In the United States the transgender community has a high incarceration rate making up for a significant percentage of imprisoned individuals. Within these prisons, transgender inmates suffer a great deal from discrimination and are denied proper healthcare. This takes place across all the United States.

Members of the transgender community need specific healthcare provisions due to both the physical and mental traumas they are subjected to while in detention. Specific healthcare needs include but are not limited to: HIV and STD testing, gynecological and obstetrical care, access to surgical and medical gender related care, access to hormone therapy, access to medical housing and proper mental health care tailored to a transgender individual.

To rectify this healthcare injustice, there needs to be specific transgender healthcare policies and an implementation of transgender competency trainings for correctional healthcare providers. These provisions should be enforced under the United States Constitution in order to protect the individuals and it is necessary, for the future, to criminalize this form of discrimination and ill-treatment towards the transgender community.

Proceeding to demonstrate to the United States Supreme Court that as these healthcare practices are systematically lacking in detention institutions, or aren’t provided at all, constitutes a violation of the Constitution would allow for this gender healthcare treatment discrimination to cease. If this wasn’t enough, corroborated by evidences put forward, then an appeal to the 8th Amendment and its definitions of “cruel and unusual punishments” could aid in deeming limiting access to proper healthcare illegal and thus deemed unconstitutional.

Setting the Scene

Members of the transgender community are routinely the target of discrimination and abuse in the United States. In prisons the discrimination and abuse is amplified. For transgender individuals, prisons in the United States “are traumatizing and often dangerous places” (Markshamer et al  2). Furthermore, their incarceration rate is high in comparison to other interest groups who have been imprisoned: the National Transgender Discrimination Survey states that 16% of transgender men and women have been to prison at least once. This is a much higher percentage figure than the overall 2.7% for men and women who have been in prison and than the 10.2% for men and women that have had any run-ins with the criminal justice system.  (Markshamer et al  2). Transgender individuals are found to be at risk of abuse and mistreatment by both the staff and the other prisoners. A study conducted in California prisons showed that transgender women, who have been incarcerated in male prisons, were 13 times more likely to be victims of sexual abuse than the other prisoners (Markshamer et al 3). Although such forms of discrimination and abuse are vile per se, the abuse doesn’t end there but is exacerbated due to transgender inmates having only limited access to proper healthcare, something which should be a given right to any individual, whether transgender or not.  Detention centers are to be held responsible for ensuring both the physical and mental health of all inmates: transgender inmates and/or patients of correctional health care staff should be taken care of according to both their biomedical and psychological needs.  

The Physical Health Needs of a Transgender Individual

The physical health needs of a transgender individual go beyond and differ from those of a non-transgender individual. Every transgender individual in a United States’ prison should have access to HIV and STD testing due to their high statistical risk of becoming victims of sexual abuse by both staff members and other inmates. Gynecological and obstetrical care should be provided if they have had undergone a sex change or whenever required. Access to medical or surgical gender related care should be granted as well. Transgender inmates should have access to hormone therapy, if needed, depending on their transition stage as an interruption of hormone therapy can cause mental health issues to arise such a depression and anxiety. Sex reassignment surgery should be an option and be considered and made available when deemed medically necessary. Finally, they should be granted access to medical housing due to the necessities of postoperative procedures and healing. Such physical needs are a difficult reality to face for transgender individuals and, if in prison, they should not be denied treatment continuity as such would be a discriminatory act and in some circumstances it could escalate to a neglective abuse. “Denying access to adequate healthcare for transgender individuals, such as hormone therapy, can cause undesired changes in appearance, is associated with depression, anxiety, and suicidality” (McCauley et al). A transgender inmate, in a case study conducted by McCauley et al, in 2016 stated “I put in a sick call and told the mental health person what I’m going through without my hormones. And she’s just like, ‘Well, I guess that’s normal. You need to just get out and get you an income so you don’t come back to jail’”. People do not understand the severity of the issue at hand, the negative health implications, and transgender individuals need continuous access to treatments such as hormone therapy.

The Mental Health Needs of a Transgender Individual

The mental health needs of a transgender individual go beyond and differ from those of a non-transgender individual. Counseling and therapy should be tailored to the transgender’s individual needs. Mental health evaluations should be made available which deal with an individual’s sexual orientation and gender identity. Counseling should be provided to transgender individuals who have experienced any form of sexual trauma both past and ongoing. Individuals who are experiencing gender dysphoria whilst in prison, or emotionally transition, should have access to gender related mental health care. Services should be made available that address personal issues regarding “self-acceptance, disclosure of sexual orientation or gender identity, family relationships, healthy intimate relationships, and sexual decision making” (“Transgender, Transsexual, and Gender Nonconforming Health Care in Correctional Settings”). Such specific mental health needs are necessary for transgender individuals and shall not be denied to them while in prison as such, as previously stated, is discriminatory and neglective abuse in some cases. When mental health needs are disregarded, people succumb to self harm and even suicide in some cases. In 2016, a thirty year old transgender inmate committed suicide in her cell at the Dade Correctional Institution in Florida City as a result of the prison management denying her access to comprehensive treatment for her gender dysphoria (McCauley et al). Many other inmates contemplate suicide due to the emotional abuse they experience whilst in prison: an inmate states, in McCauley et al case study, “Last night I felt like hanging myself. You know, I literally cried as I was reading my book because there was a little predicament, and I was like … You hear them all day, you faggot bitch, I’m gonna kill you”. Mental health is important and needs to be addressed in transgender inmates especially due to the higher rates of mental and physical abuse they suffer from in prisons. Access to proper mental health care needs to be established.  

How these are limited or made unavailable to transgender inmates

Such healthcare needs are limited in United States prisons. This is the result of a lack of specific policies regarding transgender needs in prisons and a lack of transgender competency trainings for correctional healthcare providers. A series of cases have arisen in the past years that document how healthcare services are limited or made unavailable to transgender inmates. Between the years of 2015 and 2016, a research study explored the “experiences for incarcerated individuals who identify as transgender in a southern jail” (McCauley et al). The primary aim of the conducted research study was to “document the health-related experiences and needs of jail detainees who self-identified as transgender women” (McCauley et al). Researchers interviewed ten transgender women of color in a southern county jail and found that the participants had experienced “high levels of abuse and harassment, solitary confinement, mental health issues, and lack of access to hormone treatment” (McCauley et al). Another research study conducted in 2016 in New England explored “healthcare providers’ knowledge, attitudes and experiences caring for transgender inmates” (Clark et al). Twenty correctional healthcare providers participated in semi-structured interviews wherein their experiences were examined in relation to caring for transgender inmates. The results showed that transgender inmates “do not consistently receive adequate or gender-affirming care while incarcerated” (Clark et al). A third research study conducted in 2015 explored “transgender women’s healthcare experiences in sex-segregated jails and prisons” (White et al). The study realized the interviews of “twenty transgender women who had been incarcerated in the United States within the past five years” (White et al). The research study found that the participants’…

“feminine identity was not recognized and the ways in which institutional policies acted as a form of structural stigma that created and reinforced the gender binary and restricted access to healthcare” (White et al).  

Both transgender bias and the limited knowledge and experience of caring for transgender patients was also cited as an issue. Another research study conducted by White et al in 2016 aimed to “adapt, deliver, and evaluate a transgender cultural and clinical competence intervention for correctional healthcare providers” (White et al). The study demonstrated how the intervention resulted in an enhanced correctional healthcare providers’ “cultural and clinical competence, self efficacy, subjective norms, and willingness to provide gender-affirming care to transgender patients” (White et al). This case study demonstrates that if correctional healthcare providers are educated and trained in “culturally and clinically competent gender-affirming care” (White et al) then healthcare can be managed and improved for transgender inmates.

Such research studies demonstrate how proper healthcare is currently limited and even made unavailable to transgender individuals in prisons as a direct result of both discrimination and a lack of competency. In a number of states there are no specific policies regarding transgender inmates, these include but are not limited to Illinois, Indiana, and Kansas. Furthermore, other states, such as Rhode Island and South Carolina, are regulated so that “state funds cannot be used for hormone therapy, and sexual reassignment surgery” (Routh et al 16). Other states, such as Virginia, classify inmates based on genital status. These policies directly undermine transgender inmates rights, while the lack of policies regarding transgender inmates further perpetuates discrimination against the transgender community as a whole. When transgender inmates are denied necessary medical care, this translates into a violation of “the Eighth Amendment of the Constitution’s protection against cruel and unusual punishment” (Oberholtzer). In 2011, the United States Seventh Circuit Court of Appeal clearly established in Field vs. Smith case “that hormone treatment and surgical treatment are medically necessary care” (Oberholtzer). Many states still violate this deliberation, and these states need to “update their policies to provide basic medical care for transgender individuals” (Oberholtzer).

Solutions

To end this discrimination towards the transgender community perpetrated by limiting their access to necessary healthcare in prisons decisive action needs to be taken. As outlined above in sections describing transgender needs in both the mental and physical health, the needs of a transgender inmate differ greatly from those of other inmates. When these needs are denied it usually leads inmates towards self-harm and in the worst cases toward suicide, as demonstrated in the case studies explored above. Overall, the research demonstrates and calls for specific transgender healthcare policy changes and the implementation of transgender competency trainings of correctional healthcare staff. “Facilities must provide adequate care for all serious medical needs, and all parts of the body, without regard to a person’s birth-assigned or self-identified gender. For example, a transgender woman over fifty may need both breast and prostate care” (“Standing with LGBT Prisoners” 52). There should be a federal healthcare policy for transgender inmates which should be then applied to every state. “Incarcerated people, have specific civil rights under the United States Constitution, state and federal statutes, and PREA regulations” (“LGBTQ People Behind Bars” 10). 

Despite this, these ‘civil rights’ are still being violated in a number of states. The 8th Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (Constitution of the United States). Denying or not providing for proper access to necessary healthcare is a form of cruel and unusual punishment that is inflicted on a daily basis in United States prisons against transgender individuals, and this can cause direct harm to the individuals. It is for all so far presented that I direct my report to the Transgender Law and Policy Institute so that experts and advocates may be brought together to work on further investigating the outlined above case studies analysing their unlawful aspects and creating policy initiatives in order to advance transgender equality. This done, it will allow us to appeal up to the United States Supreme Court and demonstrate that limitations to access to healthcare for transgender inmates is in direct violation of the United States Constitution and the 8th Amendment. Health care neglects should be deemed unconstitutional as well as to not have regulations or having limited and discriminatory laws regarding transgender healthcare in prisons. 

If the Supreme Court was not to recognize such acts as unconstitutional then invoking the 8th Amendment could allow for a clarification of what additional cruel and unusual punishments entail for transgender inmates. This would help in demonstrating again that denying proper access to required healthcare, because of being transgender, constitutes a cruel and unusual punishment that is inflicted upon transgender individuals in prisons. Furthermore, it could call for transgender healthcare prison policies to be changed and then enforced by the authorities as denying them would be again in direct violation of the Constitution. We need to ensure that the plea for gaining proper transgender health care policies for inmates be heard and the ill-treatment and for discriminatory practices within the healthcare correctional system to cease across the entirety of the United States. 

Analysis

These practices or lack thereof within the correctional healthcare system in the United States directly perpetuate discrimination against the transgender community in the United States. Transgender inmates should have their right to proper access to healthcare services granted and which are tailored both physically and mentally to their individual needs. Research studies have long demonstrated the regular manifestation of this unjust treatment of transgender individuals in prisons, thus a change needs to occur on a grander basis as a number of states still apply healthcare policies that are discriminatory towards transgender inmates or simply have no specific policies regarding transgender inmates. The lack of competency or a present transgender bias within the correctional healthcare system of the United States is denying transgender inmates proper medical treatment and followup that — if denied — can result in serious mental health issue developments and physical trauma.   

Conclusions

The transgender community is marginalized and discriminated against in the United States. Imprisonment only amplifies such discrimination and creates for an environment that promotes the ill-treatment of the transgender community. Specific healthcare is an important necessity for the transgender community and when they are deprived of access to proper healthcare within prisons they become subject to endangerment which can negatively affect permanently a transgender individual’s health, even to the risks of self-harm and of their lives. Policies and competency requirements for correctional healthcare providers need to be urgently applied across the entirety of the United States to address transgender community rights violation, thus protecting a community that is demonstrated to be discriminated against on a daily basis and receives severe ill-treatment in prisons. Rectifying the discriminatory practices or lack thereof by combining the forces and resources of The National Commission on Correctional Health Care with those of the Transgender Law and Policy Institute can allow us to initiate legal actions and call for changes in policies by demonstrating that limiting healthcare to transgender inmates is unconstitutional and in direct violation of the 8th Amendment. This coalition would aid in creating a legal report that could then be taken to higher powers in order to ensure that a step further toward appropriate and just transgender correctional healthcare policies is taken to promote transgender recognition and dignity. 

Works Cited

  • Clark, Kirsty A, et al. “‘What’s the Right Thing to Do?” Correctional Healthcare Providers’ Knowledge, Attitudes and Experiences Caring for Transgender Inmates.” Social Science & Medicine (1982), U.S. National Library of Medicine, Nov. 2017, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC5695233/.
  • “Constitution of the United States – We the People.” Constitution for the United States – We the People, constitutionus.com/.
  • “LGBTQ People Behind Bars: A Guide to Understanding the Issues Facing Transgender Prisoners and Their Legal Rights.” National Center for Transgender Equality.
  • Marksamer, Jody, and Harper Jean Tobin. “Standing with LGBT Prisoners: An Advocate’s Guide to Ending Abuse and Combating Imprisonment.” National Center for Transgender Equality.
  • McCauley, Erin, et al. “Exploring Healthcare Experiences for Incarcerated Individuals Who Identify as Transgender in a Southern Jail.” Transgender Health, Mary Ann Liebert, Inc., 1 Feb. 2018, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC5831751/.
  • Oberholtzer, Elliot. “The Dismal State of Transgender Incarceration Policies.” Prison Policy Initiative, 8 Nov. 2017, http://www.prisonpolicy.org/blog/2017/11/08/transgender/.
  • Routh, Douglas, et al. Transgender Inmates in Prisons: A Review of Applicable Statutes and Policies. International Journal of Offender Therapy and Comparative Criminology, 2015.
  • “Transgender, Transsexual, and Gender Nonconforming Health Care in Correctional Settings.” National Commission on Correctional Health Care, http://www.ncchc.org/transgender-transsexual-and-gender-nonconforming-health-care.
  • White Hughto, Jaclyn M, et al. “Creating, Reinforcing, and Resisting the Gender Binary: a Qualitative Study of Transgender Women’s Healthcare Experiences in Sex-Segregated Jails and Prisons.” International Journal of Prisoner Health, U.S. National Library of Medicine, 11 June 2018, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC5992494/.
  • White Hughto, Jaclyn M, et al. “Improving Correctional Healthcare Providers’ Ability to Care for Transgender Patients: Development and Evaluation of a Theory-Driven Cultural and Clinical Competence Intervention.” Social Science & Medicine (1982), U.S. National Library of Medicine, Dec. 2017, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC5712271/.

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