7th Cir: Wis. Inmate Sex Change Prevention Act Violates Eighth Amendment

A unanimous Seventh Circuit panel upheld a district court’s ruling that Wisconsin’s Inmate Sex Change Prevention Act (“Act 105”) violates the Eighth Amendment’s ban on cruel and unusual punishment. Fields v. Smith, Nos. 10-2339 & 10-2466, 2011 WL 3436875 (7th Cir. Aug. 5, 2011). While the U.S. District Court for the Eastern District of Wisconsin also held that Act 105 violates the Equal Protection Clause of the Fourteenth Amendment, the Seventh Circuit panel found it unnecessary to address that holding given its conclusion that Act 105 violates the Eighth Amendment. Judge Joan B. Gottschall, a U.S. District Court Judge for the Northern District of Illinois who was sitting on the Seventh Circuit by designation, wrote the opinion. Judge Gottschall was nominated for the federal bench by former President Bill Clinton. Judge Diane Wood (also nominated for the federal bench by Bill Clinton) and Judge Ilana Rovner (nominated for the federal bench by former President George H.W. Bush) joined in the opinion.

Act 105, passed by the Wisconsin Legislature in 2005, bars the Wisconsin Department of Corrections (“DOC”) from using state or federal funds to provide hormone therapy or sexual reassignment surgery to transgender individuals who are incarcerated. Initially, a number of DOC inmates filed a class action challenging this law, but the district court denied the plaintiffs’ motion for class certification. The district court, however, allowed the case to proceed to trial on the individual claims of three plaintiffs.

The three plaintiffs – all male-to-female transgender individuals who had been diagnosed with Gender Identity Disorder (“GID”) – called a number of expert witnesses at trial, and the district court credited much of the experts’ testimony. The experts explained that GID can cause an individual to feel that his or her physical appearance does not match his or her true gender identity. The experts testified that individuals with GID may experience dysphoria, an emotional stated marked by anxiety, depression, and restlessness. The experts also explained that while some individuals with GID are able to manage their dysphoria, others are unable to function without taking appropriate steps to correct the disorder. The accepted standards of care for GID require individuals to be treated with psychotherapy and to experience living as the opposite gender. In more severe cases, hormone therapy is required. Hormone therapy, however, is not without its risks. If hormones are withdrawn from a patient prematurely, severe complications may arise. For instance, a patient may experience severe forms of dysphoria and other psychological symptoms. A patient may also experience physical effects, including muscle wasting, high blood pressure, and neurological complications. All three plaintiffs experienced some of these symptoms after the passage of Act 105 forced DOC doctors to discontinue the plaintiffs’ hormone therapy.

The Seventh Circuit panel began its review of the district court’s ruling by discussing the Eighth Amendment’s ban on cruel and unusual punishment, which prison officials violate “when they display ‘deliberate indifference to serious medical needs of prisoners.’” Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The Defendants in Fields did not challenge the district court’s ruling that GID is a serious medical condition; instead, they argued, amongst other things, that Act 105 is constitutional because state legislatures have the power to ban certain methods of medical treatment when others are available, and because Act 105 is needed to ensure security in state prisons.

In response to the Defendants’ argument that other methods of medical treatment are available, Judge Gottschall first explained that stipulated facts in an earlier trial revealed that the cost of providing hormone therapy is between $300 and $1,000 per year, which is significantly less than the cost of administering antipsychotic drugs (which costs more than $2,500 per inmate per year). See Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997). Judge Gottschall also noted that the district court in Fields concluded that the DOC might incur greater costs by refusing to administer hormone therapy to individuals with GID since other forms of treatment are more expensive than hormone therapy. Fields v. Smith, 712 F. Supp. 2d 830, 863 (E.D. Wis. 2010). More important to Judge Gottschall, though, was the fact that the Defendants failed to produce any evidence that there is an adequate replacement for hormone therapy. Judge Gottschall concluded by stating that “[j]ust as the legislature cannot outlaw all effective cancer treatments for prison inmates, it cannot outlaw the only effective treatment for a serious condition like GID.”

The Defendants next argued that Act 105 is constitutional because it preserves prison security. According to the Defendants, hormone therapy makes inmates more susceptible to prison violence because it feminizes them. The Seventh Circuit panel noted that the Defendants’ own security expert testified that it was “an incredible stretch” to conclude that Act 105’s ban on hormone therapy increases prison security. Judge Gottschall concluded that the district court was correct in ruling that the Defendants failed to establish any security benefit associated with a ban on hormone therapy.

The Seventh Circuit panel also held that the district court did not err by allowing a facial challenge of the constitutionality of Act 105 or by enjoining the entirety of Act 105. Regarding the facial challenge to the law, Judge Gottschall concluded that “any application of Act 105 would necessarily violate the Eighth Amendment.” Based on that fact, the panel agreed with the district court that enjoining Act 105 in its entirety is necessary to avoid constitutional violations.

Because the Seventh Circuit panel concluded that Act 105 violates the Eighth Amendment both on its face and as applied to the three plaintiffs, Judge Gottschall ended the opinion by stating that it was unnecessary for the panel to review the district court’s ruling that Act 105 violates the Equal Protection Clause of the Fourteenth Amendment.

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