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Judge: DOC wrong to deny transgender inmate’s request for confirmation surgery

Chief Judge James Peterson works in his chambers in Madison. (Staff photos by Kevin Harnack)

Chief Judge James Peterson works in his chambers in Madison recently. Peterson ruled on Dec. 8 the DOC was wrong to deny a transgender woman’s request for gender-confirmation surgery and, in doing so, violated her Eighth Amendment rights. (File photo by Kevin Harnack)

A Dec. 8 ruling from the U.S. District Court for the Western District of Wisconsin could change the Wisconsin Department of Corrections’ approach to providing medical care to transgender inmates.

District Judge James Peterson said the DOC was wrong to deny a transgender woman’s request for gender-confirmation surgery and, in doing so, violated her Eighth Amendment rights.

The case involves the plaintiff Nicole Rose Campbell, a transgender woman incarcerated at the Racine Correctional Institution. In 2016, Campbell filed a complaint in the Western District accusing the Wisconsin Department of Corrections of violating her Eighth Amendment right to necessary medical care because it had denied her requests for sex-reassignment surgery, which is the term used in court documents.

The court sought pro bono counsel for a number of prisoner -litigation cases, Campbell’s included. Of the disputes on the list, Campbell’s stood out to Tom Heneghan, a partner at Husch Blackwell’s Madison office, and Iana Vladimirova, a senior associate at the firm’s Madison office.

“It dealt with the civil rights of transgender individuals, and it’s an issue that felt very, very current,” Heneghan said.

At issue

Campbell has requested sex-reassignment surgery several times since 2013 only to meet with refusals from the DOC. She has argued repeatedly she needs the procedure as a treatment for severe, unremitting anatomic gender dysphoria.

Medical staff, though, disputed whether surgery was needed and the DOC instead provided counseling and cross-gender hormone therapy.

The case went to trial in March, just as the pandemic was beginning to shut down government buildings and businesses throughout Wisconsin.  The court heard from seven witnesses at trial, including Campbell and Cynthia Osborne, the DOC gender-dysphoria consultant. In his opinion, Peterson said he found Osborne’s testimony particularly revealing. The social worker and sex therapist first evaluated Campbell in 2012 and then concluded Campbell’s symptoms of gender dysphoria would not remit without surgery.

The DOC medical director, Kevin Kallas, said he had to consider whether a female transgender inmate would be suited to a female prison and what would happen if Campbell were unhappy with the results of surgery.

Peterson called them “reasonable considerations,” but he said he was not persuaded that they were the main drivers of the decision to deny Campbell’s request for surgery.

“The reason defendants denied Campbell’s request is clear: DOC policy flatly prohibited sex reassignment surgery for inmates,” Peterson wrote.

Peterson found that the DOC “consciously disregarded” Campbell’s need for treatment and violated her rights under the Eighth Amendment. Heneghan said Campbell was thrilled about the decision, but also somewhat shocked.

I think there was a certain level of disbelief because she has been pursuing this since 2013,” Heneghan said. “She’s been fighting this for seven years.”

Wait continues

As Peterson pointed out in his order, Campbell’s wait is likely not over. His opinion notes that there is only one surgeon who can perform the procedure in Wisconsin. Campbell, he said, will have to wait at least a year to get the surgery, no matter the ultimate outcome of her case.

“I decline to impose any further prerequisites on Campbell’s sex reassignment surgery; she has waited long enough,” Peterson wrote.

In addition to the time that passed between Campbell’s first request and her lawsuit, the case was delayed by about a year and a half while the parties waited for the Seventh Circuit Court of Appeals to rule on one issue.

“The most difficult part was the time,” Heneghan said. “We had to constantly remind ourselves that Nicole was suffering and was ill.”

The court has yet to issue a separate order for injunction. The parties have until Dec. 22 to propose what they would like to see happen. The DOC could still appeal, and if it does, have the court’s order stayed and further add to Campbell’s wait.

Peterson said the DOC may send Campbell to Taycheedah Correctional Institute, a women’s prison in Fond du Lac County. Heneghan said Campbell would prefer to stay at Taycheedah, but not at the risk of incurring yet another delay in her pursuit of surgery.

Campbell will not receive damages. The Court of Appeals decided that the defendants are entitled to qualified immunity because any right Campbell has to sex-reassignment surgery is not yet clearly established. At the time the DOC denied the surgery, no prison in the U.S. had ever provided sex-reassignment surgery to an inmate, according to Peterson’s opinion.

Although surgery isn’t the right treatment for every transgender inmate, Heneghan said the judge’s decision is evidence that the DOC shouldn’t simply deny all cases. Rather, it should assess them on their own merits, taking medical considerations into account.

The court found that they had exhibited deliberate indifference, which is a very specific legal standard that is very difficult to prove, and I would hope that they would take that to heart and would change their approach,” Heneghan said.

The DOC declined a request for comment.


About Michaela Paukner, mpaukner@wislawjournal.com

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at mpaukner@wislawjournal.com.

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