DOJ: 'Failure to Provide Adequate Treatment for Transgender Inmates' Is Unconstitutional

By Susan Jones | April 6, 2015 | 11:15 AM EDT

The U.S. Justice Department has told a federal court that "Failure to provide adequate treatment for transgender inmates with gender dysphoria constitutes cruel and unusual punishment under the Eighth Amendment." (AP File Photo)

( - The U.S. Justice Department is urging a federal court in Georgia to side with a prison inmate who was born male but wants to continue taking the "feminizing" hormone treatment that produces attributes "such as breasts and soft skin."

In a Statement of Interest filed in the case of Ashley Diamond, the Justice Department concluded that "Failure to provide adequate treatment for transgender inmates with gender dysphoria constitutes cruel and unusual punishment under the Eighth Amendment."

The case (Diamond v. Owens, et al.) has landed in U.S. District Court for the Middle District of Georgia.

At issue is whether the Georgia Department of Corrections may employ a so-called "freeze-frame" policy, which says inmates who are not identified as transgender and referred for treatment at the time they enter prison may receive no treatment for the condition once they end up behind bars.

Diamond is currently seeking two preliminary injunctions: one halting enforcement of the freeze-frame policy; and the other directing the prison to begin treatments for Diamond's gender dysphoria. The Justice Department is urging the court to grant both preliminary injunctions sought by Diamond.

The Justice Department said it filed its statement of interest in Diamond's case because it has a "broad interest" in ensuring that conditions in state and local correctional facilities are consistent with the Constitution and federal law. "The United States also has a strong interest in protecting the rights of lesbian, gay, bisexual, and transgender individuals more broadly," the filing said.

DOJ notes that gender dysphoria is listed in the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition.

“Gender dysphoria is listed in the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-V) as a major mental illness and characterized by a marked incongruence between one’s experienced/expressed gender and assigned gender at birth. Gender dysphoria involves a persistent physical and emotional discomfort with one’s biological sex,” says the DOJ statement of interest. “Left untreated, that discomfort can become so painful that individuals consider or attempt suicide, self-castration, or self-mutilation.

“The accepted course of treatment to alleviate these symptoms,” says the DOJ statement, “often involves allowing the individual to live as his or her chosen gender, through one or more of the following treatments: changes in gender expression and role; dressing, grooming, and otherwise outwardly presenting in a manner consistent with one’s gender identity; hormone therapy; and, in some cases, surgery to change primary and/or secondary sex characteristics.”

Diamond told the court that she was first diagnosed with gender dysphoria as a teenager, nearly twenty years ago, and she says she lived as a female -- taking "feminizing hormones" for 17 years -- before she was imprisoned for burglary and theft three years ago.

Diamond says she identified as transgender upon entering prison and discussed her hormone therapy at that time, but the Georgia Department of Corrections did not refer Diamond for additional evaluation or treatment.

"Instead, GDOC terminated Ms. Diamond’s hormone therapy and confiscated her female clothing and undergarments before placing her in a male facility. This had a profound physical and emotional impact on Ms. Diamond," the Justice Department said.

Diamond says she suffered painful side effects and depression when the hormone therapy ended. She says her gender dysphoria is "so severe that she has attempted suicide and self-castration on multiple occasions" while in prison.

The court filing notes that multiple prison clinicians later confirmed Diamond’s gender dysphoria and recommended treatment, including hormone therapy and allowing Diamond to "outwardly express her female gender identity." The treatment, however, was never provided, and Diamond is now suing.

The Justice Department says that, under the facts alleged in the case, it believes Diamond will be successful in showing that she has received a "constitutionally inadequate level of medical care for her gender dysphoria, and that the policy preventing her from receiving more appropriate and individualized treatment -- the 'freeze-frame' policy –- is facially unconstitutional."

"Accordingly, the United States urges the Court to...issue appropriate injunctive relief."

The statement of interest was issued by Vanita Gupta, the acting assistant attorney general of Justice Department's Civil Rights Division.

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