Court orders first gender-affirming surgery for a transgender federal prisoner

In a first, the Federal Bureau of Prisons has been ordered to secure gender-affirming surgery for a transgender prisoner.

A federal judge in the U.S. District Court for the Southern District of Illinois ordered the bureau on Monday to undergo a nationwide search for a qualified surgeon to perform the surgery for the inmate, Cristina Nichole Iglesias.

The directive will bring Iglesias — who has been imprisoned since 1994 for threatening to use a weapon of mass destruction — a step closer to receiving the procedure, which she has been fighting to get for six years, the last three in the courts.

“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 statement provided to NBC News by her legal representative, the American Civil Liberties Union. “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.”

Monday's court order could pave the way for other transgender prisoners to receive gender-affirming surgeries as well. LGBTQ advocates have called these procedures "life-saving," and Monday's decision could bolster the Biden administration's goal of improving the lives of incarcerated transgender people.

A 2015 report by the Justice Department estimated that 35 percent of trans prisoners surveyed had reported being sexually assaulted behind bars within the last year. Under the Trump administration, the Bureau of Prisons was required to “use biological sex as the initial determination” for housing trans prisoners.

A 2020 NBC News investigation that tracked 45 states and Washington, D.C., found that out of 4,890 transgender inmates in state prisons, only 15 were confirmed to being housed according to their lived gender.

In January, the Biden administration restored Obama-era guidelines for federal prisons to house transgender inmates by their gender identity "when appropriate." The guidelines also require prison staff to refer to trans inmates by their lived name and pronouns.

The ACLU estimates that the Federal Bureau of Prisons has more than 1,200 transgender people currently in its custody.

Iglesias has been in federal prison for roughly 28 years and currently lives in a bureau-run residential re-entry center in Florida, according to the ACLU.

Although she identified herself as a woman upon her incarceration, she has been housed in men's facilities for over two decades, and during that time has experienced physical and sexual violence, the ACLU said. In May, her lawsuit to seek gender-affirming surgery resulted in her being one of the few transgender federal prisoners moved to a facility that corresponds with her gender identity.

Iglesias then became the first transgender prisoner to be evaluated for gender-affirming surgery, which the Bureau of Prisons recommended in January. However, the ACLU said in a statement that the bureau had "sought to postpone any referral to a surgeon for months."

In Monday's ruling , Judge Nancy Rosenstengel slammed the prison bureau's handling of Iglesias' case and compared its "tactics" to a game of “whack-a-mole.” Rosenstengel also ordered the bureau to provide the court with weekly updates and a detailed plan to ensure that Iglesias gets the surgery before her release in December.

The Bureau of Prisons told NBC News in a statement that it does not comment on “pending litigation or matters subject to legal proceedings,” nor on “the conditions of confinement for any individual or group of inmates.”

“For years, Cristina has fought to receive the health care the Constitution requires," Joshua Blecher-Cohen, an ACLU of Illinois staff attorney who represents Ms. Iglesias, said in a statement.

"The court’s order makes clear that she needs gender-affirming surgery now and that BOP cannot justify its failure to provide this medically necessary care," he said. "We hope this landmark decision will help secure long-overdue health care for Cristina — and for the many other transgender people in federal custody who have been denied gender-affirming care.”

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Gender Reassignment Surgery, Prisoners, and the 8th Amendment

  • September 22, 2021 September 27, 2022

By: Bill Watt

Advancements in technology have created new legal questions for federal courts to address. Is it a violation of the Eighth Amendment’s “Cruel and Unusual Punishment” clause to deny gender-reassignment surgery to a person in prison who experiences gender dysphoria? [1]

In the medical field, gender reassignment surgery (“GRS”) is a technological innovation that has become increasingly common. [2] Gender dysphoria, a condition that leads to GRS, is referred to as discomfort or distress caused by a mismatch between a person’s gender identity and that person’s sex assigned at birth. [3] The global market for GRS was $202 million in 2017. [4] GRS has an estimated growth rate of 25.1% annually through 2024 – when the market will reach a projected valuation of $968 million. [5]

Before the first half of the 20th century, gender reassignment surgeries did not occur at all or were extremely rare. [6] One of the early recipients of sex reassignment surgery is Lili Elbe. [7] Ms. Elbe, a German, began transitioning from a male to a female in 1930. [8] In 1931, she died from surgical complications three months after a vaginoplasty and uterus transplant. [9] In 1952, Christine Jorgensen, a famous cultural icon and United States citizen, traveled to Denmark and began a series of operations for sex reassignment surgery. [10] The first male-to-female GRS in the United States occurred in 1966. [11]

Circuit courts have come up with different rationales and holdings in deciding whether denying GRS violates the Eighth Amendment. In deciding Edmo v. Corizon, Inc. , (2020), the Ninth Circuit, which presides over district courts located on or near the Pacific Coast, mandated that states pay for and provide sex-reassignment surgery to a prisoner when it is a medical necessity. [12] The Court focused on a standard created by the World Professional Association for Transgender Health (WPATH) to determine if sex-reassignment surgery is medically necessary. [13] An inclusion criterion for genital surgery includes age, mental health, and 12 months of continuous hormonal therapy. [14] Even though the plaintiff suffered from extreme mental distress and attempted suicide, a surgeon did not provide her with GRS. [15]

The First, Fifth, Seventh, and Tenth Circuit courts ruled that sex-reassignment surgery is not a necessity. [16] These federal circuit courts have used different rationales to arrive at this conclusion. In Kosilek v. Spencer (2014), the First Circuit recognized the existence of WPATH but did not heavily rely on it in their decision to reverse a district court’s grant for injunctive relief. [17] The Court determined that the current treatment for the plaintiff was enough and that security in prison would be problematic post-surgery. In Gibson v. Collier (2019), the Fifth Circuit said that there was medical disagreement over the necessity of sex-reassignment surgery. [18] The surgery could not definitively be called a necessity. Further, the Court said it is not “cruel and unusual punishment” to withhold medical treatment that prisons have never given in the past. [19]

[1] Jacklyn Gunn, Is Denying Sex-Reassignment Surgery to Prisoners a Violation of the Eighth Amendment? , Sunday Splits (July 11, 2021), http://sundaysplits.com/2021/07/11/is-denying-sex-reassignment-surgery-to-prisoners-a-violation-of-the-eighth-amendment/.

[2] Universitätsspital Zürich, Gender reassignment surgery , YouTube (Aug. 5, 2020).

[12] Jacklyn Gunn, Is Denying Sex-Reassignment Surgery to Prisoners a Violation of the Eighth Amendment? , Sunday Splits (July 11, 2021),  http://sundaysplits.com/2021/07/11/is-denying-sex-reassignment-surgery-to-prisoners-a-violation-of-the-eighth-amendment/.

[14] Universitätsspital Zürich, Gender reassignment surgery , YouTube (Aug. 5, 2020).

[15] Jacklyn Gunn, Is Denying Sex-Reassignment Surgery to Prisoners a Violation of the Eighth Amendment? , Sunday Splits (July 11, 2021),  http://sundaysplits.com/2021/07/11/is-denying-sex-reassignment-surgery-to-prisoners-a-violation-of-the-eighth-amendment/.

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More California prisoners are requesting gender-affirming health care, including surgeries

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No trespassing sign outside of Kern Valley State Prison on Nov. 15, 2022. Photo by Larry Valenzuela, CalMatters/CatchLight Local

The population of transgender inmates in California prisoners surged by 234% in the years since the state adopted a first-in-the nation policy allowing gender-affirming health care.

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The number of California prisoners requesting gender-affirming health care more than doubled last year, and the state’s corrections agency expects the trend to continue even as the overall state inmate population is projected to decline.

The estimate comes from budget documents detailing the agency’s responsibilities for two groundbreaking policies the state adopted over the last seven years.

One, in 2017, made California the first state to set standards that would grant gender affirmation surgery to state prison inmates. It followed the state’s approval of surgery for a transgender woman serving a life sentence. She was later transferred to a women’s prison. 

The other, a 2021 law signed by Gov. Gavin Newsom, requires that every person upon entering prison be asked gender-specific questions to determine whether they should be housed in a men’s or women’s facility.

Since the changes took effect, the California Department of Corrections and Rehabilitation found that the number of transgender, intersex and nonbinary inmates consistently grew each year, rising to 1,617 last year. That’s a 234% increase over 2017, according to the documents. 

“The vulnerable, transgender and transgender diverse population in CDCR has grown and continues to grow and there are enduring needs that need to be met,” Trisha Wallis, a department senior psychologist who specializes in gender healthcare, said during a budget committee hearing in March.

The agency this year sought a small boost in funding — $2.2 million — to provide the mandated care. The agency’ request was not controversial and moved through the Legislature without pushback this spring. Budget negotiations between Gov. Gavin Newsom and the Legislature are expected to conclude this week. 

Wallis at the hearing said the program was originally meant to “address equitable access” to safe and optimal gender-affirming care, but she acknowledged that staff shortages led to treatment backlogs. 

Backlog grows for gender-affirming care

As of December, 20 inmates since 2017 had received gender-affirming surgery. Another 150 surgeries had been approved, but not completed, according to the budget documents. 

In the 2021-22 California government budget year,  270 inmates requested gender-affirming surgeries – up from 99 the previous year. 

The state projects 348 inmates will request gender-affirming treatment this year, and 462 next year. The corrections agency says its staff can evaluate no more than three requests each week.

The agency also has received over 364 housing transfer requests since 2021. Only 35 of those were approved and sent to the Central California Women’s Facility in Chowchilla.

Advocates for transgender and nonbinary inmates have urged the state to move faster in providing the surgeries and evaluating other inmates’ requests to transfer to facilities that better suit their needs.

Some of them criticized the agency’s budget request, arguing the state’s $15 billion-a-year prison system already had plenty of money to carry out the policies.

“It’s ridiculous. $2 million for stuff they should already be doing?” said Alex Binsfeld, a policy analyst with TGI Justice Project, a San Francisco nonprofit that advocates for incarcerated transgender people . “I don’t think pumping any more money into CDCR is going to fix health care there.”

Transgender advocates also are on guard for signs that the state is refusing transfers for inmates who identify as transgender but have not received gender-affirming medical care. 

“Ultimately the housing question should not be a medical question,” said Jen Orthwein, a psychologist and lawyer who previously provided treatment to transgender inmates in prisons across California.

Terri Hardy, spokesperson for the California Department of Corrections and Rehabilitation, said those fears are unfounded. 

“Incarcerated people are not required to have gender affirming surgery in order to transfer to an institution consistent with their gender identity,” Hardy wrote in an email to CalMatters.

Lawsuit challenges California prison transfers

Outside of the Capitol, some conservative-leaning and feminist groups have opposed the prison agency’s gender affirming policies. 

The Women’s Liberation Front , a feminist advocacy group based in Washington, D.C., sued the state in 2021 to halt certain transfers to the state’s women’s prison in Chowchilla. It argued the transfers put female inmates at greater risk of violence and sexual assault. The lawsuit is playing out in the U.S. Eastern District Court of California.

“The reality that men and women are factually, materially, immutably different, in ways that disadvantage women and necessitate attention to women’s unique needs, supports  protection of incarcerated women by providing women-only correctional facilities,” the lawsuit reads.

The Transgender Law Center and the American Civil Liberties Union filed a brief challenging thatsuit. The two liberal organizations contend the 2021 law allowing prison transfers protects vulnerable transgender inmates. 

Several states have followed California in adopting genders-affirming policies for prisoners. Massachusetts and Connecticut allow prisoners to be transferred to facilities according to their chosen gender identity. New Jersey, New York City and Rhode Island also require that inmates be housed at facilities appropriate to their gender.

Orthwein, the psychologist, urged the state to accommodate more care.

“There should be no difference to their treatment than that of cisgender people,” Orthwein said. “They shouldn’t have to jump through a number of barriers and be poked and prodded for housing.”

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Court Says Idaho Must Provide Gender Confirmation Surgery To Transgender Inmate

Amanda Peacher

James Dawson

gender reassignment surgery jail

A federal court has ordered that the state of Idaho pay for gender confirmation surgery for Adree Edmo, a transgender inmate incarcerated at the Idaho State Correctional Institution (above). Heath Druzin/Boise State Public Radio hide caption

A federal court has ordered that the state of Idaho pay for gender confirmation surgery for Adree Edmo, a transgender inmate incarcerated at the Idaho State Correctional Institution (above).

Updated at 4:34 p.m. ET

Editor's note: This story includes accounts of self-harm.

The 9th Circuit Court of Appeals has ruled that the state of Idaho must provide gender confirmation surgery to inmate Adree Edmo.

A disturbing crime, a desperate act, and how one case could change the way prisons treat some transgender inmates. From Boise State Public Radio and the Mountain West News Bureau, this is LOCKED, a podcast hosted by Amanda Peacher.

LOCKED

The panel of judges agreed with U.S. District Judge B. Lynn Winmill's ruling in Edmo's favor last December, writing that his findings were "logical and well-supported" and that "responsible prison officials were deliberately indifferent to Edmo's gender dysphoria, in violation of the Eighth Amendment."

That means Edmo could be the first transgender inmate in the nation to receive sex reassignment surgery through a court order.

Edmo is serving a 10-year prison sentence for sexually abusing a 15-year-old boy when she was 22. She is scheduled for release in 2021 and is not eligible for parole. Per Idaho Department of Correction policy, she will be transferred to a state women's prison following the surgery.

Idaho has 90 days to appeal the ruling to the Supreme Court. In a statement, Gov. Brad Little wrote, "We cannot divert critical public dollars away from the higher priorities of keeping the public safe and rehabilitating offenders."

"The hardworking taxpayers of Idaho should not be forced to pay for a convicted sex offender's gender reassignment surgery when it is contrary to the medical opinions of the treating physician and multiple mental health professionals," he wrote.

But the 85-page opinion from the 9th Circuit repeatedly rejected those opinions from Edmo's health care providers.

Court To Rule On Sex Reassignment Surgery For Idaho Inmate

"It is enough that [her doctor] knew of and disregarded an excessive risk to Edmo's health by rejecting her request for [gender confirmation surgery] and then never re-evaluating his decision despite ongoing harm to Edmo," the judges wrote.

Despite two other physicians agreeing with the original treatment plan, the ruling found that "general agreement in a medically unacceptable form of treatment does not somehow make it reasonable."

Edmo's lead attorney, Lori Rifkin, called the news of the appeal "unfortunate" and "reprehensible." "She suffers every single day while they have denied this treatment to her for years and there can be no reason justifying Idaho's continued refusal to provide her care except bias," Rifkin said.

Edmo is diagnosed with gender dysphoria, which can cause a person severe distress stemming from being born in a body that does not match their gender identity.

Treatments for gender dysphoria can vary. Some people experience relief by changing their appearance through clothing or receiving hormone treatments. Others require more medically intensive transition-related care, such as mastectomies or gender confirmation surgery.

"[P]rison authorities have not provided that treatment despite full knowledge of Edmo's ongoing and extreme suffering and medical needs," the judges wrote in their decision Friday.

Edmo has twice attempted self-castration while in prison to try to alleviate her symptoms of gender dysphoria and more closely conform her physical body to her gender identity.

The ruling doesn't mean that the Idaho Department of Correction will now have to provide gender confirmation surgery to all transgender inmates. Rather, it sets a standard for providing the surgery to certain inmates who experience severe gender dysphoria and for whom the surgery is deemed medically necessary.

Winmill ruled in Edmo's favor in December 2018 and ordered the prison to provide the surgery. Now that the 9th Circuit has agreed, the state and Corizon, Idaho's contracted health care provider for prisons, will have to move forward with arranging for the procedure, which can cost between $20,000 and $30,000.

This issue could be timely for the Supreme Court. In two similar cases in the 5th and the 1st Circuit courts of appeals, judges ruled against inmates requesting gender confirmation surgery. With this decision, there is now a split in the circuit courts. That could make it more likely that justices would consider the case.

The 9th Circuit Friday explicitly rejected the 5th Circuit's opinion, which found that denying an inmate gender confirmation surgery could not violate the Eighth Amendment.

The ruling found that the 5th Circuit's decision "Relies on an incorrect, or at best outdated, premise: that '[t]here is no medical consensus that [gender confirmation surgery] is a necessary or even effective treatment for gender dysphoria.' "

Amanda Peacher is a reporter for the Mountain West News Bureau. James Dawson is a reporter for Boise State Public Radio.

Watch CBS News

Idaho must pay for transgender inmate's surgery, court rules

By Caitlin O'Kane

August 27, 2019 / 10:24 AM EDT / CBS News

A federal  appeals court has ruled  that the state of Idaho must pay for a transgender inmate's sex reassignment surgery. The state says it will appeal the case to the U.S. Supreme Court.

Inmate Adree Edmo has been living as a woman for years, but has been housed in a men's prison,  CBS Idaho affiliate KBOI-TV reports . Deborah Ferguson, an attorney representing Edmo,  said in January  that her client was at risk of self-harm if the surgery was postponed.

Edmo, 31, was diagnosed with gender dysmorphia in 2012. Ferguson argued that the state's refusal to provide the surgery was unconstitutional.

"They certainly would treat a prisoner with cancer, they treat a prisoner with diabetes, or other chronic conditions," Ferguson said, according to KBOI-TV. "So, we have a medically recognized condition that's very treatable and we have been trying to get her the treatment that she very much needs."

e9378a29-2c66-4612-89e5-67a1e19038fc-large16x9-adreeedmo123.jpg

Earlier this year, the state of Idaho was put on a court-ordered deadline to pay for the surgery by mid-June. The state, however appealed that decision — a process it says has already cost more than $325,000.

On Friday, the court of appeals agreed with the federal judge that denying the surgery amounted to cruel and unusual punishment, a violation of the U.S. Constitution.

Idaho Governor Brad Little, however, said he intends to appeal the decision to the U.S. Supreme Court.

"The court's decision is extremely disappointing," Little said in a statement obtained by KBOI-TV. "The hardworking taxpayers of Idaho should not be forced to pay for a convicted sex offender's gender reassignment surgery when it is contrary to the medical opinions of the treating physician and multiple mental health professionals."

Edmo, a convicted sex offender who is expected to be released from prison in 2021, is not the only inmate in the state requesting surgery. Five other requests have been submitted since the beginning of 2019, according to the Idaho Department of Correction .

Caitlin O'Kane is a New York City journalist who works on the CBS News social media team as a senior manager of content and production. She writes about a variety of topics and produces "The Uplift," CBS News' streaming show that focuses on good news.

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New California law on transgender youths doesn’t remove a parent’s custody

If your time is short.

  • A new California law provides legal protections for parents fleeing states that have banned gender-affirming health care for youths.  
  • The law clarifies that California courts have jurisdiction over any custody cases that may arise from parents taking their children to the state for care.   
  • It doesn’t give the state permission to take custody of a child if one parent disagrees with a child’s decision to seek gender-affirming health care. ​

California Gov. Gavin Newsom recently signed into law a measure that aims to strengthen protections for transgender youths and their families.

Senate Bill 107 contains an array of safeguards for families who arrive in California from states where their children have been denied gender-affirming health care.

It bans courts from enforcing subpoenas from other states regarding minors seeking that care. It prohibits health care providers from releasing medical information. And it clarifies that California courts have jurisdiction over any child custody cases arising from parents taking their children to the state for care.

But a Sept. 29 Facebook post went further to suggest the law says something else: 

"Gov. Gavin Newsom signed Senate Bill 107 into law. In the state of California, your child can now be taken from your custody if you do not affirm gender-reassignment surgery."

The post, shared by the American Council, is a screenshot of a tweet by the group’s founder, Tanner DiBella. The American Council describes itself as an organization dedicated to increasing voter turnout among Christian evangelicals . 

The post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook .)

DiBella told PolitiFact the California Legislative Counsel’s summary of the law backs up his reasoning. He pointed specifically to a passage of the summary at the top of bill’s text that reads, "The bill would authorize a court to take temporary jurisdiction because a child has been unable to obtain gender-affirming health care."

But experts we spoke to said that doesn’t mean the state would take custody of the child — it clarifies that California courts would assume jurisdiction of the legal matter. Current law allows California courts to decline jurisdiction in multistate custody matters in certain circumstances.

Courtney Joslin, a Martin Luther King Jr. professor of law at the University of California, Davis School of Law, said the law has nothing to do with who gets custody of a child during a dispute and makes no mention of allowing the court to take custody.

"It’s just describing which courts have jurisdiction in those multi-state (custody disputes)," she said. "There’s no possibility that this bill could be interpreted to do what this person is claiming."

Asaf Orr, a senior staff attorney and Transgender Youth Project director at the National Center for Lesbian Rights, said the bill doesn’t give California carte blanche to remove a child from a parent’s custody. 

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gender reassignment surgery jail

If parents disagree over whether their child should receive gender-affirming care in California, a state court would hear that case and rule based on evidence provided by both parents, Orr said. Out-of-state laws would not apply to the court’s determination. 

Orr said this isn't a new thing, as a state already has jurisdiction over court cases related to children who recently entered that state, for reasons such as escaping from domestic violence. 

"It just ensures that, in situations like this, the court recognizes they have jurisdiction to hear these cases and that they’re going to decide them based on the evidence," he said. "Both parties, as in any court case, will have the opportunity to present evidence and it’s going to be individualized for that young person."

Wendy Seiden, a visiting professor at Chapman University’s Fowler School of Law, said there is nothing in the law that would allow California to take custody of a child. But it does allow California to resist another state’s attempt to remove a parent’s custody if the proposed removal is based on that parent’s efforts to get gender-affirming care for their child.

California state Sen. Scott Wiener, D-San Francisco, an attorney and Senate Bill 170’s author, described DiBella’s interpretation of the text as "categorically false."

"It doesn’t change custody laws in any way," Wiener said. "It just means that, rather than having to go back to Texas or Alabama, they can do it in court here." 

Weiner said he authored the bill in response to proposed legislation in other states involving transgender youth. It provides guidance, he said, for California courts concerning custody hearings involving transgender youths and it helps protect parents who decide to bring their children to the state.

"This bill literally protects parents’ ability to make decisions about children's health care without having to be thrown in prison," Wiener said.

At least 24 states have proposed bills since Jan. 1 targeting transgender or nonbinary youths’ ability to receive gender-affirming care.  

In Texas, Republican Gov. Greg Abbott issued a directive earlier this year that ordered state officials to launch child abuse investigations of parents suspected of allowing their child to receive gender-affirming care. 

Alabama Gov. Kay Ivey signed a law in April that makes providing gender-affirming care for youths a felony, punishable by up to 10 years in prison.

A Facebook post claims that a recently signed California law dealing with gender-affirming care for transgender youth will allow that state to take custody of a child from a parent. 

Experts said that’s not so. The bill clarifies that California courts have jurisdiction to hear any custody cases related to a child being taken to the state to seek gender-affirming health care. It does not say that the courts can take custody of a child. 

We rate this claim False.  

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Facebook post ( archive ), Sept. 29, 2022

Twitter post ( archive ), Sept. 29, 2022

Office of California Gov. Gavin Newsom, SB 107 Signing , Sept. 29, 2022

California Legislature, Senate Bill No. 107 , Oct. 3, 2022

The American Council, About , accessed Oct. 3, 2022

Email with Tanner DiBella, Oct. 3, 2022

Phone interview with Courtney Joslin, Oct. 10, 2022

Phone interview with Asaf Orr, Oct. 3, 2022

Email with Wendy Seiden, Oct. 8, 2022

Phone interview with California State Sen. Scott Wiener, Oct. 3, 2022

The Los Angeles Times, "Newsom signs bill protecting transgender youths and families fleeing red-state policies," Sept. 29, 2022

Bloomberg Law, "Transgender Health Care Becomes Target for Wide GOP-Led Rollback," Sept. 20, 2022

The Texas Tribune, "Transgender Texas kids are terrified after governor orders that parents be investigated for child abuse," Feb. 28, 2022

NBC News, "Alabama ban on gender-affirming care for transgender youth takes effect," May 9, 2022

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CIRCUIT COURT DYSPHORIA: THE STATUS OF GENDER CONFIRMATION SURGERY REQUESTS BY INCARCERATED TRANSGENDER INDIVIDUALS

Samantha braver*.

Incarcerated transgender individuals with gender dysphoria have increasingly turned to the courts to seek medical relief in the form of gen­der confirmation surgery (GCS). These claims generally allege that prison officials’ denials of GCS amount to deliberate indifference, which is forbidden under the cruel and unusual punishment provision of the Eighth Amendment. To date, the First, Fifth, and Ninth Circuits have been the primary federal appellate courts to address whether to grant requests for GCS under the Eighth Amendment. The Fifth Circuit’s legal reasoning enables prisons to institute categorical bans on GCS without considering an incarcerated individual’s factual circumstances and the evolution of medical knowledge on gender dysphoria. This Note suggests that instead, courts should adopt the legal approach of the First Circuit and Ninth Circuit, or the “ Kosilek–Edmo framework,” to better vindi­cate the constitutional right to medical care of incarcerated transgender individuals and adhere to Eighth Amendment precedent. The framework urges courts to examine the subjective prong of deliberate indifference on a case-by-case basis of medical need, rely on experts familiar with the World Professional Association for Transgender Health Standards of Care, and apply increased scrutiny when considering the security con­cerns prison officials may have in granting GCS requests or other accom­modation requests by incarcerated transgender individuals.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2021, Columbia Law School. The author would like to thank Professor Brett Dignam for her guidance and the staff of the Columbia Law Review for their diligent, insightful, and gracious edits. The author would also like to thank former Columbia Law Review editor Justice Ruth Bader Ginsburg for her pioneering work on gender discrimination in the law.

Introduction

Vanessa Lynn is a pre-operational male-to-female transgender individual residing in a correctional facility in Texas. 1 1 This Note refers to Vanessa Lynn by her preferred name and pronouns, although the Fifth Circuit refers to her by her assigned name, Scott Gibson, and by male pronouns. See Gibson v. Collier, 920 F.3d 212, 216 (5th Cir. 2019), cert. denied, 140 S. Ct. 653 (2019) (mem.). ... Close Lynn, who has gender dys­phoria, has lived openly as female for several decades. 2 2 Id. at 217–18. ... Close Officials, however, have provided Lynn with only limited treatment, such as hormone therapy, to aid her suffering from gender dysphoria while in prison. 3 3 Id. ... Close A lack of fuller medical treatment, which would entail gender confirmation surgery (GCS) through modification of one’s primary and/or secondary sex char­acteristics, 4 4 See infra section I.A.1. This Note refers to “sex reassignment surgery” by its newer classification and identification, “gender confirmation surgery (GCS).” See Loren S. Schechter, ‘Gender Confirmation Surgery’: What’s in a Name?, Huffington Post (Apr. 20, 2012), https://www.huffpost.com/entry/gender-confirmation-surgery_b_1442262 [https://perma.cc/28PG-JJ8G] (last updated Feb. 2, 2016) (explaining how “gender confirmation surgery” is the most accurate label for the plastic surgery that takes place); see also Gender Confirmation Surgeries, Am. Soc’y of Plastic Surgeons, https://www.plasticsurgery.org/reconstructive-procedures/gender-confirmation-surgeries [https://perma.cc/3LMM-WWXQ] (last visited Sept. 1, 2020) (describing the surgical options available for transgender patients). ... Close has caused Lynn to experience immense anguish. In an attempt to accommodate her own medical needs, Lynn has inflicted severe harm upon herself, including tying a tight string around her testicles, repeatedly cutting herself, and attempting suicide three times while incarcerated. 5 5 Petition for Writ of Certiorari at 4, Gibson , 140 S. Ct. 653 (No. 18-1586), 2019 WL 2711440. ... Close Lynn swears that without GCS, she will castrate herself or commit suicide. 6 6 Gibson , 920 F.3d at 217. ... Close Despite her self-harm and continued mental pain, the Texas Department of Criminal Justice (TDCJ) has categorically refused to evalu­ate Lynn for GCS. 7 7 Id. at 217–18. ... Close Believing this denial violated her Eighth Amendment right to be free from cruel and unusual punishment, Lynn filed a pro se complaint in 2016 in the U.S. District Court for the Western District of Texas, alleging violations of her rights under 42 U.S.C. § 1983. 8 8 Gibson v. Livingston, No. W-15-CA-190, 2016 U.S. Dist. LEXIS 195724, at *19–20 (W.D. Tex. Aug. 31, 2016). ... Close She argued that TDCJ’s system-wide ban on GCS constituted deliberate indifference to her gender dysphoria. 9 9 Id. at *22–23. ... Close The district court granted TDCJ’s motion for summary judgment. 10 10 Id. at *34. ... Close

Much scholarship has been written in the past about the difficulties of obtaining relief for incarcerated transgender individuals with gender dysphoria under the Eighth Amendment’s cruel and unusual punishment framework. 11 11 See, e.g., Susan S. Bendlin, Gender Dysphoria in the Jailhouse: A Constitutional Right to Hormone Therapy?, 61 Clev. St. L. Rev. 957, 974 (2013) (describing how “bias against transgender individuals and misunderstandings about [g]ender [d]ysphoria may influence the outcome”); Lindsey V. Gilbert, Comment, Crossing the Line: Examining Sex Reassignment Surgery for Transsexual Prisoners in the Wake of Kosilek v. Spencer , 23 S. Cal. Rev. L. & Soc. Just. 29, 55–56 (2013) (explaining how some are opposed to GCS as a treatment option because they view it as medically controversial, costly, and unnecessary for individuals who are supposed to face punishment for committing crime); Lindsey Ruff, Note, Trans-Cending the Medicalization of Gender: Improving Legal Protections for People Who Are Transgender and Incarcerated, 28 Cornell J.L. & Pub. Pol’y 127, 144–45 (2018) (“For many plaintiffs, satisfying both parts of the ‘deliberate indifference’ inquiry proves to be an insurmountable hurdle.”). ... Close In particular, scholars have focused great attention 12 12 See, e.g., Bethany L. Edmondson, Note, Trans-lating the Eighth Amendment Standard: The First Circuit’s Denial of a Transgender Prisoner’s Constitutional Right to Medical Treatment, 51 Ga. L. Rev. 585, 594–96 (2017). ... Close on the first federal circuit court case to have decided this issue, Kosilek v. Spencer (Kosilek IV) . 13 13 This final decision, Kosilek v. Spencer ( Kosilek IV ), 774 F.3d 63 (1st Cir. 2014), was composed of an en banc court that ultimately reversed the initial appellate decision. See Kosilek v. Spencer ( Kosilek III ), 740 F.3d 733, 736 (1st Cir. 2014). ... Close In Kosilek IV , the First Circuit ruled that the incarcerated individual’s particular factual circumstances did not support a finding of deliberate indifference for a prison’s failure to provide GCS. 14 14 774 F.3d at 96. ... Close No other circuit court tested or contested this outcome for years.

In March 2019, the Fifth Circuit ruled on a similar Eighth Amendment claim by an incarcerated transgender individual. 15 15 Gibson v. Collier, 920 F.3d 212, 218 (5th Cir. 2019), cert. denied, 140 S. Ct. 653 (2019) (mem.). ... Close In Gibson v. Collier , the Fifth Circuit agreed with the First Circuit in its holding, affirming the district court’s decision that the denial of GCS to Lynn did not violate the Eighth Amendment’s deliberate-indifference standard. 16 16 Id. at 228. ... Close Mere months after Gibson , the Ninth Circuit disagreed with the Fifth Circuit’s ruling and the First Circuit’s outcome, holding in Edmo v. Corizon that when officials deny medically necessary GCS to an incarcerated transgender individual, the responsible officials are indeed deliberately indifferent. 17 17 935 F.3d 757, 797 (9th Cir. 2019). “Medically necessary” under the Eighth Amendment generally means a medical need so obvious that an ordinary person would recognize that it warrants treatment by a doctor. See Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990); Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977); infra section I.B.1 (discussing how courts determine what treatment is medically necessary). ... Close In coming to their decisions, the First and Ninth Circuits relied on a fact-specific approach to determine the plaintiff’s medical need for GCS, in contrast to the Fifth Circuit’s categorical ban on GCS. 18 18 See infra section II.C. ... Close The proper standard for determining what amounts to deliberate indifference by prison officials now remains in question for incarcerated transgender individuals seeking surgical relief for gender dysphoria.

This Note argues that despite the outcome-determinative split between the First and Fifth Circuits in opposition to that of the Ninth Circuit, the real circuit split exists between the First and Ninth Circuits’ similar interpretations of deliberate indifference in Kosilek IV and Edmo and the Fifth Circuit’s unprecedented interpretation of deliberate indif­ference in Gibson . Of these approaches, the Note ultimately proposes that courts should follow the Kosilek – Edmo framework, which aligns most soundly with how other courts have interpreted deliberate indifference in the past for incarcerated individuals (transgender and others alike) and best upholds their constitutional right to medical care under the Eighth Amendment. 19 19 See infra Part III. ... Close Part I of this Note provides medical background infor­mation on gender dysphoria and an overview of Eighth Amendment jurisprudence on claims by incarcerated transgender individuals. Part II considers the competing legal applications of deliberate indifference among the Kosilek IV , Gibson , and Edmo courts and describes how the Kosilek – Edmo framework lies in contrast to the Gibson court’s approach. Part III recommends that courts adopt the Kosilek – Edmo framework and offers jurisprudential recommendations for how courts can standardize their deliberate-indifference analyses on these types of claims in the future.

       

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California Pays for Transgender Prisoner’s Sex Reassignment Surgery

by Joe Watson

The rights of transgender prisoners are in the throes of a major transition.

In August 2015, California’s Department of Corrections and Rehabilitation (CDCR) made the unprecedented decision to pay for sex reassignment surgery (SRS) for Shiloh Quine, 57, a transgender woman incarcerated since 1980. Seventeen months later, in January 2017, Quine became the first U.S. prisoner to receive state-funded SRS.

The decision to pay for the surgery resolved a lawsuit filed on Quine’s behalf by the Transgender Law Center, which argued that denying the procedure would violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

A settlement in Quine’s lawsuit also resulted in California prison officials agreeing to provide toiletries and clothing specific to the preferences of transgender prisoners or those diagnosed with “gender dysphoria” – a recognized medical condition. See: Quine v. Beard, U.S.D.C. (N.D. Cal.), Case No. 3:14-cv-02726-JST.

The CDCR’s original position, that SRS was not medically necessary in Quine’s case, was undermined by the department’s own expert.

“[SRS] is medically necessary to prevent Ms. Quine from suffering significant illness or disability, and to alleviate severe pain caused by her gender dysphoria,” wrote Richard Carroll, a clinical psychologist at Northwestern University in Chicago.

Quine is serving life without parole for first-degree murder, kidnapping and robbery, and thus does not have the option of having SRS after her release.

Like nearly 400 other transgender prisoners in California, she received hormone therapy to aid her transition. Still, she repeatedly attempted suicide after CDCR officials denied her requests for surgery, which costs between $15,000 and $25,000.

Quine’s attorneys believe the settlement in her lawsuit sets a precedent for future cases. “This is clearly where the law is going and where the entire health industry is going,” said Ilona Turner, the Transgender Law Center’s legal director.

There are others, of course, who disagree.

“A settlement is not a precedent,” argued Kent Scheidegger, legal director for the conservative Criminal Justice Legal Foundation. “But I suppose it gives a little ammunition to the next guy to say, ‘you did this for him, why not me?’”

“The idea that the Eighth Amendment requires something for prisoners not available to the law abiding public is something a lot of people find offensive,” he added.

One of those people was Farida Baig, who had attempted to block Quine’s state-funded SRS through litigation. Baig is the daughter of Shahid Ali Baig, who was robbed and murdered by Quine and an accomplice.

While Quine’s case was the first time any state had agreed to pay for a transgender prisoner’s SRS, others have won, at least temporarily, the right to surgery.

In April 2015 another CDCR transgender prisoner, Michelle Norsworthy, was scheduled to receive SRS due to a federal court decision. But she was subsequently paroled, letting prison officials off the hook for her surgery.

And in early 2014, a panel of the First Circuit Court of Appeals ruled that Massachusetts transgender prisoner Michele Kosilek, who had repeatedly attempted suicide and self-castration, had a constitutional right to SRS. [See: PLN, Dec. 2014, p.18]. But the appellate court recalled its initial ruling, and in December 2014 the en banc court reversed and denied Kosilek’s surgery on the grounds that it would endanger prison security.

Until the completion of her SRS, Shiloh Quine was housed at the CDCR’s Mule Creek State Prison, a protective custody facility for male prisoners that also houses transgender women. After being transferred to the Central California Women’s Facility in Chowchilla, Quine said the prison was “a torture unit,” as she was isolated from other prisoners and denied basic hygiene items such as shaving razors. As a result, she began growing facial hair. According to a March 22, 2017 news report, Quine stated in a court filing that prison officials had “no legitimate penological objective but harassment” in refusing to let her shave.

California’s is not the only prison system in a state of flux where transgender issues are concerned. In August 2016, it was announced that federal Bureau of Prisons prisoner Marius Mason, serving a 22-year sentence for arson, had been approved to begin hormone treatment to transition from female to male.  

Sources: www.latimes.com, www.nytimes.com, www.courthousenews.com, www.mcclatchydc.com, www.wboc.com

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Transgender Prisoners: What an Inmate’s Surgery Means for Trans Rights

By Aviva Stahl

Aviva Stahl

On August 7th, 2015, Shiloh Heavenly Quine’s 56th birthday, she and her longtime partner were hanging out in the day room at Mule Creek State Prison , a men’s facility in Ione, California. All of a sudden, Quine – a transgender woman with dirty blond hair and an infectious smile – was summoned to the program office over the loudspeaker. “I wonder what they want,” Quine remembers thinking. “Well, I haven’t done nothing so I can’t be in trouble.”

When she arrived at the office, a counselor handed her an envelope. Inside, ready for Quine to sign, was a settlement agreement her lawyers had reached with the state of California, which would enable her to access the sex reassignment surgery (SRS, also called gender confirmation surgery) she had fought for and dreamed of for years. This past January, Quine made history when she became the first trans person in America to receive SRS while incarcerated.

In an exclusive interview with Rolling Stone from Central California Women’s Facility, where she was transferred in February, Quine recalls of the moment she heard the news. “I was in shock,” she says over the phone, her voice still brimming with excitement. “Oh my God. I couldn’t believe it.”

That day in August was a turning point in Quine’s life as well as the lives of the estimated 3,200 incarcerated trans people in the United States. Not only that, her settlement marked a new day in the evolution of trans rights in America. It established a precedent that anyone and everyone – even those people the U.S. arguably treats with the greatest distain, its prisoners – have a constitutional right to access comprehensive gender-affirming medical care. By requiring the state to provide her with this surgery, it signified that SRS is not “optional” or elective, but an operation that is both crucial and lifesaving.

“I felt that, you’re giving surgery to people who need hearts and kidneys, and you’re paying just as much for that for that, for these incarcerated inmates,” says Quine when asked what it was like to fight for her surgery. “So it felt like discrimination. You’ll provide for certain aspects of individuals, but when it comes to transgenders, we’re not worthy.”

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Shiloh Heavenly Quine was born in Los Angeles in 1959, and grew up mostly in Arizona with her mother, father and three sisters. “I was a cheerful kid, but I feel I didn’t have a childhood,” she says – her father was abusive, and growing up things were difficult. From an early age, Quine identified as female, and as a child she used to play with the dolls that were lying around her house. Quine’s dad was “pretty hardcore” and had clear expectations of the kind of man he wanted Quine to be.

In eighth grade, Quine participated in a contest called “Weird Day,” where kids could dress up however they liked. She went as a woman, sporting long hair and a dress. “I was able to be myself,” Quine remembers. She won the contest. As the years went on, Quine struggled with her desires to be a woman but tried to brush it off as just a phase.

In 1980, Quine was arrested. By 1981 she had been convicted on charges of first-degree murder, kidnapping and robbery for ransom, and sentenced to serve to life without parole in the custody of the California Department of Corrections and Rehabilitation (CDCR). She and her alleged accomplice were accused of kidnapping and shooting 33-year-old Shahid Ali Baig, a father of three, during a robbery in downtown Los Angeles. She maintains her innocence, claiming she was only convicted because jailhouse informants lied on the stand during her trial in exchange for time cuts on their sentences. (Beginning in 1988, Los Angeles County was rocked by a jailhouse informant scandal, after one informant revealed how he could gather crucial details about a case and use them to fabricate a confession. Quine’s conviction did fall within the time period later investigated by the Los Angeles County District Attorney’s office , however they could not corroborate her account.)

Things on the inside were dangerous. Quine was locked up at the California State Prison, Corcoran during the 1990s – its infamous “gladiator days,” when guards allegedly paired up rival gang members to fight each other, then sometimes shot (and killed) the prisoners to get them to stop. “I didn’t want to come out because I was scared,” says Quine. “I was trying to survive.”

It wasn’t until 2008 that Quine learned she could take hormones and transition while incarcerated. That gave her the push she needed to come out, and she started changing how she dressed and how she looked. Coming out “was the hardest thing I ever did,” Quine says. She was diagnosed with gender dysphoria in October 2008, and in January 2009 she received her first hormone shot. Quine explains that most prisoners responded “very hatefully,” after she started transitioning. “There was very few that would even talk to me.”

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The historic nature of Quinn’s surgery is reflective of just how difficult it is for most trans people to receive gender-affirming healthcare on the inside. Flor Bermudez is the Legal Director of the Transgender Law Center (TLC), the largest national trans-led organization in the United States, which, along with the law firm Morgan Lewis, represented Quine. “Our country’s health care system makes it difficult for transgender people across the country to access the health care they need, period,” Bermudez tells Rolling Stone . “When it comes to transgender people in prisons, jails and other institutions, it goes from difficult to almost impossible.” In some places, like Nevada, so-called “freeze-frame” policies are still in place today, meaning trans people cannot access hormones unless they entered prison with a prescription already in hand. Until Quine’s settlement, CDCR – like the vast majority of prison administrations across the U.S. – had a de facto ban on the provision of gender confirmation surgery.

Medical care wasn’t the only issue at hand. Like other trans people behind bars, Quine had to defend herself from physical and sexual violence and frequently ended up in solitary confinement. Denied access to make-up, hygiene items and most women’s clothing, Quine got creative: she made make-up out of Kool-Aid; altered her prison-issued clothing into spaghetti-strapped tops and miniskirts; and eventually got eyeliner and “plucked” eyebrows permanently tattooed on her face.

Even as she got some of the trans-related care she needed, Quine couldn’t stop thinking about SRS. “It was very fulfilling actually to finally complete myself, except I still had this thing between my legs that I felt imprisoned me,” Quine recalls. “I felt like twins that are born together, stuck together and that they needed a procedure at some point to separate them in order to be complete.”

So shortly after she started hormones, Quine filed a health request for SRS. A doctor who worked for CDCR found that she “[was] a good candidate for sexual [sic] reassignment surgery on the basis of medical necessity,” which to Quine seemed like a hopeful step. The doctor’s recommendation was in line with the prevailing medical expertise on trans care, which holds that that SRS is an essential, safe and effective way to relieve gender dysphoria for some trans and gender non-conforming individuals.

CDCR denied her request. When she found out the news, Quine says she tried to commit suicide. “It seemed hopeless,” Quine tells me. “I was at my end, that was it.” But she survived, and decided she would try and fight for her surgery through the courts. She filed a lawsuit, and the judge assigned to her case decided it was strong enough to appoint outside counsel. The Transgender Law Center and Morgan and Lewis came on board.

“That’s when it really got real,” Quine says. “The hope began to turn into a flame, from a little ash.”

The California prison system continued to fight. In a February 2015 court filing, lawyers for the state denied that CDCR discriminates against trans women by enabling cisgender women to more easily access the medical procedure in question (vaginoplasty), and disputed that the only way to treat Quine’s gender dysphoria was through SRS.

gender reassignment surgery jail

Yesterday, one day after the whistleblower formerly known as Pfc. Bradley Manning was sentenced to 35 years in prison for leaking thousands of classified documents, Manning announced that she has embraced her true gender identity and would like to live out the rest of her sentence—and the rest of her life—as Chelsea Manning, a woman. So how does the criminal justice system care for the health and well-being of transgender prisoners?

Access to transition-related healthcare services, such as hormone therapy and sex reassignment surgery, has been a major concern for transgender prisoners and advocates. Before 2010, it was the policy of the U.S. Bureau of Prisons to provide hormones at whatever level was maintained prior to the incarceration. After a 2010 lawsuit, however, the bureau reformed those regulations to include transgender women who did not begin hormone therapy until after their incarceration—and today, for the most part, transgender prisoners are able to access necessary hormone therapy. When Pfc. Manning mentioned in her statement that she would like to begin hormone therapy “as soon as possible,” the Army quickly released a statement saying that it “does not provide hormone therapy or sex-reassignment surgery for gender identity disorder.”

“It seems odd that the Army would make a determination on Manning’s healthcare needs before they’ve even had an assessment,” says Masen Davis, the Executive Director of the Transgender Law Center. “Manning has the right to access necessary medical care while she is in prison, which may include estrogen. That should be determined by a doctor and the patient, not by bias.”

Although transgender inmates are not currently able to receive sex reassignment surgery while incarcerated, in 2012 a U.S. District Judge ordered Massachusetts prison officials to provide sex reassignment surgery to Michelle Kosilek, a transgender woman serving life in prison for murder, on the basis that the surgery would meet Kosilek’s “serious medical need.” The Massachusetts Department of Correction is currently appealing the decision, but according to Jennifer Levi, Director of the Transgender Rights Project for the Gay and Lesbian Advocates and Defenders (GLAD), the decision opens the door to the possibility that transgender inmates might be able to access sex reassignment surgery.

In the past, transgender prisoners were assigned to either a men’s prison or a women’s prison based on whether or not they had already undergone gender reassignment surgery prior to the incarceration. Prisoners who had not had gender reassignment surgery, such as Pfc. Manning, were placed in prison according to the gender they were assigned at birth, regardless of how long they had been living as their true gender or how many previous transitional medical treatments or surgeries they had already undergone. This practice attracted particular controversy in 1994, when the Supreme Court ruled that prison officials had violated the cruel and unusual punishment clause of the Eighth Amendment after Dee Farmer, a male-to-female transgender prisoner who had already received breast implants but not yet had genital reassignment surgery at the time of her incarceration, was repeatedly raped at the men’s prison to which she had been assigned. Fortunately, though, the Department of Justice’s 2012 Prison Rape Elimination Act took landmark steps to protect all prisoners, including transgender prisoners, from sexual assault.

“The new guidelines require a case-by-case consideration for housing transgender inmates in either male or female facilities,” Davis says. “There is no longer a one size fits all approach—instead, it’s based on an individual assessment of what would make the most sense for that person.” Davis added that these guidelines do not currently apply to military prisons. Manning has been assigned to a men’s military prison.

Transgender prisoners, and especially transgender women, are also at a much higher risk of violence and sexual assault. Historically, transgender prisoners have been placed in “non-punitive administrative segregation”—a euphemism for solitary confinement—for their own protection. Although that practice sometimes did succeed in keeping transgender prisoners away from potentially violent fellow inmates, it was also socially isolating, precluded transgender prisoners from participating in social and recreational activities, and had serious consequences for inmates’ mental and emotional health. The 2012 DOJ guidelines include limits on the extent to with protective segregation can be used on transgender inmates, although Mara Keisling, the founding Executive Director of the National Center for Transgender Equality, says there has not yet been an audit to measure how successfully those measures have been implemented.

“The reality is that every credible medical organization has recognized gender identity disorder as a legitimate medical condition, and that the appropriate standard of care includes hormone therapy and surgery,” Levi says. As for Pfc. Manning, transgender advocates say that the Army’s decision to deny her access to hormone therapy will likely be challenged.

“It is illegal in the U.S. to withhold legitimate medical treatment from prisoners,” Keisling says. “What the Army said today about Private Manning’s care is not the last word on the issue.”

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Transgender Prisoners' Legal Rights

Transgender individuals face statistically greater degrees of violence than other groups when they are incarcerated. Their lives are in serious jeopardy due to the threat of prison harassment, assault, and rape, not only from their fellow inmates, but also from staff. Often the discrimination faced by transgender people when trying to secure a job can create economic hardships that necessitate working within the street economy. This and over-policing places them at a higher risk of being imprisoned in dangerous conditions. The United States Constitution and the Prison Rape Elimination Act (PREA), a statute passed in 2003, provide a legal basis for claims by inmates and their advocates regarding the health and safety of transgender individuals held in prisons in the United States.

The Scope (and Limits) of the Eighth Amendment With Respect to Transgender Prisoners

The Eighth Amendment of the US Constitution requires prisons to provide you with adequate health care to address your serious medical needs as a prisoner. Failure to provide you with medical treatment or care can cause significant injuries or unnecessary pain, and also expose you to a substantial risk of harm.

Gender dysphoria is considered a serious medical need. Courts have determined that prisons must offer appropriate treatment to be in compliance with the Eighth Amendment. Unfortunately, many transgender prisoners are mistreated in prison, and cannot get the help of staff to obtain a diagnosis that would allow them to seek adequate care.

Courts interpreting the Constitution have found that it doesn’t give prisoners the right to specify a choice for treatment of gender dysphoria. Instead, this decision is left up to the health care providers in prison.

What rights does the Eighth Amendment give you? You have the right to have decisions about your treatment to be based on medical rather than financial or other concerns. In many jurisdictions, the staff cannot simply deny you treatment, such as hormones, on the grounds that the treatment might expose you to harassment from others. However, some courts do balance security concerns with medical needs. Further, your treatment is supposed to be in accord with accepted medical standards. Failing to evaluate you for gender dysphoria or taking too long to evaluate you is a violation of the Eighth Amendment.

The Acceptable Standard of Care

The World Professional Association of Transgender Health (WPATH) Standards of Care have been recognized as a prevailing set of standards to use in treating gender dysphoria. These standards require you to be evaluated by someone experienced in treating gender dysphoria, and based on that medical care provider’s guidance, you may be permitted counseling, hormone therapy, certain commissary items, and in some cases surgery. You should also be permitted have gender appropriate clothing and other items that will let you present in a way that is consistent with your gender identity. It remains legally uncertain whether a prison is required to provide transgender prisoners with gender confirmation or sex reassignment surgery as part of their adequate care.

If possible, you should file written complaints and appeals to document your efforts to receive a diagnosis or obtain necessary medical care, and you should send copies of your requests to the prison’s health director. Officials at the prison must be aware that you have serious medical needs in order to be found in violation of the Eighth Amendment.

The prison law library and copies of policies and standards like WPATH Standards of Care may help you present your case more effectively to staff and will give you an idea of what you need to document.

Prison Rape Elimination Act

The Prison Rape Elimination Act of 2003 was enacted to address issues of sexual harassment, assault and rape in prisons and other detention centers. In 2012, the Department of Justice issued the PREA Standards to implement the law. These standards include important protections for transgender prisoners, and facilities that don’t comply with the standards risk losing accreditation or funds. For example, prisons and jails are supposed to screen prisoners in the first 72 hours after intake to assess the risk that they will be subject to sexual abuse or victimization. This screening should take into account whether the person is perceived to be LGBTQ+ or gender non-conforming, and assign them to programs and housing with an eye towards protecting the most vulnerable.

You cannot sue prisons or their officials for violations of the standards, but you may be able to use documentation about a PREA Standards violation to show a violation of your other constitutional rights. While states can and have opted out of PREA, the standards may still be useful in those states for purposes of advocating for your rights.

Once you notify prison officials that you are transgender and have been threatened, the officials are required to take steps to protect you. Unfortunately, this can be a complicated and sensitive issue, particularly if the official is the person that has committed the sexual assault, rape, or harassment.

Other steps to take when possible include notifying staff both verbally and in writing of your gender identity, whether you’ve been victimized previously, and whether you think you are at risk. Copies of your complaints or grievances should also ideally be sent to somebody trustworthy outside of the prison system, your PREA coordinator, and the Inspector General. It is prudent to ask your criminal defense attorney for advice or a referral to an attorney with experience handling prisoners’ rights cases.

Last reviewed October 2023

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Laws, court decisions & advocacy tips to protect transgender prisoners

Coiled barbed wire

Introduction

"It was challenging being in a men’s prison because I faced a different level of discrimination being a trans woman, having this body, and being around all these men. The staff hypersexualized me and used my body to create policies only for me: ‘Oh, they can do that, but you can’t.’ … Prisons aren’t safe for anybody. Prisons were created to oppress and hold down and deteriorate you."

1. The Prison Rape Elimination Act 

  • Check for information about upcoming audits in your facility. There should be contact information listed for the auditors and you can report violations directly to them.
  • Whenever you write to the Inspector General or file a grievance, send a copy of that grievance to the PREA Coordinator for the agency that has custody over you. Even if you do not know the person’s name, you can send to “PREA Coordinator.”
  • Incorporate Violations Into Grievances & Litigation. Even though there is no private right to sue under PREA, a violation of the PREA Standards could help to show that a prisoner’s constitutional rights have been violated.

2. Safety and Protection from Violence

"I would like for my legacy to be that I changed injustices for a multitude of people who were or would have suffered unjustly…" 10

3. Medical Care

"We … all, whether we’ve been charged with a crime or not, whether we are popular or unpopular, whether we are loved or unloved, whether we are understood or stigmatized, deserve safe, quality, knowledgeable healthcare." 20
  • Look for policies about transgender prisoners, including policies about medical care. They may be in the prison law library. If not, you can ask staff for copies or send a public records request for all policies about transgender prisoners.
  • If you were receiving hormones from a doctor prior to incarceration, have your medical records sent to the medical or health director at your facility.
  • Get a copy of the WPATH Standards of Care to show the prison medical staff, or tell them where to find them ( http://www.wpath.org/ ). Be sure to ask for care in writing, and send a copy to the health director of your prison or jail.
  • Even if you are told that denials of medical and mental health care cannot be appealed, file appeals anyway. Try to get a medical staff member to respond to your appeals about care instead of correctional staff. If correctional staff answer your grievance, request at the next level that medical staff respond to your appeal since it involves medical issues. 

4. Housing and Administrative Segregation

"Soltary confinement is…cruel and unusual punishment that benefits no one, and nothing about it rehabilitates anyone." 45
  • If you are placed in segregation and do not want to be there, file an appeal about your placement. You should also appeal anything that seems unfair about your placement, such as not being able to participate in a hearing, not being told why you were moved to segregation, not being able to participate in programming, or not being told when you can get out.
  • If your placement is based on so-called safety concerns and you would feel safer in a women’s facility (as a transgender woman), request such a transfer and file appeals if you do not get one.
  • As always, appeal all denials as soon as you can and within the time frames required by the grievance process.

5. Searches and Privacy

Transgender prisoners are frequently targeted for excessive, harassing, or public strip searches. Courts have recognized, however, that prisoners have a right to privacy during full body searches. 53  Therefore, staff must have a good reason to do strip searches and cannot use them to harass or intimidate prisoners. 54

  • If you are asked to strip down in front of other prisoners, politely ask to be moved to a separate area.
  • If you cannot use a private shower, ask to be able to shower at a different time than other prisoners or in a private area (as the PREA Standards require). 63
  • If you do not want to be searched by a staff member of a particular sex, politely ask for a different staff member to search you. You should inform staff that you do not feel safe being searched by staff members of that sex. In some prisons or jails, you may also be able to get a general order or piece of paper (sometimes called a "chrono") that says you should only be searched by women (if you are a transgender woman).
  • Ask for your facility's official policy regarding searches. If not provided, it may be available in the law library or can be requested through a public records request.

6. Safely Preserving/Enforcing Your Rights

  • Under the PLRA, prisoners who want to file a federal lawsuit about something that happens to them in jail or prison must first complete the internal appeals process. This means that you need to know the rules of any appeals process (sometimes called a "grievance process") in your prison or jail, including how quickly you have to file an appeal after something happens to you. In most prisons or jails, for instance, you will have to file a written complaint on a form that is provided. You have to explain what happened to you and also name any staff members who were involved. You will also have to explain how you want the prison or jail to fix what happened to you.
  • If you do not file an appeal, it is very likely that you will not be able to bring a lawsuit about what happened to you. There are a few examples of courts holding that prisoners did not have to file appeals in emergency circumstances, 64  where the prisoner could not get a copy of the grievance forms, 65  or where the prison or jail just ignored the appeal. 66  These cases are rare, though, so you should always file an appeal and be sure to keep appealing it through every level.
  • The PLRA also requires prisoners to pay the full filing fee in all cases. If you do not have the money up front, you can pay in monthly installments from your prisoner account. Not having money should not prevent you from filing, but how much and how quickly you end up having to pay may have to be worked out with the court.
  • The PLRA also prevents many otherwise justified lawsuits from moving forward because it says that in general, prisoners cannot get money damages unless they have suffered a "physical injury or the commission of a sexual act." 67  Because of this, many courts have ruled that prisoners with psychological or emotional injuries cannot get money damages. The PLRA defines "sexual act" narrowly, requiring victims of sexual assault who are 16 or over to prove penetration or oral contact with a penis, vulva, or anus. 68
  • Get a copy of your prison's or jail's appeal policy. Always follow the policy exactly.
  • Remember that the PLRA only applies to cases that are brought by a prisoner. This means that if you are about to be released, your case will not be controlled by most of the PLRA provisions if you file it after your release. Because other legal deadlines may apply, though, you should always try to get legal advice before you make any decisions about when or how to file a lawsuit about something that happened to you in prison or jail.
  • Keep track of everything that happened to you—the names of officers, other prisoners, where things happened, when things happened, what policies are available, which are not available, etc. Even if you never bring a case in court, having details about what happened can be very important if you reach out to other people for help. If you are afraid that staff might take your paperwork, send copies to people you trust on the outside. Be aware, though, that if you are not sending information by legal mail to an attorney or legal organization, staff will likely read everything you put in letters or envelopes.
  • Connect with organizations that work with transgender prisoners, including the ones listed below. You may also be able to connect with a pen pal on the outside if you feel that you need additional help or support. 

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The Eighth Amendment and an Inmate’s Right to Gender Reassignment Surgery: Should Taxpayers Have to Pay?

The eight amendment provides medical protections for transgender prisoners, but at the expense of the taxpayer’s pocket..

Posted on May 19, 2015 by Campbell Law Observer

BY: Kathy Tran, Guest Contributor

Editor’s Note: The  Campbell Law Observer  has partnered with  Judge Paul C. Ridgeway , Resident Superior Court Judge of the 10th Judicial District, to provide students from his Law and Public Policy seminar the opportunity to have their research papers published with the CLO.  The following article is one of many guest contributions from Campbell Law students to be published over the summer. 

So What’s The Problem?

The issue that arises from this decision is whether taxpayers should be required to pay for prisoners to have gender reassignment surgery.  Currently, there are some prisons and detention centers that are paying for the reassignment surgery with taxpayer dollars.  However, those prisons only pay for the surgery when an inmate has reached a certain point in his/her hormone therapy, and the prison feels the surgery is necessary to keep the particular inmate safe.  Yet, due to the recent decision in Kosilek v. Spencer , gender reassignment surgery must now be paid for by the prison system.  The consequence of this decision means that taxpayers are now footing the bill for a surgery that transgender people could not get through their own private insurance plan.

What Is Gender Identity Disorder?

Gender identity disorder , which has recently been renamed as gender dysphoria, is defined as “the strong, persistent feeling of identifying with the opposite gender and discomfort with one’s own assigned sex.”  Gender dysphoria is distinguished from homosexuality.  Instead, individuals that live with gender dysphoria identify with members of the opposite sex and often dress and use mannerisms associated with the opposite sex. However, gender identity disorder presents itself differently between individuals, and must persist over time to be considered as the disorder.

Gender dysphoria is a psychiatric condition recognized by the mental health community that varies in terms of severity and required treatment.  For gender dysphoria to be considered a “’ mental condition ,’ the impairment or distress must rise to such a level that it causes a significant adaptive disadvantage to the person or cause personal mental suffering.”  It is uncertain as to what exactly causes gender dysphoria.  However, the prevailing theories “suggest that it may be caused by genetic (chromosomal) abnormalities, hormone imbalances during fetal and childhood development, defects in normal human bonding and child rearing, or a combination of these factors.”  For those that suffer from gender dysphoria, common symptoms include severe impairment of social and occupational functioning as well as psychiatric conditions like anxiety, depression and suicidal thoughts.

In serious cases, treatment and therapy may be needed to treat this mental condition.  There are several types of treatment available for individuals with gender dysphoria including psychological intervention, hormone therapy, counselling, and gender reassignment surgery.  Gender reassignment is the last method of treatment that health care professionals may use to treat gender dysphoria.  The surgery is considered a “ very effective and appropriate treatment for transsexualism or profound gender dysphoria.”  In 2012, it was estimated that the procedure ranges from $30,000 to $80,000 absent health insurance.  Currently, insurance companies do not have duty to cover gender reassignment surgery and the requirements for genital reconstructive surgery are strict.  Therefore, Medicare and most major insurance providers do not cover the surgery presently.

Even though gender dysphoria is a serious health condition that often leads to depression and even suicide in transgender individuals, the question becomes whether gender reassignment surgery should be provided for inmates at the cost of taxpayers.

The Eighth Amendment and an Inmate’s Right

In Kosilek v. Spencer , the court ruled that the Department of Corrections’ refusal to pay for Ms. Kosilek’s surgery amounted to cruel and unusual punishment under the Eighth Amendment. Michelle Lynne Kosilek (born Robert Kosilek) was convicted of murdering her wife, Cheryl Kosilek, in 1990 and sentenced to life in prison without the possibility of parole.  Ms. Kosilek has since been diagnosed with gender dysphoria and for the last twenty years Michelle has been living as a woman in an all-male prison. During her time in prison, she has received hormone treatments for her gender dysphoria, but argues that the treatments alone are not enough.  Ms. Kosilek urges that a sex-change operation is necessary, arguing the state has a duty to provide it. “ Everybody has the right to have their health care needs met, whether they are in prison or out on the streets,” Michelle says.

She further argues that the operation is not a choice, but rather a medical necessity for her.  Ms. Kosilek has attempted self-castration and attempted suicide twice due to her mental condition.  The judge in this case ruled that by denying Ms. Kosilek’s request for the surgery would constitute a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.  In his 2002 opinion, Judge Wolf wrote that “‘[i]t may seem strange that in the United States citizens do not generally have a constitutional right to adequate medical care,’ ‘but the Eighth Amendment promises prisoners such care.’”

The Eighth Amendment protects prisoners from “cruel and unusual punishments” covering an array of different actions taken by prison officials concerning inmates.  Specifically, Estelle v. Gamble established that the Eighth Amendment protects against the “deliberate indifference to serious medical needs of prisoners.”  Thus “ to establish that an Eighth Amendment violation occurred by denial of medical treatment, the prisoner must demonstrate: (1) a serious medical need, (2) the prisoner received no adequate treatment for this serious medical need, (3) the prison officials knew of the prisoner’s serious medical need, and (4) prison officials made the decision to withhold treatment due to “bad faith and for no legitimate purpose.”

Therefore, by denying Ms. Kosilek the gender reassignment surgery there is a violation of the third prong.  She has a serious medical need and without treatment would suffer from further suicide and self-castration attempts, mental breakdowns, and continued depression.  The Court stated that there is a legitimate purpose for Ms. Kosilek’s surgery and as such there is no reason as to why she should be denied for the surgery.  To do so would be a violation of the Eighth Amendment.

More recently, a Northern California Judge also directed the state to grant a transgender inmate’s gender reassignment surgery—making it the second time in the nation’s history. In this case, Michelle-Lael Norsworthy (born Jeffery Bryan Norsworthy) was convicted of murder and sentenced to state prison in the 1990s.  While in prison she started living as a woman and was later diagnosed with sever gender dysphoria.  Although California corrections officials argued Ms. Norsworthy received proper medical care for over 15 years, including counseling and hormone therapy, the U.S. District Court Judge ruled that the by denying her the gender reassignment surgery constituted a violation of her constitutional rights.  In his ruling, the Judge wrote that “the weight of the evidence demonstrate[ed] that for Norsworthy, the only adequate medical treatment” was to have the surgery.

Between the recent California ruling and the Kosilek ruling, it seems the current trend in the courts is to provide gender reassignment surgery to prisoners suffering from severe gender dysphoria.  Consequently, a prisoner suffering who suffers from severe gender dysphoria essentially receives benefits of taxpayer dollars.

 To Pay or Not To Pay?

Gender Dysphoria is a serious health condition with dangerous consequences including depression and suicide in transgender individuals.  It has been suggested that the antagonism towards gender reassignment surgery for convicted felons is due to the skepticism and general ignorance of gender-related health care.  The issue of expending tax payer dollars on the surgery is not about a “ lack of sympathy or cynicism of the reality of gender dysphoria as a serious medical condition” but rather whether the “gender reassignment surgery is a basic human right.”  Many believe that an inmate spending the rest of their life in prison for murder, and who’s already receiving hormone therapy and counseling, is not entitled to the surgery as a basic human right. This is especially true when private insurance companies deny surgery coverage to law abiding citizens.

Additionally, while gender reassignment surgery may be required for inmates in situations similar to Kosilek , many less culpable people suffering from gender dysphoria do not have the ability to obtain gender reassignment surgery.   Individuals that rely on the federal government for health insurance care through programs such as Medicaid, Medicare, and military health insurance programs, have almost no access to gender reassignment surgery even if it is from a clinical perspective “medically necessary” because gender reassignment surgery is prohibitively expensive.  Many state regulations and statutes regarding Medicaid and Medicare, are hostile to providing beneficiaries access to gender reassignment surgery.   States such as Iowa, Minnesota, and New York have “specifically prohibited the use of funds for gender reassignment surgery, even if the surgery is medically necessary.”  Additionally, CHAMPUS which provides health care insurance coverage for those in the armed forces, veterans, and their families similarly prohibits the use of its funds for gender reassignment surgery. Not only does CHAMPUS prohibit the surgery but goes one step further in prohibiting any treatment for gender dysphoria despite any determination of medical necessity. The statutes and regulations controlling federal entitlement programs have also, at least somewhat, limited the medical benefits for transgender person.

In light of the recent rulings in California and Kosilek , a dichotomy has emerged. The state of California and Massachusetts must now provide medically necessary gender reassignment surgery for convicted inmates suffering from gender dysphoria, however, those with the condition who depend on the government for medical care funding outside the prison system cannot receive the surgery despite being a law-abiding citizen.  Judge Wolf, the presiding judge in the Kosilek case, acknowledged that prisoners may receive better care for the disorder than many law-abiding Americans.  Additionally, several state legislators have publically opposed using taxpayer funds to pay for the gender reassignment surgery with one senator stating that allowing the surgery would not be a “good use of taxpayer dollars.”  There has also been much backlash in the media regarding the entitlement to gender reassignment surgery paid by tax dollars.

These two recent court decisions have left an incredible impact on the jurisprudence concerning transgender inmates.  If gender reassignment surgery is deemed medically necessary for a transgender inmate, and the request for treatment is denied, the Eighth Amendment is probably violated.  However, the consequences of these decisions have brought to light an inequality in the United States health care system.  Though prisoners with a medical need for gender reassignment surgery have a right to receive this treatment, those outside the prison system that rely on the government for health care cannot receive the same treatment.  Unfortunately, challenges to this inequality will not likely correct this injustice.  Therefore, as long as insurance companies and federal programs do not provide gender reassignment surgery for private individuals, and are not required to cover the surgery, states should not be required to give the surgery to convicted murderers who are to remain in prison for the rest of their lives.

Kathy Tran is a 2015 graduate of Campbell Law School. She can be reached by email at  k_********@em***.edu .

  • Eighth Amendment

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Pamela Paul

Why Is the U.S. Still Pretending We Know Gender-Affirming Care Works?

A black stethoscope hangs on a gray rock.

By Pamela Paul

Opinion Columnist

Imagine a comprehensive review of research on a treatment for children found “remarkably weak evidence” that it was effective. Now imagine the medical establishment shrugged off the conclusions and continued providing the same unproven and life-altering treatment to its young patients.

This is where we are with gender medicine in the United States.

It’s been three months since the release of the Cass Review, an independent assessment of gender treatment for youths commissioned by England’s National Health Service . The four-year review of research, led by Dr. Hilary Cass, one of Britain’s top pediatricians, found no definitive proof that gender dysphoria in children or teenagers was resolved or alleviated by what advocates call gender-affirming care, in which a young person’s declared “gender identity” is affirmed and supported with social transition, puberty blockers and/or cross-sex hormones. Nor, she said, is there clear evidence that transitioning kids decreases the likelihood that gender dysphoric youths will turn to suicide, as adherents of gender-affirming care claim. These findings backed up what critics of this approach have been saying for years.

“The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress,” Cass concluded. Instead, she wrote, mental health providers and pediatricians should provide holistic psychological care and psychosocial support for young people without defaulting to gender reassignment treatments until further research is conducted.

After the release of Cass’s findings, the British government issued an emergency ban on puberty blockers for people under 18. Medical societies, government officials and legislative panels in Germany, France, Switzerland, Scotland , the Netherlands and Belgium have proposed moving away from a medical approach to gender issues , in some cases directly acknowledging the Cass Review. Scandinavian countries have been moving away from the gender-affirming model for the past few years. Reem Alsalem, the United Nations special rapporteur on violence against women and girls, called the review’s recommendations “seminal” and said that policies on gender treatments have “ breached fundamental principles ” of children’s human rights, with “devastating consequences.”

But in the United States, federal agencies and professional associations that have staunchly supported the gender-affirming care model greeted the Cass Review with silence or utter disregard.

There’s been no response from the Department of Health and Human Services , whose website says that “gender-affirming care improves the mental health and overall well-being of gender diverse children and adolescents” and which previously pushed to eliminate recommended age minimums for gender surgery . Nor has there been a response from the American Medical Association , which also backs gender-affirming care for pediatric patients .

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White House says it opposes gender-affirming surgery for minors

The administration’s message stands at odds with Biden’s prior broad support for gender-affirming care.

Orion Rummler

LGBTQ+ Reporter

Republish this story

Editor’s note: This article has been updated to clarify the nature of the White House's response.

 The Biden administration on Tuesday afternoon provided more details about its opposition to gender-affirming surgery for transgender minors, a position at odds with its previously broad support for gender-affirming care — and one taken by a presidential administration that has closely aligned itself with LGBTQ+ advocates.

“These are deeply personal decisions and we believe these surgeries should be limited to adults,” a White House spokesperson said over email. “We continue to support gender-affirming care for minors, which represents a continuum of care, and respect the role of parents, families, and doctors in these decisions.” 

Notably, the Biden administration has taken its support for gender-affirming care for trans youth all the way to the Supreme Court . The court has agreed to take up the question of whether gender-affirming care bans for trans youth are unconstitutional, in response to the Biden administration petitioning on behalf of trans youth and their families. The administration’s stance against laws that ban gender-affirming care for trans youth — which includes bans on surgeries —   appears to remain the same. 

“As President Biden has repeatedly said, ‘It’s wrong that extreme officials are pushing hateful bills targeting transgender children, terrifying families, and criminalizing doctors. These are our kids. These are our neighbors. It’s cruel and it’s callous,’” the spokesperson said, quoting a statement that Biden made last summer in response to rising anti-LGBTQ+ legislation. 

“Transgender children have been the victims of unacceptable bullying, hate and partisan laws that target them for who they are,” the spokesperson said. 

A transfeminine person speaks to a therapist in an office.

  • Read Next: The 19th Explains: Everything you need to know about gender-affirming care

Most transgender youth receiving gender-affirming care will not undergo surgery as a minor . Trans youth who, along with their parents, elect to begin gender-affirming medical care as they enter adolescence due to persistent gender dysphoria will typically receive puberty blockers. This treatment intervenes before puberty causes bodily changes that may require surgery in the future. Puberty blockers are typically used until patients get to an age where they can consider taking hormone replacement therapy. 

Of the surgeries that a small number of trans adolescents undergo after receiving years of medical care, top surgery — or male chest reconstruction — is the most common. At some gender clinics, that is the only surgery ever considered for a trans minor. However, misinformation spread by opponents of gender-affirming care portrays genital surgery as a common procedure done on trans youth. Such a procedure being done on trans minors is exceedingly rare. 

The White House cited the American Academy of Pediatrics (AAP) in its opposition to gender-affirming surgery for trans youth. The AAP, which endorses providing trans youth with gender-affirming care and opposes laws banning such care, has stated that gender-affirming surgeries are typically given to adults, which the White House echoed.

The White House provided its comment to The 19th following reports in The New York Times and Fox News that the Biden administration opposed gender-affirming surgery for trans youth. 

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According to reports from the Times and Fox News, the White House gave a brief response in opposition to surgery for trans youth following news articles detailing conversations between the World Professional Association for Transgender Health (WPATH) and staff for Dr. Rachel Levine, the assistant secretary of the Department of Health and Human Services. 

The Times reported in late June that Levine’s staff pressed WPATH to remove its proposed lower age limits for adolescent surgeries out of concern of political backlash, as WPATH updated its longstanding guidelines on transgender health care for medical professionals. WPATH had proposed lowering age recommendations for masculinizing top surgeries to 15 years old, and lowering the recommended age for genital surgeries to 17 years old. 

In the final WPATH guidelines published in 2022, no age recommendations were given for surgeries for trans youth. 

WPATH said that it removed those minimum ages for providing gender-affirming care “to reflect that one-size-fits-all health care models, especially transgender care, are not accurate or appropriate for every individual person.” WPATH said that medical professionals had expressed concern “that the listing of ages would lead to further limitations to care by creating or reinforcing arbitrary boundaries to care and/or by ignoring possible contributing health factors including mental health, family support, or other individual health needs.”

Kristen Clarke, assistant attorney general for the Civil Rights Division

  • In 2022: Transgender minors have a right to gender-affirming care, Justice Dept. warns states

“In response to WPATH’s request for HHS feedback on a draft of its forthcoming standard of care, Adm. Levine shared her view with her staff that publishing the proposed lower ages for gender transition surgeries was not supported by science or research and could lead to an onslaught of attacks on the transgender community,” the HHS said in an emailed statement. Levine, a four-star admiral in the U.S. Public Health Service Commissioned Corps, is the highest-ranking transgender official in the Biden administration.  

The HHS did not respond specifically to questions regarding the White House signaling its opposition to gender-affirming surgery for trans youth. 

The Biden administration has previously put out multiple statements in support of gender-affirming care for trans youth. The White House has stated that “transgender children have the right to access gender-affirming health care” and has promoted resources on gender-affirming care for trans youth, including an explainer written by the HHS that discusses when and how puberty blockers, hormone therapy, and surgeries are received by minors. 

“To all transgender Americans watching at home, especially the young people, you’re so brave,” Biden said in 2021 to a joint session of Congress . “I want you to know your president has your back.” Biden again echoed that message in his 2024 State of the Union address .

Recommended for you

The 19th explains: everything you need to know about gender-affirming care, tennessee governor signs laws targeting drag shows and banning health care for transgender youths, in texas, parents’ rights don’t extend to gender-affirming care, state supreme court says, trans youth in florida can no longer start gender-affirming care, pushing families toward difficult decisions.

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10 historical photos that capture turning points of gay liberation in America

  • Through the years, LGBTQ+ people have been in the background of history. 
  • There have been many turning points on the road to liberation, including trans athletes in sports.
  • Many LGBTQ+ people are now becoming politicians to fight for their rights. 

Insider Today

Queer people have long existed in the background of history. Still, LGBTQ+ activities have long been criminalized — often rooted in religion, science, or socio-political factors, leaving queer individuals largely estranged.

And while erasure is prevalent in marginalized communities, LGBTQ+ people in the US have experienced some important turning points in history.

These photos show landmark events in the fight for freedom of sexuality, identity , and love.

Despite their pivotal role in queer liberation, transgender people are often written out of LGBTQ+ history.

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For example, in 1952, years before the Stonewall Riots, American actor and singer Christine Jorgensen was introduced to America as the first woman to have gender-affirming surgery . At a time when public cross-dressing and gender-nonconforming activities were illegal, her transition paved the way for transgender visibility.

While the inclusion of transgender people in sports has been a hot topic in recent years, the conversation dates back to 1976.

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After the United States Tennis Association barred Renée Richards from competing in the US Open as a woman, she sued the USTA for gender discrimination. Richards won the lawsuit a year later and became one of the first trans woman athletes to play professionally.

Her feat changed the game for many transgender and queer athletes .

Despite progress, the rate of transgender homicide continues to soar decades later.

On November 20, 1999, the first Transgender Day of Remembrance vigils were held to honor Rita Hester, a 34-year-old Black trans woman who was murdered in Boston a year earlier.

Five years later, on June 25, 2004, a few hundred people set foot on the first Trans March during Pride weekend in San Francisco.

One of the most famed moments of LGBTQ+ liberation was the Stonewall Riots.

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On June 28, 1969, police raided a gay club in New York City called the Stonewall Inn, which led to six days of protests from the community and violence from law enforcement .

Four transgender and gender non-conforming women of color led the uprising, built on a string of similar protests at private businesses that began a decade earlier: Cooper Do-nuts in 1959, Compton's Cafeteria in August 1966, and The Black Cat in 1967.

They're acknowledged as a catalyst for the Gay Liberation Movement, allowing many LGBTQ+ people to enjoy a new sense of sexual freedom in its wake.

The first Pride marches were held in the '70s.

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In June 1970, one year after the riots started, Chicago, Los Angeles, New York, and San Francisco held the first Pride parades, formerly known as Pride Marches .

In 1978, Gilbert Baker designed the first rainbow flags for the parade in San Francisco.

"A Rainbow Flag was a conscious choice, natural and necessary," Baker said in his memoir "Rainbow Warrior: My Life in Color," explaining that the rainbow symbolizes cultural diversity in the LGBTQ+ community. "Now the rioters who claimed their freedom at the Stonewall Bar in 1969 would have their own symbol of liberation."

The 'unspoken' epidemic began in the '80s, killing many LGBTQ+ people.

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In June 1981, the Centers for Disease Control and Prevention published news of five cases of pneumonia among previously healthy young men in Los Angeles. They were described as "homosexuals."

The cases were later attributed to a virus known as HIV. It wasn't until September 17, 1985, four years after the first reported cases, that then-president Ronald Reagan publicly addressed the virus . By then, thousands of people were either living with or had died from HIV.

In a pre-PrEP world, stigma and discrimination led to a public health crisis that disproportionately impacted people of color in the community. It quickly became an epidemic , with tens of millions of reported cases and deaths from the virus.

The AIDS Memorial Quilt honored the lives that were lost.

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A community art project known as The NAMES Project AIDS Memorial Quilt honored the lives of people lost by AIDS. It debuted on October 11, 1987, during the National March on Washington for Lesbian and Gay Rights in Washington, DC.

LGBTQ+ people slowly started making their way into politics.

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Two years ago, over 450 LGBTQ+ candidates ran for office . The 2022 midterm elections made history for having the most wins for openly queer candidates during an election period. But 50 years ago, one small victory was a huge step for the community.

On April 2, 1974, Kathy Kozachenko was elected to the Ann Arbor City Council in Michigan. She became the first openly LGBTQ+ person to run for political office in the US successfully.

Kozachenko's win is lesser known than Harvey Milk's.

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Milk was elected to the San Francisco Board of Supervisors on November 8, 1977, and, alongside San Francisco's then-Mayor George Moscone, was an early gay rights advocate.

A year into their term, former supervisor Dan White shot and killed Milk and Moscone. White was known for having political disagreements with the duo.

Fast forward to the 21st century, the LGBTQ+ community witnessed many wins.

gender reassignment surgery jail

On June 26, 2003, same-sex sexual activity was legalized in Lawrence v. Texas . The Supreme Court of the United States held that criminalizing consensual, same-sex sexual conduct violates the due process clause of the 14th Amendment.

Then-President Barack Obama announced the repeal of former President Bill Clinton's " Don't Ask, Don't Tell " policy, ending years of secrecy and silence for queer members of the US military.

On June 26, 2015, exactly 12 years after Lawrence v. Texas, the United States Supreme Court ruled that same-sex marriages are recognized under the 14th Amendment in the Obergefell v. Hodges case.

While the US has witnessed much progress for the LGBTQ+ community in the past century, some states' support for LGBTQ+ rights has wavered .

More recently, on June 28, the Texas Supreme Court upheld its 2023 ruling that bans transgender minors from receiving gender-affirming medical care. Texas is only the largest of 25 states with laws restricting or banning gender-affirming care for transgender and nonbinary minors.

Momo Takahashi contributed to this piece.

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IMAGES

  1. California Is First to Pay for Prisoner’s Sex-Reassignment Surgery

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  2. How Gender Reassignment Surgery Works (Infographic)

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  3. Transgender murderer granted gender reassignment surgery on NHS

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  5. Sex Reassignment Surgery at 74: Medicare Win Opens Door for Transgender Seniors

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  6. Heres How Sex Reassignment Surgery Works The Washington Post

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COMMENTS

  1. Court orders first gender-affirming surgery for a transgender federal

    April 21, 2022, 1:29 PM PDT. By Matt Lavietes. In a first, the Federal Bureau of Prisons has been ordered to secure gender-affirming surgery for a transgender prisoner. A federal judge in the U.S ...

  2. Judge orders US Bureau of Prisons to find surgeon for transgender ...

    A federal judge in Illinois on Monday ruled that the US Bureau of Prisons (BOP) has to immediately find a qualified surgeon so that a transgender prisoner, Cristina Nichole Iglesias, can receive ...

  3. A transgender female inmate received her gender confirmation surgery

    A federal judge ordered the state to provide the surgery because Edmo's mental health was impacted. In February, the 9th Circuity Court of Appeals upheld that ruling, marking the first time a ...

  4. Transgender woman could become first federal prisoner to get gender

    USA TODAY. 0:03. 1:29. A transgender woman serving time in federal prison could become the first inmate to receive gender-affirming surgery under a recent ruling by a federal judge. The judge ...

  5. Transgender federal inmate gets long-awaited gender-affirming surgery

    A transgender federal inmate who fought for four years to push the U.S. Bureau of Prisons to provide gender-affirming care to prisoners underwent surgery last week and is recovering, her attorneys ...

  6. Trans inmates need access to gender-affirming care. Often they ...

    Transgender inmates who don't get proper gender-affirming care in prison can experience serious anxiety, depression and suicidal ideation. One individual said the experience was "catastrophic ...

  7. Gender affirming surgery: Federal inmate could be nation's first

    Texas transgender prisoner could be nation's first to get gender affirmation surgery in federal custody. Long before she got into trouble with the law, Cristina Nichole Iglesias felt that the body ...

  8. Gender-Affirming Care, Incarceration, and the Eighth Amendment

    Prisoner access to gender affirmation surgery remains extremely rare, although blanket bans on these procedures have been ruled unconstitutional under Eighth Amendment claims. 30 The handful of successful petitioners have had their surgical requests fulfilled only after expressions of extreme self-harm and only after extensive litigation. 27,29 ...

  9. Gender Reassignment Surgery, Prisoners, and the 8th Amendment

    In the medical field, gender reassignment surgery ("GRS") is a technological innovation that has become increasingly common. Gender dysphoria, a condition that leads to GRS, is referred to as discomfort or distress caused by a mismatch between a person's gender identity and that person's sex assigned at birth. [3]

  10. Transgender prisoners have fundamental right to appropriate care

    Listen Now (Apple Podcasts) The state of Idaho is fighting federal court-ordered gender-reassignment surgery for Adree Edmo—formerly Mason Edmo—a transgender female inmate who filed a civil rights lawsuit to get the gender dysphoria care that she was refused in prison. In December 2018, a federal district court ruled in favor of Edmo ...

  11. Backlog grows for gender-affirming care in CA prisons

    Backlog grows for gender-affirming care. As of December, 20 inmates since 2017 had received gender-affirming surgery. Another 150 surgeries had been approved, but not completed, according to the budget documents. In the 2021-22 California government budget year, 270 inmates requested gender-affirming surgeries - up from 99 the previous year.

  12. Court Says Idaho Must Provide Gender Confirmation Surgery To

    A federal court has ordered that the state of Idaho pay for gender confirmation surgery for Adree Edmo, a transgender inmate incarcerated at the Idaho State Correctional Institution (above). Heath ...

  13. Idaho must pay for transgender inmate's surgery, court rules

    A federal appeals court has ruled that the state of Idaho must pay for a transgender inmate's sex reassignment surgery. The state says it will appeal the case to the U.S. Supreme Court. Inmate ...

  14. White House policies are unclear for gender-affirming surgery in prisons

    The latest version of the manual says that surgery for incarcerated transgender people is "generally considered only after one year of clear conduct and compliance with mental health, medical, and programming services at the gender-affirming facility.". Requiring a minimum one-year waiting period before providing gender-affirming care is ...

  15. PolitiFact

    In the state of California, your child can now be taken from your custody if you do not affirm gender-reassignment surgery." The post, shared by the American Council, is a screenshot of a tweet by ...

  16. Circuit Court Dysphoria: the Status of Gender Confirmation Surgery

    Close A lack of fuller medical treatment, which would entail gender confirmation surgery (GCS) through modification of one's primary and/or secondary sex char­acteristics, 4 4 See infra section I.A.1. This Note refers to "sex reassignment surgery" by its newer classification and identification, "gender confirmation surgery (GCS)."

  17. California Pays for Transgender Prisoner's Sex Reassignment Surgery

    Like nearly 400 other transgender prisoners in California, she received hormone therapy to aid her transition. Still, she repeatedly attempted suicide after CDCR officials denied her requests for surgery, which costs between $15,000 and $25,000. Quine's attorneys believe the settlement in her lawsuit sets a precedent for future cases.

  18. What an Inmate's Surgery Means for Trans Rights

    By Aviva Stahl. November 9, 2017. Quine is the first transgender person to get sex reassignment surgery in prison. SFINX Publishing/The Women of San Quentin. On August 7th, 2015, Shiloh Heavenly ...

  19. Getting Hormones and Surgery for Transgender Prisoners

    Access to transition-related healthcare services, such as hormone therapy and sex reassignment surgery, has been a major concern for transgender prisoners and advocates. Before 2010, it was the ...

  20. Transgender Prisoners' Legal Rights

    It remains legally uncertain whether a prison is required to provide transgender prisoners with gender confirmation or sex reassignment surgery as part of their adequate care. If possible, you should file written complaints and appeals to document your efforts to receive a diagnosis or obtain necessary medical care, and you should send copies ...

  21. 19 states have laws restricting gender-affirming care, some with the

    This year has been record shattering for anti-LGBTQ legislation, with particular scrutiny on gender-affirming health care access for transgender children and teenagers.Nineteen states have passed ...

  22. Laws, court decisions & advocacy tips to protect transgender prisoners

    This guide identifies laws, court decisions, advocacy tips, and other resources that may be helpful for adult transgender prisoners.1 Each transgender person's experience in prison and jail is different, in part because the conditions vary a great deal from one prison to another and change over time. However, the safety and health of every ...

  23. The Eighth Amendment and an Inmate's Right to Gender Reassignment

    If gender reassignment surgery is deemed medically necessary for a transgender inmate, and the request for treatment is denied, the Eighth Amendment is probably violated. However, the consequences of these decisions have brought to light an inequality in the United States health care system. Though prisoners with a medical need for gender ...

  24. These millions of Americans are more likely to live in poverty, be

    Pew has also found that most Americans believe that a person's gender is determined by their sex at birth, ... eventually getting gender reassignment surgery in 2008. Isbell currently works in ...

  25. Opinion

    Gender-affirming care can include social transition (allowing kids to change their name, appearance and pronouns, for example, in schools and other public settings), prescribing medicine to stall ...

  26. Fact check: GOP ad suggests Beshear backs kid sex change surgeries

    Beshear's stated opposition to gender reassignment surgery for children has not put him at odds with other LGBTQ rights groups, who expressed no opposition with that specific part of SB 150 as it ...

  27. UK clinic did 'non-genital gender reassignment surgeries' before ban

    Senate Bill 150 specifically banned "any surgery that artificially constructs tissue having the appearance of genitalia differing from the minor's sex, including metoidioplasty, phalloplasty, and ...

  28. Gender Dysphoria and Gender Reassignment Surgery

    Was your Medicare claim denied? Here are some hints to help you find more information: 1) Check out the Beneficiary card on the MCD Search page.. 2) Try using the MCD Search and enter your information in the "Enter keyword, code, or document ID" box. Your information could include a keyword or topic you're interested in; a Local Coverage Determination (LCD) policy or Article ID; or a CPT/HCPCS ...

  29. Biden admin says it opposes gender-affirming surgery for minors

    Editor's note: This article has been updated to clarify the nature of the White House's response. The Biden administration on Tuesday afternoon provided more details about its opposition to gender-affirming surgery for transgender minors, a position at odds with its previously broad support for gender-affirming care — and one taken by a presidential administration that has closely aligned ...

  30. 10 historical photos that capture turning points of gay liberation in

    Christine Jorgensen was the first person to become widely known in the United States for having sex reassignment surgery Bill Meurer for New York Daily News Archive / Getty Images ...