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Stoloff Paper Re Dual Prongs for the Doubly Imprisoned Transsexual Inmates and the 8th Amendment Right to Treatment2007

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DUAL PRONGS FOR THE DOUBLY IMPRISONED:
TRANSSEXUAL INMATES & THE EIGHTH AMENDMENT RIGHT TO TREATMENT

Matthew A. Stoloff1

[O]f all our fundamental guarantees, the ban on ‘cruel and unusual punishments’
is one of the most difficult to translate into judicially manageable terms.2

Among the many questions arising from this somewhat perplexing situation is one
of fundamental importance. Is the gender of a given individual that which society
says it is, or is it, rather, that which the individual claims it to be? The answer is
not easily arrived at. It would be very simple to state that the gender of an
individual has always been that which society says it to be. But to so state would
be to disregard the enlightenment of our times. 3

Part I - Introduction
Transsexual inmates who seek treatment for their disorder must overcome factually
difficult and often legally complex arguments in order to prevail an Eighth Amendment claim
against cruel and unusual punishment. However, the fact that it is difficult for transsexual
inmates to receive treatment does not mean that transsexual inmates are being singled out. The
inability of transsexual inmates to receive “adequate” treatment is largely due to the constraints
1

Copyright © 2007 by Matthew A Stoloff. All Rights Reserved. I would like to thank my parents and my wife for
their love and support.
2
Furman v. Georgia, 408 U.S. 238, 260 n.2 (1972) (Brennan, J. concurring).
3
In re Anonymous, 293 N.Y.S.2d 834, 836 (N.Y. Civ. Ct. 1968).

1

of the Eighth Amendment, the limits of medical knowledge, and the courts’ refusal to second
guess the independent judgment of medical experts.4
Although transgenders and transsexuals compose a small segment of society, 5 a high
percentage is incarcerated at one time or another.6 Recent high-profile cases involving
transgender and transsexual inmates have forced the courts to examine and re-evaluate the
purpose, meaning, and scope of the Eighth Amendment right to be free from cruel and unusual
punishment.7 Since treatment for serious medical needs is required under the Eighth
Amendment, and treatment for severe forms of gender identity disorder requires hormone
therapy and, in some cases, sex reassignment surgeries, more courts are taking a hard look
whether prisons are required to provide such treatment.8 Perhaps in response to the courts’
willingness to expand the scope of the Eighth Amendment to provide medical care to transsexual
inmates, Wisconsin enacted legislation in 2006 prohibiting the use of government funds to

4

See infra Part IV.
There is an estimated 1:37,000 males and 1:107,000 females who suffer from gender identity disorder. There is
indication that these numbers may be underestimated. The Harry Benjamin International Gender Dysphoria
Association, Standards of Care For Gender Identity Disorders (hereinafter “Standards of Care”), Sixth Version, 11,
(Feb. 2001), at http://www.wpath.org/Documents2/socv6.pdf (last visited: March 15, 2007).
6
Although there are no national statistics available, smaller studies suggest that a large number of transgenders are
incarcerated at one time or another. For instance, in a 1999 study of 392 male-to-female transgender individuals,
sixty-five percent were incarcerated. In the same study, twenty-nine percent 123 female-to-male transgender
individuals had been incarcerated. San Francisco Department of Public Health, at
http://hivinsite.ucsf.edu/InSite.jsp?doc=2098.461e (last visited: March 13, 2007). For an explanation on the
difference between “transgender” and “transsexual,” see infra Part III.
7
See, e.g., Farmer v. Brennan, 511 U.S. 825 (1970); Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002);
Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997).
8
Transsexuals have also alleged Eighth Amendment violations due to conditions of confinement (Farmer v.
Brennan, 511 U.S. 825); the right to be assigned to a prison facility designated by gender, not by sex (Crosby v.
Reynolds, 763 F. Supp. 666 (D. Me. 1991)); the right to be placed in the general population (Tates v. Blanas, 2003
U.S. Dist. LEXIS 26029 (E.D. Cal. 2003)); and the right to wear women’s clothing, including earrings and garter
belts (Murray v. United States Bureau of Prisons, 1997 U.S. App. LEXIS 1716 (6th Cir. 1997)). For an overview of
the different legal issues transsexual inmates have been involved in, see generally, Christine Peek, Comment:
Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment, 44 SANTA
CLARA L. REV 1211 (2004); Anita C. Barnes, The Sexual Continuum: Transsexual Prisoners, 24 N.E.J. on CRIM.
& CIV. CON. 599 (1998); Debra Sherman Tedeschi, The Predicament of the Transsexual Prisoner, 5 TEMP. POL.
& CIV. RTS. L. REV 27 (1995).
5

2

provide hormone therapy or sex reassignment surgery to transsexual inmates.9 When a
Wisconsin transsexual inmate filed a complaint against the State, a federal court granted an
injunction to continue hormone therapy. 10 The Wisconsin case exemplifies two extremes: either
transsexual inmates should not receive medical treatment for their disorder or, alternatively, they
should receive as much treatment as medically required.
Scholars and Supreme Court Justices suggest that the original interpretation of the Eighth
Amendment was not to regulate the conditions of prisons, but to prohibit torture, such as
“drawing and quartering or burning at the stake.”11 It was not until recently that the United
States Supreme Court expanded the scope of the Eighth Amendment to prison conditions. 12 The
Supreme Court has defined “cruel and unusual punishment” as “the wanton and unnecessary
infliction of pain.”13 Applying this definition to prison conditions, the Supreme Court has held
that any harm to inmates that does not serve a legitimate penological interest violates the Eighth
Amendment.14 The concept of “harm” is subject to interpretation within the paradigm of
“evolving standards of decency”15: what was once considered by society as “not harmful” a
century ago may be considered “harmful” today. Indeed, the Eighth Amendment now requires
that prison authorities provide a duty of care to all inmates, such as providing adequate food,
clothing, shelter, and medical care.16

9

ACLU and Lambda Legal Challenge Law Barring Transgender People Access to Medical Treatment in Prison (Jan.
24, 2006), at http://www.aclu.org/lgbt/transgender/23913prs20060124.html (last visited Apr. 13, 2007).
10
Lambda Legal, Sundstrom v. Frank, at http://www.lambdalegal.org/our-work/in-court/cases/sundstrom-et-al-vfrank-et-al.html (last visited: Apr. 13, 2007).
11
Sara L. Rose, Comment: “Cruel and Unusual Punishment” Need Not Be Cruel, Unusual, or Punishment, 24 CAP.
U.L. REV. 827, 827 (1995) (citations omitted); Justice Scalia in Harmelin v. Michigan, 501 U.S. 957, 692-85 (1991).
12
Estelle v. Gamble, 429 U.S. 97 (1976).
13
Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citing Whitley v. Albers, 475 U.S. 312, 319 (1986)).
14
Farmer, 511 U.S. 833 (citing Hudson v. Palmer, 468 U.S. 517, 548 (1984) (Stevens, J., concurring in part and
dissenting in part)). See also Turner v. Safley,, 482 U.S. 78, 95 (1986) (an inmate “retains those constitutional rights
that are not inconsistent with his [or her] status as a prisoner or with the legitimate penological objectives of the
corrections system”).
15
Estelle, 429 U.S. at 102-4.
16
Farmer v. Brennan, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).

3

Because the Eighth Amendment now requires adequate shelter and medical care,
incarceration of transsexual inmates raises new, interesting, and novel issues within the context
of the Eighth Amendment. Case law is replete with transsexual inmates who have alleged that
their Eighth Amendment rights were violated during their incarceration. Transsexual inmates
have alleged that their health and safety are at risk when they are placed in a facility designated
by sex and not by gender.17 For example, when prison authorities place a pre-operative male
transsexual in a male facility, he is at risk for life-threatening conditions, including sexual assault
and rape.18 Some transsexual inmates have alleged that because of these dangerous conditions,
they should be placed in a facility that matches their gender, and not their sex.19 Still other
transsexual inmates have alleged that they have a right to hormone therapy and sex change
operations as part of the Eighth Amendment’s requirement to provide adequate medical care.20
This paper focuses on the transsexual inmate’s difficulties in establishing an Eighth Amendment
claim and the legal hurdles they must overcome in order to receive adequate medical care.
Until the late 1990s, the courts did not recognize a transsexual inmate’s right to medical
care for their disorder. The courts have considered many cases involving transsexual inmates
who have been denied the right to medical treatment for their gender identity disorder.21
Recently, however, the courts have been much more open to transsexual inmates’ right to

17

See infra Part IV.
See, e.g., Farmer v. Brennan, 511 U.S. 825 (1970); Supre v. Ricketts, 596 F. Supp. 1532 (D. Colo. 1984), rev’d
792 F.2d 958 (10th Cir. 1986). Indeed, transsexuals may be at higher risk for contracting sexually transmitted
disesases.
19
Crosby v. Reynolds, , 763 F. Supp. 666 (D. Me. 1991).
20
See, e.g., Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002).
21
See, e.g., Maggert v. Hanks, 131 F. 3d 670 (7th Cir. 1997); Long v. Nix, 86 F. 3d 761 (8th Cir. 1996); Brown v.
Zavaras, 63 F. 3d 967 (10th Cir. 1995); White v. Farrier, 849 F. 2d 322 (8th Cir. 1998); Meriwether v. Faulkner,
821 F. 2d 408 (7th Cir. 1987); Supre v. Ricketts, 792 F. 2d 958 (10th Cir. 1986).
18

4

hormone therapy. 22 Because the Supreme Court has recognized “evolving standards of
decency,” the lower courts have begun to expand their views regarding a transsexual inmates’
right to medical care, and the right to be free from cruel and unusual punishment under the
Eighth Amendment is in transition. This transition is revolutionary. But there are heavy burdens
that the transsexual inmate must overcome to gain appropriate medical treatment for their
disorder.
Part II of this paper will give a brief overview of transgender inmates in the U.S. prison
systems. This part will examine how transgenders transition to the other side. The typical
regimen required of transitioning and the psychological problems that may occur when
transgender persons are denied the medically necessary treatment at some point throughout their
treatment. This Part will also examine the Harry Benjamin Standards of Care which is
comprised of (1) hormone therapy, (2) real life experience of living as a member of the opposite
sex, and (3) sex reassignment surgery. How the courts perceive and interpret the Harry
Benjamin Standards of Care in cases involving transgender inmates’ claims to medical treatment
under the Eighth Amendment will also be considered. In addition, this paper will offer a brief
summary of the health risks associated with the hormone therapy and sex reassignment surgeries.
Part III of this paper will provide a brief overview of the historical development of the
Eighth Amendment rights entitled to all inmates. Next, the subjective and objective components
of an Eighth Amendment claim will be elucidated and some leading Supreme Court cases will be
discussed.
In Part IV, the subjective and objective components of Eighth Amendment claims will be
analyzed within the context of transsexual inmates seeking treatment for their disorder. The
22

See, e.g., South v. Gomez, 211 F.2d 1275 (9th Cir. 2000); Phillips v. Michigan Dep’t of Corrections, 731 F. Supp.
792 (W.D. Mich. 1990), aff’d 932 F.2d 969 (6th Cir. 1991). But see Lamb v. Maschner, 633 F. Supp. 351 (D. Kan.
1986) (transsexual inmate has no right to hormone therapy).

5

legal challenges transsexual inmates must overcome in order to receive adequate treatment is
burdensome. However, compared to other Eighth Amendment claims brought forth by inmates
with different medical conditions—both physical and mental—the burdens transsexual inmates
must overcome is not entirely unique. The necessary elements to prove an Eighth Amendment
claim and the reasons why transsexual inmates must meet burdensome arguments will be
explained in detail.
Finally, in Part V, I will summarize this paper and conclude with some recommendations
how transsexual inmates can receive more accessible treatment in prison. I will argue that if
transsexual inmates’ need for more effective treatment is highly dependent upon the
advancement of medical science. Physicians must develop better methods of diagnosing severe
gender identity disorder and develop objective criteria for treating the disorder. If this is not
possible, transsexual inmates will forever be doubly incarcerated.

Part II –Transsexuals: Definition and Treatment
Before discussing the transsexual inmates in prison and their rights to medical treatment
under the Eighth Amendment, it is important to understand what transsexuals are and the scope
of the Eighth Amendment. This Part looks into how physicians and the courts define Gender
Identity Disorder, examines the types of medical care transsexuals need, and briefly describes the
health risks transsexuals may experience when administered hormone therapy and sex
reassignment surgery.

6

A. Medical and Legal Definitions of Transsexualism.
Transsexualism, also referred to as gender dysphoria syndrome and Gender Identity
Disorder, is a chronic medical condition that causes an individual to strongly believe that he or
she is a member of the opposite sex. 23 This strong belief is also associated with a sense of hatred
towards his or her own sexual characteristics.24 Thus, a male who suffers from transsexualism
and believes that he is a woman may express extreme disgust towards his genitals. This same
person will usually desire to act and dress in an effeminate manner because of his belief that he is
in fact a woman. Transsexualism is, in effect, a strong belief that he or she was “born in the
wrong sex.” 25
Transsexuals should not be confused with transgendered persons, homosexual individuals,
or transvestites. A transvestite is a person who acts and dresses contrary to his or her gender, but
is nonetheless satisfied with his or her anatomy. 26 A homosexual individual is one who is
satisfied with his or her anatomy and is attracted to the same sex. A transgendered person may
act and dress contrary to his or her gender, but may not want to undergo sex reassignment
surgery.27 A transgendered person may or may not be homosexual. Transsexuals are individuals
who are unsatisfied with his or her anatomy, desire to undergo a surgical procedure to change
their sex, and are typically not homosexuals. 28
The Diagnostic and Statistical Manual of Mental Disorders, a reference textbook that
medical experts rely on to assess and determine a person’s mental condition, recognized a

23

Standards of Care, supra note 4, at 12.
Id.
25
P.T. Cohen-Kettenis and L.J.G. Gooren, Transsexualism: A Review of Etiology, Diagnosis, and Treatment, 46
JOURNAL OF PSYCHOSOMATIC RESEARCH 315, 316 (1999).
26
Standards of Care, supra note 4, at 5, 13.
27
Id. at 5.
28
Id.
24

7

diagnosis of transsexualism for the first time in 1980.29 In 1994, the Manual abandoned the term
transsexualism for Gender Identity Disorder .30 A person who suffers from Gender Identity
Disorder (hereinafter, “GID”) is one who is uncomfortable with his or her sex, expresses a strong
identification with the other sex, and the inability to be the other sex causes significant
difficulties in his or her ability to function in society. 31 In addition, the Manual is careful to state
that a person who suffers from gender identification disorder “is not concurrent with a physical
intersex condition.”32 The Harry Benjamin International Gender Dysphoria Association offers
three criteria for GID:
1. The desire to live and be accepted as a member of the opposite sex;
2. The transsexual identity has been present persistently for at least two years; and
3. The disorder is not a symptom of another mental disorder or a chromosomal
abnormality. 33
Neither Diagnostic and Statistical Manual of Mental Disorders nor the Harry Benjamin
International Gender Dysphoria Association offers an objective criteria for diagnosing GID.
Although studies have indicated that there may be biological basis for GID,34 and that the
interaction between the brain and sex hormones play important roles in establishing gender

29

Id. at 4.
Id.; Cohen-Kettenis, supra note 25, at 316.
31
Standards of Care, supra note 4, at 2.
32
Id., at 2, 4.
33
Id., at 4-5.
34
See, Cohen-Kettenis, supra note 25, at 318; J.N. Zhou, M.A. Hofman, L.J.G. Gooren, and D.F. Swabb, A Sex
Difference in the Human Brain and its Relation to Transsexuality, 1 INTERNATIONAL JOURNAL OF
TRANSGENDERISM 1 (1997), at http://www.symposion.com/ijt/ijtc0106.htm (last visited: March 24, 2007); Josie
Glausiusz, Transsexual Brains, Discover, Jan. 1996.
30

8

identity,35 there are no objective criteria for diagnosing GID.36 Indeed, many medical experts
have disagreed as to whether a particular individual is, in fact, suffering from GID.37
Notwithstanding the inability to objectively diagnose GID, research has clearly shown
that transsexuals suffer from emotional distress associated with negative body image and an
inability to form meaningful social relationships with others.38 Because they feel trapped in the
wrong sex, persons suffering from GID have been known to mutilate or remove their own
genitals. 39
As early as the late 1970s, the courts have recognized GID as a severe medical
condition,40 and the courts also acknowledge that those suffering from GID can experience
psychological pain. 41 The courts accept the definition of GID as given by medical experts, and
use the terms GID and transsexualism interchangeably. One court defined GID as “discomfort
and rejection of one’s gender based on physical characteristics and sex assigned at birth.”42
Another court adopted the definition of transsexualism as set forth in a medical dictionary: “a
disturbance of gender identity in which the affected person has overwhelming desire to change
anatomic sex stemming from the fixed conviction that he or she is a member of the opposite
sex.”43 Several courts have cited the Diagnostic and Statistical Manual of Mental Disorders and

35

See, e.g., J.N. Zhou, supra note 34.
Cohen-Kettenis, supra note 25, at 322.
37
In the prison context, see White v. Nix, 849 F.2d 322, 325-326 (8th Cir. 1988).
38
Larry Nuttbrock, Andrew Rosenblum, and Rosalyne Blumenstein, Transgender Identity Affirmation and Mental
Health, 6 INTERNATIONAL JOURNAL OF TRANSGENDERISM (2002), at
http://www.symposion.com/ijt/ijtvo06no04_03.htm (last visited: March 24, 2007).
39
H. Greilsheimer and J.E. Groves, Male Genital Self-Mutilation, 36 ARCHIVES OF GENERAL PSYCHIATRY
441 (1979).
40
Davidson v. Aetna Life & Casualty Ins. Co., 420 N.Y.S.2d 450 (1979); Pinneke v. Preisser, 623 F.2d 546 (8th Cir.
1980); G.B. v. Lackner, 145 Cal. Rptr. 555 (Cal. Ct. App. 1978).
41
See, e.g., Farmer v. Haas, 990 F.2d 319, 320 (7th Cir. 1993).
42
Phillips, 731 F.Supp. 792, 793 n.2 (W.D. Mich. 1990).
43
Barrett v. Coplan, 292 F. Supp. 2d 281, 284 (N.H. 2003).
36

9

other medical dictionaries. 44 Judge Posner described transsexualism as a psychological disorder
that stems from the “disjunction between sexual identity and sexual organs.”45 The United States
Supreme Court defines transsexualism as “one who has ‘[a] rare psychiatric disorder in which a
person feels persistently uncomfortable about his or her anatomical sex,’ and who typically seeks
medical treatment, including hormone therapy and surgery, to bring about a permanent sex
change.”46
There is no doubt, then, that courts which accept the existence of GID must consider the
methods of treatment available to transsexuals. When evaluating whether a transsexual ought to
be afforded treatment under the law, the courts should consider not only the law governing the
right to treatment, but also the medical experts’ diagnosis, the types of treatments medical
experts recommend, as well as the risks associated with administrating such treatment.

B. Medical Treatment for Gender Identity Disorder
Not all transsexuals suffer from severe forms of GID. Indeed, those who suffer from
GID have “differing degrees of severity”47 and not all transsexual require medical treatment.48
When, however, an individual has been diagnosed with a severe form of GID, the Harry
Benjamin Standards of Care recommend a triadic method of treatment: hormone therapy, life
experience, and, if necessary, sex reassignment surgery.49 Although not required by the

44

Kosilek, 221 F. Supp. 2d at 163 (citing the Diagnostic and Statistical Manual of Mental Disorders); Phillips, 731 F.
Supp. at 795, 796 n.5 (citing Merck Manual of Diagnosis and Therapy and Diagnostic and Statistical Manual of
Mental Disorders); Meriwether v. Faulkner, 821 F.2d at 412 n.5 (citing the Merck Manual of Diagnosis and
Therapy); White v. Nix, 849 F.2d at 325-326 (same).
45
Farmer v. Haas, 990 F.2d at 320.
46
Farmer v. Brennan, 511 U.S. at 828 (quoting American Medical Association, Encyclopedia of Medicine 1006
(1989)).
47
Kosilek, 221 F. Supp. at 184; Standards of Care, supra note 4, at 2.
48
Kosilek, 221 F. Supp. at 184; Standards of Care, supra note 4, at 11 (“Many adults with gender identity disorder
find comfortable, effective ways of living that do not involve all the components of the triadic treatment sequence.”).
49
Standards of Care, supra note 4, at 11.

10

Standards of Care, psychotherapy can aide the transitioning individual to adapt to living as
another gender.50 Psychologists and psychiatrists are important in aiding the transsexual in
getting hormone therapy. 51 The endocrinologist, a medical expert who specializes in diagnosing
and treating hormonal disorders, enters into the picture when a psychologist or psychiatrist
attests that the patient is a person who suffers from GID and desires hormone therapy.52 Once
the transsexual person undergoes hormone therapy and a two year “life experience” behaving
like the opposite gender, the final transitioning stage is sex reassignment, which is a procedure
that alters the transsexual’s genitals to mimic the look and feel of the other sex.
Psychotherapy is the least radical form of treatment suggested by the Standards of Care.
Psychotherapy may help patients suffering from GID learn to adapt to life by assisting them to
go through a “real life experience” where he or she lives as a member of the opposite sex and
take affirmative steps to behave like the gender the individual believes he or she is meant to be.53
This real life experience is an important transitioning role and may involve name changes, pitch
changes, and cross-dressing.54 Although psychotherapy may play an important role in the
transitioning phase and has beneficial effects,55 the Standards of Care requires only real life
experience, not psychotherapy. 56 Psychotherapy may also be the least effective form of
treatment. If a patient is truly suffering from a severe form of GID, and is unable to gain access

50

Id., at 11, 20.
Id., at 16.
52
Id., at 16, 23-27.
53
Id., at 10-11, 17-18, 22-23.
54
Id. at 22-23.
55
Katherine Rachlin, Transgender Individuals’ Experiences of Psychotherapy, 6 INTERNATIONAL JOURNAL
OF TRANSGENDERISM, at http://www.symposion.com/ijt/ijtvo06no01_03.htm (last visited: March 23, 2007).
56
Standards of Care, supra note 4, at 11.
51

11

to hormone therapy or sex reassignment, suicide may be considered.57 Studies have shown that
as least twenty percent of GID patients may attempt suicide.58
For many transsexuals, hormone therapy is an effective treatment that can cause both
biological and psychological changes. A female taking androgen will experience “a deepening
of the voice, clitoral enlargement, mild breast atrophy, increased facial and body hair, and male
pattern baldness,” as well as “increased upper body strength, weight gain, increased social and
sexual interest and arousability, and decreased hip fat.”59 Males taking female hormones, such
as estrogen and progesterone, will experience the opposite, but desired, results such as “breast
growth, . . . decreased upper body strength, softening of skin, decreases in body hair, slowing or
stopping the loss of scalp hair, decreased fertility and testicular size, and less frequent, less firm
erections.”60 The Standards of Care state that cross-sex hormones are medically necessary:
“They improve the quality of life and limit psychiatric co-morbidity, which often accompanies
lack of treatment. . . . [P]atients feel and appear more like the members of their preferred
gender.”61
Despite the benefits of cross-sex hormone therapy, there are serious health risks.62 A
literature review of adverse effects associated with male to female hormone therapy suggest
higher increases in venous thrombosis, pulmonary embolism, myocardial infarction, stroke, and
depression.63 Likewise, female to male hormone therapy may experience such adverse effects as

57

A. Michel, M. Annsseau, JJ. Legros, et al., The Transsexual: What About the Future?, 17 EUR PSYCHIATRY
353, 355 (2002).
58
Id.
59
Standards of Care, supra note 4, at 14.
60
Id., at 14.
61
Id., at 13.
62
H. Asscheman, L.J. Gooren, and P.L. Eklund, Morality and Morbidity in Transsexual Patients with Cross-Gender
Hormone Treatment, 38 METABOLISM 869 (1989).
63
Eva Moore, Amy Wisniewski, and Adrian Dobs, Endocrine Treatment of Transsexual People: A Review of
Treatment Regimens, Outcomes, and Adverse Effects, 88 JOURNAL OF CLINICAL ENDOCRINOLOGY &
METABOLISM 3467, 3469-3470 (2003).

12

decreased insulin sensitivity, ovarian disease, and poor lipid profiles. 64 Notwithstanding these
potential and real side effects, studies have also shown that the administration of cross-sex
hormones affect emotional stability and “psychological relief.”65
Some transsexuals with severe GID will opt for sex reassignment surgery in order to be
more complete.66 While sex reassignment surgery cannot change one’s chromosomes, it can
transform the external genitalia. 67 Females transitioning to males may undergo mastectomies,
have their internal reproductive organs removed, and undertake genital reconstruction.68
Similarly, males transitioning to females may undergo electrolysis, undertake extensive facial,
upper body, and hip reconstructive surgeries to attain or accentuate feminine profiles, as well as
genital reconstruction.69
The operating surgeon who performs the sex reassignment surgery proceeds only when
the mental health professional and endocrinologist have closely monitored the patient’s progress
and need to undergo sex reassignment.70 The Standards of Care suggest that sex reassignment
surgery is an effective form of treatment for the most severe forms of gender identity disorder
and is not “‘experimental,’ ‘investigational,’ ‘elective,’ ‘cosmetic,’ or optional in any meaningful
sense.”71

64

Id. at 3470.
Ditte Slabbekoorn, Stepahnie H.M. Van Goozen, Louis J.G. Gooren, and Peggy T. Cohen-Kettenis, Effects of
Cross-Sex Hormone Treatment on Emotionality in Transsexuals, 5 INTERNATIONAL JOURNAL OF
TRANSGENDERISM, at http://www.symposion.com/ijt/ijtvo05no03_02.htm (last visited: March 23, 2007); Michel,
supra note 57, at 358.
66
“The desire for [sex reassignment surgery] originates from an experienced discrepancy between one’s sex of
assignment on the one hand and one’s basic sense of self as a male or female (gender identity) on the other hand.”
Cohen-Kettenis, supra note 25, at 316.
67
See generally Debra Sherman Tedeschi, The Predicament of the Transsexual Prisoner, 5 TEMP. POL. & CIV.
RTS. L. REV. 27, 32 (1995).
68
Id. (citations omitted).
69
Id. (citations omitted); Standards of Care, supra note 4, at 13-14, 19-22.
70
Standards of Care, supra note 4, at 19.
71
Id., at 18.
65

13

Based on anecdotal evidence, individuals who have successfully transitioned to their selfidentified gender through sex reassignment surgeries appear to lead a more improved life. 72
Research has shown positive outcomes as a result of sex reassignment surgeries, such as “selfesteem, body image, socioeconomic adjustment, family life, social relationships, psychological
status and satisfaction.”73
Sex reassignment surgery is a radical procedure. One study that reviewed more than 100
international medical studies of post-operative transsexuals concluded that there was no evidence
that sex reassignment surgery was clinically effective. 74 In contradistinction to that study,
several medical articles have shown that sex reassignment is an effective treatment for gender
identity disorder. In a review of the medical literature, one article points out that at least 75
percent, and as much as 90 percent, of those who underwent sex reassignment were satisfied
with their transformation.75 A higher percentage of female to male transsexuals reported
increased satisfaction than their counterparts.76 Feelings of long-term regret among those who
underwent sex reassignment surgery were remarkably low—less than 2 percent.77 Indeed, less
than 2 percent of those who successfully underwent sex reassignment committed suicide.78

72

See, e.g., Standards of Care, supra note 4.
The Wessex Institute for Health Research and Development, “Surgical Gender Reassignment for the Male to
Female Transsexual People” (Sept. 1998), at https://www.epi.bris.ac.uk/rd (last visited: March 20, 2007). See also
Michel, supra note 57, at 358-359.
74
David Batty, “Sex changes are not effective, say researchers,” Guardian Unlimited (July 30, 2004), at
http://society.guardian.co.uk/mentalhealth/story/0,8150,1272093,00.html (last visited: March 20, 2007). But see
Christine Burns, “A change for the better,” Guardian Unlimited (August 3, 2004), at
http://society.guardian.co.uk/health/story/0,,1275200,00.html (last visited: March 20, 2007) (expressing skepticism
of the findings made by the aggressive research intelligence facility).
75
Michel, supra note 57, at 353-54.
76
Id. at 355.
77
Id..
78
Id.
73

14

In yet another study, GID experts reviewed the medical literature from the 1960s through the
1990s, and concluded that sex reassignment surgery “effectively resolves the gender identity
disorder transsexuals suffer from.”79
Most studies suggest that hormone therapy and sex reassignment surgery are effective
forms of treatment for individuals suffering from gender identity disorder. Before addressing the
question as to whether prison officials should provide transsexual inmates hormone therapy and
sex reassignment surgery, we must turn our attention to the requirements of an inmate’s medical
care under the Eighth Amendment of the United States Constitution.

Part III – The Eighth Amendment
The Eighth Amendment of the U.S. Constitution states that “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and usual punishments inflicted.”80 Throughout
the course of time, there has been tremendous development over the concept and meaning of
“cruel and unusual punishment.” This Part provides a brief background of the Eighth
Amendment and the current requirements for stating a valid Eighth Amendment claim.

A. A Brief Background of The Eighth Amendment
The United States Supreme Court has noted that the principles of the Eighth Amendment
can be traced as far back as the Magna Carta.81 In fact, the language of the Eighth Amendment
was copied virtually word-for-word from the English Bill of Rights of 1689 at a time when

79

Cohen-Kettenis, supra note 25, at 327.
U.S. Const. amend. VIII.
81
Harmelin v. Michigan, 501 U.S. 957, 967 (1991).
80

15

whippings, pillorings, breaking on the wheel, and disembowelments were commonplace.82
Some scholars argue that the Founders only intended to prohibit “torturous or barbaric
punishments” and nothing more when they ratified the Eighth Amendment.83 This view appears
to be consistent with the Supreme Court’s earlier opinions. 84 In the middle of the twentieth
century, the Supreme Court adopted a much broader interpretation, and the concept of “cruel and
unusual punishment” was no longer “limited to those practices condemned by the common law
in 1789.”85 The Court subjected cruel and unusual punishment to an “evolving standard of
decency that mark the progress of a maturing society.”86
Abandoning the view that “cruel and unusual punishment” is limited to only “torturous
and barbaric” acts by the Federal Government, the Eighth Amendment is now applicable to the
States through the Fourteenth Amendment 87 and proscribes “unnecessary and wanton infliction
of pain”88 upon its inmates. Therefore, if punishment is excessive, it is by definition “cruel and
unusual.” The concept “cruel and unusual” is a dynamic concept that changes through the

82

Id., at 966. “That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual
Punishments inflicted.” Bill of Rights, 1689, 1 W & M., ch. 2 (Eng.) (modern spellings used). For a fascinating
historical perspective on the origins and development of the Eighth Amendment, see Justice Scalia’s opinion in
Harmelin; Celia Rumann, Tortured History: Finding Our Way back to the Lost Origins of the Eighth Amendment,
31 PEPP. L. REV. 661, 666-682 (2004); Stephen T. Parr, Symmetric Proportionality: A New Perspective on the
Cruel and Unusual Punishment Clause, 68 TENN. L. REV. 41, 43-46 (2000). See also Sheldon R. Shapiro,
Annotation: Federal Constitutional Guaranty Against Cruel and Unusual Punishment—Supreme Court Cases, 33 L.
ED. 2d 932 (2006). See also Re Kemmler, 136 U.S. 436 (1890).
83
Parr, supra note 82; Anthony F. Granucci, “Nor Cruel and Unusual Punishment Inflicted”: The Original Meaning,
57 CAL. L. REV. 839, 842 (1969).
84
See, e.g., Wilkerson v. Utah, 99 U.S. 130 (1878) (holding that execution by firing squad is not cruel or unusual
punishment).
85
Ford v. Wainwright, 477 U.S. 399, 405-06 (1986).
86
Trop v. Dulles, 356 U.S. 86, 101 (1958) (“The [Eighth] Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society”). See also Gregg v. Georgia, 428 U.S. 153, 171,
173 (1969) (The Eighth Amendment “must be capable of wider application than the mischief which gave it birth . . .
must draw its meaning from the evolving standards of decency that mark the progress of a maturing society . . .
[and] must accord with the ‘dignity of man.’”) (internal citations omitted).
87
Robinson v. California, 370 U.S. 660 (1962) (invalidating state statues that inflict cruel and unusual punishments
and overturning Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475 (1866)).
88
Estelle, 429 U.S. at 103 (quoting Gregg, 428 U.S. at 153).

16

course of time.89 In the past several decades, the Eighth Amendment has been applied to
concepts related to proportionality, 90 prison conditions, 91 and medical care. 92
In a decisive and influential case decided in 1976, the United States Supreme Court
expanded the scope of the Eighth Amendment to require prison officials to provide adequate
medical care to inmates.93 In this case, the plaintiff-inmate had alleged that he suffered a serious
back injury and prison officials provided inadequate medical treatment.94 The Court held that
there was no valid penological purpose for denying or failing to provide treatment for an
inmate’s serious medical needs. 95 The Court subsequently set out a two-pronged test to establish
a valid Eighth Amendment claim. 96 First, the inmate would need to show that she suffered from
a serious medical need.97 Second, the inmate would need to show that prison officials refused or
failed to provide adequate medical care.98 Thus, when an inmate suffers from a serious medical

89

Weems v. United States, 217 U.S. 349 (1910); Trop v. Dulles, 356 U.S. 86 (1958).
The connection between the Eighth Amendment and proportionality is a relatively recent phenomenon. A classic
example is Hutto v. Davis, 454 U.S. 370 (1982) (reversing the Fourth Circuit Court’s decision to overturn a 40 year
sentence for possession of small quantity of marijuana). The modern trend towards the Eighth Amendment and
proportionality was first recognized in Solem v. Helm, 464 U.S. 277 (1983) (life sentence for writing a bad check
was not proportional and therefore “cruel and unusual” within the meaning of the Eighth Amendment).
91
In 1981, the Supreme Court extended the Eighth Amendment to prison conditions denying inmates the “minimal
civilized standards of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). There, the Court held that
conditions of confinement may violate an inmate’s right to be free from cruel and unusual punishment. Id. This
broad interpretation of the Eighth Amendment provided inmates a flexible, legal framework to establish an Eighth
Amendment claim. For example, the Court held that a non-smoking inmate who had been exposed to dangerously
high levels of second hand smoke and was harmed as a result may have an Eighth Amendment claim. Helling v.
McKinney, 509 U.S. 25 (1993). Similarly, a shirtless inmate who is handcuffed to a hitching pose underneath the
sun for seven hours and given minimal amounts of drinking water is a violation of the Eighth Amendment. Hope v.
Pelzer, 536 U.S. 730 (2002). The Eighth Amendment is also implicated when an inmate is at risk for assault and
prison officials either disregard or fails to act to mitigate that harm. Farmer v. Brennan, 511 U.S. 825 (1994). The
Eighth Amendment is also implicated when a prison official exercises excessive force and the inmate does not suffer
serious injury. Hudson v. McMillian, 503 U.S. 1 (1992).
92
Estelle v. Gamble, 429 U.S. 97 (1976).
93
Estelle v. Gamble, 429 U.S. 97 (1976).
94
Id. at 100-102.
95
Id., at 103.
96
Id., at 104-106.
97
Id., at 105-105.
98
Id., at 106.
90

17

need and prison officials act with deliberate indifference to that medical need, the Eighth
Amendment may be implicated.99
The Supreme Court’s two-pronged test has moved the lower courts to be equally liberal
in its interpretation of the Eighth Amendment within the medical context. For example, the
Eighth Amendment may be violated when prison officials refuse a paraplegic inmate from
entering into the prison infirmary because he uses a wheelchair.100 Prison officials may violate
the Eighth Amendment by refusing abortion procedures to female inmates. 101 Similarly, when
an inmate contracts an infection and requires medical treatment, the Eighth Amendment may be
implicated when prison officials fail to provide medical care.102 Delaying treatment may also
implicate the Eighth Amendment.103 Failure to provide treatment for a mental illness may also
implicate the Eighth Amendment.104
The courts are cautious not to stretch the Eighth Amendment too far. Nothing in the
Eighth Amendment requires that inmates be treated with the best, state of the art treatment.105
Furthermore, where there is a difference of opinion between physicians or between inmates and a
physician, the courts will not second guess the physician’s independent medical judgment.106
Indeed, the Eighth Amendment requires only adequate treatment for serious medical needs, and

99

The two-pronged test is much more complex than appears at first glance. There are many illnesses that cannot be
readily diagnosed or agreed upon. Additionally, there can be more than one method of treatment for an illness or
injury, and there is considerable debate as to which treatment is more effective. The courts rely heavily on the
independent judgment of medical professionals. This is discussed in further detail in infra Part IV.
100
Weeks v. Chaboudy, 984 F.2d 185 (6th Cir. 1993).
101
Monmouth Co. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987).
102
LaFault v. Smith, 834 F.2d 389 (4th Cir. 1987).
103
See, e.g., Dean v. Coughlin, 623 F. Supp. 392 (S.D.N.Y. 1985); Toombs v. Bell, 798 F.2d 297 (8th Cir. 1986).
104
See, e.g., Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) (prisons are required to provide psychiatric and
psychological care for its inmates); Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977) (“We see no underlying
distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart.”).
105
See, e.g., Taylor v. Barnett, 105 F. Supp. 2d 483 (E.D. Va. 2000) (inmates are not entitled to state of the art drugs
if basic, but equally effective, treatments are readily available).
106
See Bowring, 551 F.2d at 48 (“We disavow any attempt to second-guess the propriety or adequacy of a particular
course of treatment. Along with all other aspects of health care, this remains a question of sound professional
judgment.”) (citation omitted). See also infra note 137 and accompanying text.

18

in many cases, inmates may have difficulty proving that she has a serious medical condition that
requires treatment and that prison officials act with deliberate indifference with regard to that
need.

B. Proving a Valid Eighth Amendment Claim Within the Medical Context: A Primer
To prove a valid Eighth Amendment claim against cruel and unusual punishment in the
medical context, an inmate has to satisfy a two-pronged test.107 The inmate must first prove,
objectively, that she suffers from a serious medical need that requires treatment.108 Second, she
must prove, subjectively, that prison officials were deliberately indifferent to that medical need.
Deliberate indifference may be proved by showing that the prison officials were aware of the
medical need and disregarded it or otherwise failed to respond adequately. 109
For example, an inmate exposed to high levels of second-hand smoke may have a claim
for relief under the Eighth Amendment.110 First, an inmate-plaintiff must prove, objectively, that
“he himself is being exposed to unreasonably high levels of [second hand smoke],” which
“requires a court to assess whether society considers the risk that a prisoner complains of to be so
grave that it violates contemporary standards of decency to expose anyone unwillingly to such a
risk.”111 Secondly, the inmate must prove, subjectively, that “prison officials were deliberately
indifferent to his plight as a non-smoker placed in a smoking environment.”112 This prong

107

See, e.g., Helling, 509 U.S. at 35-36; Estelle, 429 U.S. at 104-106.
Id.
109
The plaintiff “must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious
medical needs.” Estelle, 429 U.S. at 106. Proof must be shown that the prison official knew of and disregarded “an
excessive risk to inmate health or safety.” Farmer, 511 U.S. at 836-837. The prison official must be “both [] aware
of facts from which the inference could be drawn that a substantial risk of serious harm exists, and . . . draws the
inference.” Id.
110
Helling, 509 U.S. at 28, 35 (1993).
111
Id., at 35-36.
112
Id.
108

19

requires an inmate to show that defendants knew of the serious harm associated with second
hand smoke and failed to prevent or reduce the likelihood of the harm. 113
As in the above example, an inmate must satisfy a two prong test if she was denied
appropriate medical treatment. First, the inmate must allege that she had a serious medical need
that required treatment and, secondly, that prison officials were deliberately indifferent to that
need. 114 A serious medical need may be defined as a need that is “so obvious that a lay person
would recognize the necessity for a doctor’s attention” or “where denial or delay causes an
inmate to suffer a life-long handicap or permanent loss.”115
Thus, consider an inmate with a dislocated jaw. 116 The inmate suffers from lockjaw, an
inability to keep his jaw in one place, difficulty with eating, and pain on the side of the face. The
inmate has a serious injury that would be obvious to any lay person. Therefore, the objective
component of an Eighth Amendment claim is satisfied. When an oral surgeon refuses to take Xrays or examine the inmate, thereby delaying treatment, the subjective component of an Eighth
Amendment may be satisfied.
If inmates who suffer from severe forms of GID subsequently suffer from emotional
harm and are at some risk of suicide, failure to respond to the inmate’s medical needs for
hormone therapy and sex reassignment surgery may implicate an Eighth Amendment.

Part IV – GID Treatment in Prison and the Eighth Amendment
As we have learned, the medical literature informs us that GID may be a serious medical
disorder that must be treated. We have also learned that the Eighth Amendment requires that

113

Id.
Estelle, 429 U.S. at 104-106.
115
Monmouth Couty Corr. Inst. Inmates v. Lanzaro, 834 F. 2d 326, 347 (3d Cir. 1987).
116
This example is taken from Holton v. Fraitellone, 1997 U.S. Dist. LEXIS 8431 (S.D. N.Y. 1997).
114

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inmates be provided adequate medical care for their serious medical needs. Despite repeated
requests for hormone therapy and sex reassignment surgery, prison officials refuse or fail to
provide these forms of treatment.117 Consequently, inmates suffering from severe GID have
engaged in acts of self-mutilation, self-castration, and suicide attempts.118
At face value, it would appear relatively simple for a transsexual inmate to establish a
two-prong test to establish that the prison’s failure to provide these treatments violate the Eighth
Amendment. Thus, an inmate who alleges that she suffers from GID and seeks treatment for her
condition would be required to prove that she suffers from such a condition and that failure to
treat her condition would cause her harm. She would need to show, objectively, that she suffers
from GID, and that this condition is a serious medical need within the meaning of the Eighth
Amendment. She would also need to show, subjectively, that prison officials were aware of the
need for medical care or of the facts from which this need could be inferred and failed to take
affirmative action as to provide adequate medical care to treat the condition.
A court may, for example, agree that refusal to continue hormone therapy she had been
receiving prior to incarceration may constitute deliberate indifference. 119 Similarly, a prison
official may act with deliberate indifference if he fails to respond to an inmate’s repeated request
for GID treatment.120 A blanket policy denying transsexuals access to medical treatment may

117

See, e.g., Kosilek v. Maloney, 221 F. Supp. 2d at 159 (D. Mass. 2002); Cuoco v. Moritsugu, 222 F.2d 99, 106 (2d
Cir. 2000); White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988); Meriwether, 821 F.2d at 410 (7th Cir. 1987); Wolfe
v. Horn, 130 F. Supp. 2d 648, 652 (E.D. Pa. 2001).
118
See, e.g., Supre v. Ricketts, 792 F.2d at 960 (engaged in mutilation of sex organs); Barrett, 292 F. Supp. at 284
(threatening to mutilate her genitals); White v. Farrier, 849 F.2d 322, 323 (8th Cir. 1988) (threatening to commit
suicide and castrate himself); De’Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003) (same); Kosilek, 221 F. Supp. at
98 (same).
119
Wolfe v. Horn, 130 F. Supp 2d 648, 643 (E.D. Pa. 2001).
120
Cuoco v. Moritsugu, 222 F.2d 99 (2d. Cir. 2000).

21

also implicate the Eighth Amendment.121 However, these scenarios oversimplify the issues and
overlook several potential arguments the transsexual inmate must overcome.

A. The inmate fails to satisfy the objective component of an Eighth Amendment claim.
Establishing the objective component of an Eighth Amendment claim is relatively
straightforward and usually does not present problems. All an inmate needs to do is simply show
that he or she suffers from a serious illness, condition, or injury; and that this requires medical
treatment. However, where the illness, condition, or injury, is not obvious, or is otherwise
difficult to diagnose, an inmate may not be able to satisfy the objective component. In the same
vein, where the illness, condition, or injury is apparent, but is not as serious as to require medical
assistance, the objective component of an Eighth Amendment may not be satisfied. With regard
to GID in an Eighth Amendment claim, the transgender inmate faces two possible arguments that
may be raised by the defendants.

1. There is no objective criterion for diagnosing Gender Identity Disorder.
A serious medical need is “one that is so obvious that even a layperson would easily
recognize the necessity for a doctor’s attention.”122 Thus, a pregnant female inmate who may not
be “showing” nonetheless has a serious medical need when she is in pain, bleeding, passing clots,
and unable to conduct her usual activities of daily living.123 In less obvious, or more complicated,
cases, physicians may disagree as to diagnosis and the appropriate course of treatment. Where

121

See, e.g., Brooks v. Berg, 270 F. Supp. 2d 302, 305 (N.D.N.Y. 2003) (blanket policy prohibiting treatment for
gender identity disorder implicates the Eighth Amendment).
122
Pool v. Sebastian County, 418 F.3d 934, 944 (8th Cir. 2005) (quoting Johnson v. Busby, 953 F.2d 349, 351 (8th
Cir. 1992)).
123
Id.

22

there is no objective criterion for a diagnosis of a psychological disorder, an inmate’s medical
need may not be so serious as to require treatment.
The courts have held that inmates are entitled to psychiatric treatment.124 But since GID
is difficult to diagnose, it is understandable that medical experts will disagree whether a
particular inmate might have this condition. As noted above, there is no objective criterion for
diagnosing GID. Therefore, in cases where there are disagreements among physicians as to
whether an inmate suffers from gender identity disorder, deliberate indifference will be difficult
to prove. For example, medical experts questioned whether an inmate—who alleged that he was
trapped in a woman’s body, but sported a mustache—was in fact suffering from GID.125

In this

case, three experts agreed that the inmate suffered from GID, but a fourth did not.126 The court
held that whether the inmate was in fact a transsexual was a question of fact that required further
inquiry. 127 Similarly, when an inmate insists that she suffers from GID, requests hormone
therapy and sex reassignment, but refuses to speak with a mental health expert, there will be
concern as to whether the inmate is genuinely a transsexual. 128
The courts have considered cases whereby inmates claimed to have suffered from certain
psychological illnesses.129 However, where there is no evidence or obvious symptoms to suggest
that an inmate suffers from a psychological disorder requiring treatment, the courts will not

124

Inmates have a right to psychiatric care. See, e.g., Bowring v. Godwin, 551 F.2d. 44, 47 (4th Cir. 1977) (“We see
no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric
counterpart.”). A number of courts have cited Bowring with approval. See, e.g., Horn v. Madison County Fiscal Ct.,
22 F.3d 653, 660 (6th Cir. 1994)); Smith v. Jenkins, et al., 919 F.2d 90, 93 (8th Cir. 1990); Greason v. Kemp, 891
F.2d 829, 834 (11th Cir. 1990).
125
White v. Nix, 849 F.2d 322 (8th Cir. 1988).
126
Id. at 324-325.
127
Id. at 328.
128
Long v. Nix, 86 F.2d 761 (8th Cir. 1996).
129
See, e.g., Ciarpaglini v. Kallas, 2005 U.S. Dist. LEXIS 25560 (W.D. WI. 2005) (inmate suffering from bipolar,
panic disorder, and attention-deficit hyperactivity disorder); R.T. v. Gross, 298 F. Supp. 2d 289 (N.D. N.Y. 2003)
(inmate with either bipolar disorder or antisocial personality disorder); Greason v. Kemp, 891 F.2d 829 (11th Cir.
1990) (inmate with schizophrenia and suicidal tendencies)

23

second-guess the independent judgment of medical physicians.130 The transsexual inmate will be
unable to prove the objective component of the Eighth Amendment claim if physicians find no
evidence of GID.

2. Gender Identity Disorder is not a serious medical need.
The Eighth Amendment is not implicated when medical experts exercise their
independent medical judgment.131 Thus, even if an inmate has been diagnosed with a
psychological disorder, it may not rise to the level of necessary proactive treatment. Therefore,
even if an inmate suffers from GID, a physician may not believe that it is so serious a medical
need that requires treatment. Although most—if not all—courts agree that GID is a serious
medical condition132 that should be treated like other psychiatric disorders,133 the courts will not
second-guess the independent judgment of medical physicians. 134 Given that there are varying
degrees of severity of GID, a court will not second guess physicians who refuse to treat inmates
suffering from GID.
The courts’ deference to medical experts in transsexual inmate cases is not unique. The
courts have held that physicians who deny inmates certain pharmaceuticals or surgical treatment
130

Bowring, 51 F.2d at 48 (“[W]e disavow any attempt to second-guess the propriety or adequacy of a particular
course of treatment. Along with all other aspects of heath care, this remains a question of sound professional
judgment.”); Thomas v. Pate, et al., 493 F.2d 151 (7th Cir. 1974) (“Courts will not attempt to second-guess licensed
physicians as to the propriety of a particular courts of medical treatment for a given prison-patient.”); Boring v.
Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987) (“Courts will not ‘second-guess the propriety or adequacy of a
particular course of treatment [which] remains a question of sound professional judgment.’”) (citing Inmates of
Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)).
131
Estelle, 429 U.S. at 107; White v. Farrier, 849 F.2d at 327; Supre, 792 F.2d at 960-64. See also Snipes v.
DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“Whether and how pain associated with medical treatment should be
mitigated is for doctors to decide free from judicial interference . . .”).
132
See, e.g., Kosilek, 221 F. Supp. 2d at 161; Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000); Maggert, 131 F.3d
670, 671 (7th Cir. 1997); Barrett, 292 F. Supp at 284; Brown, 63 F.3d 967, 969 (10th Cir. 1995); White v. Farrier,
849 F.2d 322, 325-26 (8th Cir. 1998); Faulkner, 821 F.2d 408, 412 n.5 (7th Cir. 1987); Brooks v. Berg, 270 F. Supp.
2d 302, 304 (N.D.N.Y. 2003); Wolfe v. Horn, 130 F. Supp.2d 648, 652 (E.D. Pa. 2001); White v. Nix, 849 F.2d 322
(8th Cir. 1998).
133
See, e.g., Meriwether, 821 F.2d at 413; Maggert, 131 F.3d at 671.
134
See infra note 138.

24

do not necessary give rise to an Eighth Amendment claim. For example, where an inmate
suffered withdrawal symptoms related to his addiction of barbiturates, the Eighth Amendment
was not implicated when a physician refused the inmate’s request for Thorizine to alleviate the
withdrawal symptoms.135 In addition, homeopathic alternatives to surgery that are not
“substantial departures” from accepted medical judgment does not give rise to Eighth
Amendment claims. 136
Except in cases where a physician has no training in a particular area of medicine, 137 the
courts are reluctant to second-guess the independent judgment of medical physicians.138 If the
courts accept the medical judgment entered into the record that a given inmate’s GID is not so
serious as to require treatment, the objective component of an Eighth Amendment claim cannot
be satisfied.

B. The inmate fails to satisfy the subjective component of an Eighth Amendment claim.
In most cases, it will be relatively easy for an inmate to show that he or she suffers from a
serious form of GID. The objective component of the Eighth Amendment claim is generally not
an issue. However, proving the subjective component of an Eighth Amendment claim is far

135

Mathis v. Pratt, 375 F. Supp. 301 (N.D. Ill. 1974).
See, e.g., Hollon v. Prison Health Services, et al., 2006 U.S. Dist. LEXIS 78674 (S.D. In. 2006) (prison policy
requiring conservative treatment of hernias that does not interfere with daily living does not implicate Eighth
Amendment). See also Covington v. Kalonick, 1984 U.S. Dist. LEXIS 23792 (S.D. N.Y. 1984) (inmate with facial
scars disagrees with his plastic surgery about treatment).
137
See Smith, 919 F.2d at 93 (a case involving inmate alleging Eighth Amendment violations and the court
expressed concern that inmate’s physician had no training in mental health).
138
Bowring, 51 F.2d at 48 (“[W]e disavow any attempt to second-guess the propriety or adequacy of a particular
course of treatment. Along with all other aspects of heath care, this remains a question of sound professional
judgment.”); Thomas v. Pate, et al., 493 F.2d 151 (7th Cir. 1974) (“Courts will not attempt to second-guess licensed
physicians as to the propriety of a particular courts of medical treatment for a given prison-patient.”); Boring v.
Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987) (“Courts will not ‘second-guess the propriety or adequacy of a
particular course of treatment [which] remains a question of sound professional judgment.’”) (citing Inmates of
Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)).
136

25

more problematic, particularly for inmates with mental illnesses.139 The subjective component
requires a showing that prison officials acted with deliberate indifference with regard to the
inmate’s serious medical needs. Specifically, the inmate would need to show that prison officials
knew of the inmate’s illness or condition and acted or failed to act in such a way as to treat that
illness or condition adequately. Thus, when an inmate is refused hormone therapy and the
withdrawal symptoms of hormone therapy severely affect the inmate’s physical and emotional
states, prison officials may be acting with deliberate indifference. 140 When, however, prison
officials concede that they knew of the illness and offered treatment, the inmate may still show
deliberate indifference by proving that the treatment received was inadequate. In this situation,
transsexual inmates must be able to prove that the treatment is in fact adequate and not
controversial. The inmate cannot, however, request the most effective form of treatment
available to her.

1. There is no constitutional right to a specific treatment.
Although failure to provide any treatment for a serious medical need violates the Eighth
Amendment, the courts have held that neither hormone therapy nor sex reassignment surgeries
are constitutionally mandated, and nor inmates do have a right to a particular type of
treatment.141 Thus, so long as the treatment is adequate, the Eighth Amendment is not

139

See generally Lori A. Marschke, Proving Deliberate Indifference: Next to Impossible for Mentally Ill Inmates, 39
VAL. U.L. REV. 487 (2004).
140
Phillips, 731 F. Supp. at 800-01 (W.D. Mich. 1990).
141
Supre, 792 F.2d at 963 (“We are . . . unable to conclude that federal law requires prison officials to administer
female hormones to a transsexual inmate”); Meriwether, 821 F.2d at 413 (Transsexual inmates do “not have a right
to any particular type of treatment, such as estrogen therapy . . .”); Maggert, 131 F.3d at 671 (Prison officials are not
legally obligated to “authorize the hormonal and surgical procedures that in most cases at least would be necessary
to ‘cure’ a prisoner’s gender dysphoria”); Lamb, 633 F. Supp at 353 (same).

26

implicated.142 Because not every refusal of medical treatment constitutes a violation of the
Eighth Amendment, one must try to determine what is minimally necessary to treat the illness. 143
In denying a transsexual inmate the right to estrogen, the Seventh Circuit Court held that
an inmate
does not have a right to any particular type of treatment, such as estrogen
therapy . . . . Given the wide variety of options available for the treatment of
gender dysphoria and the highly controversial nature of some of these options, a
federal court should defer to the informed judgment of prison officials as to the
appropriate form of medical treatment.144
Consistent with the view that hormone therapy and sex reassignment surgeries are not
constitutionally mandated, the courts have equally held that there is no constitutional right of
inmates to receive methadone145 or a recommended leg brace.146 Similarly, where there were
alternatives to teeth extraction and an inmate could not prove that teeth extraction was not a
medically appropriate treatment, a court held that deliberate indifference could not be shown
unless there were other, non-medical considerations, such as costs.147 Likewise, when an inmate
claimed that the drug Ansaid controlled his pain better than Naprosyn, the court held that the
prescribing physician did not act with deliberate indifference because Naprosyn has a better

142

See, e.g., Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“So long as the treatment given is adequate,
the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation.”).
143
“It is a matter of determining the civilized minimum of public concern for the health of prisoners, which depends
on the particular circumstances of the individual prisoner.” Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir.
1999).
144
Meriwether, 821 F.2d at 413. See also Judge Posner comment in Maggert, 131 F.3d at 672 (“Withholding from a
prisoner an esoteric medical treatment that only the wealthy can afford does not strike us as a form of cruel and
unusual punishment. It is not unusual; and we cannot see what is cruel about refusing a benefit to a person who
could not have obtained the benefit if he had refrained from committing crimes.”).
145
Holly v. Rapone et al., 476 F. Supp. 226 (E.D. Pa. 1979).
146
Floyd v. Anderson, 2005 U.S. Dist. LEXIS 21219 (D. Minn. 2005).
147
Brooks v. Andrews, 2006 U.S. Dist. LEXIS 38439 (E.D. Cal. 2006).

27

safety record and both drugs were equally effective.148 Given that both drugs were equally
effective, there was no constitutional right to Ansaid.
Since the Eighth Amendment does not require that prison officials provide the best and
most appropriate course of treatment,149 there is nothing to suggest that transsexual inmates have
a right to a specific treatment to treat their disorder. On the other hand, if there is no other
known course of treatment available, transsexual inmates may receive hormone therapy or sex
reassignment surgery to treat their disorder, and the choice of treatment would depend on which
treatment was minimally necessary to treat the disorder.

2. Failure to provide an equally effective course of treatment does not implicate
the Eighth Amendment.
An inmate may be able to prove deliberate indifference if prison officials or medical
physicians insist on easier, but less effective forms of, treatment. The courts have held that
where an inmate suffers from a serious medical need, “easier but less efficacious course of
treatment” can constitute deliberate indifference. 150 Thus, an inmate with a serious medical need
may show deliberate indifference if a physician opts to perform easier and cheaper ways of
treating the illness, condition, or injury. For example, an inmate with a cavity may be able to
show deliberate indifference if there are less invasive methods other than the recommended tooth
extraction.151 Similarly, an inmate whose ear was cut off may prove deliberate indifference
when operating surgeons refuse to reattach the ear because sewing the stump was an easier and

148

Blaisdell v. Tanner, 2002 U.S. Dist. LEXIS 5776 (D. Minn. 2002).
“A prison is not required by the Eighth Amendment to give a prisoner medical care that is as good as he would
receive if he were a free person, let alone an affluent person. He is entitled to only minimum care.” Maggert, 131
F.3d at 671-72 (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992) (other citations omitted)).
150
Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989).
151
Chance v. Armstrong, 143 F.3d 698 (2d Cir. 1998).
149

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less efficacious course of treatment.152 However, deliberate indifference will not be found where
a physician prescribes chiropractic care instead of pharmaceuticals because the former may be an
equally effective course of treatment accepted by medical standards.153
Where physicians prescribe equally effective treatment for GID, such as hormone therapy
instead of sex reassignment, no deliberate indifference will be found. Thus, no deliberate
indifference was found when a male-to-female transsexual inmate was prescribed androgens
(male hormones) instead of estrogen (female hormones).154 Similarly, a court may not find
deliberate indifference when prison officials deny a transsexual inmate’s request for sexreassignment surgery because hormone therapy was an equally effective form of treatment.155

3. Treatment for Gender Identity Disorder is controversial.
Although an inmate does not have the right to receive as good medical care as she would
have received outside of prison,156 the Standards of Care provide that hormone therapy and sex
reassignment surgery is neither elective nor experimental. Nonetheless, the courts have held that
hormone therapy was medically controversial and prison officials were not required to provide
medically controversial treatment.157 When medical experts examine an inmate who claims to
suffer from GID and refuses to administer estrogen therapy because of the dangers associated
with it, this may not implicate the Eighth Amendment.158

152

Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974).
Randall v. Wynick, 642 F.2d 304 (8th Cir. 1981).
154
Supre, 792 F.2d at 960.
155
See Kosilek, 221 F. Supp. at 194-95.
156
“A prison is not required by the Eighth Amendment to give a prisoner medical care that is as good as he would
receive if he were a free person, let alone an affluent person. He is entitled to only minimum care.” Maggert, 131
F.3d at 671-72 (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992) (other citations omitted)).
157
Farmer v. Hass, 990 F.2d at 321; White, 849 F.2d at 327-28; Meriwether, 821 F. 2d at 414; Long v. Nix, 877 F.
Supp. at 1364.
158
Supre, 792 F.2d at 413.
153

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The refusal to provide certain treatment because there are high risks involved is not
limited to GID inmates. For example, a court has held that the Eighth Amendment was not
implicated when an inmate who is at a high risk for rejecting a corneal transplant was refused the
transplant.159 In that case, the inmate suffered from a drooping eyelid, cornea scarring, and other
eye and facial complications, caused by a viral infection.160 The inmate was unsuccessfully
treated through surgery and sought a second cornea transplant.161 After several consultations, a
dispute over how the surgical procedure should be performed emerged.162 Thereafter, two
cornea transplant experts examined the inmate and concluded that the inmate was a high risk
patient and recommended against surgical treatment.163 The court held that since the inmate was
a high risk inmate and that surgical treatment could worsen the eye, the Eighth Amendment was
not implicated.164 Other courts have decided similarly. 165
Notwithstanding the recommendations set forth in the Standards of Care, there will be
prison officials and mental health experts who will argue that hormone therapy and sex
reassignment surgery are in fact controversial treatments. As noted above, there are serious
health risks associated with cross-sex hormone therapy, such as insulin sensitivity, ovarian
disease, venous thrombosis, pulmonary embolism, myocardial infarction, stroke, and
depression.166 Therefore, in weighing deliberate indifference, courts will consider whether the
treatment is controversial; and if it does, the Eighth Amendment will not be implicated.

159

Hodge v. Coughlin, 1994 U.S. Dist. LEXIS 13409 (S.D. N.Y. 1994).
Id. at *2.-*4.
161
Id. at *11-21.
162
Id. at *23.
163
Id. at *24-27.
164
Id. at *31, *40.
165
See, e.g., Cordes v. Lockhart, 1994 U.S. App. LEXIS 36197 (8th Cir. 1994) (no deliberate indifference when
surgery was postponed due to high risk of health complications); Horton v. Ward, 123 Fed. Appx. 368 (10th Cir.
2005) (inmate at risk for infection).
166
Eva Moore, supra note 63, at 3469-3470.
160

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C. Even if an inmate raises a valid Eighth Amendment claim, failure to provide hormone
therapy does not necessarily implicate the Eighth Amendment.
Assuming, arguendo, that a transsexual inmate suffering from GID has satisfied both
prongs to make out a valid Eighth Amendment claim, the inmate will not necessary prevail.
There are two possible legal hurdles that the transsexual inmate may face—neither of which can
be anticipated due to the fact that different judges have their own viewpoints regarding the limits
of the Eighth Amendment.

1. The Eighth Amendment requires treatment for serious medical needs only.
Some courts may adopt the view that the Eighth Amendment does not require any form
of treatment for GID because GID is not “necessarily a serious medical need for which the
Eighth Amendment requires treatment.”167 By adhering to a more narrow view of the Eighth
Amendment, a court may find deliberate indifference for refusal or failure to provide treatment
only if the inmate’s condition was one that would cause “death, degeneration or extreme pain.”
168

At least one court held that administration of cross-sex hormones served only cosmetic

purposes.169 It would, then, be difficult for a court to find deliberate indifference if it did not
believe that GID was a serious medical disorder requiring treatment. Although courts will not
second guess medical expert testimony that GID is a serious medical need that requires treatment,
a court may characterize hormone therapy and sex reassignment surgery as a cosmetic procedure

167

Kosilek, 221 F. Supp. 2d at 184; Maggert, 131 F.3d at 672 (“We conclude that . . . the Eighth Amendment does
not entitle a prison inmate to curative treatment for his gender dysphoria”).
168
Copeland v. Warden, 2002 Conn. Super. LEXIS 3905, at 12. For a more detailed discussion on this topic, see
Laura D. Smolowe, Rejecting the Cosmetic Label to Revive the Eighth Amendment, 23 YALE L. & POL’Y REV.
357 (2005).
169
Meriwether, 821 F.2d at 411 (“Administration of cross-sex hormones was for cosmetic purposes and failure to
provide cosmetic procedures “could not, as a matter of law, constitute deliberate indifference to a serious medical
need.”).

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for which the Eighth Amendment does not require. This view is at odds with civil courts that
have rejected the view that sex reassignment is cosmetic in nature.170

2. The higher courts have not decided whether the Eight Amendment requires
treatment for Gender Identity Disorder.
Perhaps in an exercise of “ducking” the issue altogether, a court may be unwilling to
decide one way or the other that the Eighth Amendment requires hormone therapy to treat GID.
For example, when a transsexual inmate argued an Eighth Amendment violation arising out of
the Department of Corrections’ failure to provide hormone therapy, a Texas court denied the
inmate’s request for an injunction to order the prison to provide hormone therapy because the
Fifth Circuit Court had not yet decided whether refusal to provide hormone treatment violated
the Eighth Amendment.171 Here, in this situation, a transsexual inmate alleging an Eighth
Amendment claim may find herself in a difficult situation and will need to appeal. In the
meanwhile, adequate treatment may not be provided and psychological damage may or may not
result.

Part V – Conclusion
The courts’ interpretation of the Eighth Amendment has evolved significantly since the
U.S. Constitution was drafted. Cruel and unusual punishment under the Eighth Amendment has
been defined as the “wanton infliction of pain,” and because society’s standards has evolved

170

J.D. v. Lackner, 80 Cal. App. 3d at 96 (“We do not believe, by the wildest stretch of the imagination that such
surgery can reasonably and logically be characterized as cosmetic”); Davidson, 420 N.Y.S.2d at 453 (sex
reassignment surgery is not cosmetic surgery); Doe v. Dep’t of Pub. Welfare, 257 N.W.2d 816, 819 (Minn. 1977)
(same). There does appear to be a difference of opinion among the courts with regard to “cosmetic” procedures for
transsexuals. In civil cases involving non-inmate transsexuals who sought sex reassignment surgery, the courts have
ordered Medicaid pay for the cost of such surgeries because these surgeries were necessary to the transsexual’s
health and psychological well being. See all cases cited id.
171
Praylor v. Texas Dep’t of Crim. Jus., 430 F.3d 1208 (2005).

32

since the drafting of the U.S. Constitution, there is no valid penological purpose for the denial or
delay of treatment for serious medical needs. Prisons, therefore, are prohibited denying or
delaying medical treatment to those inmates with serious medical needs. Thus, inmates with
physical injuries and chronic mental illnesses ought to be provided with adequate medical
care.172 Since GID has been classified as a mental illness, prisons should be required to provide
adequate care to treat inmates suffering from GID. The courts do not dispute that GID is a
disorder. However, where there are factual disputes, the courts cannot reject the inmate’s
diagnosis as offered by medical experts. A diagnosis of GID may be difficult to make. The
courts must also consider the risks associated with treatment for GID. Nothing in the Eighth
Amendment requires that prison officials provide controversial treatment that could result in
further injury or death. Finally, the courts must reflect as to the scope of the Eighth Amendment
in order to determine whether a specific treatment or any treatment for GID is required.
One commentator argued that “Medical care in prisons should reflect the contemporary
views that hormone therapy and sex reassignment represent the appropriate treatments for
transexualism . . .”173 This view overlooks the fact that there may be a difference of opinion
between medical experts regarding diagnosis and prognosis. It may be true that denying or
delaying to provide any treatment implicates the Eighth Amendment,174 but the courts have
repeatedly refused to second guess the independent judgment of medical experts. Furthermore,
nothing in the Eighth Amendment requires that an inmate be given as good care as those not

172

John V. Jacobi, Prison Health Public Health: Obligations and Opportunities, 31 AM. J. L. and MED. 447, 471474 (2005).
173
Barnes, supra note 7, at 646.
174
Meriwether, 821 F.2d at 414; Estelle, 429 U.S. at 103.

33

incarcerated. 175 Thus, the courts have much to consider when determining whether prisons
should be required to offer inmates treatment for GID.
Furthermore, commentators who argue that the prison’s failure to provide the appropriate
treatment constitutes deliberate indifference overlook the fact the medical complexities involved
in diagnosing GID and developing an appropriate prognosis. There has been much academic
debate regarding the right of transsexual inmates to receive appropriate treatment under the
Eighth Amendment.176 Yet, none have addressed the complexities in making a diagnosis of GID,
the independent judgment of medical experts, the various, equally effective treatments that may
be offered to the transsexual inmate, and the risks associated with these treatments. Some
commentators are troubled by the courts’ wide deference to medical experts.177 This concern is
not warranted. Medical expert opinion is both necessary and essential to development a just
outcome, and if there is disagreement among experts, that must be expected.
The courts correctly acknowledge that GID is a psychological disorder. In order to
determine whether the Eighth Amendment requires that prison officials provide effective
treatment for GID, parallels must be drawn between the Eighth Amendment requirements for
medical care and the medically accepted minimum requirements to treat GID. This has not been
done. Until one draws these parallels, transsexual inmates are unlikely to receive better care that
they are currently receiving today.

175

Hudson v. McMillian, 503 U.S. 1, 9 (1992).
See, e.g., Bradley A. Sultan, Transsexual Prisoners: How Much Treatment is Enough?, 37 NEW ENG. L. REV.
1195 (2003); Susan Etta Keller, Crisis of Authority: Medical Rhetoric and Transsexual Identity, 11 YALE J.L. &
FEMINISM 51 (1999); Barnes, supra note 8.
177
Keller, supra note 176, at 66-67 (“The unwillingness to look behind the veil of stated medical opinion in these
cases also creates a crisis of authority for the courts.”).
176

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