The International Foundation for Gender Education

Originally appeared in Transgender Tapestry #097, Spring 2002.



by Gianna E. Israel



Copyright 2001 by Gianna E. Israel

This article was reviewed and edited by Barbara Anderson, Ph.D., Dee Deidre Farmer, Attorney Ann Grogan, and Sheila Kirk, M.D.



Not surprisingly, many people believe those who are imprisoned deserve what they get. Among law-abiding citizens, a prevailing attitude exists that wrongdoers must be punished. However, what becomes lost to moral argument is the pattern of victimization experienced by transsexual and other transgendered inmates?treatment which has no place in a progressive, ethical society.
Of all the hardships to befall transsexual persons, few compare to imprisonment. Male-to-female transsexuals are in a unique situation. Born with male genitalia, they have a female gender identity, and many have lived as women for years?yet they are routinely incarcerated in mens? prisons. They are at special risk because they lack a masculine gender identity; their placement within a highly aggressive segment of the population (male inmates) sets them up for victimization. Transsexual women experience the worst of the worst treatment at the hands of prison officials and prisoners. Typically, the manner in which they are treated has no correctional justification or penalogical function.



In California, Hawaii, and other states, some prisons house transsexual inmates with gay males, separate from the general male inmate population. The only other protective option is to place typically non-violent MTF persons in 24-hour-a-day custody in security housing units (SHUs) designed for the prison?s most violent and dangerous inmates. However, in SHUs, transsexuals usually don?t have access to rehabilitative programs available to inmates within the general population. Most prisons do not address housing and treatment issues of transsexual inmates, and some go to great lengths to avoid providing treatment.



What does this mean in lay terms? Transsexual inmates are more likely than any other inmate group to be assaulted or raped by correctional officers and inmates. They are the least likely to receive medical or psychiatric care for grave illnesses. They are frequently denied access to rehabilitative programs available to other prisoners. They live in a prison- within-a-prison, often without the basic human rights afforded to other inmates. Only one other group?inmates with HIV/AIDS?experiences a comparable violation of their human rights.



Deliberate Indifference



The term deliberate indifference means just what it says ?a wanton disregard or informed failure to provide something which is required, such as medical treatment. Within the context of combined medical and legal issues, our definition becomes more focused. It means a physician or responsible party has failed to provide medical care to a patient with an established medical need and has withheld treatment, knowing that his or her inaction will result in a worsening of the patient?s condition and may cause significant damage. In a legal context, deliberate indifference also means that a professional recognizes that a failure to provide medical treatment is breaking the law by violating a person?s civil rights.



When examining laws and rights pertaining to the medical treatment of transsexuals and other inmates in the United States, we look primarily to federal law, since most prisons operated by the states and the federal government fall within federal legal jurisdiction. The Eighth Amendment of the U.S. Constitution states that prisoners shall be free from cruel and unusual punishment. The phrase deliberate indifference often applies to this civil right. Based on information I have gathered, I find it reasonable to conclude that many prisons and courts are deliberately indifferent to the medical needs of transsexual patients.



Courts are becoming more interested in issues of deliberate indifference, partially because organizations like Amnesty International have raised charges of human rights abuses in the United States for the condition of its prisons. Article 5 of the United Nations? Universal Declaration of Human Rights states ?No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.? Hopefully, those persons involved in the treatment decisions of inmates will see that a repeated failure to provide medical treatment to transsexuals constitutes civil and human rights violations.





Treatment Recommendations



Prison officials have access to recommendations for the care of transsexual inmates. The Standards of Care of the Harry Benjamin International Gender Dysphoria Association (HBIGDA) state:



Patients who are receiving hormonal treatment as part of a medically monitored program of gender transition should continue to receive such treatment while incarcerated to prevent emotional lability, reversibility of physical effects, and the sense of desperation that may include depression and suicidality.

?HBIGDA, 5th Ver. Pg. 35



The Standards of Care also include a policy on harm reduction, in which persons who are at risk can receive hormones without the usual requirements.



Israel & Tarver (1998) concluded that the administration of sex hormones is medically necessary in treating transsexuals. In regard to inmate issues, they wrote:



The symptoms and behaviors accompanying both gender dysphoria and hormone withdrawal in a previously established transgender individual are frequently perceived by prison staff as a manipulative gesture on their part. In fact, malingering and misrepresentation by transgender persons is rare.



Israel & Tarver recommend a three-month assessment period during which physicians can determine an individual?s appropriateness for hormone administration. This would include ?those who have in the preceding three months consistently expressed interest in the permanent physical changes brought on by hormones, to bring the body in line with an intended masculine, feminine or androgynous appearance? (1998, 71).





Denial of Treatment: The Consequences



The consequences of denial of treatment can be serious. Transsexual women tell of feeling fear every minute, day and night, when placement and treatment issues are not addressed by prison officials. Accounts include descriptions of constant desire to commit suicide and unremitting depression as transsexual womens? bodies remain incongruent or deteriorate into incongruence as hormones are denied. Letters also reveal transsexual inmates who for years have maintained women?s names and identities struggling to maintain a rudimentary form of female presentation.



Standards of care exist in order to insure that all patients, irrespective of their legal standing, receive treatment for medical and mental conditions which if left untreated would have a permanent, devastating impact, often causing a severe worsening of their conditions. Standards of care also apply to persons afflicted with Gender Identity Disorder. Yet a review of letters from inmates clearly demonstrates standards of care are not being followed by prison physicians. As a consequence, those who remain untreated risk higher incidence of severely deteriorating mental health. An institution?s failure to provide treatment for easily-recognizable disorders is unacceptable and one of the most glaring examples of our failure as a society to provide treatment for those who most need it.

?Barbara Anderson, Ph.D.,

personal communication





Denial of Treatment: The Reality



Most prisons do not provide hormones, and some go to great lengths to avoid providing any treatment to transsexual inmates. Most transsexual inmates are not receiving appropriate medical and psychological care. Many repeatedly seek medical treatment, often for years, while enduring administrative harassment and difficult court battles in the pursuit of basic medical and civil rights.



Prisons that do provide treatment frequently have policies which allow for treatment of those who were treated prior to incarceration, but fail to address the medical needs of those who develop Gender Identity Disorder during incarceration or who have no documented proof of their pre-incarceration transsexualism. Officials often claim that only those inmates who were diagnosed with Gender Identity Disorder and placed on hormones before incarceration are eligible for hormones in prison. They sometimes maintain that the prison does not afford the opportunity for the real life experience required by the Standards of Care?conveniently ignoring the fact that many MTF transsexual inmates consistently maintain their female identity year after year in an all-male facility.



Socioeconomic factors are another common reason given for denying medical treatment. Many transsexual persons cannot afford to seek treatment for Gender Identity Disorder while in the community?the more so since community treatment programs are scarce. As a consequence, they are often forced to seek dangerous black market hormones and even surgical procedures. Transsexual inmates then discover their inability to secure community treatment outside the prison translates into an inability to produce the documentation needed to secure treatment while incarcerated. Repeatedly, I?ve found this to be so, even for MTF transsexuals who have obvious hormone-enhanced feminine characteristics and have lived as women for years.



Prison officials may state that because an inmate has a history of prostitution he or she doesn?t need treatment. This is shortsighted, particularly since the vast majority of transsexual inmates who become involved in prostitution do so because of reduced opportunities for employment and education. Where is an undereducated, impoverished transsexual without marketable skills to find employment and community resources? Racial makeup also can exacerbate this situation; persons of color are incarcerated in disproportionate numbers.



Transsexual inmates are sometimes denied hormone treatment because prison officials contend they are homosexual. Recently, a MTF transsexual with a significant amount of experience living as a woman was denied hormones for this reason. An AASECT-certified psychologist testified that earlier a medical doctor unfamiliar with Gender Identity Disorder had wrongly classified the transsexual individual as gay; thus, the witness testified, the transsexual certainly must be so.



I concluded that the expert witness for the prison had either intentionally misdiagnosed the transsexual woman or was incompetent. Any care provider familiar with the Diagnostic and Statistical Manual (DSM-IVTR) of the American Psychiatric Association should be able to recognize that there is a specific distinction between a person?s gender identity and sexual orientation. Gender identity refers to the way a person experiences and presents him or herself to the world. It is a construct of self-identity. Sexual orientation refers to those whom a person finds sexually arousing or attractive. Those who persistently and consistently state that they are suffering symptoms of gender dysphoria and continuously implore physicians to provide hormone treatment are in all likelihood transsexual. Differential diagnosis between transsexuals and gay males is possible by referring to the DSM-IV, HBIGDA Standards of Care, Transgender Care, and other easily obtainable resources.



Many times prison officials will claim Gender Identity Disorder simply does not exist at all. However, even a cursory examination of inmate medical records will reveal patients who are suffering tremendously and who have made repeated cries for medical treatment. Left untreated, Gender Identity Disorder can become so severe that transsexual inmates will show severe depression, suicidal ideation, self-mutilation, and even psychosis.



Regrettably, many doctors who fail to treat Gender Identity Disorder also fail to treat associated mental health disorders requiring psychotropic medication. A physician?s failure to evaluate, diagnose and provide treatment when it is medically necessary, as in these instances, is behaving unethically and is in violation of human and civil rights.



Prison officials often contend transsexuals start and then stop treatment regimens. Medication compliance in inmates with medical and mental illnesses has long been an issue familiar to prison officials and physicians. This is first dealt with by treating those with the most need, then providing to those who ask for medications, and finally, by addressing the medication needs of the non-compliant. Given the severity of symptoms associated with Gender Identity Disorder, any ethical care provider should ascertain that a need exists which outweighs less important issues such as potential noncompliance.



At their heart, policies which deny treatment of transsexuals and the expert witnesses who support them represent the insidious evil which so characterizes deliberate indifference. Prison officials have the knowledge that treatment is medically necessary, but create barriers to prevent the most needy from getting it.





Legal Remedies



Most civil actions filed by or on behalf of inmates never reach courts. This is because civil action complaints are eliminated through a strict selection process based on legal merit. More often than not, transsexual inmates simply don?t have the resources and sophistication to navigate their way through the maze. Moreover, prison officials and their medical experts will do everything possible to prevent a case from being heard, even going so far as to promulgate incorrect or unethical information. I recently reviewed a case filed in federal court, to discover that in an effort to have the case dismissed and continue denying treatment to the inmates, the prison?s medical experts had filed medical statements which repeatedly exploited stereotypes about transsexual persons.



Transsexuals and their legal counsel should be certain their case has legal merit and the parties involved are actually accountable. Otherwise, there is risk of wasting time and resources. Recently, during my review of a transsexual inmate medication case on appeal, I observed that the justices had ruled that the transsexual was not entitled to her day in court because a medical director was not directly responsible for the woman?s actual treatment. A medical director by definition, is responsible for enforcing and developing policies which address the medical needs of his or her charges. However, the court did not find the medical director to be individually responsible.



Those interested in pursuing a deliberate indifference case should consult an attorney or law library. Proper legal resources can provide instruction on the use of medical declarations and compilation of evidence in cases. Inmates should always use certified mail when sending correspondence to document medication requests, and should store copies of their records with a reliable family member or friend in the outside community.



Clearly, pursuing medical treatments by way of the courts is not always effective; however for desperate persons affected with Gender Identity Disorder, judges need to be aware that those seeking treatment are appealing to the court of last resort.



The ease with which hormone administration can be provided and the refusal of prison officials to provide it raises an important question: Is the lack of medical treatment of transsexual inmates a case of deliberate indifference? I and other care providers are outraged by the degree to which prison officials will ignore their own policies, circumvent the law, and invest enormous resources to prevent transsexuals inmates from receiving medical treatment. We believe this is deliberate indifference.



Unless we strive to protect the human and civil rights of our most neglected and disempowered citizens, we risk a corrupt society which provides for and protects only those in power.





Gianna Israel has provided telephone consultation, individual counseling, and gender-specialized evaluations and recommendations since 1988. She also provides expert services in child-custody and legal-forensic mental health cases. Ms. Israel is principal author of Transgender Care and a regular contributor to TG-Forum.com and Transgender Tapestry. She is a HBIGDA member. Contact her at 415/558-8058, P.O. Box 424447, San Francisco, CA 94142, or via e-mail at Gianna@counselsuite.com. A library of her writings can be found at http://www.counselsuite.com.




References



Standards of Care for the Treatment of Gender Identity Disorder, Harry Benjamin International Gender Dysphoria Association, Inc., Revision 6, www.symposion.com.



Israel, G., & Tarver, D. (1998). Transgender care: Recommended guidelines, practical information, and personal accounts. Philadelphia, PA: Temple University Press.