March 11, 2020 at 8:57 am EDT | by Chris Johnson
Calif. prison system updates policy on trans inmates as scrutiny grows

As scrutiny of the treatment of transgender inmates continues to grow, the California prison system has updated its policy on transition-related care, including gender reassignment surgery, although the new guidance is getting mixed reviews at best from transgender advocates.

One transgender advocate said the document “appears to contain some important improvements,” but “there are still a few areas where the policy appears problematic or unclear.” Another said the changes “do nothing to change” access to transition-related care for inmates. In defense of the policy, a spokesperson for the California prison system says the new guidance is “expected to improve access to care.”

The California Department of Corrections & Rehabilitation, which is credited with being the first state prison system to implement any policy granting transgender inmates access to gender reassignment surgery, shared the updated 30-page guidance and a summary with the Blade last week.

The new guidelines, developed by California Correctional Health Care Services, dedicate a full page to specific criteria for granting inmates gender reassignment surgery: Persistent gender dysphoria; being at least 18 years old; having continuously used hormone therapy for 12 months; full-time living in a new gender role and keeping any other medical and mental health conditions well-controlled.

“Individuals may live successfully as transgender persons without surgery,” the guidelines say. “Gender affirming surgery may be considered for those individuals who are diagnosed with Gender Dysphoria and demonstrate significant distress not attributable to conditions of confinement, mental illness or other factors, but are due to lack of reasonable response to available nonsurgical treatments and there are no available, additional treatments other than surgery that are likely to improve or alleviate their symptoms.”

The updated guidelines come after a review period the California prison system announced when the Blade published data — obtained from a request under California’s Public Records Act — revealing few transgender inmates who requested gender reassignment surgery were granted the procedure.

In a letter dated Nov. 8, 2019 to the Blade, the state prison health system reveals 130 inmates requested male-to-female gender reassignment surgery since the policy was announced, but only seven were granted the procedure in the same time period. Meanwhile, 51 inmates requested female-to-male gender reassignment surgery, but only 10 obtained the procedure.

Terry Thornton, a California Department of Corrections spokesperson, told the Blade this week the new policy came out, however, because guidelines “are continually revised to align with community standards and as needed to ensure operational efficiency.”

The California prison system isn’t done. Thornton said a supplement to the transgender inmate guide on requests for gender reassignment surgery is currently undergoing a revision, but it’s unknown when that will be complete.

The previous policy, established in 2015, was brokered by then-California Attorney General Kamala Harris as a result of lawsuits filed by transgender inmates Michelle Lael-Norsworthy, who was serving time for second-degree murder, and Shiloh Quine, who’s serving a life sentence for first-degree murder, kidnapping and robbery. Both inmates had obtained medical clearance for gender reassignment surgery and sought the procedure, but were denied.

(In response to the Blade report last year that few inmates were granted gender reassignment surgery despite the deal Harris brokered — and promoted on the campaign trail — the California Democrat’s presidential campaign said the the policy should be reviewed because anti-transgender bias may be in play. Harris’s Senate office didn’t respond to the Blade’s request to comment on the update.)

Ensuring transgender prisoners have access to gender reassignment surgery, which would come at taxpayer expense, has been a controversial issue and may even soon be adjudicated by the U.S. Supreme Court as a result of a case percolating up from Idaho.

Transgender advocates, however, have said denying the procedure to inmates is the denial of medical care, which would be cruel and unusual punishment and prohibited under the Eighth Amendment of the U.S. Constitution.

But the key difference in the new California policy seems to be hormone therapy, not gender reassignment surgery.

Thornton said the new guidance provides guidelines on hormone therapy for transgender inmates to primary care doctors as opposed to endocrinology specialists, which she said “is expected to improve access to care.”

“The new Transgender Care Guide, which more clearly aligns with WPATH criteria, expands its education to primary care providers and gives a more detailed step-by-step approach to care for transgender men and transgender women,” Thornton said. “This new guide improves education for providers about the terminology and diagnoses related to transgender care.”

Thornton added the guidance updates access to hygiene items and clothing for transgender inmates.

“All of these improvements will enable primary care providers the ability to more effectively meet the needs of the transgender population,” Thornton said. “CCHCS and CDCR will continue to expand education to providers and patients about transgender care.”

Despite the changes, advocates for ensuring transgender inmates have access to gender reassignment surgery were largely unimpressed, saying the guidelines still hamper access to transgender-related care.

Shawn Meerkamper, senior staff attorney with the San Francisco-based Transgender Law Center, flat-out rejected the changes.

“For years, California’s prisons have had in place a sham policy that serves to deny critical and often life-saving health care to the overwhelming majority of trans people who need it,” Meerkamper said. “Unfortunately, these updates do nothing to change that reality for the hundreds of transgender people in California prisons who desperately need access to medically necessary transition-related surgeries.”

Harper Jean Tobin, director of policy at the National Center for Transgender Equality, took a more nuanced approach, saying the new guidance “appears to contain some important improvements,” but at the same time “there are still a few areas where the policy appears problematic or unclear.”

For starters, Tobin took issue with the California prison system housing transgender inmates consistent with their gender identity in sex-based facilities on a case-by-case basis as opposed to implementing a blanket policy ensuring a mismatch won’t happen.

“The new policy says prisoners ‘have traditionally’ been housed based on external genitalia, and ‘may possibly be moved’ following surgery,” Tobin said. “CDCR also says that new state legislation ‘may allow’ placement consistent with gender identity in other cases — but in fact that is already permitted and under federal law it is required to be considered in every case.”

A recent NBC News report from Kate Sosin documents the conditions transgender inmates face across the United States, few are housed consistent with their gender identity, and that mismatch can have dire consequences.

Of the 10 transgender women at a Chino, Calif., facility who spoke to NBC News during a weekend visit last year, nine reported having been sexually assaulted behind bars. Half said they’d sought a transfer to a women’s prison, but were denied.

Other issues transgender inmates face, per the NBC News report, include not being called by the name they prefer.

The federal government is no help. The Bureau of Prisons under the Trump administration, to the consternation of transgender advocates, has issued guidelines allowing facilities to deny transgender inmates housing consistent with their gender identity, calling instead for case-by-case placement.

Tobin also criticized the guidance’s incorporation of self-injurious or suicidal behaviors as factors that could prevent a transgender inmate from obtaining treatment for gender dysphoria, which she said “appears contrary to the standards of care.”

“Nearly 40 percent of transgender adults have attempted suicide at some point, suicidal ideation is even more common, and ‘self-injurious behaviors’ could include attempts at self-surgery among patients facing denials or prolonged delays in care,” Tobin said. “These may be severe symptoms of GD, not contraindications to treatment, and CRDC’s policy should not suggest otherwise without great caution.”

Further, Tobin faulted the guidelines for calling on medical providers to rule out other mental health disorders in inmates that may co-occur or mimic gender dysphoria before providing transition-related care, saying that practice is contrary to standards from the American Psychological Association and the World Professional Association for Transgender Health.

“Accepted clinical guidelines for gender dysphoria recognize that co-occurring mental health conditions are common, because gender dysphoria itself can cause depression and anxiety, and because being transgender makes individuals a target for abuse and trauma,” Tobin said.

Thornton, in response to concerns about housing in the updated guidelines, said placement for all inmates, not just transgender inmates, takes many factors into account.

“All inmate housing is evaluated on a case-by-case basis, which includes an inmate’s criminal history, behavior, rehabilitation opportunities, medical and psychiatric needs, program needs as well as their safety and security,” Thornton said.

As an example, Thornton said a transgender man requesting a hysterectomy would not be moved to a male facility following the procedure, while a transgender woman undergoing a vaginoplasty would be moved.

With respect to ruling out other mental health conditions being a requirement before treating gender dysphoria, Thornton said that practice is consistent with medical standards as defined by the World Professional Association for Transgender Health.

“People who engage in self-injurious or suicidal behaviors may have other mental health concerns that, until optimally managed, could possibly preclude medical treatment of gender dysphoria,” Thornton said.

All in all, Thornton said, the updated guidelines demonstrate a commitment from the California prison system to provide adequate treatment and facilities for transgender inmates.

“CDCR is the only prison system routinely approving gender-affirming surgery and is working to build trust with its patients, their families, and community advocates,” Thornton said. “CDCR has policies in place to improve safety, help prevent sexual abuse, create a more respectful environment, improve outcomes for reentry and improve medical care for its incarcerated transgender community and is committed to creating safe and humane environments for all people housed in California prisons.”

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

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