Talk about good timing. On Friday I published Transwomen Incarceration about the plight of transwomen in local, state and federal detention.
SCOTUS yesterday refused to take up Wisconsin's appeal of a ruling that a 2006 Wisconsin law banning medical treatment of transgender inmates violated the 8th Amendment's prohibition of cruel and unusual punishment.
State legislators in WIsconsin passed the Inmate Sex Change Prevention Act in 2005 in response to a lawsuit by an inmate who had been receiving hormones, but then sued when the Department of Corrections would not pay for sex-change surgery. The act banned all transition-related medical care of transgender inmates, including physician-prescribed hormone replacement therapy.
Subsequent to the law's passage, prison doctors informed three inmates they had diagnosed with gender identity disorder that their hormone treatments would have to cease. Fortunately the patients received legal relief in the form of an injunction when a lawsuit was filed challenging the law.
Lambda Legal filed a federal lawsuit in the US District Court for the Eastern DIstrict of Wisconsin (Smith v. Fields) in January of 2006. A trial was held in October 2007. Chief US District Judge Charles N. Clevert ruled in April, 2010 that the law amounts to…
deliberate indifference to the plaintiffs' serious medical needs in violation of the Eighth Amendment
…because it denies treatment without regard to the needs of the patient or the judgment of doctors. Clevert found the law to be unconstitutional on its face and also in violation of the inmates' rights to equal protection.
"Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture. Just as the legislature cannot outlaw all effective cancer treatments for prison inmates, it cannot outlaw the only effective treatment for a serious condition” such as gender identity disorder.
Prison officials had expressed concern that providing hormone treatments that would help certain inmates in an all-male prison appear physically more like a woman might make that inmate a more likely target for sexual assault in prison. Men who receive female hormone treatments develop breasts and experience a redistribution of body fat.Wisconsin Attorney General J. B. Van Hollen claimed in the states SCOTUS appeal that gender identity disorder is a "psychological condition" and the legislature was correct in its limitation of treatment to "psychotherapy, antipsychotics and antidepressants".
The appeals court dismissed that concern, noting that transgender inmates already face a substantial risk of such assaults.
He claimed the 8th Amendment...
does not prohibit prison officials, prison medical personnel and, most certainly, a state legislature, from denying a small, controversial subset of the wide variety of treatment available for a particular diagnosisTranslation: It's okay to torture a small, disliked subset of the population.
In response lawyers for the inmates (from the ACLU and Lambda Legal) offered...
There was no evidence controverting the testimony of numerous witnesses that, for some people” with severe gender identity disorder, “psychotherapy or psychotropic medication alone” is “simply not effective.
We're disappointed with the decision, but we also recognize that it's the end of the line in terms of this case, and we have to comply.