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A federal judge has ordered the state of Wisconsin to provide a transgender inmate with gender confirmation surgery to treat her gender dysphoria.
Nicole Campbell, who is currently 13 years into a 34-year sentence at Racine Correctional Institute, a men’s prison, was diagnosed with gender dysphoria prior to being incarcerated.
She was permitted to receive hormone treatments, counseling, and even allowed to wear some women’s clothing as part of her treatment while in prison. But she was denied gender confirmation surgery after requesting it in 2013.
Campbell appealed the decision, suing the state overt the denial of surgery. The Wisconsin Department of Corrections argued that Campbell met all the criteria for surgery except having practiced living as a woman in “real life,” which it said was impossible while Campbell was incarcerated in a men’s prison, reports the Milwaukee Journal-Sentinel.
A federal judge initially agreed that Campbell could sue prison officials for damages related to the denial of surgery. But in August 2019, the 7th U.S. Circuit Court of Appeals reversed that decision, ruling that prison officials could not have known that denying Campbell the surgery while allowing her to receive other treatments, including hormones, would be considered a violation of her rights.
Despite the 7th Circuit’s finding, U.S. District Judge James Peterson, of the Western District of Wisconsin, found that the Department of Corrections’ decision to block Campbell from receiving surgery was unconstitutional.
Peterson noted in a ruling, issued last week, that Campbell’s gender dysphoria is so severe that her own genitalia causes her a significant amount of anguish.
As a result, denying the surgery amounted to deliberate indifference of Campbell’s medical needs, thereby violating her Eighth Amendment right to be free from “cruel and unusual punishment.”
But Peterson denied Campbell’s additional requests for breast augmentation, voice therapy, and electrolysis, finding that her lawyers failed to provide evidence or witness testimony during trial that those particular medical interventions were necessary to treat Campbell’s gender dysphoria specifically.
He has not yet issued an injunction ordering the state to allow the surgery, but plans to after receiving input from both parties on the proposed wording of such an order. Comment from both sides must be submitted by Dec. 22.
Peterson also noted that it could take up to a year to schedule any surgery, as there is currently only one qualified surgeon capable of performing Campbell’s surgery located in Wisconsin.
He also suggested that the Department of Corrections could move Campbell to a women’s prison in the meantime, but refused to require she be placed there before receiving the surgery.
“Campbell continues to suffer from gender dysphoria, which causes her anguish and puts her at risk of self-harm or suicide. Monetary damages, even if they were available, would not alleviate her suffering,” Peterson wrote. “Defendants have identified no practical impediment to providing sex reassignment surgery to Campbell. The surgery is no more expensive or difficult than other treatment that the DOC routinely provides.
“The rights of transgender persons and sex reassignment surgery remain politically controversial, even outside the prison context. And some members of the public are outraged at any effort to improve the health and well being of inmates,” Peterson concluded. “But the true public interest lies in alleviating needless suffering by those who are dependent on the government for their care.
“That interest is served by an injunction requiring the Wisconsin DOC to promptly arrange for Campbell to be assessed by a qualified surgeon for sex reassignment surgery, and to provide that surgery if the surgeon deems her to be a suitable candidate.”
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