Wisconsin Inmate Right to Hormone Treatment, Surgery Upheld

A three-judge federal appeals court panel has unanimously ruled that a Wisconsin law banning hormone therapy or sex reassignment surgery for transsexual prison inmates is unconstitutional.

The August 5 opinion from the Chicago-based US Court of Appeals for the 7th Circuit upheld a decision by Chief Judge Charles N. Clevert, Jr., of Wisconsin’s Eastern District.

Clevert’s ruling came in a case that Lambda Legal and the American Civil Liberties Union brought on behalf of three Wisconsin inmates whose hormone therapy was cut off after the Inmate Sex Change Prevention Act was passed in 2005. The judge found that the law violated the 8th Amendment's ban on cruel and unusual punishment as well as the 14th Amendment's equal protection requirement.

Federal appeals court affirms decision striking down Wisconsin “Sex Change Prevention Act”

Judge Joan B. Gottschall’s opinion for the appeals panel upheld Clevert's 8th Amendment ruling, and so found it unnecessary to take up the 14th Amendment claim.

The Supreme Court has ruled that indifference to the serious medical needs of state prison inmates violates the 8th Amendment, and federal courts have come to agree that gender dysphoria and transsexualism may create a serious medical need.

Prior to the law’s enactment, Wisconsin officials had authorized hormone therapy as medically necessary treatment for three inmates. Subsequent press reports about taxpayers subsidizing “sex changes” for inmates, however, caused a political storm in the Legislature and led to the adoption of the 2005 statute, which prohibited the Department of Corrections from spending money or using resources “to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery.”

In response to the law, prison officials discontinued hormone therapy for the three plaintiffs, resulting in immediate physical and psychological harm to them. Treatment was restored under a temporary federal court order as the case unfolded.

After hearing expert testimony, the trial court concluded, as have numerous other federal courts, that gender dysphoria is a serious medical condition that may require hormone therapy. Although the issue of prisons refusing to initiate hormone therapy for inmates who declared their gender dysphoria after being incarcerated has been litigated elsewhere, the Wisconsin case was unique because it involved the discontinuation of therapy already underway.

Wisconsin officials sought to defend the law by citing concerns about prison security; they argued the feminizing effects of hormone therapy on transsexual prisoners was likely to exacerbate the risks of sexual attacks by other inmates.

This argument was undermined by one of their own witnesses, who had previously been employed in the Colorado prison system and testified that the administration of hormone therapy there had not increased sexual attacks. Indeed, the evidence showed that transsexuals in prison are in danger of attacks even without the feminizing effects of hormone therapy.

The three plaintiffs were faced with two 7th Circuit opinions that arguably cast doubt on constitutional claims for hormone therapy, but Judge Gottschall wrote that the “discussion of hormone therapy and sex reassignment in these two cases was based on certain empirical assumptions –– that the cost of these treatments is high and that adequate alternatives exist.” The evidence introduced in this case, she pointed out, disproved those assumptions. Hormone therapy is less expensive than various other forms of medical treatment that are routinely provided in prisons, including anti-psychotic drugs administered to inmates with a propensity for violent behavior.

Gottschall also noted that the expert testimony showed there is a medical consensus in support of hormone therapy as a necessary treatment, and that in some cases the alternative of psychological counseling is not sufficient.

“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,” she wrote. “Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture.”

The court rejected Wisconsin officials’ argument that the statute could not be totally invalidated because it was constitutional to refuse sex reassignment surgery to inmates. Surgery had not been much discussed or considered in the trial court since the plaintiffs were suing only to continue their hormone therapy, but the court of appeals concluded that both forms of treatment were appropriately covered by the trial court's injunction. Ruling out any treatment that might be deemed necessary is a clear violation of the 8th Amendment, the panel found.

Though the Wisconsin statute was one-of-a-kind, the ruling is more broadly significant because it adds an appellate precedent supporting claims by transgender inmates to receive appropriate medical treatment while incarcerated, and may be cited as a potential trump card should legislators in other states propose similar restrictions.