SMU Law Review


Transgender refers to “people whose gender identity, gender expression, or behavior does not conform to what is socioculturally accepted as, and typically associated with, the legal and medical sex to which they were assigned at birth.” Despite representing a small percentage of the U.S. population (0.58%), the transgender community is disproportionately represented in the prison system. Studies suggest that one-in-six transgender people (16%) have been incarcerated in their lifetime, compared to 2.8%–6.6% of the general U.S. population. In total, transgender individuals comprise 0.24% of the U.S. prison and jail population.

Unfortunately, research indicates that the prison system is “ill-prepared to accommodate the needs of transgender inmates.” This is especially problematic because the transgender population presents particularized medical needs. For example, gender dysphoria generally describes discomfort or distress resulting from the incongruence between a person’s gender identity and sex assigned at birth. For some, however, the distress associated with gender dysphoria may necessitate a formal diagnosis. In these cases, an individual not only exhibits marked incongruence between gender and sex but also “clinically significant distress or impairment” in social, school or occupational, or other important areas of functioning. A formal diagnosis of gender dysphoria facilitates access to necessary gender-affirming care, including hormone therapy and gender confirmation surgery. Failure to provide necessary medical treatment for gender dysphoria can result in depression, suicidality, autocastration, and death.

Although the Eighth Amendment imposes an affirmative duty on prison officials to provide adequate medical care to inmates, the U.S. courts of appeals asymmetrically valorize this constitutional right in the context of gender-affirming care. This Comment argues that transgender inmates presenting gender dysphoria possess a serious medical need that poses a substantial risk of harm. A failure to provide, or a categorical prohibition of, necessary forms of gender-affirming care runs afoul of the Eighth Amendment’s guarantee of adequate care. Ultimately, this Comment evaluates the Estelle-Farmer framework—formed by two U.S. Supreme Court opinions that bear on the issue—and proposes an objective inquiry into the medical necessity of a particular form of treatment and a per se rule regarding deliberate indifference. In doing so, this Comment advocates for greater protection of the constitutional rights of transgender inmates and addresses several arguments advanced by opponents of gender-affirming care.

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