https://journalofethics.ama-assn.org/article/gender-affirming-care-incarceration-and-eighth-amendment/2023-06
Gender-Affirming Care, Incarceration, and the Eighth Amendment
Jennifer Aldrich, MD, Jessica Kant, MSW, LICSW, MPH, and Eric Gramszlo
Citation
Abstract
As outlined in Estelle v Gamble (1976), the 8th Amendment to the US Constitution requires that states provide adequate care for people who are incarcerated—but what constitutes “acceptable” care under professional guidelines is frequently at odds with the standard of care used by clinicians outside of carceral facilities. Outright denial of standard care runs afoul of the Constitutional prohibition on cruel and unusual punishment. As the evidence base that undergirds standards of care in transgender health has evolved, people who are incarcerated have sued to expand access to mental health and general health care, including hormonal and surgical interventions. Carceral institutions must transition from lay administrative to licensed professional oversight of patient-centered, gender-affirming care.
Transgender Care in Carceral Settings
Transgender people, especially those who are Black, Indigenous, and people of color, are disproportionately incarcerated, with 16% of all respondents in a 2011 national survey of transgender people reporting having a history of incarceration in jail or prison; the rate for Black respondents was 47% compared to a general population rate of 2.7%, although the latter figure is limited to state and federal prison systems.1 It is estimated that there are nearly 5000 transgender people residing in US state prisons2 and that another 1200 are incarcerated in the federal system.3
In the United States, ''no unified policy exists for the housing of and the delivery of health care to transgender and nonbinary prisoners ''in carceral settings. Variation can be found in state policies pertaining to where transgender and nonbinary prisoners are housed and with whom, what medical care they can access, and under which circumstances they are eligible for said care.4 The policies governing jails and detention centers also vary by agency and county. Although policies vary, clinicians’ ethical imperative to advocate for stronger protections for transgender people who are incarcerated and for best practices with respect to their care does not. In this paper, we seek to establish that, for transgender people who experience significant distress related to their inability to access gender-affirming hormonal and surgical therapy while incarcerated, legal protection under the Eighth Amendment provides remedy. We also show that the United States regularly fails to meet the needs of transgender people who are incarcerated notwithstanding this legal standard and that remedy requires a lengthy judicial process to which few people who are incarcerated have access.
Anon: The mental gymnastics here is fucking amazing…