Gender Confirmation Surgery and the Federal Prison System: Eighth Amendment Framework and Proposed Alternatives

Abstract

As reform for individuals with gender dysphoria has developed, the prison system's accommodation of those individuals' needs has underperformed. There have been a number of cases in the past few years where inmates who are experiencing gender dysphoria have not received adequate care in the form of gender confirmation surgery. Four of the Federal Appellate Circuit Courts have decided that a physician's refusal to provide an inmate with gender confirmation surgery is not a violation of the 8th Amendment. One circuit ruled differently and held that denial of the surgery to an inmate experiencing gender dysphoria does violate the 8th Amendment's right against cruel and unusual punishment.

This Comment discusses the circuit split surrounding the issue of whether denying an inmate with gender dysphoria gender confirmation surgery is a violation of the 8th Amendment. This Comment argues that should SCOTUS grant review of one of these cases, it should hold as the 9th Circuit does in Edmo v. Corizon and rule that denial does violate the 8th Amendment. Further, this Comment discusses whether or not the 8th Amendment is the best way for inmates to seek redress on this issue and concludes that it does not. And while there is no perfect solution, this Comment recommends other ways to sue for this issue in order for inmates to receive better outcomes.

Recommended Citation

Julie Barnett, Gender Confirmation Surgery and the Federal Prison System: Eighth Amendment Framework and Proposed Alternatives, 24 Marq. Ben & Soc. Welfare L. Rev. 157 (2023).