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4th Circuit Could Force Prisons to Provide Sex Change Operations

By William Peacock, Esq. on February 05, 2013 | Last updated on March 21, 2019

Gender Identity Disorder (“GID”) is characterized by a feeling of being trapped in the body of the wrong gender. The World Professional Association for Transgender Health prescribes a “triadic treatment sequence” comprised of hormone therapy, real-life experience of living as a member of the opposite sex, and if the dysphoria persists after one year of treatment, sex reassignment surgery.

Ophelia Azriel De’lonta, born Michael A. Stokes, is currently serving a lengthy sentence in a Virginia prison. She suffers from GID and sued the Virginia Department of Corrections in 1999 for withholding treatment. After the Fourth Circuit stepped in, the case settled in 2004 after VDOC agreed to provide counseling, hormone therapy and to allow De’lonta to cross-dress to the extent allowed in an incarcerated context.

Unfortunately, more than eight years of treatment has not solved De'lonta's distress. In fact, she states that meetings with the counselor actually increase her distress. Nonetheless, VDOC has not, and refuses to, provide gender reassignment surgery.

Meanwhile, De'lonta's growing distress has manifested itself in numerous attempts at self-castration.

She filed suit in 2011, alleging cruel and unusual punishment through denial of necessary medical treatment in violation of the Eighth Amendment. The District Court dismissed the complaint for failure to state a claim upon which relief could be granted.

The Fourth Circuit disagrees, however. In order to show cruel and unusual punishment, De'lonta will have to show that (1) the deprivation of a basic human need was objectively sufficiently serious and (2) that subjectively the officials acted with a sufficiently culpable state of mind.

The first point was decided in the last trip to the Fourth Circuit, when the court stated, "[P]rison officials have a duty to protect prisoners from self destruction or self-injury." The objective seriousness prong was therefore conceded here.

As for the subjective prong, VDOT is obviously aware of De'lonta's disorder and distress. They have provided some treatment and responded with medical attention to multiple self-castration attempts. However, is two-thirds of the prescribed treatment, per the recognized standards of care, enough?

Taking all of De'lonta's claims as true, despite the therapy's negative impact and her continued need for surgery to alleviate her GID, she had been repeatedly denied evaluation for surgery. The court compares this to a painkiller administered to someone suffering a fall. When that person requires surgery, merely pointing to the painkiller will not suffice for constitutionally adequate treatment.

The short version of the holding is that providing some treatment consistent with the GID Standards of Care does not necessarily suffice for constitutionally adequate treatment. The court emphasizes that this ruling does not guarantee surgery - it merely allows De'lonta to press her claims in court.

Still, considering the accepted treatment protocol, her prior treatments for her condition, and her repeated self-castration attempts, her chances at obtaining the surgery seem pretty good. Similar inmates with similar medical histories could follow. It is also interesting to note that the Fourth Circuit does not stand alone here. Last year, a federal judge ordered Massachusetts to provide gender reassignment surgery to Michelle Kosilek, who murdered her wife while still known as Robert.

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