On December 8, 2020, the U.S. District Court for the Western District of Wisconsin held that the Wisconsin Department of Corrections (WDOC) violated the Eighth Amendment rights of Nicole Campbell—a transgender woman housed in a men’s prison—by denying her sex reassignment surgery. Campbell has been housed in the Racine Correctional Institution, serving a long sentence for a sex crime against a child. In her most recent challenge, Campbell did not contest the length of her prison sentence. But she did seek treatment for her severe gender dysphoria, which causes her extreme anguish and creates serious risk of self-harm. Although she had received counseling and hormone therapy, the WDOC declined to provide her with the gender confirmation surgery she requested and was documented as medically necessary by a physician. Campbell argued that denial of such treatment constituted “cruel and unusual punishment” under the Eighth Amendment to the U.S. Constitution.

U.S. District Court Judge James Peterson weighed the expert evidence presented to him and held that “[Campbell’s] gender dysphoria is a serious medical need, for which sex reassignment surgery is the only effective treatment.” The Court also held that “defendants consciously disregarded Campbell’s need for treatment for her severe anatomic gender dysphoria by denying her the one effective treatment” she needed. Applying judicial tests developed from other Eighth Amendment cases regarding the duty of prison administrators to “provide inmates with the care they require for their serious medical needs,” Judge Peterson determined that Campbell suffered severe harm from her dysphoria, monetary damages would not alleviate her suffering, and the WDOC faced no practical impediment to providing sex reassignment surgery to Campbell. 

Judge Peterson held—based on these determinations—that the WDOC violated Campbell’s Eighth Amendment right to avoid cruel and unusual punishment by denying her the transition-related treatments she sought. The only remedy would be to provide her the surgeries necessary to treat her gender dysphoria. As such, the Court required the WDOC “to promptly arrange for Campbell to be assessed by a qualified surgeon for sex reassignment surgery, and to provide that surgery if the surgeon deems her to be a suitable candidate.” The attorneys representing Campbell are very pleased with the decision.

This decision is a huge step toward justice and safety for incarcerated transgender people. The rights of incarcerated people to access transition-related care are still hotly contested. However, in addition to this Wisconsin case, the U.S. Court of Appeals for the 9th Circuit recently held that denial of transition-related healthcare constituted a violation of the Eighth Amendment, in a case regarding a transgender woman housed in a prison facility in Idaho. The State of Idaho petitioned the U.S. Supreme Court to address this case and reverse it, arguing that “The taxpayers of Idaho should not have to pay for a procedure that is not medically necessary.” Although the Supreme Court chose not to take up this petition, these issues are still bubbling up the various federal appeals court pipelines.

The WDOC may still appeal this decision, which in turn will mean that our circuit—the Seventh Circuit—will have to address the issue of whether the Eighth Amendment requires transition-related care that medical experts determine are medically necessary. At this time, federal appellate courts are divided on this issue. For example, the U.S. Court of Appeals for the Fifth Circuit has categorically rejected claims for gender-confirming surgeries by incarcerated people. Other courts, such as the U.S. Court of Appeals for the First Circuit, have held that gender-confirming surgeries were not required, given the particular situations before it. Given the divergence in approaches taken by federal appeals courts, the Supreme Court may decide to address this issue in the near future. And as I’ve written in earlier columns here, the current composition of the Supreme Court could mean that transgender rights are at risk.

What does this mean for our broader LGBTQ+ community? According to a study by the National Center for Transgender Equality, LGBTQ folks, especially “LGBTQ people of color and low-income LGBTQ people, are disproportionately likely to come into contact with the criminal justice system.” Moreover, a 2015 study of around 28,000 transgender adults highlighted how harassment, profiling, as well as high rates of incarceration, were risks faced in significantly higher degrees by our community than the general population. Thus the prison system—as well as equitable treatment within that system—is something that should matter to us, regardless of whether we as individuals have been harassed by police or incarcerated.

Public opinion matters, even in court decisions. We can’t change the composition of the courts tomorrow, but we can continue to hold our public officials—especially those with the power to change court makeup—accountable to the needs of all their constituents, particularly those who are most vulnerable. Additionally, making the public aware of transgender identities, educational, social—and yes—medical needs, is something we can all contribute to every day. A new president is a hopeful change for the country, but it is as vital as ever that we stick together, work together, and speak up for each other—especially for those among us who are most vulnerable.

Steph Tai is a professor at University of Wisconsin Law School. A former student of Professor Tai was on Nicole Campbell’s legal team.

Shannon Cate is a writer and prison educator inside a medium-security men’s prison.