A federal judge in California has ruled that a transgender prisoner must be provided with the sex reassignment surgery (SRS) that her doctors have said is medically necessary “as promptly as possible.” The prison’s blanket denial of SRS for any trans inmate violated Michelle-Lael Norsworthy’s rights to adequate medical care under the Eighth Amendment, which protects against cruel and unusual punishment.
Norsworthy’s case closely mirrors Michelle Kosilek’s case in Massachusetts, which she recently appealed to the Supreme Court. Norsworthy was convicted of murder in the second degree with use of a firearm in 1987 and sentenced to seventeen years to life in prison, though she has been eligible for parole since 1998. In prison, she has been allowed to identify as a woman and provided some hormone therapy, but has been denied SRS.
Not unlike what transpired in the Kosilek case, the California Department of Corrections and Rehabilitation (CDCR) sought out the medical opinion of someone predisposed against offering SRS to patients. Norsworthy was referred to Dr. Stephen Levine, who insisted that the standards of care created by the World Professional Association for Transgender Health (WPATH) require patients to live “a real life experience” for one year prior to SRS, an opportunity inmates cannot have. He also described SRS as “always an elective procedure. There is no immediacy to it.”
In reality, the WPATH standards only specify “one year of continuous living in a gender role that is congruent with one’s gender identity,” which Norsworthy has done for years. The standards also specifically state, “People should not be discriminated against in their access to appropriate health care based on where they live, including institutional environments such as prisons or long-/intermediate-term health care facilities.”
U.S. District Judge Jon Tigar eviscerated Levine’s expert testimony in his ruling. “The Court gives very little weight to the opinions of Levine,” he wrote, “whose report misrepresents the Standards of Care; overwhelmingly relies on generalizations about gender dysphoric prisoners, rather than an individualized assessment of Norsworthy; contains illogical inferences; and admittedly includes references to a fabricated anecdote,” adding that “his opinion is not credible because of illogical inferences, inconsistencies, and inaccuracies in the report.”
The CDCR also argued that Norsworthy’s symptoms, including ongoing mental anguish and recurring suicidal ideation (including two suicide attempts), could be managed with hormone therapy and counseling. But without SRS, she faces critical physical health concerns as well. Norsworthy has been raped in prison on six occasions, “including one 2009 incident in which nine inmates assaulted her over a period of six hours,” which led to her being infected with Hepatitis C. The Hepatitis C is damaging her liver, damage that is exacerbated by the hormone replacement therapy provided by CDCR. Norsworthy happens to also be allergic to spironolactone, the most common anti-androgen used in treatment of transgender women, which requires her to receive an alternative that increases her risk for breast cancer, heart disease, and liver toxicity. SRS would reduce her dependence on the hormone treatments that threaten her health.
Tigar also found in favor of Norsworthy’s complaint that “prison officials were deliberately indifferent to her serious medical need” based on “compelling evidence suggesting that prison officials deliberately ignored her continuing symptoms of gender dysphoria and the recognized standards of care; that they were deliberately indifferent to the recommendations of her treating health care provider; that CDCR’s reasons for denying SRS are pretextual; and that CDCR has a blanket policy against providing SRS for transgender inmates.” In particular, the prison overrode the recommendation made by Norsworthy’s doctors by “deliberately seeking out a contrary opinion.”
The Transgender Law Center, which helped represent Norsworthy, applauded the decision. Executive Director Kris Hayashi noted, “There is a clear medical consensus that health care related to gender transition is necessary — and life-saving — for many people. This decision confirms that it’s unlawful to deny essential treatment to transgender people. With this historic decision, Michelle will now be able to get the medical care she desperately needs.”
In a filing issued Friday for a similar case, the Justice Department condemned prisons that don’t provide adequate medical care to transgender inmates.
The CDCR has not decided whether it will appeal the decision or not.