Gender Identity Disorders in Prisons: What Are the Legal Implications for Prison Mental Health Professionals and Administrators?

Date01 September 2010
Published date01 September 2010
Subject MatterArticles
/tmp/tmp-18ytK1YqtMnqcT/input Article
The Prison Journal
90(3) 269 –287
Gender Identity
© 2010 SAGE Publications
Reprints and permission:
Disorders in Prisons:
DOI: 10.1177/0032885510373498
What Are the Legal
Implications for
Prison Mental Health
Professionals and

Rudolph Alexander Jr.1 and
Jacquelyn C. A. Meshelemiah1
In 2009, two Idaho prisoners with gender identity disorders (GIDs) settled
lawsuits against the Department of Corrections for failing to treat properly
their conditions. Prisoners in other states have also sued prison officials
for failing to treat their GIDs. Initial y, the courts held that prisoners with
GIDs did not have a serious mental disorder and thus were not entitled to
treatment. However, later courts have held that a GID is a serious medical
problem, which implicates the Eighth Amendment to the U.S. Constitution
that requires treatment for prisoners’ serious medical problems. No court,
however, has ordered sex-reassignment surgery for any transsexual prisoner,
despite holding that GID is a serious medical problem. This issue presents an
interesting dilemma for the law and has implications for prison mental health
professionals and prison administrators. The authors elaborate on these
issues and discuss policy implications.
1The Ohio State University, Columbus, OH, USA
Corresponding Author:
Rudolph Alexander Jr., College of Social Work, The Ohio State University,
340C Stillman Hall, 1947 College Road, Columbus, OH 43210, USA

The Prison Journal 90(3)
gender identity disorders, prison, prisoners, mental health professionals
Some mental health professionals treat individuals who believe they were born
the wrong gender (Ault & Brzuzy, 2009; National Center for Lesbian Rights,
2006). This condition is diagnostically referred to as gender identity disorder
(GID; Bockting & Cesaretti, 2001; Bullough, 1999; Walling, Goodwin, &
Cole, 1998). Although this condition is actually rare, individuals with gender
identity issues are found in private agencies, detoxification centers, family
services–based agencies, and even prisons (Duisin, Nikolic-Balkoski, &
Batinic, 2009; Seil, 1996). Specific to prisons, a few prisoners and detainees
have alleged that they suffer from GIDs, and subsequently have sued over their
lack of mental health treatment (Chin, 2004; Dannenberg, 2008; Estate of Miki
Ann Dimarco v. Wyoming Department of Corrections
, 2007; Long v. Nix
et al.,
1996; Tarzwell, 2006; Tsist Sistas Vo OME Voto Reverse v. Yordy et al.,
2009). Unlike public and private agencies in the community that treat persons
with GIDs, the prison environment is reluctant to treat this group like com-
munity professionals do (Tedeschi, 1995).
Much to the chagrin of prison officials, some prisoners have argued that
they have GIDs and the failure to treat them with counseling, hormone ther-
apy, and/or sex-/gender-reassignment surgery violates the Eighth Amendment
to the U.S. Constitution, which forbids the infliction of cruel and unusual pun-
ishment (Lee, 2008; Robbins, 1999), an argument that is inapplicable to indi-
viduals with GIDs seeking treatment in the free community. Early on, courts
rejected the proposition that GIDs constituted a serious mental disorder, which
the Eighth Amendment mandated treatment to avoid the infliction of cruel and
unusual punishment on prisoners. Later, courts accepted that GIDs constituted
a serious mental disorder requiring treatment (Lee, 2008). For example, in
2003, a U.S. District Court, relying on the Eighth Amendment, ordered a
New York prison to provide a transsexual prisoner with an opportunity to
meet with a mental health professional in order for this mental health profes-
sional to diagnose and assess the prisoner’s need for treatment (Brooks v. Berg,
2003). Moreover, several federal courts in Idaho ruled in favor of prisoners
with GIDs who had self-mutilated by removing their scrotums and part of the
penis (Augustus Joseph Isaak, a.k.a Josephine Von Issak v. Idaho Department
of Correction
, 2007; Gammett a/k/a Jenniffer Ann Spencer v. Idaho State
Board of Corrections
, 2007). In 2009, these two Idaho cases were settled
(Boone, 2009).

Alexander and Meshelemiah
Initially, serious psychiatric problems in prisons that triggered the protection
of the Eighth Amendment included schizophrenia, severe depression, and
bipolar disorders (Carbonell & Perkins, 1997). Subsequently, some federal
courts have ruled that a GID is a serious medical problem, requiring prison and
mental health professionals to provide treatment services (De’Lonta v. Angelone
et al
., 2003; Kosilek v. Maloney, 2002; Phillips v. Michigan Department of
, 1990). Prison officials have balked, arguing that the cost of pro-
viding surgery, which is one form of treatment for GID, for this group of pris-
oners is prohibitive and burdens prison budgets and ultimately taxpayers
(Kosilek v. Maloney, 2002).
In 1976, the U.S. Supreme Court ruled in Gamble v. Estelle that deliberate
indifference to prisoners’ serious medical problems constitutes cruel and
unusual punishment, which is in violation of the Eighth Amendment to the
U.S. Constitution. A year later, the Fourth Circuit Court of Appeals, follow-
ing the precedent established by the U.S. Supreme Court, extrapolated physi-
cal medical problems to psychiatric problems in Bowring v. Godwin (1977),
ruling that there is no difference between a physical medical problem and a
psychiatric problem. As a result, the Fourth Circuit Court of Appeals ruled
that deliberate indifference to prisoners’ serious psychiatric problems consti-
tuted cruel and unusual punishment, which is in violation of the Eighth
Amendment. Although a U.S. Supreme Court decision applies nationally, a
Court of Appeals decision applies only to states within that circuit. The Fourth
Circuit Court of Appeals’ decision, however, provided the foundation for
prisoners’ right to psychiatric treatment for a serious mental health problem
because all circuits followed the precedent established in Bowring provided
by the Fourth Circuit Court of Appeals (e.g., see Finney v. Arkansas Bd of
, 1991; Hoptowit v. Ray, 1982; Inmates of Allegheny County
Jail v. Pierce
, 1979; Jones v. Diamond, 1981; Ramos v. Lamm, 1980; Torraco
v. Maloney et al., 1991; Waldrop v. Evans, 1989; Wellman v. Faulkner, 1983).
Although some courts have accepted that GID is a serious mental disorder,
some gay, lesbian, bisexual, and transgender (GLBT) advocates disagree
(Bockting & Cesaretti, 2001; Bullough, 1999; Denny, 1999; McCloskey,
1999). Though mental distress or impairment is common to all who suffer
from GIDs, many members of the GLBT community strongly opposes its
inclusion in the Diagnostic and Statistical Manual of Mental Disorders
(DSM), claiming that it should not be included because it is an organic disor-
der and therefore should be treated as a physical problem (Bockting &
Cesaretti, 2001; Bullough, 1999). The GLBT community acknowledges the
fact that suffering from a GID has a strong positive correlation with mental

The Prison Journal 90(3)
disorders, such as depression and anxiety disorders, but denounces the
American Psychiatric Association’s pathology of it, charging that it is not a
mental illness in itself (Ault & Brzuzy, 2009; Carroll, 1999; Eliason, 1996;
Levine, 1999). This is the same argument put forth for the removal of homo-
sexuality from the DSM. Psychiatrists later agreed and subsequently rede-
fined homosexuality as a sexual orientation and removed it from later editions
of the DSM (Drescher, 1998). Now advocates, including some social work-
ers, are advocating for the complete removal of GID from the fifth edition of
the DSM, which is set to be released in 2012 (Ault & Brzuzy, 2009).
The aim of this article is to discuss the issues surrounding GIDs in prisons.
First, the authors define and explain GIDs as a classification followed by a
discussion on the treatment of GIDs. Recent legal cases brought forth by
prisoners living with GIDs are then discussed followed by the implications of
GID for prison mental health professionals and administrators.
Terms and Definitions Associated
With Gender Identity Disorders
The term gender identity was coined by John Money in the 1950s. At this
time, Money was a psychologist who was considered the foremost authority
in gender identity (Colapinto, 2000). He worked for Johns Hopkins Univer-
sity Clinic—home to the first gender identity clinic that was established in
the 1960s (Cohen-Kettenis, & Pfafflin, 2009). According to Money, gender
identity represents an individual’s inner sense of oneself as female or male
and was largely determined by socialization (Colapinto, 2000). In the 1960s,
Hooker and Stoller introduced a variant expression of GID by coining the
term, core gender identity. This type of gender identity referred to a child’s
sense of belonging to either the male or female gender (Zucker, 2008).
During the 1970s, Green published a seminal piece of work on children who
displayed “extreme patterns of cross-sex-typed” behaviors (Zucker, 2008,
p. 31). These descriptions later became the first diagnostic criteria for GID of
childhood (Zucker, 2008), which is when many clinicians believe gender
identity first develops. In 1980, Transsexualism appeared in the third edition
of the DSM alongside Atypical GID (American Psychiatric Association
[APA], 1980;...

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