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Campbell v. Kallas

United States District Court, W.D. Wisconsin

May 4, 2018

MARK A. CAMPBELL, also known as NICOLE ROSE CAMPBELL, Plaintiff,

          OPINION & ORDER


         Plaintiff Mark A. Campbell, who goes by Nicole Rose Campbell, is a transgender female inmate in the custody of the Wisconsin Department of Corrections (DOC). She suffers from gender dysphoria and has received some treatment for this malady while incarcerated, including hormonal therapy. She has requested additional treatment: access to light makeup, electrolysis, and most important, sex reassignment surgery. Defendants, DOC officials, have denied her requests, explaining that electrolysis and makeup are not permitted within the male institutions where Campbell has been housed and that Campbell cannot obtain sex reassignment surgery until she experiences 12 continuous months of “living as a woman, ” which she cannot do as long as she is incarcerated.

         Campbell, through counsel, claims that defendants have violated her constitutional rights under the Eighth and Fourteenth Amendments by denying her effective medical treatment that is available to cisgender female inmates.[1] The parties have filed cross-motions for summary judgment. Dkt. 77 and Dkt. 79. I will grant each motion in part. But the parties have genuine disputes of material fact concerning whether sex reassignment surgery is medically necessary for Campbell. Campbell's Eighth Amendment deliberate indifference claims will proceed to trial.


         The following facts are undisputed, except where noted.

         Campbell has been a prisoner in the custody of the DOC since 2008. She is currently housed at the Racine Correctional Institution (RCI). She is scheduled to be released from prison in 2041.

         Campbell is a transgender woman. She was born with male genitals and thus was assigned the male gender, but she identifies as female. She has been diagnosed with severe gender dysphoria, which “refers to the distress that may accompany the incongruence between one's experienced or expressed gender and one's assigned gender.” Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013). I'll discuss gender dysphoria treatment broadly before turning to Campbell's individual treatment, which is the focus of this lawsuit.

         A. WPATH standards of care for gender dysphoria

         The World Professional Association for Transgender Health (WPATH) describes itself as “an international, multidisciplinary, professional association” concerned with “evidence- based care, education, research, advocacy, public policy, and respect for transgender health.” World Prof'l Ass'n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconfirming People 1 (7th version).[2] WPATH has developed what the parties agree are recognized as the authoritative standards of care for treating gender dysphoria. See Id. The WPATH standards list several possible treatments for gender dysphoria, including counseling, hormone therapy, hair removal, voice therapy, and surgical treatment. The standards guide treatment decisions by recommending “flexible clinical guidelines” that a patient should meet before receiving some types of treatment, which are called “criteria.” Id. at 2. The criteria for hormone therapy are:

1. Persistent, well-documented gender dysphoria;
2. Capacity to make a fully informed decision and to consent for treatment;
3. Age of majority in a given country . . .;
4. If significant medical or mental health concerns are present, they must be reasonably well-controlled.

Id. at 34. The criteria for breast augmentation surgery are identical. See Id. at 59. The criteria for orchiectomy[3] add a fifth criterion of “12 continuous months of hormone therapy” prior to surgery. Id. at 60. The criteria for vaginoplasty[4] add a sixth criterion of “12 continuous months of living in a gender role that is congruent with [the patient's] gender identity.” Id. at 61.

         The WPATH standards explain that this final criterion, which is often called “real-life experience, ” is meant to provide an opportunity for one to experience life in one's desired gender role “before undergoing irreversible surgery.” Id. WPATH explains that “[c]hanging gender role can have profound personal and social consequences, and the decision to do so should include an awareness of what the familial, interpersonal, educational, vocational, economic, and legal challenges are likely to be, so that people can function successfully in their gender role.” Id. The expectation is that during the 12-month period, “patients should present consistently, on a day-to-day basis and across all settings of life, in their desired gender role.” Id.

         The WPATH standards explicitly state that they apply “in their entirety” to institutionalized transgender individuals, including inmates. Id. at 67. They discuss the treatment of gender dysphoria within institutions in more detail:

All elements of assessment and treatment as described in the [standards] can be provided to people living in institutions. Access to these medically necessary treatments should not be denied on the basis of institutionalization or housing arrangements. . . .
Reasonable accommodations to the institutional environment can be made in the delivery of care consistent with the [standards], if such accommodations do not jeopardize the delivery of medically necessary care to people with gender dysphoria. . . . Denial of needed changes in gender role or access to treatments, including sex reassignment surgery, on the basis of residence in an institution are not reasonable accommodations under the [standards].

Id. at 67-68 (citation omitted). The WPATH standards also explain that clinical departures from the criteria may be justified by “a patient's unique anatomic, social, or psychological situation; an experienced health professional's evolving method of handling a common situation; a research protocol; lack of resources in various parts of the world; or the need for specific harm reduction strategies.” Id. at 2.

         B. The DOC's gender dysphoria policy

         The DOC has promulgated its own policy for treating gender dysphoria and accommodating transgender inmates. Defendant Cathy A. Jess, the deputy secretary of the DOC, has approved several versions of the policy.

         The policy provides for a gender dysphoria committee (also known as the “transgender committee”), a group that interprets and develops the DOC's policy on treating inmates with gender dysphoria and reviews inmate requests for specific services and treatments. Defendants Kevin Kallas, Ryan Holzmacher, James Greer, Gary Ankarlo, Jeff Anders, Mary Muse, Mark Weisgerber, and Robert Hable are all past or current members of the committee. (Defendant Cindy O'Donnell is a designee of the DOC secretary.)

         The policy also requires that inmates diagnosed with gender dysphoria

have access to clinically appropriate treatment options that may include:
1. Psychological treatment that addresses ambivalence and/or dysphoria regarding gender and assists in better adjustment to incarceration.
2. Appropriate psychiatric care.
3. Hormonal treatment, in the circumstances described below.
4. Other treatment determined to be medically necessary by the Transgender Committee.

Dkt. 75-9, at 6. And it establishes a procedure to be followed when an inmate requests hormonal therapy or surgical treatment:

1. Health care staff who receive an initial request from an inmate for hormonal therapy or surgical procedures shall forward the request to the PSU [psychological services unit] Supervisor.
2. The PSU Supervisor shall assign a member of the PSU staff to conduct an initial evaluation to help determine whether a GD [gender dysphoria] diagnosis is appropriate and whether a more specialized evaluation from a GD consultant is needed. . . .
3. The PSU staff member shall submit his/her report to the Mental Health Director, who shall review the PSU report and determine whether a GD consultant is needed for any of the following:
a. Telephone consultation.
b. Review of the health care ...

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