The Department of Justice has filed a 19-page brief in the case of Ashley Diamond v Owens, et al. in a District Court in Georgia.
Ms. Diamond, 36, lived openly as a transgender woman since she was a teen, but was arrested for theft, probation violation, escape, and obstruction of justice. She was convicted and sentenced to a maximum of 11 years. She was, of course, sent to a male prison.
You’d have thought she murdered a small village. But it was their final chance to get her out of Rome, and they did.
--Charles Neal Sumlin, victim of the theft
[S]he needed a reliable income, and the job market was tough. If she revealed her transgender identity, she was not hired, she said, and if she hid it and was discovered, she got fired. “I don’t want to be bragging, but I blended,” she said. “So people felt deceived. There are some people who want you to say, ‘Hi, I’m Ashley, and by the way I have a penis.’ ”
Failure to provide individualized and appropriate medical care for inmates suffering from gender dysphoria violates the Eighth Amendment’s prohibition on cruel and unusual punishment.
--Statement of Interest of the United States
Transgender inmates like Ashley have a right to proper medical care.
--Chinyere Ezie, a Southern Poverty Law Center lawyer who represents Ms. Diamond
Ashley originally filed the case pro se.
A “freeze-frame” policy impermissibly prohibits individualized assessment and treatment of individuals with gender dysphoria. Instead, prisoners may only receive the same level of care they received in the community. Under GDOC’s policy, if an inmate is not identified as transgender and referred for treatment at intake, he or she may receive no treatment at all. According to Ms. Diamond, because GDOC did not identify her as transgender at intake and refer her for additional evaluation, GDOC officials continue to deny Ms. Diamond treatment pursuant to GDOC’s freeze-frame policy.
Without taking a position on the factual accuracy of Plaintiff’s claims, the United States files this Statement of Interest to assist the Court in evaluating Ms. Diamond’s Motion. In particular, the United States files this Statement to bring the Court’s attention to the standards used to evaluate appropriate medical care for gender dysphoria under the Eighth Amendment and the unconstitutionality of freeze-frame policies that may prevent such treatment. In cases like Ms. Diamond’s, gender dysphoria constitutes a serious medical need requiring appropriate treatment. For that reason, proscriptive freeze-frame policies are facially unconstitutional under the Eighth Amendment because they do not provide for individualized assessment and treatment.
Summary of the Case:
Ms. Diamond suffers from gender dysphoria. Gender dysphoria is listed in the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-V) as a major mental illness and characterized by a marked incongruence between one’s experienced/expressed gender and assigned gender at birth. Gender dysphoria involves a persistent physical and emotional discomfort with one’s biological sex. Left untreated, that discomfort can become so painful that individuals consider or attempt suicide, self-castration, or self-mutilation. The accepted course of treatment to alleviate these symptoms often involves allowing the individual to live as his or her chosen gender, through one or more of the following treatments: changes in gender expression and role; dressing, grooming, and otherwise outwardly presenting in a manner consistent with one’s gender identity; hormone therapy; and, in some cases, surgery to change primary and/or secondary sex characteristics.
Ms. Diamond states that she was first diagnosed with gender dysphoria when she was a teenager, nearly twenty years ago. Ms. Diamond also states that she lived as a female in the community prior to incarceration, and took feminizing hormones for seventeen years, which caused her to develop female secondary sex characteristics such as breasts and soft skin. When GDOC processed Ms. Diamond through intake, she presented as female; identified as transgender; and discussed her medical history, including her diagnosis of gender dysphoria and hormone therapy. However, for reasons not explained in the current pleadings, GDOC did not refer Ms. Diamond for additional evaluation or treatment. Instead, GDOC terminated Ms. Diamond’s hormone therapy and confiscated her female clothing and undergarments before placing her in a male facility.
This had a profound physical and emotional impact on Ms. Diamond. Terminating her hormone therapy created painful side effects, including chest pains, heart palpitations, clinically significant depression, and increased thoughts of suicide, hopelessness and anxiety. According to Ms. Diamond, her gender dysphoria is so severe that she has attempted suicide and self-castration on multiple occasions during her incarceration.
Conclusion:
Failure to provide adequate treatment for transgender inmates with gender dysphoria constitutes cruel and unusual punishment under the Eighth Amendment. Freeze-frame policies and other policies that apply blanket prohibitions to such treatment are facially unconstitutional because they fail to provide individualized assessment and treatment of a serious medical need. Accordingly, the United States urges the Court to (1) find that Ms. Diamond has a substantial likelihood of success on the merits of her claims, (2) declare that GDOC’s freeze-frame policy is facially unconstitutional under the Eighth Amendment, and (3) issue appropriate injunctive relief.
During intake, I kept saying: ‘Hello? I’m trans? I’m a woman?’
But to them I was gay. I was what they called a ‘sissy.’ So finally I was like: ‘O.K., I’m a sissy. Do you have a place where sissies can go and be O.K.?’
--Ashley Diamond
Ashly was sent to a series of high security facilities for violent male offenders. She has been raped at least seven times. Prison officials have referred to her as a "he-she thing." She has been thrown into solitary for "pretending to be a woman."
In desperation, she has tried to castrate and to kill herself several times.
In her lawsuit, Ms. Diamond asks the court to direct prison officials to provide her hormone therapy, to allow her to express her female identity through “grooming, pronoun use and dress,” and to provide her safer housing.
Filing the lawsuit earned her a transfer to the Georgia State Prison in retaliation. GSP has had more sexual assaults between 2009 and 2014 than all but one other state prison.
Since her arrival there, Ms. Diamond has survived an attempted rape in a stairwell, dealt with inmates exposing themselves and masturbating in front of her, and faced relentless sexual coercion, she said last week in an emergency motion seeking an immediate transfer to a safer institution.
I’m in a little hell right now. The state attorney general had called the prison after her lawyers reported the attempted rape in the stairwell, she said. “The warden came up to me and said: ‘Do I need to lock you down? I’m not going to have this!’
--Ashley
"When you f— with the GDC, they f— you back," is what prison guards reportedly told Diamond as she packed up the morning of March 17 for a transfer, as reported by The News. "Since my arrival at Georgia State Prison I have hardly slept. I lie awake at night in constant fear, knowing that another assault is imminent," Diamond, 36, wrote.