Framing a narrative of discrimination under the Eighth Amendment in the context of transgender prisoner health care.

• Author: Halbach, Sarah

TABLE OF CONTENTS INTRODUCTION I. THE TRADITIONAL STRATEGY FOR LITIGATING DISCRIMINATION: EQUAL PROTECTION A. The Equal Protection Framework B. Equal Protection Is a Losing Strategy for Transgender Prisoners II. THE CURRENT STRATEGY: LITIGATING TRANSGENDER PRISONER MEDICAL NEEDS UNDER THE EIGHTH AMENDMENT A. The Eighth Amendment Framework B. Criticisms of the Eighth Amendment Medical Model III. FINDING DISCRIMINATION WITHIN THE EIGHTH AMENDMENT A. Hidden Equal Protection Analysis: Fields v. Smith B. The Eighth Amendment and Political Controversy: Kosilek v. Spencer C. Fields and Kosilek II Compared and in the Broader Context IV. GOING FORWARD: FRAMING A NARRATIVE OF DISCRIMINATION UNDER THE EIGHTH AMENDMENT CONCLUSION INTRODUCTION

"I am Chelsea Manning." (1) With those words, Army Private Bradley Manning announced to the world that she would be transitioning from male to female. Going forward, Manning indicated that she would like to be known as "Chelsea" and referred to by female pronouns. (2) Manning's public statement on August 22, 2013, came one day after she was sentenced to thirty-five years in prison for leaking classified government documents to WikiLeaks. (3) Manning has been in the media spotlight since her arrest in May 2010, and her recent transition has called national attention to some of the problems facing transgender prisoners in America. (4)

There is limited data on the number of transgender (5) people in the nation's various prisons and jails, (6) but transgender people are incarcerated at a disproportionately high rate. (7) Transgender individuals face harsh and pervasive discrimination in almost all aspects of social life--education, employment, housing, public accommodations, health care, and law enforcement. (8) As a result of this harassment, many transgender people live in poverty. (9) The combination of high poverty rates and employment discrimination has led to a greater proportion of transgender people participating in criminalized economies compared to the general population, and thus, a disproportionate representation of transgender people in the criminal justice system and in prisons. (10)

One of the biggest obstacles transgender people face in prison is obtaining access to gender-confirming health care, which may include hormone therapy or sex-reassignment surgery. (11) Not all transgender prisoners request or require such medical treatment, but for some prisoners, denial of hormone therapy or sex-reassignment surgery can lead to serious mental health problems, such as depression or anxiety, and even attempts at suicide and self-castration. (12) Writer and activist Janet Mock explains on her website that for some people "[t]hese surgeries and care are vitally necessary (whether you exist in or outside of prison walls), and it is a discussion between a patient and their doctor, not between anyone else." (13)

In many states, laws and prison policies pose serious barriers for prisoners seeking hormone therapy or sex-reassignment surgery. (14) First, a prison doctor must diagnose the prisoner with a medical condition under the Diagnostic and Statistical Manual of Mental Disorders. In addition to providing a medical diagnosis, the doctor must also deem hormone therapy or sex-reassignment surgery a necessary treatment for that condition and assert that there are no adequate alternatives. (15)

Under the Fourth Edition of the Manual, this condition was called "gender identity disorder" (GID). (16) In 2013, the editors published the Fifth Edition of the Manual in which they relabeled GID as "gender dysphoria" and removed the condition from the chapter on sexual dysfunctions, placing it in its own chapter. (17) Unlike the criteria for GID, which emphasized gender cross-identification, gender dysphoria emphasizes gender incongruence. (18) Gender dysphoria is defined, in part, as a "marked incongruence" between a person's experienced or expressed gender and that person's assigned gender at birth. (19) Because most of the cases and literature discussed in this Comment refer to GID, this Comment will use the phrase GID when discussing the medical diagnosis, except where the newer definition is relevant.

As part of Manning's announcement that she would be transitioning from male to female, Manning publicly stated her intention to seek hormone therapy while imprisoned. (20) Her request created a new dilemma for the United States Department of Defense, which is caught between providing her with adequate medical care for a diagnosed disorder and adhering to the military's longstanding policy banning transgender people from serving in the military. (21) When Manning filed her request for hormone therapy and permission to live as a woman, the Army attempted to transfer her to a civilian prison that could better provide the requested treatment. (22) In July 2014, the Federal Bureau of Prisons rejected the Army's transfer request. (23) Subsequently, the Department of Defense approved the Army's recommendation that Manning begin "a rudimentary level of gender treatment," which could include allowing Manning to dress in female clothing and receive hormone treatments. (24) In February (2015), the commandant of the Fort Leavenworth military prison where Manning is held approved adding hormone treatments to Manning's treatment plan. (25)

The Department of Defense is not the first agency to confront the issue of how to provide adequate care for transgender prisoners; many state departments of corrections have had to address this question, as well. In fact, several federal courts have recently ruled in favor of transgender inmates seeking access to gender-confirming health care from state departments of corrections, holding that prison officials' denial of such treatment for those who need it violates the Eighth Amendment's ban on cruel and unusual punishments. (26) Although these decisions provide medical relief for the individual plaintiffs who suffer from severe gender dysphoria, they do not address the underlying discriminatory nature of such policies. In Manning's case, for example, the military's ban on hormone therapy stems from its broader discriminatory policy forbidding transgender prisoners from serving in the military. (27)

Typically, claims of discrimination against a class of people are litigated under the Equal Protection Clause of the Fourteenth Amendment. However, federal courts have been generally unwilling to rule in favor of transgender prisoners seeking gender-confirming health care under the Equal Protection Clause. This Comment argues that transgender prisoners may be able to develop a doctrine within the Eighth Amendment to litigate their discrimination claims in the context of prison health care. This Comment looks closely at the reasoning in two recent transgender prisoner health care opinions: Fields v. Smith (28) and Kosilek v. Spencer (Kosilek II). (29) The courts' Eighth Amendment analyses in these cases were seemingly influenced by concerns about equal protection and discrimination against transgender prisoners. This Comment suggests that transgender prisoners should use the analyses in these opinions as examples of how to frame future Eighth Amendment claims around facts that show discrimination.

Part I briefly explains the traditional strategy for litigating discrimination claims--the Equal Protection Clause--and discusses why it is not likely to be a successful strategy for transgender prisoners seeking gender-confirming health care. Part II describes the most common litigation strategy used in transgender prisoner health care cases--the Eighth Amendment--and discusses some of the criticisms of this doctrine. Part III analyzes the opinions in Fields and Kosilek II to show how the courts' decisions under the Eighth Amendment were influenced by equal protection principles. Part IV argues that transgender plaintiffs have an opportunity to develop a new discrimination doctrine within the Eighth Amendment.

1. THE TRADITIONAL STRATEGY FOR LITIGATING DISCRIMINATION: EQUAL PROTECTION

   Claims of discrimination are typically litigated under the Equal Protection Clause. Although this may be a losing strategy for transgender prisoners seeking access to gender-confirming health care, the underlying principles of equal protection analysis may be useful.

   1. THE EQUAL PROTECTION FRAMEWORK

      The Equal Protection Clause provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." (30) The essential thrust of this clause is "that all persons similarly situated should be treated alike." (31) The Equal Protection Clause applies to all state and federal government actions, (32) including the informal policies of state departments of corrections. (33) The Supreme Court has developed different tiers of judicial scrutiny for discriminatory laws or governmental acts that single out a class of people for differential treatment based on the nature of that classification. The Court applies the highest level of scrutiny to those laws that burden a fundamental right or target a suspect class. (34)

      If the law neither burdens a fundamental right nor targets a suspect class, then the Court applies the more deferential "rational basis" standard of review. (35) Most laws withstand rational basis review because a court will uphold the law so long as it is rationally related to a legitimate governmental interest. (36) Under rational basis review, courts will generally not consider whether the actual purpose of the law is the same as the stated governmental interest. (37) However, the Supreme Court has consistently held that "if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." (38) The Court further held in Romer v. Evans that animus alone does not justify singling out a...