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The Transsexual in Prison-A Focal Point
Gender dysphoria is generally defined as a serious psychosexual disturbance. Briefly, gender dysphoria is a condition that involves sex-role inversion and hormonal and surgical sexual transformation. Sex-role inversion is a condition in which a person of one biological sex thinks, feels and acts like the opposite sex, the acquisition of a sex role not consistant with their biological composition. Its cause remains unknown. Some researchers place predisposition in utero. Transsexualism is the most radical form of gender dysphoria. It is a serious medical condition.
The late doctor Harry Benjamin pioneered the study and treatment of Gender Dysphoria with a focus on transsexualism. The Harry Benjamin International Gender Dysphoria Association Inc., is an international association of gender professionals. It has established the Standards of Care, an international "minimum" guideline for professional treatment of gender dysphoria. Professional credibility in treatment of gender dysphoria is measured by adherence to the minimum Standards of Care.
The diagnostic criteria for transsexualism is listed in the Diagnostic and Statistical Manual of Mental Disorders, 3rd ed.-revised (DSM-111-B), published by the American Psychiatric Association, Washington, D.C. (1987), pgs. 71-78.
Management of the condition is by means of certain exceptional therapies including behavioral accommdation therapies, endocrinological interventions, pharmo-psycho therapies and surgical procedures. The proponents of treating or "curing" transsexuallism through adverse psychotherapy in an attempt to have the transsexual adopt the sex-role of their birth sex, espouse a proposition that has been proven highly unsuccessful. (See, e.g., G.B. v Lackner, 80 cal App. 3d, 64,68-69; 145 Cal Rptr. 555 (1978.)
Because transsexulism is a serious medical condition it falls within eighth amendment analysis when a transsexual becomes incarcerated. Under the eighth amendment of the U.S. constitution prisoners have a right to be free from cruel and unusual punishment. (See also, California Constitution, Article I. Section 17.) "Deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton inflection of pain... proscribed by the eighth amendent." (Estelle v. Gamble, 429 U.S. 97, 105-106 (1976)).
The right of incarcerated transsexuals to treatment of transsexualism is now recognized to some degree by the courts, and failure of prison officials to provide some form of treatment constitutes deliberate indifference to a serious medical need. (Meriwether v Faulkner, 821 F.2d 408 (CA7 1987), cert. denied, 108 S. Ct. 311 (1987), (transsexuals entitled to some form of treatment)). Farmer v Haas, 90-1008 (CA7 1991) (unpublished order not to be cited per circuit rule 53)(reversing summary judgment for defendants in Bivens action for damages for failure to treat transsexualism in prison.) "District court erred in granting summary judgment to defendants. The documentation submitted by Farmer supports her positon that, despite requests, she was denied any and all forms of treatment for her transsexualism in violaton of the eighth amendment. Farmer has proven facts sufficient to show that all named defendants were personally involved in the deprivation. In light of the record before this court, we must conclude that the district court could not, as a matter of law, grant summary judgment to the defendants.") Yet prison officials continue to violate transsexuals' constitutional rights by showing deliberate indifference to their condition, triggering civil rights lawsuits for injunctions or damages and petitions for a writ of Habeas Corpus. Less formal, transsexuals in prison have taken to self-mutilation, autocastration and suicide attempts for lack of treatment.
No case of deliberate indifference to serious medical needs in a penal setting in 20th century U.S.A. is more dramatically illustrated than that of the incarcerated transsexual. The case of transsexual Shauna Supre provides a shocking awakening to the consequences of prison officials' deliberate indifference to transsexualism in penal institutions and of the severity of the transsexual's dilemma.
Ms. Supre was committed to the Colorado Dept. of Corrections to serve sentences for auto theft and escape. Described as "exceedingly effiminate" in later court documents she was initially housed in the general male inmate population. There she was repeatedly raped and beaten. For safety reasons she was finally placed in 23-hour a day protective lockup. During the course of her incarceration she made administrative attempts for treatment in the form of estrogen therapy, all to no avail. Finally, in desperation, she tried to castrate herself: "...He(sic) (plaintiff) attempted to arrange(female) hormone treatment which apparently was not given for reason of policy... He made at least one attempt to kill himself by hanging... on the 29th of June (1981) he incised and removed a portion of his scrotum, placing string and rubberbands about the spermadic cords bilaterally and this was found the next day and the constricting bands removed and he was sent to the surgical services at Colorado with the problem... He was seen by myself Dr. Fogel. The wound was as described- completely bare testicles obviously contaminated and beginning to be infected, an absent portion of the scrotum... He was very clear in his statement that he had only the loss of his testicles in mind and that he was purposefully forcing the issue and he was quite apologetic for putting me in this position, but he felt he must and that he would not allow any treatment unless it was made clear that he would have his testicles removed. Consultation with (various doctors, Ms. Supres' Attorney, the Deputy Attorney General) has made me reach the conclusion, with a good deal of thought and some difficulty, that the patient, at this point, should have his testicles removed. This is based on the fact that he is not in anyone's opinion insane; that he is absolutely determined to have this done and from the psychiatrist's evaluation, in two instances, that he is a true transsexual who is so determined that he has made intelligent efforts to lose his male gonads..." On July 2, 1981, the plaintiff's testicles were surgically removed at the Colorado State Hospital..." (See Supre vs.Rickettes, 596 F.Supp. 1532, 1533-34 (1984).
Social bias and misconceptions contribute to the peoblem. Transsexuals are rountinely catagorized as"homosexual" upon incarceration. Homosexuality is not diagnosed as a medical dilemma and no treatment is given for it. Although homosexuality is often a component of sex-role inversion, inversion is not a component of homosexuality. In the instances where transsexuals in prison are acknowledged different beyond the homosexual label-due to their highly effiminate nature, basic female psychological composition, silicone or hormone induced breasts- they are sometimes segregated from general inmate populations for protection from sexual assaults and harassment. Yet they are not offered or given any treatment for their condition, even when it is asked for. Some jails and prisons have a practice of providing hormonal treatment to transsexuals who have documented proof of treatment prior to incarceration. But this practice is the exception, not the rule. It is a serious fault. It is not common for incarcerated transsexuals, who are usually from the lower echelons of the socio-economic order, to have such documents. For those who do not meet this criteria, or where such criteria does not exist, as far as the prison or jail is concerned they are not entitled to treatment. Similarly, a person who experiences a transsexual metamorphosis while incarcerated and embodies all the diagnostic criteria is denied a diagnoses or any form of treatment simpy because they had never been treated for the condition prior to incarceration.
Prisons must provide doctors competent in diagnosis of gender identity problems and treatment techniques prescribed in the Standards of Care. Where provided, they must adhere to the principles of the Standard of Care and not to the whims of prison officials. Legislation outlawing discrimination against persons must include "gender dysphoric", "gender orientation" or "transgender." Although Gay Rights bills are a move in the right direction, they are not inclusive of transsexuals in their scope. Transsexuals are not "gays." The raison d'etre of gays and lesbians is in their sexual orientation, whereas the raison d'etre of transsexuals is in their gender orientation.
The guidelines of the Standards of Care and the diagnostic criteria of the DSM-111-R must be imposed upon the prisons, courts and legislatures because they are officially sanctioned by established, identifiable professional groups.
( Note: Anyone interested in Transsexualism from a legal-technical point may request a copy of the Standards of Care from the Harry Benjamin International Gender Dysphoria Association,Inc., 1515 El Camino Real, Palo Alto, Calif. 94306. Specify your interest and work in the field. Prsisoner litagators aware of transsexuals desirous of treatment (Hormone Therapy, E.G.) are encouraged to assist them in becoming aware of their rights. For more info on the Medical-Legal aspects of Transsexualism or to learn more of Tip contact: Madammoiselle Patricia Fisher/ c.p. 2931 succ. Cote-des-Neiges Blvd./ Montreal, Quebec, Canada H3S 2S6.)
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