A January 28 decision from the US Court of Appeals for the Fourth Circuit may be the first by a federal appellate court to hold that an inmate may, under certain circumstances, have a right to gender reassignment surgery as a medically necessary procedure.
A unanimous panel of that court ruled that District Judge James C. Turk should not have dismissed an Eighth Amendment complaint by Ophelia Azriel De’lonta, a Virginia state inmate denied gender reassignment surgery by the state Department of Corrections.
Named Michael A. Stokes at birth, De’lonta was convicted of bank robbery and sentenced in 1983 to 73 years in prison. According to Circuit Judge Albert Diaz’s opinion for the appellate panel, De’lonta is “a pre-operative transsexual suffering from a diagnosed and severe form of a rare, medically recognized illness known as gender identity disorder (GID). GID is characterized by a feeling of being trapped in a body of the wrong gender. This belief has caused De’lonta to suffer ‘constant mental anguish’ and, on several occasions, has caused her to attempt to castrate herself in efforts to ‘perform [her] own makeshift sex reassignment surgery.’ De’lonta has described these ongoing urges to perform self-surgery as ‘overwhelming.’”
BY ARTHUR S. LEONARD | After her initial attempts to obtain treatment were rebuffed by prison authorities, De’lonta filed a 1999 lawsuit claiming her Eighth Amendment right to be free of cruel and unusual punishment was being violated. Prison authorities, the Supreme Court has held, must not be “deliberately indifferent” to the serious medical problem of inmates. If they know or should know about such a problem, they are required to provide treatment, though it need not be of the inmate’s choosing.
The federal district court dismissed De’lonta’s 1999 suit, saying she failed to state a valid constitutional claim. The court of appeals reversed that ruling in 2003, finding that De’lonta’s need for treatment was adequately presented. As a result, the Department of Corrections settled the case by agreeing to begin medical treatment.
Prison officials consulted a GID specialist and since 2004 have provided De’lonta with psychological counseling and hormone treatment and allowed her to groom and dress as female. De’lonta has found the treatment inadequate, saying she continues to have an overwhelming urge to castrate herself. Her desperation, she stated in a 2010 letter to prison officials, is even worse after her sessions with a prison psychologist. De’lonta has repeatedly requested sex reassignment surgery
The chief psychologist at the Department of Corrections told De’lonta to continue working with her therapist and declined to call in another GID specialist.
De’lonta filed her new lawsuit in 2011, charging prison officials with “deliberate indifference” to her “serious medical need.” Turk dismissed her complaint, agreeing with prison officials that providing counseling and hormone therapy proved they were not practicing deliberate indifference to De’lonta’s medical condition. Virginia was under no obligation, he concluded, to provide her with her preferred treatment.
The court of appeals rejected this analysis.
De’lonta alleges, the panel stated, “she has never been evaluated concerning her suitability for surgery.” Despite prison officials knowing that De’lonta’s therapy sessions “actually provoked her ‘overwhelming’ urges to self-castrate,” prison officials continue to require her to continue that treatment. If true, the inmate would have a “a plausible claim that [prison officials] ‘actually knew of and disregarded’” her serious medical condition.
“Just because [prison officials] have provided De’lonta with some treatment consistent with GID Standards of Care, it does not follow that they have necessarily provided her with constitutionally adequate treatment,” Diaz wrote.
Though it is true “that a prisoner does not enjoy a constitutional right to the treatment of his or her choice, the treatment a prison facility does provide must nevertheless be adequate to address the prisoner’s serious medical need.”
The court was not ruling that De’lonta is entitled to sex reassignment surgery, but rather that she can pursue her lawsuit, in which she continues to bear the burden of proving that the prison’s failure to consider her for sex reassignment surgery is inappropriate in the circumstances. Implicit in the court’s decision, however, is that were a GID specialist to determine De’lonta needs sex reassignment surgery, the prison would have to arrange to provide the procedure.
Bernadette Francoise Armand, of Victor M. Glasberg & Associates of Alexandria, Virginia, argued the appeal on De’lonta’s behalf, with amicus support from the DC Trans Coalition and the national and the Virginia ACLU.