Apparently fed up with stalling and non-compliance with her orders in a transgender prisoner case, Chief US District Judge Nancy J. Rosenstengel issued a pointedly critical decision on April 18 in which she directed the US Bureau of Prisons (BOP) to move quickly to provide gender affirmation surgery for Cristina Nichole Iglesias soon enough so that she can recuperate and be fit for discharge when her sentence expires on December 22, 2022. According to the ACLU of Illinois, which is participating in the case, this is the first time a federal court has ordered the BOP to schedule gender-affirming surgery for a transgender inmate.
Judge Rosenstengel is so disturbed by the performance of the Justice Department lawyers and BOP personnel in this case that she scheduled a hearing for April 28 to determine whether to hold them in contempt of court and to impose sanctions. She likened the tactics of the BOP as “similar to the game of Plinko on The Price is Right.” She warned BOP about these tactics, and the agency “apologized” and promised to comply with her orders, but to no avail.
“Now,” she wrote, “BOP’s tactics are turning into a game of ‘whack-a-mole.’ Indeed, it appeared the last of BOP’s moles had been ‘whacked.’ Then another one ‘popped-up.’ This time BOP represented it had an appointment with a surgeon for a consultation of gender confirmation surgery (GCS) on April 7, 2022, but the surgeon does not even perform vaginoplasties.”
Iglesias, confined at an all-male BOP prison in southern Illinois, has been diagnosed as suffering gender dysphoria so severe that she is likely to harm herself if not provided with gender confirmation surgery (GCS). Her lead attorney, Angela M. Povolish of Feirich/Mager/Green/Ryan, a Carbondale, Illinois, law firm, has been pushing the case forward before Judge Rosenstengel, who has determined that Iglesias is likely to prevail on her argument that BOP has been deliberately indifferent to her serious medical condition, which is the standard for a finding of “cruel and unusual punishment” under the 8th Amendment of the Constitution.
“I am hopeful that I will finally get the care I need to live my life fully as the woman I am,” Iglesias said in a written statement through the ACLU. “BOP has denied me gender-affirming surgery for years — and keeps raising new excuses and putting new obstacles in my way. I am grateful that the court recognized the urgency of my case and ordered BOP to act.”
Although BOP has yet to provide confirmation surgery to a transgender inmate, it has adopted formal policies that contemplate doing so in an appropriate case. But a series of roadblocks has been thrown up by the agency in an apparent attempt to stretch things out so that Iglesias does not get the procedures she is seeking before her sentence expires and she is discharged back into the civilian world.
This is not a new game. At the state level several years ago, California prison officials actually discharged a transgender inmate early in order to avoid complying with a federal court order to provide her with gender confirmation surgery. In Idaho, a federal court spent years dealing with prison officials until finally a trans inmate received the surgery while the state’s petition was pending before the US Supreme Court seeking to overturn the Ninth Circuit Court of Appeals’ decision backing up the trial court’s order, rendering that lawsuit moot. The Supreme Court had denied a motion by the state to stay the trial court’s order while its petition was pending and the inmate had become increasingly depressed and suicidal.
Judge Rostenstengel has developed considerable expertise on gender transition issues, as there are several Illinois state prisons in her district that have produced a series of lawsuits on behalf of transgender inmates seeking treatment. Among other things, she issued a stinging opinion criticizing the procedure used by the state prison system to evaluate transgender inmates, noting the absence of qualified medical personnel from the decision making process. A class action lawsuit on behalf of Illinois transgender inmates, pending before her, has generated a string of pretrial decisions and orders over several years.
Judge Rosenstengel’s April 18 opinion lays out in detail the ways in which BOP and its lawyers from the Justice Department have prolonged the litigation. The last straw in this case was that the judge had given the BOP a firm deadline by which its Transgender Executive Council (TEC) was to make a decision whether to recommend Igelsias for the surgery, thus setting in motion a process of contracting with a qualified surgeon to undertake the procedure. BOP failed to meet the deadline. TEC met it, but made no recommendation, instead calling for an appointment to be made with a surgeon to “consult” on the procedures to be followed. It turned out, to the judge’s astonishment, that the surgeon with whom BOP made the appointment did not even perform the main procedure, but normally referred out such cases to other surgeons.
In another complication, due to Igeslias’ pending discharge date, BOP was planning to move her to a “halfway house” in Florida, and the procedures for deciding about such treatment are, it seems, different for inmates in those situations. Furthermore, they would not evaluate her for the procedure until she had become “settled” in her new surroundings. Another stall.
In December 2021, Judge Rosenstengel had ordered that BOP submit regular written updates to the court as to the progress being made in reaching a decision and providing the surgery for Iglesias. The lawyers contended that they were complying with the judge’s order, but her review of their submissions convinced her that they were not. The judge explained in detail how BOP had failed to comply with her orders, and she rejected the defendants’ argument that the “preliminary injunction does not contain an unambiguous command requiring BOP to either immediately and unconditionally recommend surgery or conclusively deny surgery,” quoting the exact language from her prior order to the contrary. Her April 18 opinion concludes each section laying out how defendants failed to comply with the sentence: “Defendants must explain.”
“Defendants are aware of Iglesias’s suffering,” she wrote, “but since December 2021, Iglesias has had only one appointment with a surgeon who does not even perform vaginoplasties and attended one dermatologist appointment, even though Defendants have yet to confirm that the procedures identified by the dermatologist are necessary in furtherance of GCS.”
While stating that the court “has absolutely no interest in running the Bureau of Prisons,” she decided that she had to get very detailed in her new Order to avoid any confusion. She directed the defendants to provide the court with “a timeline” by April 28 of all steps that must be taken to get Iglesias her treatment, must identify all the surgeons in the US qualified to do these procedures who have “sufficient scheduling availability to fit Iglesias into a surgical calendar with enough time for her to have surgery and recover by December 2022.” Similarly, she ordered them to provide a list of “all dermatologists or hair removal specialists within the United States who are qualified to perform the procedures necessary in furtherance of GCS by April 28.”
The plaintiff had suggested a Chicago-based surgeon, so the judge ordered BOP to finish any evaluation and make a final determination by April 28 whether this surgeon could be retained by the government for this purpose, which would require relocating the inmate from southern Illinois to Chicago, so the judge ordered weekly status reports on accomplishing this, as well as reporting weekly on progress towards scheduling the GCS, whether and when the procedures are performed, and plans for post-surgery recovery.
As to the potential contempt ruling, Judge Rosenstengel spelled out in detail the explanations that are required from BOP and from the Justice Department lawyers, including for misrepresentations made to the court and failure to comply with the court’s orders. She also authorized Iglesias’s attorney to submit a fee petition to cover the costs incurred as a result of the failure of the defendants to comply with the court’s earlier orders, necessitating renewed litigation.
Judge Rosenstengel was appointed to the court by President Barack Obama in 2014.