Medical transgressions in America's prisons: defending transgender prisoners' access to transition-related care.

• Author: Agbemenu, Esinam

INTRODUCTION

With Chelsea Manning's case making headlines (1) and the hit television show Orange Is the New Black highlighting the struggles of a trans woman in prison, (2) the public is slowly becoming aware of the complex issues facing transgender prisoners. Although it is difficult to determine the precise size of this population, (3) a 2009 study by Brown and McDuffie estimates that approximately 750 prisoners in the United States identify as transgender. (4) This is a relatively small portion of the U.S. prison population, (5) but it represents a sizable portion of America's transgender population. Nearly one in six transgender Americans--and almost half of the African American transgender population--has been incarcerated in a state or federal prison. (6) Although the issues and concerns of this population have gained more attention in legal scholarship, academia, public policy, and social discourse in recent years, many issues are still largely unresolved for transgender inmates, including their access to medical care.

Transgender individuals have struggled to gain access to comprehensive medical care for decades, and this difficulty is only exaggerated by the confining and often life-threatening conditions of prison. (7) Prison officials routinely prevent transgender prisoners from receiving access to transition-related health care such as hormone therapy or sex-reassignment surgery. (8) Given the history of incarceration in the United States, this issue largely affects those who are multiply-marginalized, (9) not only by their gender identity but often also based on their race and socioeconomic status. (10) The dominant legal argument used to secure medical treatment for transgender prisoners is rooted in the Eighth Amendment's language regarding "cruel and unusual punishments." (11) Specifically, legal advocates have argued that gender dysphoria--the state of distress brought on by a disconnect between one's gender identity and biological sex--constitutes a "serious medical need" (12) and therefore cannot be deliberately ignored by prison staff. Although gender dysphoria has been found to be a serious medical need in some cases, there is no unanimous agreement among courts on this issue, and the United States Supreme Court has not addressed the question.

While the progress some courts have displayed in finding that gender dysphoria constitutes a serious medical need is encouraging, there is a serious flaw in the analysis that many of these courts apply. Specifically, in the vast majority of cases in which a court has found gender dysphoria to constitute a serious medical need, the plaintiff has resorted to extreme and incredibly dangerous actions of self-remedy--attempted suicide and/or genital self-mutilation. (13) There is simply no reason that a prisoner should have to reach this level of physical and psychological trauma before a court will categorize his or her (14) condition as serious enough to warrant treatment. While the case law around this issue certainly does not state that gender dysphoria only meets the standard of "serious medical need" upon the attempt of these acts of self-harm, the case history strongly suggests that these incidents play a critical role in the courts' findings. (15) In fact, few cases that are brought on Eighth Amendment grounds lack mention of attempted suicide or genital mutilation. (16) This pattern poses a great harm to the transgender prison population and minimizes--if not fully disregards--the serious nature of gender dysphoria in and of itself. Furthermore, framing this argument within the context of medical need necessarily pathologizes the transgender community by describing non-conforming gender identity as an illness, and creates a difficult tension between securing access to treatment and advocating for the acceptance of transgender individuals and their gender identity.

Part I of this Note will provide a background on gender dysphoria and will introduce the concept of prison as a uniquely and problematically gendered space. Part II will introduce the standard of "serious medical need" that is used in Eighth Amendment jurisprudence, with particular focus on how courts have applied this standard to mental health concerns, a category that includes gender dysphoria. Part III will introduce the central argument that, while increasingly more courts have found gender dysphoria or gender identity disorder to be a serious medical need, they have done so predominantly--and thus problematically--in cases in which the plaintiff has taken extreme measures to remedy his or her lack of treatment. This arguably establishes a pattern whereby attempted suicide and self-surgery become metrics for evaluating the severity of gender dysphoria, and implies that gender dysphoria is not deserving of treatment until it has reached these catastrophic levels. Part IV will address the tension between using medical rhetoric to secure necessary rights for prisoners and avoiding the pathologization of the transgender community that is inherent in the Eighth Amendment argument. Part V will conclude by providing alternative legal arguments as well as broader policy suggestions that may be used alongside the traditional Eighth Amendment argument to secure medical care for transgender inmates.

1. Background on Gender Dysphoria and the Gendered Dynamic of Prison

   The stigma and marginalization associated with transgender identity is compounded by the oppression of incarceration. Understanding these two factors in tandem allows for a more holistic analysis of the unique issues facing transgender prisoners, particularly as they seek medical care. Sub-part A will provide background on transgender identity and gender dysphoria, and define many relevant terms that will be used throughout this Note. Sub-part B will address the uniquely and problematically gendered nature of prison and the ways in which it disadvantages gender non-conforming prisoners.

   1. Background on Gender Dysphoria and Transgender Identity

      Gender dysphoria (17) is a term, often used in a medical context, to describe the severe distress caused by a discrepancy between the sex a person was assigned at birth (and its accompanying gender role expectations) and a person's gender identity. (18) This implies a marked difference that many scholars and medical professionals have noted between sex, a biological categorization, and gender, a social construct. Conflating gender and sex improperly creates ubiquitous categories of male and female that purport to present all gender possibilities by promoting the gender binary of male and female as the "irreducible essence of gender." (19) Systems that operate solely within this limiting binary fail to cover the full spectrum of gender identity and thus serve to marginalize and oppress those who do not fit neatly within the biological and gendered categories of male or female. (20)

      The current Diagnostic and Statistical Manual of Mental Disorders ("DSM-5") describes the condition of gender dysphoria as being characterized by "the distress that may accompany the incongruence between one's experienced or expressed gender and one's assigned gender," noting that "many are distressed if the desired physical interventions by means of hormones and/or surgery are not available." (21) Gender dysphoria is associated with clinically significant distress, must last for at least six months, and be manifested in at least two of the following ways:

      1) a marked incongruence between one's experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics);

      2) a strong desire to be rid of one's primary and/or secondary sex characteristics because of a marked incongruence with one's experienced/ expressed gender (or in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics);

      3) a strong desire for the primary and/or secondary sex characteristics of the other gender;

      4) a strong desire to be of the other gender (or some alternative gender different from one's assigned gender);

      5) a strong desire to be treated as the other gender (or some alternative gender different from one's assigned gender);

      6) a strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one's assigned gender). (22)

      While official sources like the DSM-5 have attempted to use their particular rhetoric to mitigate the stigma associated with gender dysphoria and its perception as an illness, gender dysphoria still very clearly receives the status of a psychiatric condition by its inclusion in the DSM-5 and has been recognized in the medical community as a legitimate mental health condition, with potential physical manifestations. (23)

      The recommended treatment process for people experiencing gender dysphoria often comes in three parts. First, individuals must participate in regular psychiatric counseling or psychotherapy. (24) This phase allows the transgender individual to discuss his or her gender-related distress with a medical professional who can assist the patient through the treatment process and assess the degree of severity of the individual's gender dysphoria.

      In the second phase, the individual must live openly as the gender with which he or she identifies for at least one or two years. (25) This often involves dressing as the gender with which one identifies and may also involve beginning hormonal treatment, cosmetic surgery (e.g., breast augmentation, facial cosmetic surgery), and other procedures such as electrolysis.

      Finally, once the individual is confident that he or she is ready to make the full, physical transformation and has spent time both examining his or her gender and experiencing life as the desired gender, the individual may seek sex-reassignment surgery. (26) Not all transgender individuals desire this...