United States District Court, W.D. Wisconsin
MARK A. CAMPBELL, also known as NICOLE ROSE CAMPBELL, Plaintiff,
KEVIN KALLAS, RYAN HOLZMACHER, JAMES GREER, GARY ANKARLO, JEFF ANDERS, MARY MUSE, MARK WEISGERBER, ROBERT HABLE, CATHY A. JESS, and CINDY O'DONNELL, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
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
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. 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.
following facts are undisputed, except where noted.
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.
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.
WPATH standards of care for gender dysphoria
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). 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
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 add a fifth criterion of “12
continuous months of hormone therapy” prior to surgery.
Id. at 60. The criteria for
vaginoplasty 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.
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.”
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.
The DOC's gender dysphoria policy
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.
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.)
policy also requires that inmates diagnosed with gender
have access to clinically appropriate treatment options that
1. Psychological treatment that addresses ambivalence and/or
dysphoria regarding gender and assists in better adjustment
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
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]
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
a. Telephone consultation.
b. Review of the health care ...