January 21, 2019 at 4:16 pm EST | by Chris Johnson
Harris takes ‘full responsibility’ for briefs against surgery for trans inmates
Kamala Harris, gay news, Washington Blade
Sen. Kamala Harris said she takes “full responsibility” for legal briefs against surgery for transgender inmates. (Image public domain)

In her first news conference after announcing her 2020 presidential run, Sen. Kamala Harris (D-Calif.) said she takes “full responsibility” for legal briefs as California attorney general seeking to deny gender reassignment surgery for transgender inmates and called for a “better understanding” of needs — medical or otherwise— for transgender people.

Harris made the comments during a news conference Monday at Howard University in D.C. in response to a question from the Washington Blade, asking her about representing the California Department of Corrections & Rehabilitation in seeking to deny gender reassignment surgery prescribed to two transgender inmates in the California state prison system.

Initially, Harris defended her actions by asserting she was obligated to defend the state agency in her role as California attorney general, implying her personal position was contrary to that of the California Department of Corrections & Rehabilitation.

“I was, as you are rightly pointing out, the attorney general of California for two terms and I had a host of clients that I was obligated to defend and represent and I couldn’t fire my clients, and there are unfortunately situations that occurred where my clients took positions that were contrary to my beliefs,” Harris said.

Harris also suggested lawyers working for her in her role as California attorney general were taking approaches to these cases without her knowledge.

“And it was an office with a lot of people who would do the work on a daily basis, and do I wish that sometimes they would have personally consulted me before they wrote the things that they wrote?” Harris said. “Yes, I do.”

Ultimately, Harris said she takes responsibility for the litigation approach of her office because she was responsibe as California attorney general.

“But the bottom line is the buck stops with me, and I take full responsibility for what my office did,” Harris said.

Harris indicated she also helped the California Department of Corrections & Rehabilitation come to an agreement to set up a process where transgender inmates could obtain transition-related care, including gender reassignment surgery. That’s similar to what her office later told the Blade in response to an article about concerns over her legal support for the position of the agency.

“On that issue I will tell you I vehemently disagree and in fact worked behind the scenes to ensure that the Department of Corrections would allow transitioning inmates to receive the medical attention that they required, they needed and deserved,” Harris said.

Transgender advocates have made the case that transgender inmates are entitled to receive the taxpayer-funded procedure because denying them medical treatment amounts to cruel and unusual punishment — a clear violation of the Eighth Amendment of the U.S. Constitution.

But a series of briefs signed by Harris during her tenure as California attorney general made the opposite case. In one brief dated April 10, 2015, Harris and other state attorneys dismiss the importance of gender reassignment surgery in seeking to appeal a court order granting the procedure to transgender inmate Michelle-Lael Norsworthy.

“Norsworthy has been treated for gender dysphoria for over 20 years, and there is no indication that her condition has somehow worsened to the point where she must obtain sex-reassignment surgery now rather than waiting until this case produces a final judgment on the merits,” the brief says.

It should be noted California didn’t come to an agreement to grant transgender inmates gender reassignment surgery until after a court decision ordering Norsworthy be granted the procedure. At least one transgender advocate in California has also said the California Department of Correction has built a reputation for not fulfilling the agreement reached on behalf of transgender inmates.

Asked by the Blade in a follow-up question to clarify whether transgender inmates across the country should have access to gender reassignment surgery, Harris called for a “better understanding” of the medical needs of transgender people.

“I believe that we are at a point where we have got to stop vilifying people based on sexual orientation and gender identity, and we’ve got to understand that when we are talking about a particular transgender community, for too long they have been the subject of bias, and frankly, a lack of understanding about their circumstance and their physical needs in addition to any other needs they have, and it’s about time that we have a better understanding of that,” Harris said.

The response arguably falls short of a recent statement from the presidential campaign of Elizabeth Warren asserting the candidate “supports access to medically necessary services,” including “at the VA, in the military or at correctional facilities.” The statement reversed Warren’s previously articulated opposition in 2012 to gender reassignment surgery for transgender inmates.

Jillian Weiss, a transgender lawyer with a practice in LGBT employment discrimination, said Harris’ response is “a mass of contradictions.”

“She first suggests that she did not know about the 2015 appeal to the Ninth Circuit to stop the surgery ordered for Michele Norsworthy, which is troubling,” Weiss said. “But her response also suggests, contradictorily, that her hands were tied because the California Department of Corrections insisted on appealing over her objections.”

Weiss also said Harris response to the Blade’s question on whether transgender inmates should have access to gender reassignment surgery amounts to “a bland reference to having a ‘better understanding.'”

“These contradictory responses stand in stark contrast to Elizabeth Warren’s clear and unequivocal statement supporting access to medically necessary services, including transition-related surgeries, and including procedures taking place at the VA, in the military or at correctional facilities,” Weiss added.

Other aspects of Harris’ record on LGBT issues in her time as California attorney general include refusing to defend in court California’s ban on same-sex marriage known as Proposition 8 and declining to certify a “Kill the Gays” ballot initiative proposed in California that would have (unconstitutionally) instituted the death penalty for homosexual acts.

Upon election to the U.S. Senate in 2016, Harris co-sponsored the Equality Act, legislation that seeks to bar anti-LGBT discrimination under federal law.

Taking the lead on other issues, Harris has also questioned the Trump administration over refusing to include questions in the U.S. Census allowing residents to identify their sexual orientation and gender identity. The California Democrat was also among three senators demanding answers from Immigration & Custom Enforcement about the death of transgender inmate Roxsana Hernández in immigration detention.

A transcript of the Q&A follows.

Blade: How would you address concerns about seeking to deny surgery for trans inmates as California AG?

Harris: So I was, as you are rightly pointing out, the attorney general of California for two terms and I had a host of clients that I was obligated to defend and represent and I couldn’t fire my clients, and there are unfortunately situations that occurred where my clients took positions that were contrary to my beliefs.

And it was an office with a lot of people who would do the work on a daily basis, and do I wish that sometimes they would have personally consulted me before they wrote the things that they wrote? Yes, I do. But the bottom line is the buck stops with me, and I take full responsibility for what my office did. 

But on that issue I will tell you I vehemently disagree and in fact worked behind the scenes to ensure that the Department of Corrections would allow transitioning inmates to receive the medical attention that they required, they needed and deserved.

Blade: Should trans inmates access throughout the country have access to GRS?

Harris: I believe that we are at a point where we have got to stop vilifying people based on sexual orientation and gender identity, and we’ve got to understand that when we are talking about a particular transgender community, for too long they have been the subject of bias, and frankly, a lack of understanding about their circumstance and their physical needs in addition to any other needs they have, and it’s about time that we have a better understanding of that.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

© Copyright Brown, Naff, Pitts Omnimedia, Inc. 2019. All rights reserved.