It is believed to be the first time that the Justice Department has weighed in on the question of whether hormone therapy for transgender inmates is necessary medical care that states are required to provide.
WASHINGTON — The Justice Department put the nation’s prisons and jails on notice Friday that it regarded blanket policies prohibiting new hormone treatment for transgender inmates to be unconstitutional.
In court documents, the Justice Department backed a lawsuit brought by a prison inmate who says Georgia illegally cut off the hormone treatment she had been taking for 17 years.
It is believed to be the first time the Justice Department has weighed in on the question of whether hormone therapy for transgender inmates is necessary medical care that states are required to provide.
Though the Justice Department did not explicitly say the prison should provide the hormones, it argued that Georgia’s treatment policy and those like it are unconstitutional.
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The guidelines, known as “freeze-frame” policies, allow inmates to continue any treatment they were receiving before their arrest but prohibit them from expanding or starting new treatments. The Justice Department said the Constitution requires prison officials to make treatment decisions based on independent health assessments.
The prisoner, Ashley Diamond, 36, sued the Georgia Department of Corrections in February, saying prison officials had terminated her female hormone therapy when she was imprisoned in 2012. She is being held at the Georgia State Prison, a men’s facility, where she is serving an 11-year sentence for burglary and theft.
Diamond has identified as female since she was a child and began hormone therapy when she was 17, the lawsuit says. That gave her full breasts, a feminine shape, softer skin and a feminine appearance.
Only inmates identified as transgender during their initial intake screenings are eligible for gender dysphoria treatment under Georgia’s “freeze-frame” policy, but the personnel who do those screenings often aren’t familiar with the condition, the lawsuit says.
Despite having noticeable feminine physical characteristics and telling department staff she was transgender and receiving hormone therapy, Diamond was not evaluated for gender dysphoria and wasn’t referred for treatment and her hormone therapy was halted, the lawsuit says.
Though medical personnel subsequently evaluated her and determined she had gender dysphoria and that hormone therapy and female gender expression were medically necessary, department officials refused to authorize the treatment, the lawsuit says.
Without the hormones, Diamond’s body “has been violently transformed,” her lawyers wrote. “Ms. Diamond has lost breast tissue and her female secondary sex characteristics have diminished,” her lawyers said. She has attempted suicide and self-castration multiple times, her lawyers said.
Gwendolyn Hogan, a spokeswoman for the Georgia Department of Corrections, said the department cannot comment on active lawsuits.
Prison medical records filed in court show that a mental-health professionals found that Diamond had gender dysphoria, a recognized condition that used to be known as gender-identity disorder.
“Prison officials have the obligation to assess and treat gender dysphoria just as they would any other medical or mental-health condition,” said Vanita Gupta, the Justice Department’s top civil-rights prosecutor. “Freeze-frame policies can have serious consequences to the health and well-being of transgender prisoners, who are among the most vulnerable populations incarcerated in our nation’s prisons and jails.”
The Justice Department said that denying Diamond an individual assessment and treatment plan violates the Eighth Amendment prohibition on cruel and unusual punishment.
Under the Constitution, prisoners do not have a right to the medical care of their choosing, but must be provided adequate treatment for serious medical needs.
“Transgender inmates like Ashley have a right to proper medical care,” said Chinyere Ezie, a Southern Poverty Law Center lawyer who represents Diamond.
In 2005, Wisconsin passed an outright ban on hormone treatment for transgender inmates, regardless of whether the treatment was ongoing when they were arrested.
Civil-rights groups challenged the law on constitutional grounds, and a federal appeals court overturned the law in 2011. Freeze-frame policies are more common; civil-rights groups say they exist in state and local jails around the country.
Until recently, the federal Bureau of Prisons also had a freeze-frame policy. In 2011, the Obama administration settled a lawsuit over its policy and changed its guidelines. Treatment plans for federal inmates are now reviewed regularly and “hormone therapy may be a consideration,” regardless of whether the inmates received the treatment before being arrested.
In February, the Defense Department approved hormone therapy for Chelsea Manning, the former intelligence analyst convicted of providing classified documents to WikiLeaks. Manning, formerly known as Bradley Manning, was sentenced in 2013 to 35 years in prison. The day after the sentencing, she announced that she was a woman. A military court has recognized her as a woman.
Other courts have ordered hormones, psychotherapy and other treatments for transgender inmates. A federal judge Thursday ordered California’s corrections department to provide a transgender inmate with sex-reassignment surgery, the first time such an operation has been ordered in the state.
It was only the second time in the country that a judge issued an injunction directing a state prison system to provide the surgery, said Ilona Turner, legal director at the Transgender Law Center in Oakland.
The previous order in a Massachusetts case was overturned last year and is being appealed to the U.S. Supreme Court.
With his action Friday, Attorney General Eric Holder Jr., the nation’s first black attorney general, asserted that the campaign for the rights of gays, lesbians and transgender people was a continuation of the movement that won equal rights for blacks during the civil-rights era.
He has been one of the Obama administration’s most outspoken voices on the issue of same-sex marriage, and he drew criticism from conservatives last year when he advised state attorneys general that they were not constitutionally obligated to defend bans on same-sex marriage.
This week, the Justice Department sued Southeastern Oklahoma State University, accusing the school of discriminating against a transgender employee.
Federal civil-rights law does not explicitly ban discrimination against transgender people, but Holder said in December that the Justice Department considered such bias to be prohibited under the same civil-rights law that outlaws sex discrimination.