Idaho transgender prisoners filed suit over medical care. Judge’s new ruling affects dozens

BOISE (Idaho Statesman) — Three transgender women incarcerated in Idaho’s prison system can continue to receive hormone therapy after a federal judge’s ruling on an injunction Friday granted a request by the American Civil Liberties Union, despite the enactment of a state law that prohibits state-funded gender-affirming care.

Dozens of other prisoners who weren’t part of the suit — people who had begun to lose access to their gender-affirming care — may now receive treatment again.

U.S. District Court Judge David Nye’s decision on a temporary injunction followed a class-action lawsuit filed by the ACLU and its Idaho affiliate against several state leaders on behalf of three women. The lawsuit argued that House Bill 668, which was passed earlier this year, infringes on incarcerated people’s access to medically necessary treatment and violates their Eighth Amendment rights.

“I’ve got concerns about the current temporary restraining order only being limited to three people,” Nye told the attorneys Friday morning. “But, I’m not so ready that I’m going to extend that TRO right now, I want to think about it today.”

Nye’s afternoon ruling then went beyond the initial restraining order in the case, which allowed only the three women named in the lawsuit to continue receiving gender-affirming care. Now anybody incarcerated within the Idaho Department of Correction who has been diagnosed with gender dysphoria and who was previously receiving hormone therapy may get that treatment.

“There are people losing their medications now,” ACLU of Idaho Legal Director Paul Southwick argued in court Friday morning before Nye’s ruling. “People have been nearly — or fully — tapered off their medications and are suffering the consequences.”

Under the law, state funds no longer could be used for surgeries or treatments that are meant to alter the “appearance” of a person “in a way that is inconsistent with the individual’s biological sex,” prohibiting transgender people in prison from accessing prescribed medication that gives them feminine or masculine traits.

The law went into effect July 1, but the three women continued to receive care — without much interruption — after Nye placed a temporary pause on the law in response to the lawsuit.

The ACLU filed the complaint against Gov. Brad Little, Attorney General Raúl Labrador, IDOC Director Josh Tewalt, IDOC Deputy Director Bree Derrick and the prison’s private medical provider, Centurion.

Up until Nye’s Friday decision, the other incarcerated people receiving hormone therapy had their medications reduced until they were to be fully tapered off of the treatment, according to an attorney representing Centurion. Between 60 to 70 people within the state’s prisons have been diagnosed with gender dysphoria, and before July 1, 54 of those people were receiving hormone treatment, Centurion wrote in court filings.

The temporary restraining order will be in place until Nye issues another order addressing a request to certify the lawsuit as a class-action and a preliminary injunction, which theoretically could make Friday’s decision last through the duration of the lawsuit or until a higher court’s ruling.

“The Court is simply holding § 18-8901 in abeyance and preserving the situation as it existed prior to the filing of the complaint,” Nye wrote in the order. “It does so because it finds that plaintiffs have serious questions going to the merits of this case and in light of the extreme time constraints.”

OTHER INCARCERATED PEOPLE IN IDAHO ARE ‘SUFFERING’

Attorneys for both sides of the case presented their arguments to Nye in mid-July, and then again during Friday’s hearing. While the ACLU focused on the constitutionality of the law, and argued that denying prisoners access to necessary gender-affirming care — specifically hormone therapy — violated their rights, the state’s attorney asserted that lawmakers decided on the medical standard of care by enacting the new law.

Since filing the lawsuit, the ACLU has heard from dozens of incarcerated people in need of access to gender-affirming care, Southwick said. Nye initially denied the ACLU’s request to extend the temporary pause on the law to all prisoners diagnosed with gender dysphoria, but told them he’d “leave the door open.”

“Our non-present class members, they are suffering now and they’re going to be tapered off (of hormone therapy) entirely, soon,” Southwick said in July. “We can’t really just wait anymore.”

Southwick argued that the law violated incarcerated people’s constitutional rights since the government has an “affirmative duty” to provide “adequate medical care” under the Eighth Amendment.

“Individuals who are incarcerated cannot obtain medical care outside of the prison system — there is no alternative way,” Southwick said. “Unlike folks who are outside of IDOC prisons, it remains perfectly legal for adults to seek hormone treatment for gender dysphoria using private funds.”

Since at least 2002, before the new law was implemented, Idaho’s prisons allowed people diagnosed with gender dysphoria to be prescribed hormones, according to a nine-page document outlining the department’s guidelines. The policy outlined that hormone therapy will be provided “when medically indicated,” which Southwick said during the July hearing showed that the prison’s doctors determined the treatment as “medically necessary.”

“They continue to view it as medically necessary or medically indicated,” Southwick said Friday, referring to IDOC’s health care professionals. “It’s continuing to be provided for our clients and they would provide it — but for the Legislature determining that they cannot.

“A doctor’s decision about whether hormone treatment is medically indicated has not changed and will not change,” he continued. “They will continue to find it medically indicated or medically necessary. They just won’t be able to provide the treatment.”

James Simeri, an attorney from the Idaho Attorney General’s Office representing state officials, said in July that “doctors don’t get to determine” whether gender-affirming treatment is medically necessary anymore.

“But in this case, haven’t your own doctors said that these prisoners need to have this treatment?” Nye asked Simeri during the July hearing.

While the prison’s medical staff have been providing people with hormone therapy, Simeri responded, the Republican-dominated Idaho Legislature “set the medical standard of care” when legislators enacted the law. Offering treatment doesn’t make it a “medical necessity,” he said.

Simeri doubled down on this Friday by asserting that the state’s position is that hormone treatment for transgender individuals is “never medically necessary,” regardless of what health care professionals say.

“There’s lots of treatments that prisoners might want, doesn’t mean that they have a constitutional right to those treatments,” Simeri said.

IDAHO LAWMAKERS ‘SET THE STANDARD OF CARE’

In 2014 the U.S. 9th Circut Court of Appeals ruled that the Nevada Department of Corrections policy to deny cataract surgery for prisoners because “one eye is good enough” was the “paradigm of deliberate indifference.”

Southwick said that when a transgender prisoner sued her corrections department in California the next year over the department’s refusal to provide her with gender-affirming surgery, the same court relied on the Nevada case to point out that refusing to provide care, when there’s a serious medical diagnosis and an effective treatment, based on a blanket policy “indicates deliberate indifference.”

Southwick said U.S. courts have agreed that hormone treatment is necessary to treat gender dysphoria for some people. Simeri argued that the precedent set by prior cases doesn’t matter because of the new law.

“The Idaho Legislature and legislatures all around the country, they get to set the standard of care for the people’s health,” Simeri said. “That’s what legislators are supposed to do.”

The bill, championed by Republicans, was signed into law by Little, despite testimony from transgender residents and medical professionals who argued that it would heighten depression and suicide rates.

Nye questioned the idea that Idaho’s Legislature should get the final say on setting the standard of medical care, and also said the judicial branch’s job is to ensure that the Legislature’s actions are constitutional.

Southwick called the state’s assertion “extreme.” Under the state’s argument, Southwick said, the government could say that medication for HIV or dialysis wasn’t medically necessary for people who are incarcerated, and deny numerous kinds of care the professional medical community has found to be both “appropriate and necessary.”

“That is a very dangerous position that hasn’t been adopted by any court anywhere, nor should it,” Southwick said.