DOJ Tells State Prisons: Denying Trans Inmates Hormone Therapy Is Unconstitutional
In response to a federal lawsuit filed in February against the Georgia Department of Corrections by trans inmate Ashley Diamond, the federal government issued a landmark statement Friday regarding humane health care for transgender prisoners, reports the New York Times.
Backing Diamond's claim that her Eighth Amendment rights had been violated when prison staff continually refused to provide the hormone therapy she had been on for nearly two decades prior to incarceration, the Department of Justice clarified in a court filing and a public statement that such "freeze-frame" health policies for trans inmates are unconstitutional. Prisoners should continue to receive the same medically necssary health care they received "in the community prior to incarceration," the DOJ asserted.
The DOJ also declared that the Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishment, "madates individualized assessment and care for gender dysphoria" in all trans prisoners, suggesting that trans inmates who were not undergoing hormone therapy prior to incarceration should also be eligible for access.
Gender dysphoria is the diagnosable distress that occurs from a mismatch between an individual's internal gender identity and their external anatomy. Psychotherapy, hormone treatment, and gender-confirming surgeries are all considered by the American Medical Association and the American Psychologial Association to be "medically necessary treatment for this distress, which can result in anxiety, depression, and suicidal ideation if a person goes without treatment."
Indeed, those are exactly the results Diamond, 36, says she's experienced for the past three years that she's spent in several men's prisons following a theft conviction. The loss of hormone treatment, which Diamond had been on for 17 years prior to incarceration, has "violently transformed" her body by reducing her breast tissue and secondary sex characteristics, resulting in several attempts at suicide and self-castration, according to her lawsuit. Prison staff's failure to note that Diamond is transgender on her intake forms has allegedly allowed the prison to repeatedly deny Diamond's requests to restart her hormone regimen.
Diamond also alleges that she's been exposed to harassment while imprisoned, including being called derogatory names like "he-she thing" by a staff member, told to "act like a man," and told to "guard her booty" by a guard reportedly implying that she should expect to be raped. She has allegedly been punished, including with one stint in solitary confinement, for being "insufficiently masculine," notes her lawsuit.
Further, Diamond's suit alleges that she has been raped at least seven times while imprisoned, often by her cellmates, and says she sees no indication that her risk for sexual assault will lessen. Her lawsuit claims that some of her housing placements were made in retaliation for her continued requests for hormone treatment.
While the DOJ's statement does not refer to Diamond's sexual assault claims, the federal government's Prison Rape Elimination Act, which passed unanimously through Congress in 2003, demands that prisons institutute a "zero tolerance policy" for the rape of inmates. The PREA has suffered, however, in its implementation, as recent cases of trans inmates Passion Star and LeslieAnn Manning help illustrate. PREA acknowledges that trans women are particularly vulnerable to sexual assault while in men's prisons, and calls for a "case-by-case" assessment as to their detention. Diamond claims that the prison staff's indifference to her numerous reports of repeated rapes is an additional violation of her Eighth Amendment rights.
The DOJ's backing of Diamond's health care argument is a significant win for her case, and may ultimately help Diamond find justice. According to the Times, the DOJ's statement is believed to be "the first time that the Justice Department has weighed in on the question of whether hormone therapy for transgender inmates is necessary medical care that states are required to provide." Previously, the DOJ had only made similar arguments regarding trans prisoners held in federal prisons.
"By taking action in this case, the Justice Department is reminding departments of corrections [nationwide] that prison officials have an obligation to asses and treat gender dysphoria just as they would any other medical or mental health condition," Acting Assistant Attorney General Vanita Gupta explained in the DOJ's statement. "Prisoners with gender dysphoria should not be forced to suffer needlessley during their incarceration simply because they were not receiving care, or could not prove that they were receiving care, in the community. Freeze-frame policies have serious consequences to the health and well-being of transgender prisoners, who are among the most vulnerable populations incarcerated in our nation's prisons and jails."
This week, in a similar victory, a trans California inmate, Michelle-Lael Norsworthy, won a federal lawsuit arguing the same case for access to gender-affirming surgery.