7th Circuit Strikes Down Wisconsin Sex Law

CHICAGO (CN) - The 7th Circuit struck down Wisconsin's Inmate Sex Change Prevention Act, which bans publicly funded hormone therapy for transsexual inmates, finding that denying the treatment constitutes torture.

Three male-to-female transsexual inmates sued in 2006 after prison officials began reducing their hormone treatments in accordance with Wisconsin's newly enacted Inmate Sex Change Prevention Act.

The law prohibited use of state funds to "facilitate the provision of hormonal therapy or sexual reassignment surgery."

It also applied to people who had come into prison diagnosed with gender identity disorder and had been receiving treatment.

A federal court granted a preliminary injunction, barring the state from continuing to withdraw hormone therapy from the plaintiffs, and ordering them returned to previous levels.

U.S. District Judge Charles Clevert Jr. went on to strike down the law, finding that removing the hormones constituted cruel and unusual punishment, in violation of the Eighth Amendment.

At trial, experts testified that when hormones are withdrawn from a patient, severe physical and psychological complications can arise, including muscle wasting, high blood pressure and neurological complications.

On appeal, Wisconsin argued that alternative means of treatment such as anti-depressant medications and psychotherapy were available to inmates in need. But that may not help inmates diagnosed with gender identity disorder, the court wrote.

Had the Legislature passed a law saying, "inmates with cancer must be treated only with therapy and painkillers, this court would have no trouble concluding that the law was unconstitutional."

The 7th Circuit also rejected the argument that changes in secondary sex characteristics from hormone therapy could increase security risks for inmates. "Transgender inmates may be targets for violence even without hormones," wrote Illinois Judge Joan Gottschall, sitting in by designation.

The 7th Circuit has heard similar cases before. Almost 25 years ago, the Circuit reversed dismissal of a complaint which alleged that the plaintiff, who had been taking hormones, was denied treatment upon entering prison.

"The court held that transsexualism was a serious medical need and that prison officials acted with deliberate indifference in refusing all treatment," Gottschall summarized.

In 1997, the court ruled against a transsexual because she did not present any evidence to rebut an expert witness who had testified that she did not suffer from gender dysphoria.

"That court commented, again in dicta, that the Eighth Amendment does not require the provision of 'esoteric' treatments like hormone therapy and sexual reassignment surgery which are 'protracted and expensive' and not generally available for those who are not affluent. A prison would be required to provide some treatment for gender dysphoria, but not necessarily 'curative' treatment because the Eighth Amendment requires only minimum health care for prison inmates."

Appearing to change direction from that 1997 ruling, the court ruled on Friday that that Wisconsin's constitutional violation stems from "removing 'even the consideration of hormones or surgery.'"

Whether a law narrowly tailored to prevent only sexual reassignment surgery would pass constitutional muster remains unseen, as the plaintiffs could not argue the issue on appeal.

Wisconsin officials have not said if they will seek further litigation.

In 2004, the Wisconsin Department of Corrections paid $2,300 for hormones for two inmates. Also that year the department paid $2.5 million to provide inmates with quentiapine, an antipsychotic that costs more than $2,500 per inmate per year.

Plaintiffs in this case are Andrea Fields, Matthew "Jessica" Davidson, and Vankemah Moaton.

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