|Sexual Identity in the Correctional Environment|
|By Robert Winters, JD, Professor, School of Criminal Justice, Kaplan University|
Acceptance of homosexuals among the American public has grown tremendously over the past 30 years or so since the emergence of HIV/AIDS created a nasty backlash against gay men in particular. As of April 2015, same-sex marriage was legal in 37 states. Gays and lesbians certainly still face civil rights issues, but the emerging legal debate involving sexual identity centers on transgender and intersex individuals. As the case of Bruce Jenner has demonstrated, the public’s understanding of this segment of the LGBTI community remains limited. Recent court cases have raised such very practical questions as which restroom an intersex person (one who identifies as the opposite gender from their birth but has not yet undergone sex reassignment surgery) should use, but for corrections professionals who daily face challenges of violence and sexual assault in their facilities these questions are even more pressing.
The National Institute of Corrections has published various materials LGBTI inmates, including LGBTI Populations: Intake—Creating a Culture of Safety, Respectful Classification Practices with LGBTI Inmates, and A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People Living with HIV. The attention paid to these issues is not merely a fad. Bureau of Justice Statistics surveys consistently report higher levels of sexual victimization among non-heterosexual offenders, with a 2009 study reporting a sexual victimization rate 13 times higher for transgender inmates, and the disparity is even worse in juvenile facilities. Consequently, sexual violence against LGBTI inmates is both a civil rights issue and a potential source of litigation for agencies.
One very basic question is where to house transgender and intersex offenders. For the transgender inmate who has already undergone gender reassignment surgery, the answer has simply been to classify and house them according to their reassigned gender. The complexity arises with intersex offenders, who in many cases have begun hormone therapy and started the transition to the opposite sex from their birth gender. Litigation through the 1990s generally upheld classification based on birth gender for such individuals without regard to the period of time for which they had lived as the other gender or the degree of medical treatment they had already undergone; see Farmer v. Brennan, 511 U.S. 825, 829 (1994) and Farmer v. Haas, 990 F.2d 319, 320 (7th Cir. 1993).
Another issue—and one that has generated extensive litigation—is the continuation of hormone therapy for intersex offenders. Previously Bureau of Prisons policy was “to maintain the transsexual inmate at the level of change existing upon admission to the Bureau,” with any “progressive or regressive treatment changes…approved by the Medical Director prior to implementation.” Policies along these lines are colloquially referred to as “freeze frame policies” and were common at the state level. Even if hormone treatment is maintained, however, such treatment is complicated and requires extensive psychological and medical support, which may still lead to offender claims of insufficient care. (Litigation in this arena is generally based on the Eighth Amendment, characterizing alleged shortcomings as substandard medical care constituting cruel and unusual punishment.)
Precedent through the 1980s and 1990s was generally not sympathetic to transgender and intersex inmates. Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997) recognized sex reassignment as the only effective treatment for transsexuals but allowed prohibitions on relevant medical treatment since neither public nor private health insurance programs paid for sex reassignment. Long v. Nix, 86 F.3d 761 (8th Cir. 1996) held that an offender who had been diagnosed with gender identity disorder was not entitled to hormone therapy or to cross-dress. Brown v. Zavaras, 63 F.3d 967 (10th Cir. 1995), White v. Farrier, 8849 F.2d 322 (8th Cir. 1988), Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987), Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986), Lamb v. Maschner, 633 F. Supp. 351 (D. Kansas 1986), and Cuoco v. Mortisugo, 222 F.3d 99 (2nd Cir. 2000), among others, all held that intersex offenders were not entitled to hormone therapy.
The legal landscape for intersex offenders has changed over the past decade or so, however. Initial cases such as South v. Gomez, 211 F.2d 1275, 2000 WL 222611 (9th Cir. 2000) and Wolfe v. Horn, 130 F. Supp. 2d 648 (D. Pa. 2001) prohibited the termination of existing hormone treatments by prison officials. Similarly, Fields v. Smith, 653 F.3d 550 (7th Cir. 2011) overturned as unconstitutional a Wisconsin state law banning hormone treatments for intersex and transgender inmates. There has been no significant litigation requiring agencies to provide sex reassignment surgery to offenders; while earlier this year in Norsworthy v. Beard a federal district judge did order the California Department of Corrections and Rehabilitation to provide such surgery, in Kosilek v. Spencer the U.S. Court of Appeals for the First Circuit ruled that the Massachusetts DOC was not required to provide the procedure.
A guide entitled Know Your Rights: Laws, Court Decisions, and Advocacy Tips to Protect Transgender Prisoners published by the American Civil Liberties Union (available from the NIC website previously cited) acknowledges that the Constitution “does not grant a prisoner his or her choice of treatment for GD [gender dysphoria, the condition previously known as gender identity disorder].” However, the guide outlines four major points regarding Constitutionally-adequate medical treatment of GD, which facilities may find helpful. First, treatment decisions “must be based on medical considerations, rather than financial, political, or other factors.” Second, treatment must be “consistent with accepted medical standards regarding the treatment of GD in general,” with the World Professional Association of Transgender Health Standards of Care recognized by many courts. This means evaluation by a medical professional experienced with GD. Third, blanket bans on particular treatment forms are unconstitutional, and freeze frame policies “probably” are as well since they “prevent individualized medical decisions.” Finally, refusing to evaluate an offender for GD, taking too long to do so, or delaying implementation of therapy are also likely Eighth Amendment violations.
The care and custody of transgender and particularly intersex offenders is challenging from many standpoints, especially security and medical. While such inmates are not common, corrections professionals are well-advised to become familiar with current legal standards in order to avoid an unwitting violation of constitutional standards.
Corrections.com author, Robert Winters, holds a Juris Doctorate degree and is a Professor with Kaplan University. He is also a member of the National Criminal Justice Association and serves as a Western Regional Representative, a member of the National Advisory Board and their National Elections Committee.
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