Seventh Circuit: Wisconsin’s “Inmate Sex Change Prevention Act” Violates the Eighth Amendment

Surely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional. Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture. — Fields v. Smith, 7th Cir., Aug. 5, 2011

The Seventh Circuit recently struck down a 2005 Wisconsin law, the “Inmate Sex Change Prevention Act,” that barred prison doctors from prescribing hormone treatment or sex reassignment surgery for transgender prisoners. The Seventh Circuit panel of Gottschall (a district judge sitting by designation), Rovner, and Wood held that the statute violates the Eighth Amendment ban on cruel and unusual punishment, affirming a ruling by Wisconsin federal district judge Charles Clevert. (While Clevert’s ruling also found a Fourteenth Amendment Equal Protection Clause violation, the Seventh Circuit did not reach that issue, striking the law solely on Eighth Amendment grounds.)

Writing for the panel, Judge Gottschall (PDF here) summarizes the expert testimony offered at trial about the “feelings of dysphoria” caused by Gender Identity Disorder (GID): 

Some patients are able to manage the discomfort, while others become unable to function without taking steps to correct the disorder. A person with GID often experiences severe anxiety, depression, and other psychological disorders. Those with GID may attempt to commit suicide or to mutilate their own genitals.

The accepted standards of care dictate a gradual approach to treatment beginning with psychotherapy and real life experience living as the opposite gender. For some number of patients, this treatment will be effective in controlling feelings of dysphoria. When the condition is more severe, a doctor can prescribe hormones, which have the effect of relieving the psychological distress. Hormones also have physical effects on the body. For example, males may experience breast development, relocation of body fat, and softening of the skin. In the most severe cases, sexual reassignment surgery may be appropriate. But often the use of hormones will be sufficient to control the disorder.

Gottschall also notes testimony from the medical director and mental health director of the Wisconsin Department of Corrections (or DOC):

These officials explained that, prior to the enactment of Act 105, hormone therapy had been prescribed to some DOC inmates, including plaintiffs. DOC policies did not permit inmates to receive sex reassignment surgery. Drs. Kallas and Burnett served on a committee of DOC officials that evaluated whether hormone therapy was medically necessary for any particular inmate. Inmates are not permitted to seek any medical treatment outside the prison, regardless of their ability to pay. The doctors testified that they could think of no other state law or policy, besides Act 105, that prohibits prison doctors from providing inmates with medically necessary treatment.

Key to the panel’s ruling was the “well established” rule, under the Eighth Amendment, that a state may not “deny effective treatment for the serious medical needs of prisoners.” Since prisoners are denied the liberty to seek medical treatment on their own, courts have held that it would be “cruel and unusual punishment,” in violation of the Eighth Amendment, to force them to suffer a broken leg, diabetes, a heart attack, or any other serious condition untreated. (Often, I hear from people who are angry that prisoners have a right to health care when they don’t, which I always find odd since Americans, we are told, think free health care is akin to serfdom so why would they be complaining that they don’t have it and prisoners do? Isn’t that how it should be if you think government-provided health care is a tyrannous usurpation of liberty? But, I digress.)

A few minor points:

• Putting on my legal historian’s hat, I am noticing a parallel here between the framing of this case as about the right of “medical professionals, not the Wisconsin legislature” to “make medical decisions for inmates” (that quote’s from an ACLU attorney), and the similar framing in much abortion rights litigation ca. Roe v. Wade, which emphasized the right of doctors to make treatment decisions for the patients. Of course, in the abortion context, the statutes at issue were often criminal, whereas the Wisconsin act merely bars state funding for the procedures in question, but nevertheless, there’s a definite rhetorical echo.
• In that light, it’s interesting that Wisconsin cited in its defense the Supreme Court case upholding a partial-birth abortion ban, Gonzales v. Carhart, arguing that Carhart holds that legislatures may legitimately interfere with physicians’ discretion in some cases. The Seventh Circuit panel rejected that argument because, in contrast to the abortion context where there are many alternative procedures to terminate a pregnancy, Wisconsin “did not present any medical evidence that alternative treatments for GID are effective.” At first glance, this line of the holding seems to leave open the possibility that a state could pass a similar statute if it could proffer convincing evidence of effective alternative treatments for GID. However, I’d also bet that this would depend a lot on the particular judges involved and what kind of expert testimony they found convincing. (As we recently saw when Brown v. Plata went to SCOTUS, some judges find some experts more or less expert than others.)
• Wisconsin also argued that withholding hormone therapy and sex reassignment is necessary to protect woman-to-man transgender inmates from rape. The court rejected this argument because “evidence shows that transgender inmates may be targets for violence even without hormones,” which is depressing in its own right, but true. Of course, the nature of litigation is that you have to throw out any arguments that might stick, but the fact that Wisconsin’s lawyers would even come up with that argument offers another unfortunate reminder of how pervasive sexual assault remains in our prisons. Of course, as explained in this Just Detention International fact sheet (PDF), a better way to protect all prisoners would be to address the “homophobic culture of corrections” and reform policies that don’t account for the unique needs of LGBTQ prisoners.

The docket info is Fields v. Smith, Nos. 10-2339 & 10-2466, 7th Cir., Aug. 5, 2011, and the plaintiffs were represented by the ACLU and Lambda Legal.

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