California prisons take lead on transgender rights

Transgender inmate Michelle-Lael Norsworthy speaks during her parole hearing at Mule Creek State Prison in Ione. California is the first state to allow transgender inmates to receive state-funded sex-reassignment surgery. The state spent years in court fighting the policy.
Transgender inmate Michelle-Lael Norsworthy speaks during her parole hearing at Mule Creek State Prison in Ione. California is the first state to allow transgender inmates to receive state-funded sex-reassignment surgery. The state spent years in court fighting the policy. The Associated Press

When it comes to the fight for basic rights and acceptance, few people have it tougher than transgender Americans. They are marginalized, mocked and misunderstood. Evidence of their struggle shows up in frighteningly disproportionate statistics about depression, anxiety and suicide.

And yet, change is happening. Last month, responding to successful lawsuits by two transgender state prisoners and rumblings about transgender rights from the U.S. Justice Department, California became the first state to allow transgender inmates to qualify for taxpayer-funded, sex reassignment surgery.

The decision, unimaginable a few years ago, underscores as a matter of state policy that such surgery is not frivolous or cosmetic. Rather, for some people diagnosed with severe gender dysphoria, it’s a necessary and appropriate medical treatment of the sort that states, by law, must provide to prisoners. Corrections officials declined to speculate about how many prisoners might get the surgery. But given the rigorous standards to qualify for it, it’s likely to be a small number and, therefore, a drop in the bucket of the state’s $10.2 billion corrections budget.

California fought this decision for years. But by being forced to go first, the state is likely to wind up providing a path for other states that incarcerate transgender prisoners.

Nationally, transgender Americans are locked up at six times the rate of the general population, according to San Francisco’s Transgender Law Center. Transwomen in male prisons are disproportionately targets of sexual assault. Generally, more than 40 percent of transpeople try to kill themselves at some point. And yet many states have resisted making even the smallest accommodations for transgender inmates.

Part of the reason is there’s confusion about what being transgender actually means. Clinically, it’s being diagnosed with gender dysphoria, which, according to the American Psychological Association, is the distress, ranging from the tolerable to the acute, caused by a discrepancy between someone’s gender identity and gender assigned at birth. It is not being a cross-dresser, which is more about “gender expression” and, possibly, “gender nonconformity.”

California long has understood – or at least accepted – this distinction. The Department of Corrections and Rehabilitation has been providing transgender inmates with hormone therapy medication for years. Other states had to be forced into it, the latest being Georgia, which chose to release an inmate on parole rather than administer the medication as ordered by the U.S. Justice Department.

But even here there has been confusion over what constitutes “necessary and appropriate medical treatment” for gender dysphoria. California, with the recent policy change, is using a model based on widely accepted guidelines from the World Professional Association for Transgender Health.

Only prisoners with more than two years left before they’re eligible for parole will be considered – and only inmates who consistently have demonstrated a desire to live and be accepted by a different gender identity, including asking for the surgery for at least two years. Most important, prisoners must be on hormone therapy and live as a member of the opposite sex for at least one year – a real test of a person’s resolve given that, much to the displeasure of transgender advocates, California houses prisoners by their biological sex, not their gender identity, before reassignment surgery.

The final decision in each case will be made by committees of physicians and psychologists. The state will cover mastectomies and surgeries to remove and reconstruct reproductive organs. It won’t pay for cosmetic surgeries, such as laser hair removal or breast implants. Once you add the cost for security, each surgery could cost $100,000.

How many people will ask for it is unclear, in part because sex reassignment is only one treatment available among many for gender dysphoria. The level and type of treatment often depends on the patient’s level of distress over the mismatch of their body and gender identity. Many decide to stick with counseling or hormone therapy, while others can integrate their feelings into the gender they were assigned at birth. Others are so distressed they need surgery to feel sane.

It’s also unclear how many people in California’s prison system have gender dysphoria. About 400 inmates are receiving hormone therapy, most of them transwomen. Hormone therapy costs up to $3,000 per inmate per year.

It’s an expensive proposition, even if we’re only talking about a few hundred prisoners out of more than 112,000 in the state’s 34 prisons. There’s no guarantee hormone therapy or sex reassignment will work. Neither treatment is a cure-all.

People who make the transition often still get abandoned by friends and family, and ostracized by society, in this case, by prison staff and other inmates. Because of that, they may still find themselves wracked with depression and suicidal thoughts, even if their bodies better match their gender identity.

But medical trade groups agree that most transgender people who truly want the surgery and get it are better off. This is particularly true if they continue to receive counseling. So it is critical that the state corrections officials follow through with plans to provide such services for prisoners who undergo sex reassignment.

Broadly, however, Californians can be proud to be out in front in advancing the humane treatment of a group that has been doubly shunned by society, as people and as prisoners. Constitutional rights apply to us all, and California should make the most of this chance to show the rest of the country how to do the right thing, even for those who are behind bars for doing the wrong thing.