Litigation on Gender Confirmation Surgery and Hormonal Therapy among Trans Women Prisoners: Views from the U.S. Circuit Courts of Appeals

Abstract

This article analyzes U.S. Circuit Courts of Appeals’ cases involving Title 42 U.S.C. §1983 actions filed by trans women inmates against corrections and/or medical officers for failure to provide hormone therapy and/or gender confirmation surgery (“GCS”) (N = 24). The courts varied in their decisions. The Ninth Circuit has been more progressive toward trans rights, holding that GCS can be medically necessary depending on the individualized needs of the transgender inmate because there is a medical consensus on the appropriateness of these treatments. The First and Fifth Circuits rejected requests for GCS because of the lack of medical consensus on the necessity of GCS. Both the Seventh and Eleventh Circuits held that failure to provide medically recommended care for a non-medical reason and unexplained delays in treatment can constitute deliberate indifference, violating the Eighth Amendment. Under Tenth Circuit precedent, prison officials are not deliberately indifferent for failing to provide hormone treatments.