A Comparative Analysis of the Treatment of Transgender Prisoners: What the United States Can Learn from Canada and the United Kingdom

• Publication year: 2021

A Comparative Analysis of the Treatment of Transgender Prisoners: What the United States Can Learn from Canada and the United Kingdom

Stephanie Saran Rudolph

A COMPARATIVE ANALYSIS OF THE TREATMENT OF TRANSGENDER PRISONERS: WHAT THE UNITED STATES CAN LEARN FROM CANADA AND THE UNITED KINGDOM

Introduction

On September 29, 2015, in the early evening, 27-year-old transgender inmate Adree Edmo composes a note.¹ "I do not want to die, but I am a woman and women do not have these."² She wants to be clear that she is not attempting suicide and leaves the note in her prison cell.³ She opens a disposable razor and boils it to disinfect it; she scrubs her hands.⁴ Then, "she takes the razor and slices into her right testicle with the blade."⁵ This is only the first of Adree's self-castration attempts, and while there is too much blood and she does not succeed, she will try again.⁶ "Self-castration is incredibly dangerous and eventually becomes central to her case against the state of Idaho."⁷ Adree brought suit against the state of Idaho, arguing in front of the Ninth Circuit Court of Appeals that she needs gender confirmation surgery to treat her gender dysphoria, and wins.⁸ Once she undergoes the procedure, she will be the first transgender woman in the united States to receive gender confirmation surgery by court order while incarcerated.⁹

Adree's case creates a circuit split within the united States regarding the medically necessary treatment a state is legally required to provide an inmate with gender dysphoria.¹⁰ However, Adree's story is not unique; the rights of transgender inmates are a global issue and are treated differently across the world depending on political and societal structures.¹¹ There are practices and policies which perpetuate the mistreatment of transgender prisoners.¹² This

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Comment addresses several questions with which American society is currently grappling. For instance, what is gender dysphoria and how do you treat it? What is the extent of a government's responsibility to provide for the physical, mental, and emotional health needs of offenders? And, should that role be extended?

This Comment examines the legal and policy approaches of the united Kingdom and Canada to inform the current circuit split and provide suggestions for improvements that could be made in the United States.¹³ Through exploration and comparison, this Comment proposes changes in policy and practice for housing transgender inmates, providing consultation with medical professionals, and treating transgender inmates in daily life. The United States should employ a more gender-affirming approach when providing healthcare to transgender inmates by adopting policies and regulations in accordance with the medical community's most recent recommendations. Data collection systems able to capture an accurate prison population are required to ensure the needs of vulnerable populations, including transgender inmates, are met. Additionally, the United States should implement housing solutions that keep inmates out of solitary confinement and in safe environments. The United States should also create uniform policies that align with gender-affirming language and practices.

This Comment proceeds as follows. Part I begins with definitions, background information, and statistics on community-dwelling transgender people and gender dysphoria; next, it discusses the cycle of poverty, which leads to higher rates of incarceration among transgender people; finally, it concludes with statistics about the rate of transgender people in prison in the United States, the United Kingdom, and Canada. Part II explores the legal recognition of sex/gender identity and how these policies impact the likelihood that a transgender inmate is held in a facility that is consistent with their self-identified gender. Part III examines housing for transgender inmates through a discussion of sex-segregation and safety. Part III Section A examines the United States' current approach to housing, explores an alternative model for housing, and discusses the safety of transgender inmates. Part III Section B turns to the United Kingdom for a discussion of another alternative housing option for transgender

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inmates and arguments surrounding the safety of other inmates. Part III Section C discusses a recent case and arguments about the safety of transgender inmates in Canada. Part IV explores healthcare issues for transgender prisoners including access to gender-affirming care and gender confirmation surgery. Next, Part V discusses common social and public policy critiques surrounding the policies that impact transgender inmates. Finally, this Comment concludes with a set of recommendations based on the evidence provided throughout the analysis.

I. Background

When a person is born, they are assigned a sex—male or female—according to the appearance of their external genitalia.¹⁴ For most people, the way they express gender and their gender identity is consistent with the sex assigned to them at birth.¹⁵ However, for transsexual,¹⁶ transgender, and gender-nonconforming individuals,¹⁷ gender identity and expression do not align with the sex they are assigned at birth.¹⁸ The focus of this Comment is on transgender individuals. For the purposes of this Comment, transgender is an "[a]djective to describe a diverse group of individuals who cross or transcend culturally defined categories of gender."¹⁹

Various studies in recent years have attempted to estimate the size of the transgender population in the United States.²⁰ A 2016 study reported that about 1.4 million, or 0.6% of adults in the United States, identify as transgender, which

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is nearly double the estimate from 2011.²¹ The study attributes a portion of the sharp increase to "a perceived increase in visibility and social acceptance of transgender people" and thus a willingness for individuals to openly identify and be counted as transgender.²² Younger adults are more likely than older adults to identify as transgender.²³ Over the past twenty years, in an attempt to create equity among marginalized communities, there has been an increase in research concerning transgender people—resulting in the development of more trans-affirmative practice in health disciplines involved in the care of transgender people.²⁴ Trans-affirmative practice is the delivery of care to patients in a way that is "respectful, aware, and supportive of the identities and life experiences of [transgender] people."²⁵

Some transgender individuals experience "discomfort or distress that is caused by a discrepancy between a person's gender identity and that person's sex assigned at birth . . . ."²⁶ In 2013, the American Psychiatric Association (APA) adopted the term "gender dysphoria" as a diagnosis characterized by "a marked incongruence between" an individual's gender identity and sex assigned at birth.²⁷ However, not every transgender person has gender dysphoria and "[t]ranssexual, transgender, and gender-nonconforming individuals are not inherently disordered."²⁸

The APA has set forth two conditions that must be met to diagnose a person with gender dysphoria.²⁹ First, there must be a "marked incongruence between

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one's experienced/expressed gender and assigned gender, of at least 6 months' duration."³⁰ This marked incongruence can be manifested in a variety of ways, including "a strong desire to be rid of one's primary and/or secondary sex characteristics,"³¹ which include a person's breasts or chest, external and/or internal genitalia, facial features, body hair, and voice.³² Second, the condition must be "associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning."³³

There is currently a lack of data to indicate the prevalence of gender dysphoria among all transgender people. However, research suggests that 1 in 10,000 to 1 in 12,000 community-dwelling adults in Western countries have gender dysphoria.³⁴ A handful of state and prison level studies have been conducted which indicate that in the United States, the prevalence of gender dysphoria is significantly higher among male prisoners than among the general population.³⁵ For example, it is estimated that somewhere between 1 in 350 to 1 in 440 inmates in California have gender dysphoria.³⁶

Although there is disagreement among medical professionals, the World Professional Association for Transgender Health (WPATH), in their Standards of Care (WPATH SOC), recognizes several psychological and medical treatment options for patients with gender dysphoria including non-medical treatment such as "changes in gender expression and role."³⁷ For example, many individuals with gender dysphoria are able to cope with their diagnosis by living part or full time in a gender role consistent with their gender identity.³⁸ WPATH

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also recommends numerous medical options for the treatment of gender dysphoria.³⁹ Non-invasive treatment options include psychotherapy,⁴⁰ while other interventions include hormone therapy and surgery.⁴¹ Surgical interventions to treat gender dysphoria are known by a variety of names, including: sex reassignment surgery, gender affirmation surgery, and gender confirmation surgery (GCS).⁴² Each of these terms refers to a "surgery to change primary and/or secondary sex characteristics to affirm a person's gender identity. Sex reassignment surgery can be an important part of [the] medically necessary treatment to alleviate gender dysphoria."⁴³

Although not all persons with gender dysphoria seek all of these treatments, for some individuals with gender dysphoria all of these treatments may be necessary to effectively treat the patient.⁴⁴ Interventions to treat gender dysphoria are important because if left untreated, it can lead to "debilitating distress, depression, impairment of function, substance use, self-surgery [or mutilation] to alter one's genitals or secondary sex...