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Dismissal of Colorado Transsexual Suit Reversed

The Colorado Court of Appeals reversed the dismissal of a transsexual prisoner’s lawsuit seeking treatment by a gender specialist counselor.

Christopher Grey, a Colorado prisoner, suffers from gender identity disorder (a.k.a. transsexualism), and refers to himself as Crystal, Catherine Jene, and “C.J.” Grey sued in state court alleging prison officials were deliberately indifferent when they failed to provide him with “a gender specialist counselor who is licensed to provide counseling and therapy to transsexuals.” The trial court dismissed for failure to state a claim under the Eighth Amendment, because “Grey failed to show that defendants were deliberately indifferent.”

The Appellate Court acknowledged that “courts have consistently considered gender identity disorder or transsexualism to be a serious medical need for purposes of the Eighth Amendment.” It also observed that “failure to provide access to medical personnel capable of evaluating the need for treatment is tantamount to a failure to provide required medical care and can constitute deliberate indifference.” Moreover, “it would be improper to deny the required care because of cost considerations or because such treatment might be unpopular or controversial.”

The Court of Appeals then found that the trial court had erroneously determined that Grey failed to state a claim. The Court upheld dismissal of Grey’s damages claims on qualified immunity grounds because the law was not clearly established. While “courts have held that prisoners with gender identity disorder are entitled to treatment,” neither the courts nor medical community had uniformly agreed on the type of treatment that must be provided.

The appellate court held, however, that the trial court erred in dismissing Grey’s declaratory relief claim, seeking treatment by a gender specialist at state expense. The claim had been dismissed on qualified immunity grounds, but “qualified immunity does not extend to claims for injunctive or declaratory relief.” See: Grey v. Michaud, Div. III, Case No. 04CA0446 (cert. denied); 2005 WL 3435293.

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Related legal case

Grey v. Michaud