Department of Justice Declares Prison’s Denial of Trans Medical Services “Unconstitutional”

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By Leela Ginelle, PQ Monthly

The Department of Justice intervened last Friday on behalf of transgender woman Ashley Diamond (pictured above) in her lawsuit against the Georgia Department of Corrections. Diamond’s suit alleges that, during the three years she’s been incarcerated, the GDC had refused all medical treatment for her gender dysphoria.

Her dysphoria has caused her acute distress, Diamond says, resulting in several attempts on her part to self-castrate, cut off her penis, and murder herself. She began her lawsuit against the GDC in February.

The DOJ’s action came via a “statement of interest,” which offers guidance to the district court on how it should rule. Addressing Diamond’s claim, it wrote Georgia’s failure to treat an inmate with gender dysphoria “constitutes cruel and unusual punishment under the Eighth Amendment.”

Diamond’s suit highlights the dire conditions faced by transgender inmates in U.S. prisons. As the National Center for Lesbian Rights notes, trans people “who have not had genital surgery are generally classified according to their (assigned gender) for purposes of prison housing, regardless of how long they may have lived as (their affirmed) gender, and regardless of how much other medical treatment they may have undergone–a situation which puts male-to-female transsexual women at great risk of sexual violence.”

This de facto misgendering–a denial of trans prisoners’ basic identities–creates an atmosphere of ambient danger and harassment for trans inmates. As the National Center for Transgender Equality (NCTE) writes, “Being transgender or gender non-conforming in an American jail or prison often means daily humiliation, physical and sexual abuse, and fear of reprisals for using the legal remedies to address underlying problems. Many transgender people are placed in solitary confinement for months or years just because of who they are.”

This is especially troubling, because trans people are more likely than cis people to experience incarceration. As the NCTE noted in 2011, nearly one in six transgender people, and more than one in five transgender women have been imprisoned during their lives. This number mushrooms regarding African-American trans people, 47% of whom have been incarcerated.

Marginalization in society, stemming from familial rejection, high unemployment, housing discrimination, and harassment and discrimination practiced by social service providers, leave trans people at a higher risk for arrest and imprisonment. As the Transgender Law Center notes, “Some transgender people engage in sex work, drug sales or other aspects of the street economy in order to survive . . . Some transgender people have also been arrested simply because they are transgender because of prejudice on the part of a police officer who believes that all transgender people are engaged in illegal work.”

While that latter statement might sound too awful to be true, it’s the basis of an ongoing high-profile case in Arizona, involving African-American trans woman Monica Jones, who was arrested for “manifesting prostitution,” for, as she put it, “walking while trans.” Jones, whose case gained national attention when trans actress Laverne Cox began advocating on her behalf, was initially convicted. An appeals court has thrown out the original verdict, but not the charges, meaning she may face trial once more.
Monica_final-INSTAshley Diamond has been denied treatment because of Georgia’s controversial “freeze-frame” policy, which prohibits hormone therapy for gender dysphoria if prisoners were not identified as transgender and referred to treatment upon their initial prison intake. In its statement, the Department of Justice minced no words in condemning this approach, writing, “Freeze-frame policies and other policies that apply blanket prohibitions to such treatment are facially unconstitutional because they fail to provide individualized assessment and treatment of a serious medical need.”

The DOJ further noted that similar policies have been stricken in Wisconsin and New York. Initial hearings in DIamond’s case are scheduled for April 13.
BlogTail_Leela Ginelle