they were following the treatment of hormone therapy and psychological counseling recommended by a medical doctor.
Currently, 1.4 million adults in the United States identify as transgender. As medicine continues to understand gender dysphoria, courts must continue to review Eighth Amendment rights violations accordingly. With the recent split, the Supreme Court may very well take matters into its’ own hands and make a decision about the necessity of sex-reassignment surgery.
It is also just as likely that Congress will address the issue. Recently, Congress has made some moves in regards to transgender healthcare right’s through Section 1557 of the Affordable Care Act, where gender identity was acknowledged as protected from denial of healthcare. Currently, Congress is also reviewing the Equality Act, which highlights the Fourteenth Amendment’s Equal Protection Clause, and prohibits discrimination based on gender identity in a multitude of establishments, including health care. While this bill has only passed the House of Representatives and is not narrowly focused on the rights of those in prison, it shows a step in the direction of Congress resolving the current split.