LGBTQ+ people are disproportionately represented in the U.S. prison system. According to the Sentencing Project's 2022 report, LGBTQ adults are incarcerated at three times the rate of the general population. Among transgender individuals, one in six have been incarcerated at some point in their lives, with nearly half of these being Black transgender people.
While incarcerated, transgender individuals in particular face significant challenges: most are placed in facilities that align with their sex assigned at birth rather than their gender identity, which can lead to long periods in solitary confinement and frequent physical and sexual violence from other inmates and prison staff.
Transgender incarcerated people also face an additional barrier in receiving gender-affirming medical treatment to alleviate symptoms of gender dysphoria. The DSM-V defines gender dysphoria as "a marked incongruence between one's experienced/expressed gender and assigned gender." Without access to gender-affirming care such as hormone therapy or gender confirmation surgery, many transgender individuals experience extreme psychological distress, increased risk of self-harm, and suicidal tendencies from the disconnect between their gender identity and sex assigned at birth.
Whether transgender people are entitled to receive such gender-affirming care while incarcerated has increasingly become a point of contention. The Eighth Amendment of the U.S. Constitution prohibits cruel and unusual punishment, and prison officials' deliberate ignoring or indifference to an inmate's serious medical needs constitutes a violation of their constitutional rights. Recognizing that gender dysphoria is a serious medical need that requires treatment, the Federal Bureau of Prisons' guidelines for treatment of transgender incarcerated people provides for hormone therapy, mental health services, and, in some cases, gender confirmation surgery.
State jails and prisons are more varied, resulting in inconsistent access to necessary medical treatment for transgender incarcerated people. Some states have adopted policies ensuring comprehensive care for transgender incarcerated people, while other states have either outdated or unnecessarily restrictive policies, or no policies at all.1 For example, according to a February 2024 report by the Vera Institute of Justice, "[a]mong the 207 respondents ... who requested medication to support gender transition at some point in prison, only 47 percent received it. A further 21 percent indicated that prison health care providers denied the medication request, and 32 percent mentioned another reason for denial." This patchwork of policies has led to legal challenges requiring courts to determine whether the Eighth amendment requires prisons to provide gender-affirming care to incarcerated people experiencing gender dysphoria, with mixed results.
For example, the First Circuit in Kosilek v. Spencer and the Ninth Circuit in Edmo v. Corizon concluded that prisons must evaluate the necessity of gender confirmation surgery on a case-by-case basis, as it is a medical necessity under certain conditions. But in Gibson v. Collier, the Fifth Circuit upheld the constitutionality of a categorical ban against gender confirmation surgery for incarcerated people, thus deeming the treatment never medically necessary, despite a person's individual circumstances and medical needs. This lack of standardization is fundamentally unfair: while transgender incarcerated people in some states have access to gender-affirming care, others are left to suffer the most severe consequences of untreated gender dysphoria in the harsh conditions of the prison setting.
Despite these varied outcomes, the bottom line is that prisons have a legal obligation to provide medically necessary treatment, and gender dysphoria requires such treatment. Ensuring that transgender incarcerated people receive necessary gender-affirming care is not only a matter of legal compliance but also a fundamental human rights issue.
If you or someone you know is facing these issues, consider taking the following steps:
Request an evaluation: Ensure that prison medical staff conduct an evaluation for gender dysphoria as soon as possible.
Request medical treatment: Advocate for medical treatment, which may include hormone therapy, counseling, and gender confirming surgery.
Document everything: Keep detailed records of all requests for medical care and the responses received, as well as any associated grievance complaints. This documentation can be crucial in legal challenges.
Pursue legal representation: Brown Goldstein & Levy is proud to be at the forefront of efforts to ensure that prisons comply with their legal obligations to provide medically necessary gender-affirming care to incarcerated people experiencing gender dysphoria. We are committed to fighting on behalf of transgender and other LGBTQ+ individuals in the prison system and ensuring that they maintain their dignity and receive the care they deserve and are entitled to. Contact BGL today to discuss your case and how we may be able to support you.
Footnote
1. See Elliot Oberholtzer, The dismal state of transgender incarceration policies, Prison Policy Initiative (November 8, 2017), https://www.prisonpolicy.org/blog/2017/11/08/transgender/.
*This blog post was primarily authored by BGL summer associate, Christina B. Williams. At the time of publication, Christina is a rising 3L at Harvard Law School with a deep interest in civil rights litigation and public interest law. At HLS. She serves as a student advocate for the Harvard Tenant Advocacy Project and Harvard Defenders. She is also an editor for the Harvard Civil Rights-Civil Liberties Law Review. In Summer 2023, she interned with the Abolitionist Law Center and worked on issues related to conditions of confinement and wrongful convictions.
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