Two recent court cases involving transgender prisoners have highlighted attempts to prevent inmates from receiving appropriate medical care.
In the first case, it appears that prisoner Michelle Kosilek's options have run out. The U.S. Supreme Court Monday declined to hear an appeal on her behalf. That appeal, by attorneys with Gay and Lesbian Advocates and Defenders and Goodwin and Procter LLP, was filed after the 1st U.S. Circuit Court of Appeals reversed two lower court decisions in Kosilek's favor.
The denial by the high court is the culmination of over 20 years of litigation on whether Massachusetts Department of Correction officials have violated Kosilek's Eighth Amendment rights by failing to provide adequate care for her severe gender identity disorder, a condition that all parties agree is a "serious medical need," according to GLAD. The organization added that as a result of being denied treatment, Kosilek has self-mutilated and has twice attempted suicide.
The district court decision found that the DOC engaged in a pattern of "pretense, pretext, and prevarication" to deny her treatment. The Commonwealth of Massachusetts appealed, and in early 2014 a three-judge appellate panel upheld the district court judge. Then Massachusetts was granted a rehearing before the full bench, which overturned the judge.
There is a similar case going on right now in California courts, after a federal judge in San Francisco found that the California Department of Corrections and Rehabilitation must immediately give a transgender prisoner sex reassignment surgery. After that ruling last month, Attorney General Kamala Harris' office sought a stay, which Judge Jon Tigar denied. This week, the Los Angeles Times reported that the state has asked the federal appeals court to block Tigar's order.
The inmate, Michelle-Lael Norsworthy, 51, began identifying as a woman in the 1990s. She was diagnosed with gender dysphoria in 2000. Harris' office is claiming in court documents that "evidence showed that there was no medical or psychological need for immediate sex-reassignment surgery," the paper reported.
Tigar disagreed, writing in his ruling that Norsworthy's gender dysphoria would worsen if her hormone therapy is modified or discontinued because of liver complications. He found that Norsworthy is "suffering from irreparable injury as a result of the deprivation of her Eighth Amendment rights."
We are deeply troubled by both cases, but in particular that of Norsworthy and the actions of Harris' office. Harris has always been a strong ally to the LGBT community, yet her office has twice now sought to get around the judge's decision. This stubborn effort to appeal the case is a step backward for an otherwise forward-thinking state Department of Justice.
To be clear, these two women committed violent crimes; Kosilek, 66, was convicted of killing her wife in 1990; Norsworthy was convicted of second-degree murder. Both are being housed at men's prisons, which is also problematic.
And, while Kosilek's legal options have run out, here in California the appeals court should decline to hear the case, leaving Tigar's ruling intact. The state should proceed with the necessary medical treatment for Norsworthy as soon as possible.
Transgender prisoners deserve proper medical care, just as all prisoners do. In reality that is an unmet goal. It is not uncommon for prison staff to deny medical care to inmates, whether in local jails or state prisons. But it's especially true for trans people. Hormones are withheld, and trans prisoners are often housed in facilities that do not match their gender identity.
We call upon Harris to drop the appeal in the Norsworthy case. The fact that Norsworthy has lived with gender dysphoria for over 20 years does not mean that surgery is not important. In fact, that makes it even more urgent. We do not understand why Harris, one of the most pro-LGBT state officials, keeps fighting Tigar's ruling. He made it clear that it's not precedent setting (meaning that it doesn't apply to other inmates) and the cost is minimal when compared with the overall budget of the CDCR.