California is first in the nation to agree to pay for a transgender inmate’s sex reassignment operation, but the state’s settlement of a recent court case sidesteps the question of whether such surgery is a constitutional right.
The state concedes that Shiloh Quine, who entered the California prison system in 1980 as Rodney, suffers severe gender dysphoria that can be treated only by physically conforming her body to her psychological gender.
The agreement to settle Quine’s federal lawsuit seeking the surgery was announced late Friday, with a brief statement from the corrections department that “every medical doctor and mental health clinician who has reviewed this case, including two independent mental health experts, determined that this surgery is medically necessary for Quine.”
Quine’s victory was made possible by another inmate, Michelle Norsworthy, born as Jeffrey, who in April won a federal court order for surgery to reshape her genitals. Gov. Jerry Brown on Friday allowed a parole grant for Norsworthy instead, making that ruling moot days before an appellate panel was to hear California’s legal challenge.
In both instances, California prison officials had denied the surgeries, arguing that sex reassignment was not medically necessary. The state’s position was undermined in June when its own expert concluded that Quine required the operation.
“Sex reassignment surgery is medically necessary to prevent Ms. Quine from suffering significant illness or disability, and to alleviate severe pain caused by her gender dysphoria,” wrote Richard Carroll, a clinical psychologist and director of the Sexual Disorders and Couple Therapy Program at Northwestern University in Chicago. Surgery, he said, would reduce her “depression, anxiety and risk of suicide attempts.”
Waiting until she got out of prison was not an option. Quine is serving a life sentence without parole for murder.
“A settlement is not a precedent, but I suppose it gives a little ammunition to the next guy, to say you did this for him, why not me?” said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, a conservative organization based in Sacramento that weighs in on criminal justice litigation across the nation. Those requests are bound to eventually force another legal challenge, he said.
“The idea that the 8th Amendment requires something for prisoners not available to the law-abiding public is something a lot of people find offensive,” Scheidegger said.
California has nearly 400 transgender inmates receiving hormonal treatment, according to prison medical data. Quine’s lawyers said their research shows the cost of the operation she seeks ranges from $15,000 to $25,000.
Litigation over surgery marks a “gigantic” progression in the rights of transgender inmates, said Valerie Jenness, dean of the School of Social Ecology at UC Irvine and a prominent researcher in the field. Her work documented the high incidence of sexual assault of transgender inmates in California, at nearly 60%.
“You can see the evolution,” Jenness said.
California’s settlement and Norsworthy’s parole allow the state to avoid for now the danger of a higher court ruling putting sex-change surgeries on par with other medical procedures, with implications beyond the state’s prisons.
Even without such a decision, Quine’s lawyers said they believe the precedent has been set.
“This is clearly where the law is going and where the entire health industry is going,” said Ilona Turner, legal director at the Transgender Law Center in Oakland, which handled the cases of Norsworthy and Quine. “These exclusions in health management plans are illegal.”
The U.S. Department of Health and Human Services in May 2014 lifted its own exclusion on transgender services under Medicare, the national health insurance provider for seniors, allowing the tax-supported program to cover “gender-confirming” procedures endorsed by a patient’s physicians.
Quine, who turned 56 on Friday, has been incarcerated since her Los Angeles County conviction in 1980 on first-degree murder, kidnapping and robbery. During that time, her legal filings show, she has repeatedly attempted suicide. In April 2014, a prison psychologist assessing Quine wrote that he believed sex reassignment was “reasonable and necessary to alleviate severe pain.” When prison officials again denied the surgery, Quine in June 2014 tried once more to kill herself.
“I’m in severe pain,” she wrote in a prison appeal after a state board recommended moving Quine to a maximum security unit. “I feel tortured and now being placed in future substantial risk of harm.”
She has lived openly as a woman since 2008 and in 2009 began hormone treatment prescribed by her prison physicians. However, the prison system has denied her attempts to legally change her name, and she has filed numerous legal challenges seeking to require “sensitivity training” for prison officers and for officers to address her with feminine pronouns.
She is housed at Mule Creek State Prison, one of nine male institutions to which California sends transgender women. Transgender inmates often are housed apart from the general population in so-called sensitive needs yards, among child molesters, gang dropouts and others whose lives might be at risk.
Under Friday’s settlement agreement, Quine will be moved to a women’s prison if she completes surgery.
Until now, California has had only one other transgender woman inmate at a women’s prison. The state’s decision to reclassify and put Sherri Masbruch, a convicted rapist, among women caused an uproar in 2009. To this day, the California corrections department keeps her location secret, said corrections spokeswoman Terry Thornton. Prison officials in court have said Masbruch has been moved repeatedly in response to threats and assaults.
“Arranging for an inmate’s sex reassignment surgery, providing the necessary security during hospitalization and ensuring that appropriate placement is available for both postoperative recovery and placement have no precedent in California’s prison system, or in any other U.S. correctional environment of which I am aware,” state prisons director Kelly Harrington said in a May deposition.
The issue of whether transgender inmates have a constitutional right to sex reassignment surgery was taken up by a federal judge in San Francisco, Jon Tigar, an appointee of President Obama.
Tigar had been on the bench less than two years last fall when he assigned himself to Quine’s complaint and appointed a team of lawyers at a San Francisco firm and at the Transgender Law Center to represent her.
He already had Norsworthy’s litigation before him. He noted the nation had yet to see a federal appeals court ruling on whether denying an inmate’s doctor-prescribed sex change constituted “deliberate indifference” to a serious medical need. If it did, it would violate the 8th Amendment’s bar on “cruel and unusual punishment.”
At the time, Tigar said that precedent might be set on the East Coast, in the long-running litigation of Massachusetts transgender inmate Michelle Kosilek.
It took Kosilek a decade to win the right to hormone treatment in 2002. In early 2014, with supporting briefs from national organizations such as the American Civil Liberties Union, a panel of 1st Circuit Court of Appeals justices ruled that Kosilek, who had repeatedly tried to kill and to castrate herself, had a constitutional right to sex reassignment surgery as a medical necessity.
But two months later, a special panel of the Boston-based appellate court recalled that ruling and in December, the full court denied surgery to Kosilek. The majority opinion raised questions of prison security. Massachusetts had contended that a gender-reassigned Kosilek would be unsafe to house anywhere: a target for assault in a male prison, a source of mental distress for female inmates who had been victims of domestic abuse.
The state offered instead to provide suicide therapy if needed.