Federal Court Rules Against Wisconsin in Transsexual Prisoner Cases

Chief U.S. District Judge Charles N. Clevert, Jr., issued two lengthy opinions this month rejecting the state of Wisconsin's stance on medical treatment for transsexual prison inmates.  In one case, Fields v. Smith, 2010 Westlaw 1929819 (E.D.Wis., May 13, 2010), Judge Clevert provided the detailed discussion promised earlier in a short order he had issued finding that the state had violated the 8th and 14th Amendment rights of transsexual prisoners by legislating that such prisoners could not be provided with hormones as a treatment for their gender identity disorder.  In the other, Konitzer v. Frank, 2010 Westlaw 1904776 (E.D.Wis., May 10, 2010), the judge rejected the state's motion for summary judgment as to all but one of the claims asserted by a transsexual inmate concerning the refusal of prison authorities to allow the inmate to live as a woman, the lone exception being the judge's determination that the inmate's constitutional rights would not be violated by the prison adhering to a requirement that the inmate only be subjected to strip and pat-down searches by male corrections officers.

The coincidence of the two opinions being issued within days of each other is easily explainable by the practicality of the court ruling preliminarily that the challenged state law, Wis. Stat. sec. 302.386(5m), also known as Act 105, was unconstitutional as a prelude to ruling on the pending summary judgment motion in the Konitzer case.  Once that was done, it made sense to release the two opinions almost simultaneously, as they contain a virtually identical discussion of the case law on constitutional treatment rights of transsexual prisoners, an important segment of both opinions.

The bottom line here is that Judge Clevert seems to "get it," to understand as a result of the careful study of detailed expert testimony offered in both cases (by many of the same experts) that gender identity disorder is a serious medical condition calling for individualized treatment which may need to include hormone therapy and may need to include allowing the individual to live as a member of their preferred gender, depending upon how "severe" is the discordance between the individual's gender identity and their body. 

Thus, a state law categorically ruling out a treatment that medical experts consider to be necessary for some transsexual individuals, depriving prison health officials of the ability to prescribe the treatment that they believe to be appropriate for the inmate, would constitute deliberate indifference to a serious medical condition in violation of the 8th Amendment.  Judge Clevert rejected the state's argument that as long as they were providing some treatment, they were not guilty of deliberate indifference.

Furthermore, since the Department of Corrections is allowed by state law to offer hormone therapy to inmates for other conditions, but just prohibited from providing such therapy "in order to alter the person's physical appearance so that the person appears more like the opposite gender," the court found an Equal Protection violation, because Judge Clevert was not persuaded that the state had met the rational basis test of providing a legitimate penological reason for withholding from one group of inmates a medical treatment that was made available to other inmates.  The state's main justification articulated in support of its summary judgment motion concerned safety issues around "feminized" inmates in male prisons, but this was a nonsense justification when the state provided no evidence that there had been a serious safety problem prior to the enactment of the law.  That is, the law was not enacted in response to a documented problem, but was rather a politically motivated response to adverse press commentary about state funds being used to support gender transition for prison inmates.

The Konitzer case was the more interesting one to read, partly because it was apparently local press publicity about Konitzer being provided hormone therapy that had led the legislature to pass the challenged statute.  Prior to that statute, Wisconsin's prison system had followed a course similar to many others, providing that persons who were already receiving hormone therapy for gender identity disorder prior to incarceration would be continued on their hormones provided appropriate documentation was in order, and that those seeking such therapy after being incarcerated would be dealt with on an individual basis, with decisions being made by a medical review committee in line with the Standards of Care specified by the Harry Benjamin International Gender Dysphoria Association's published standards, now in their 6th version.  Konitzer had been receiving hormone treatments pursuant to this policy, but rather inflexible prison rules were invoked to prevent correctional officials from calling her by her preferred name, or allowing her to wear feminine underwear and a bra or to use make-up. 

When Act 105 was enacted, prison officials began to wean transsexual inmates off their hormone therapy, with predictably adverse effects on their physical and mental health.  A preliminary injunction issued in the case challenging the statute required the state to resume hormone therapy for inmates who had been receiving it, which generally reversed the ill effects of discontinuance.

Judge Clevert was persuaded by plaintiffs' experts in Donna Dawn Konitzer's case that the arguments being made by the Department of Corrections were not sufficient to justify granting summary judgment to the state - with the exception noted above about the searches.  Indeed, Clevert found that the state's own expert on prison security actually provided more support for Konitzer's position than for the state's, since he testified about another state prison system that allowed transsexual inmates to live in their preferred gender without the security and safety problems that the state provided as its rationale for denying such treatment for Konitzer.

Because the ruling in the Konitzer case was responding solely to defendants' motion for summary judgment, there is not yet a final judgment in the case, but it seems unlikely that the State's Department of Justice, upon analyzing Clevert's strongly worded opinion rejecting their motion, would want to prolong this case with further litigation on the merits.  Even if they were to come up with a new expert on security and safety who would testify in support of their arguments, they would then have quite a credibility problem, since the expert they used in support of their motion is one of the nation's leading consultants on prison security.  The ruling in Fields is, of course, a final ruling on the merits.  Judge Clevert indicated that the "specific language of the injunction" that will be issued to enforce the court's order will be determined at an upcoming status conference.  This will be interesting to see, because Act 105 prohibits both hormone therapy and sex reassignment surgery, but Clevert's ruling only pertains to hormone therapy, since that was the specific issue posed in the challenge.  Thus, it seems likely that the final injunction will only strike the portion of Act 105 dealing with hormone therapy, and the ban on state funding of sex reassignment surgery (or surgery generally to enhance gender appearance) will probably stand.

Comments

[Art Leonard]

Professor...
Thank you for untangling the issues so succinctly. In reviewing both cases side-by-side it became much easier to see the political motivation behind the original rulings and the simple, ugly truth of bias and discrimination behind the politics.

Thank you...
The Transgender Community of Police and Sheriffs
(TCOPS International)

(Note: This comment was submitted to accompany the wrong post, so I have cut and pasted it here - Art Leonard)