On April 25 the Department of Justice renounced its previous support for a trans woman suing the Georgia Department of Corrections (GDC) for access to gender-affirming surgery. That same day, the DOJ filed a statement of interest in a separate lawsuit brought against GDC by a trans man being denied a mastectomy, claiming that the constitutional right to such procedures does not exist.
“[T]he past administration’s manipulation of supposed medical guidelines … were based on junk science,” Assistant Attorney General Harmeet K. Dhillon of the DOJ’s Civil Rights Division stated in a press release. “There has never been an Eighth Amendment right for inmates to demand elective and experimental surgeries. States’ limited resources need not be wasted to provide these dubious surgeries to inmates.”
In December 2023, a woman identified as Jane Doe filed a lawsuit against GDC alleging repeated violations of her Eighth Amendment rights, including denial of medically necessary care as well as being housed in men’s prisons. She has been in GDC custody since 1992.
In January 2024, the DOJ under former president Joe Biden’s administration had filed a statement of interest in Doe v. Georgia Department of Corrections that validated Doe’s assertion that treatment for gender dysphoria is a protected right under the Americans with Disabilities Act.
“[T]he Eighth Amendment requires prison officials to provide incarcerated people with adequate medical care for serious medical conditions,” the DOJ wrote in that statement. “It is well established that gender dysphoria is a serious medical condition. Prison officials demonstrate deliberate indifference to a substantial risk of serious harm—and thus violate the Eighth Amendment—when they categorically refuse to provide medically necessary gender-affirming surgery to an incarcerated individual with gender dysphoria.”
“Plaintiff alleges that the denial of a subcutaneous mastectomy violated the Eighth Amendment,” the DOJ stated. “It does not.”
The DOJ can file statements of interest in any federal court cases that prompt the department to clarify or reaffirm its current stance on an issue. They’re submitted in connection to specific cases, but they set the tone for how the nation’s top law enforcement agency sees the law applying to all cases involving similar claims.
Ronnie Fuller has been incarcerated in GDC women’s prisons since 2003. In January he sued the department, alleging Eighth Amendment violations from being denied access to a mastectomy. His argument cites the DOJ’s 2024 statement of interest for Doe’s case.
“Neither the ADA nor the Eighth Amendment require state prisons to provide surgical interventions to inmates in response to a gender-dysphoria diagnosis,” the DOJ claimed in its April 25 statement of interest in Fuller’s case. “Plaintiff alleges that the denial of a subcutaneous mastectomy violated the Eighth Amendment. It does not. Where there are multiple options available, a prisoner’s preferred option does not rise to the level of an Eighth Amendment violation.”
The DOJ went on to explain that its 2024 statement cited by Fuller was incorrect.
Withdrawing a statement of interest is a fairly bold move, and can have substantial influence on the body of case law for a given issue. It would not be surprising if the DOJ files a similar statement in every case brought by someone seeking gender dysphoria treatment from a corrections department, or at least every case that becomes prominent in the public eye.
Most GDC prisoners with gender dysphoria are not currently suing the department over surgery access, but the impact of these DOJ statements will not be limited to only those circumstances. It will bolster the denial or rollback of trans rights at every level. Not just access to surgery, but to hormone-replacement therapy and group therapy. It will impact how staff respond to complaints of sexual assault.
Despite the escalating politicization of trans rights under the current administration, the consensus of scientific and medical research going back decades has overwhelmingly been that treatment for gender dysphoria, for those who wish to pursue it, is effective and in many cases life-saving.
The DOJ actions come amid the current administration’s push to delegitimize gender dysphoria and redefine gender-affirming procedures as elective. Only medically necessary care must be covered by insurers for patients in the free world, or provided by corrections departments for patients in their custody.
Image via Virginia Department of Health
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