A New Era of Justice for Transgender Prisoners

Two major legal developments mark a new age in the fight for the rights of transgender prisoners.
Michelle-Lael Norsworthy, a transgender prisoner, won her sexual reassignment surgery case on Thursday. (Photo: Courtesy Transgender Law Center)
Apr 5, 2015· 2 MIN READ
Rebecca McCray is a staff writer covering social justice. She is based in New York.

Michelle-Lael Norsworthy, a 51-year-old transgender inmate, was raped six times in a California prison. Finally, in 2014, Norsworthy filed a lawsuit asking the state to pay for the sexual reassignment surgery that would bring relief from her gender dysphoria—in which a person does not associate with their physical gender identity assigned at birth—and, hopefully, land her in a women’s prison. In a landmark ruling on Thursday, a federal judge ordered the state to pay for Norsworthy’s surgery, and said her medical needs were being denied in violation of her constitutional rights.

Then, on Friday, the U.S. Department of Justice made a historic move by stepping into the Georgia case of transgender prisoner Ashley Diamond. The federal agency told the state’s corrections department that the law says it must provide necessary health care, including hormone therapy, to prisoners who have gender dysphoria.

The two developments signal a significant shift toward the national legal protection of the rights and health care of transgender prisoners. “This is incredibly exciting and encouraging,” said Ilona Turner, legal director of the Transgender Law Center, a San Francisco–based advocacy group that took on Norsworthy’s case. “We are fighting for and winning the legal battle for access to essential medical treatment for transgender people across a range of arenas—from private and public insurance programs, to health care for people who are incarcerated.”

While other transgender prisoners have won cases requiring corrections departments to provide gender-affirming health care, most of those cases have involved hormone therapy, according to Gabriel Arkles, a member of Sylvia Rivera Law Project’s core collective, a legal advocacy organization focused on gender, economic, and racial justice. Arkles told TakePart that while hormones are incredibly important, “there’s just no substitute” for people like Norsworthy who need surgery.

The decision in Norsworthy’s case sets a precedent that other courts will likely consider when addressing similar cases. And while the Justice Department’s statement on the Georgia case is not legally binding, district courts tend to give such guidance serious consideration. “It’s a great way to get the attention of the court, and let them know this is a very serious issue that people are paying attention to at the very highest level of government,” Turner told TakePart.

In Diamond’s case, the Georgia department of corrections’ decision to deny her health care was clearly out of step with the law—which Turner and Arkles said made the Justice Department’s move an easy call to make. Still, Arkles said it was the first case he was aware of that moved the Department to action. “The constitution just doesn't allow prison officials to ignore people's medical needs, no matter what those needs are and no matter how politically unpopular the people with those needs are,” said Arkles.

Critics of Judge Jon Tigar’s order requiring California to pay for Norsworthy’s surgery have argued it will cost taxpayers as much as $100,000. But an inquiry by the media and technology company Vocativ said the quoted figure is actually based on the highest end of the range of rates for general medical care—not specifically care related to reassignment surgery. The department said it hadn’t had time to determine the true potential cost of Norsworthy’s treatment.

Gender reassignment surgery tends to cost $15,000 to $30,000, according to Transgender Law Center estimates. As for the cost of not paying to treat Norsworthy’s gender dysphoria, Turner said the surgery would reduce future costs for treating the liver damage that hormone therapy has caused, because her body will produce less testosterone. Surgery, and a subsequent transfer to a women’s prison, would also likely protect her from sexual assault—and prevent future contraction of diseases such as Hepatitis C, which she developed after a six-hour assault by nine male inmates.

The Georgia court has no set timeline for making its decision in Diamond’s case. But Turner remains optimistic that the weight of the Justice Department’s decision will influence their decision. As for California, the corrections department has already said it is considering an appeal, but has yet to make a move.

“We’re confident that this decision is so well-reasoned and strong that it’s going to stand regardless of the state decides to appeal,” Turner said. “These cases are a terrific set of developments and are both moving the ball forward in terms of making sure that all people can get access to the medical care they need.”