Tuesday, May 15, 2012

Crossing Over: Treatment Rights of Transgendered Prisoners

Over on Clinical Psychiatry News I've put up a column on the evolving treatment rights for prisoners with gender identity disorder.

In the CPN post I cover about thirty years worth of changes in prison policies and standards, up to where we are today: individual inmates suing prisons to provide sex reassignment surgery. So far no inmate has ever been given surgery, but at this point it's just a matter of time.

I think the topic is interesting in part because it traces out how correctional standards of care develop: first the courts decide if a condition "counts" as a serious medical or mental health disorder that mandates treatment, then over time an accumulation of individual cases carve out the boundaries and limitations of that care.

So why aren't doctors the people deciding this instead of judges?

Well, they are to an extent. The institutional clinician assesses the condition and makes a determination of treatment needs. Outside clinicians acting as court consultants or correctional experts offer opinions about what the standard of care should be, and professional organizations also weigh in. Courts take in all of this information, weigh it against the interests of the facility, and issues an opinion about whether or not there is a constitutional right to treatment.

This is the same process that took place in the 90's when protease inhibitors were invented to treat HIV. Correctional facilities initially balked at giving the meds because of the cost, but now this is standard and accepted.

Feel free to post questions or comments in either place (CPN or Shrink Rap).


Dinah said...

I gave you a picture.

Zoe Brain said...

Thanks for a succinct statement of the "state of play" at the moment.

In theory, anyway.

The practice varies. In some places, humane, or at least, as humane as a "correctional facility" can be. In others... beyond nightmarish.

On February 27 S.T. was gang raped for approximately 40 minutes by 5 men who held her hostage while armed with knives. The gang-rape was witnessed by other prisoners. She was forcibly penetrated orally and anally. When she sought medical attention two days later, sheriff's deputies refused her requests.

Eventually she was taken to see a nurse. When she reported the rape, the nurse offered no response, seeming not to believe her. She was then placed on suicide watch and returned to a male dorm in an unsupervised cell.

On March 7 another prisoner raped her…while she was supposedly still on suicide watch. She has since been raped multiple times over the last several weeks. Additionally her attacker has beaten her severely enough to have broken one of her rear molars.
Last weekend T.S. was strangled and attacked once again and she filed for sick call, saying "help me, I'm being raped." The nurse walked to her cell, looked in, and began to walk away, but T.S. confronted her and begged her not to leave, claiming she would be killed in the nurse did nothing to protect her. T.S. was transported to University Hospital. A rape kit was performed and she was tested for HIV. When she was booked into the jail, she was HIV negative. She is now positive.

On March 26 deputies attempted to return her to the same tier that housed her attacker. When her attacker saw her, he threatened to kill her in front of the deputies. She refused to enter the tier and the deputies moved her to another tier.

As she was being moved, her attacker screamed that he knew where they were moving her to and he would send someone to get her. She is now housed on a tier where the cell doors do not lock, where violence is widespread, and where deputies do not supervise or protect the individuals housed there.

This appears to be standard in many, possibly most facilities.

"Transgender" is seen by legislatures as a particularly heinous moral offence. This attitude has come to be shared by many correctional facility officers, at the highest level.

It is not unusual for Trans women to be allocated by guards to favoured inmates as a "reward" for good behaviour. This often ends up with the woman dead or maimed, and always severely psychologically damaged - often so badly they are mentally incapable of taking legal action.

According to FBI data for last year, 31% of Trans women who reported being victims of crime to police were themselves arrested. This compares to a 32% rate of arrests for the suspects - the first year on record where the latter was higher than the former.

Welcome to my world. While committing a crime greatly increases the chances of such treatment, it's not essential.

rob lindeman said...

Clink, there are other stakeholders in this game, so the question as to who makes these decisions is not as simple as doctor vs. judge. The People (capital P) who pay for all this possess the (property) right to decide whether their money will be spent to treat non-life-threatening conditions.

As there is substantial disagreement as to whether the desire to alter secondary sexual characteristics is a disease at all, it seems to me the People should be brought to the table.

Zoe Brain said...

rob lindeman

As there is substantial disagreement as to whether the desire to alter secondary sexual characteristics is a disease at all

That is not the issue though.

We're not talking about a mere "desire", but a phenomenon that is observable, actual, objective.

That for some - not all - people with such a "desire", it is so strong that it causes impairment.

It is only these acute cases that we're talking about. To anologise - it's not as if we're seeking chemotherapy and surgery for everyone with a persistent cough; only those diagnosed with lung cancer.

Not everyone who has a cough has lung cancer. Not everyone with such a "desire" is transsexual.

There is ample evidence adduced without rebuttal in the recent court case Fields vs Smith to show that withholding such medically necessary treatment for those acute cases actually costs the taxpayers more than allowing it.

Zoe Brain said...

Focusing on the facial Eighth Amendment challenge, the court rejected the defendants’ argument that the statute could lawfully apply to prisoners who did not require surgery or hormone therapy. Although the court acknowledged that facial challenges prevail only if the statute is never valid, it also noted that “[t]he proper focus of
constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Because DOC physicians “prescribe hormones only when the treatment is medically necessary,” the law had no relevance to prisoners who did not need such treatment. For that reason, the statute had no constitutional application.

I have little doubt that if the question had been put to a popular vote, the law would have been upheld.

Just as I have little doubt that a law prohibiting blacks from voting would command majority support in several southern states.

That's why you have a "Constitution", to prevent degeneration of society into mob rule.

But now we're getting into politics rather than medicine.

ClinkShrink said...

Dinah: Thanks for the pic.

Zoe: The T.S. case is pretty horrific. Maybe my region is unusual, but I've worked in all possible types of correctional facility and in every possible security level and I've never heard of a case as bad as that one in 20 years. This is not to say that horrible things don't happen, but in my experience these incidents aren't that common. Whenever I've asked my transgendered patients about safety on the tier, none of them have felt threatened in my facility. The few sexual assault allegations I'm aware of involved non-trans prisoners.

Rob: You raise an interesting question. Among the People, who should get to make the decision about how much health care prisoners should get? Every person in the country? Only tax paying citizens? Illegal (or legal) immigrants? Only people with clean legal histories? Remember that the People includes the prisoners themselves, once they're released.

If left to the People, the average citizen would likely outlaw money for all convicted criminals' healthcare.

If taxpayers don’t get to vote on who gets a kidney transplant or cosmetic surgery, why should correctional health care be any different?

rob lindeman said...

My interlocutors imply I argue for Tyranny of the Majority. I said nothing of the sort. I claim that taxpayers have a stake in how their money is spent. I will assume that no one disagrees with this point of view... does any one?

The desire to change ones secondary sexual characteristics, no matter how overpoweringly, irresistibly strong, is nevertheless not a health condition, such that the failure to "treat" it constitutes cruel and unusual punishment.

ClinkShrink said...

Here is a report from the Bureau of Justice Statistics:

A survey of former prisoners reported about 10% had been sexually abused during incarceration. Most were male prisoners who reported sexual contact with female correctional officers.

See the full report here.

Zoe Brain said...

You'll look in vain for the word "Transgender" in that report. It exists in one place, in a footnote, and accounts for why the figures for male and female don't match the total.

The figures are consistent with the California Department of Corrections and Rehabilitation report than approx 5% of inmates had been sexually assaulted in jail.

When broken down though into subgroups, a different picture emerged.

A recent academic study of the experiences of hundreds of transgender women in California’s men’s prisons — a survey that was commissioned by the California Department of Corrections and Rehabilitation — revealed that 59 percent of male-to-female transgender prisoners had been sexually assaulted while incarcerated.

A presentation on this report is here.


Prevalence of Sexual Assault
4.4% Random Sample vs
59% Transgender Sample

Prevalence of undesirable sexual acts
1.3% vs 48.3%

Weapon actually used if involved
20% vs 75%

Officer Aware of the Incident
60.6% vs 29.3%

Provision of Medical Attention (if needed)
70% vs 35.7%

Zoe Brain said...

According to Judge Richman’s opinion, Giraldo self-identifies as a "male-to-female transgender person." When she was taken into custody at North Kern State Prison, she was evaluated for placement for the duration of her sentence. She was classified as a Level III inmate with 36 points, which gave her a "primary placement recommendation" to be placed at California Medical Facility or California Men’s Colony, institutions with experience in handling transsexual inmates, where they "are relatively safer... than at other state prisons." Despite this recommendation, she was sent to Folsom and put into general male population.

"Within a week of her assignment to FSP, an inmate employed as a lieutenant’s clerk requested that plaintiff be assigned as his cellmate," wrote Richman," which request was granted. Beginning almost immediately, and lasting through late January, the cellmate ‘sexually harassed, assaulted, raped and threatened’ plaintiff on a daily basis." Then this first cellmate introduced plaintiff to "his friend, another inmate, who in late January requested that plaintiff be transferred to his cell, which request was also granted." Just weeks later, this second inmate "began raping and beating her, again daily." Although Giraldo reported this abuse to prison officials and begged to be transferred to a different cell, her requests were ignored for several weeks.

Finally, after suffering a rape and attack with a box-cutter by her cellmate on March 12, 2006, she was moved to "segregated housing." This was just days after she had told a correctional counselor about the abuse to which she was being subjected, and pleaded to be moved to a different cell, pointing out that her original classification meant she was not supposed to have been assigned to Folsom. The counselor’s reaction was to tell her to be "tough and strong," and the counselor discouraged her from taking any further action, returning her to the cell. Just two days before the final incident, she had also spoken with a medical employee, who noted the conversation in her file but took no steps to report the matter to authorities, because "I don’t want to get him into trouble."

Giraldo was moved to a unit for psychologically troubled inmates, but lived in constant fear that she might be sent back to general population and placed with another abusive cellmate.

From Giraldo v. California Department of Corrections and Rehabilitation, 2008 Westlaw 4891584 (Cal. App. 1st Dist., Nov. 14, 2008).

Zoe Brain said...


The desire to change ones secondary sexual characteristics, no matter how overpoweringly, irresistibly strong, is nevertheless not a health condition,

The medical profession disagrees. Perhaps you can give reasons why they are wrong here. They've been wrong before.

such that the failure to "treat" it constitutes cruel and unusual punishment.

The Federal Court in Fields vs Smith disagrees. I think it might be an idea reading that decision, and marshalling arguments why it is in error. Again, courts have been wrong before, so feel free to make your case.

The bar is set pretty high though.

rob lindeman said...

Hello Zoe, and others.

I appreciate the law review summary, rather than having to slog through the actual decision. I swear those things are NOT written in English!

The latter proposition follows from the first. That is, failure of Departments of Criminal Justice to alter a prisoner's secondary sexual characteristics constitutes cruel and unusual punishment only if there is general agreement that the desire to have the surgery constitutes a debilitating or fatal medical condition if left untreated. So if the "medical profession" (whoever they are, the AMA?) agrees with the proposition, then failure to authorize these surgeries does indeed constitute cruel and unusual punishment.

We are discussing surgery on body parts (mastectomy, breast augmentation, penectomy, penile construction) the 'therapeutic' objective of which is to treat a mental illness, the fixed belief that one's gender does not match one's secondary sexual characteristics. We may stipulate for the sake of argument that the latter is a bona fide illness.

The illness does not shorten life, neither does it cause any injury to a person's body or physiological functioning.

The equation of "sexual reassignment surgery" and hormone therapy with cancer chemotherapy, asserted by the majority in Fields, strains credulity to say the least. I seriously doubt any member of the medical profession would agree.

Cancer is described by well-defined pathology, pathophysiology, natural history, and in many cases, etiology. Chemotherapeutic agents for cancer act via biological mechanisms that are well-understood, and in fact can be reproduced in a laboratory. Many cancers will kill or seriously debilitate a person if not treated with chemotherapeutic agents.

Does the medical profession agree that withholding surgery and hormone therapy is equivalent to giving "therapy and pain killers" to cancer patients.

If the medical profession supposes that... the medical profession is a ass, a idiot (with apologies to Dickens)

Dinah said...

Wait, does health insurance pay for gender reassignment surgery? In my old Sexual Consultation Unit days, people had to pay for this themselves, back then to the tune of $20K (I'm sure much more now). If you can't get it paid for in free society as medically necessary, if medicare/medicaid aren't paying for it, then it shouldn't be available in prison. Should the length of the imprisonment come into play here? If you're in for a year, does the correctional system owe you something that can be done when you're out? Who determines the urgency of such things? Do they take out your gallbladder for recurrent, non-life threatening cholecystitis, or do they give antibiotics and let it cool off?
How often do they replace joints in prisoners? And finally, if you have a mastectomy in prison, do they provide reconstruction, if the patient/prisoner wants? Just curious here.

Zoe Brain said...

@Dinah - before 1980, both Medicare, VA and many insurance companies paid for it.

This ceased when Radical Lesbian Feminist professor Janice Raymond wrote a report, commissioned by the Carter administration, saying that Transsexuality was a tool of the Patriarchy to invade women's spaces and oppress them. As such it should be "morally mandated out of existence", as she wrote in her book "The Transsexual Empire".

Her mentor, Mary Daily, went even further, calling for a "Final Solution" (using that phrase), but this was obviously completely politically unacceptable. But something that was both politically correct, and would save money, only hurting a despised minority, that was a win/win.

With the withdrawal of Federal funding, State funding and then Insurance coverage soon followed suit. Any medical problem - such as a broken leg from a car crash - that was possibly related to transsexuality was no longer covered. If the victim had been taking hormones, then they might have caused the bones to become brittle. Had they not, that too might have caused the bones to become brittle. In any case, coverage was denied.

The resulting health care catastrophe over 30 years led to AMA Resolution 122, which I suggest you read in its entirety.

Insurance companies are starting to wake up to the fact that a one-off payment of $20,000 that is curative, but not covered, vs a $5000/year bill for anti-depressants and other medications and therapy sessions that are at best palliative, but are covered, is hurting their bottom line. Break-even point using 10% accrual is at 5 years.

In places where there is a welfare safety-net but high taxes, the argument is even stronger: loss of tax revenue, and payment of disability benefits, dwarfs the cost of treatment. Break-even point there is 6-12 months.

This was the Wisconsin Prison Department's argument against the Wisconsin Inmate Sex Change Prevention Act in Fields v. Smith: they couldn't afford not to treat prisoners, not unless additional funds were allocated. The costs of burials, suicide watches, medical care after auto-castrations and suicide attempts, anti-depressants and tranquilisers was just too high. There was thus no "compelling state interest" that might arguably justify such a policy.

Zoe Brain said...

A minor correction to the article:

The WPATH Standards of Care (SOC) version 3 (1981) called for a 2-year period of living as the target gender before hormones were authorised.

The Standards of Care version 6 (2001) called for one year before surgery, but allowed hormones even before that, after a 3 month evaluation period. The mortality rate from violence against people whose dress didn't match their appearance was too high.

It did require that the patient retain employment throughout the period though. It's not meant as a diagnostic test, it's a test of whether the patient's environment permits a successful transition.

There is no good evidence for either a 1- or 2-year period. However, the consequences of misdiagnosis and a malpractice suit are so high that 1 year is still standard.

Version 7 of the SOC (2011) allows this to be relaxed on a case-by-case basis, but I know of no therapist who does that except very rarely.

Cost of surgery is variable. Good MtoF surgery, the equal of anything in the USA, can be had for $12,000 in Thailand. Better surgery costs up to $22,000. Brassard in Canada, about $25,000, he's up there with the best Thai surgeons.

Brassard also does FtoM metoidoplasty, for about $35,000. The best surgeons for that are probably in Serbia, at about the same price. Most of their work is in surgical repair of war injuries - many mines laid in the conflict there were designed to castrate rather than kill.

Full phalloplasty can cost $120,000, takes a dozen operations over a decade, and only has a 30% success rate, so is less popular.

I went to Suporn in Thailand, as he is best for those like myself whose initial genitalia didn't match a male norm.

The reason I know all of this is because it's a requirement under the SOC that the patient inform themselves about various surgeons and surgical techniques, the trade-offs and risks involved. I had to take an oral exam in it.

Although I don't qualify for a GID diagnosis in the DSM-IV-TR (being Intersex is a disqualifier), for all intents and purposes I am. In the DSM-5, I would have qualified with the specifier "Disorder of Sexual Development".

It's controversial whether I should be considered to be "Gender Dysphoric" now or not. There appear to be no exit criteria.

While I have some body issues - no more so than other women my age.

I can now get out of the bath, look in a full-length mirror, and not burst into tears. That's good enough for me. For the first time in my life, my body looks normal. Plain, but normal. And for the first time in my life, it all works too.

I thought the reactive euphoria to transition would have worn off in 6 years. It hasn't.

Now I'm well and truly off-track, sorry.

Zoe Brain said...

@rob lindeman

That is, failure of Departments of Criminal Justice to alter a prisoner's secondary sexual characteristics constitutes cruel and unusual punishment only if there is general agreement that the desire to have the surgery constitutes a debilitating or fatal medical condition if left untreated. So if the "medical profession" (whoever they are, the AMA?) agrees with the proposition, then failure to authorize these surgeries does indeed constitute cruel and unusual punishment.


However... the AMA has been known to be wrong.

Let's have a look at a case study.

Secondly, “Dysphoria,” defined by Marriam-Webster’s Collegiate dictionary as “a state of feeling unwell or unhappy,” or in the American College Dictionary as “a state of dissatisfaction, anxiety, restlessness, or fidgeting” is simply too soft a word to describe the angst most clinicians see on intake with this population. At best it may be an apt descriptor for individuals who, despite strong evidence to the contrary, are making an extraordinary effort to convince themselves that they are sex/gender congruent. These individuals make life decisions such as getting married and having children not only because they may find it appealing to have a spouse and have children but with the added hope that this activity will ease or erase their obsessive cross gender thoughts. Although there may be instances where these special efforts succeed, (i.e. the incongruity is mild) the more likely outcome is a realization they have actually made matters worse. Typically, at time of presentation these individuals report that either their lives are in ruin, or they are very afraid that if their gender variant condition was to become known they would loose all that they cherish and be ostracized from family, friends and the ability to support themselves. High anxiety and deep depression with concurrent suicide ideation is common. One of the most extreme cases I have treated was that of a 50 year old genetic male, married and the father of 3 grown children with an international reputation as a scientist who reported to me that the reason he finally sought out treatment for his gender issues was because the number of times he found himself curled up in the corner of his office in the fetal position muffling his cry was increasing. That is not dysphoria, that is pure misery.
-- www.avitale.com/TherapeuticErrors.htm - currently dead link, but available via archive.com

Been there, done that. No more than once a month though, I was still functional.

My case was mild, I could live with it, just as I could live with both legs amputated. I wouldn't actually die from it.

Just want to. It was only the hope of dying early that kept me alive. (That is supposed to be a joke, but there's some truth in it).

Instead, as it turns out, I have the 3-beta-hydroxysteroid-dehydrogenase form of CAH (and atypically symptomatic at that). I had a partial female puberty at age 47, and that shattered the facade I'd built up. I couldn't not transition the rest of the way. The natural changes took me ~80% of the way there anyway.

Anonymous said...

Gender is nt binary....kudos to you all

Zoe Brain said...

Perhaps viewing the documentary Cruel and Unusual might help you understand the situation.

Anonymous said...

I think before it should be asked whether or not SRS should be performed on incarcerated individuals, the bigger problem of putting people who are gender variant in prisons which do not match their gender identity needs to be addressed, and resolved.

Regardless of a person's transition status, shy of genital surgery, placement in a penal institution is based on anatomy. That decision is problematic and cruel and pretty much guarantees that the individual will be sexually harrassed and sexually abused.

For those who think that being transsexual is not "life threatening," perhaps you should research the statistics on suicide attempts and completions, which are much higher among the transgendered/ transsexual community.

It has also been stated that becuase insurance denies payment for SRS that that is somehow "proof" that this condition is not "life threatening" or even serious enough to warrant treatment. I would like to counter that. I have severe TMJ. Unfortunately, TMJ became a condition which was being incorrectly and over-"diagnosed." Basically, physicians and dental professionals were bilking the insurance companies by claiming a person suffered from TMJ. As a result, almost ALL insurance companies refused to pay for treatment (dental appliances, surgery, etc.) for those with TMJ, even for people such as myself who can prove via X-rays, MRIs and other objective measures that I not only have the problem, but that it is causing me pain and dysfunction. I have even had to go to physical therapy for the time the muscles were in such a spasm that I could not open my mouth for several weeks. I suffer from migraine intensity headaches on a frequent basis. This is a condition which is not covered, even though I need surgery to rebuild both ends of the mandible.

We are talking about more than a quality of life issue.

People who are transsexual are not merely "unhappy" about the incongruity between their anatomy and their gender identity. The pain and anguish are much more profound and, for many, debilitating. For those who are not able to receive treatment, the consequences are life-threatening. Having to live with this condition untreated all too often has lethal consequences. It is life-threatening to withhold treatment from someone with this condition, whether or not they are incarcerated. Even those who have never been charged with a crime are often denied treatment, usually the result of a financial situation. To get the much needed treatment, far too many people are self medicating wiht hormones purchased from the black market, or are having so-called "doctors" inject their bodies with industrial grade silicone to give them the breast augmentations and "curves" they desire. It is dangerous when a medically and sanitarily produced silicone breast implant leaks. The danger of having industrial grade silicone injected into the body has untold consequences.

Why do people take such risks?


They may not be able to afford the therapy necessary to get them to the next step - having an appointment with an endocrinologist, who will then run a battery of lab tests before prescribing the hormones. Then there is the cost of the medications. For feminizing hormones, they are relatively inexpensive. But the testostone blockers are not cheap. Testosterone is extremely expensive.

Of course, getting to the point of seeing the endocrinologist is based on the presumption that the therapist one saw will agree to write the letter necessary to see the endocrinologist. The therapist is often the "gate keeper" who can either open the door to further treatment, or prevent one from getting the medical help. Some therapists say they will write the letter and then after months of therapy tell the person they are refusing to provide the letter. The therapeutic part of the process must then start anew. (Con't.)