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Court Gives VA Inmate Sex-Reassignment Right

(CN) - Virginia may have trampled the rights of a transgender bank robber who sought sex-reassignment surgery, the 4th Circuit ruled.

Ophelia Azriel De'lonta, whose birth name was Michael Stokes, has been diagnosed with gender identity disorder, a now-antiquated medical term once used to describe the stress felt by some transgender people.

The most recent Diagnostic and Statistical Manual of Mental Disorders has now replaced the phrase "identity disorder" with the less stigmatizing term "dysphoria."

De'lonta has said that she tried castrating herself in makeshift surgeries after repeated denials of her medical requests left her with "constant mental anguish."

She sued several officials with the Virginia Department of Corrections in 1999, about 16 years into a 73-year sentence, for violating Eighth Amendment protections against cruel and unusual punishment.

The parties settled the initial lawsuit in 2004 with a compromise providing her with psychological counseling, hormone therapy and permission to dress and live as a woman behind bars.

De'lonta said that these measures did not ease her "extreme distress," however, and she was hospitalized six years later after another self-castration attempt.

In 2011, she filed a new lawsuit stating that the continued denial of surgery unconstitutionally ignored her serious medical needs.

U.S. District Judge James Turk in Roanoke, Va., dismissed the suit, finding that the prison officials had denied "only her preferred therapy of surgery," and were not indifferent to De'lonta's care.

She appealed to the 4th Circuit with help from the DC Trans Coalition and the national and local branches of the American Civil Liberties Union.

A three-judge panel in Richmond found unanimously in her favor on Monday.

Virginia prisons cannot justify providing partial treatment for other medical needs, the opinion states.

"By analogy, imagine that prison officials prescribe a painkiller to an inmate who has suffered a serious injury from a fall, but that the inmate's symptoms, despite the medication, persist to the point that he now, by all objective measure, requires evaluation for surgery," Judge Albert Diaz wrote for the panel. "Would prison officials then be free to deny him consideration for surgery, immunized from constitutional suit by the fact they were giving him a painkiller?"

Though decision upholds the theoretical right for De'lonta to obtain the surgery, it stops short at ordering the prison to provide it to her.

"We wish to be clear about our holding," the decision states. "We hold only that De'lonta's Eighth Amendment claim is sufficiently plausible to survive screening pursuant to 28 U.S.C. § 1915A. We do not decide today the merits of De'lonta's claim. Nor, for that matter, do we mean to suggest what remedy De'lonta would be entitled to should she prevail. In our view, the answers to those questions have no bearing on whether De'lonta has stated a claim that appellees have been deliberately indifferent to her serious medical need by refusing to evaluate her for surgery, consistent with the standards of care."

Hayley Gorenberg, the deputy legal director for Lambda Legal, noted in an interview with Courthouse News how the decision mirrors one reached last year by the Chicago-based 7th Circuit in Fields v. Smith.

In that case, three transgender prisoners, represented by Lambda, succeeded in striking down a Wisconsin law that prohibited the medical treatment of transgender inmates.

"Because these cases arise on behalf of people who are incarcerated, people who are convicted of crimes, some people may find them unsympathetic," Gorenberg acknowledged. "They have not been sentenced to deprivation of medical care, and courts are recognizing that this is not a sentence that we can impose. ... That's not what we do in the U.S. prison system."

The Boston-based 1st Circuit plans to chime in on this issue soon as Massachusetts challenges a federal decision that ordered the state to provide surgery for another transgender inmate named Michelle Kosilek.

Kosilek, who was convicted of murder, also repeatedly attempted self-castration.

Gorenberg says that the phenomenon has led to a significant number of transgender prisoner deaths, but statistics are hard to come by because of underreporting.

When she returns to Judge Turk's courtroom on remand, De'lonta will likely argue that her self-castration attempts show that she has a serious medical need for surgery.

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