Federal Court Strikes Wisconsin Ban on Hormone Therapy for Transsexual Prison Inmates

Ruling on a challenge brought on behalf of transsexual state prisoners in Wisconsin, U.S. District Judge C. N. Clevert, Jr., issued an injunction on March 31 barring enforcement of Wis. Stat. Sec. 302.386(5m), a law that banned the state’s prison system from paying for hormone therapy or sexual reassignment surgery for inmates. Fields v. Smith, 06-C-112 (E.D.Wis.).

The challenged statute was enacted in January 2006, as 2005 Wisconsin Act 105, adding a new section to the laws governing the operation of the state’s Department of Corrections, and provides: "The department may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery for a resident or patient . . . ".

Lambda Legal and the ACLU brought suit on behalf of a group of transsexual inmates, all of whom had been receiving hormone therapy prior to incarceration, asserting that the state law requiring that they be deprived of their treatment upon incarceration, inflicted cruel and unusual punishment in violation of the 8^th Amendment, as well as depriving them of Equal Protection of the law in violation of the 14^th Amendment, of the U.S. Constitution.

In prior rulings, Judge Clevert had rejected the plaintiffs' attempt to turn this into a class action suit, but had also rejected the state’s motion for summary judgment, finding that a factual record was needed before the case could be decided on the merits.

The judge’s brief March 31 Order does not provide any lengthy explication of the court’s factual findings, reserving that to a full opinion that was not available as we went to press. However, the Order succinctly states the court’s conclusions.

"After careful consideration," wrote Clevert, "the court concludes that the defendants’ application of Wis. Stat. Sec. 302.386(5m) to these plaintiffs constitutes deliberate indifference to the plaintiffs’ serious medical needs in violation of the Eighth Amendment inasmuch as enforcement of the statute results in the denial of hormone therapy without regard for the individual medical needs of inmates and the medical judgment of their health care providers. The court further finds that Wis. Stat. Sec. 386(5m) is unconstitutional on its face under the Eighth Amendment because it bans the use of any Wisconsin State resources or federal funds passing through the government to provide hormone therapy and, thereby, requires the withdrawal of any such ongoing hormone therapy for inmates in DOC facilities without regard for the medical need for such treatment."

The court also found an equal protection violation, finding that there was no rational basis for applying a differential standard of medical care to transsexual inmates. In a press release announcing the decision, Lambda and ACLU asserted that Wisconsin was the only state to have enacted such an absolute ban on the use of state or federal resources for hormone therapy for transsexual inmates. States generally refuse to pay for sex reassignment surgery. The legal team working on this case includes ACLU LGBT Project Attorney John Knight, ACLU of Wisconsin Legal Director Larry Dupuis, Lambda Legal Transgender Rights Project Attorney Dru Levasseur, former Lambda Legal staff attorney Cole Thaler, and cooperating attorney Erik Guenther of Hurley, Burish & Stanton, S.C.