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April 10, 2022

"Transgender Rights & the Eighth Amendment"

The title of this post is the title of this recent article authored by Jennifer Levi and Kevin Barry and just posted to SSRN.  Here is its abstract:

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law.  The treatment of incarcerated transgender people is no exception.  Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex.  But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo v. Corizon, Inc. in 2019 — the first circuit-level case to require a state to provide transition surgery to an incarcerated transgender person.  Other state departments of corrections will surely follow, as they must under the Eighth Amendment.  These momentous changes, which coincide with a broader cultural turn away from transphobia and toward a collective understanding of transgender people, have been neither swift nor easy.  But they trend in one direction: toward a recognition of the rights and dignity of transgender people.

April 10, 2022 at 11:47 AM | Permalink


Solution: Delay the reporting date by one year, during which the future inmate can get any medical service he or she needs at his or her own expense, just as a person who hasn't committed a crime would have to do. If the person acts, fine. If he/she declines to act, then he/she can fairly be deemed to have waived the opportunity, and will have to wait until the sentence is completed.

Convicted defendants should be treated humanely, but humanely doesn't mean you get the taxpayers have to pick up the check for extremely expensive services when you had time to do it yourself and didn't.

Posted by: Bill Otis | Apr 10, 2022 7:42:52 PM

Indeed: There is an irony to having to be incarcerated in order to have a constitutional right to medical care

Posted by: John | Apr 12, 2022 11:59:02 PM

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