A unanimous panel of the United States Court of Appeals for the 4th Circuit, based in Richmond, ruled on January 28 that District Judge James C. Turk (Western District of Virginia) should not have dismissed an 8th Amendment complaint by Ophelia Azriel De’lonta, a Virginia state inmate who has been denied gender reassignment surgery by the Virginia Department of Corrections. The ruling may be the first by a federal appellate court to hold that an inmate may, under certain circumstances, have a right to gender reassignment surgery as a medically necessary procedure.
Named Michael A. Stokes at birth, De’lonta was convicted of bank robbery and sentenced to 73 years in prison. She began serving her sentence in 1983. De’lonta is, according to the opinion for the court of appeals by Circuit Judge Albert Diaz, “a pre-operative transsexual suffering from a diagnosed and severe form of a rare, medically recognized illness known as gender identity disorder (GID). GID is characterized by a feeling of being trapped in a body of the wrong gender. This belief has caused De’lonta to suffer ‘constant mental anguish’ and, on several occasions, has caused her to attempt to castrate herself in efforts to ‘perform [her] own makeshift sex reassignment surgery.’ De’lonta has described these ongoing urges to perform self-surgery as ‘overwhelming.’”
Here initial attempts to obtain any kind of treatment for her gender identity situation were rebuffed by Virginia prison authorities, leading her to file a lawsuit in 1999, claiming a violation of her right under the 8th Amendment to be free of cruel and unusual punishments. The Supreme Court has construed the 8th Amendment to require that prison authorities not be “deliberately indifferent” to the serious medical problem of inmates. That is, if they know of should know about a serious medical problem, they are supposed to provide treatment for it, although an inmate does not necessarily have a right to the treatment the inmate would prefer.
The federal district court dismissed De’lonta’s 1999 suit, saying that she had failed to state a valid 8th Amendment claim. The court of appeals reversed that ruling in 2003, finding that De’lonta’s need for treatment was adequately pled in the complaint. As a result, the Department of Corrections settled the case by agreeing to provide medical treatment. They consulted a GID specialist and provided De’lonta with psychological counseling and hormone treatment, and allowed her to grooms and dress as female. The treatments have continued since 2004, but De’lonta has found them inadequate, continuing to feel the overwhelming urge to castrate herself. Indeed, in a letter to prison officials in 2010, she said that this urge is even worse after her sessions with the psychologist, Lisa Lang, and De’lonta repeatedly requested sex reassignment surgery, as prescribed by the Harry Benjamin Standards of Care, published by the World Professional Association for Transgender Health.
The Department’s Chief Psychologist responded to De’lonta’s request by stating, “in regards to gender reassignment surgery, I would request that you continue to work with Ms. Lang in individual therapy at this time.” Despite her repeated requests, prison authorities did not call in a GID specialist to evaluate De’lonta concerning her request for gender reassignment.
De’lonta filed the present lawsuit in 2011, claiming that in light of prison authorities’ knowledge about her situation, their continued denial to consider sex reassignment surgery for her constitutes “deliberate indifference” to her “serious medical need.” District Judge Turk dismissed her complaint, agreeing with VDOC’s argument that because they were providing counseling and hormone therapy, they could not be said to exhibit deliberate indifference to De’lonta’s medical condition. Judge Turk concluded that because De’lonta had not been “approved” for sex reassignment surgery, she was “not entitled to it,” and that this was just a case of an inmate not getting her preferred treatment, thus insufficient to state a valid 8th Amendment claim.
The court of appeals rejected this analysis. Taking as conceded that De’lonta’s gender identity disordered is a serious medical condition, the court concluded that De’lonta’s allegations were sufficient to ground a claim of deliberate indifference.
“De’lonta alleges that, despite her repeated complaints to Appellees alerting them to the persistence of her symptoms and the inefficacy of her existing treatment, she has never been evaluated concerning her suitability for surgery. Instead, despite their knowledge that De’lonta’s therapy sessions with Psychologist Lang actually provoked her ‘overwhelming’ urges to self-castrate, VDOC’s medical staff’s only response to De’lonta’s requests for surgery was a ‘request that you continue to work with Ms. Lang in individual therapy at this time.’ These factual allegations, taken as true, state a plausible claim that Appellees ‘actually knew of and disregarded’ De’lonta’s serious medical need in contravention of the Eighth Amendment.” The court was actually quoting the earlier court of appeals ruling in favor of De’lonta that led to the earlier settlement.
Judge Diaz rejected VDOC’s argument that they were meeting their 8th Amendment obligations by continuing to provide counseling and hormone therapy, asserting that “just because Appellees have provided De’lonta with some treatment consistent with GID Standards of Care, it does not follow that they have necessarily provided her with constitutionally adequate treatment.” The court drew an analogy to a situation where the prison reacted to an inmate’s serious injury in a fall by prescribing a painkiller instead of considering surgery that would be the medically appropriate response to the injury. “Accordingly,” wrote Diaz, “although Appellees and the district court are correct that a prisoner does not enjoy a constitutional right to the treatment of his or her choice, the treatment a prison facility does provide must nevertheless be adequate to address the prisoner’s serious medical need.”
Similarly, the court rejected VDOC’s argument that De’lonta’s agreement to the settlement of her earlier lawsuit compelled the conclusion that the prison was not deliberately indifferent to her medical need.
The court was not ruling that De’lonta is entitled to sex reassignment surgery, but rather that she is entitled to pursue her 8th Amendment lawsuit, in which she will bear the burden of proving that the prison’s failure to consider her for the next step in treatment under the Standards of Treatment is inappropriate in the circumstances. Implicit in the court’s ruling, however, is that if a GID specialist were to determine that De’lonta needs sex reassignment surgery in light of her gender identity disorder, the prison would have to arrange to provide the procedure, otherwise it would be exhibiting deliberate indifference to her serious medical condition.
Bernadette Francoise Armand, of Victor M. Glasberg & Associates, Alexandria, Virginia, argued the appeal on behalf of De’lonta, with amicus support from the DC Trans Coalition and the national and Virginia ACLU.