Georgia law banning gender-affirming care for trans inmates struck down

In a massive legal victory, a Georgia law restricting access to gender-affirming care for transgender inmates has been struck down.

Judge Victoria M. Calvert issued a permanent injunction Wednesday against SB 185, signed by Republican Gov. Brian Kemp in May and enforced as of July, finding that it violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

"The state is responsible for the well being of any person it holds in its custody, regardless of whether that person has gender dysphoria or another diagnosis," Emily Early, an attorney at the Center for Constitutional Rights who represented the plaintiffs, tells The Advocate. "Gender dysphoria is a medical condition that is just like any other condition of diabetes or cancer that the state must provide minimally adequate treatment for that meets constitutional standards."

"By banning treatment of gender dysphoria, the Georgia Department of Corrections and the private contractor Centurion are banning care that medical providers have determined to be medically necessary, and the Constitution requires that even prisons must provide minimally adequate care to individuals that it holds within its custody," Early says.

SB 185 prohibited the use of state funds or resources for gender-affirming surgeries, hormone replacement therapy, cosmetic procedures, and other treatments for gender dysphoria. However, it "uniquely targeted transgender persons," Early says, as it allowed the same treatments for conditions other than gender dysphoria.

Five trans people — two men and three women — filed a lawsuit against the bill in August, represented by the Center for Constitutional Rights and Bondurant Mixson & Elmore LLP. The group argued that losing the care was not only detrimental for patients' mental health, but that withdrawal of hormone therapy can also cause severe medical complications, such as cardiovascular complications and cognitive decline.

When the state incarcerates a person, it becomes legally responsible for their health care, as outlined by the U.S. Marshals Service. Prisoners are legally entitled to health care, as the U.S. Supreme Court ruled in the 1976 case Estelle v. Gamble that ignoring a prisoner's medical needs violates the Eighth Amendment, which simply states "cruel and unusual punishments [shall not be] inflicted."

While gender-affirming care has cosmetic elements, it is crucial to its recipients' mental health and overall well-being. The American Medical Association, the American Psychiatric Association, the American Academy of Pediatrics, the American Academy of Child & Adolescent Psychiatry, the World Medical Association, and the World Health Organization all agree that gender-affirming care is evidence-based and medically necessary not just for adults but minors as well.

The Georgia Department of Corrections and its partners therefore "perpetuated cruel and unusual punishment" by being "deliberately indifferent to gender dysphoria, which requires medical treatment based on independent medical judgment," Early says. Though the state isn't alone — several others have passed similar laws restricting the care for inmates, with federal courts striking them down time and time again for violating the Eighth Amendment.

"There has been a wave of these sort of bans throughout the country. It's in this particular moment we can see how these bills are trying to put politics above what are well-established, well-proven medical needs by some of our most vulnerable community members, including incarcerated trans persons," Early says. "Our stance is that we will not tolerate it."

There are about 5,000 incarcerated transgender people in the country, according to a report from NBC News, accounting for just 0.4 percent of the 1,230,100 inmates recorded nationally in 2021. The Georgia Department of Corrections estimates there are around 340 trans people in its detention facilities, all of whom will now continue to have access to the care they require.

"This lawsuit is about ensuring that people are being treated with basic dignity and humanity, and part of ensuring that people are being treated as humans and with dignity is ensuring that they have access to the health care that they need," Early adds. "While trans people are the focus of this lawsuit and are the ones who are being harmed, we really want to drive home the point to the public, to legislatures who are perpetuating these harms, that this is a right that our Constitution protects and requires for everyone."