By: Bill Watt
Advancements in technology have created new legal questions for federal courts to address. Is it a violation of the Eighth Amendment’s “Cruel and Unusual Punishment” clause to deny gender-reassignment surgery to a person in prison who experiences gender dysphoria?[1]
In the medical field, gender reassignment surgery (“GRS”) is a technological innovation that has become increasingly common.[2] Gender dysphoria, a condition that leads to GRS, is referred to as discomfort or distress caused by a mismatch between a person’s gender identity and that person’s sex assigned at birth.[3] The global market for GRS was $202 million in 2017.[4] GRS has an estimated growth rate of 25.1% annually through 2024 – when the market will reach a projected valuation of $968 million.[5]
Before the first half of the 20th century, gender reassignment surgeries did not occur at all or were extremely rare.[6] One of the early recipients of sex reassignment surgery is Lili Elbe.[7] Ms. Elbe, a German, began transitioning from a male to a female in 1930.[8] In 1931, she died from surgical complications three months after a vaginoplasty and uterus transplant.[9] In 1952, Christine Jorgensen, a famous cultural icon and United States citizen, traveled to Denmark and began a series of operations for sex reassignment surgery.[10] The first male-to-female GRS in the United States occurred in 1966.[11]
Circuit courts have come up with different rationales and holdings in deciding whether denying GRS violates the Eighth Amendment. In deciding Edmo v. Corizon, Inc., (2020), the Ninth Circuit, which presides over district courts located on or near the Pacific Coast, mandated that states pay for and provide sex-reassignment surgery to a prisoner when it is a medical necessity.[12] The Court focused on a standard created by the World Professional Association for Transgender Health (WPATH) to determine if sex-reassignment surgery is medically necessary.[13] An inclusion criterion for genital surgery includes age, mental health, and 12 months of continuous hormonal therapy.[14] Even though the plaintiff suffered from extreme mental distress and attempted suicide, a surgeon did not provide her with GRS.[15]
The First, Fifth, Seventh, and Tenth Circuit courts ruled that sex-reassignment surgery is not a necessity.[16] These federal circuit courts have used different rationales to arrive at this conclusion. In Kosilek v. Spencer (2014), the First Circuit recognized the existence of WPATH but did not heavily rely on it in their decision to reverse a district court’s grant for injunctive relief.[17] The Court determined that the current treatment for the plaintiff was enough and that security in prison would be problematic post-surgery. In Gibson v. Collier (2019), the Fifth Circuit said that there was medical disagreement over the necessity of sex-reassignment surgery.[18] The surgery could not definitively be called a necessity. Further, the Court said it is not “cruel and unusual punishment” to withhold medical treatment that prisons have never given in the past.[19]
[1] Jacklyn Gunn, Is Denying Sex-Reassignment Surgery to Prisoners a Violation of the Eighth Amendment?, Sunday Splits (July 11, 2021), http://sundaysplits.com/2021/07/11/is-denying-sex-reassignment-surgery-to-prisoners-a-violation-of-the-eighth-amendment/.
[2] Universitätsspital Zürich, Gender reassignment surgery, YouTube (Aug. 5, 2020).
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Jacklyn Gunn, Is Denying Sex-Reassignment Surgery to Prisoners a Violation of the Eighth Amendment?, Sunday Splits (July 11, 2021), http://sundaysplits.com/2021/07/11/is-denying-sex-reassignment-surgery-to-prisoners-a-violation-of-the-eighth-amendment/.
[13] Id.
[14] Universitätsspital Zürich, Gender reassignment surgery, YouTube (Aug. 5, 2020).
[15] Jacklyn Gunn, Is Denying Sex-Reassignment Surgery to Prisoners a Violation of the Eighth Amendment?, Sunday Splits (July 11, 2021), http://sundaysplits.com/2021/07/11/is-denying-sex-reassignment-surgery-to-prisoners-a-violation-of-the-eighth-amendment/.
[16] Id.
[17] Id.
[18] Id.
[19] Id.