Denial of gender-affirming care to inmate is unconstitutional, says Department of Justice

The U.S. Department of Justice is supporting the case of an incarcerated Georgia transgender woman who’s suing the state over its denial of gender-affirming surgery.

The DOJ submitted what’s known as a statement of interest, which can be filed to assert the federal government’s interest in a given case, Monday in U.S. District Court for the Northern District of Georgia.

Gender dysphoria is covered as a disability under the Americans With Disabilities Act, and denial of treatment for it violates both the ADA and the Eighth Amendment to the U.S. Constitution, no matter the person’s circumstances, the statement says. The Eighth Amendment bans cruel and unusual punishment.

The woman, identified only as Jane Doe, filed suit against the Georgia Department of Corrections in December. She says she has received inconsistent hormone treatment while incarcerated at Phillips State Prison in Buford, Ga., and has been denied gender-affirming surgery. “Because of the inadequate care and exacerbation of her gender dysphoria, Doe has engaged in repeated self-harm, including attempts at suicide and self-castration,” says a DOJ press release. In the suit, she seeks access to the treatment she needs, plus transfer to a women’s prison.

The ADA, a federal law passed in 1990, excludes gender identity disorders — a term now out of favor and no longer used by medical professionals — from the definition of disability. At the time of the ADA's passage, gender identity disorders were understood as simply identifying as a gender other than the one the person was assigned at birth. But gender dysphoria is different and does not fall within that exclusion, the statement explains. “It is a serious medical condition experienced by some transgender individuals. ... Gender dysphoria is ‘clinically significant distress or impairment in social, occupational, or other important areas of functioning’ resulting from the incongruence between gender identity and assigned sex,” the document says.

“People with gender dysphoria should be able to seek the full protections of the Americans With Disabilities Act, just like other people with disabilities,” Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division said in the release. “We are committed to ensuring constitutional conditions inside our jails and prisons so that those detained inside these facilities, including people with gender dysphoria can live safely and receive needed medical care. The U.S. Constitution requires that people incarcerated in jails and prisons receive necessary medical care, treatment and services to address serious medical conditions.”

“The protections of the U.S. Constitution and the Americans With Disabilities Act do not stop at the doorsteps of our jails and prisons,” added U.S. Attorney Ryan K. Buchanan of the Northern District of Georgia. “Our office remains committed to ensuring that all people with disabilities, including those with gender dysphoria, continue to receive access to such medically necessary treatments, even while they are in custody.”