Abstract

Excerpted From: John Parsi, Medical Consensus on Gender Affirming Care's Critical Impact on Incarcerated Black Transgender Women, 38 Journal of Law and Health 66 (October 31, 2024) (313 Footnotes) (Full Document)

The U.S. Court of Appeals for the Ninth Circuit made Adree Edmo the first incarcerated person to access gender affirming surgery by federal injunction. After two attempts at suicide, two attempts at self-castration, self-harm to abate her gender dysphoria and desire to self-castrate, and years of litigation, Adree was finally able to live in her own body. In July 2020 Edmo received gender affirming surgery. She moved to a women's prison in August 2020. By July 2021 she was released from prison.

The Ninth Circuit held that the denial of gender affirming surgery in the face of medical consensus and expert assessment that an incarcerated person met the standard of care for access to surgery violates the Eighth Amendment. The decision would appear to be a watershed moment both for the confirmation of the medical consensus on gender affirming surgery and the constitutional right to access such care. After all, the Supreme Court denied a petition for writ of certiorari in Edmo I. Yet, only a year prior, the Fifth Circuit, in Gibson v. Collier (Gibson), denied access to gender affirming surgery and denied the existence of a medical consensus. Just like in Edmo I the Supreme Court denied certiorari in Gibson.

Meanwhile, states continue to pass legislation restricting or banning gender affirming care. Although many of these laws initially targeted access to care for youths, several states are also passing legislation to restrict gender affirming care for adults. Florida requires written voluntary informed consent before accessing gender affirming care for anyone over 18 years old. Kansas and Oklahoma have bills that would ban access to gender affirming care for people under 21. Texas has a proposed ban that would apply to people under 26. Indiana House Bill 1569 “bars the Indiana Department of Correction from paying for an inmate's gender-affirming surgery.” South Carolina House Bill 4624 “would bar health professionals from performing gender [affirming] surgery, prescribing puberty-blocking drugs and overseeing hormone therapy for anyone under 18 years old. It also prevents Medicaid from covering such care for anyone under the age of 26.”

The need to acknowledge the medical and scientific consensus on gender affirming care is critical for the health of transgender people, but it is especially critical to groups already marginalized in access to health care and overrepresented in the incarcerated population. This article argues that the failure to acknowledge a medical consensus will perpetuate racism and transphobia and that this is particularly evident in the population of incarcerated Black transgender women.

Part I establishes the significantly lower health outcomes for Black and transgender people. Importantly, these lower health outcomes are not biological but the result of disparate treatment and racism and transphobia. Part III will explain why Black and transgender people are disproportionately represented in prison and how Black transgender women are impacted by both racism and transphobia in this regard. Part III will establish the medical consensus around the World Professional Association for Transgender Health (WPATH) Standard of Care (collectively WPATH SOC). Part IV will address arguments challenging the WPATH SOC and how they are scant and not availing both in substance and evidence. Taken together, this article will establish that the failure to acknowledge and apply the medical consensus on gender affirming care will exasperate racism and transphobia causing especially significant harm to Black transgender women.

[. . .]

In 2023 Dee Farmer visited the University of Nebraska Lincoln College of Law as part of the Nebraska Law Review's symposium. I had the great honor of serving as moderator on a panel in which she presented. I introduced Dee to the assembled crowd of law professors, administrators, staff, practitioners, alumni, and students. I remarked on how lucky we were to have Dee speak to us, after all as a pro se litigant she argued an Eighth Amendment case through a grant of certiorari to the U.S. Supreme Court. An accomplishment most of us gathered in that room or in law schools across the U.S. dream of doing. Here stood a Black transgender woman who brought a case that is a cornerstone of Eighth Amendment jurisprudence and is foundational in defining deliberate indifference and access to medical care. Dee suffered grievously during her incarceration and transformed the law. Now, she continues to fight for the health and rights of people who are incarcerated. It would be easy enough to relish her freedom and perhaps regale with stories of her legal accomplishments, but she still fights for those who are incarcerated and suffering.

Nearly three decades after her case, the Ninth Circuit decision in Edmo v. Corizon was an important decision in providing access to gender affirming care to incarcerated people and recognizing the WPATH SOC as representing the medical consensus on gender affirming care. The need to recognize both positive impacts is important for all transgender people, but especially for incarcerated Black transgender women who are subject to both racism and transphobia and are most likely to be harmed if that does not occur. Black transgender women are more likely to experience the U.S. criminal justice system and be incarcerated. These higher rates have roots in both systemic racism and transphobia. In addition, Black transgender women experience health inequities resulting both from systemic racism and transphobia. Given the higher level of incarceration coupled with the significantly lower health outcomes, incarcerated Black transgender women are most harmed by the failure to recognize the medical consensus on gender affirming care.

John Parsi JD, PhD is the Harry S. Redmon, Jr. Assistant Professor of Law at Louisiana State University Law Center.