Transgender In Prison: How California's New Guidelines Will Be Implemented
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Our top story on midday edition, life is seldom easy for people who struggle with questions of gender identity. And life for transgender people in prison can be particularly brutal. Prisons across the country for the different criteria toward housing transgender inmates and about recognizing gender dysphoria as a medical c ondition. Lastly California became the first state in the nation to offer a pathway for inmates to receive sex reassignment surgery paid for by the state. Joining me to discuss the new guidelines are met Stevens, is a partner with the progress of law group in San Diego and welcome to the program. Good to be here. -- also joins us, a director of legislation and communications with the California correctional health care services. Welcome to the program. Max, what is the legal basis for this federal ruling allowing some transgender surgeries? What did the court have to find with the state to be compelled to provide the surgery? Essentially that is medically necessary. If you have any kind of medical issue, let's say a liver condition, you would get treatment for that medical condition in prison. They would just say you are a prisoner, you're going to suffer with your liver condition. This is the same from illegal premise and it is cruel and unusual in violation of the eighth amendment to do that the medical services when it's to determine there medically necessary. So what was in the fact that transgender people are more likely to be victimized in prison that led to this d ecision? That is a true statement but not in and of itself. What kinds of dangers to transgender prison no space? Unfortunately, from both the inmates and the staff. Euros all kinds of discrimination and women of color are particularly vulnerable. If you have not had gender affirming surgery, you are housed according to your genitalia at birth. Women are then housed in a mail facility and they are abused. They are raped and mistreated. They are denied medical treatment. They are denied medical -- called by perform or legal names in many cases. Do you know of particular cases where people in prison in California have brought these issues to the courts and asked for a remedy? Yes, there are several, some some of which oddly I've litigated and other folks have litigated with the transgender Law Center including where the prison guards were denying female to male transgender person forcing him to wear a bra when it was clearly not appropriate and essentially putting him in solitary confinement as a way to control the situation.It's a sort of bad combination of we have this person clearly in the wrong place and the way we resolve that is by putting them in solitary essentially. Let me go to Joyce and ask you about how many transgender people are in California p risons? We now have 375 males and 26 females that have been diagnosed with gender dysphoria that are currently undergoing hormone therapy. Before this new ruling, how did prisons address the specific medical needs of these p risoners? Is that with hormone therapy? Yes, primarily with hormone therapy and also with mental health services. A set of guidelines were issued regarding would prisoners might be considered candidates for sex reassignment surgery, what are those guidelines? The guidelines were a result of a settlement agreement between the Department of Corrections and rehabilitation and the court. What it generally outlined were seven stringent criteria is where an inmate could with gender dysphoria could ask for the consideration for whether or not they were eligible for sex reassignment surgery. Isn't mandated that the state do this or do they still have discretion? But would happen is under our criteria, a panel of psychiatrists, psychologists and medical doctors would take that case into consideration to determine whether sex reassignment surgery in that persons case was medically necessary. Can you give us an idea of one or two of that set of seven criteria you mentioned? First and foremost, they must be diagnosed with gender dysphoria. They have to make sure that there medical and mental health concerns have been well controlled for a year. The patient may have wanted to have sex reassignment surgery in the past but their criteria requires that there be two years where they have made that decision known to their institutions and they had to have lived at the opposite sex and received hormone therapy tenuously for a year. They also have to have two years remaining on their sentence? I understand so I believe there was a lawsuit brought by an inmate that led to these guidelines however that particular inmate was paroled before that judgment came down. Correct. The process of sex reassignment surgery does take quite some time. We want to ensure patients seeking this that there is enough time left on the seconds for this to occur. What will the state provide? Under our guidelines that we just published last week, we will not do any procedures that are not medically necessary. Anything that is considered cosmetic will not be performed. That could include types of face or brow lifts. Any kind of Lycos suction, removal of skin. Anything that isn't Medicare medically necessary to change the person's gender would not be done. We wouldn't do cheap implants or hair growth or hair loss or anything like that. Are there any estimates of how much this will cost the state of California? That's very hard to anticipate. We have not done any of these procedures before. We anticipate it could be a range between $50,000 to $100,000. That is taking into account the entire process which includes a lot of up front consultations. Meetings with mental health professionals and guidance. The surgeries themselves, any post operative or seizures and ongoing counseling and hormone therapy. And that is pretty inmate? Correct. Mats, are these guidelines. Your opinion? I think they are. There are things as the system gets used to what this is and is better able to quantify it and as the committee works with people who have these actual needs I think we will get more educated about it and we will understand that there are additional services and maybe there shouldn't be -- proficient but we can work on that going forward. There are many transgender people who don't want sex reassignment surgery. I want to ask you both this but Joyce, what will state prisons be doing to keep this person is safe? We would do everything that is necessary for that prisoner to make sure they are safe. We already as I mentioned provide hormone therapy but we also provide mental health services to our prisoners. Prisoners are assigned to institutions based on their need and based on keeping them safe and secure so we will continue to do that no matter who that person is. And the transgender people who are receiving hormone therapy and as you say mental health counseling who don't necessarily want the sex reassignment surgery, are they still going to be kept in the institutions that are consistent with their genitalia at birth? Yes, they will be. They will be able to be placed wherever it is necessary for them to be safe. Award about that if I may, here is a significant problem. Some people don't prefer to have those surgeries because they do continue to have infection rates that are a risk. It also buys into a gender binary that some people don't want to buy into. And it is major surgery. It is a very significant surgery. Some people elect not to do it because it increases the health risk and yet here we are still assigning people to the wrong institution. Okay. Matt, according to the transgender Law Center in San Francisco, transgender people are six times more likely to be incarcerated than the general public. What are the reasons for that? That's an accurate statement unfortunately. The reason for it is there are populations who engage in survival sex. The trans- population is very underemployed. Unemployed and underemployed and this far below the poverty level in comparison to its population. You have people engaging in survival sex, a smalltime drug transactions. That in turn increases the likelihood of being imprisoned and they have law-enforcement picking on them and they don't look right. You must be doing something wrong. I think there is disproportionate number and it mostly impacts women of color. Joyce, what other kinds of medical necessity surgeries do prisons provide? Were talking about this and we wondered if the prisoner is extremely obese, does the state pay for bariatric surgery? I'm not sure in the past if we've done that. What we would do is we would look to see what kind of other options would be available before we would do something of that nature. In the case of any type of inmate that needs a medical service, if any other factors that have been taken into consideration didn't work, then it would be perhaps appropriate to do that. Does the state pay for abortions for pregnant inmates who request them? Under the Penal Code, the passed legislation back in the 70s, that allows inmates to receive abortions. Matt, do you think out transgender inmates are housed as may be driven the desire for sex reassignment surgery? As you say they can't really live as the gender they preferred until they've had that surgery. I think in some significant measure, yes. You are trying to communicate with the institution that controls our daily lives who continues to refer to you as for example mail if you identify as female. The only legal way you can reject that is by having sex affirming surgery that says no, IMB mail. Joyce, are there any conversations underway about this particular issue, about the issue of having let's say women who identify as men, men who identify as women housed in the institutions that are with their genitalia at birth rather than the gender they associate with? We have been housing people that identify as transgender now for many decades. Many of our mental health professionals are very familiar with the population and their special needs. One of the things we want to stress is the mental health services for someone who has gender dysphoria and maybe wanting to seek surgery is very important because we want to make sure they are making the right decision and not for another reason that would be positive for their overall health. I guess what I'm saying is our their conversations going on about different ways to house transgender people? We have what we call sensitive niche yards where it is a yard that is not in the general population setting where people that have concerns with being housed in the general population can be placed safely. Mats, what about the possibility for someone is as you say marginally employed, having a hard time getting a job because of being transgender cannot pay for this very expensive surgery? They might commit a crime simply to gain access to this sex reassignment surgery in prison. It certainly has happened before. One is more common is the transgender person will simply commit suicide. The suicide rates among transgender people are astronomical in comparison to the general population. That's something we have the tools to avoid so it's brilliant that we are having this conversation. It's a wonderful thing that our institutions are having this conversation and we need to just keep moving the ball. Joyce, California is the first in the nation to have his guidelines for transgender prisoners. Do you think other states are watching to see how it works? I'm sure they are because lots of other states have ongoing litigation. I also wanted to add in terms of sex reassignment surgery, it's already a covered benefit under California's Medi-Cal system. It is not like California in and of itself is doing this for the first time in prisons. It's becoming more and more the norm system went to the nation. I want to thank you both. I've been speaking with Joyce -- at the California correctional health services and Matt S tevens, partner with the progress of law group in San Diego. Thank you both very much.
California became the first state in the nation last week to agree to pay for transgender prison inmates to receive sexual reassignment surgery. Prison officials released specific guidelines in the wake of several lawsuits.
Mattheus Stephens, a partner at Progressive Law Group, said the law says it must be medically necessary for the state to pay for the surgery.
"If you have any kind of medical issue, let's say a liver condition, you would get treatment for that medical condition in prison, they wouldn't just say, 'OK, you're a prisoner, you're going to suffer with your liver condition,'" he said. "This is exactly the same from a legal premise, and it's cruel and unusual in violation of the Eighth Amendment to deny the medical services when it's determined that it's medically necessary."
Stephens said life for transgender people in prison can be particularly brutal. Prisons across the country have different rules for housing transgender inmates and different standards for recognizing gender dysphoria as a medical condition.
In California state prisons, transgender inmates are housed with members of their gender at birth, not the gender they identify with, unless they have had sexual reassignment surgery.
There are 375 males and 26 females currently undergoing therapy in California prisons, said Joyce Hayhoe from California Correctional Healthcare Services.
To qualify for sexual reassignment surgery, inmates must be diagnosed with gender dysphoria, have lived as the opposite sex and received hormone therapy for at least a year and have at least two years left on their sentence, she said.