What You Need to Know About Transgender People in Custody

Basic etiquette and vocabulary tips

“Transgender” most basic definition is people who wish to transition from one gender to another or have already done so (clinical term "transsexual")

“Gender Identity Disorder” (GID) is the medical diagnosis.

Offensive terms to avoid: “tranny” “he-she” “it” “shemale”

Medical treatment in custody

Hormone therapy

Mental health counseling

Surgery

Hormone therapy

Emerging area of law: if a medical professional has diagnosed the hormone therapy as medically necessary, then inmate will win right to prescription hormones. Lynch v. Lewis, 2015 WL 1296235 (D. Md. 2015)

Same legal test as any other medical issue: The 8th Amendment requires treatment if it is a serious medical need to which the prison is being deliberately indifferent.

Mental health counseling

American Psychiatric Association American Psychological Association recommend individualized ongoing counseling for individuals diagnosed with Gender Identity Disorder.

Same legal test as any other mental health issue: The 8th Amendment requires treatment if there is a serious mental health need to which the prison is being deliberately indifferent.

Surgery

Emerging area of law. California federal court ruled earlier this year that surgery CAN be required following medical diagnosis. Issue mooted by Governor granting inmate parole. Norsworthy v. Beard, 2015 WL 1500971 (N.D. Cal. 2015).

Prior cases have rejected surgery requests.

Housing and PREA Concerns

US Department of Justice regulations require case-by-case housing determination for transgender inmates.

Need to balance Prison Rape Elimination Act vs 8th Amendment claim for restrictive segregation

Courts so far much more likely to defer to prison’s housing assignment decision.

Next Steps:

Review US Department of Justice publication “Lesbian, Gay, Bisexual, Transgender and Intersex Persons in Custodial Settings” (2013)

Review discrimination / harassment policies

Review screening protocols with medical and mental health staff

Learn more about transgender Nebraskans: www.aclunebraska.org/transvoices

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