Federal Judge Rules Certain Gender Dysphoric Prisoners Have Constitutional Right to Sex Reassignment Surgery

On Tuesday, in the Western District of Wisconsin, Judge James D. Peterson granted a prisoner with severe gender dysphoria an injunction mandating the Wisconsin Department of Corrections (WDOC) provide the prisoner with sex-reassignment surgery (SRS). The court ruled that prior failures of the WDOC to provide the surgery violated the prisoner’s Eighth Amendment protections. 

The opinion explained that the prisoner was born biologically male, but now identifies as female. The prisoner, who remains in jail until 2041, received hormone replacement therapy (HRT) to treat gender dysphoria, but still claimed to be in extreme anguish due to the therapy providing limited relief. Previously, despite the alleged suffering of the prisoner, the 7th Circuit ruled against the plaintiff, holding that the WDOC could not be injunctively ordered to provide SRS as current medical treatment standards failed to recommend SRS as being the best treatment for gender dysphoric prisoners; “real life experience” living as the desired gender outside prison was typically mandated for a year prior to any physician permitting SRS.

The district judge ruled that this may have been the standard of care at the time of the Seventh Circuit ruling, but no longer was the generally accepted standard of care (GASOC) for treating gender-dysphoric prisoners. The court explained that the new guidelines for when prisons should allow prisoners to receive SRS allow for the 12 months of needed “real-life experience” prior to surgery to be accrued by a prisoner while incarcerated so long as the prisoner is allowed to embrace “typical gender roles (of the identifying gender, not the gender at birth) to the extent possible” given prison conditions. Furthermore, the GASOC also may allow for a prisoner exception to the “real life experience” requirement, as medical experts now question “whether the real-life experience requirement has much practical or prognostic relevance for inmates, particularly for inmates who, like (the plaintiff), have many years of incarceration left to serve.” 

The court concluded by granting the prisoner an injunction to receive SRS as soon as WDOC found an appropriate surgeon who approved SRS for the plaintiff. Judge Peterson held that he was explicitly excluding the “real-life experience” requirement for the plaintiff, given the aforementioned GASOC allowing for such an exception and the recommendations from prison medical consultants that stated that only SRS would alleviate the suffering of the plaintiff due to gender dysphoria, as the prisoner had already maximized the benefit of even HRT by 2014. 

The court ended by noting that the Eighth Amendment does not require a prison official to provide a specific treatment for an ailment of a prisoner when multiple options are available. However, when — as here — the prisoner only possesses one option for medical treatment, the treatment option must be provided by the prison, lest the prison wish to violate the Eighth Amendment’s prohibition on the infliction of “cruel and unusual punishments” by being deliberately indifferent to the medical care of its prisoners.

The plaintiff is represented by Husch Blackwell.