Setting gender identity free: expanding treatment for transsexual inmates.

Author:Colopy, Travis Wright

TABLE OF CONTENTS Introduction I. Transsexualism Defined A. Understanding the Relationship between Gender and Sex B. Effective Therapies for Treating Gender Identity Disorder C. Social and Economic Problems Transsexuals Endure II. Legal and Social Developments Demonstrating Increased Acceptance of Transsexuals A. O'Donnabhain v. Commissioner B. Positive Indications of Evolving Standards of Decency III. Eighth Amendment Provisions for Inmate Health Care A. Standard for Expanding Eighth Amendment Protections B. Prison Health Care under the Eighth Amendment C. Current Prison Policies Regarding Transsexual Inmate Health Care D. Past Decisions on Transsexual Inmate Health Care Point to a Better Policy 1. The Elements of a Better Policy for Transsexual Inmate Health Care 2. Cost is Not Grounds for Denying Treatment IV. The Eighth Amendment Requires Gender Identity Disorder Treatment A. Sound Medical Diagnosis without Discrimination B. Psychotherapy is Some Care but Not Necessarily Adequate Care C. Prescribing Hormones Following Sound Medical Diagnosis D. Sex Reassignment Surgery is not Required E. Appropriate Housing for Transsexual Inmates Conclusion "Come senators, congressmen Please heed the call Don't stand in the doorway Don't block up the hall For he that gets hurt Will be he who has stalled There's a battle outside and it is ragin' It'll soon shake your windows and rattle your walls For the times they are a-changin'" (1) "We are in a new era in which diagnosis has such social and political implications that one is constantly on the front lines fighting on issues our forebears were spared." (2) INTRODUCTION

Historically, courts and legislatures have been reluctant to establish legal protections for transgender and transsexual people in the United States. (3) This may be due, in part, to the slow pace at which American society itself has come to accept this very misunderstood psychological and biological phenomenon. Fortunately, as scientific research and social acceptance mature, this minority is beginning to enjoy greater rights and recognition.

In recent years, the transgender community has enjoyed significant changes in law and society. In February 2010, the U.S. Tax Court in O'Donnabhain v. Commissioner ruled that sex-transitioning treatments were tax deductible. (4) The following November, the first openly transsexual judge in the nation was elected to the California bench. (5) Anti-discrimination legislation protecting jobs and housing is becoming increasingly popular, and the Affordable Care Act removed some barriers to better health care. (6)

These changes demonstrate greater legal recognition and social acceptance of transgender people in the United States. More importantly, these are changes that promote the interests of all transsexual citizens, not just the few who cry out and demand justice for themselves. (7) While a U.S. Tax Court ruling may not influence how all state and federal courts will interpret the rights of transgender people in other contexts, it may convince some that social expectations are changing and that action is required to guarantee constitutionally-entitled protections.

The Eighth Amendment's history perhaps best reflects how courts have expanded constitutional protections in light of evolving social standards of decency. The Eighth Amendment's simple language (8) belies the array of protections it grants prison inmates and the duties it imposes on prison officials, including the foremost duty--to provide for inmates' basic needs. (9) Adequate, if minimal, health care is well recognized as a basic need. (10)

Transgender inmates face greater struggles than much of the nonincarcerated transgender community. Some advocates for transsexual inmates' rights argue that prisons should provide the full treatment series--psychotherapy, hormone therapy, and sex reassignment surgery--prescribed by the World Professional Association of Transgender Health's (WPATH) Standards of Care. (11) WPATH is an international organization that promotes greater understanding and appropriate care for those suffering from gender identity disorder (GID). (12) The Standards of Care represent the international medical community's consensus on the required care for transgender people. (13) These advocates contend that given the unique needs of transsexuals, denying the full treatment series violates the Eighth Amendment. However, my own analysis demonstrates that any treatments beyond psychotherapy and hormones exceed the constitutionally-mandated degree of care. (14)

In this Note, I argue that (1) the standard for adequate medical care requires only sex-appropriate hormone therapies for those transsexual inmates that need them, (2) sexual reassignment surgery is, in most cases, beyond the threshold of minimal adequate care and thus not required by the Eighth Amendment, and (3) prisons must provide housing that ensures the safety of transsexual inmates and the proper administration of adequate health care.

Part I will discuss general background information concerning what transsexualism is, the treatments prescribed by the medical community, and the significant problems transsexuals face in the United States. Part II will introduce the tax court case O'Donnabhain v. Commissioner and other indicia of the improving social, legal, and political situation for transsexuals. Part HI will discuss Eighth Amendment protections for inmate health care, and case law demonstrating problems with current prison policies regarding care for transsexual inmates. Part IV will propose changes to prison policies so as to balance the respective constitutional rights and duties of inmates and officials.


    For most people, there is no disparity between how their body develops sexually and how they self-identify their gender. It is therefore difficult for many to understand the legal and social difficulties that transgender and transsexual people must endure in the United States. That our society's standards of decency have only recently progressed to the point of accepting transgender and transsexual people is best revealed by examination of the legal and social prejudices that systematically deny their participatory rights. This begins with understanding what exactly it is about transsexualism, medically and socially, that makes individuals with this condition easy prey for social prejudice.

    1. Understanding the Relationship between Gender and Sex

      To understand transgender people, the distinction between sex and gender must also be understood. Transgenderism exists because sex and gender are not necessarily identical. (15) Sex is an objective physical attribute determined by an individual's primary sex organs, the genitalia. (16) No one has direct influence over how their own or another's sex develops in the womb. Post-natal sex, however, may be decided (perhaps arbitrarily) when the child's genitalia is ambiguous or disfigured by a careless circumcision. (17)

      Gender is completely subjective, and better understood as sense of self. (18) Gender identity may be suppressed, but it cannot be changed. There is an increasing amount of scientific evidence that gender-sex incongruity is related to how the brain structure that governs gender develops in response to sex hormones in the womb. (19) This does not mean that transgender people have brain deformities. (20) Instead, the gender-sex incongruity only means that the brain developed under different hormonal influences than the rest of the body.

      It is also important to distinguish the terms "transgender" and "transsexual." Transgender people are those individuals whose subjective gender does not align with their objective sex. (21) "Transgender" is an umbrella category that includes transsexuals as a unique subset. (22) Transsexuals are transgender individuals who feel that their physical sex is so divergent from their mental gender that they want to make the physical alterations to align their sex with their gender, or to make their body feel right for their mind. (23)

      Unfortunately, social understanding often lags behind scientific discovery. (24) All too often, transsexualism is misconstrued as just another facet of homosexuality, or degraded as a sexual perversion or a mere psychological delusion. (25) But transsexualism does not bear relation to sexual proclivity, sexual orientation, or mental illness. (26) Rather, it is entirely concerned with self-identification of gender identity. (27) No gender identity precludes anyone from being "heterosexual/straight, homosexual/gay/lesbian or identify as queer." (28)

      It is easier for society to dismiss and marginalize transgender people as exceptionally rare "freaks" when people are unaware of how many transgender people there are in the population. Transgenderism is far from rare; one survey estimates that only 2-5 percent (one in fifty to one in twenty) of Americans are transgender. (29) Transsexualism, however, is quite rare, with birth rates of only about 0.00833 percent (one in 12,000) male-to-female and 0.00333 percent (one in 30,000) female-to-male individuals. (30) When contrasted with an estimated 4-5 percent (one in twenty-five to one in twenty) of males and 2-3 percent (one in fifty to one in thirty-three) of females being born homosexual, (31) it is easier to comprehend how miniscule, and easily ignored, a sexual and social minority transsexuals are. The real hurdle that transsexuals face is the social, and perhaps cultural, (32) predisposition towards viewing sex and gender as a naturally aligned binary phenomenon. (33) Our society prefers the conception that an individual at birth will, by biological necessity, be only a male or female in mind and body for life. (34) For many raised according to this view, it is difficult to comprehend that sex and gender do not go hand-in-hand and that, in neither case, does one cause the other.

      Neither transgenderism nor transsexualism is a mental illness. However, transsexuals...

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