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Research Paper Requirements
This project is a research paper that discusses a topic at current issue in Criminal Justice. It is
designed to have you to explore a topic of relevance in the Criminal Justice field, conduct a critical
analysis of information and literature, and communicate the analysis in writing.
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0091-4169/15/10502-0463
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY
C opyright © 2016 by S arah H albach
V ol. 105, N o. 2
Printed in U.S.A.
FRAMING A NARRATIVE OF
DISCRIMINATION UNDER THE EIGHTH
AMENDMENT IN THE CONTEXT OF
TRANSGENDER PRISONER HEALTH CARE
Sarah Halbach*
This Comment looks closely at the reasoning behind two recent federal
court opinions granting transgender prisoners access to hormone therapy
and sex-reassignment surgery. Although both opinions were decided under
the Eighth Amendment’s ban on cruel and unusual punishment, which does
not expressly prohibit discrimination based on gender identity, a careful look
at the courts ’ reasoning suggests that they were influenced by the apparent
discrimination against the transgender plaintiffs. This Comment argues that
future transgender prisoners may be able to develop an antidiscrimination
doctrine within the Eighth Amendment by framing their Eighth Amendment
medical claims in terms o f discrimination based on their transgender status.
* J.D., Northwestern Pritzker School of Law, 2015; B.A., DePaul University, 2012. I
would like to thank Professor Erin Delaney for her guidance in developing my observations
into an argument, and the editors of the Journal o f Criminal Law and Criminology for their
help in sharpening that argument, especially Carolyn Hill, Hannah Lonky, Lin Zhu, and
Cristina Law. Thank you also to my parents and Joey for their constant love and support.
463
464
HALBACH
[Vol. 105
Table of Contents
Introduction…………………………………………………………………………….. ..
I. The Traditional Strategy for Litigating Discrimination:
Equal Protection…………………………………………………………….. 469
A. The Equal Protection Framework………………………………………….470
B. Equal Protection Is a Losing Strategy for Transgender
Prisoners………………………………………………………………………. 471
II. The Current Strategy: Litigating Transgender Prisoner
Medical Needs Under the Eighth Amendment………………… 474
A. The Eighth Amendment Framework……………………………………. 474
B. Criticisms of the Eighth Amendment Medical Model……………. 479
III. F inding Discrimination Within the Eighth Amendment……… 482
A. Hidden Equal Protection Analysis: Fields v. Smith……………….. 482
B. The Eighth Amendment and Political Controversy: Kosilek v.
Spencer…………………………………………………………………………….. 435
C. Fields and Kosilek II Compared and in the Broader Context…. 493
IV. Going Forward: Framing a Narrative of Discrimination
Under the Eighth Amendment…………………………………………. 496
Conclusion ………………………………………………………………………………… 497
In t r o d u c t io n
“I am Chelsea Manning.” 1 With those words, Army Private Bradley
Manning announced to the world that she would be transitioning from male
to female. Going forward, Manning indicated that she would like to be known
as “Chelsea” and referred to by female pronouns.2 Manning’s public
statement on August 22, 2013, came one day after she was sentenced to
thirty-five years in prison for leaking classified government documents to
WikiLeaks.3 Manning has been in the media spotlight since her arrest in May
2010, and her recent transition has called national attention to some of the
problems facing transgender prisoners in America.4
1 Lenny Bernstein & Julie Tate, Manning to Live as Woman in Prison, Wash . P ost, Aug.
23, 2013, at A 1 (internal quotation marks omitted).
2 Id. at A6.
3 Charlie Savage & Emmarie Huetteman, Manning Sentenced to 35 Years fo r a Pivotal
LeakofU .S. Files, N.Y. T imes, Aug. 22, 2013, at A l.
4 Transgender prisoner health care has received increased attention in the media. For
example, it was featured on an episode o f the popular Netflix series Orange is the New Black
in July 2013. Orange Is the New Black: Lesbian Request Denied, N etflix (July 11, 2013),
2015]
FRAMING A NARRATIVE OF DISCRIMINATION
465
There is limited data on the number of transgender5 people in the
nation’s various prisons and jails,6 but transgender people are incarcerated at
a disproportionately high rate.7 Transgender individuals face harsh and
http://www.netflix.com (Netflix web series). In the show, transgender actress Laveme Cox
portrays a male-to-female prisoner housed in a female prison, whose hormone therapy was cut
off due to budget cuts. Id.
5 In this Comment, “sex” refers to “the anatomical and physiological distinctions between
men and women.” Stevie V. Tran & Elizabeth M. Glazer, Transgenderless, 35 H arv. J.L. &
G ender 399, 399 n.l (2012) (internal quotation marks omitted). “[G]ender-nonconforming”
refers to the “failure of an individual to behave in conformity with the cultural expectations
associated with that individual’s sex (or the sex that others assume applies to that individual).”
Id. (internal quotation marks omitted). The term “transgender” is used to describe the “broad
range of people whose gender identity or expression does not conform to the social
expectations for their assigned sex at birth.” Id. (internal quotation marks omitted).
“Transgender” is used as an “umbrella term” to describe “many different ways o f being.” Id.
(internal quotation marks omitted). “Thus, someone who is gender-nonconforming could be
considered transgender, but someone who is transgender may not necessarily be considered
gender-nonconforming.” Id. For a discussion of the use of qualifying footnotes on terminology
related to sex and gender— such as this one— in legal scholarship, in “which the author
circumscribes the individuals whose protection the article addresses,” see Elizabeth M. Glazer,
Sexual Reorientation, 100 Geo . L.J. 997, 1062 (2012).
6 A 2009 study by researchers at the University of California, Irvine, identified 332
transgender inmates out of about 155,000 inmates housed in California men’s prisons, which
is roughly 0.2%. Lori Sexton et al., W here the M argins M eet: A D emographic
A ssessment of T ransgender Inmates in M en ’s P risons 8-9 & 34 n.7 (June 10, 2009),
available at http://ucicorrections.seweb.uci.edu/files/2013/06/A-Demographic-Assessmentof-Transgender-Inmates-in-Mens-Prisons.pdf (citing the California Department of
Corrections and Rehabilitation monthly population report from April 30, 2008, which
identified 155,416 incarcerated men. Data A nalysis Unit, D ep ’t of C orr. & Rehab.,
M onthly R eport of P opulation as of M idnight A pril 30,2008, at 1 (2008), available at
http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Monthly
/TPOP1A/TPOP lAd0804.pdf, archived at http://perma.cc/M4GP-9GP3), archived at http://
perma.cc/T94Y-MZTL). However, the study acknowledges that “there were possibly
transgender inmates who were not” included in the study. Id. at 9.
7 See Franklin H. Romeo, Beyond a Medical Model: Advocating fo r a New Conception o f
Gender Identity in the Law, 36 COLUM. Hum . R ts . L. R ev. 713, 713-15 (2005). According to
the National Transgender Discrimination Survey, a self-reported survey of transgender
individuals across the country conducted by the National Center for Transgender Equality and
the National Gay and Lesbian Task Force, the incarceration rate for transgender individuals is
16%. J aime M. Grant et al., N at ’l C tr . for Transgender E qual. & N at ’l G ay and
Lesbian T ask F orce, Injustice at Every T urn: A Report of the N ational T ransgender
Discrimination
Survey
163
(2011),
available
at
http://www.thetaskforce.
org/downloads/reports/reports/ntds_full.pdf, archived at http://perma.cc/M64N-SAEP. The
rate was even higher for transgender respondents of color: 47% for African American
respondents and 30% for American Indian respondents. Id. Moreover, male-to-female
respondents reported a higher incarceration rate (21%) than female-to-male respondents
(10%). Id. By comparison, the Department of Justice reports that among the general American
population in 2001, 4.9% of males and 0.5% of females had been incarcerated at some point
in their lives. T homas P. Bonczar, U.S. D ep’t of J ustice, B ureau of J ustice Statistics
466
HALBACH
[Vol. 105
pervasive discrimination in almost all aspects of social life— education,
employment, housing, public accommodations, health care, and law
enforcement.8 As a result of this harassment, many transgender people live
in poverty.9 The combination of high poverty rates and employment
discrimination has led to a greater proportion of transgender people
participating in criminalized economies compared to the general population,
and thus, a disproportionate representation of transgender people in the
criminal justice system and in prisons.10
One of the biggest obstacles transgender people face in prison is
obtaining access to gender-confirming health care, which may include
hormone therapy or sex-reassignment surgery.*11Not all transgender prisoners
request or require such medical treatment, but for some prisoners, denial of
hormone therapy or sex-reassignment surgery can lead to serious mental
health problems, such as depression or anxiety, and even attempts at suicide
and self-castration.12 Writer and activist Janet Mock explains on her website
that for some people “[t]hese surgeries and care are vitally necessary
(whether you exist in or outside of prison walls), and it is a discussion
between a patient and their doctor, not between anyone else.”13
S pecial R eport: P revalence of Imprisonment in the U.S. P opulation, 1974-2001 1
(2003), available at http://www.bjs.gov/content/pub/pdf/piusp01.pdf, archived at
http://perma.cc/P2U2-4ZQC. However, the Department o f Justice survey includes only
prisons, not jails, so the actual incarceration rate of the overall population is somewhat higher.
See Grant e t a l supra, atl63.
8 Grant ET al ., supra note 7, at 3-6; Paisley Currah & Shannon Minter, Unprincipled
Exclusions: The Struggle to Achieve Judicial and Legislative Equality fo r Transgender
People, 7 W m . & M ary J. Women & L. 37, 37-38 (2000); Romeo, supra note 7, at 713-14.
9 See Grant et al., supra note 7, at 2; Romeo, supra note 7, at 713-14.
10 See supra note 7.
11 “[Gjender-confirming healthcare is an individualized treatment that differs according to
the needs and pre-existing conditions of individual transgender people.” Dean Spade,
Medicaid Policy & Gender-Confirming Healthcare fo r Trans People: An Interview with
Advocates, 8 S eattle J. Soc. J ust. 497, 497 (2010). Depending on the individual, genderconfirming health care may include hormone therapy treatment or any of a number of surgical
procedures. Id. at 498. Some transgender people may undergo no medical treatment at all in
relation to their expression of gender identity. Id. at 497-98.
12 See Dean Spade, Documenting Gender, 59 H astings L.J. 731,755 (2008) (“Depression,
anxiety, and suicidality are conditions commonly tied to the unmet need for gender-confirming
medical care.”); see also Kosilek v. Spencer, 889 F. Supp. 2d 190, 197 (D. Mass. 2012)
(discussing transgender plaintiffs attempts at self-castration and suicide while incarcerated);
Soneeya v. Spencer, 851 F. Supp. 2d 228, 244^15 (D. Mass. 2012) (discussing transgender
plaintiff s history of suicidality and one attempt at self-castration while in custody).
13 Janet Mock, Chelsea Manning & the Battle fo r Trans Inclusive Healthcare Without
Bias, Janet M ock (Aug. 22, 2013), http://janetmock.com/2013/08/22/chelsea-manningtransgender-healthcare/, archived at http://perma.cc/4DLK-39M8.
2015]
FRAMING A NARRA TIVE OF DISCRIMINATION
467
In many states, laws and prison policies pose serious barriers for
prisoners seeking hormone therapy or sex-reassignment surgery.14 First, a
prison doctor must diagnose the prisoner with a medical condition under the
Diagnostic and Statistical Manual o f Mental Disorders. In addition to
providing a medical diagnosis, the doctor must also deem hormone therapy
or sex-reassignment surgery a necessary treatment for that condition and
assert that there are no adequate alternatives.15
Under the Fourth Edition of the Manual, this condition was called
“gender identity disorder” (GID).16 In 2013, the editors published the Fifth
Edition of the Manual in which they relabeled GID as “gender dysphoria”
and removed the condition from the chapter on sexual dysfunctions, placing
it in its own chapter.17 Unlike the criteria for GID, which emphasized gender
cross-identification, gender dysphoria emphasizes gender incongruence.18
Gender dysphoria is defined, in part, as a “marked incongruence” between a
person’s experienced or expressed gender and that person’s assigned gender
at birth.19 Because most of the cases and literature discussed in this Comment
refer to GID, this Comment will use the phrase GID when discussing the
medical diagnosis, except where the newer definition is relevant.
As part of Manning’s announcement that she would be transitioning
from male to female, Manning publicly stated her intention to seek hormone
therapy while imprisoned.20 Her request created a new dilemma for the
United States Department of Defense, which is caught between providing her
with adequate medical care for a diagnosed disorder and adhering to the
military’s longstanding policy banning transgender people from serving in
the military.21 When Manning filed her request for hormone therapy and
14 Tracy Clark-Flory, America’s Prisons Fail Transgender Inmates, SALON (Aug. 23,
2013, 11:11 AM), http://www.salon.com/2013/08/23/americas_prisons_fail_transgender_
inmates/, archived at http://perma.cc/QM9G-EU3U.
15 To succeed on an Eighth Amendment claim, the plaintiff must show that the desired
course of treatment is medically necessary, which requires showing that no adequate
alternatives exist. Kosilek v. Spencer, 774 F.3d. 63, 86 (1st Cir. 2014).
16 A m . P sychiatric A ss’n , D iagnostic and Statistical M anual of M ental
D isorders 493 (4th ed. rev. 2000) [hereinafter DSM-1V],
17 Mark Moran, New Gender Dysphoria Criteria Replace GID, P sychiatric N ews (Apr.
5, 2013), http://psychnews.psychiatryonline.Org/doi/fiill/10.l 176%2Fappi.pn.2013.4al9,
archived at http://perma.cc/M525-PB44.
18 Id.
19 See A m . P sychiatric A ss ’n , D iagnostic and Statistical M anual of M ental
Disorders 451-59 (5th ed. 2013) [hereinafter DSM-5].
20 Bernstein & Tate, supra note 1, at A l.
21 See Helene Cooper, Pentagon Weighs Transfer o f Chelsea Manning to Civilian Facility,
N.Y. T imes (May 14, 2014), http://www.nytimes.com/2014/05/15/us/pentagon-weighstransfer-of-chelsea-manning-to-civilian-facility.html, archived at http://perma.ee/2S7W-
468
HALBACH
[Vol. 105
permission to live as a woman, the Army attempted to transfer her to a
civilian prison that could better provide the requested treatment.22 In July
2014, the Federal Bureau of Prisons rejected the Army’s transfer request.23
Subsequently, the Department of Defense approved the Army’s
recommendation that Manning begin “a rudimentary level of gender
treatment,” which could include allowing Manning to dress in female
clothing and receive hormone treatments.24 In February 2015, the
commandant of the Fort Leavenworth military prison where Manning is held
approved adding hormone treatments to Manning’s treatment plan.25
The Department of Defense is not the first agency to confront the issue
of how to provide adequate care for transgender prisoners; many state
departments of corrections have had to address this question, as well. In fact,
several federal courts have recently ruled in favor of transgender inmates
seeking access to gender-confirming health care from state departments of
corrections, holding that prison officials’ denial of such treatment for those
who need it violates the Eighth Amendment’s ban on cruel and unusual
punishments.26 Although these decisions provide medical relief for the
individual plaintiffs who suffer from severe gender dysphoria, they do not
address the underlying discriminatory nature of such policies. In Manning’s
case, for example, the military’s ban on hormone therapy stems from its
3MFG (“In the American military, transgender service members can be summarily dismissed,
as Defense Department guidelines describe transgender people as sexual deviants and their
condition as ‘paraphilia,’ with its connotations of the atypical and extreme.”).
22 Id.
23 Associated Press, Manning’s Gender Treatments to Be Begun by the Military, N.Y.
T imes, July 18,2014, at A 15.
24 Associated Press, Chelsea Manning to Begin Gender Treatment in Military Custody,
N.Y. Post (July 17, 2014, 5:08 PM), http://nypost.com/2014/07/17/chelsea-manning-tobegin-gender-treatment-in-military-custody/, archived at http://perma.cc/5L42-8JZF.
Bernstein & Tate, supra note 1, at A6.
25 Tom Vanden Brook, Army Will Pay fo r Manning to Become a Woman, USA Today,
Feb. 13,2015, at A1 (quoting a February 5 memorandum from Colonel Erica Nelson,
commandant of the Fort Leavenworth Disciplinary Barracks in Kansas, as stating “After
carefully considering the recommendation that (hormone therapy) is medically appropriate
and necessary, and weighing all associated safety and security risks presented, I approve
adding (hormone treatment) to Inmate Manning’s treatment plan.” (internal quotation marks
omitted)).
26 U.S. C onst, amend. VIII; see, e.g., Fields v. Smith, 653 F.3d 550, 559 (7th Cir. 2011);
Battista v. Clarke, 645 F.3d 449, 455 (1st Cir. 2011); De’lonta v. Clarke, No. 7:1 l-cv-00257,
2013 WL 4584684, at *1 (W.D. Va. Aug. 28, 2013); Kosilek v. Spencer, 889 F. Supp. 2d 190,
198 (D. Mass. 2012); Soneeya v. Spencer, 851 F. Supp. 2d 228,252 (D. Mass. 2012); Brugliera
v. Comm’r o f Mass. Dep’t of Corr., No. 07-40323-JLT, 2009 U.S. Dist. LEXIS 131002 at *1
(D. Mass. Dec. 16, 2009).
2015]
FRAMING A NARRATIVE OF DISCRIMINA TION
469
broader discriminatory policy forbidding transgender prisoners from serving
in the military.27
Typically, claims of discrimination against a class of people are litigated
under the Equal Protection Clause of the Fourteenth Amendment. However,
federal courts have been generally unwilling to rule in favor of transgender
prisoners seeking gender-confirming health care under the Equal Protection
Clause. This Comment argues that transgender prisoners may be able to
develop a doctrine within the Eighth Amendment to litigate their
discrimination claims in the context of prison health care. This Comment
looks closely at the reasoning in two recent transgender prisoner health care
opinions: Fields v. Smith28 and Kosilek v. Spencer {Kosilek II)}9 The courts’
Eighth Amendment analyses in these cases were seemingly influenced by
concerns about equal protection and discrimination against transgender
prisoners. This Comment suggests that transgender prisoners should use the
analyses in these opinions as examples of how to frame future Eighth
Amendment claims around facts that show discrimination.
Part I briefly explains the traditional strategy for litigating
discrimination claims—the Equal Protection Clause—and discusses why it
is not likely to be a successful strategy for transgender prisoners seeking
gender-confirming health care. Part II describes the most common litigation
strategy used in transgender prisoner health care cases—the Eighth
Amendment—and discusses some of the criticisms of this doctrine. Part III
analyzes the opinions in Fields and Kosilek II to show how the courts’
decisions under the Eighth Amendment were influenced by equal protection
principles. Part IV argues that transgender plaintiffs have an opportunity to
develop a new discrimination doctrine within the Eighth Amendment.
I …
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