Legal Corner-Cases About Transgender Rights

by Cassie Pierson, Staff Attorney for Legal Services for Prisoners with Children
Since the mid-1980s, several cases have been litigated on issues affecting transgender people in prison. Below is information on a recent case against the California Department of Corrections.
Alexis Giraldo v. California Department of Corrections is a case brought by Alexis Giraldo, a Latina transgender rape survivor, who sued the CDCR for failing to protect her from sexual assault. While at Folsom State Prison in 2006, Ms. Giraldo’s requests for help were ignored by multiple prison staff members prior to and during the attacks. Motivated by her compassion for transgender women who are still in prison and surviving sexual assault, Ms. Giraldo filed the case to seek damages for her own injuries and to force the CDCR to develop policies and practices to better protect transgender people in prison. A recent study of sexual assault in California’s prisons found that 59% of the state’s transgender prisoners reported being sexually assaulted, compared with 4% of the general prison population.

The case went to trial in San Francisco in July 2007. Ms. Giraldo and her supporters, including Transgender in Prison Committee (TIP) and Transgender, Gender Variant and Intersex Justice Project (TGIJP), used this case to educate the public on what happens to transgender people in prison. Through court observation and protests outside the courthouse, the community supported Alexis as she braved the grueling and discriminatory court process. On August 2, 2007, the jury found some of the defendants not guilty, but deadlocked on one defendant. This entitles Ms. Giraldo to a new trial with respect to this defendant. Ms. Giraldo can also ask for a dismissal on the entire case, and pursue an appeal on her claim that the state’s practice of putting transgender women in men’s prisons violates the prohibition against cruel and unusual punishment in California’s constitution.
Ms. Giraldo and her attorney are moving forward with a new trial and a growing coalition of community-based organizations is united to support her in her continued fight for justice for all transgender people.
Some other cases are listed below in chronological order, starting with the most recent:
DiMarco v. Wyoming Dep’t of Corrections, 300 F. Supp. 2d 1183 (D. Wyo. 2004): segregating an intersexed prisoner from the general population of a male prison for 438 days in severe conditions violated her due process rights.
Barrett v. Coplan, 292 F. Supp. 2d 281 (D.N.H. 2003): transgender prisoner had a valid 8th Amendment claim when prison officials refused any treatment for her ?gender identity disorder?.
Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002): prisoner’s ?transsexualism? was a serious medical need; prison officials must provide adequate treatment recommended by a doctor experienced in treating ?gender identity disorders?, including hormone therapy or sex reassignment surgery.
South v. Gomez, 211 F.2d 1275 (9th Cir. 2000): prisoner suffered an 8th Amendment violation when her hormone therapy was cut off when she was transferred to a new prison
Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997): Sex reassignment surgery and hormone treatment may be withheld because neither private nor public health insurance programs will pay for sex reassignment.
Lucrecia v. Samples, 1995 WL 630016 (N.D. Cal. Oct. 16, 1995): no 8th Amendment violation where prison officials transferred a transgender prisoner from a woman’s prison to a men’s prison, where she was subjected to verbal, physical, and sexual harassment and assault by other prisoners and guards.
Farmer v. Brennan, 511 U.S. 825 (1994): court adopted a narrow definition of “deliberate indifference” where a transgender woman was brutally beaten and raped by her male cellmate; the court held that prison officials must have subjective knowledge that the prisoner is at risk of violence rather than adopting an objective rule that officials “should have known” the prisoner was in danger.
Phillips v. Michigan Dep’t of Corrections, 731 F. Supp.792 (W.D.Mich.1990): granted preliminary injunction directing prison officials to provide estrogen therapy to a transgender woman who was taking estrogen for several years prior to her prison transfer.
White v. Farrier, 849 F.2d 322 (8th Cir. 1988): male-to-female transgender prisoner does not have the right to cross-dress or wear cosmetics and does not have a constitutional right to hormone therapy; See also Long v. Nix, 86 F.3d 761 (8th Cir. 1996).
Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987): transgender prisoner has a constitutional right to some type of medical treatment for diagnosed condition of ?transsexualism?, but not the right to any particular type of treatment such as estrogen therapy.
Lamb v. Maschner, 633 F. Supp.351 (D. Kan. 1986): transgender prisoner has no right to hormone therapy.
Information for this article was found on the website for the National Center for Lesbian Rights; www.nclrights.org and TGIJP?s website www.tgijp.org