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Constitutional Law | Law | Sexuality and the Law


This article explores whether a state law imposing a flat ban on the use of funds to provide cross-gender hormones or sex-reassignment surgery for prisoners diagnosed with GID satisfies the Eighth Amendment standard of deliberately indifferent to serious medical needs. In other words, the issue is whether it constitutes cruel and unusual punishment for a state to refuse to provide hormones or sex-reassignment surgery to GID prisoners. The district court in Kosilek v. Spencer1 held that it does: the state violated the Eighth Amendment in providing feminizing hormones to Kosilek but refusing to provide him sex-reassignment surgery. Part I of this article lays out a state’s obligation to provide medical treatment to its prisoners consistent with the Supreme Court’s current Eighth Amendment precedent. Part II discusses issues unique to a state’s determination of proper treatment for GID prisoners. Those issues primarily focus on the conflicting views in the medical community on the proper treatment of GID patients. Part III highlights several recent court decisions that exemplify the conflicts discussed in Part II, including whether a state’s obligation differs with respect to GID prisoners who commenced hormonal treatment before entering the prison system and those who were diagnosed with GID while in prison. Part IV asserts that a state acts consistently with its Eighth Amendment obligations when it prohibits the use of any funds for hormonal therapy or sex-reassignment surgery of GID prisoners. The proper course of treatment for GID should be to treat the underlying causes of the psychological distress, not to alter the prisoner’s physical characteristics to match the gender the prisoner believes he should be.