Polarizing Procedures: Transsexual Inmates, Sex Reassignment Surgery, and the Eighth Amendment, 50 J. Marshall L. Rev. 747 (2017)

This article argues that at present, there is not sufficient certainty within the medical and scientific communities to definitively state that SRS is medically necessary for transsexual individuals, or that it effectively relieves the negative symptoms often associated with gender dysphoria. Because the Supreme Court has held that the Eighth Amendment does not require prison officials to provide the most cutting-edge treatments available, but only an adequate level of treatment, it is not a violation of the Eighth Amendment to deny a transsexual inmate’s request for SRS. Part I explores the medical and scientific communities’ current understanding of gender dysphoria, the medical treatments available, and where uncertainty still exists. Part II examines the challenges and dangers that transsexual inmates face, as well as the difficulties they present for prison officials. Part III reviews the Eighth Amendment’s restriction of cruel and unusual punishment, and how courts have interpreted this restriction in regard to medical care for inmates. The Kosilek decisions are examined in order to demonstrate how the cruel and unusual punishment test is applied. Part IV highlights the significant events that have occurred since Kosilek, including the Army’s approval of SRS for inmate Chelsea Manning, and a recent United States District Court decision approving SRS for an inmate in California. Part V is a discussion and analysis of the central question involved in this issue: do transsexual inmates who medically qualify for the procedure have a constitutional right to receive SRS? Part VI concludes that at present, no such right exists