Victory at the End of a Six-Year Transgender Rights Struggle

Earlier this week, we got the good news — the six-year battle was over. Wisconsin’s anti-transgender Inmate Sex Change Prevention Act was a thing of the past. The act was a one-of-a kind law banning prison medical care for a medical condition that is unique to transgender persons. The law prevented prison doctors from ever prescribing transition-related medical treatment, including hormone therapy and sex reassignment surgery, to transgender prisoners. In May 2010, a federal district court struck the law down as unconstitutional and in August 2011, the 7th Circuit Court of Appeals affirmed. The third and final act of this legal drama was the U.S. Supreme Court’s denial of certiorari on Monday.

I had the privilege of participating in the entire six-year struggle, from the time we filed our complaint in January 2006, through trial in November 2007, and oral argument on appeal in February 2011. The highlights for me were the courage and determination of our clients, who were willing to undertake the burden of speaking out about this terrible law, and the talents of the experts who informed the court about what it means to be transgender and the crucial importance of transition-related medical care. Six years of interviews with our clients and other transgender inmates in Wisconsin confirmed what I already suspected about how challenging it can be to grow up as transgender in a world with so little understanding of transgender people and so much distrust of persons they don’t understand.

But the ultimate success of this case, jointly litigated with attorneys from the ACLU of Wisconsin and Lambda Legal, illustrates the power of knowledge to win out over even the most entrenched biases regarding transgender people. Before this law was passed, the Wisconsin Department of Corrections had deferred to the medical knowledge of their medical staff regarding the treatment needs of transgender persons. But when the Wisconsin legislature ignored the advice they got from DOC’s medical and mental health directors and instead denigrated the treatment as “bizarre taxpayer-funded sex change procedures” and “prison extreme makeovers,” the law easily passed. Expert testimony led to early relief to keep our clients from being cut off of their hormone therapy treatment and ultimately persuaded the district judge that the law could no longer be enforced.

At trial, Wisconsin made the disturbing argument that this law was really for the good of the transgender prisoners, since denying them hormone therapy prevented or reduced the feminizing affects of that medication thereby reducing the risk of their assault by the male prisoners with whom they were housed. The court rejected this argument based on the evidence that transgender prisoners were at risk, with or without the feminizing effect of hormones, and because Wisconsin’s security expert admitted that it would be “an incredible stretch” to conclude that banning the use of hormones could prevent sexual assaults.

The Fields case builds on the efforts of other transgender prisoners who’ve advocated for access to transition-related medical care. Not, unfortunately, until 1987 was there a published court decision recognizing that the Constitution requires prisons to provide some kind of transition-related care for transgender prisoners. But those early cases always stopped short of finding that effective treatment, such as hormone therapy, must be made available. It took cases involving the serious consequences of denying effective medical care — genital mutilation, for example — to get the attention of the courts and persuade them that care short of hormone therapy might not be effective treatment for some transgender people nor sufficient to fulfill the mandates of the Constitution.

As other prisons have done in the past, Wisconsin tried to defend its law banning hormone therapy and surgery by claiming that alternative treatment, such as psychotherapy, would be provided. That argument too was rejected unequivocally, because “the evidence at trial indicated that plaintiffs could not be effectively treated without hormones.” Resorting to strong words, the court reasoned:

Surely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional. Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture.

Striking down a law that singled out transgender people and denied them, and only them, the medical treatment they need, as the Fields ruling did, is plainly what our Constitution requires. But it’s taken a few years of trying to educate courts about transgender medical care to get us to this point.

We have made some progress, but we still have a lot of work to do. In the last few months, the South Carolina legislature proposed a bill with almost the exact same language as the Wisconsin law struck down by the Fields court. Some advocacy by the ACLU of South Carolina and other groups persuaded the legislature to remove some of the worst aspects of the bill. But these and other battles for transgender equality will go on for many years to come.

(Originally posted on ACS Blog.)

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