U.S. District Judge Jon Tigar, an Obama appointee, issued a preliminary injunction in a 38-page ruling requiring the California Department of Corrections & Rehabilitation to offer the procedure to Michelle-Lael Norsworthy, who’s incarcerated at Mule Creek State Prison in Ione, Calif.
“Although Defendants characterize this as a case where CDCR physicians have so far determined that SRS is not medically necessary, or even necessarily advisable, the evidence presented does not support their position,” Tigar writes. “Indeed, there is no evidence that any treating medical or mental health provider has ever determined that SRS is not medically necessary for Norsworthy…The weight of the evidence demonstrates that for Norsworthy, the only adequate medical treatment for her gender dysphoria is SRS, that the decision not to address her persistent symptoms was medically unacceptable under the circumstances, and that CDCR denied her the necessary treatment for reasons unrelated to her medical need.”
Norsworthy was convicted of murder in the second degree with the use of a firearm in 1987. She’s serving a sentence of seventeen years to life in prison, but has been eligible for parole since 1998. Even before she was convicted of her crime, Norsworthy suffered from gender dysphoria. She began openly identifying as a transsexual woman in the mid-1990’s, and was diagnosed with gender dysphoria in 2000.
Although Norsworthy received psychotherapy and hormone therapy for her condition in prison, officials denied her gender reassignment surgery despite a recommendation from her doctors that she receive the procedure. Instead of providing her procedure, the prison removed her from the care of her treating psychologist who prescribed in the procedure in a move her medical records say was a “quick, unexpected change of primary clinicians due to a HQs directive.”
Last year, the San Francisco-based Transgender Law Center and the global law firm Morgan, Lewis & Bockius LLP filed a lawsuit against the California prison system alleging that denying Norsworthy gender reassignment constitutes cruel and unusual punishment under the Eighth Amendment and violates her right to equal protection under the 14th Amendment. The court determined that her claims the prison violates her Eighth Amendment rights are valid, thus made no effort to examine whether he rights were violated under the 14th Amendment.
Kris Hayashi, executive director of Transgender Law Center, claimed victory in the aftermath of the ruling, saying it ensures Norsworthy will receive medical care necessary for her well-being.
“No one should be denied the medical care they need,” Hayashi said. “There is a clear medical consensus that health care related to gender transition is necessary—and life-saving—for many people. This decision confirms that it’s unlawful to deny essential treatment to transgender people. With this historic decision, Michelle will now be able to get the medical care she desperately needs.”
Nine states, including California, and D.C. already require private insurers to cover medical care related to gender transition, and public insurance programs like Medicare and California’s Medicaid system allow for coverage of gender reassignment surgery.
Joyce Hayhoe, a spokesperson for California Corrections Health Care Services, is quoted in an Associated Press report as saying her department is reviewing the ruling to “determine the next steps,” which could be an appeal to the U.S. Ninth Circuit Court of Appeals. Should the operation occur, it will be the first in state prison history and cost as much as $100,000, Hayhoe reportedly said.
According to the Transgender Law Center, the actual cost for Norsworthy’s needs range from $15,000 to $30,000, which the organization says is far less than what the state has already spent on attorney fees in the lawsuit.
The ruling recalls the case of Massachusetts inmate Michelle Kosilek, a transgender woman who was also denied gender reassignment surgery by her state’s Department of Corrections, but received a less favorable action from the courts. Although the district court reviewing the case and a three-judge panel on the U.S. First Circuit Court of Appeals determined that denying her the procedure violated her Eighth Amendment rights, those were later overturned in December in an “en banc” ruling by the full First Circuit. The New England Gay & Lesbian Advocates & Defenders, which has represented Kosilek, has filed a petition with the U.S. Supreme Court asking for review of the decision.
According to the ruling in the Norsworthy case, the California Department of Corrections & Rehabilitation cited the Kosilek ruling as a reason why it was acting within authority to deny Norsworthy gender reassignment surgery, but the court determined that First Circuit decision has no bearing on California jurisdiction.
Ilona Turner, legal director for the Transgender Law Center, said the court “absolutely got it right” in the determining the California Department of Corrections & Rehabilitation must provide Norsworthy the procedure.
“Michelle has been suffering for years because of the prison system’s unconstitutional policy against providing transgender inmates the medical care they need,” Turner said. “This is a tremendous victory for her and for all transgender people incarcerated in California.”