1 - Executive Summary
- Queer inmates are disproportionately represented in prisons.
- Estelle v. Gamble establishes that inmates have a constitutional right to receive adequate medical treatment under the eighth amendment.
- Courts establish a clear right to Hormone Replacement Therapy (HRT) under the eighth amendment, but courts are divided on the right to Gender Confirmation Surgery.
- HIV and Hepatitis C are issues that may be overlooked in the prison system for LGBTQ inmates.
2 - Background
Queer inmates are disproportionately represented in prisons. In a 2011 survey, around 16% of transgender respondents and 47% of Black transgender respondents experienced incarceration, despite making up only 2.7% of the population nationally. In total, 124,000 of those incarcerated in US prisons & jails identify as LGBTQ and 6,000 identify as transgender.
3 - Legal Standards for Health Care Treatment
The Eighth Amendment bars “cruel and unusual punishment.” Prisoners often use this provision to sue the government for healthcare treatment. In Estelle v. Gamble, the Supreme Court held prisons and prison officials may be held liable if their "deliberate indifference” to inmates’ medical needs violated the Eighth Amendment. In Farmer v. Brennan, the Eighth Circuit further elaborates on what constitutes ‘deliberate indifference’ with a two-pronged test, also referred to as the deliberate indifference test. The first prong, referred to as the objective prong, requires that there must be actual knowledge of a substantial risk of harm to the plaintiff. This means that prison authorities and prison healthcare providers must know that withholding care must be dangerous to plaintiffs. Courts characterize this prong also as a “substantial medical need.” The second prong, known as the subjective prong, requires that prison must not have taken “reasonable measures to deal with the problem.” While these standards are well-established, the application and interpretation of the deliberate indifference test on transgender and gender-affirming healthcare remains unclear.
4 - Rights to LGBTQ Healthcare in Prisons
4.1 - HRT in Prison
Courts hold that blanket bans on Hormone Replacement Therapy (HRT) are unconstitutional. In Fields v. Smith, Wisconsin’s Inmate Sex Change Prevention Act, which banned prisoners from receiving sex reassignment surgery or hormone replacement therapy, was held in violation of the deliberate indifference test. Although the Seventh Circuit declared blanket bans on HRT unconstitutional, “freeze frame” policies proved to be another barrier to transgender healthcare. These freeze frame policies bar inmates who did not previously receive HRT or otherwise cannot prove previous use from starting the therapy. The policy also freezes inmates doses from those received prior to incarceration, preventing inmates from increasing dosage as needed. Several cases have already struck down freeze frame policies. In Addams v. Bureau of Prisons, Vanessa Adams, an inmate in the Federal Bureau of Prison system, sued the federal prison system because she was denied HRT due to the BOP’s freeze frame policies. In exchange for dropping the case, BOP ended its freeze frame policies, allowing transgender inmates to receive HRT. In Diamond v. Owens also known as Diamond I, Ashley Diamond, a prisoner held by the Georgia Department of Corrections (GDOC), sued the department over its freeze frame policies. Diamond alleged that because she was not categorized as transgender during intake, she did not receive HRT. The Department of Justice subsequently filed a statement of interest, arguing in favor of Diamond. After the filing, the GDOC settled with Diamond, rather than taking the case to trial, although she was paroled by the GDOC before the settlement. Hicklin v. Precynthe similarly alleged Eighth Amendment violations concerning freeze frame policies. In the case, Jessica Hicklin sued the Missouri Department of Corrections (MDOC) for its policies. However, this case is unique as it resulted in a judgment in favor of transgender inmates, opposed to a settlement, holding that freeze frame policies violated the eighth amendment.
4.2 - Gender Confirmation Surgery
While courts have repeatedly ruled that transgender prisoners are entitled to HRT, the constitutional right to gender confirmation surgery (GCS) or sex reassignment surgery (SRS) has been interpreted differently by different courts. In Kosilek v. Spencer, the First Circuit of Appeals en banc ruled that plaintiff Michelle Kosilek’s denial of SRS did not constitute a violation of the Eighth Amendment. Although the court agreed that Kosilek’s gender dysphoria passed the objective prong, describing it as a ‘serious medical need,’ it found that denial of SRS was not a violation of her constitutional rights due to the conflicting expert opinions on the surgery’s use for the plaintiff. The majority opinion found that because GCS was not universally accepted as standard practice, it did not constitute deliberate indifference. Instead, the court found Kosilek’s combination of HRT, feminine clothing, and other gender affirming care was an ‘alternative pathway’ for treatment, especially because it saw an improvement in mental state. In addition, the opinion noted that even if GCS was medically necessary, security concerns could still justify the denial of gender confirmation surgery. Similarly, Gibson v. Collier extended the ruling to blanket state bans on GCS. In the case, Vaness Gibson, a transgender woman, sued the Texas Department of Criminal Justice (TDCJ) for its blanket ban on GCS. The Fifth Circuit of Appeals used the same line of reasoning established in Kosilek that GCS was not medically necessary, extending it on the TDCJ’s ban. In Gibson, the opinion argued that World Professional Association for Transgender Health (WPATH) standards, the generally accepted practice guidelines, were “merely one side in a sharply contested medical debate.” On the other hand, other federal circuit cases have upheld the right to GCS. In Edmo v. Corizon, the Ninth Circuit of Appeals ruled that GCS was medically necessary and thus the disregard for Edmo’s medical needs by preventing GCS was considered a violation of the Eighth Amendment. The reasoning hinged on expert consensus on the need of GCS. While the Fifth circuit views WPATH standards for GCS as “one side,” the Ninth Circuit utilized the WPATH standards as the basis for their decision. Because the Idaho Department of Corrections (IDOC) denial contradicted WPATH’s guidelines, the court ordered IDOC to provide Edmo access to Gender Confirmation Surgery. However, the court's opinion was narrowly tailored, only applying the ruling to Edmo’s case. To this point, the U.S. Supreme Court has not taken up a case to resolve these conflicting rulings. As a result, the legal landscape surrounding gender-affirming healthcare differs upon states.
4.3 - Additional Barriers to Accessing Gender-Affirming Care
Governments can sometimes provide inmates gender-affirming care to dismiss the case, without addressing the underlying policy at hand. In Addams vs. Bureau of Prisons, after the plaintiff filed the lawsuit, the BOP initially allowed Addams to receive HRT but did not rescind the freeze frame policy. However, because BOP gave Adams hormone therapy, the prison system attempted to dismiss the case, arguing that since Ms. Adams received HRT, she had no standing to sue. After courts rule in favor of transgender inmates to receive gender affirming care, correctional systems and parole boards often subsequently release them, leaving them without care. Following Michelle Norsworthy’s preliminary injunction ordering GCS by a federal district court, the California Parole Board immediately recommended her for parole. Norsworthy isn’t the only case. In Diamond vs Ward (Diamond I), the GDOC paroled Diamond following the settlement, leaving her without medical care. The first gender confirmation surgery in the carceral system did not occur until 2015. In the federal justice system, the first gender-affirming surgery only occurred in 2023. Slow compliance with court orders can also prove troublesome. In Monroe v. Meeks, prisoners sued the Illinois Department of Corrections (IDOC), alleging prisoners faced long delays in HRT treatment, despite having gender dysphoria diagnosis. The court issued a preliminary injunction, requiring the IDOC to ensure adequate access to gender-affirming care, although plaintiffs alleged that the order was not properly followed. The court ultimately appointed a monitor to ensure the IDOC was following the injunction.
4.4 - New Restrictions on LGBTQ Healthcare
While Florida’s SB 254 made headlines for restricting gender-affirming care for minors, it also quietly banned the use of gender affirming care for LGBTQ prisoners. The bill includes a provision “prohibiting certain public entities from expending state funds for the provision of sex-reassignment prescriptions or procedures.” While experts suspect that Florida’s prisons have restricted or prevented LGBTQ healthcare in response to the law, the Florida government has not yet responded to requests by journalists for clarification.
5 - HIV and Hepatitis Testing
HIV infections are a severe issue in U.S. prison systems. It’s estimated that one in seven HIV-infected individuals will experience incarceration in America. The rate of HIV prevalence in prisons is three times higher than the general U.S. population, yet testing for HIV is scarce. Only 15 state prison systems have mandatory HIV testing regimes and 17 have opt out testing. Queer people are also more likely to contract Hepatitis C compared to their heterosexual counterparts. American prisons hold disproportionately high numbers of inmates with HCV, with an estimated 9.5% of state prisoners having HCV compared to 1.7% in the entire U.S. population. In fact, 30% of all people with HCV have been through America's prison system. This is partly because prison systems serve as a hotbed for HCV transmission. Prison needles, used through tattoos or IV drugs, provide a vector for disease transmission. If left untreated, HCV can lead to a variety of life-threatening medical conditions, such as liver cancer, liver failure, and death.
6 - Conclusion
Queer inmates suffer numerous barriers to healthcare treatment in prison. LGBTQ prisoners face multiple barriers to access gender-affirming care, and prisoners are not adequately tested for sexually transmitted infections, including those that disproportionately impacts queer inmates.
