Sex-change drugs a right, judge says

Original Post: JS Online
By: Bruce Vielmetti

A federal judge has struck down a Wisconsin law that prohibits prison inmates from getting hormone therapy to treat gender identity disorder.

U.S. District Judge Charles N. Clevert Jr., who presided over a civil trial challenging the law in 2007, issued a ruling late Wednesday and declared the statute unconstitutional on several grounds. Clevert's order indicated a longer memorandum decision would follow.

In early 2006, Clevert had issued a preliminary injunction to allow the hormone therapy to continue.

In Wednesday's order, Clevert found that the law amounts to "deliberate indifference to the plaintiffs' serious medical needs in violation of the Eighth Amendment," because it denies hormone therapy without regard to those needs or doctors' judgments. He found the law unconstitutional on its face and also in violation of the inmates' rights to equal protection.

"We're very excited about it," said Laurence Dupuis, legal director of the ACLU of Wisconsin Foundation, which represented the three named plaintiffs in the case. Lambda Legal, a national advocacy group, was also part of the plaintiffs' legal team.

"There have been other states with policies similar in ways to this and that were generally struck down or settled, but this was the first one with a statute passed by a legislature," Dupuis said.

Another ACLU attorney on the case, John Knight, called the decision common sense.

"The court's ruling doesn't require inmates to receive hormones or surgery for sex reassignment," Knight said. "It simply means that doctors are the ones who make the decisions about treatment."

He estimated that fewer than a dozen inmates are affected.

State lawmakers passed the Sex Change Prevention Act in 2005 in reaction to the case of a Wisconsin inmate who had been receiving the hormones for years, but sued when the Department of Corrections would not pay for sex-change surgery. Similar challenges were mounted in other states.

Though Clevert's ruling doesn't address surgery, Dupuis said he thinks the ruling supports the principle that any medical care in prisons must be based on medical judgment, which means the surgery would at least be theoretically possible.

But Dupuis said the case has broader implications.

"It's important to transgendered inmates, but also for other people in the system who have conditions that are unpopular and on which politicians might think they could make hay," he said.

State Rep. Mark Gundrum (R-New Berlin), a co-sponsor of the Sex Change Prevention Act, said he expects Clevert's ruling will be appealed.

"There's no way the Eighth Amendment's prohibition against cruel and unusual punishment actually requires that taxpayers fund sex change operations for prisoners," he said.

Rep. Scott Suder (R-Abbotsford), another sponsor of the law, called Clevert's ruling "a travesty of justice" that should be appealed immediately.

"This ruling puts a higher priority on helping inmate Tommy become Tammy than protecting the pocketbooks of law abiding citizens," Suder said.

Bill Cosh, speaking for the Department of Justice, said the agency is reviewing the matter for possible appeal.