Prisoner’s Trans Suit Upheld

New Hampshire inmate invokes the 8th Amendment in appeal for hormone therapy

The ruling in favor of Lisa Barrett, who is representing herself in the lawsuit, demonstrates the importance of the growing body of published court decisions in empowering transgendered prisoners to assert their interests in the courts.

According to the opinion by Magistrate Judge James R. Muirhead, Barrett, who was born male, “is psychologically and emotionally female,” and prior to incarceration “had lived as a female since the age of seventeen, and had cross-dressed at a much earlier age pursuant to her long-held belief that she is, in fact, female.”

In her complaint to the court, Barrett alleged that she had been receiving female hormones by prescription from a physician, and that the medical department at Belknap County House of Corrections continued to provide that medication to her. The hormone treatment had resulted “in some physiological changes, including minor breast development.”

However, when Barrett was transferred to the state prison, the examining physician on her intake procedure discontinued her medication. Barrett claims to have been told that her medication was stopped pursuant to a prison policy against medical treatment for transsexual prisoners. Although Barrett advised the prison staff repeatedly that she was suffering from gender identity disorder and required treatment, her requests were repeatedly rebuffed.

During this time in a male prison, Barrett has attempted “to the extent possible to modify her appearance and behavior in order to live as a woman.” She has also attempted suicide and threatened to “mutilate her own male genitalia.” Despite this, the prison has refused to provide an individualized assessment of her condition by a gender identity specialist or to provide any psychological or medical treatment.

Barrett obtained a copy of the U.S. District Court opinion in the case of Kosilek v. Maloney, decided in Boston last year, that ordered the Massachusetts prison system to offer hormone treatment to Michelle Kosilek. Seeing that her situation was very similar to that of Kosilek, Barrett drafted her own federal court complaint and filed it with the U.S. District Court in New Hampshire. Such complaints are routinely referred for screening to magistrate judges appointed to assist federal district judges.

After noting the resemblance of this case to Kosilek’s case, Muirhead found that Barrett’s complaint clearly stated a valid claim for violation of the Eighth Amendment of the Constitution, which prohibits cruel and unusual punishment. The Supreme Court has interpreted this to mean that prison authorities may not deliberately disregard and fail to provide treatment for serious medical conditions of inmates.

The Kosilek case and several other cases decided in different federal districts over the past several years have established that gender identity disorder is a serious medical condition, and that any inmate who credibly claims to be suffering from it deserves assessment and appropriate treatment. Federal courts have not to date ordered state prison systems to provide gender reassignment surgery, but they have required psychological treatment and hormone therapy.

Several court decisions have made clear, as Muirhead noted, that official policies of providing no treatment cannot withstand judicial review, and that prison officials who maintain such policies may have personal liability to prisoners under the Eighth Amendment. The officials’ liability, however, is only in their individual capacities, since their actions as state officials are immune from federal suit under the Constitution’s immunity clause.

Nonetheless, Muirhead auth-orized the federal marshal to serve copies of the complaint on the prison officials individually named as defendants, who were instructed to make some response within 20 days of receiving the complaints.

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