“Deliberate Indifference:” Protecting the Rights of Transgender Prisoners

Feminist theorists have long argued to distinguish between physical and social perceptions of sex and gender. Most theorists agree that gender is expressed by “masculine” or “feminine” social choices, from clothing to hairstyle, while sex is characterized by the presentation of either male or female sex organs. Both gender and sex are socially constructed, and contingent upon culture, politics, and history. While many different models of sex differentiation appear throughout history, such as the “one sex model” in Ancient Greece or the identification of three sexes during the Byzantine empire, Western patriarchal societies adopted a binary system of contrary sexes: male and female (Oudshoorn 6). Aligned with this binary system was the idea that the “essence” of sex was not confined to the differences in reproductive organs, but also extended to more nuanced behaviors. Consequently, the differences between sex and gender today are often conflated. Essential notions of gender assume that male/masculine and female/feminine are mutually exclusive. However, this binary system of gender fails to take into account transgender people, whose gender identity does not align with their perceived sex.

The U.S. Department of Corrections’ policies exacerbate the flaws of binary gender classifications, especially when identifying, handling, and treating transgender prisoners. Since 1870, prisons in the United States have been divided by sex, assigning male and female prisoners to corresponding prison facilities according to genitalia (Rangi). However, the genitalia-based policy of prison assignment fails to account for the increasing number of prisoners who do not fit the male or female sex norm. Preoperative transgender prisoners, or prisoners who have not received genital reconstruction surgery to align with the gender they express, are particularly vulnerable to abuse because of genitalia-based prison policy. Because preoperative transgender prisoners continue to find themselves incarcerated according to perceived biological sex rather than gender expression, they are targets of discrimination, sexual violence, and neglect (Faithful 5). In fighting abuse under the prison system, many transgender prisoners have used the Eighth Amendment to argue that the Department of Corrections has a responsibility to protect the life and dignity of all its inmates. While the idea of gender is becoming more fluid, it is clear that the binary system of sex differentiation in prison continues to fail transgender people, infringing upon their constitutional protections against “cruel and unusual punishment.”

The American Psychological Association first documented gender dysphoria, also known as gender identity disorder (GID), in 1980 (“History of Transgenderism in the United States”). However, as was the case for the pathology of homosexuality, gender dysphoria is culturally associated with deviant behavior and mental instability. Consequently, transgender prisoners commonly face neglect and discrimination when seeking both general and transgender-specific medical care. In one of the first court cases to touch on this issue, Meriwether v. Faulkner (1987), inmate Lavarita D. Meriwether challenged the available medical care and conditions of confinement in Indiana state prisons.

The preoperative transgender woman in this case received years of estrogen therapy prior to her incarceration in 1982; however, upon incarceration, she was denied all forms of medical care and segregated from the rest of the prison population. Moreover, the prison physician, Dr. Choi, stated that “as long as [Meriwether] was in the Department of Corrections [she] would never receive the [estrogen] medication.” Meriwether argued that as a transgender prisoner, she was guaranteed some sort of medical care under the Eighth Amendment. Although gender dysphoria was recognized as a medical disorder, the District Court maintained the opinion that Meriwether’s condition was not a “serious medical need.” The Court dismissed her case, asserting that her demand for hormone therapy was in order to “maintain a physical appearance and lifestyle… to satisfy [her] psychological belief.” Upon appeal, the Court reversed this decision, recognized gender dysphoria as “a very complex medical and psychological problem,” and found that “while [it could] and [would] not prescribe any overall plan of treatment,” Meriwether was entitled to “some kind of medical care” (Meriwether v. Faulkner).

Paradoxically, the decision in Meriwether both limits and extends the rights guaranteed by the Eighth Amendment. It was in many ways a progressive decision, recognizing the state’s responsibility to provide medical treatment to those in its custody, including transgender people. However, while the decision in Meriwether set a precedent to guarantee that prisoners receive access to general medical care, it does not specify that Indiana provides particular medical services, such as hormone therapy. Consequently, Departments of Corrections has denied the prescription of hormone therapy for prisoners with gender dysphoria, as was the case in Fields v. Smith (2011) (“Constitutional Law–Eighth Amendment”). Additionally, the Meriwether decision upholds the constitutionality of indefinite, solitary confinement for transgender prisoners, arguing that because the conditions of confinement were not “qualitatively different from the punishment characteristically suffered by a convict” and were administered to protect the inmate, it was not a violation of Meriwether’s Fourteenth Amendment right to due process (Farmer v. Brennan). However, regardless of motive, indefinite confinement insinuates that transgender prisoners are not entitled to the same liberties as other inmates, lumping transgender prisoners among the more dangerous, disruptive inmates who are also placed in confinement.

While Meriwether v. Faulkner was both restrictive and progressive in its extension of liberties to prisoners, Farmer v. Brennan (1994) unequivocally affirmed transgender prisoners’ right to protection against “cruel and unusual punishment” guaranteed by the Eighth Amendment. Despite the fact that preoperative transgender male to female prisoner Dee Farmer “project[ed] feminine characteristics,” such as silicone breasts implants and received estrogen therapy, a botched testicle-removal surgery left her classified as “biologically male.” Within two weeks of her relocation to USP-Terre Haute, a maximum-security prison for male offenders, Farmer was violently raped. Farmer appealed to the U.S. Supreme Court and said prison officials relocated her despite the knowledge that “(1) the penitentiary had a history of inmate assaults” and as a transgender woman she “would be particularly vulnerable to sexual attack.” Additionally, Farmer argued that “the officials’ conduct amounted to a deliberately indifferent failure to protect [her] safety,” violating her rights under the cruel and unusual punishments clause of the Eighth Amendment (Farmer v. Brennan).

The Court unanimously agreed that inhumane prison conditions violated a prisoner’s Eighth Amendment rights. As the first Supreme Court case to specifically address sexual assault in prison, Justice Souter wrote in the opinion that “[b]eing violently assaulted in prison” was “not part of the penalty that criminal offenders pay for their offenses against society.” The decision in Farmer was particularly groundbreaking because it redefined the limits of the Eighth Amendment by addressing the standard of deliberate indifference previously established in Estelle v. Gamble (1976). Despite the fact that the judges agreed the District Court placed too much responsibility on the inmate to report abuse, the Supreme Court concluded that a prison official cannot be found liable under the deliberate indifference clause of the Eighth Amendment unless “the official knows of and disregards an excessive risk to inmate health or safety.” Additionally, the official must “both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Thus, Justice Souter argued that negligence was not enough to constitute “deliberate indifference,” as Farmer asserted (Rifkin 273).

The narrow application of the “deliberate indifference” test and its inherent obscurity marginalize the significant role gender expression plays in prison violence. Essentially, prison officials can only be held accountable if they have sufficient evidence of an inmate’s gender identification and have an adequate knowledge of the ways in which gender expression may put certain inmates at increased risk of harm. By absolving prison officials of liability for their ignorance, the precedent set in Farmer allows ideas of violent masculinity and queer-phobia to permeate prison culture. At the same time, while Farmer does not offer any specific solutions to protect and affirm the dignity of transgender inmates, it undoubtedly emphasizes the state’s responsibility to protect and care for its inmates.

The passage of Wisconsin’s Inmate Sex Change Prevention Act in 2005 presented a new challenge to the precedents set in both Meriwether and Farmer. Although transgender inmates diagnosed with gender identity disorder previously received transgender-specific medical care, Wisconsin Act 105 “prohibited ‘the payment of any funds or the use of any resources of [the] state… to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery’” (U.S. Dept. of Justice). In Fields v. Smith (2010), three transgender male-to-female prisoners, who were diagnosed with GID and had received hormone therapy during their incarceration, directly challenged the Wisconsin Act. The Department of Corrections prohibits inmates from accessing medical care outside of the prison facility; consequently, the women experienced various adverse withdrawal symptoms after the “abrupt termination” of their treatment. The inmates sued several prison officials, arguing that termination of their treatment violated the prohibition of cruel and unusual punishment under the Eighth Amendment and the right to equal protection under the Fourteenth Amendment (Fields v. Smith).

The District Court, along with the Court of Appeals, ruled in favor of the plaintiffs, and found the Wisconsin Act a violation of both the Eighth and Fourteenth Amendments. To establish liability under the Eighth Amendment, a prisoner must show: “1) that his medical need was objectively serious; and 2) that the state official acted with deliberate indifference to the prisoner’s health or safety” as constructed by Farmer v. Brennan and Estelle v. Gamble. Chief Judge Clevert, Jr. concurred that the plaintiffs had met this burden of proof, stating that the enforcement of the Wisconsin Act “prevent[ed] DOC doctors from providing the treatment that they have determined is medically necessary to treat the plaintiffs’ serious conditions” (Fields v. Smith). Additionally, the statute disproportionately discriminated against transgender individuals and had no relevance to other inmates. Moreover, the Court held that the statute violated the Fourteenth Amendment right to equal protection because inmates with GID who had been prescribed hormone therapy received different treatment from other inmates with serious medical needs and such treatment “bore no rational relationship to a legitimate state interest” (Fields v. Smith).

Whereas prior court cases such as Meriwether and Farmer addressed violations of the Constitution by prison personnel, Fields represents a progression forward in “deliberate indifference” legal doctrine in its invalidation of a state statute. The District Court not only addresses the gaps established in Meriwether, which left inmates with GID vulnerable to termination of transgender-specific care, but also recognizes the necessity of transgender-specific treatment (“Constitutional Law–Eighth Amendment”). However, while the ruling itself is a step forward in protecting the constitutional rights of transgender prisoners, the science on which it is founded is inherently flawed. The United States Department of Justice maintains that inmates who have undergone treatment for GID “will be maintained only at the level of change which existed when they were incarcerated in the Bureau” (U.S. Department of Justice). Although the Department of Justice guarantees that preoperative transgender prisoners continue to receive transgender-specific care, it leaves many in a state of gender limbo, not quite transitioned from one gender to another.

As progressive as these cases involving the Eighth Amendment liberties of transgender inmates have become, none address the limitations of binary gender identification and classification in the prison system. Moreover, some scholars argue that “just as culpable, and possibly more so, are the gendered expectations that this segregation creates” (Rangi). Indeed, court cases involving the subjugation of transgender prisoners almost exclusively involve transgender male-to-female inmates assigned to male prison facilities. The abuse and assault of transgender women in prison exemplifies the social stratification of the sexes, which validates the expression of masculinity through violence. In a patriarchal society, men who appear to relinquish their masculine privilege threaten to undermine the hierarchy of power that favors the male sex. Contrary to popular belief, men’s lives are structured around relationships of power between other men, not women; as such, displays of masculinity have less to do with impressing members of the opposite sex and more to do with emasculating members of their own. This phenomenon is validated by the violence and abuse male-to-female transgender women face within a male-populated prison. While it is apparent that the decisions in Meriwether, Farmer, and Fields represent an evolution in legal and societal understanding of gender fluidity, prisoners will continue to suffer under the binary system of gender classifications until cultural conflations of sex and gender are remedied.