Sex Reassignment Surgery a Constitutional Right for Convicts

Is costly sex-reassignment surgery a constitutional right for incarcerated felons who label themselves transgender? A federal appellate court seems to think so, ruling last week that one state trampled on an inmate’s rights for refusing to pay for the procedure, which costs around $20,000.  

The case comes out of Virginia where the United States Court of Appeals for the Fourth Circuit decided that denying a transgender bank robber’s sex-reassignment surgery violates the constitution’s Eighth Amendment protections against cruel and unusual punishment. A federal judge in Roanoke denied the argument finding that hormone therapy and psychological counseling provided by the prison are sufficient accommodations for a transgender prisoner. Officials also allow the convict to dress and live as a woman.

But the felon (Michael Stokes), who is serving a 73-year sentence, appealed with the help of leftist civil rights groups. In the appeal Stokes asserts that the accommodations made by the prison did not ease his “extreme distress,” which includes several self-castration attempts. Denying the surgery unconstitutionally ignores his serious medical needs, the bank robber claims in his complaint.

The appellate court agreed, writing in its decision that Virginia prisons can’t justify providing partial treatment for other medical needs, so why this one?  “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,” the opinion says.  “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?”

In recent years courts throughout the nation have ruled in favor of transgender inmates who have sued to get hormone treatments, laser hair removal and makeup while serving their sentence. As a result states annually spend thousands of taxpayer dollars to provide these convicts, who claim to be diagnosed with “gender identity disorder,” with the benefits.

For instance, Massachusetts pays for the hormone shots of at least four inmates diagnosed with gender identity disorder. Colorado pays for the female hormone treatment of a convicted child molester who is suing the state to provide him with a gender specialist in hopes that the specialist determines he needs the costly sex-change operation.   

For a couple of years Wisconsin was the only state with a law prohibiting the Department of Corrections from using tax dollars for transgender inmates’ hormone therapy or sex reassignment surgery. The measure was legally challenged and overturned by a federal court in 2010, however. The Clinton-appointed judge who heard the case ruled that denying convicted male felons hormones that help them look like women violates both the Eighth and Fourteenth amendments.