Medical Treatment for Trans Prisoners in the US

So Chelsea Manning’s situation has brought to light an issue that I am deeply passionate about, and one of the take aways that I’m seeing is that we have a need to educate people further on the fact that trans medical care is not a choice, is not cosmetic, and is not strictly elective (in the medical sense).

I’ve been encountering a lot of hostility towards Chelsea, specifically, but I’m pretty much unbowed by all of it in the one area of her Constitutional right to receive medically necessary care.  On this point, I am absolutely firm, and it applies to all trans prisoners, anywhere in the United States, not just her.

Now, some people might wonder why we put people in jail.  Turns out in 2011, this was reaffirmed by SCOTUS:

“To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates “may actually produce physical ‘torture or a lingering death.’ ” ….Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society”

– US Supreme Court in Brown v. Plata 131 S.Ct. 1910 (2011)

The Constitution of the United States has several Amendments to it.  The first 10 of the are called the Bill of Rights and enshrine Civil Rights as a foundational basis for the nation.  The eighth one of these (8th Amendment) is as follows:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

For the purposes here, the key point is cruel and unusual punishment.

In Weems v. United States, 217 U.S. 349 (1910),  the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual, overturning a punishment called cadena temporal, which consisted of imprisonment for at least 12 years and one day, in chains, at hard and painful labor; the loss of many basic civil rights; and subjection to lifetime surveillance. Cadena perpetua is identical except that it is a sentence of life as opposed to a temporary status. This case established a principle of proportionality under the Eighth Amendment.

In Trop v. Dulles, 356 U.S. 86 (1958), the Supreme Court held that taking away someone’s citizenship is unconstitutional, being “more primitive than torture” because it involved the “total destruction of the individual’s status in organized society.”

In Furman v. Georgia, 408 U.S. 238 (1972), the Opinion of the court was written by Justice Brennan, who stated:

“There are, then, four principles by which we may determine whether a particular punishment is ‘cruel and unusual’.”

  • The “essential predicate” is “that a punishment must not by its severity be degrading to human dignity,” especially torture.
  • “A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
  • “A severe punishment that is clearly and totally rejected throughout society.”
  • “A severe punishment that is patently unnecessary.”

Justice Brennan also wrote that he expected no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a “cumulative” analysis of the implication of each of the four principles.

In this way, the United States Supreme Court “set the standard that a punishment would be cruel and unusual,  it was too severe for the crime,  it was arbitrary, if it offended society’s sense of justice, or if it was not more effective than a less severe penalty.”

These cases basically set the foundational standards I’m about to get into in more detail, with at least one rather startling (to me, at any rate) decision.

One of the key aspects to much of this sort of stuff — and a part of many rulings, is the notion of Human Dignity, which is supposed to not be stripped from prisoners.  This runs counter to what many people in society at large think is “proper and right” — the general thoughts on prisoners is that they shouldn’t have dignity.  ANd yet, then we have situations such as Abu Gahrib, where human dignity is destroyed, and remanding areas like GITMO where human dignity is suspended.

Human Dignity is a term used in moral, ethical, legal, and political discussions to signify that a being has an innate right to be valued and receive ethical treatment. It is an extension of the Enlightenment-era concepts of inherent, inalienable rights.

Dignity is a tough to agree on concept — in the US, we’ve never reached a universal agreement in matters of policy, but it acts as a fundamental aspect of our Civil Rights and our Political Rights. That life, liberty, and pursuit of Happiness thing is about Dignity, and that is, in the end, where courts, and those creating laws, ultimately turn.

The point here is that dignity is not to be stripped from prisoners — the conditions may be unpleasant, but they are still to retain their dignity.

In 1976, the Supreme Court heard Estelle v. Gamble, 429 U.S. 97. In this decision, they held that in order to state a claim for a violation of Eighth Amendment rights, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.  They also said that  medical malpractice did not rise to the level of “cruel and unusual punishment” simply because the victim is a prisoner.  Gamble lost, but what came out of the case was that the principle that the deliberate failure of prison authorities to address the medical needs of an inmate constitutes “cruel and unusual punishment”.

In the words of the court: “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’…proscribed by the Eighth Amendment.”

So Prison authorities must be intentionally ignoring a real need — and the standard for that real need is really determined by those professionals who are employed for that purpose: doctors. This concept of deliberate indifference is a key point to the end result here, and this is a huge deal of case law.

In Helling v. McKinney, in 1993, the Court revisited Estelle, above, and went a bit further.  In a 7-2 majority opinion, Justice Byron White wrote that prison officials “have, with deliberate indifference, exposed him to levels of ETS [second hand smoke] that pose an unreasonable risk of serious damage to his future health“. This raised a valid claim under the Eighth Amendment.

The court noted that McKinney would have to prove  the scientific facts of the dangers of exposure to second-hand smoke,prove that community standards supported him, and that “it violates contemporary standards of decency“, as well as that the Prison Authorities acted with deliberate indifference.

This Brings us to 1994, and the single most critical piece in this issue.  Dee Farmer was transferred to a new men’s prison and housed with the general population.  She was repeatedly raped and beaten by the other inmates at the prison, and as a result contracted HIV.

She filed a lawsuit, and established a precedent. Farmer v. Brennan, 511 U.S. 825 (1994) is a rarity — a decision by the Supreme Court of the United States where the entire court ruled in the same way — 8 of them signing on to the majority opinion, two of those who were part of the majority opinion writing separate concurrences, and the final member also writing a concurrence.  On this Bench, at the time, were Scalia and Thomas.

SCOTUS had never addressed Prison Rape, ever.  The case involved a trans woman, as well, which is shocking.

The majority opinion of the Court agreed that it was the responsibility of prison officials to prevent prisoners from harming each other, to the point where prison officials who were “deliberately indifferent” were ruled liable under the Eighth Amendment.

Justice Blackmun also noted, in his concurring opinion, that intent is not magical:

Where a legislature refuses to fund a prison adequately, the resulting barbaric conditions should not be immune from constitutional scrutiny simply because no prison official acted culpably. [...] The responsibility for subminimal conditions in any prison inevitably is diffuse, and often borne at least in part, by the legislature. Yet, regardless of what state actor or institution caused the harm and with what intent, the experience of the inmate is the same. A punishment is simply no less cruel or unusual because its harm is unintended. In view of this obvious fact, there is no reason to believe that, in adopting the Eighth Amendment, the Framers intended to prohibit cruel and unusual punishments only when they were inflicted intentionally.

In the main opinion, Justice Souter wrote:

We [...] hold that a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it

This is a massively key and critical ruling for trans people, in no small part because of what has happened within the Medical field since then.

At this time, the World Health Organization, the American Medical Association, The American Psychiatric Association, The American Psychology Association, and several other major medical bodies (the American Academy of Family Physicians; the American Congress of Obstetricians and Gynecologists; the Endocrine Society; the National Association of Social Workers; and the World Professional Association for Transgender Health) have held that the appropriate treatment for trans people — described as hormone treatment and srs (but not FFS or breast augs for trans women, or genital reconstruction for trans men) — is medically necessary.

What that means is that this sort of treatment is essential to the well being of the patient, and that it has the same import as insulin for diabetes patients or dialysis for kidney failure.

The standard here is not “does it keep someone from dying”  — that is not how this prinicple works, but in their statements regarding the medical necessity of such, they do describe these treatments that way — as life saving, essential treatments.

Nor are they considered cosmetic or elective treatments, in the case of the surgery.  This is widely known.  Indeed, it is even part of the law, to some extent.

In 2003, Congress passed and President George Bush signed PREA — the Prison Rape Elimination Act (spurred on, in part, by the Farmer case).  PREA established a commission who were given the task of finding ways to address the issue, which is perceived to be so rampant, that it becomes the insult of choice for people speaking about someone going to prison.  “Don’t drop the soap!”

The rules the commission developed were released on May 17th, 2012.  Among those rules:

  • Screen inmates for risk of being sexually abused or sexually abusive, and use screening information to inform housing, bed, work, education and program assignments;
  • Incorporate unique vulnerabilities of lesbian, gay, bisexual, transgender, intersex and gender nonconforming inmates into training and screening protocols;
  • Restrict the use of solitary confinement as a means of protecting vulnerable inmates;

Additionally:

 According to a presidential memorandum issued today, other federal departments with confinement facilities will work with the attorney general to issue rules or procedures that will satisfy the requirements of PREA, in recognition of the fact that each federal agency is accountable for the operations of its own facilities and, therefore, is best positioned to determine how to implement federal laws and rules that govern its operations and the safety of persons in its custody.

That means that PREA includes military prisons.

You can see the announcement (including downloadable pdfs relating to different aspects) here.

Now, look back up a bit — see that part about the unique vulnerabilities?

That means that Prison Authorities need to be aware of the challenges faced by Trans people, and that does include such information since how many people can you think of who do this sort of training aren’t going to mention the medical necessity bit?

I know that I always speak to it.  I know that many Trans people work within the department of corrections in nearly every state.  I know that never before has so much ever appeared in mainstream news sources about trans people than is appearing currently.

The general public may not be aware of this — indeed, in many cases, the general public balks at it, in the same way that many trans people complain about how unfair it is.

The issue of the Public Paying for this care is really sorta silly. They already pay for it.  They have been paying for it since income taxes were a thing (and, technically, before that, as well). They pay for heart transplants, they pay for cancer treatments, they pay for incredibly expensive psychiatric drugs — yearly costs of which are higher than the cost for srs.  They pay for people on death row to receive life saving healthcare.  They pay for mass murderers to receive life saving health care. They have to.  It is part of the constitution of the United States of America. Even the two most conservative judges on the Supreme court, right now, agree on that.

The issue with Trans individuals being angry that trans prisoners *might* get it is a different issue.

Outside of Prisons, the issue is that Insurance Companies are jerks, and that a white paper written by a woman in 1981 and used by a now deceased senator led to changes in the Medicaid and Medicare systems that stripped coverage for trans people (and provided the basis for Insurance companies to do so). For reference, that’s Janice Raymond and Senator Jesse Helms. During the Reagan era Welfare reform efforts.

Excepting BCBS, nearly every major insurance provider in the nation offers some form of coverage for trans healthcare.  The issue is that employers must choose to include that coverage for their employees, and they have to specifically ask for it.

Now, in January 2014, under the Affordable Care Act, that ends.  Insurance companies are not allowed to discriminate in care against trans people.  It will take a fight, in court, no less, to ensure that surgery is covered, but the work has already begun there.

That’s why it is harder for us to get coverage outside of prison.  Our employers need to ask for that coverage, specifically.  It does, in fact, raise premiums for that health care for all employees. By very, very little (we are 1 in 250 people, and not all of us need the surgery, but most of us need hormones, which don’t raise the cost at all).

It will take likely two years for that to fully work throughout all of society — and that’s also why I’ve been such a huge booster of the affordable care act — I would have preferred a slightly different solution, but this one can work.

Oh, and, by the way, you can thank Mara Keisling and NCTE for that in more than a little part.

Now, for those of you who are out there, as you’ve read this, there is somehting you need to start doing, in every single chance you have to educate or inform or enlighten.

You need to make people aware of that concept of medical necessity.  They need to know that hormones and surgery are life saving treatments, that they are not cosmetic, and that they are not elective.

Cosmetic and elective have very specific meanings in medicine — and they are not the same as what you see in a dictionary (unless it is a medical dictionary, specifically).

They are absolutely a must, and more people need to know this, be aware of this, and understand this.  We really need for it to happen now, as well — note that whole issue of the Affordable care act thing coming down the pike.

But all of this is why Trans Prisoners should receive health care while in prison — it isn’t something one debates about, it isn’t something one argues with other people about.  This is fact. This is deeply established case law.  This is more settled than Roe V Wade, people.

FIELDS v. SMITH, 7th Circuit.  De’lonta v. Johnson, 4th Circuit. Kosilek v Spencer, 1st Circuit.

Now, this doesn’t mean that it is a slam dunk, either.  While Hormones can be obtained often, surgery is a always on a case by case basis, and each effort requires multiple returns to court — no matter what the status of the prisoner is.  It is simply not going to change.

So, realistically, what we are looking at is a situation where it will happen, but it will take a mighty long time.

There is also another issue here.  The level of care does not have to be the best.  SRS does not have to be done by the most experienced surgeon with the lowest rate of complications. Hormones can be generic.  This isn’t like you get your choice.

That’s what it means, though.  It means that trans people should, under the Constitution, get medically necessary care, regardless of the crimes they committed, and that they should be afforded dignity, again, regardless of the crimes they committed.

This is also why the Constitution is so important a document — those rights are there to protect those who would be denied such things by the tyranny of the majority.

Lastly, and placed here because you need to realize this, especially if you give a damn about trans people of color:  The US prison system houses more persons of color, and has a disproportionate number of trans women of color as a result.

Trans women of color like CeCe.  Trans women of color who were just trying to survive and avoid becoming another name read on a cold winter’s eve in November.  Trans women of color who have had their lives taken from them.

You want to bitch about how it isn’t fair, you better be ready for someone to call your ass on your privilege.

And it might just be me.