Eighth Amendment Jurisprudence and Transgender Inmates: The “WPATH” to Evolving Standards of Decency
By: Bryce Daniels
Published in: Michigan State Law Review, Vol. 2021, No. 1, 2021
There has never been a greater opportunity in American history to address the challenges facing gender dysphoric inmates than now. Gender dysphoria is a mental illness characterized by severe distress at the incongruence between one’s sex and one’s internalized gender identity.
Federal courts have signaled a willingness to consider the unique mental health challenges facing gender dysphoric people incarcerated in state and federal prisons as covered under “cruel and unusual punishments” jurisprudence requiring “adequate medical care.” One such remedy federal courts have been called upon to require is “sex reassignment surgery” (“SRS”). Such surgery would change the petitioning inmate’s anatomy or secondary sex characteristics to more closely align with [their] internalized gender identity.
The sister circuit split between the 1st Circuit, 5th Circuit, and 9th Circuit illuminates the diverse analytical methodologies that courts and petitioners have implemented to adjudicate and resolve challenged institutional “deliberate indifference” to gender dysphoric inmates’ medical necessities.
However, there is a notable commonality between all three circuits—the reliance on the World Professional Association for Transgender Health (“WPATH”) Standards of Care (“Standards”). The Standards are compared against existing jurisprudence for determining the scope of the Eighth Amendment, and the juxtaposition leaves much to be legally desired by petitioners seeking prison-provided SRS.
The reality of federal jurisprudential reliance on states’ actions, laws, and regulations to determine the scope of the Eighth Amendment, while damning petitioners’ claims, should be viewed as providing a clear path to constitutional respite and medical care for a deeply vulnerable population.