Court ruling brings Nevada transgender inmate policy into focus

Oct. 23--A court ruling out of the 9th U.S. Circuit Court of Appeals could have implications for transgender inmates' health care access in Nevada.

In August, a three-judge panel upheld a 2018 ruling requiring the Idaho Department of Corrections to provide a transgender inmate with gender confirmation surgery, a procedure that alters an individual's sexual characteristics to reflect their gender identity. Idaho's refusal to give inmate Adree Edmo access to the surgery constitutes cruel and unusual punishment, the court determined.

Edmo, a transgender woman housed in the all-men's Idaho State Correctional Center, has been diagnosed with gender dysphoria, a medical condition in which one experiences distress because their assigned biological sex conflicts with their gender identity, court documents say. She has requested gender confirmation surgery many times and attempted self-castration twice while in prison, demonstrating a medical need for the surgery, the 9th Circuit determined.

"The broad medical consensus in the area of transgender health care requires providers to individually diagnose, assess and treat individuals' gender dysphoria, including for those individuals in institutionalized environments," the three-judge 9th Circuit panel wrote in August. "Treatment can and should include (gender confirmation surgery) when medically necessary."

The Nevada Department of Corrections is aware of the ruling from the 9th Circuit, which has jurisdiction over Nevada, said department spokesperson Scott Kelley.

"However, we can't predict how it will impact Nevada and other states, and we can't predict what legal action inmates will take," Kelley wrote in an email.

Kelley declined to answer questions about whether any of the state's 13,218 inmates in Nevada corrections facilities have requested gender confirmation surgery, arguing that Health Insurance Portability and Accountability Act privacy laws protect the information. However, the department did not cite specific provisions of the law, which broadly makes identifying information in medical records private.

In response to questions about how many transgender inmates are currently incarcerated in Nevada prisons, Kelley said the state doesn't mandate the department track that.

Not all transgender and gender-nonconforming people want, need or can afford gender confirmation surgery, which typically costs upwards of $10,000. But the surgery can be an effective treatment for some individuals suffering from gender dysphoria. Only one state department of corrections -- Delaware's -- acknowledged in written policy as of 2017 that surgery could be medically necessary for transgender inmates, according to the nonprofit Prison Policy Initiative.

Nevada's policy on transgender inmates remains unchanged since it was written in 2017, Kelley said. The policy outlines a process for determining where to house transgender inmates, stipulates that the department will provide inmates with clothing that reflects their gender identity upon request, and says that transgender inmates can receive hormonal treatment if they were prescribed it prior to incarceration. It does not reference gender confirmation surgery for inmates.

Legal staff with the ACLU of Nevada, who have been lobbying for changes to the department's transgender policy since it was enacted, hope that the 9th Circuit ruling could open the door for revisiting the policy. The ACLU's position is that the state should provide transgender inmates with hormonal therapy -- even if they hadn't been receiving it prior to incarceration -- and/or with gender confirmation surgery when deemed medically necessary, said Sherrie Royster, legal director for the ACLU of Nevada.

"(The case law) just confirms the concerns that were raised back in 2017," Royster said.

Ray MacFarlane, the transgender and gender diversity program manager at The Center in Las Vegas, said the circuit court ruling affirms the fact that incarcerated transgender people are entitled to proper medical treatment, which could include surgery. Given that transgender people suffer disproportionately from depression, anxiety and other mental health problems, access to medical care is essential for those individuals, MacFarlane said.

"For some people who want surgeries, those things can help alleviate their own well-being and cope with that," they said.

Just because a transgender person wasn't receiving hormonal therapy prior to incarceration does not mean that they will never need it or gender confirmation surgery while incarcerated, MacFarlane added. Similar to other medical problems, gender dysphoria can arise at any time and should be treated with all necessary tools, they said.

Although the ACLU is not working directly with any Nevada inmates seeking gender confirmation surgery, Royster is aware of discussions between local legal counsel and inmates about this issue, she said. The recent court ruling could potentially give those conversations more clout.

"Whenever something comes out like a court ruling, especially one like this, then I think it is an opportunity to come back and have that discussion again," Royster said.

Edmo's surgery could be delayed because Idaho plans to appeal the case to the Supreme Court. If granted the surgery, she would be one of a handful of inmates across the country to have received the procedure while in custody.

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