Sex Change Treatments - Every Prisoner's Right?

 

 

Ruling by the Fifth Circuit Court of Appeals:

Prisoners in Texas, Louisiana, and Mississippi generally have a constitutional right to taxpayer-funded sex change treatment.

By Marc Levin

September 13, 2005

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Several weeks ago the U.S. Fifth Circuit Court of Appeals in the decision enclosed below ruled for the first time that prisoners in Texas, Louisiana, and Mississippi generally have a constitutional right to taxpayer-funded sex change treatment, but that this particular inmate had not made his case. 

The below opinion is a per curiam (unanimous joint opinion) by Judges Stewart, Barksdale, and Clement (who is reportedly being considered for the current U.S. Supreme Court vacancy). 

I should note that the Court claims to rely on precedents from other circuits, although they are not binding on the Fifth Circuit, and that because this is a per curiam, it is not known who actually authored the opinion.

Being humane requires that we give prisoners basic health care since they cannot earn a living and pay for it themselves, but the Court here concludes that the 8th Amendment guarantee against cruel and unusual punishment provides inmates with a constitutional right to sex change treatment -- the availability, nature, and extent of which the Court says must ultimately be determined on a case by case basis by federal judges.  However, such treatment is not covered under Medicaid or Medicare (if nothing else a statute of limitations so to speak!).

Its interesting how they cited the disruption it would cause in prison in this specific case as one factor in their decision.  I suppose this is a euphemism for saying this person would be too popular among other inmates after the operation.

Perhaps there is a far greater need for prison programs that foster personal transformation rather than sexual transformation.  It will be interesting to see if this case opens the floodgates to more such litigation.

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Praylor v. Texas Dep't of Criminal Justice

(5th Cir. 08/26/2005)
Per curiam.
04-50854

Summary Calendar
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

Joshua Praylor, Texas prisoner # 1128305, appeals the denial of his civil rights complaint against numerous officials of the Texas Department of Criminal Justice (TDCJ) and the University of Texas and Texas Tech University health care systems (hereinafter, TDCJ). See 28 U.S.C. § 1915(e)(2). Praylor argues that the TDCJ's denial of his request for hormone therapy to treat his transsexualism constitutes cruel and unusual punishment under the Eighth Amendment. Praylor has filed an injunction seeking to instruct the TDCJ to provide him with hormone therapy and brassieres. His motion is DENIED.

A dismissal for failure to state a claim under § 1915(e)(2)(B)(ii) is reviewed under the same de novo standard of review applicable to dismissals made pursuant to FED. R. CIV. P. 12(b)(6). Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). The Cruel and Unusual Punishment Clause of the Eighth Amendment protects an inmate from improper medical care, but only if the care is "sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Although this circuit has not addressed the issue of providing hormone treatment to transsexual inmates, we will follow those circuits that have determined transsexualism to be a serious medical need raising Eighth Amendment considerations. See Cuoco v. Moritsugu, 222 F.3d 99, 103 (2d Cir. 2000); White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987); Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986). Likewise, this court recognizes that while some method of treatment of inmate transsexuals is required, such inmates do not have a constitutional right to hormone therapy. Rather, the prison facility must afford the transsexual inmate some form of treatment based upon the specific circumstances of each case. (emphasis added by T4T)

In Praylor's case, the record reflects that he did not request any form of treatment other than hormone therapy. Testimony from the medical director at the TDCJ revealed that the TDCJ had a policy for treating transsexuals, but that Praylor did not qualify for hormone therapy because of the length of his term and the prison's inability to perform a sex change operation, the lack of medical necessity for the hormone, and the disruption to the all-male prison. Cf. De'Lonta v. Angelone, 330 F.3d 630, 635 (4th Cir. 2003). Moreover, the director testified that Praylor had been evaluated on two occasions and denied eligibility for hormone treatment and that the TDCJ did provide mental health screening as part of its process for evaluating transsexuals. See Supre, 792 F.2d at 963. Accordingly, based upon the instant record and circumstances of Praylor's complaint, the denial of his specific request for hormone therapy does not constitute deliberate indifference. See Meriwether, 821 F.2d at 413; Supre, 792 F.2d at 963.

AFFIRMED; MOTION FOR INJUNCTION DENIED.

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Marc A. Levin, an Austin, TX attorney and former law clerk on the U.S. Court of Appeals for the Fifth Circuit, is President of the American Freedom Center (www.americanfreedom.org), a conservative policy institute, and Director for the Texas Public Policy Foundation Center for Effective Justice.

Levin's op-eds have appeared in The Wall Street Journal, National Law Journal, USA Today, Jerusalem Post, Philadelphia Inquirer, Atlanta Journal-Constitution, San Francisco Chronicle, The Washington Times, Dallas Morning News, and Houston Chronicle.