Biden Admin. to Federal Court: Protect Trans Inmates
Justice Department signals departure from Trump era policies
BY ARTHUR S. LEONARD
The Justice Department
fi led a “Statement of
Interest” in the pending
case of Diamond v.
Ward in the US District Court for
the Middle District of Alabama
on April 22. Ashley Diamond, a
transgender woman, is suing state
prison offi cials for violation of her
Eighth Amendment rights to safety
and adequate health care.
The DOJ is not taking a position
on the facts in this case, but is reminding
the court of the legal obligation
to protect trans inmates.
Diamond has been in and out
of prison several times, and even
benefi ted from the fi ling of an
Obama Administration amicus
brief in one of her earlier lawsuits
struggling for appropriate treatment
in prison. Her most recent
incarceration, because of a parole
violation, subjected her to the same
old, same old: She was tossed into
a male prison with inadequate attention
to her safety or medical
needs. Diamond’s litigation history
has led to relationships with
organizations, such as the Center
for Constitutional Rights, eager to
help her litigate, so she is back in
court for a new round.
In 1994, the US Supreme Court
issued its fi rst opinion in a transgender
rights case, Farmer v. Brennan,
involving a claim by federal
inmate Dee Farmer that the Bureau
of Prisons was failing to protect
her from sexual assaults by
other prisoners. The Court ruled
that if prison offi cials were deliberately
indifferent to such risks, they
could be held liable to the inmate
for violation of the Eighth Amendment’s
ban on “cruel and unusual
punishment.”
Now Ashley Diamond, having
been raped more than a dozen
times since she was incarcerated
last fall and denied her usual hormone
treatment with appropriate
monitoring, is claiming that Alabama
offi cials are being deliberately
indifferent to her safety and
medical needs. The Biden Administration,
shifting away from
Out lesbian Pamela S. Karlan is leading the Department of Justice’s Statement of Interest reminding
courts of the obligations of prison systems toward trans inmates.
the transphobia of its immediate
predecessor, was moved to lend a
hand.
The Statement of Interest, prepared
by attorneys from the Civil
Rights Division of the Department
of Justice (DOJ), led by Pamela S.
Karlan, an out lesbian who is the
Principal Deputy Assistant Attorney
General for Civil Rights, gives
the court a detailed description of
the constitutional and statutory
obligations of prison systems towards
transgender inmates. Without
taking a position on any of the
facts in this case, the Statement
of Interest reminds the court that
the Prison Rape Elimination Act,
passed by Congress to address
the epidemic of sexual assault in
prisons, requires prison offi cials to
protect inmates against sexual assault,
going one step beyond what
the Supreme Court required in
Farmer v. Brennan to mandate affi
rmative efforts.
The Statement of Interest reminds
the court that prison offi
cials are required to conduct an
individualized assessment of the
risks of harm faced incoming inmates,
including taking into account
the inmate’s concerns as
well as the history of the particular
institution and the past experience
of the inmate. And, noting Ashley
REUTERS/LOREN ELLIOTT
Diamond’s request to be housed in
a women’s prison, the Statement
of Interest mentions that failure to
provide such alternative housing if
it is necessary to protect a transgender
inmate from sexual attacks
could constitute deliberate indifference
in violation of the Eighth
Amendment and the Prison Rape
Elimination Act.
Furthermore, when it comes to
medical treatment, the Statement
of Interest recites in detail the
history of litigation establishing
the right of transgender inmates
to access to medically necessary
care — once again determined on
an individualized basis. Diamond
contends that she is being denied
treatment because of a prison
policy of categorically denying particular
treatment regardless of the
individual needs of the inmate. If
so, the Statement of Interest points
out that this clearly violates Eighth
Amendment precedents. A categorical
refusal to provide a treatment
that qualifi ed health care providers
agree is necessary for a particular
individual is the very defi nition of
deliberate indifference.
“Courts have recognized a wide
range of interventions that have
been deemed by the Standards of
Care and qualifi ed professionals as
medically necessary to treat gender
LEGAL
dysphoria depending on the individual
needs of the prisoner,” wrote
the DOJ. “These treatments have
included gender expression allowances
such as permanent hair removal,
undergarments consistent
with a prisoner’s gender identity,
pronouns corresponding to a prisoner’s
gender identity; and surgery,
based on the circumstances of the
individual prisoner.”
The Statement of Interest also
noted court opinions stating that it
is not enough to provide hormones;
prison health offi cials must also
monitor and adjust the dosage
as needed to meet the individual
needs of the inmate.
If the prison denies appropriate
treatment without having a qualifi
ed health care practitioner make
an individualized assessment, it
is being deliberately indifferent to
serious medical needs, because
there is now a large accumulation
of judicial decisions recognizing
that gender dysphoria is a serious
medical condition requiring
adequate treatment. Although the
courts of appeals have not spoken
with one voice on these issue, the
Supreme Court’s refusal last year
to grant the state of Idaho’s petition
to review an order from the Ninth
Circuit Court of Appeals requiring
prison offi cials to provide gender
affi rmation surgery to a transgender
inmate should have sent a loud
message through the federal court
system.
The Statement of Interest is
likely to carry considerable weight
with the court. In most prisoner
litigation, transgender inmates are
representing themselves without
external allies. The addition of outside
public interest counsel helps
to redress the power imbalance,
and a Statement of Interest from
the DOJ, which mentions that an
investigation of Alabama prison
conditions of transgender inmates
is under way, may incentivize the
prison authorities to offer a settlement
that will provide Ashley Diamond
with appropriate protection
and health care and send a message
to prison administrators nationwide.
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