UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN ________________________________________________________________________

KARI SUNDSTROM and ANDREA FIELDS,

Plaintiffs,

v.

Case No. ___________

MATTHEW J. FRANK, Secretary of the Wisconsin Department of Corrections; JUDY P. SMITH, Warden of the Oshkosh Correctional Institution; THOMAS EDWARDS, Manager of the Medical Services Unit at the Oshkosh Correctional Institution; JAMES GREER, Director of the Wisconsin Department of Corrections Bureau of Health Services; and ROMAN KAPLAN, M.D., medical doctor at the Oshkosh Correctional Institution, in their official capacities,

Defendants. ________________________________________________________________________

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ________________________________________________________________________

1. Kari Sundstrom and Andrea Fields (collectively, “Plaintiffs”), by their attorneys,

for their Complaint against Matthew J. Frank, Judy P. Smith, Thomas Edwards, James Greer,

and Roman Kaplan M.D., in their official capacities (collectively, “Defendants”), allege as

follows:

NATURE OF THE ACTION

2. This Complaint asserts a civil rights action pursuant to 42 U.S.C. § 1983 for

declaratory and injunctive relief to redress Defendants’ violations of Plaintiffs’ rights under the

Eighth and Fourteenth Amendments to the United States Constitution. Defendants have violated

the Constitution by enforcing 2005 Wisconsin Act 105 and abruptly terminating and depriving Plaintiffs of medical treatment for Plaintiffs’ serious health conditions, with no exercise whatsoever of individualized medical judgment and in contrast to the treatment Defendants provide to other similarly situated inmates at Wisconsin Department of Corrections (“DOC”) facilities. Plaintiffs seek an end to those actions of Defendants that violate Plaintiffs’ right to equal protection and their right to be free from cruel and unusual punishment, pursuant to the Fourteenth and Eighth Amendments to the United States Constitution, and a declaration that 2005 Wisconsin Act 105 is unconstitutional on its face.
JURISDICTION AND VENUE 3. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, as this action arises under the laws and Constitution of the United States, and 28 U.S.C. § 2201, as an actual controversy exists within this Court’s jurisdiction. 4. Venue is proper in this district pursuant to 28 U.S.C. § 1391, because the majority of the events giving rise to this action occurred in this district and because Defendants are subject to personal jurisdiction in this district.
PARTIES 5. Plaintiff Kari Sundstrom (“Sundstrom”) is a 41-year-old transgender woman, meaning that she1 was born anatomically male, but has a female gender identity. Since December 2003, Sundstrom has been incarcerated at the Oshkosh Correctional Institution (“OCI”) in Oshkosh, Winnebago County, Wisconsin.
1 This Complaint uses feminine pronouns to refer to Plaintiffs, a practice consistent with their gender identity, their preference, common practice, modern judicial practice, and the advice and guidance of mental health and other professionals who work with transgender persons.
2

6. Plaintiff Andrea Fields (“Fields”) is a 29-year-old transgender woman, meaning that she was born anatomically male, but has a female gender identity. Since August 8, 2005, Fields has been incarcerated at OCI.
7. Defendant Matthew J. Frank (“Frank”) is an adult citizen of the United States who is the Secretary of the DOC in Madison, Wisconsin. At all material times, Frank had the authority to implement state laws regarding the treatment of inmates at DOC facilities, including OCI, and was acting under color and authority of state law. Frank is sued in his official capacity.
8. Defendant Judy P. Smith (“Smith”) is an adult citizen of the United States who is the Warden of OCI. At all material times, Smith had the authority to implement state laws regarding the treatment of inmates at OCI and was acting under color and authority of state law. Smith is sued in her official capacity.
9. Defendant Thomas Edwards (“Edwards”) is an adult citizen of the United States who is the Manager of the Medical Services Unit at OCI. At all material times, Edwards was acting under color and authority of state law. Edwards is sued in his official capacity.
10. James Greer (“Greer”) is an adult citizen of the United States who is the Director of the DOC Bureau of Health Services. At all material times, Greer had the authority to implement state laws regarding the treatment of inmates at DOC facilities, including OCI, and was acting under color and authority of state law. Greer is sued in his official capacity.
11. Defendant Roman Kaplan, M.D. (“Kaplan”) is a physician employed by the DOC whose responsibilities at all material times included providing medical care and treatment to inmates incarcerated at OCI. At all material times, Kaplan was acting under color and authority of state law. Kaplan is sued in his official capacity.
3

ALLEGATIONS OF FACT 12. Gender Identity Disorder (“GID”) is a recognized medical condition identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. DSM-IV 532 (4th ed. 1994). 13. GID, sometimes known as gender dysphoria or transsexualism, is a serious health condition that involves a strong and consistent cross-gender identification and a persistent discomfort with one’s anatomical sex. 14. For people with gender dysphoria, the conflict between their gender identity and their anatomy causes extreme psychological distress. Contemporary medical knowledge indicates that gender identity cannot be changed, and that attempts to change a person’s gender identity are futile and unethical. 15. Mounting medical research indicates that gender dysphoria may not be a psychiatric condition but might, in fact, be caused by biological or physiological factors that are not yet fully understood. For example, an article entitled “A Sex Difference in the Human Brain and Its Relations to Transsexualism,” authored by J.-N. Zhou, M.A. Hofman, L.J. Gooren, D.F. Swaab and published at International Journal of Transgenderism 1 (1997), reports that an area of the brain that may be involved in human sexual or reproductive functions was female-sized in male-to-female transsexuals. 16. Regardless of the etiology of gender dysphoria, the prevailing medical standards of care dictate that hormone therapy is an appropriate treatment for that condition, and experienced health care providers consider those who seek such treatment to have a serious health condition. 17. The Harry Benjamin International Gender Dysphoria Association (“HBIGDA”) is
4

the leading professional association for surgeons, doctors, medical researchers and others who specialize in the medical treatment of people with gender dysphoria. Based on decades of clinical experience, HBIGDA has promulgated medical standards of care for treating patients with gender dysphoria.
18. The HBIGDA Standards of Care for Gender Identity Disorders (“SOC”) recognize that treatment is medically necessary for people with gender dysphoria. The SOC further indicate that the therapeutic approach includes three components (hormone therapy, living full-time as a member of the gender corresponding with one’s identity, and sex reassignment surgery), and that the appropriate course of treatment should be determined based upon individualized medical evaluation.
19. Plaintiff Sundstrom was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. Starting around the age of four, she felt uncomfortable about being perceived as a boy. During high school, she secretly dressed in girls’ clothing.
20. In or around 1990, when Sundstrom was 25 years old, a psychiatrist diagnosed her with Gender Identity Disorder (“GID”). Several months later, that psychiatrist gave Sundstrom a prescription for testosterone blockers and feminizing hormone therapy. At that time, Sundstrom came out as transgender to her family and friends and began living full-time as a woman. In 1995, Sundstrom underwent a tracheal shave and rhinoplasty as components of her gender transition.
21. Sundstrom’s hormone therapy has not been interrupted at any time since she began hormone therapy in or around 1990.
22. In 2003, an endocrinologist increased Sundstrom’s dosage of feminizing
5

hormones. 23. Sundstrom’s GID diagnosis has been confirmed numerous times by her
physicians and health care providers, including several providers employed by the DOC. 24. In or around December 2003, Sundstrom was convicted of a probation violation.
As a result of that conviction, she currently is incarcerated at OCI. 25. During all periods of her incarceration, up until January 12, 2006, Defendants
have provided Sundstrom with feminizing hormones and testosterone blockers at the same dosage that she received prior to incarceration.
26. Plaintiff Fields was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. Starting around the age of fourteen, she has identified herself as transgender.
27. In or around 1993, when she was 16 years old, Fields was diagnosed with GID by a psychiatrist. At age 18, she began living full-time as a woman. At age 19, she began a course of hormone therapy.
28. In or around 1997, a physician confirmed Fields’ GID diagnosis and gave her a prescription for feminizing hormones. Around that same time, Fields came out as transgender to her family members and siblings. In the summer of 2003, Fields underwent breast augmentation surgery as a component of her gender transition.
29. Fields’ hormone therapy has not been interrupted at any time since she began hormone therapy in or around 1996.
30. In or around 2002, a physician increased Fields’ dosage of feminizing hormones. 31. In or around June 2005, Fields was convicted of forgery. As a result of that conviction, she currently is incarcerated at OCI.
6

32. During all periods of her incarceration, up until January 12, 2006, Defendants have provided Fields with feminizing hormone therapy.
33. On December 6, 2005, the Wisconsin legislature passed 2005 Wisconsin Act 105, codified at Wis. Stat. § 302.386(5m) (“the Act”). The Act provides that the DOC “may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery” to any inmate in a state prison, correctional facility, or secured child caring institution, or to any forensic patient in a state institution.
34. The Act defines “hormonal therapy” as “the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender,” and defines “sexual reassignment surgery” as “surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender.”
35. After its passage, co-sponsors of the Act issued press releases calling it the “Inmate Sex Change Prevention Act,” describing medical treatment for GID as “bizarre.”
36. The Act takes effect on January 24, 2006. 37. Prior to the Act’s passage, the Defendants provided hormone therapy to DOC inmates in accordance with individualized medical judgments, patient needs, and prevailing medical standards of care. 38. On January 12, 2006, Defendants Edwards and Kaplan notified Plaintiffs Sundstrom and Fields that the Act had passed. Defendants promptly halved Sundstrom and Fields’ hormone dosage and notified them that their dosage would be halved again in 30 days, and terminated entirely 30 days after that.
7

39. Since the dramatic reduction in her hormone therapy, Sundstrom has experienced mood swings, crying fits, hot flashes, bloating, and severe headaches. Sundstrom has a history of suicidal ideation, and fears and expects that she will become suicidal again as a result of the reduction in her hormone dosage.
40. Since the dramatic reduction in her hormone therapy, Fields has experienced depression, nausea, muscle weakness, loss of appetite, increased hair growth, and skin bumps. Fields is afraid of the effects that reduction and termination of her hormones will have on her body.
41. Medical professionals experienced in the treatment of GID recognize that the abrupt reduction and termination of hormone therapy can have disastrous consequences for transgender people, including serious risk of permanent physical and emotional harm, severe danger of self-mutilation, and suicidal ideation and attempts.
42. Defendants restricted Plaintiffs’ hormone dosage, and notified them of Defendants’ intention to terminate Plaintiffs’ hormone therapy, despite Defendants’ knowledge that both Plaintiffs previously had received hormone therapy and despite having provided that hormone therapy to both Plaintiffs on an ongoing basis during all prior periods of Plaintiffs’ incarceration.
43. Defendants’ actions, which were undertaken without regard for any individualized medical determination and contradicted previously-existing policies regarding the provision of hormone therapy, were performed with deliberate indifference to Plaintiffs’ serious medical needs.
8

FIRST CLAIM FOR RELIEF Brought under 42 U.S.C. Section 1983 for Violation of the Eighth Amendment to the
United States Constitution (against all Defendants)
445. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs as if fully set forth herein.
45. Plaintiffs receive hormone therapy as treatment for their serious health condition. 46. Defendants’ application of the Act to Plaintiffs by denying them hormone therapy without consideration of any individualized medical judgment formed by Plaintiffs’ health care providers constitutes deliberate indifference to Plaintiffs’ serious medical needs and violates the Eighth Amendment’s prohibition on cruel and unusual punishment. 47. The Act, which Defendants have followed and have announced they will follow, establishes a blanket rule that denies medical treatment to Plaintiffs and all other inmates of DOC facilities without consideration of any individualized medical judgment formed by health care providers, and therefore violates the Eighth Amendment’s prohibition on cruel and unusual punishment. 48. As a direct and proximate result of Defendants’ purposeful and intentional actions, Plaintiffs have suffered and continue to suffer injury, including, without limitation, serious physical, psychological and emotional harm, mental anguish, distress, humiliation, and indignity.
9

SECOND CLAIM FOR RELIEF Brought under 42 U.S.C. Section 1983 for Violation of the Fourteenth Amendment to the
United States Constitution (against all Defendants)
49. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs as if fully set forth herein.
50. As transgender inmates of DOC facilities, Plaintiffs are members of an identifiable group of people.
51. Defendants provide individualized medical evaluations to other inmates at DOC facilities with serious health conditions. Those evaluations result in medical judgments that determine the course of treatment that Defendants provide to those inmates.
52. The Act, and Defendants’ application of the Act, treat Plaintiffs differently from similarly situated inmates at DOC facilities by singling Plaintiffs out for termination and denial of medical treatment, and by failing to provide treatment in accordance with individualized medical judgment.
53. Defendants’ actions towards Plaintiffs are undertaken purposefully and intentionally and bear no rational relationship to any legitimate governmental or penological interest.
54. As a direct and proximate result of Defendants’ actions, Plaintiffs have suffered and continue to suffer injury, including, without limitation, serious physical, psychological and emotional harm, mental anguish, distress, humiliation, and indignity.
RELIEF WHEREFORE, Plaintiffs pray for judgment under all their causes of action:
(a) Awarding Plaintiffs a temporary restraining order and preliminary and
10

permanent injunctive relief against Defendants’ enforcement of the Act against them;
(b) Declaring that the Act, both on its face and as applied to Plaintiffs, violates the
Eighth and Fourteenth Amendments to the United States Constitution;
(c) Awarding costs for the suit herein, including Plaintiffs’ reasonable attorneys’
fees and expert fees pursuant to 42 U.S.C. § 1988; and
(d) Awarding all other relief that the Court deems just and proper. Dated this 24th day of January, 2006.
Respectfully submitted,
s/Laurence J. Dupuis__________________ Laurence J. Dupuis Bar Number: 1029261 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION OF WISCONSIN FOUNDATION, INC. 207 East Buffalo Street Suite 325 Milwaukee, WI 53202-5774 (414) 272-4032 (414) 272-0182l dupuis@aclu-wi.org
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
BY: John A. Knight 180 N. Michigan Avenue Suite 2300 Chicago, Illinois 60601 (312) 201-9740 (Application for admission to Eastern District to be submitted; currently admitted and in good standing in Illinois, California, N.D. Ill.)
11

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. BY: Cole Thaler 1447 Peachtree St. NE Suite 1004 Atlanta, GA 30309 (404) 897-1880 (Application for admission to Eastern District to be submitted; currently admitted and in good standing in Massachusetts, D.Mass.)
12

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN ________________________________________________________________________

KARI SUNDSTROM, ANDREA FIELDS, and LINDSEY BLACKWELL,

Plaintiffs,

v.

Case No. 06-C-0112

MATTHEW J. FRANK, Secretary of the Wisconsin Department of Corrections; JAMES GREER, Director of the Wisconsin Department of Corrections Bureau of Health Services; JUDY P. SMITH, Warden of the Oshkosh Correctional Institution; THOMAS EDWARDS, Manager of the Health Services Unit at the Oshkosh Correctional Institution; ROBERT HUMPHREYS, Warden of the Racine Correctional Institution; and SUSAN NYGREN, Manager of the Health Services Unit at the Racine Correctional Institution, in their official capacities,

Defendants. ________________________________________________________________________

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ________________________________________________________________________

1. Kari Sundstrom, Andrea Fields, and Lindsey Blackwell (collectively,

“Plaintiffs”), by their attorneys, for their Complaint against Matthew J. Frank, James Greer, Judy

P. Smith, Thomas Edwards, Robert Humphreys, and Susan Nygren, in their official capacities

(collectively, “Defendants”), allege as follows:

NATURE OF THE ACTION

2. This Complaint asserts a civil rights action pursuant to 42 U.S.C. § 1983 for

declaratory and injunctive relief to redress Defendants’ violations of Plaintiffs’ rights under the

Eighth and Fourteenth Amendments to the United States Constitution. Defendants have violated the Constitution by enforcing 2005 Wisconsin Act 105 and abruptly terminating and depriving Plaintiffs of medical treatment for Plaintiffs’ serious health conditions, with no exercise whatsoever of individualized medical judgment and in contrast to the treatment Defendants provide to other similarly situated inmates at Wisconsin Department of Corrections (“DOC”) facilities. Plaintiffs seek an end to those actions of Defendants that violate Plaintiffs’ right to equal protection and their right to be free from cruel and unusual punishment, pursuant to the Fourteenth and Eighth Amendments to the United States Constitution, and a declaration that 2005 Wisconsin Act 105 is unconstitutional on its face.
JURISDICTION AND VENUE 3. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, as this action arises under the laws and Constitution of the United States, and 28 U.S.C. § 2201, as an actual controversy exists within this Court’s jurisdiction. 4. Venue is proper in this district pursuant to 28 U.S.C. § 1391, because the majority of the events giving rise to this action occurred in this district and because Defendants are subject to personal jurisdiction in this district.
PARTIES 5. Plaintiff Kari Sundstrom (“Sundstrom”) is a 41-year-old transgender woman, meaning that she1 was born anatomically male, but has a female gender identity. Since December 2003, Sundstrom has been incarcerated at the Oshkosh Correctional Institution (“OCI”) in Oshkosh, Winnebago County, Wisconsin.
1 This Complaint uses feminine pronouns to refer to Plaintiffs, a practice consistent with their gender identity, their preference, common practice, modern judicial practice, and the advice and guidance of mental health and other professionals who work with transgender persons.
2

6. Plaintiff Andrea Fields (“Fields”) is a 29-year-old transgender woman, meaning that she was born anatomically male, but has a female gender identity. Since August 8, 2005, Fields has been incarcerated at OCI.
7. Plaintiff Lindsey Blackwell (“Blackwell”) is a 23-year-old transgender woman, meaning that she was born anatomically male, but has a female gender identity. Since September 19, 2005, Blackwell has been incarcerated at Racine Correctional Institution (“RCI”).
8. Defendant Matthew J. Frank (“Frank”) is an adult citizen of the United States who is the Secretary of the DOC in Madison, Wisconsin. At all material times, Frank had the authority to implement state laws regarding the treatment of inmates at DOC facilities, including OCI and RCI, and was acting under color and authority of state law. Frank is sued in his official capacity.
9. James Greer (“Greer”) is an adult citizen of the United States who is the Director of the DOC Bureau of Health Services. At all material times, Greer had the authority to implement state laws regarding the treatment of inmates at DOC facilities, including OCI and RCI, and was acting under color and authority of state law. Greer is sued in his official capacity.
10. Defendant Judy P. Smith (“Smith”) is an adult citizen of the United States who is the Warden of OCI. At all material times, Smith had the authority to implement state laws regarding the treatment of inmates at OCI and was acting under color and authority of state law. Smith is sued in her official capacity.
11. Defendant Thomas Edwards (“Edwards”) is an adult citizen of the United States who is the Manager of the Health Services Unit at OCI. At all material times, Edwards had the authority to implement state laws regarding the treatment of inmates at OCI and was acting
3

under color and authority of state law. Edwards is sued in his official capacity. 12. Defendant Robert Humphreys (“Humphreys”) is an adult citizen of the United
States who is the Warden of RCI. At all material times, Humphreys had the authority to implement state laws regarding the treatment of inmates at RCI and was acting under color and authority of state law. Humphreys is sued in his official capacity.
13. Defendant Susan Nygren (“Nygren”) is an adult citizen of the United States who is the Manager of the Health Services Unit at RCI. At all material times, Nygren had the authority to implement state laws regarding the treatment of inmates at RCI and was acting under color and authority of state law. Nygren is sued in her official capacity.
ALLEGATIONS OF FACT 14. Gender Identity Disorder (“GID”) is a recognized medical condition identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. DSM-IV 532 (4th ed. 1994). 15. GID, sometimes known as gender dysphoria or transsexualism, is a serious health condition that involves a strong and consistent cross-gender identification and a persistent discomfort with one’s anatomical sex. 16. For people with gender dysphoria, the conflict between their gender identity and their anatomy causes extreme psychological distress. Contemporary medical knowledge indicates that gender identity cannot be changed, and that attempts to change a person’s gender identity are futile and unethical. 17. Mounting medical research indicates that gender dysphoria may not be a psychiatric condition but might, in fact, be caused by biological or physiological factors that are not yet fully understood. For example, an article entitled “A Sex Difference in the Human Brain
4

and Its Relations to Transsexualism,” authored by J.-N. Zhou, M.A. Hofman, L.J. Gooren, D.F. Swaab and published at International Journal of Transgenderism 1 (1997), reports that an area of the brain that may be involved in human sexual or reproductive functions was female-sized in male-to-female transsexuals.
18. Regardless of the etiology of gender dysphoria, the prevailing medical standards of care dictate that hormone therapy is an appropriate treatment for that condition, and experienced health care providers consider those who seek such treatment to have a serious health condition.
19. The Harry Benjamin International Gender Dysphoria Association (“HBIGDA”) is the leading professional association for surgeons, doctors, medical researchers and others who specialize in the medical treatment of people with gender dysphoria. Based on decades of clinical experience, HBIGDA has promulgated medical standards of care for treating patients with gender dysphoria.
20. The HBIGDA Standards of Care for Gender Identity Disorders (“SOC”) recognize that treatment is medically necessary for people with gender dysphoria. The SOC further indicate that the therapeutic approach includes three components (hormone therapy, living full-time as a member of the gender corresponding with one’s identity, and sex reassignment surgery), and that the appropriate course of treatment should be determined based upon individualized medical evaluation.
21. Plaintiff Sundstrom was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. Starting around the age of four, she felt uncomfortable about being perceived as a boy. During high school, she secretly dressed in girls’ clothing.
5

22. In or around 1990, when Sundstrom was 25 years old, a psychiatrist diagnosed her with Gender Identity Disorder (“GID”). Several months later, that psychiatrist gave Sundstrom a prescription for testosterone blockers and feminizing hormone therapy. At that time, Sundstrom came out as transgender to her family and friends and began living full-time as a woman. In 1995, Sundstrom underwent a tracheal shave and rhinoplasty as components of her gender transition.
23. Sundstrom’s hormone therapy has not been interrupted at any time since she began hormone therapy in or around 1990.
24. In 2003, an endocrinologist increased Sundstrom’s dosage of feminizing hormones.
25. Sundstrom’s GID diagnosis has been confirmed numerous times by her physicians and health care providers, including several providers employed by the DOC.
26. In or around December 2003, Sundstrom was convicted of a probation violation. As a result of that conviction, she currently is incarcerated at OCI.
27. During all periods of her incarceration, up until January 12, 2006, Defendants have provided Sundstrom with feminizing hormones and testosterone blockers at the same dosage that she received prior to incarceration.
28. Plaintiff Fields was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. Starting around the age of fourteen, she has identified herself as transgender.
29. In or around 1993, when she was 16 years old, Fields was diagnosed with GID by a psychiatrist. At age 18, she began living full-time as a woman. At age 19, she began a course of hormone therapy.
6

30. In or around 1997, a physician confirmed Fields’ GID diagnosis and gave her a prescription for feminizing hormones. Around that same time, Fields came out as transgender to her family members and siblings. In the summer of 2003, Fields underwent breast augmentation surgery as a component of her gender transition.
31. Fields’ hormone therapy has not been interrupted at any time since she began hormone therapy in or around 1996.
32. In or around 2002, a physician increased Fields’ dosage of feminizing hormones. 33. In or around June 2005, Fields was convicted of forgery. As a result of that conviction, she currently is incarcerated at OCI. 34. During all periods of her incarceration, up until January 12, 2006, Defendants have provided Fields with feminizing hormone therapy. 35. Plaintiff Blackwell was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. Starting around the age of twelve, she has identified herself as transgender. When Blackwell was eleven or twelve years old, she attempted suicide as a result of her severe discomfort with her gender identity. 36. In or around August 1998, when she was fifteen years old, Blackwell’s grandmother took her to a psychiatrist who diagnosed her as a transsexual and prescribed feminizing hormones to her. Around that same time, Blackwell began living full-time as a woman. 37. Blackwell’s hormone therapy has not been interrupted at any time since she began hormone therapy in or around 1998. 38. Blackwell is currently incarcerated at RCI. During all periods of her incarceration, up until January 23, 2006, Defendants have provided Blackwell with feminizing
7

hormone therapy. 39. On December 6, 2005, the Wisconsin legislature passed 2005 Wisconsin Act 105,
codified at Wis. Stat. § 302.386(5m) (“the Act”). The Act provides that the DOC “may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery” to any inmate in a state prison, correctional facility, or secured child caring institution, or to any forensic patient in a state institution.
40. The Act defines “hormonal therapy” as “the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender,” and defines “sexual reassignment surgery” as “surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender.”
41. After its passage, co-sponsors of the Act issued press releases calling it the “Inmate Sex Change Prevention Act,” describing medical treatment for GID as “bizarre.”
42. The Act takes effect on January 24, 2006. 43. Prior to the Act’s passage, the Defendants provided hormone therapy to DOC inmates in accordance with individualized medical judgments, patient needs, and prevailing medical standards of care. 44. On or about January 12, 2006, Defendant Edwards and Dr. Roman Kaplan, M.D., a medical doctor at OCI, notified Plaintiffs Sundstrom and Fields that the Act had passed. Defendants promptly halved Sundstrom and Fields’ hormone dosage and notified them that their dosage would be halved again in 30 days, and terminated entirely 30 days after that. 45. Since the dramatic reduction in her hormone therapy, Sundstrom has experienced
8

mood swings, crying fits, hot flashes, bloating, and severe headaches. Sundstrom has a history of suicidal ideation, and fears and expects that she will become suicidal again as a result of the reduction in her hormone dosage.
46. Since the dramatic reduction in her hormone therapy, Fields has experienced depression, nausea, muscle weakness, loss of appetite, increased hair growth, and skin bumps. Fields is afraid of the effects that reduction and termination of her hormones will have on her body.
47. On or around January 23, 2006, DOC personnel notified Plaintiff Blackwell that the Act had passed. Defendants promptly halved Blackwell’s hormone dosage and notified her that her dosage would be halved again in 30 days, and terminated entirely 30 days after that.
48. Since the dramatic reduction in her hormone therapy, Blackwell has experienced mental and physical changes, including emotional fluctuations and change in breast sensation.
49. Medical professionals experienced in the treatment of GID recognize that the abrupt reduction and termination of hormone therapy can have disastrous consequences for transgender people, including serious risk of permanent physical and emotional harm, severe danger of self-mutilation, and suicidal ideation and attempts.
50. Defendants restricted Plaintiffs’ hormone dosage, and notified them of Defendants’ intention to terminate Plaintiffs’ hormone therapy, despite Defendants’ knowledge that all Plaintiffs previously had received hormone therapy and despite having provided that hormone therapy to all Plaintiffs on an ongoing basis during all prior periods of Plaintiffs’ incarceration.
51. Defendants’ actions, which were undertaken without regard for any individualized medical determination and contradicted previously-existing policies regarding the provision of
9

hormone therapy, were performed with deliberate indifference to Plaintiffs’ serious medical needs.
FIRST CLAIM FOR RELIEF Brought under 42 U.S.C. Section 1983 for Violation of the Eighth Amendment to the
United States Constitution (against all Defendants)
52. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs as if fully set forth herein.
53. Plaintiffs receive hormone therapy as treatment for their serious health condition. 54. Defendants’ application of the Act to Plaintiffs by denying them hormone therapy without consideration of any individualized medical judgment formed by Plaintiffs’ health care providers constitutes deliberate indifference to Plaintiffs’ serious medical needs and violates the Eighth Amendment’s prohibition on cruel and unusual punishment. 55. The Act, which Defendants have followed and have announced they will follow, establishes a blanket rule that denies medical treatment to Plaintiffs and all other inmates of DOC facilities without consideration of any individualized medical judgment formed by health care providers, and therefore violates the Eighth Amendment’s prohibition on cruel and unusual punishment. 56. As a direct and proximate result of Defendants’ purposeful and intentional actions, Plaintiffs have suffered and continue to suffer injury, including, without limitation, serious physical, psychological and emotional harm, mental anguish, distress, humiliation, and indignity.
10

SECOND CLAIM FOR RELIEF Brought under 42 U.S.C. Section 1983 for Violation of the Fourteenth Amendment to the
United States Constitution (against all Defendants)
57. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs as if fully set forth herein.
58. As transgender inmates of DOC facilities, Plaintiffs are members of an identifiable group of people.
59. Defendants provide individualized medical evaluations to other inmates at DOC facilities with serious health conditions. Those evaluations result in medical judgments that determine the course of treatment that Defendants provide to those inmates.
60. The Act, and Defendants’ application of the Act, treat Plaintiffs differently from similarly situated inmates at DOC facilities by singling Plaintiffs out for termination and denial of medical treatment, and by failing to provide treatment in accordance with individualized medical judgment.
61. Defendants’ actions towards Plaintiffs are undertaken purposefully and intentionally and bear no rational relationship to any legitimate governmental or penological interest.
62. As a direct and proximate result of Defendants’ actions, Plaintiffs have suffered and continue to suffer injury, including, without limitation, serious physical, psychological and emotional harm, mental anguish, distress, humiliation, and indignity.
RELIEF WHEREFORE, Plaintiffs pray for judgment under all their causes of action:
(a) Awarding Plaintiffs a temporary restraining order and preliminary and
11

permanent injunctive relief against Defendants’ enforcement of the Act against them; (b) Declaring that the Act, both on its face and as applied to Plaintiffs, violates the
Eighth and Fourteenth Amendments to the United States Constitution; (c) Awarding costs for the suit herein, including Plaintiffs’ reasonable attorneys’
fees and expert fees pursuant to 42 U.S.C. § 1988; and (d) Awarding all other relief that the Court deems just and proper.

Dated this 27th day of January, 2006.

Respectfully submitted,
s/Laurence J. Dupuis__________________ Laurence J. Dupuis Bar Number: 1029261 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION OF WISCONSIN FOUNDATION, INC. 207 East Buffalo Street Suite 325 Milwaukee, WI 53202-5774 (414) 272-4032 (414) 272-0182l dupuis@aclu-wi.org

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
BY: John A. Knight 180 N. Michigan Avenue Suite 2300 Chicago, Illinois 60601 (312) 201-9740 (Application for admission to Eastern District to be submitted; currently admitted and in good standing in Illinois, California, N.D. Ill.)

12

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. BY: Cole Thaler 1447 Peachtree St. NE Suite 1004 Atlanta, GA 30309 (404) 897-1880 (Application for admission to Eastern District to be submitted; currently admitted and in good standing in Massachusetts, D.Mass.)
13

 
 Case 2:06-cv-00112-CNC Document 55 Filed 06/27/2006 Page 1 of 14
Sundstrom et al. v. Frank et al. 06-C-Ol12 (CNC)
ExbibitA

Case 2:06-cv-00112-CNC Document 55 Filed 06/27/2006 Page 2 of 14

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

KARI SUNDSTROM, ANDREA FIELDS, LINDSEY BLACKWELL, and MATTHEW DAVISON, a/k/a JESSICA DAVISON,
Plaintiffs,
v.
MATTHEW J. FRANK, et aI.,
Defendants.

Case No. 06-C-0112 (CNC)

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1. Kari Sundstrom, Andrea Fields, Lindsey Blackwell, and Matthew Davison, a/k/a Jessica Davison (collectively, "Plaintiffs"), by their attomeys, for their Complaint against Matthew J. Frank, James Greer, Judy P. Smith, Thomas Edwards, Robeli Humphreys, and Susan Nygren, in their official capacities (collectively, "Defendants"), allege as follows:
NATURE OF THE ACTION 2. This Complaint asserts a civil rights action pursuant to 42 U.S.C. § 1983 for declaratory and injunctive relief to redress Defendants' violations of Plaintiffs' rights under the Eighth and Fourteenth Amendments to the United States Constitution. Defendants have violated the Constitution by enforcing 2005 Wisconsin Act 105 and abruptly terminating and depriving Plaintiffs of medical treatment for Plaintiffs' serious health conditions, with no exercise whatsoever of individualized medical judgment and in contrast to the treatment Defendants provide to other similarly situated inmates at Wisconsin Department of Corrections ("DOC")

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facilities. Plaintiffs seek an end to those actions of Defendants that violate Plaintiffs' right to equal protection and their right to be free from cruel and unusual punishment, pursuant to the Fourteenth and Eighth Amendments to the United States Constitution, and a declaration that 2005 Wisconsin Act 105 is unconstitutional on its face.
JURISDICTION AND VENUE 3. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, as this action arises under the laws and Constitution ofthe United States, and 28 U.S.C. § 2201, as an actual controversy exists within this Court's jurisdiction. 4. Venue is proper in this district pursuant to 28 U.S.C. § 1391, because the majority of the events giving rise to this action occurred in this district and because Defendants are subject to personal jurisdiction in this district.
PARTIES 5. PlaintiffKari Sundstrom ("Sundstrom") is a 41-year-old transgender woman, meaning that shel was born anatomically male, but has a female gender identity. Since December 2003, Sundstrom has been incarcerated at the Oshkosh Correctional Institution ("OCl") in Oshkosh, Winnebago County, Wisconsin. 6. Plaintiff Andrea Fields ("Fields") is a 29-year-old transgender woman, meaning that she was born anatomically male, but has a female gender identity. Since August 8, 2005, Fields has been incarcerated at OCl. 7. Plaintiff Lindsey Blackwell ("Blackwell") is a 23-year-old transgender woman, meaning that she was born anatomically male, but has a female gender identity. Since
1 This Complaint uses feminine pronouns to refer to Plaintiffs, a practice consistent with their gender identity, their preference, common practice, modern judicial practice, and the advice and guidance of mental health and other professionals who work with transgender persons.
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September 19,2005, Blackwell has been incarcerated at Racine Correctional Institution ("RCI"). 8. Plaintiff Matthew Davison, a/k/a Jessica Davison ("Davison"), is a 25-year-old
transgender woman, meaning that she was born anatomically male, but has a female gender identity. Since May 2006, Davison has been incarcerated at Dodge Correctional Institution ("DCI").
9. Defendant Matthew J. Frank ("Frank") is an adult citizen of the United States who is the Secretary of the DOC in Madison, Wisconsin. At all material times, Frank had the authority to implement state laws regarding the treatment of inmates at DOC facilities, including OCI and RCI, and was acting under color and authority of state law. Frank is sued in his official capacity.
10. James Greer ("Greer") is an adult citizen of the United States who is the Director of the DOC Bureau of Health Services. At all material times, Greer had the authority to implement state laws regarding the treatment of inmates at DOC facilities, including OCI and RCI, and was acting under color and authority of state law. Greer is sued in his official capacity.
11. Defendant Judy P. Smith ("Smith") is an adult citizen of the United States who is the Warden of OCI. At all material times, Smith had the authority to implement state laws regarding the treatment of inmates at OCI and was acting under color and authority of state law. Smith is sued in her official capacity.
12. Defendant Thomas Edwards ("Edwards") is an adult citizen of the United States who is the Manager of the Health Services Unit at OCI. At all material times, Edwards had the authority to implement state laws regarding the treatment of inmates at OCI and was acting under color and authority of state law. Edwards is sued in his official capacity.
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13. Defendant Robert Humphreys ("Humphreys") is an adult citizen of the United States who is the Warden of RCI. At all material times, Humphreys had the authority to implement state laws regarding the treatment of inmates at RCI and was acting under color and authority of state law. Humphreys is sued in his official capacity.
14. Defendant Susan Nygren ("Nygren") is an adult citizen of the United States who is the Manager of the Health Services Unit at RCI. At all material times, Nygren had the authority to implement state laws regarding the treatment of inmates at RCI and was acting under color and authority of state law. Nygren is sued in her official capacity.
ALLEGATIONS OF FACT 15. Gender Identity Disorder ("Gill") is a recognized medical condition identified in the American Psychiatric Association's Diagnostic and Statistical Manual a/Mental Disorders. DSM-IV 532 (4th ed. 1994). 16. GID, sometimes known as gender dysphoria or transsexualism, is a serious health condition that involves a strong and consistent cross-gender identification and a persistent discomfort with one's anatomical sex. 17. For people with gender dysphoria, the conflict between their gender identity and their anatomy causes extreme psychological distress. Contemporary medical knowledge indicates that gender identity cannot be changed, and that attempts to change a person's gender identity are futile and unethical. 18. Mounting medical research indicates that gender dysphoria may not be a psychiatric condition but might, in fact, be caused by biological or physiological factors that are not yet fully understood. For example, an article entitled "A Sex Difference in the Human Brain and Its Relations to Transsexualism," authored by J.-N. Zhou, M.A. Hofman, L.J. Gooren, D.F.
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Swaab and published at International Journal ofTransgenderism 1 (1997), reports that an area of the brain that may be involved in human sexual or reproductive functions was female-sized in male-to-female transsexuals.
19. Regardless ofthe etiology of gender dysphoria, the prevailing medical standards of care dictate that hormone therapy is an appropriate treatment for that condition, and experienced health care providers consider those who seek such treatment to have a serious health condition.
20. The Harry Benjamin International Gender Dysphoria Association ("HBIGDA") is the leading professional association for surgeons, doctors, medical researchers and others who specialize in the medical treatment of people with gender dysphoria. Based on decades of clinical experience, HBIGDA has promulgated medical standards of care for treating patients with gender dysphoria.
21. The HBIGDA Standards of Care for Gender Identity Disorders ("SOC") recognize that treatment is medically necessary for people with gender dysphoria. The SOC further indicate that the therapeutic approach includes three components (hormone therapy, living full-time as a member of the gender corresponding with one's identity, and sex reassignment surgery), and that the appropriate course of treatment should be determined based upon individualized medical evaluation.
22. Plaintiff Sundstrom was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. Starting around the age of four, she felt uncomfortable about being perceived as a boy. During high school, she secretly dressed in girls' clothing.
23. In or around 1990, when Sundstrom was 25 years old, a psychiatrist diagnosed
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her with Gender Identity Disorder ("GID"). Several months later, that psychiatrist gave Sundstrom a prescription for testosterone blockers and feminizing hormone therapy. At that time, Sundstrom came out as transgender to her family and friends and began living full-time as a woman. In 1995, Sundstrom underwent a tracheal shave and rhinoplasty as components of her gender transition.
24. Sundstrom's hormone therapy has not been interrupted at any time since she began hormone therapy in or around 1990.
25. In 2003, an endocrinologist increased Sundstrom's dosage of feminizing hormones.
26. Sundstrom's GID diagnosis has been confirmed numerous times by her physicians and health care providers, including several providers employed by the DOC.
27. In or around December 2003, Sundstrom was convicted ofa probation violation. As a result of that conviction, she currently is incarcerated at OCI.
28. During all periods of her incarceration, up until January 12,2006, Defendants have provided Sundstrom with feminizing hormones and testosterone blockers at the same dosage that she received prior to incarceration.
29. Plaintiff Fields was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. Starting around the age offourteen, she has identified herself as transgender.
30. In or around 1993, when she was 16 years old, Fields was diagnosed with GID by a psychiatrist. At age 18, she began living full-time as a woman. At age 19, she began a course of hormone therapy.
31. In or around 1997, a physician confirmed Fields' GID diagnosis and gave her a
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prescription for feminizing hormones. Around that same time, Fields came out as transgender to her family members and siblings. In the summer of2003, Fields underwent breast augmentation surgery as a component of her gender transition.
32. Fields' hormone therapy has not been interrupted at any time since she began hormone therapy in or around 1996.
33. In or around 2002, a physician increased Fields' dosage of feminizing hormones. 34. In or around June 2005, Fields was convicted of forgery. As a result ofthat conviction, she currently is incarcerated at OCI. 35. During all periods of her incarceration, up until January 12,2006, Defendants have provided Fields with feminizing hormone therapy. 36. Plaintiff Blackwell was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. Starting around the age of twelve, she has identified herself as transgender. When Blackwell was eleven or twelve years old, she attempted suicide as a result of her severe discomfort with her gender identity. 37. In or around August 1998, when she was fifteen years old, Blackwell's grandmother took her to a psychiatrist who diagnosed her as a transsexual and prescribed feminizing hormones to her. Around that same time, Blackwell began living full-time as a woman. 38. Blackwell's hormone therapy has not been interrupted at any time since she began hormone therapy in or around 1998. 39. Blackwell is currently incarcerated at RCI. During all periods of her incarceration, up until January 23,2006, Defendants have provided Blackwell with feminizing hormone therapy.
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40. Plaintiff Davison was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. She has been aware of her female gender identity since childhood.
41. Davison was first diagnosed as a transsexual in or around June 2005 by a counselor in Brookfield, Wisconsin. She has taken prescribed feminizing hormones continuously since July 2005.
42. On December 6, 2005, the Wisconsin legislature passed 2005 Wisconsin Act 105, codified at Wis. Stat. § 302.386(5m) ("the Act"). The Act provides that the DOC "may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery" to any inmate in a state prison, correctional facility, or secured child caring institution, or to any forensic patient in a state institution.
43. The Act defmes "hormonal therapy" as "the use of hormones to stimulate the development or alteration of a person's sexual characteristics in order to alter the person's physical appearance so that the person appears more like the opposite gender," and defines "sexual reassignment surgery" as "surgical procedures to alter a person's physical appearance so that the person appears more like the opposite gender."
44. After its passage, co-sponsors of the Act issued press releases calling it the "Inmate Sex Change Prevention Act," describing medical treatment for GID as "bizarre."
45. The Act takes effect on January 24,2006. 46. Prior to the Act's passage, the Defendants provided hormone therapy to DOC inmates in accordance with individualized medical judgments, patient needs, and prevailing medical standards of care.
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47. On or about January 12,2006, Defendant Edwards and Dr. Roman Kaplan, M.D., a medical doctor at OCI, notified Plaintiffs Sundstrom and Fields that the Act had passed. Defendants promptly halved Sundstrom and Fields' hormone dosage and notified them that their dosage would be halved again in 30 days, and terminated entirely 30 days after that.
48. Since the dramatic reduction in her hormone therapy, Sundstrom has experienced mood swings, crying fits, hot flashes, bloating, and severe headaches. Sundstrom has a history of suicidal ideation, and fears and expects that she will become suicidal again as a result of the reduction in her hormone dosage.
49. Since the dramatic reduction in her hormone therapy, Fields has experienced depression, nausea, muscle weakness, loss of appetite, increased hair growth, and skin bumps. Fields is afraid of the effects that reduction and termination of her hormones will have on her body.
50. On or around January 23,2006, DOC personnel notified Plaintiff Blackwell that the Act had passed. Defendants promptly halved Blackwell's hormone dosage and notified her that her dosage would be halved again in 30 days, and terminated entirely 30 days after that.
51. Since the dramatic reduction in her hormone therapy, Blackwell has experienced mental and physical changes, including emotional fluctuations and change in breast sensation.
52. Shortly after Davison became incarcerated at DCI, she was informed by a DOC physician that the Wisconsin legislature had passed a law that would require the termination of her hormone therapy. She was informed that the DOC would immediately reduce her hormone dosage and would soon stop it entirely.
53. Since the DOC reduced Davison's hormone therapy dosage, she has begun to experience increased and darker hair growth; voice deepening; breast reduction and leaking;
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mood swings; mental and emotional instability; hot flashes; and body aches. 54. Medical professionals experienced in the treatment of OlD recognize that the
abrupt reduction and termination of hormone therapy can have disastrous consequences for transgender people, including serious risk of permanent physical and emotional harm, severe danger of self-mutilation, and suicidal ideation and attempts.
55. Defendants restricted Plaintiffs' hormone dosage, and notified them of Defendants' intention to terminate Plaintiffs' hormone therapy, despite Defendants' knowledge that all Plaintiffs previously had received hormone therapy and despite having provided that hormone therapy to all Plaintiffs on an ongoing basis during all prior periods of Plaintiffs' incarceration.
56. Defendants' actions, which were undertaken without regard for any individualized medical determination and contradicted previously-existing policies regarding the provision of hormone therapy, were performed with deliberate indifference to Plaintiffs' serious medical needs.
FIRST CLAIM FOR RELIEF Brought under 42 U.S.C. Section 1983 for Violation of the Eighth Amendment to the
United States Constitution (against all Defendants)
57. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs as if fully set forth herein.
58. Plaintiffs receive hormone therapy as treatment for their serious health condition. 59. Defendants' application of the Act to Plaintiffs by denying them hormone therapy without consideration of any individualized medical judgment formed by Plaintiffs' health care providers constitutes deliberate indifference to Plaintiffs' serious medical needs and violates the
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Eighth Amendment's prohibition on cruel and unusual punishment. 60. The Act, which Defendants have followed and have announced they will follow,
establishes a blanket rule that denies medical treatment to Plaintiffs and all other inmates of DOC facilities without consideration of any individualized medical judgment formed by health care providers, and therefore violates the Eighth Amendment's prohibition on cruel and unusual punishment.
61. As a direct and proximate result of Defendants' purposeful and intentional actions, Plaintiffs have suffered and continue to suffer injury, including, without limitation, serious physical, psychological and emotional harm, mental anguish, distress, humiliation, and indignity.
SECOND CLAIM FOR RELIEF Brought under 42 U.S.C. Section 1983 for Violation of the Fourteenth Amendment to the
United States Constitution (against all Defendants)
62. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs as if fully set forth herein.
63. As transgender inmates of DOC facilities, Plaintiffs are members of an identifiable group of people.
64. Defendants provide individualized medical evaluations to other inmates at DOC facilities with serious health conditions. Those evaluations result in medical judgments that determine the course oftreatment that Defendants provide to those inmates.
65. The Act, and Defendants' application of the Act, treat Plaintiffs differently from similarly situated inmates at DOC facilities by singling Plaintiffs out for termination and denial of medical treatment, and by failing to provide treatment in accordance with individualized
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medical judgment. 66. Defendants' actions towards Plaintiffs are undertaken purposefully and
intentionally and bear no rational relationship to any legitimate governmental or penological interest.
67. As a direct and proximate result of Defendants' actions, Plaintiffs have suffered and continue to suffer injury, including, without limitation, serious physical, psychological and emotional harm, mental anguish, distress, humiliation, and indignity.
RELIEF WHEREFORE, Plaintiffs pray for judgment under all their causes of action:
(a) Awarding Plaintiffs preliminary and permanent injunctive relief against Defendants' enforcement of the Act against them;
(b) Declaring that the Act, both on its face and as applied to Plaintiffs, violates the Eighth and Fourteenth Amendments to the United States Constitution;
(c) Awarding costs for the suit herein, including Plaintiffs' reasonable attorneys' fees and expert fees pursuant to 42 U.S.C. § 1988; and
(d) Awarding all other relief that the Court deems just and proper.

Dated this 27th day of June, 2006.

Respectfully submitted,
s/John A. Knight JohnA. Knight Attorney for Plaintiffs American Civil Liberties Union Foundation 180 N. Michigan Avenue, Suite 2300 Chicago, Illinois 60601 Telephone: (312) 201-9740
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Fax: (312) 288-5225 E-mail: jaknight@aclu.org Laurence Dupuis State Bar No. 1029261 American Civil Liberties Union of Wisconsin Foundation, Inc. 207 East Buffalo Street, Suite 325 Milwaukee, WI 53202-5712 (414) 272-4032 Cole Thaler Lambda Legal Defense and Education Fund, Inc.
730 Peachtree st. NE, Suite 1070
Atlanta, GA 30308 (404) 897-1880 Erik Guenther State BarNo. 1041774 Hurley Burish & Stanton, SC 10 E Doty St # 320 PO Box 1528 Madison, WI 53701-1528 (608) 257-0945 Attorneys for Plaintiffs
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 Case 2:06-cv-00112-CNC Filed 12/18/2006 Page 1 of 14 Document 91-2

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN ________________________________________________________________________

KARI SUNDSTROM, ANDREA FIELDS, LINDSEY BLACKWELL, and MATTHEW DAVISON, a/k/a JESSICA DAVISON,

Plaintiffs,

Case No. 06-C-0112 (CNC)

v.

MATTHEW J. FRANK, et al.,

Defendants. ________________________________________________________________________

THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ________________________________________________________________________

1. Kari Sundstrom, Andrea Fields, Lindsey Blackwell, Matthew Davison, a/k/a

Jessica Davison, and Vankemah Moaton (collectively, “Plaintiffs”), by their attorneys, for their

Complaint against Matthew J. Frank, James Greer, Judy P. Smith, Thomas Edwards, Robert

Humphreys, and Susan Nygren, in their official capacities (collectively, “Defendants”), allege as

follows:

NATURE OF THE ACTION

2. This Complaint asserts a civil rights action pursuant to 42 U.S.C. § 1983 for

declaratory and injunctive relief to redress Defendants’ violations of Plaintiffs’ rights under the

Eighth and Fourteenth Amendments to the United States Constitution. Defendants have violated

the Constitution by enforcing 2005 Wisconsin Act 105 and abruptly terminating and depriving

Plaintiffs of medical treatment for Plaintiffs’ serious health conditions, with no exercise

whatsoever of individualized medical judgment and in contrast to the treatment Defendants

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provide to other similarly situated inmates at Wisconsin Department of Corrections (“DOC”) facilities. Plaintiffs seek an end to those actions of Defendants that violate Plaintiffs’ right to equal protection and their right to be free from cruel and unusual punishment, pursuant to the Fourteenth and Eighth Amendments to the United States Constitution, and a declaration that 2005 Wisconsin Act 105 is unconstitutional on its face.
JURISDICTION AND VENUE 3. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, as this action arises under the laws and Constitution of the United States, and 28 U.S.C. § 2201, as an actual controversy exists within this Court’s jurisdiction. 4. Venue is proper in this district pursuant to 28 U.S.C. § 1391, because the majority of the events giving rise to this action occurred in this district and because Defendants are subject to personal jurisdiction in this district.
PARTIES 5. Plaintiff Kari Sundstrom (“Sundstrom”) is a 41-year-old transgender woman, meaning that she1 was born anatomically male, but has a female gender identity. Since December 2003, Sundstrom has been incarcerated at the Oshkosh Correctional Institution (“OCI”) in Oshkosh, Winnebago County, Wisconsin. 6. Plaintiff Andrea Fields (“Fields”) is a 29-year-old transgender woman, meaning that she was born anatomically male, but has a female gender identity. Since August 8, 2005, Fields has been incarcerated at OCI. 7. Plaintiff Lindsey Blackwell (“Blackwell”) is a 23-year-old transgender woman,
1 This Complaint uses feminine pronouns to refer to Plaintiffs, a practice consistent with their gender identity, their preference, common practice, modern judicial practice, and the advice and guidance of mental health and other professionals who work with transgender persons.
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meaning that she was born anatomically male, but has a female gender identity. Since September 19, 2005, Blackwell has been incarcerated at Racine Correctional Institution (“RCI”).
8. Plaintiff Matthew Davison, a/k/a Jessica Davison (“Davison”), is a 25-year-old transgender woman, meaning that she was born anatomically male, but has a female gender identity. Since May 2006, Davison has been incarcerated at Dodge Correctional Institution (“DCI”).
9. Plaintiff Vankemah Moaton (“Moaton”) is a 28-year-old transgender woman, meaning that she was born anatomically male, but has a female gender identity. Since November 2006, Moaton has been incarcerated at Jackson Correctional Institution (“JCI”).
10. Defendant Matthew J. Frank (“Frank”) is an adult citizen of the United States who is the Secretary of the DOC in Madison, Wisconsin. At all material times, Frank had the authority to implement state laws regarding the treatment of inmates at DOC facilities, including OCI and RCI, and was acting under color and authority of state law. Frank is sued in his official capacity.
11. James Greer (“Greer”) is an adult citizen of the United States who is the Director of the DOC Bureau of Health Services. At all material times, Greer had the authority to implement state laws regarding the treatment of inmates at DOC facilities, including OCI and RCI, and was acting under color and authority of state law. Greer is sued in his official capacity.
12. Defendant Judy P. Smith (“Smith”) is an adult citizen of the United States who is the Warden of OCI. At all material times, Smith had the authority to implement state laws regarding the treatment of inmates at OCI and was acting under color and authority of state law. Smith is sued in her official capacity.
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13. Defendant Thomas Edwards (“Edwards”) is an adult citizen of the United States who is the Manager of the Health Services Unit at OCI. At all material times, Edwards had the authority to implement state laws regarding the treatment of inmates at OCI and was acting under color and authority of state law. Edwards is sued in his official capacity.
14. Defendant Robert Humphreys (“Humphreys”) is an adult citizen of the United States who is the Warden of RCI. At all material times, Humphreys had the authority to implement state laws regarding the treatment of inmates at RCI and was acting under color and authority of state law. Humphreys is sued in his official capacity.
15. Defendant Susan Nygren (“Nygren”) is an adult citizen of the United States who is the Manager of the Health Services Unit at RCI. At all material times, Nygren had the authority to implement state laws regarding the treatment of inmates at RCI and was acting under color and authority of state law. Nygren is sued in her official capacity.
ALLEGATIONS OF FACT 16. Gender Identity Disorder (“GID”) is a recognized medical condition identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. DSM-IV 532 (4th ed. 1994). 17. GID, sometimes known as gender dysphoria or transsexualism, is a serious health condition that involves a strong and consistent cross-gender identification and a persistent discomfort with one’s anatomical sex. 18. For people with gender dysphoria, the conflict between their gender identity and their anatomy causes extreme psychological distress. Contemporary medical knowledge indicates that gender identity cannot be changed, and that attempts to change a person’s gender identity are futile and unethical.
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19. Mounting medical research indicates that gender dysphoria may not be a psychiatric condition but might, in fact, be caused by biological or physiological factors that are not yet fully understood. For example, an article entitled “A Sex Difference in the Human Brain and Its Relations to Transsexualism,” authored by J.-N. Zhou, M.A. Hofman, L.J. Gooren, D.F. Swaab and published at International Journal of Transgenderism 1 (1997), reports that an area of the brain that may be involved in human sexual or reproductive functions was female-sized in male-to-female transsexuals.
20. Regardless of the etiology of gender dysphoria, the prevailing medical standards of care dictate that hormone therapy is an appropriate treatment for that condition, and experienced health care providers consider those who seek such treatment to have a serious health condition.
21. The Harry Benjamin International Gender Dysphoria Association (“HBIGDA”) is the leading professional association for surgeons, doctors, medical researchers and others who specialize in the medical treatment of people with gender dysphoria. Based on decades of clinical experience, HBIGDA has promulgated medical standards of care for treating patients with gender dysphoria.
22. The HBIGDA Standards of Care for Gender Identity Disorders (“SOC”) recognize that treatment is medically necessary for people with gender dysphoria. The SOC further indicate that the therapeutic approach includes three components (hormone therapy, living full-time as a member of the gender corresponding with one’s identity, and sex reassignment surgery), and that the appropriate course of treatment should be determined based upon individualized medical evaluation.
23. Plaintiff Sundstrom was identified as male when she was born but has a female
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gender identity, i.e., an innate sense of being female. Starting around the age of four, she felt uncomfortable about being perceived as a boy. During high school, she secretly dressed in girls’ clothing.
24. In or around 1990, when Sundstrom was 25 years old, a psychiatrist diagnosed her with Gender Identity Disorder (“GID”). Several months later, that psychiatrist gave Sundstrom a prescription for testosterone blockers and feminizing hormone therapy. At that time, Sundstrom came out as transgender to her family and friends and began living full-time as a woman. In 1995, Sundstrom underwent a tracheal shave and rhinoplasty as components of her gender transition.
25. Sundstrom’s hormone therapy has not been interrupted at any time since she began hormone therapy in or around 1990.
26. In 2003, an endocrinologist increased Sundstrom’s dosage of feminizing hormones.
27. Sundstrom’s GID diagnosis has been confirmed numerous times by her physicians and health care providers, including several providers employed by the DOC.
28. In or around December 2003, Sundstrom was convicted of a probation violation. As a result of that conviction, she currently is incarcerated at OCI.
29. During all periods of her incarceration, up until January 12, 2006, Defendants have provided Sundstrom with feminizing hormones and testosterone blockers at the same dosage that she received prior to incarceration.
30. Plaintiff Fields was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. Starting around the age of fourteen, she has identified herself as transgender.
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31. In or around 1993, when she was 16 years old, Fields was diagnosed with GID by a psychiatrist. At age 18, she began living full-time as a woman. At age 19, she began a course of hormone therapy.
32. In or around 1997, a physician confirmed Fields’ GID diagnosis and gave her a prescription for feminizing hormones. Around that same time, Fields came out as transgender to her family members and siblings. In the summer of 2003, Fields underwent breast augmentation surgery as a component of her gender transition.
33. Fields’ hormone therapy has not been interrupted at any time since she began hormone therapy in or around 1996.
34. In or around 2002, a physician increased Fields’ dosage of feminizing hormones. 35. In or around June 2005, Fields was convicted of forgery. As a result of that conviction, she currently is incarcerated at OCI. 36. During all periods of her incarceration, up until January 12, 2006, Defendants have provided Fields with feminizing hormone therapy. 37. Plaintiff Blackwell was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. Starting around the age of twelve, she has identified herself as transgender. When Blackwell was eleven or twelve years old, she attempted suicide as a result of her severe discomfort with her gender identity. 38. In or around August 1998, when she was fifteen years old, Blackwell’s grandmother took her to a psychiatrist who diagnosed her as a transsexual and prescribed feminizing hormones to her. Around that same time, Blackwell began living full-time as a woman. 39. Blackwell’s hormone therapy has not been interrupted at any time since she began
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hormone therapy in or around 1998. 40. Blackwell is currently incarcerated at RCI. During all periods of her
incarceration, up until January 23, 2006, Defendants have provided Blackwell with feminizing hormone therapy.
41. Plaintiff Davison was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. She has been aware of her female gender identity since childhood.
42. Davison was first diagnosed as a transsexual in or around June 2005 by a counselor in Brookfield, Wisconsin. She has taken prescribed feminizing hormones continuously since July 2005.
43. Moaton was identified as male when she was born but has a female gender identity, i.e., an innate sense of being female. She has been aware of her female gender identity since she was five years old.
44. Moaton was diagnosed as a transsexual at Dodge Correctional Institution in September 2006. She has taken prescribed feminizing hormones since the year 2000, and was provided those hormones at Dodge Correctional Institution and JCI.
45. On December 6, 2005, the Wisconsin legislature passed 2005 Wisconsin Act 105, codified at Wis. Stat. § 302.386(5m) (“the Act”). The Act provides that the DOC “may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery” to any inmate in a state prison, correctional facility, or secured child caring institution, or to any forensic patient in a state institution.
46. The Act defines “hormonal therapy” as “the use of hormones to stimulate the
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development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender,” and defines “sexual reassignment surgery” as “surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender.”
47. After its passage, co-sponsors of the Act issued press releases calling it the “Inmate Sex Change Prevention Act,” describing medical treatment for GID as “bizarre.”
48. The Act takes effect on January 24, 2006. 49. Prior to the Act’s passage, the Defendants provided hormone therapy to DOC inmates in accordance with individualized medical judgments, patient needs, and prevailing medical standards of care. 50. On or about January 12, 2006, Defendant Edwards and Dr. Roman Kaplan, M.D., a medical doctor at OCI, notified Plaintiffs Sundstrom and Fields that the Act had passed. Defendants promptly halved Sundstrom and Fields’ hormone dosage and notified them that their dosage would be halved again in 30 days, and terminated entirely 30 days after that. 51. Since the dramatic reduction in her hormone therapy, Sundstrom has experienced mood swings, crying fits, hot flashes, bloating, and severe headaches. Sundstrom has a history of suicidal ideation, and fears and expects that she will become suicidal again as a result of the reduction in her hormone dosage. 52. Since the dramatic reduction in her hormone therapy, Fields has experienced depression, nausea, muscle weakness, loss of appetite, increased hair growth, and skin bumps. Fields is afraid of the effects that reduction and termination of her hormones will have on her body. 53. On or around January 23, 2006, DOC personnel notified Plaintiff Blackwell that
9

Case 2:06-cv-00112-CNC Filed 12/18/2006 Page 10 of 14 Document 91-2
the Act had passed. Defendants promptly halved Blackwell’s hormone dosage and notified her that her dosage would be halved again in 30 days, and terminated entirely 30 days after that.
54. Since the dramatic reduction in her hormone therapy, Blackwell has experienced mental and physical changes, including emotional fluctuations and change in breast sensation.
55. Shortly after Davison became incarcerated at DCI, she was informed by a DOC physician that the Wisconsin legislature had passed a law that would require the termination of her hormone therapy. She was informed that the DOC would immediately reduce her hormone dosage and would soon stop it entirely.
56. Since the DOC reduced Davison’s hormone therapy dosage, she has begun to experience increased and darker hair growth; voice deepening; breast reduction and leaking; mood swings; mental and emotional instability; hot flashes; and body aches.
57. Shortly after Moaton became incarcerated at DCI, she was informed that the Wisconsin legislature had passed a law prohibiting the provision of her hormone therapy. She was told that the DOC would temporarily provide her hormones but would taper them and then terminate them entirely.
58. Moaton’s feminizing hormone therapy has now been terminated. Since the reduction and termination, she has experienced new and increased hair growth on her chest and face; physical sensitivity and pain in her breasts and groin area; night sweats; and depression.
59. Medical professionals experienced in the treatment of GID recognize that the abrupt reduction and termination of hormone therapy can have disastrous consequences for transgender people, including serious risk of permanent physical and emotional harm, severe danger of self-mutilation, and suicidal ideation and attempts.
60. Defendants restricted Plaintiffs’ hormone dosage, and notified them of
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Case 2:06-cv-00112-CNC Filed 12/18/2006 Page 11 of 14 Document 91-2
Defendants’ intention to terminate Plaintiffs’ hormone therapy, despite Defendants’ knowledge that all Plaintiffs previously had received hormone therapy and despite having provided that hormone therapy to all Plaintiffs on an ongoing basis during all prior periods of Plaintiffs’ incarceration.
61. Defendants’ actions, which were undertaken without regard for any individualized medical determination and contradicted previously-existing policies regarding the provision of hormone therapy, were performed with deliberate indifference to Plaintiffs’ serious medical needs.
FIRST CLAIM FOR RELIEF Brought under 42 U.S.C. Section 1983 for Violation of the Eighth Amendment to the
United States Constitution (against all Defendants)
62. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs as if fully set forth herein.
63. Plaintiffs receive hormone therapy as treatment for their serious health condition. 64. Defendants’ application of the Act to Plaintiffs by denying them hormone therapy without consideration of any individualized medical judgment formed by Plaintiffs’ health care providers constitutes deliberate indifference to Plaintiffs’ serious medical needs and violates the Eighth Amendment’s prohibition on cruel and unusual punishment. 65. The Act, which Defendants have followed and have announced they will follow, establishes a blanket rule that denies medical treatment to Plaintiffs and all other inmates of DOC facilities without consideration of any individualized medical judgment formed by health care providers, and therefore violates the Eighth Amendment’s prohibition on cruel and unusual punishment.
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Case 2:06-cv-00112-CNC Filed 12/18/2006 Page 12 of 14 Document 91-2
66. As a direct and proximate result of Defendants’ purposeful and intentional actions, Plaintiffs have suffered and continue to suffer injury, including, without limitation, serious physical, psychological and emotional harm, mental anguish, distress, humiliation, and indignity.
SECOND CLAIM FOR RELIEF Brought under 42 U.S.C. Section 1983 for Violation of the Fourteenth Amendment to the
United States Constitution (against all Defendants)
67. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs as if fully set forth herein.
68. As transgender inmates of DOC facilities, Plaintiffs are members of an identifiable group of people.
69. Defendants provide individualized medical evaluations to other inmates at DOC facilities with serious health conditions. Those evaluations result in medical judgments that determine the course of treatment that Defendants provide to those inmates.
70. The Act, and Defendants’ application of the Act, treat Plaintiffs differently from similarly situated inmates at DOC facilities by singling Plaintiffs out for termination and denial of medical treatment, and by failing to provide treatment in accordance with individualized medical judgment.
71. Defendants’ actions towards Plaintiffs are undertaken purposefully and intentionally and bear no rational relationship to any legitimate governmental or penological interest.
72. As a direct and proximate result of Defendants’ actions, Plaintiffs have suffered and continue to suffer injury, including, without limitation, serious physical, psychological and
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Case 2:06-cv-00112-CNC Filed 12/18/2006 Page 13 of 14 Document 91-2
emotional harm, mental anguish, distress, humiliation, and indignity. RELIEF
WHEREFORE, Plaintiffs pray for judgment under all their causes of action: (a) Awarding Plaintiffs preliminary and permanent injunctive relief against
Defendants’ enforcement of the Act against them; (b) Declaring that the Act, both on its face and as applied to Plaintiffs, violates the
Eighth and Fourteenth Amendments to the United States Constitution; (c) Awarding costs for the suit herein, including Plaintiffs’ reasonable attorneys’
fees and expert fees pursuant to 42 U.S.C. § 1988; and (d) Awarding all other relief that the Court deems just and proper.
Dated this 18th day of December, 2006. Respectfully submitted,
s/ Cole Thaler______________________ Cole Thaler Lambda Legal Defense & Education Fund, Inc. 730 Peachtree St. NE, Suite 1070 Atlanta, GA 30308 Telephone: (404) 897-1880 Fax: (404) 897-1884 Email: cthaler@lambdalegal.org Laurence Dupuis American Civil Liberties Union of Wisconsin Foundation, Inc. State Bar No. 1029261 207 East Buffalo Street, Suite 325 Milwaukee, WI 53202-5712 (414) 272-4032
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Case 2:06-cv-00112-CNC Filed 12/18/2006 Page 14 of 14 Document 91-2 John A. Knight American Civil Liberties Union Foundation 180 N. Michigan Avenue, Suite 2300 Chicago, Illinois 60601 (312) 201-9740 Erik Guenther State Bar No. 1041774 Hurley Burish & Stanton, SC 10 E Doty St # 320 PO Box 1528 Madison, WI 53701-1528 (608) 257-0945 Attorneys for Plaintiffs
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

KARI SUNDSTROM, ANDREA FIELDS, LINDSEY BLACKWELL, MATTHEW DAVISON, also known as JESSICA DAVISON, and VANKEMAH D. MOATON,

Plaintiffs,

v.

Case No. 06-C-112

MATTHEW J. FRANK, WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, WARDEN ROBERT HUMPHREYS, and MANAGER SUSAN NYGREN,

Defendants.

ORDER DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION (DOC. #35), DENYING PLAINTIFFS’ MOTION OR LEAVE TO FILE SECOND AMENDED
COMPLAINT (DOC. #37), GRANTING PLAINTIFFS’ MOTION FOR LEAVE, INSTANTER, TO FILE DOCUMENTS WITH A NONPARTY INMATE’S NAME REDACTED AND TO FILE UNREDACTED DOCUMENTS UNDER SEAL (DOC. #80), and GRANTING PLAINTIFFS’ MOTION FOR LEAVE, INSTANTER, TO FILE DECLARATIONS WITH NONPARTY INMATES’ NAMES REDACTED AND TO FILE UNREDACTED DOCUMENTS UNDER SEAL (DOC. #98)
The plaintiffs, who are Wisconsin prison inmates, bring this civil rights action
under 42 U.S.C. § 1983 for declaratory and injunctive relief claiming that the defendants have
violated the United States Constitution by enforcing 2005 Wisconsin Act 105, codified as Wis.
Stat. § 302.386(5m), and abruptly terminating and depriving them of medical treatment for
their serious health condition, Gender Identity Disorder (GID). Further, the plaintiffs assert
that the defendants acted without exercising individualized medical judgment and in contrast

to the treatment the defendants provide to similarly situated inmates in Wisconsin Department of Corrections (DOC) facilities. The third amended complaint (complaint) seeks an end to the defendants’ actions that violate the plaintiffs’ Fourteenth Amendment right to equal protection and Eighth Amendment right to be free from cruel and unusual punishment, as well as a declaration that Wis. Stat. § 302.386(5m)1 is unconstitutional on its face.
On January 27, 2006, the court granted plaintiffs Sundstrom and Fields’ motion for preliminary injunction. Consequently, the defendants are enjoined from withdrawing any hormone therapy which was prescribed to the plaintiffs as of January 11, 2006, and must return the plaintiffs’ hormonal therapy to the level in effect prior to the January 12, 2006, reduction. Later, the preliminary injunction was extended to plaintiffs Lindsey Blackwell, Matthew Davison a/k/a Jessica Davison, and Vankemah Moaton, as these plaintiffs were identified as inmates who had been diagnosed with GID or transsexualism and who faced termination of hormone therapy pursuant to Wis. Stat. § 302.386(5m). The preliminary injunction remains in effect with regard to these five plaintiffs until a trial on the merits, as the parties have stipulated to consolidation of the preliminary injunction hearing and the trial on the merits.
PLAINTIFFS’ MOTION TO CERTIFY CLASS The plaintiffs have filed a motion to certify a class action in this case. They seek certification of the following class pursuant to Federal Rule of Civil Procedure 23(b)(2): All current or future prisoners or patients as specified in Wis. Stat. 302.386(5m) who are transgender, including those who have
1 The new law prohibits the use of state funds or “federal funds passing through state treasury to provide or to facilitate the provision of hormonal therapy,” for the treatm ent of transgender prisoners, juvenile detainees, or residents in forensic mental health facilities in W isconsin. W is. Stat. § 302.386(5m ).
2

been diagnosed with Gender Identity Disorder and those who have a strong persistent cross-gender identification and either a persistent discomfort with their sex or a sense of inappropriateness in the gender role of that sex. (Pls.’ Br. in Supp. of Mot. for Class Cert. at 1.) The plaintiffs contend that the proposed class meets the requirements of Rule 23(a) and (b)(2). The defendants oppose the motion. According to the defendants, the court should deny the plaintiffs’ motion because the proposed class is overly broad and members of the proposed class lack standing. Moreover, the defendants contend that the proposed class fails to satisfy the numerosity, typicality, and commonality requirements of Rule 23(a). Under Federal Rule of Civil Procedure 23(a), “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” In addition, to prosecute a class action, the plaintiffs must show that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief . . . with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). 1. Commonality and Typicality “A common nucleus of operative fact is usually enough to satisfy the commonality requirement.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). A common nucleus of operative fact is typically found where the “defendants have engaged in standardized conduct towards members of the proposed class.” Keele v. Wexler, 149 F.3d
3

589, 594 (7th Cir. 1998); see also Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (stating that “commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members”).
A court’s analysis of whether a representative party’s claims are typical of the class members’ claims is closely related to the court’s commonality inquiry. Keele, 149 F.3d at 595. The Seventh Circuit has reasoned that “‘[a] plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other members and his or her claims are based on the same legal theory’ . . . even if there are factual distinctions between the claims of the named plaintiffs and those of other class members.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (citations and internal quotations omitted).
The plaintiffs are proceeding on an Eighth Amendment medical care claim and a Fourteenth Amendment equal protection claim based on allegations that the defendants stopped or threatened to stop their hormone therapy medication to comply with Wis. Stat. § 302.386(5m). The pleadings indicated the following: Plaintiff Sundstrom was diagnosed with GID in 1990 at age 25 and has been on hormone therapy since 1990. During all periods of incarceration until January 12, 2006, the defendants have provided Sundstrom with feminizing hormones and testosterone blockers. Plaintiff Fields was diagnosed with GID in 1993 at age 16 and has been on hormone therapy since 1996. During all periods of incarceration until January 12, 2006, the defendants have provided Fields with feminizing hormone therapy. Plaintiff Blackwell was diagnosed as a transsexual in 1998 at age 15, at which time Blackwell was prescribed feminizing hormones and began living full-time as a woman. During all periods of incarceration until January 23, 2006, the defendants have provided Blackwell with
4

feminizing hormone therapy. Plaintiff Davison was diagnosed as a transsexual in June 2005 and has taken prescribed feminizing hormones continuously since July 2005. Plaintiff Moaton was diagnosed as a transsexual at Dodge Correctional Institution in September 2006. Moaton has taken prescribed feminizing hormones since 2000. At this time, the five plaintiffs are receiving hormone medication pursuant to this court’s order.
The principal allegations in this case are that the plaintiffs have been diagnosed with GID or transsexualism and are taking hormone therapy that is in danger of being withdrawn. (See Court’s Order of January 27, 2006) (discussing the dangerous effects of the withdrawal of hormone therapy). The plaintiffs propose a class which includes all prisoners “who have a strong persistent cross-gender identification and either a persistent discomfort with their sex or a sense of inappropriateness in the gender role of that sex.” However, the proposed class would increase the scope of this lawsuit beyond the claims upon which the named plaintiffs are proceedings. Moreover, potential claims of the proposed class members have not been shown to be common or typical to those of the five plaintiffs in this case. 2. Numerosity
To establish numerosity, plaintiffs are not required to provide an exact number of class members. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989). Generally, a plaintiff can satisfy the numerosity requirement by demonstrating that there are at least forty potential plaintiffs. Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001) (citing 5 James Wm. Moore et al., Moore’s Federal Practice § 23.22[3][a] (3d ed. 1999)).
In this case, only six prisoners within the DOC have been identified as threatened with withdrawal of their hormone therapy through enforcement of Wis. Stat. §
5

302.386(5m).2 A class of five or six prisoners, five of whom have already been joined in the case, is not sufficient to meet the numerosity requirement of Rule 23(a)(1). See 7A Charles Alan Wright, et al., Federal Practice and Procedure § 1762 (3d ed. 2005) (“Of course, if there are no members of the class other than the named representatives, then Rule 23(a)(1) obviously has not been satisfied”). For these reasons, the Motion for Class Certification as well as the related Motion for Leave to File Second Amended Complaint to add class allegations must be denied.
ADDITIONAL MATTERS On August 2, 2006, the plaintiffs filed a motion to file redacted documents which conceal the personal medical information and the identities of nonparty witnesses. This motion goes along with the plaintiffs’ motion to compel discovery filed on the same date, which was resolved on December 6, 2006. Moreover, the motion is consistent with the parties’ April 6, 2006, Agreed Protective Order and seeks to protect sensitive nonpublic information. For that reason, the motion will be granted. On January 30, 2007, the plaintiffs filed a motion to seal document and to file declarations with the names of nonparty inmates redacted. This motion was accompanied with the plaintiffs’ reply to the class certification motion. Like the August 2 motion, this motion asks the court to approve the filing of documents which protect from public disclosure the identities of nonparty inmates in Department of Corrections facilities along with their medical treatment and diagnosis. In view of this court’s decision on the plaintiffs’ class certification motion, the privacy interest of the nonparty inmates, and the agreement of the parties,
2 The six prisoners are the five nam ed plaintiffs in this case and another prisoner who has a separate case before this court.
6

IT IS ORDERED that the plaintiffs’ Motion for Class Certification (Doc. #35) is DENIED.
IT IS FURTHER ORDERED that the plaintiffs’ Motion for Leave to File Second Amended Complaint (Doc. #37) is DENIED.
IT IS FURTHER ORDERED that the plaintiffs’ Motion for Leave, Instanter, to File Documents with a Nonparty Inmate’s Name Redacted and to File Unredacted Documents under Seal (Doc. #80) is GRANTED.
IT IS FURTHER ORDERED that the plaintiffs’ Motion for Leave, Instanter, to File Declarations with Nonparty Inmates’ Names Redacted and to File Unredacted Documents under Seal (Doc. #98) is GRANTED.
Dated at Milwaukee, Wisconsin, this 16th day of February, 2007. BY THE COURT s/ C. N. CLEVERT, JR. C. N. CLEVERT, JR. U. S. DISTRICT JUDGE
7

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ANDREA FIELDS, MATTHEW DAVISON, also known as Jessica Davison, and VANKEMAH D. MOATON,
Plaintiffs,
v.
WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, and RICHARD RAEMISCH,
Defendants.

Case No. 06-C-112

ORDER DECLARING WIS. STAT. § 302.386(5m) UNCONSTITUTIONAL AND ENJOINING ENFORCEMENT OF STATUTE
The plaintiffs in this case seek declaratory and injunctive relief claiming that the defendants have violated the United States Constitution by enforcing 2005 Wisconsin Act 105, codified as Wis. Stat. § 302.386(5m), and depriving them of medical treatment for their serious health condition, Gender Identity Disorder. Further, the plaintiffs ask the court to find that the defendants enforced the statute without regard for individualized medical judgment and in contrast to the medical treatment that the defendants provide to similarly situated inmates in Wisconsin Department of Corrections (DOC) facilities. Consequently, the plaintiffs ask this court to find that the defendants have violated their Fourteenth Amendment right to equal protection and their Eighth Amendment right to be free from cruel and unusual punishment. Moreover, the plaintiffs ask this court to find that enforcement of the statute evinces deliberate indifference to the serious medical needs of

Case 2:06-cv-00112-CNC Filed 03/31/10 Page 1 of 3 Document 206

the plaintiffs as well as the serious medical needs of all other inmates of DOC facilities. Lastly, the plaintiffs seek a declaration that Wis. Stat. § 302.386(5m) is unconstitutional on its face and as applied.
After careful consideration, the court concludes that the defendants’ application of Wis. Stat. § 302.386(5m) to these plaintiffs constitutes deliberate indifference to the plaintiff’s serious medical needs in violation of the Eighth Amendment inasmuch as enforcement of the statute results in the denial of hormone therapy without regard for the individual medical needs of inmates and the medical judgment of their health care providers.
The court further finds that Wis. Stat. § 302.386(5m) is unconstitutional on its face under the Eighth Amendment because it bans the use of any Wisconsin State resources or federal funds passing through the government to provide hormone therapy and, thereby, requires the withdrawal of any such ongoing hormone therapy for inmates in DOC facilities without regard for the medical need for that treatment.
The court further finds that Wis. Stat. § 302.386(5m) prevents DOC medical personnel from evaluating inmates for treatment because such evaluation would be futile in light of the statute’s ban on such hormone therapy. Furthermore, the application of Wis. Stat. § 302.386(5m) to the plaintiffs violates the plaintiffs’ constitutional right to equal protection because there is no rational basis for treating the plaintiffs differently than similarly situated inmates.
The court further finds there is no rational basis for Wis. Stat. § 302.386(5m) and that the statute is invalid on its face, as it violates the Equal Protection Clause of the
2
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Fourteenth Amendment. A memorandum decision shall be issued forthwith. Now, therefore,
IT IS ORDERED that enforcement of Wis. Stat. § 302.386(5m) violates the plaintiffs’ Eighth Amendment right to be free from cruel and unusual punishment and Fourteenth Amendment right to equal protection.
IT IS FURTHER ORDERED that Wis. Stat. § 302.386(5m) is unconstitutional. IT IS FURTHER ORDERED that the defendants are permanently enjoined from the enforcement of Wis. Stat. § 302.386(5m). Dated at Milwaukee, Wisconsin, this 31st day of March, 2010.
BY THE COURT /s/ C. N. Clevert, Jr. C. N. CLEVERT, JR. Chief U.S. District Judge
3 Case 2:06-cv-00112-CNC Filed 03/31/10 Page 3 of 3 Document 206

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

KARI SUNDSTROM, ANDREA FIELDS, LINDSEY BLACKWELL, MATTHEW DAVISON, and VANKEMAH MOATON,
Plaintiffs,
v.
MATTHEW J. FRANK, et al.,
Defendants.

Case No. 06-C-0112

DEFENDANTS’ BRIEF IN SUPPORT OF DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendants Matthew J. Frank, James Greer, Judy P. Smith, Thomas Edwards, Robert Humphreys, and Susan Nygren by their attorneys, J.B. Van Hollen, Attorney General, and Jody J. Schmelzer, Assistant Attorney General, hereby submit this brief in support of their motion for partial summary judgment.

ISSUES PRESENTED
1. Is summary judgment proper on plaintiff Moaton’s as-applied challenge to the Inmate Sex Change Prevention Act where no admissible expert testimony supports that hormone therapy is medically necessary to treat his gender identity disorder?
2. Is summary judgment proper on the plaintiffs’ facial challenge to the Inmate Sex Change Prevention Act where the act is not unconstitutional in all applications?
3. Should plaintiffs Sundstrom and Blackwell and defendants Humphreys and Nygren be dismissed where the only relief requested is injunctive and declaratory relief, where these plaintiffs are no longer in prison, and where

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none of the incarcerated plaintiffs are housed at Racine Correctional Institution? 4. Are the defendants entitled to summary judgment on the plaintiffs’ equal protection claim where the Inmate Sex Change Prevention Act is rationally related to DOC’s legitimate penological goals of safety and security?
STATEMENT OF THE CASE The plaintiffs, all current or former inmates in the Wisconsin prison system, filed this action on January 24, 2006, against the defendants, all Wisconsin Department of Corrections (DOC) officials. The plaintiffs have all be diagnosed as suffering from some form of gender identity disorder. In their Third Amended Complaint (Complaint), the plaintiffs challenge the Inmate Sex Change Prevention Act (the Act), Wis. Stat. § 302.386(5m), which prevents state or federal resources to be used to provide hormone therapy or sexual reassignment surgery to Wisconsin prisoners. The statute defines “hormonal therapy” as “the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m)(a)(1). It also defines “sexual reassignment surgery” as “surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m)(a)(2). The Complaint sets forth essentially three claims: (1) the Act, as applied to the plaintiffs, violates the Eighth Amendment; (2) the Act, on its face, violates the Eighth Amendment; and (3) the Act violates the plaintiffs’ Fourteenth Amendment equal protection rights. As relief, the plaintiffs request injunctive relief against DOC’s enforcement of the Act against them, along with declaratory relief holding the Act, both on its face and as applied to plaintiffs, violates the Eighth and Fourteenth Amendments to the constitution.
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By this motion, the defendants seek summary judgment on the following claims: (1) Plaintiff Moaton’s Eighth Amendment as-applied challenge to the Act; (2) the Eighth Amendment facial challenge to the Act; (3) all claims brought by plaintiffs Sundstrom and Blackwell; (4) all claims brought against defendants Humphreys and Nygren; and (5) the Fourteenth Amendment equal protection claim.
STANDARD OF REVIEW Under Federal Rules of Civil Procedures 56(c), summary judgment "shall be rendered forthwith if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Summary judgment must be granted “against a party who fails to make a showing sufficient to establish the existence of an element to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The opposing party "may not rest upon the mere allegations or denials" in the pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e). Also, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). "[A] party must produce specific facts showing that there remains a genuine issue for trial and evidence 'significantly probative'as to any [material] fact claimed to be disputed." Branson v. Price River Coal Company, 853 F.2d 768, 771-72 (10th Cir. 1988). In order for a party “to avoid summary judgment that party must supply evidence sufficient to allow a jury to render a verdict in his favor.” Williams v. Ramos, 71 F.3d 1246, 1248 (7th Cir. 1995).
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Presenting only a scintilla of evidence is not sufficient to oppose a motion for summary judgment. Walker v. Shansky, 28 F.3d 666, 671 (7th Cir. 1994). Moreover, more than mere conclusory allegations are required to defeat a motion for summary judgment. Mills v. First Fed. Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 840 (7th Cir. 1996).
The requirements for a valid injunction are found in Fed. R. Civ. P. 65(d), which provides, so far as pertinent here, that "[e]very order granting an injunction ... shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained." Fed. R. Civ. P. 65(d). Before a court may award permanent injunctive relief, a party must demonstrate (1) it has succeeded on the merits; (2) no adequate remedy at law exists; (3) the moving party will suffer irreparable harm without injunctive relief; (4) the irreparable harm suffered without injunctive relief outweighs the irreparable harm the nonprevailing party will suffer if the injunction is granted; and (5) the injunction will not harm the public interest. Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1081 (7th Cir. 1998), citing, Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987).
In this case, the scope of injunctive relief must also comply with the requirements of the Prison Litigation Reform Act, 18 U.S.C. § 3626 (PLRA). The PLRA requires that, prior to granting prospective relief, a court must find that the relief is: (1) narrowly drawn; (2) extends no further than necessary to correct the violation of the Federal right; and (3) is the least intrusive means necessary to correct the violation of the Federal right. 18 U.S.C. § 3626(a)(1). Not only must these findings be made, but the court must also give "substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief." Id. Moreover, in order to obtain an injunction an inmate must prove that a prison official is, at the
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time of trial, “knowingly and unreasonably disregarding an intolerable risk of harm, and…will continue to do so.” Farmer v. Brennan, 511 U.S. 825, 846 (1994).
ARGUMENT
I. SUMMARY JUDGMENT IS PROPER ON PLAINTIFF MOATON’S AS-APPLIED CHALLENGE TO THE INMATE SEX CHANGE PREVENTION ACT BECAUSE NO ADMISSIBLE EXPERT TESTIMONY SUPPORTS THAT HORMONE THERAPY IS MEDICALLY NECESSARY TO TREAT HIS GENDER IDENTITY DISORDER.
Before the court can order any of the injunctive relief sought by plaintiffs, they must first succeed on their Eighth Amendment claim. The Eight Amendment forbids cruel and unusual punishment, but it does not require the most intelligent, progressive, humane, or efficacious prison administration. Oliver v. Deen, 77 F.3d 156, 161 (7th Cir. 1996). It is well established that prisoners have a right to receive adequate medical care. Estelle v. Gamble, 429 U.S. 97 (1976). This right has been interpreted to require prisons to treat serious psychiatric needs of their prisoners. Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997); Jones ‘El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001) (citing Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987)); But see Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002) (prisoners “do not have a fundamental right to psychiatric care at public expense”) (dicta) (emphasis in original).
Although prisons have a duty to provide psychiatric care to those inmates who need it, failure to provide care only rises to the level of an Eighth Amendment violation when there is “deliberate indifference to a serious medical need.” Estelle v. Gamble, 429 U.S. 97 (1976). “‘Deliberate indifference’ is simply a synonym for intentional or reckless conduct, and…‘reckless’ describes conduct so dangerous that the deliberate nature of the defendant's
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actions can be inferred." Foelker v. Outagamie County, 394 F.3d 510, 513 (7th Cir. 2005)(quoting Qian v. Kautz, 168 F.3d 949, 955 (7th Cir. 1999)). A ‘serious’ medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Foelker, 394 F.3d at 512 -513 (quoting Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 765 (7th Cir. 2002)).
In the case at bar, the premise behind the Act is that inmates do not have a serious medical need for hormone therapy and/or sex reassignment surgery for the treatment of GID. See, Maggert, 131 F.3d at 671 (“it does not follow that the prisons have a duty to authorize the hormonal and surgical procedures that in most cases at least would be necessary to ‘cure’ a prisoner's gender dysphoria”). Indeed, even the Harry Benjamin International Gender Dysphoria Association’s Standards of Care for Gender Identity Disorders (SOC) cited by the plaintiffs recognizes that not all persons with GID need hormone therapy or surgery (DFOF ¶ 13). Thus, to prove their as-applied Eighth Amendment claim, the plaintiffs will have to provide qualified testimony to support that they have a serious medical need to remain on female hormone therapy. See, Foelker, 394 F.3d at 512 -513.
However, given plaintiff Moaton’s invocation of the Fifth Amendment in his deposition on an issue relevant to his Eighth Amendment claim and on information he freely discussed his expert, Dr. Randi Ettner’s report and conclusions concerning his need for hormone therapy must be excluded. See, Defendants’ Motions in Limine, Argument I, filed herewith. The line of questioning Moaton refused to answer directly concerned his previous withdrawal from female hormone therapy (DFOF ¶¶ 17, 18). The consequence of exercising his Fifth Amendment rights when questioned by the defendants in deposition on this issue is exclusion, especially where he freely discussed these facts with his retained expert (DFOF ¶ 19). Without Dr. Randi Ettner’s
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opinions that Moaton has a serious psychological need for hormone therapy, his as-applied Eighth Amendment challenge to the Act must fail, and the defendants are entitled to summary judgment on this claim.
II. SUMMARY JUDGMENT IS PROPER ON THE PLAINTIFFS’ FACIAL CHALLENGE TO THE INMATE SEX CHANGE PREVENTION ACT BECAUSE THE ACT IS NOT UNCONSTITUTIONAL IN ALL APPLICATIONS.
A. Overview of the law. Facial challenges to statutes are “especially to be discouraged.” Sabri v. United States, 541 U.S. 600, 609 (U.S. 2004). Moreover, because “facial invalidation is, manifestly, strong medicine,” it must be employed “sparingly and only as a last resort.” Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998). The standard applied to facial challenges is derived from the Supreme Court’s decision in U.S. v. Salerno, in which the Court stated, “a facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” U.S. v. Salerno, 481 U.S. 739, 745 (1987). As a result, a facial challenge should not succeed based on an analysis of the worst-case scenario. Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 514 (1990). The Salerno rule has been applied repeatedly in the Seventh Circuit. E.g., Joelner v. Village of Wash. Park, 378 F.3d 613, 621 (7th Cir. 2004); Doe v. Heck, 327 F.3d 492, 528 (7th Cir. 2003); Home Builders Ass'n v. United States Army Corps of Eng'rs, 335 F.3d 607, 619 (7th Cir. 2003); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702, 708 (7th Cir. 2003). Although there are two exceptions to the Salerno “no set of circumstances” standard, the case at bar clearly does not fall within either of the exceptions. In First Amendment cases, courts
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frequently apply overbreadth or vagueness standards to limit chilling effects on speech. See, e.g., Ashcroft v. ACLU, 535 U.S. 564 (2002). In abortion cases, courts generally apply an “undueburden” test. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992). Since the plaintiff’s Eighth Amendment and equal protection challenges do not fall within one of these well-defined exceptions, Salerno is the appropriate standard to apply.
B. The plaintiffs’ facial challenge to the Act cannot succeed because it is not unconstitutional in all applications.
Defendants’ motion for summary judgment must be granted on this issue because there are many instances in which the Act can be applied without constituting cruel and unusual punishment. Clearly, DOC must provide medically necessary treatment. See, e.g., Estelle v. Gamble, 429 U.S. 97 (1976). However, a prisoner is not entitled to whatever treatment he desires. Means v. Cullen, 297 F. Supp. 2d 1148, 1154 (W.D. Wis. 2003). Therefore, even if the court was to find that hormone therapy or sexual reassignment surgery is required for some inmates who have been diagnosed with the disorder, the Act applies to all inmates, regardless of their diagnosis status:
The department may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery for a resident or patient specified in sub. (1). Wis. Stat. § 302.386(5m)(b). As was noted by Dr. Randi Ettner, GID is “extremely rare,” occurring in only 1 in 11,900 males and 1 in 30,400 females. (DFOF ¶ 20). Given this, there is no question that the Act’s prohibition of hormone therapy and/or sexual reassignment surgery only has a minute effect on the inmate population it covers. For those who do not have any medical need for these procedures because they have no gender issues, the Act does not run afoul of the Eighth
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Amendment. Hence, the plaintiffs cannot meet the requirement of demonstrating that there are no possible circumstances in which the Act can be applied constitutionally.
In fact, even when the pool of inmates is reduced to those with gender issues, the SOC and the plaintiff’s own experts concur that the Act may not have any effect in some applications. Under the SOC, “not all persons with gender identity disorders need or want all three elements of the triadic therapy,” which includes hormones and surgery (DFOF ¶¶ 12, 13). The SOC goes on to state that “[g]enital surgery is not a right that must be granted upon request.” (DFOF ¶ 16). According to Dr. Randi Ettner, “not all persons with bona fide gender identity disorders desired or were candidates for sex reassignment surgery,” (DFOF ¶ 21), and surgery would only be recommended “[i]n select cases” (DFOF ¶ 22). Similarly, plaintiff’s expert Dr. George Brown, opined that sexual reassignment surgery “is a last resort treatment, reserved for those who have not been able to find less invasive ways to treat their condition” (DFOF ¶ 23).
Even in this case, neither the plaintiffs nor their experts contend that the plaintiffs have a medical need for sexual reassignment surgery. For example, Blackwell acknowledges that he is not ready for surgery (DFOF ¶ 24), Fields does not want the surgery to be done by the DOC, (DFOF ¶ 25), and Sundstrom does not feel DOC should provide him with surgery (DFOF ¶ 26).
Clearly, the Act is not unconstitutional in all applications. In fact, the plaintiffs have, at best, only presented evidence that of the over 20,000 inmates it covers, the Act may only run afoul of the constitution as it applies to seven (7) individual inmates’ need for hormones (see generally, Schmelzer Exhibits 526, 527), (2) two of which the Act no longer effects (see, DFOF ¶¶ 1, 3; Argument III, infra.). Entertaining a facial challenge to the Act in this case would only invite what the Supreme Court recently cautioned against when addressing a facial challenge to a partial-birth abortion law in Gonzales v. Carhart, 127 S. Ct. 1610, (2007):
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As the previous sections of this opinion explain, respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases. Casey, supra, at 895, 112 S.Ct. 2791 (opinion of the Court). We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications. It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop. “[I]t would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.” United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) (internal quotation marks omitted). For this reason, “[a]s-applied challenges are the basic building blocks of constitutional adjudication.” Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L.Rev. 1321, 1328 (2000).
Gonzalez, 127 S. Ct. at 1639. Under this same jurisprudence, and given the evidence presented
in this case, there is no dispute that the plaintiffs fail to meet the requirements for a facial
challenge under Salerno, and summary judgment is appropriate.
III. PLAINTIFFS SUNDSTROM AND BLACKWELL SHOULD BE DISMISSED BECAUSE THE ONLY RELIEF REQUESTED IS INJUNCTIVE AND DECLARATORY RELIEF, BECAUSE THESE PLAINTIFFS ARE NO LONGER IN PRISON, AND BECAUSE NONE OF THE INCARCERATED PLAINTIFFS ARE HOUSED AT RACINE CORRECTIONAL INSTITUTION.
This case is moot for plaintiffs Sundstrom and Blackwell for purposes of declaratory and
injunctive relief because they have been released from prison. Therefore, the conditions about
which they complain no longer exist for them, and they should be dismissed from the suit.
Article III of the Constitution requires an actual case or controversy. Flast v. Cohen, 392
U.S. 83, 94-101 (1968). A case becomes moot when the issues presented are no longer "live."
Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam). A case is moot if a decision will not
touch the current legal relations of the parties. DeFunis v. Odegaard, 416 U.S. 312, 317 (1974)
(per curiam). A past exposure to illegal conduct does not itself show a present case or controversy
for injunctive relief. O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974). To satisfy constitutional - 10 -
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jurisdictional requirements, controversy must be existent at all stages of review, not only when complaint is filed. Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1996).
Prisoner claims for injunctive and/or declaratory relief concerning the conditions of their confinement are moot after they are released from prison. See, Kerr v. Farrey, 95 F.3d 472, 475 (7th Cir. 1996) (prisoner’s release on parole renders his claim for injunctive relief based upon First Amendment violation moot); McKinnon v. Talladega County, 745 F.2d 1360, 1363 (11th Cir. 1984) (a prisoner's transfer or release from a jail moots his individual claim for declaratory and injunctive relief); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (a prisoner's claim for injunctive and declaratory relief to improve prison conditions is moot if he or she is no longer subject to those conditions); Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004) (released prisoner's claim for declaratory judgment and injunctive relief is moot where "entry of declaratory judgment in [a prisoner's] favor would amount to nothing more than a declaration that he was wronged"); Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993) (a prisoner's transfer or release from prison moots his claims for injunctive or declaratory relief since he is no longer subject to the conditions he alleges are unconstitutional); Muhammad v. City of New York Dep't. of Corr., 126 F.3d 119, 123 (2d Cir. 1997) (same); Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (holding that inmate's suit for declaratory judgment as to whether correctional officers violated his constitutional rights by opening his privileged mail outside his presence was rendered moot by inmate's release from prison); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (“An inmate's release from prison while his claims are pending generally will moot any claims for injunctive relief relating to the prison's policies unless the suit has been certified as a class action”); Burton v. Frank, 2004 WL 1176171, *1 (W.D. Wis. 2004) (plaintiff’s First
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Amendment free exercise claim for injunctive relief is moot because he has been released from prison since instituting the action).
Similarly, this case has been mooted in regard to plaintiffs Blackwell and Sundstrom because they are no longer being held in prison. Blackwell was released on October 10, 2006, and Sundstrom was released on December 17, 2006. (DFOF ¶¶ 1, 3). Regardless of whether they were or were not exposed to unconstitutional conduct in the past, the issues presented are no longer live. All these plaintiffs request is injunctive and declaratory relief to change conditions they were subjected to only while they were confined. They are no longer confined, and these plaintiffs are free to obtain hormone therapy and/or surgery as they deem necessary. The outcome of this case will not effect the current legal situation of plaintiffs Blackwell and Sundstrom. Therefore, they must be dismissed.
In addition, because Blackwell was the only plaintiff in the suit residing at the Racine Correctional Institution (RCI) (see, DFOF ¶¶ 1-5), defendants Robert Humphreys and Susan Nygren should also be dismissed from this case. Humphreys is the Warden at RCI, and Nygren is the Manager of the Health Services Unit at RCI (DFOF ¶¶ 10, 11). There is no evidence that any of the currently-confined plaintiffs will be transferred to RCI in the future. Thus, injunctive and/or declaratory relief issued in this case against Humphreys and Nygren will not touch the current legal relations of the parties, and they should also be dismissed.
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IV. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON THE PLAINTIFFS’ EQUAL PROTECTION CLAIM BECAUSE THE INMATE SEX CHANGE PREVENTION ACT IS RATIONALLY RELATED TO DOC’S LEGITIMATE PENOLOGICAL GOALS OF SAFETY AND SECURITY.
A. Overview of the law. The Fourteenth Amendment’s guarantee of equal protection of the laws must coexist with the fact that almost all legislation classifies people in one way or another. Romer v. Evans, 517 U.S. 620, 624 (1996) (citing Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-272 (1979)). These principles have been reconciled by the approach that courts will uphold laws that do not burden a protected class or the exercise of a fundamental right as long as the law can pass rational basis review. E.g., Romer, 571 U.S. at 624; Heller v. Doe, 509 U.S. 312, 319 (1993); Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988); Hodel v. Indiana, 452 U.S. 314, 331-332 (1981). Rational basis scrutiny must be applied in this case because the Act does not target a protected classification, such as a race, see, e.g., Loving v. Va., 388 U.S. 1, 11 (U.S. 1967), nor does it effect a fundamental right, such as the right to vote, the right to privacy, or the right to travel between states. See, e.g., Miller v. Carter, 547 F.2d 1314, 1320 (7th Cir. 1977). Even if this Court was to find that the Act discriminated against people with GID despite the fact that the distinction does not exist within the statute, neither GID diagnosis nor a broader category of sexual orientation is a protected class. See Nabonzy v. Podlesky, 92 F.3d 446 (7th Cir. 1996); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990). Under rational basis review, there is no constitutional violation if “any reasonably conceivable state of facts” would provide a rational basis for government action. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). Rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Id. Similarly, it does not
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“authorize the judiciary to sit as a superlegislature to judge the wisdom or desirability of
legislative policy determinations.” Heller, 509 U.S. at 319 (citations omitted). Therefore,
legislatures must be given a presumption that they acted within their constitutional power.
Nordlinger v. Hahn 509 U.S. 1, 10 (1992).
B. The Act is rationally related to prison safety and security, which are legitimate governmental interests.
There can be no dispute that the provision of security must be central to all other prison
goals. Thornburgh v. Abbott, 490 U.S. 401, 415 (1989). Courts are obligated to defer to prison
officials'adoption of policies necessary to preserve security and internal order. Hewitt v. Helms,
459 U.S. 460, 474 (1983). In the prison environment, "safety of the institution's guards and inmates
is perhaps the most fundamental responsibility of the prison administration." Id. at 473. The
Seventh Circuit has repeatedly recognized this principle:
Judges should be cautious about disparaging disciplinary and security concerns expressed by the correctional authorities. American jails are not safe places, and judges should not go out of their way to make them less safe. Keeney v. Heath, 57 F.3d 579, 581 (7th Cir. 1995).
Less-restrictive-alternative arguments are too powerful: a prison always can do something, at some cost, to make prisons more habitable, but if courts assess and compare these costs and benefits then judges rather than wardens are the real prison administrators. Wolfish emphasized what is the animating theme of the Court's prison jurisprudence for the last 20 years: the requirement that judges respect hard choices made by prison administrators. Johnson v. Phelan, 69 F.3d 144, 145 (7th Cir. 1995), cert. denied, 519 U.S. 1006
(1996)(emphasis in original).
Indeed, the duty imposed by the Eighth Amendment on prison officials to “provide
humane conditions of confinement,” Farmer, 511 U.S. at 832, requires prison officials to take
reasonable measures to “’protect prisoners from violence at the hands of other prisoners.” - 14 -
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Farmer, 511 U.S. at 833 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S.823 (1988)). Violent assaults, of course, are not “part of the penalty that criminal offenders pay for their offenses.” Rhodes v. Chapman, 452 U.S.337, 347 (1981).
A prison official may enact a security measure, even one that impinges on medical needs, if the measure "was applied in a good faith effort to maintain or restore discipline." Whitley v. Albers, 475 U.S. 312, 320-21 (1986). In such situations, an official is liable only for acting "maliciously and sadistically for the very purpose of causing harm." Id. Constraints facing a prison official are relevant to whether his conduct can be characterized as "wanton." Wilson v. Seiter, 501 U.S. 294, 303 (1991). Thus, the "realities of prison administration" are relevant to the issue of deliberate indifference. Helling v. McKinney, 509 U.S. 25, 37 (1993).
Hence, prison officials, acting reasonably and in good faith, do not violate the Eighth Amendment because the resulting infliction of pain on the inmate would not be unnecessary or wanton. Rather, such a decision would be reasonable. Prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause. Farmer, 511 U.S. at 845.
In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. A prison official’s duty under the Eighth Amendment is to ensure ‘reasonable safety,’…a standard that incorporates due regard for prison officials’ ‘unenviable task of keeping dangerous men in safe custody under humane conditions.’ Id. (citations omitted); see also White v. Farrier, 849 F.2d 322, 325 (8th Cir.1988) ("Denial of medical care that results in unnecessary suffering in prison is inconsistent with contemporary standards of decency and gives rise to a cause of action under 42 U.S.C. § 1983. Actions without penological justification may constitute an unnecessary infliction of pain.") (emphasis added).
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It is undisputed that denial of hormonal therapy and sex reassignment surgeries is rationally related to prison safety and security. Even Plaintiffs’ prison security expert, Walter L. Kautzky, acknowledged that “Gender Identity Disorder and the presentation of effeminate characteristics create challenges in a prison system” (DFOF ¶ 27), and there is no question that the intent of hormone therapy and sexual reassignment surgery is to increase the presentation of feminine characteristics. See, Wis. Stat. § 302.386(5m)(a)(1). Kautzky also concedes that inmates who display effeminate characteristics are viewed as sexually available, which increases the possibility that the prisoner may be sexually assaulted by other prisoners (DFOF ¶ 28). There is no dispute that male inmates who appear more feminine are at an increased risk of victimization (DFOF ¶ 30) According to Kautzky, inmates presenting themselves as highly effeminate in a male prison present additional security concerns (DFOF ¶ 29). Kautzky also agrees that institutions should not crate conditions that would make inmates more vulnerable to assault. (DFOF ¶ 31).
Plaintiff Matthew Davison, unfortunately, has first-hand knowledge of the effects his hormone therapy has upon his safety in prison. Davison was both raped and molested while in prison, and is constantly harassed by other inmates. (DFOF ¶¶ 32, 33). Davison agrees that he is more of a target for this type of aggression by other male inmates because of the physical effects his body has seen on hormone therapy. (DFOF ¶ 32).
The crux of Kautzky’s report is an attempt to mitigate the difficulty posed by inmates who use hormones to increase their femininity by comparing them to other inmates who pose difficulties, such as inmate who have HIV or are mentally ill. However, the fact that other inmates pose security difficulties in the prison has no bearing on whether the legislature had a rational basis for passing Wis. Stat. § 302.386(5m). The legislature need not “strike at all evils at
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the same time or in the same way.” Sutker v. Illinois State Dental Soc., 808 F.2d 632, 635 (7th Cir. 1986) (citing Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610 (1935)). It is sufficient that there is a problem “at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical, Inc., 348 U.S. 483, 487-88 (1955). In this case, it is undisputed that limiting prisoners’ access to hormone therapy and sexual reassignment surgery makes them less effeminate, and as a result, less likely that they will be victimized by other inmates. DOC has an undisputable security interest in preventing these types of assaults. As this is a “conceivable state of facts” that provides a rational basis for state action, the defendants are entitled to summary judgment on plaintiff’s equal protection claim.
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CONCLUSION
Based upon the foregoing arguments, the defendants respectfully submit that they are
entitled to summary judgment on the following claims: (1) Plaintiff Moaton’s Eighth Amendment
as-applied challenge to Wis. Stat. § 302.386(5m); (2) plaintiffs’ Eighth Amendment facial
challenge to Wis. Stat. § 302.386(5m); (3) all claims brought by plaintiffs Sundstrom and
Blackwell; (4) all claims brought against defendants Humphreys and Nygren; (5) the plaintiffs
Fourteenth Amendment equal protection claim.
Dated at Madison, Wisconsin, this 31st day of July, 2007.
Respectfully submitted,
J.B. VAN HOLLEN Attorney General
s/JODY J. SCHMELZER Assistant Attorney General State Bar No. 1027796 Attorney for Defendants Department of Justice 17 West Main Street, PO Box 7857 Madison, Wisconsin 53707-7857 Telephone: (608) 266-3094 Fax: (608) 267-8906 E-mail: schmelzerjj@doj.state.wi.us
s/FRANCIS X. SULLIVAN Assistant Attorney General State Bar No. 1030932 Attorney for Defendants Department of Justice 17 West Main Street, PO Box 7857 Madison, Wisconsin 53707-7857 Telephone: (608) 267-2222 Fax: (608) 267-8906 E-mail: sullivanfx@doj.state.wi.us
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

KARI SUNDSTROM, ANDREA FIELDS, LINDSEY BLACKWELL, MATTHEW DAVISON, also known as Jessica Davison, and VANKEMAH D. MOATON,
Plaintiffs,
v.
MATTHEW J. FRANK, WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, WARDEN ROBERT HUMPHREYS, and MANAGER SUSAN NYGREN,
Defendants.

Case No. 06-C-112

ORDER DENYING MOTION FOR LEAVE TO AMEND (DOC. #104) AND DENYING MOTION TO RECONSIDER CERTIFICATION OF MODIFIED
CLASS DEFINITION (DOC. #104) On March 5, 2007, the plaintiffs filed a joint motion for leave to amend and to reconsider certification of a modified class definition. The plaintiffs request that the court, 1) grant their motion to amend the complaint and allow them to add Erik Huelsbeck, a/k/a Erika Huelsbeck, and Kenneth Krebs, a/k/a Karen Krebs as additional plaintiffs; 2) grant them leave to file a Fourth Amended Complaint, see Exhibit F, adding plaintiffs Huelsbeck and Krebs, and class allegations; and 3) grant their motion to reconsider the February 15, 2007, decision denying class certification, and certify a modified class under Federal Rule of Civil Procedure 23 of:

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All current or future residents housed in prisons identified in Wis. Stat. § 302.01 who have been, or will in the future be, denied hormone therapy or sex reassignment surgery to treat a serious medical need because of the Inmate Sex Change Prevention Act, 2005 Wisconsin Act 105, codified at Wis. Stat. § 302.386(5m). (Pl.’s Mot. ¶ 5.) The defendants oppose the plaintiffs’ motion and contend that allowing the plaintiffs to file a fourth amended complaint would result in substantial delay and unfairly prejudice the defendants. As for reconsideration of class certification the defendants submit that the proposed class still would not satisfy the typicality and numerosity requirements of Rule 23. Also, the defendants argue that allowing this case to proceed as a class action would result in substantial prejudice to the defendants because the scope of the lawsuit would be dramatically increased. Finally, the defendants assert that the plaintiffs’ submission is not a motion for reconsideration because the plaintiffs are not asking the court to reconsider its ruling on their first proposed class. Rather, according to the defendants, the plaintiffs are asking the court to rule for the first time on an entirely new definition of a proposed class.
MOTION TO AMEND THE COMPLAINT Rule 15(a) of the Federal Rules of Civil Procedure states that leave to file an amended complaint "shall be freely given when justice so requires." The Supreme Court has explained the meaning of "freely given" as used in Rule 15(a) by stating: In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of a movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. - the leave sought should, as the rules require, be freely given. Foman v. Davis, 371 U.S. 178, 182 (1962).
2
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The five named plaintiffs in this case maintain that they have Gender Identity Disorder (GID). They are proceeding on an Eighth Amendment medical care claim and a Fourteenth Amendment equal protection claim based on allegations that the defendants stopped or threatened to stop their hormone therapy medication to comply with Wis. Stat. § 302.386(5m)1. The third amended complaint (complaint) seeks an end to purported actions by the defendants that violate the plaintiffs’ Fourteenth Amendment right to equal protection and Eighth Amendment right to be free from cruel and unusual punishment, as well as a declaration that Wis. Stat. § 302.386(5m) is unconstitutional on its face. The court has entered a preliminary injunction, enjoining the defendants from withdrawing any hormone therapy which was prescribed to the plaintiffs as of January 11, 2006, and ordering the defendants to return the plaintiffs’ hormonal therapy to the levels in effect prior to the January 12, 2006, reduction.
The pending motions seek leave by the plaintiffs to file a fourth amended complaint naming two additional plaintiffs, Erik, a/k/a Erika, Huelsbeck and Kenneth, a/k/a Karen, Krebs. According to the proposed fourth amended complaint, Huelsbeck and Krebs, Wisconsin state prisoners who are being harmed because Wisconsin Department of Corrections (DOC) medical personnel have denied them hormones pursuant to Wis. Stat. § 302.386(5m). The proposed fourth amended complaint charges that Huelsbeck and Krebs were identified as male when born but since childhood have had an innate sense of being female; both have been diagnosed with GID; both experience severe psychological distress
1 The new law prohibits the use of state funds or “federal funds passing through state treasury to provide or to facilitate the provision of horm onal therapy or sexual reassignment surgery” for the treatm ent of transgender prisoners, juvenile detainees, or residents in forensic m ental health facilities in W isconsin. W is. Stat. § 302.386(5m).
3
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because their bodies do not conform to their female gender identity; and both have attempted suicide in the past and continue to experience depression or suicidal thoughts because of the psychological distress caused by their gender.
In support of the motion to amend, the plaintiffs contend that Wis. Stat. § 302.386(5m) is unconstitutional as applied to inmates who have a serious medical need for treatment for their GID. According to the plaintiffs,
Although both Ms. Huelsbeck and Ms. Krebs could file separate cases seeking hormones, the cases they would file to obtain the hormone therapy denied them because of the Act would be closely related to the present case. The most important facts regarding their cases – the expert testimony about what treatment is medically necessary for persons with GID – and the legal questions regarding whether the Constitution requires treatment for prisoners with GID and a serious medical need for such treatment are the same as the facts and law at issue in this case. (Pls.’ Supporting Br. at 5.) The plaintiffs assert that “refusing to provide hormones to an inmate with GID who has a serious medical need for them inflicts the same kind of serious harm caused by cutting someone off the therapy.” Id. at 4 (citing Declaration of Randi C. Ettner, Ph.D. ¶ 11.) Based on the current record, Huelsbeck and Krebs are unlike the plaintiffs and have never been prescribed hormone therapy by the DOC. However, Huelsbeck and Krebs claim that, because of Wis. Stat. § 302.386(5m), the DOC refused to even consider them as candidates for hormone therapy. The proposed fourth amended complaint states that both Huelsbeck and Krebs have “asked DOC medical personnel to evaluate [them] for treatment, but they have refused because 2005 Wisconsin Act 105 prevents them from providing hormone therapy.” (Proposed Fourth Amendment Complaint ¶¶ 73-74.) In Huelsbeck and
4
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Krebs’ opinion, hormones are medically necessary to treat their GID. However, neither inmate came into the DOC system taking feminizing hormones, although Huelsbeck took Depo-Provera for about three months several years ago. (Proposed Fourth Amended Complaint ¶ 54.)
There is a fundamental difference between the five named plaintiffs and the two proposed plaintiffs. The former have been prescribed and administered hormone therapy by the DOC2; the latter have not. Allowing Huelsbeck and Krebs to participate in this lawsuit as plaintiffs would expand this case to include the factual issue of whether hormone therapy is a medically necessary treatment for them individually. Expanding the nature of this lawsuit at this stage of the proceedings would prejudice the defendants unduly. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 (1971); Campania Mgmt. Co., Inc., v. Rooks, Pitts & Poust, 290 F.3d 843, 848 (7th Cir. 2002); Select Creations, Inc. v. Paliafito America, Inc., 830 F. Supp. 1213, 1217-18 (E.D. Wis. 1993).
It is clear that the plaintiffs are concerned that, if their motion to amend is denied, relief upon resolution of this case would be limited to prisoners who find themselves in the current plaintiffs’ situation, i.e., subject to withdrawal of hormone therapy because of
2 The pleadings indicated the following: Plaintiff Sundstrom was diagnosed with GID in 1990 at age 25 and has been on horm one therapy since 1990. During all periods of incarceration until January 12, 2006, the defendants have provided Sundstrom with feminizing hormones and testosterone blockers. Plaintiff Fields was diagnosed with GID in 1993 at age 16 and has been on horm one therapy since 1996. During all periods of incarceration until January 12, 2006, the defendants have provided Fields with feminizing hormone therapy. Plaintiff Blackwell was diagnosed as a transsexual in 1998 at age 15, at which tim e Blackwell was prescribed feminizing horm ones and began living full-tim e as a wom an. During all periods of incarceration until January 23, 2006, the defendants have provided Blackwell with fem inizing horm one therapy. Plaintiff Davison was diagnosed as a transsexual in June 2005 and has taken prescribed fem inizing horm ones continuously since July 2005. Plaintiff Moaton was diagnosed as a transsexual at Dodge Correctional Institution in Septem ber 2006. Moaton has taken prescribed fem inizing horm ones since 2000. At this tim e, the five plaintiffs are receiving horm one m edication pursuant to this court’s order.
5
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Wis. Stat. § 302.386(5m). Moreover, the plaintiffs point out that a blanket policy of failing to treat inmates with GID with hormone therapy can violate the Constitution. However, one of the plaintiffs’ claims for relief in this case is a declaration that Wis. Stat. § 302.386(5m) is unconstitutional and a ruling upon the constitutionality of the statute has the potential to impact more than the five plaintiffs in this case.
MOTION FOR RECONSIDERATION Turning to the motion for reconsideration, the court notes that Federal Rule of Civil Procedure 54(b) allows any order adjudicating fewer than all the claims to be revised at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. Motions to reconsider (or more formally, to revise) an order under Rule 54(b) are judged by largely the same standards as motions to alter or amend a judgment under Rule 59(e): to correct manifest errors of law or fact or to present newly discovered evidence. Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987) (quoting Keene Corp. v. Int’l Fid. Ins. Co., 561 F. Supp. 656, 665-66 (N.D. Ill. 1982), aff’d, 736 F.2d 388 (7th Cir. 1984) (citation and footnote omitted)), amended by, 835 F.2d 710 (7th Cir. 1987). Compare Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996) (providing nearly identical standard for motion under Rule 59(e)). The plaintiffs contend that a class action is the most timesaving and efficient way to address the issues related to the statute’s prohibition of medical treatment for “these plaintiffs” and for future inmates. The plaintiffs assert:
The inmate population in the custody of the Department of Corrections is and will likely continue to be dispersed among several prisons. Many of these inmates will not have the knowledge of the law or the financial resources to institute individual suits challenging the Act, future inmates will be
6
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affected by the Act, and those future inmates who have the knowledge and financial resources to file cases for themselves or who manage to find attorneys to file cases for them will create a multiplicity of lawsuits deciding the same or substantially similar questions about the constitutionality of the Act raised in the current case. These factors show the impracticability of joining all inmates harmed now and in the future by the Act and strongly support the certification of a class.
(Pls.’ Supporting Br. at 8.) The plaintiffs further contend that granting the relief sought in their
motion is well within the court’s discretion and will not prejudice the defendants.
On February 16, 2007, the court denied the plaintiffs’ motion for class
certification, reasoning, in part:
The principal allegations in this case are that the plaintiffs have been diagnosed with GID or transsexualism and are taking hormone therapy that is in danger or being withdrawn. (See Court’s Order of January 27, 2006) (discussing the dangerous effects of the withdrawal of hormone therapy). The plaintiffs propose a class which includes all prisoners “who have a strong persistent cross-gender identification and either a persistent discomfort with their sex or a sense of inappropriateness in the gender role of that sex.” However, the proposed class would increase the scope of this lawsuit beyond those claims upon which the named plaintiffs are proceeding. Moreover, potential claims of the proposed class members have not been shown to be common or typical to those of the five plaintiffs in this case.
(Court’s order of February 16, 2007, at 5.) The plaintiffs’ motion for reconsideration of the
court’s denial proposes a revised class. See infra. at 2. However, for the reasons stated in
this order with respect to the plaintiffs’ motion to amend the complaint as well as the reasons
set forth in the February 16, 2007, order, and because the plaintiffs have not presented newly
discovered evidence or shown that the order of February 16, 2007, contained a manifest error
of law,
7
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IT IS ORDERED that the plaintiffs’ motion for leave to amend (Doc. #104) is DENIED.
IT IS FURTHER ORDERED that the plaintiffs’ motion to reconsider certification of modified class definition (Doc. #104) is DENIED.
Dated at Milwaukee, Wisconsin, this 7th day of August, 2007. BY THE COURT s/ C. N. CLEVERT, JR. C. N. CLEVERT, JR. U. S. DISTRICT JUDGE
8
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 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

KARl SUNDSTROM, et al., Plaintiffs, v.
MATTHEW J. FRANK, et al., Defendants.

Case No. 06-C-0112 (CNC)

PLAINTIFFS' BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

INTRODUCTION Plaintiffs are transsexual1 inmates who have alleged that Act 105, which went into effect on January 24, 2006, is unconstitutional as applied to them and on its face because it violates both the Eighth Amendment's prohibition of cruel and unusual treatment and the Equal Protection Clause of the Fourteenth Amendment. Defendants ask for judgment on one of Plaintiffs' two legal theories- Plaintiffs' equal protection claim - and on Plaintiffs' request for facial relief. Defendants also seek summary judgment on Plaintiff Moaton's as-applied claim for hormone therapy and judgment as to Plaintiffs Sundstrom and Blackwell on mootness grounds. This case is currently set for trial on October 22, 2007.

Although there are some subtle differences in the way different sources define transsexual, the word is used in this Brief to describe those persons who meet the GID diagnostic criteria and have a serious medical need for hormone therapy or sex reassignment surgery. (PFOF ~~ 2, 7.)
Case 2:06-cv-00112-CNC Filed 08/30/07 Page 1 of 29 Document 138

ARGUMENT In the context of a summary judgment motion, "the non-movant need not ... persuade the court that her case is convincing, she need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact." Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994). In deciding the motion, the court must construe all evidence, and all reasonable inferences that can be drawn from the evidence, in the light most favorable to the nonmoving party. Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007). "Rule 56(c) mandates an approach in which summary judgment is proper only if there is no reasonably contestable issue offact that is potentially outcome-determinative." EEOC v. Sears, Roebuck & Co., 233 F.3d 432,437 (7th Cir. 2000) (emphasis supplied). The court is not to "make a credibility determination [or] choose between competing inferences," as these are functions for trial. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir. 1993). "Summary judgment is inappropriate when alternate inferences can be drawn from the available evidence." Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004).2

2

Defendants set forth the five elements of a permanent injunction, (Def. Br. 4), but direct their

Motion only to arguing that Plaintiffs cannot meet the first element, success on the merits. The disastrous

consequences that may result from refusing to provide medical care for GID (Plaintiffs' Proposed Findings

of Fact ("PFOF") ~~ 7, 14), show that no adequate remedy at law exists and that irreparable harm will result

without injunctive relief. Further, the risk of harm to Plaintiffs outweighs any potential harm to

Defendants, see IV.B.1 & 2, infra, and the public interest will be served by granting the constitutionally

mandated relief. Similarly, Defendants set out the requirements of the Prison Litigation Reform Act, 18

U.S.C. § 3626(a)(l) applicable to prospective relief, but fail to show any way in which that statute supports

their Motion.

2 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 2 of 29 Document 138

I. Plaintiffs' Evidence Shows Genuine Disputes of Material Fact Regarding Vankemah Moaton's Eighth Amendment Claim for Continued Hormones.
This Court should not grant Defendants' motion for summary judgment as to Vankemah Moaton' s as-applied Eighth Amendment claim because there remain genuine issues of material fact to be resolved at trial.
Defendants argue that Vankemah Moaton's as-applied challenge to the termination of her hormone therapy should be dismissed on summary judgment, despite the following facts developed in discovery: (1) DOC's own medical personnel have diagnosed Ms. Moaton with gender dysphoria and repeatedly prescribed these medically necessary hormones for her.3 (PFOF ~ 39)4; (2) Dr. Randi Ettner, an expert in GID diagnosis and treatment, has confirmed that Ms. Moaton has GID, that hormones are medically necessary for her, and that termination of her hormones would have devastating and potentially life-threatening consequences (PRESP ~ 4, PFOF ~ 40) (If hormones are unavailable the gender "dysphoria becomes crippling, and depression, substance abuse, autocastration or suicide result. ... Vankemah Moaton [has] undergone partial or complete hormonal reassignment. Discontinuation of these hormones can have devastating biological effects."); (3) Dr. Kevin Kallas, DOC's Mental Health Director, and Dr. David Burnett, DOC's Medical Director, agree that such therapy is medically necessary for some prisoners with GID (PFOF ~~ 8-13) and that taking a GID patient off

When Ms. Moaton first entered the Wisconsin prison system in September 2006, she was

prescribed delestrogen, estrace and spironolactone for GID. (PFOF ~ 39.) However, her hormone dosages

were tapered because of Act 105. (PFOF ~ 39.) Once Ms. Moaton was added as a plaintiff in this case,

DOC medical staff concluded that "legally the meds may be restarted," and accordingly restored hormones,

which would not have been terminated but for the passage of Act 105. (PFOF ~ 39.)

4

To preserve space and readability, Plaintiffs will cite only to their Proposed Findings of Fact

(PFOF) and Response to Proposed Findings of Fact (PRESP) in this brief. Citations to testimony and

supporting documents are set out in full in the Proposed Findings of Fact and Response to Proposed

Findings of Fact.

3 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 3 of 29 Document 138

of hormones could lead to physical symptoms as well as significant psychological consequences, such as suicidal ideation, anxiety, and depression (PFOF ~ 15); and (4) Defendants' expert in a similar case concluded that termination of hormones for someone already taking them is "cruel and clinically inappropriate." (PFOF ~ 41.)
Defendants' argument for summary judgment depends on two false premises: (1) that Ms. Moaton's limited invocation of her Fifth Amendment privilege during her deposition should result in exclusion of all evidence of her need for hormones; and (2) that their theory of defense depends on an individualized assessment of each plaintiff's medical need for hormones, which was thwarted by Ms. Moaton's invocation of the privilege.
As explained more fully in Plaintiffs' Brief in Opposition to Defendants' Motions in Limine, the first premise is false because exclusion of all evidence related to a fact in issue is an impermissible sanction for assertion of the privilege against self-incrimination. See, e.g., SEC v. Graystone Nash, Inc., 25 F.3d 187, 191 (3rd Cir. 1994) ("a complete bar to presenting any evidence, from any source, that would in all practical effect amount to the entry of an adverse judgment, would be an inappropriate sanction."); 8 Wright, Miller & Marcus, Fed. Prac. & Proc. Civ.2d § 2018 (Westlaw through 2007 update) ("To dismiss a party's action, or to grant an adverse judgment, or to foreclose him or her entirely from litigating an issue properly in the case, merely for claiming the constitutional privilege certainly makes resort to the privilege too 'costly.' It is difficult to believe that sanctions of this kind can be defended."). Moreover, Ms. Moaton has agreed to waive the privilege and permit Defendants to depose her about her use of hormones and other feminizing treatments, eliminating whatever limited harm to the Defendants'
4 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 4 of 29 Document 138

case may have arisen from invocation of the privilege. Even without testimony related to the period from January 2001 through September of2002, about which Ms. Moaton previously refused to testify, there is ample evidence of Ms. Moaton's current need for continued hormone therapy to take this case to a jury. For example, as noted above, Defendants' own medical professionals repeatedly have prescribed hormone therapy for Ms. Moaton,5 DOC Mental Health Director Kevin Kallas has testified that hormone treatment is medically necessary for some prisoners, and Defendants' expert in the Konitzer case has opined that terminating a prisoner who is already on hormones would be "cruel." (PFOF ~ 41.)
Defendants' second premise- that facts related to Ms. Moaton's particularized need for hormone treatment are relevant to their defense - is false, because they have offered no medical opinion to suggest that Ms. Moaton does not have a serious medical need for hormones. Defendants' only evidence supporting a finding that any plaintiff does not have a serious medical need for hormones is the testimony of Defendants' proffered psychology expert, Daniel Claiborn, that no person has such a need, because Gender Identity Disorder is not a valid psychiatric diagnosis and, even if it were, no treatment, including hormone therapy, would be "necessary." (PFOF ~ 42.) Dr. Claiborn specifically disclaimed any opinion about the validity of any particular plaintiff's diagnosis or need for treatment. (PFOF ~ 43.) Consequently, Defendants have not shown any way in which Ms. Moaton's limited invocation of her Fifth Amendment rights impaired their ability to defend this case. Only if they had chosen to offer individualized
Although the continuation of hormones was made possible by the court's order of December 22, 2006 (Docket No. 94), it was DOC doctors who decided that the hormones were still medically necessary since the order provided that defendants are "enjoined from withdrawing any hormonal therapy prescribed to Moaton and are directed to continue administration ofMoaton's hormone therapy at the level Moaton was receiving before that level was reduced to comply with" Act 105. !d. at 1-2 (emphasis added).
5 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 5 of 29 Document 138

medical testimony or other evidence to show that Ms. Moaton has no serious medical need for hormones or that knowing her history of prior hormone use was essential to determining such need could her refusal to answer a handful of questions about past hormone use affect their defense. Even if Defendants could present such medical testimony, the ample evidence showing that hormones are medically necessary for Ms. Moaton would preclude summary judgment.
All the facts in the record that relate to Ms. Moaton's individual need for hormones - her medical records, the testimony of experts, and the testimony of Defendants' own medical staff- support her claim. (PFOF ~~ 39-40.) Viewing these facts in the light most favorable to Ms. Moaton, as required under Rule 56, summary judgment on her as-applied challenge to the statute must be denied.
II. Disputed Facts Material To Whether Act 105 Is Facially Unconstitutional Preclude Granting Summary Judgment On Plaintiffs' Facial Challenge. In United States v. Salerno, 481 U.S. 739, 745 (1987), the Court wrote that a
statute will be struck down as unconstitutional on its face only where the challenger shows "that no set of circumstances exists under which the Act would be valid." Defendants' assertion that Plaintiffs' facial challenge must be dismissed prior to trial is wrong for two primary reasons, as explained in more detail below. First, Defendants misconstrue what it means for a statute to have a constitutional application, and therefore come to the incorrect conclusion that there are "sets of circumstances" where Act 105 would be constitutional. Supreme Court precedent makes clear that only the relevant applications are to be considered, rejecting states' attempts to defend legislation by pointing to the fact that some members of the general public remain unaffected. The Act
6 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 6 of 29 Document 138

is unconstitutional in all of its applications because the Act applies only where it makes a difference by actually preventing a DOC doctor from following her own medical judgment and providing medically necessary care. All of those applications violate the Eighth Amendment and the Equal Protection Clause.
Second, whether Plaintiffs can make out a facial challenge depends on the resolution of disputed factual issues - such as whether hormone therapy is necessary to meet a serious medical need so their facial challenge cannot be dismissed on summary judgment. Plaintiffs will demonstrate at trial that Act 105 prohibits prison doctors from prescribing specific medical care that is medically necessary for their patients, thus violating Plaintiffs' rights under the Eighth Amendment and the Equal Protection Clause.
A. The Act applies only when it bars doctors from prescribing medically necessary health care.
Defendants' argument that Act 105 is not facially invalid because it has many constitutional applications is based on a fundamental misunderstanding of what constitutes an "application" of a statute. Defendants assert that Plaintiffs' facial challenge fails because "the Act applies to all inmates, regardless of their diagnosis status." (Def. Br. 8.) They point to the obvious reality that the prohibition in Act 105 has no effect on thousands of inmates for whom no DOC doctor ever prescribes hormone therapy or sex reassignment surgery, and reason from there that the statute is constitutional as applied to all of those inmates. But the Act does not apply to inmates who do not have both GID and a serious medical need for hormones or sex reassignment surgery- it is simply irrelevant as to them.6 As the Court explained in Planned

6

The Act is relevant to- and therefore applies to- all inmates who have GID and would be

prescribed hormones or surgery by DOC physicians as medically necessary treatment but for the Act. This

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Parenthood ofSoutheastern Pennsylvania v. Casey, 505 U.S. 833, 894 (1992),
"[l]egislation is measured for consistency with the Constitution by its impact on those
whose conduct it affects." The Act, therefore, "must be judged by reference to those for
whom it is an actual rather than an irrelevant restriction.... " Id at 895. This construction
of "application" has been widely followed in cases applying Salerno.
Casey involved, in part, a challenge to a statutory spousal notification
requirement, and the state defended the provision:
... by pointing out that it imposes almost no burden at all for the vast majority of women seeking abortions. They begin by noting that only about 20 percent of the women who obtain abortions are married. They then note that of these women about 95 percent notify their husbands of their own volition. Thus, respondents argue, the effects of [the statutory provision] are felt by only one percent of the women who obtain abortions. For this reason, [the state argues,] ...the statute cannot be invalid on its face.
Id at 894. The Court rejected this argument, reasoning that "[t]he analysis does not end
with the one percent of women upon whom the statute operates; it begins there," since a
statute is judged "by its impact on those whose conduct it affects." !d. The "real target"
of the spousal notification provision in Casey "is married women seeking abortions who
do not wish to notify their husbands of their intentions and who do not qualify for one of
the statutory exceptions to the notice requirement." Id. at 895.
More recently, in Gonzales v. Carhart, 127 S. Ct. 1610 (2007), the Court
considered whether the so-called partial birth abortion statute was facially invalid
because it banned use of that procedure in all situations, with no exception for protecting
the health of the mother. The Court held that the statute's ban "applies to all instances in
which the doctor proposes to use the prohibited procedure, not merely those in which the
includes inmates with a serious medical need for these therapies who have not even been evaluated by DOC medical personnel because of the futility of such an evaluation. (PFOF ~ 31.)
8 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 8 of 29 Document 138

woman suffers from medical complications." Id. at 1639. Because the ban applied to a number of situations, only some of which were unconstitutional, the statute was not facially invalid.
If the Gonzales Court had adopted the argument advanced by Defendants here, it would have rejected the facial challenge because the statute banned the partial birth abortion procedure for all patients, even where no doctor had recommended it. But that is not what the Court did. Under both Casey and Gonzales, a statute applies for purposes of a facial challenge only when it actually bars treatment, such as when it prevents a DOC medical provider from administering medically necessary care. DOC doctors only prescribe the treatments prohibited by the Act when they are medically necessary for an inmate with GID. (PFOF '1!'1!13, 19.)
While the test for facial challenges is slightly different in the abortion context (Def. Br. 7-8), the definition of"application" is the same both under Salerno and the abortion cases. The primary difference between Salerno and Casey is how many applications of a statute- a "large fraction" under Casey, rather than all under Salernomust be unconstitutional before a facial challenge is sustained. Compare Casey, 505 U.S. at 895, with Salerno, 481 U.S. at 745. In both the abortion cases and cases following Salerno, courts have started the facial challenge analysis with the same conception of what qualifies as an application before considering the separate question of whether it is unconstitutional in a sufficient proportion of cases.
Indeed, the Seventh Circuit interprets application the same way as Casey and Gonzales in facial challenges outside the abortion context. In Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) and Daniels v. Area Plan Comm 'n, 306 F.3d 445 (7th Cir. 2002), the
9 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 9 of 29 Document 138

Seventh Circuit upheld as-applied challenges to statutes that provided the government

with authority to act but dismissed facial challenges on the ground that the challenged statutes had other constitutional applications. In doing so, the court considered only

applications that actually would be authorized by the statutes rather than conduct

unaffected by them.

In both Hece and Daniell, the courts looked at the authority actually conveyed

by the statutes, rather than at actions that the state could take regardless of the statute, as

Defendants would have the court do here. The laws at issue in Heck and Daniels apply

by allowing certain kinds of government actions that could not happen without the

challenged statutory authority, while in the present case the Act applies when it bars

some conduct that would take place absent the legal effect of the Act. In both situations, the question for the Court is whether any of those actual applications are constitutional,

rather than whether there is a constitutional problem in situations unaffected by the

restriction- or the authority- set forth in the statute. See Casey, 505 U.S. at 895; Gonzales, 127 S. Ct. at 1639.

7

In Heck, parents challenged a Wisconsin statute that allowed government officials to interview

children, without parental permission, where the officials suspected child abuse. The court held that the

statute's authorization of child interviews without parental permission was unconstitutional as applied to a

situation where the officials had no reasonable suspicion of abuse. 327 F.3d at 528. However, the court

rejected the facial challenge because there were situations in which the government could choose to

exercise this statutory authority in a constitutional manner, e.g., "when government officials interview a

child on public school property because they have defmite and articulable evidence giving rise to a

reasonable suspicion that a child has been abused by his parents or is [in] imminent danger of parental

abuse." Id at 528. In fmding constitutional applications of the statute, the court pointed to a situation

where the statute gave the officials authority that they could use in a constitutional manner, rather than to

situations (such as interviews where the officers sought and received parental consent) where the statute

would be irrelevant to their conduct.

8

Similarly, in Daniels, a state statute authorized a local planning commission to vacate covenants

restricting the use of private property. 306 F.3d at 449. Where the planning commission used its statutory

authority to vacate a covenant in order to further a private purpose, rather than a public one, the court ruled

that the statute authorized an unconstitutional taking. Id at 465-66. While the statute was unconstitutional

as applied in that situation, the court held that it was not facially unconstitutional because there were

circumstances under which the statute could be applied constitutionally, by, for example, using the

statutory authority to, "vacate a covenant [that] was rationally related to a public interest already authorized

by legislative enactment." Id at 468.

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Furthermore, none of the other cases cited by Defendants rejects a facial challenge by pointing to "applications" of a statute in situations where the statute is irrelevant. Instead, they either reject a facial challenge based on constitutional "applications" that are examples of government actions authorized by the statute, Home Builders Ass'n ofGreater Chicago v. US. Army Corps ofEngineers, 335 F.3d 607,61920 (7th Cir. 2003) (rejecting facial challenge where challenged authority could be exercised constitutionally in other contexts); or actions actually prohibited by the statutes, Ben's Bar v. Village ofSomerset, 316 F.3d 702,708,728 (7th Cir. 2003) (rejecting facial challenge to ordinance barring sale of liquor at sexually oriented business because application of the ordinance to this plaintiff was constitutional); or they find a statute facially unconstitutional, Joelner v. Village of Washington Park, 378 F.3d 613, 629 (7th Cir. 2004) (remarldng, on consideration of preliminary injunction, that challenged statute was likely facially unconstitutional).
B. The Act is unconstitutional every time it applies because it categorically prevents DOC medical providers from exercising their medical judgment to provide medically necessary treatment.
Plaintiffs' facial challenge cannot be dismissed on summary judgment because that challenge depends in part on the resolution of whether the medical care prohibited by Act 105 is necessary to meet a serious medical need. Defendants concede that they are required to "provide medically necessary treatment" (Def. Br. 8), but fail to grapple with
the reality that Act 105 prevents them from doing just that. (PFOF 11 8, 13, 28-29.)
Plaintiffs do not claim that they are constitutionally entitled to "whatever treatment [they] desire[]," as Defendants suggest. (Def. Br. 8.) Rather, Plaintiffs seek the hormones and surgery that the evidence shows DOC doctors would prescribe when medically necessary
11 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 11 of 29 Document 138

but for Act 105. (PFOF ~~ 28-29.) This evidence presents a genuine dispute of fact for trial.
Extensive authority demonstrates that prison officials' refusal to provide medically necessary care based on a blanket rule such as that in Act 105, rather than on a doctor's individualized medical judgment, constitutes deliberate indifference. See, e.g., De 'lonta v. Angelone, 330 F.3d 630, 635 (4th Cir. 2003) (Virginia Department of Corrections' "policy ... not to provide hormone therapy to prisoners, supports the inference that [defendant prison officials'] refusal to provide hormone treatment to De'lonta was based solely on the Policy rather than on a medical judgment concerning De'lonta's specific circumstances" in violation of the Eighth Amendment); Jones v. Simek, 193 F.3d 485, 488-91 (ih Cir. 1999) (prison doctor's refusal without explanation to follow specialist's medical judgment violated Eighth Amendment); Chance v. Armstrong, 143 F.3d 698,704 (2d Cir.1998) (Eighth Amendment prohibits treatment based on "ulterior motives" rather than "sound medical judgment"); Kosilek v. Maloney, 221 F.Supp.2d 156, 183-92 (D. Mass. 2002) (denial ofhormones to transgender inmate based on blanket policy, rather than individualized medical evaluation, constitutes deliberate indifference); Barrett v. Coplan, 292 F. Supp.2d 281, 286 (D.N.H. 2003) ("the Eighth Amendment does not permit necessary medical care to be denied to a prisoner because the care is expensive or because it might be controversial or unpopular. ... A blanket policy that prohibits a prison's medical staff from maldng a medical determination of an individual inmate's medical needs and prescribing and providing adequate care to treat those needs violates the Eighth Amendment"); Allard v. Gomez, 9 Fed. Appx. 793 (9th Cir. June 8, 2001).
12 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 12 of 29 Document 138

As will become clear at trial, disputes of fact divide the parties regarding whether hormone therapy and sex reassignment surgery are medically necessary treatments for individuals with GID. Plaintiffs have submitted evidence that hormone therapy is medically necessary for many individuals with GID, and that sex reassignment surgery is medically necessary for some ofthem. (PFOF ~~ 7, 11, 13, PRESP ~~ 1, 3, 5.) Several DOC medical administrators agree that hormone therapy and sex reassignment surgery are medically necessary for some people with GID (PFOF ~~ 8-10, 12), and that DOC provided medically necessary hormone therapy for inmates with GID prior to the passage of Act 105. (PFOF ~ ~ 13, 19.) In contrast, Defendants' proffered expert has asserted that neither form of treatment barred by Act 105 is ever medically necessary. (PFOF ~ 42.) This dispute of fact precludes summary judgment on Plaintiffs' challenges to Act 105, both facial and as-applied.
Defendants' assertions that hormone therapy is not medically necessary for every inmate with GID, and that sex reassignment surgery is not medically necessary for any individual Plaintiff (Def. Br. 9), both miss the point: Act 105 prohibits a DOC doctor from prescribing either of these treatments. Additionally, DOC doctors do not even evaluate some inmates who have a serious need for hormones because the Act makes the evaluation futile. (PFOF ~ 31.) This denial of medical care without any medical basis violates the Eighth Amendment. The fact that some inmates (even those with GID) do not have a serious medical need for either treatment is beside the point. In those situations, Act 105 presents no bar and causes no harm.
13 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 13 of 29 Document 138

III. Kari Sundstrom and Lindsey Blackwell's Claims for Declaratory and Injunctive Relief Are Not Moot. Defendants seek dismissal of the claims of Plaintiffs Kari Sundstrom and Lindsey
Blackwell on the grounds that their release from prison on supervised release renders their claims moot.9
Although a change in the relations between the parties during the course of litigation may render a case moot, if there is a reasonable likelihood that in the future the ------plainti-ff-wiU-again-be-subjeGted-to-the-defendant..:.s-allegedly-unlawful-eonduet-,the-ease-is-----not moot. See Kikimura v. Turner, 28 F.3d 592, 597 (ih Cir. 1994). "[T]he burden of proving mootness- which is on the defendant- 'is a heavy one."' !d. (quoting United States v. WT Grant Co., 345 U.S. 629, 633 (1953)).
A prisoner's unconditional release from prison generally moots any declaratory or injunctive claims challenging a prison policy, since a former prisoner would have to be
° convicted of a crime again in order to be subject to the policy. 1 Courts consider the
possibility of a plaintiff being convicted of a crime in the future too speculative to confer standing. See City ofLos Angeles v. Lyons, 461 U.S. 95, 103 (1983) (no standing to challenge arrest practices, because court assumes conduct in conformity with law to avoid prosecution and conviction, as well as arrest). However, release on parole does not necessarily render declaratory or injunctive claims challenging prison policies moot,

9

Defendants also ask that Robert Humphreys, the Warden at Racine Correctional Institution (RCI),

and Susan Nygren, Manager of the Health Services Unit at RCI, be dismissed as defendants because none

of the current plaintiffs are housed at RCI. Plaintiffs do not oppose the dismissal of Mr. Humphries and

Ms. Nygren, but reserve the right to seek to amend the pleadings should a plaintiff be assigned to RCI prior

to judgment.

10

None ofthe cases cited by Defendants at page 11 of their Brief other than Kerr v. Farrey, 95 F.3d

472 (7th Cir. 1996), seen. 8, involves conditional release. In contrast to the decisions in Morales v.

Schmidt, 489 F.2d 1335, 1336 (7tl1 Cir. 1973), decision on reh'g en bane, 494 F.2d 85 (7tl1 Cir. 1974);

Chapman v. Pickett, 586 F.2d 22,26 (7tl1 Cir. 1978), discussed infra., none of these courts mentioned any

conditions on the plaintiffs' release or transfer from the facility or unit that could result in their return to the

facility where the allegedly unconstitutional conditions existed.

14 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 14 of 29 Document 138

because a parolee could be returned to prison for violating conditions of release, even if

the violations do not amount to a criminal act or would not lead to criminal prosecution.

See Morales v. Schmidt, 489 F.2d 1335, 1336 (7th Cir. 1973), decision on reh'g en bane, 494 F.2d 85 (i11 Cir. 1974); Chapman v. Pickett, 586 F.2d 22, 26 (i11 Cir. 1978)11 ; accord, Armstrong v. Davis, 275 F.3d 849, 860-61, 866 (9th Cir. 2001).

Where circumstances make it likely that a plaintiff will return to the prison setting

in which she again will be subjected to the allegedly unlawful practice, the plaintiffs

claim is not moot. Compare Washington v. Harper, 494 U.S. 210,218-19 (1990)

(challenge to involuntary administration of medication did not become moot when

prisoner transferred out of prison's psychiatric center where medical history indicated

strong likelihood of return to psychiatric center, where he could be subject to involuntary medication again); Williams v. Anderson, 959 F.2d 1411, 1417 (i11 Cir. 1992) (same);

Clark v. Brewer, 776 F.2d 226, 229 (8th Cir. 1985) (prisoner retained standing to

challenge conditions in "close management" unit, because recent disciplinary reports

resulted in "reasonable expectation" that prisoner would return to close management);
with Knox v. McGinnis, 998 F.2d 1405, 1412-15 (i11 Cir. 1993) (claim challenging

practices in segregation moot when prisoner transferred out of segregation and no

particular likelihood of his return to segregation).

In this case, Plaintiffs Kari Sundstrom and Lindsey Blackwell have been released

from prison, but both remain on extended supervision and thus have a substantial

11

Defendants cite Kerr, 95 F.3d at 475, for the proposition that release on parole renders a claim for

injunctive relief moot. (Def. Br. 11.) Kerr did state that one of plaintiff's injunctive claims (but not

another) was mooted by his release on parole. However, the court in Kerr did not engage in any analysis of

the plaintiff's risk of reincarceration and failed to address Chapman or Morales. The court cited Lyons, a

case involving a challenge to arrest procedures by individuals who would not be subject to arrest again

unless they committed a crime, and Knox v. McGinnis, 998 F.2d 1405 (7th Cir. 1993), a case involving the

transfer of a prisoner, not release on parole, but did not explain how these cases apply to parolees who can

be returned to prison for violations of their conditions of release that would not otherwise be criminal.

15 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 15 of 29 Document 138

likelihood of returning to prison, where they will be subject to Act lOS's prohibition on hormone therapy. (PFOF ~~ 44-47.) Under DOC regulations, an offender on parole or extended supervision may be revoked and returned to prison if she "fails to comply with the written conditions or rules of his or her supervision." Wis. Adm. Code,§ DOC 328.04(5). The conditions and rules of supervision must include requirements that the offender, inter alia, "[i]nform the [parole] agent of his or her whereabouts and activities as directed"; "[s]ecure advance approval from an agent for a change of residence or employment ..."; "[o]btain the advance permission of an agent and a travel permit before leaving the state"; "[o]btain advance permission from an agent to purchase, trade, sell, or operate a motor vehicle"; "[m]ake himself or herself available for searches ordered by the agent ..."; "[r]efrain from the abuse of alcohol ...";attend periodic face-to-face meetings with the agent; and "[f]ollow any specific rules that may be issued by an agent to achieve the goals and objectives of this chapter." Wis. Adm. Code,§ DOC 328.04(3) & (4); see also PFOF ~~ 44-47. Because these conditions apply to Ms. Sundstrom and Ms. Blackwell, they may have their extended supervision revoked and return to custody without committing or being convicted of a criminal act.
The state cannot argue otherwise, given its attempts to return Kari Sundstrom to prison. On April20, 2007, a criminal complaint against Ms. Sundstrom was filed in Dane County Circuit Court. (PFOF ~ 46.) A felony warrant was issued the same day. (PFOF ~ 46.)12 The state thus views Ms. Sundstrom's return to prison as a "virtual certainty," not a matter of speculation. Clark, 776 F.2d at 229. For Lindsey Blackwell,
12 The DOC directory, Vinelink, lists Ms. Sundstrom has having "absconded." (PFOF ~ 45.) "Absconding" results in issuance of a warrant, Wis. Adm. Code§ DOC 328.14(1), and is another grounds for revocation of parole.
16 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 16 of 29 Document 138

too, another arrest or violation of parole conditions, though not resulting in a criminal prosecution, would be sufficient to revoke her supervised release and return her to prison.
IV. There Is a Genuine Dispute of Fact Whether Act 105 Violates the Equal Protection Clause of the Fourteenth Amendment. A. Plaintiffs' evidence shows that Act 105 intentionally discriminates between similarly situated classes. "[T]he Constitution prohibits intentional invidious discrimination between
Nabozny v. Podlesny, 92 F.3d 446, 457 (ih Cir. 1996). The evidence offered by Plaintiffs shows that Act 105: (1) singles out a definable minority, transsexuals, (2) denies them necessary medical care not denied other similarly situated inmates who are not transsexual, and (3) discriminates intentionally.
Transsexuals are individuals with severe or profound GID, a medically recognized health condition defined by a conflict between assigned sex and gender identity and by clinically significant psychological distress or impairment. (PFOF ~~ 2, 4.) Any treatment for GID that seeks to change gender identity is futile. (PFOF ~ 5.) The only medical treatment that effectively relieves suffering caused by severe GID is hormone therapy or surgery to bring anatomy and appearance into alignment with gender identity. (PFOF ~~ 7-8, PRESP ~~ 1, 3, 5.) Accordingly, persons who meet the GID diagnostic criteria and have a serious medical need for hormone therapy or sex reassignment surgery are a definable minority -transsexuals. (PFOF ~~ 2, 4, 7, PRESP ~~ 1, 3, 5.)
The evidence also shows that the classification created by Act 105 discriminates between similarly situated classes. By its terms, Act 105 categorically prohibits hormone
17 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 17 of 29 Document 138

therapy or surgery that is intended "to alter [a prisoner's] physical appearance so that the [prisoner] appears more like the opposite gender." Wis. Stat. Ann. § 302.386(5m). In doing so, Act 105 categorically denies access to medical treatment that is neededuniquely -- by transsexual prisoners, but does not categorically deny access to medical treatment that is needed by other prisoners (including hormone therapies and surgeries that are not intended to induce gender transition, such as treatments for hormone deficiencies or estrogen treatments for post-menopausal women). (PFOF, 20.)
Plaintiffs' evidence shows further that the discrimination effected by the Act is intentional. Discrimination is intentional "whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350,352 (1918); see also Snowden v. Hughes, 321 U.S. 1, 8 (1944) ("[Intentional discrimination] may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself.") (citations omitted). Act 105 is directed only against medical treatment that is needed by transsexual people. Wis. Stat. Ann. § 302.386(5m).13 Moreover, in practice, Act 105 is enforced only against transsexual people. (PFOF ,, 2224, 29); see also ML.B. v. S.L.J., 519 U.S. 102, 126-27 (1996) (distinguishing disparate enforcement from disparate impact).

13

The legislative history of Act 105 offers additional evidence that the Act was directed intentionally

at transsexual people (PFOF ~~ 21-24).

18 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 18 of 29 Document 138

B. Plaintiffs' evidence shows that Act 105 cannot withstand the Constitutionally-mandated level of scrutiny.
In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court held that, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." !d. at 89-90; see also Beard v. Banks, 126 S. Ct. 2572, 2580 (2006) (Turner standard requires "more than simply a logical relation;" it requires "a reasonable relation") (emphasis in original). In doing so, -------the-Geurt-identi-fied-'-'-several-faeters-..-.relevant-in-determining-the-reasenableness-ef-the:------regulation at issue:" (1) whether "the governmental objective [is] a legitimate and neutral one" and whether there is "a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it;" (2) "whether there are alternative means of exercising the right that remain open to prison inmates;" (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally;" and (4) whether "the existence of obvious, easy alternatives" suggests "an 'exaggerated response' to prison concerns." Turner, 482 U.S. at 89-90 (quotation omitted).
In the Seventh Circuit, the Turner standard is the standard under which a court evaluates a classification that is neither a suspect class such as race nor involves a fundamental right. In Williams v. Lane, 851 F.2d 867 (ih Cir. 1988), cert. denied sub nom. Lane v. Williams, 488 U.S. 1047 (1989), the Seventh Circuit, recognizing that "[p]risoners do not surrender their rights to equal protection at the prison gate," id. at 881, struck down the denial of equal access to a non-fundamental right ("programming and living conditions," id., specifically, "educational and occupational instruction, recreational opportunities, and food service," id. at 874) based on a classification not
19 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 19 of 29 Document 138

deemed suspect ("protective custody prisoners[]," id. at 873). !d. at 881-82. In doing so, the Court applied the Turner standard, id. at 876-77, ultimately accepting the factual finding that "[defendants'] purported justification in terms of security concerns [was] an arbitrary and exaggerated response and mask[ed] defendants' real delinquencies," id. at 881. Because the classification at issue similarly employs what Defendants claim is a non-suspect classification to deny equal access to a non-fundamental right, it, too, would be subject to the Turner standard. 14 See also, e.g., Ghashiyah v. Wisconsin Dep 't of Corrections, No. 04-C-0176, 2007 WL 1029523, at *5 (E.D. Wis. Mar. 30, 2007) (classification that denied non-suspect class equal access to non-fundamental right subject to Turner standard); Shaw v. Smith, No. 04-C-979, 2006 WL 587667, at *12 (E.D. Wis. Mar. 10, 2006), aff'd, 206 Fed. Appx. 546 (ih Cir. 2006) (same).
Because Plaintiffs' evidence shows that Act 105 cannot withstand the Turner standard, there are genuine disputes of material fact that preclude summary judgment on Plaintiffs' equal protection claim. 15

14

Compare Johnson v. California, 543 U.S. 499, 509-12 (2005) (fmding race classification should

be subjected to strict scrutiny rather than the Turner standard, because the Court had previously subjected prison race classifications to strict scrutiny, because banning race discrimination "bolsters the legitimacy of the entire criminal justice system," and because the Court had "refused to defer to state officials' judgments

on race in other areas where those officials traditionally exercise substantial discretion."). But see n.13

infra.

15

Even if the Turner standard is not the standard under which a court evaluates a classification of the

type at issue, there are genuine disputes of material fact that preclude summary judgment on Plaintiffs'

equal protection claim.

Plaintiffs' evidence shows that Act 105 cannot withstand even rational basis review. See§§

IV.B.l.a., IV.B.2. infra; see also City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)

("[T]he classification drawn by the statute [must be] rationally related to a legitimate state interest.")

(citations omitted). This is especially so in light of the fact that the legislative history of Act 105 reveals a

discriminatory intent against transsexual people. (PFOF ~~ 21-24); see also Lawrence v. Texas, 539 U.S.

558, 580 (2003) (O'Connor, J., concurring) ("When a law exhibits such a desire to harm a politically

unpopular group, we have applied a more searching form of rational basis review to strike down such laws

under the Equal Protection Clause.").

Because Act I05 cannot withstand even rational basis review, Plaintiffs need not prevail on their

argument that Act 105 is instead subject to intermediate scrutiny because it is also a sex-based

classification. Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618 (1985) ("[I]fthe statutory scheme

20 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 20 of 29 Document 138

1. Plaintiffs' evidence shows that Act 105 is not justified by Defendants' interest in maintaining prison security, because it is not reasonably related to it.
Although maintaining prison security is a legitimate interest, the Seventh Circuit
has admonished that "we do not read anything in [the case law] as requiring this court to
grant automatic deference to ritual incantations by prison officials that their actions foster
the goals of order and discipline." Lock v. Jenkins, 641 F.2d 488, 498 (ih Cir. 1981);
accord Williams, 851 F.2d at 886 (Flaum, J., concurring) ("[P]rison officials whose
actions are challenged cannot avoid court scrutiny by reflexive, rote assertions that
existing conditions are dictated by security concerns and that the cost of change is
prohibitive."); see also, e.g., Martin v. Rison, 741 F. Supp. 1406, 1425 (N.D. Cal. 1990),
vacated as moot sub nom. Chronicle Publ'g Co. v. Rison, 962 F.2d 959 (9th Cir. 1992),
cert. denied, 507 U.S. 984 (1993) ("[T]he word 'security' cannot be just a label invoked
to shield all actions from scrutiny."). Because Plaintiffs' evidence shows that Act 105 is
not reasonably related to Defendants' interest in maintaining prison security, there are
cannot pass even the minimum rationality test, our inquiry ends."); see also United States v. Virginia, 518 U.S. 515, 533 (1996) (proffered justification for sex-based classification must be "exceedingly persuasive"). Act 105 is, however, a sex-based classification. By its terms, Act 105 is intended to prohibit "[the alteration ofJ [a prisoner's] physical appearance so that the [prisoner] appears more like the opposite gender." Wis. Stat. Ann. § 302.386(5m). The legislative history of Act 105 only confirms the intent to enforce sex-stereotyped physical appearance. (PFOF ~~ 21-24.) The Supreme Court has long recognized that enforcement of sex stereotypes is a form of sex discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228,250-51,256 (1989); see also, e.g., Bel/aver v. Quanex Co1p., 200 F.3d 485 (71h Cir. 2000); Doe ex ret. Doe v. City ofBellville, 119 F.3d 563 (7th Cir. 1997), vacated on other grounds sub nom City ofBellville v. Doe ex rel. Doe, 523 U.S. 1001 (1998). Numerous courts have recognized that enforcement of sex stereotypes against transsexual people is no less a form of sex discrimination. See, e.g., Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City ofSalem, 378 F.3d 566 (6th Cir. 2004); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213 (1 51 Cir. 2000); Schwenkv. Hartford, 204 F.3d 1187 (9th Cir. 2000); Creedv. Family Express Corp., No. 3:06-CV-465RM, 2007 WL 2265630 (N.D. Ind. Aug. 3, 2007); Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006); Mitchell v. Axcan Scandipharm, Inc., No. Civ. A. 05-243, 2006 WL 456173 (W.D. Pa. Feb. 17, 2006); Tronetti v. TLC Healthnet Lakeshore Hasp., No. 03-CV-0375E(SC), 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003); Doe v. United Consumer Fin. Servs., No. 1:01 CV 1112,2001 WL 34350174 (N.D. Ohio Nov. 9, 2001). But see Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7u' Cir. 1984) (fmding in a case that pre-dates Price Waterhouse that discrimination against a transsexual did not violate Title VII's prohibition on sex discrimination because of the court's nowdiscredited narrow interpretation of Congressional intent).
21 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 21 of 29 Document 138

genuine disputes of material fact that preclude summary judgment on Plaintiffs' equal protection claim.
a. Plaintiffs' evidence shows that Act 105 does not rationally further Defendants' interest in maintaining prison security.
Even if transsexual prisoners who present femininely are at risk of assault at the hands of male prisoners, Plaintiffs' evidence shows that denying the medical treatment at issue does not rationally further Defendants' interest in mitigating the risk of assault. By definition, male-to-female transsexuals experience a persistent discomfort with their assigned male sex and a strong female gender identity. (PFOF ~~ 2-4.) To alleviate the psychological distress or impairment caused by their GID, many such individuals whose gender identity is female express it through their appearance, mannerisms, name and pronoun choices, or by otherwise identifying and expressing themselves as women. (PFOF ~ 6.) Significantly, many seek to do so even absent surgery or hormone therapy. (PFOF ~~ 6, 18.) Thus, even without the medical treatments at issue, many male-tofemale transsexual prisoners will still identify or present themselves femininely, and therefore will still be at risk of assault at the hands of male prisoners. 16 Defendants' mischaracterization of Plaintiffs' expert's testimony does not change the analysis. The relevant inquiry is not whether transsexual prisoners who present femininely are at risk of assault, but rather whether denying hormones or surgery mitigates any such risk. Because denying Plaintiffs hormones or surgery does not reduce any risk of assault, it does not rationally further Defendants' interest in mitigating the risk of assault.

16

Female transsexual inmates- those for whom at least hormones are medically necessary- are

highly likely to express their feminine identity, since their willingness to accept medically-prescribed

hormones in prison notwithstanding any risks they perceive from appearing feminine in prison (PFOF ~ 18)

strongly suggests a similar willingness to express their femininity in other ways.

22 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 22 of 29 Document 138

In Turner, the Supreme Court struck down a prison regulation that restricted the right to marry. In doing so, the Court rejected "[t]he security concern emphasized by [the government] ... that 'love triangles' might lead to violent confrontations between inmates." Turner, 482 U.S. at 97 (citation omitted). The Court did not question the security concern proffered by the prison officials but instead rejected the regulation as unrelated to serving that concern: " [c]ommon sense ... suggests that there is no logical connection between the marriage restriction and the formation of love triangles: surely in prisons housing both male and female prisoners, inmate rivalries are as likely to develop without a formal marriage ceremony as with one." Id at 98. In other words, because the regulation did not meaningfully mitigate the risk of violence, it did not rationally further the government's interest in reducing the risk of violence.
Similarly, inReedv. Faulkner, 842 F.2d 960 (ih Cir. 1988), the Seventh Circuit reinstated a challenge to a prison regulation that prohibited the wearing of dreadlocks. In doing so, the Court rejected "a security concern for potential racial conflict from the professed Rastafarian belief that dreadlock symbolizes black superiority." Id at 963. It did so because "it is not easy to see how forcing Rastafarians to cut their hair is going to change this belief." Id Again, because the regulation did not meaningfully mitigate the risk of violence, it did not rationally further the government's interest in mitigating the risk of violence. In Reed, the Seventh Circuit recognized that "to suppose that the wearing of dreadlocks would lead to racial violence is ... the piling of conjecture upon conjecture." Id Similarly, here the suggestion that denying hormones to inmates with GID will reduce their risk of assault is nothing more than "conjecture upon conjecture." (PFOF ~~ 32, 35-36.)
23 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 23 of 29 Document 138

Employing similar reasoning, the Ninth Circuit struck down a prison regulation
prohibiting same-sex affection between prisoners and visitors. Whitmire v. Arizona, 298
F.3d 1134 (91h Cir. 2002). "[T]he [government] assert[ed] that its visitation policy
protect[ed] inmates from being labeled as homosexuals and from being targeted for
physical, sexual, or verbal abuse on account of such labeling." Id at 1136. The·
regulation, however, did not meaningfully mitigate the risk of violence:
The [government's] visitation policy ... does not possess a common-sense ------connection-to-the-concern-against-homosexual-labeling-;;;;-Gommon-sense:----------·
indicates that an inmate who intends to hide his homosexual sexual orientation from other inmates would not openly display affection with his homosexual partner during a prison visit. Rather, prisoners who are willing to display affection toward their same-sex partner during a prison visit likely are already open about their sexual orientation.... In situations like this, [the government's] policy prohibiting same-sex displays of affection during visitation does nothing to prevent the marking of homosexual prisoners.
Id (citation omitted).
For these reasons, the Act does not rationally further Defendants' interest in
mitigating any such risk. 17

17

In order to determine whether Act 105 furthers Defendants' purported security interest, the court

should also inquire whether the asserted interest is "pretextual," Williams, 851 F.2d at 877; see also id. at

881 ([un]mask[ing] [the government's] real delinquencies") (emphasis added).

Plaintiffs' evidence shows that Defendants' proffered interest in maintaining prison security is

pretextual. The only correctional expertise offered with respect to Act 105 is that of Defendants'

correctional medical personnel who opined that the harm caused by the Act far outweighed any benefits,

which failed to include an increase in prison security. (PFOF ~ 26.) The legislative history evidences anti-

transsexual animus which is neither a legitimate nor neutral interest. (PFOF ~~ 21-24); see also United

States Dep 't ofAgric. v. Moreno, 413 U.S. 528, 534 (1973) ("[I]fthe constitutional conception of 'equal

protection of the laws' means anything, it must at the very least mean that a bare [governmental] desire to

harm a politically unpopular group cannot constitute a legitimate governmental interest."). That the

security interest is pretextual is further confirmed by the overinclusiveness and underinclusiveness of the

classification - Defendants claim Act 105 would protect transsexual prisoners, who are adequately

safeguarded from assault by alternative measures (PFOF ~ 36), but do not claim that it would protect other

prisoners who present femininely or who otherwise are at risk of assault. See also Williams, 851 F.2d at

875 (rejecting proffered interest in prison security because classification included not only prisoners in

administrative segregation for disciplinary purposes, who posed security concerns, but also prisoners in

administrative segregation for protective purposes, who did not); id. at 875 (rejecting proffered interest in

prison security because classification included only select scenarios in which prison security was

compromised by interaction between prisoners in administrative segregation and prisoners in general

24 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 24 of 29 Document 138

b. Plaintiffs' evidence shows that there are no alternative means of accessing the medical treatment at issue that remain open to prisoners.
The evidence submitted by Plaintiffs shows that, on account of Act 105, transsexual prisoners have no access to hormones or sex reassignment surgery - medical treatment that they uniquely need. (PFOF ~~ 7, 8, 28, 29.) See Johnson v. Daley, 339 F.3d 582, 587-88 (ih Cir. 2003) ("States have extra obligations toward prisoners and must provide care appropriate to their serious medical needs because imprisonment takes away their ability to fend for themselves.") (citing DeShaney v. Winnebago County Dep 't ofSoc. Servs., 489 U.S. 189 (1989)). Because "other avenues" do not "remain available for the exercise of the asserted right," this Court need not "be particularly conscious of the measure ofjudicial deference owed to corrections officials in gauging the validity of the regulation," Turner, 482 U.S. at 90 (quotation and citation omitted), especially since Act 105 is not based on such discretion.
c. Plaintiffs' evidence shows that accessing hormones and surgery has no significant impact on prison guards or other prisoners, or on the allocation of prison resources.
Recognizing that, "[i]n the necessarily closed environment of the correctional institution, few changes will have no ramifications on the liberty of others or on the use of the prison's limited resources for preserving institutional order," the Supreme Court has held that the proper inquiry is whether "accommodation of an asserted right will have a significant 'ripple effect' on fellow inmates or on prison staff." Turner, 482 U.S. at 90 (quotation and citation omitted) (emphasis added); see also Williams, 851 F.2d at 876 (discussing alternatives "without any significantly increased security burdens") (emphasis
population); Abbott v. Smaller, 1990 WL 131359, *3 (E.D. Pa. Sept. 5, 1990) (rejecting proffered interest in prison security because classification included only select scenarios in which prison security was compromised by interaction between prisoners of different races).
25 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 25 of 29 Document 138

added); id at 885 ("The increased administrative burden that the [government] assert[s] a decision in [the prisoners'] favor would impose upon the prison system is inconsequential when compared with the value of a proper and humane system."). Plaintiffs' evidence shows that accessing the medical treatment at issue has no significant adverse impact. See § IV.B.l.a. supra; §§ IV.B.l.d., IV.B.2. infra. As a result, this Court need not "be particularly deferential to the informed discretion of corrections officials." Turner, 482 U.S. at 90 (citation omitted).
d. Plaintiffs' evidence shows that Act 105 is an exaggerated response to defendants' prison security concern.
Plaintiffs' evidence shows that Act 105 is an exaggerated response to Defendants' prison security concern. (PFOF ~~ 32, 35-36.) "[I]f an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard." Turner, 482 U.S. at 91. Here, to mitigate the risk of assault, Defendants can avail themselves of alternatives that already exist in light of Defendants' constitutional duty to protect prisoners, e. g., closer monitoring, transfer of the vulnerable inmate or the aggressor to an alternative housing unit, and the like. (PFOF ~, 36-38); see also Farmer v. Brennan, 511 U.S. 825 (1994) (constitutional duty to protect prisoners includes transsexual prisoners). The sufficiency of these alternatives is confirmed by the fact that, before Act 105 was enacted, transsexual prisoners who presented femininely - including those who had access to hormones were adequately protected from assault at the hands of male prisoners. (PFOF ~~ 34-35; PRESP ~ 9); see also Turner, 482 U.S. at 98-99 (rejecting government's security concern
26 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 26 of 29 Document 138

because, before prison regulation was promulgated, prisoners who married were adequately protected from violence); id. at 99 (rejecting government's rehabilitation concern because only one prisoner who married exhibited excessive dependency, and finding that prison regulation "operated on the basis of excessive paternalism"); Williams, 851 F.2d at 876 ("[The government] did have the ability to overcome security and operational concerns when it chose to do so."); Kosilekv. Maloney, 221 F. Supp.2d 156, 194 (D. Mass. 2002) (prison administrator ordered to assess any security concerns presented by starting an inmate with GID on hormones in light of the fact that the inmate "is already living largely as a female in the general population of a medium security male prison" without resulting "security problems."). 18 This is only confirmed by the fact that Act 105 was enacted against the advice ofDefendants' own correctional staff. (PFOF ~~ 25-29, 33); see also O'Lone v. Estate ofShabazz, 482 U.S. 342, 349 (1987) (deference owed to "prison administrators, who are actually charged with and trained in the running of the particular institution under examination") (quotation omitted). In light of the sufficiency of these alternatives, Act 105 is an exaggerated response to Defendants' prison security concern.

18

Defendants' argument that Jessica Davison's rape occurred because of her use of hormones in

prison cannot reasonably suggest that there is no genuine dispute of fact that denying hormones would

significantly reduce the risk of inmate assault. Ms. Davison had been taking hormones before she was

incarcerated and she did not testify that her hormone usage during prison led to her rape. Even if she had, it

is irrational to assume that Ms. Davison or anyone else could know that she would not have been raped if
she had never taken hormones. (PFOF 'If 18.) Plaintiffs' evidence shows that Act 105 is an exaggerated

and misplaced response to the possibility of sexual assault on transsexual inmates.

27 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 27 of 29 Document 138

2. Plaintiffs' evidence shows that Act 105 is not justified by an interest in achieving cost savings.19
The Supreme Court has long recognized that, standing alone, cost savings can never be a constitutionally sufficient justification for any classification, even under the most deferential level of scrutiny: "Of course, a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources." Plyler v. Doe, 457 U.S. 202, 227 (1982) (citation omitted). As the Court has explained: ____________w_e_recognize_thaLa-State-has-a-valid-interest-in-preser-v:ing-the-:fiscal.-------------
integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. Shapiro v. Thompson, 394 U.S. 618, 633 & n.11 (1969). In other words, because a classification always creates a class of "haves" and a class of "have-nots" and therefore always achieves cost savings, the proper inquiry is not whether a classification achieves cost savings but rather whether it rationally does so. There must be a justification for the decision to achieve cost savings on the backs of the "have-nots" but not the backs of the "haves." "The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. It also imposes a requirement of some rationality in the nature of the class singled out." Rinaldi, 384 U.S. at 308-309 (citation omitted).
Plaintiffs' evidence shows that the classification at issue does not rationally achieve cost savings. The cost of providing the medical treatment at issue is outweighed
by the cost of denying it. (PFOF 126.) Moreover, the cost of providing the medical

19

Defendants do not proffer an interest in achieving cost savings. Indeed, Defendants' own medical

staff believe that cost savings do not justify denying the medical treatment at issue. (PFOF ~ 30.) Plaintiffs

nevertheless address the issue out of an abundance of caution.

28 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 28 of 29 Document 138

treatment at issue is low, both in absolute terms and in terms relative to the cost of
providing comparable medical treatment (i.e., hormone therapies and surgeries that are
not intended as treatment for GID). (PFOF ~ 30.)
CONCLUSION
For the above-stated reasons, Plaintiffs ask the Court to deny Defendants' Motion
for Partial Summary Judgment.
Dated this 30th day of August, 2007.
Respectfully submitted,
s/ John A. Knight John A. Knight American Civil Liberties Union Foundation 180 N. Michigan Avenue, Suite 2300 Chicago, Illinois 60601 Telephone: (312) 201-9740 Fax: (312) 288-5225 Email: jaknight@aclu.org
Cole Thaler Lambda Legal Defense & Education Fund, Inc. 730 Peachtree St. NE, Suite 1070 Atlanta, GA 30308 (404) 897-1880
Laurence Dupuis American Civil Liberties Union of Wisconsin Foundation, Inc. State BarNo. 1029261 207 East Buffalo Street, Suite 325 Milwaukee, WI 53202-5712 (414) 272-4032
Erik Guenther State BarNo. 1041774 Hurley Burish & Stanton, SC 10 E Doty St # 320, PO Box 1528 Madison, WI 53701-1528 (608) 257-0945 Attorneys for Plaintiffs
29 Case 2:06-cv-00112-CNC Filed 08/30/07 Page 29 of 29 Document 138

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

KARI SUNDSTROM, ANDREA FIELDS, LINDSEY BLACKWELL, MATTHEW DAVISON, also known as Jessica Davison, and VANKEMAH D. MOATON,
Plaintiffs,
v.
MATTHEW J. FRANK, WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, WARDEN ROBERT HUMPHREYS, and MANAGER SUSAN NYGREN,
Defendants.

Case No. 06-C-112

ORDER DENYING PLAINTIFFS’ MOTION TO EXCLUDE TESTIMONY OF DR. DANIEL C. CLAIBORN (DOC. #116), GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS IN LIMINE (DOC. #125), AND GRANTING PLAINTIFFS’
MOTION TO EXCLUDE MEDICAL OPINIONS OF EUGENE ATHERTON REGARDING MEDICAL TREATMENT OF INMATES (DOC. #127)
This case is scheduled for a bench trial to commence on October 22, 2007.
Before the court are the plaintiffs’ motion to exclude testimony of defendants’ expert Daniel
C. Claiborn, Ph.D., defendants’ motions in limine, and plaintiffs’ motion to exclude medical opinions offered by defendants’ expert Eugene Atherton.1 These motions will be addressed
herein. The plaintiffs, who are current or former Wisconsin prison inmates, bring this civil
rights action under 42 U.S.C. § 1983 for declaratory and injunctive relief claiming that the
defendants have violated the United States Constitution by enforcing 2005 Wisconsin Act

1 The defendants’ motion for partial sum m ary judgm ent, filed on July 31, 2007, is also pending. That
m otion will be addressed in a subsequent Order.
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105, codified as Wis. Stat. § 302.386(5m), and abruptly terminating and depriving them of medical treatment for their serious health condition, Gender Identity Disorder (GID). Further, the plaintiffs assert that the defendants acted without exercising individualized medical judgment and in contrast to the treatment the defendants provide to similarly situated inmates in Wisconsin Department of Corrections (DOC) facilities. The third amended complaint (complaint) seeks an end to the defendants’ actions that violate the plaintiffs’ Fourteenth Amendment right to equal protection and Eighth Amendment right to be free from cruel and unusual punishment, as well as a declaration that Wis. Stat. § 302.386(5m) is unconstitutional on its face.
On January 27, 2006, the court granted plaintiffs Sundstrom and Fields’ motion for preliminary injunction. Consequently, the defendants are enjoined from withdrawing any hormone therapy which was prescribed to the plaintiffs as of January 11, 2006, and must return the plaintiffs’ hormonal therapy to the level in effect prior to the January 12, 2006, reduction. Later, the preliminary injunction was extended to plaintiffs Lindsey Blackwell, Matthew Davison a/k/a Jessica Davison, and Vankemah Moaton, as these plaintiffs were identified as inmates who had been diagnosed with GID or transsexualism and faced termination of hormone therapy pursuant to Wis. Stat. § 302.386(5m). The preliminary injunction remains in effect with regard to these five plaintiffs until the trial on the merits, as the parties have stipulated to consolidation of the preliminary injunction hearing and the trial on the merits.
PLAINTIFFS’ MOTION TO EXCLUDE TESTIMONY OF DANIEL C. CLAIBORN, PH.D. On July 31, 2007, plaintiffs filed their motion to exclude testimony of defendants’
psychology expert Daniel C. Claiborn, Ph.D. According to the plaintiffs, Dr. Claiborn’s opinions that GID is not a legitimate health condition, and that the American Psychiatric
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Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) is not authoritative,
do not meet Federal Rule of Evidence 702's standards for admissibility of expert testimony
in the federal courts. Plaintiffs contend that Dr. Claiborn’s opinions are not the product of
reliable methodology or reasoning, and are not based on reliable scientific research or
methods. Also, plaintiffs state that Dr. Claiborn has limited clinical experience with
transgender patients, that he fails to connect in any logical way to his opinions, and that he
offers no other reliable basis for those opinions.
In response, the defendants submit that the court should deny the plaintiffs’
motion. The defendants contend that Dr. Claiborn’s testimony is reliable and that his
testimony will assist the court in understanding the evidence and determining a fact in issue.
Dr. Claiborn prepared a report that summarized his conclusions as follows:
As outlined above, I do not believe the plaintiffs’ transgender situations represent a mental disorder, a medical condition, or a diagnosable disease requiring treatment. Thus, I believe, to a reasonable degree of psychological certainty, that their transgender issues do not result in serious medical needs.
The experts in the field do not view GID as a pathological entity, and my experience as a therapist, GID evaluator, and student of the literature all reinforce that the transgender situation is about choices, not medical necessity. In fact, each transgender individual decides which options to pursue and how far and how fast to go with regard to these life-changing options – based on age, physical characteristics, income, employment, personality, pain tolerance, and desired lifestyle, among other considerations. The entire field of transgender support, of which I am proud to have been a member these many years, encourages this to be so. It is all about freedom to choose, not about forced choices, social judgment stigma, shame, or approval/disapproval.
Even assuming the validity of Gender Identity Disorder as a recognized disorder, individuals who are transgendered choose a variety of strategies rather than always proceeding in the same way. Some elect hormone therapy without surgery. Some elect cosmetic surgery. Some cross-dress and cross-identify in select
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circumstances only. Each individual does what he feels he needs and can accept and can afford, not what is “required.”
(Defs.’ Resp. at 1-2 [quoting Sullivan aff., ex. A: Report of Daniel C. Claiborn dated March 23,
2007].)
In reply, the plaintiffs offer that: 1) Dr. Claiborn’s clinical experience is not a
reliable basis for his opinions; 2) Dr. Claiborn’s opinions are not reliable; 3) defendants fail to
show that Dr. Claiborn’s methodology is reliable; 4) Dr. Claiborn’s experience undermines his
opinions that GID requires no treatment but is merely about choices; and 5) Dr. Claiborn’s
testimony would not assist the court in understanding the evidence and determining a fact in
issue.
Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Under Rule 702, the district judge “must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). The court functions as a “gatekeeper” in
applying Rule 702 to exclude unreliable expert testimony. Kumho Tire Co., Ltd., v.
Carmichael, 526 U.S. 137, 148 (1999).
To fulfill their “gatekeeping” function under Rule 702, trial courts are to employ
a two-step methodology. First, the court must determine “whether the expert’s testimony
pertains to scientific knowledge. This task requires that the court consider whether the
testimony has been subjected to the scientific method; it must rule out ‘subjective belief or
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unsupported speculation.’” Deimer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341, 344 (7th Cir. 1995) (quoting Porter v. Whitehall Lab., Inc., 9 F.3d 607, 614 [7th Cir. 1993] [quoting Daubert, 509 U.S. at 590]). Second, the court has to “determine whether the evidence or testimony assists the trier of fact in understanding the evidence or determining a fact in issue – the suggested scientific testimony must ‘fit’ the issue to which the expert is testifying.” Deimer, 58 F.3d at 344 (quoting Porter, 9 F.3d at 616).
In Daubert, 509 U.S. at 593-94, the Court outlined four factors that may be pertinent to the district court’s analysis of the first factor, or the reliability of expert testimony: 1) “whether [the expert’s theory] can be (and has been) tested”; 2) “whether the theory or technique has been subjected to peer review and publication”; 3) “the known or potential rate of error”; and 4) “general acceptance” among the relevant scientific community. However, the Rule 702 test is a flexible one, and no single factor is either required in the analysis or dispositive as to its outcome. See Kumho, 526 U.S. at 141 (“[T]he test of reliability is ‘flexible’ and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case”).
The Daubert framework is applicable to social science experts, as well as to experts in the hard sciences. Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996); see also United States v. Hall, 93 F.3d 1337 (7th Cir. 1996) (requiring application of the Daubert standard to testimony of a social scientist tendered as an expert witness); United States v. Lamarre, 248 F.3d 642, 647-48 (7th Cir. 2001).
The plaintiffs contend that Dr. Claiborn’s opinions regarding the DSM and GID do not meet the standards of Rule 702 and should not be admitted. Specifically, the plaintiffs assert that the court should exclude Dr. Claiborn’s opinions because his critiques of the DSM
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and the GID diagnosis it contains, both of which are rooted in empirical scientific evidence,
are based upon no reliable scientific research or methodology used by others in his field.
Any challenge to the DSM classifications, which have been developed based on rigorous empirical data and peer review, must be rooted in some scientific basis. Dr. Claiborn offers none. He relies primarily upon several books and articles critiquing the DSM, the Standards of Care for Gender Identity Disorders published by the World Professional Association for Transgender Health, and two transgender advocacy documents, the International Bill of Gender Rights and the Health Law Standards of Care for Transsexualism. He also reviewed the medical records of several Plaintiffs, which did not affect his opinions in this case. (Claiborn Dep. Tr. at 19:3-6.)
The materials on which Dr. Claiborn bases his opinions, the majority of which are opinion pieces criticizing the DSM, are not rooted in reliable research or methodology and cannot sustain his conclusions. “Many times we have emphasized that experts’ work is admissible only to the extent it is reasoned” and “uses the methods of the discipline.” Lang, 217 F.3d at 924. Dr. Claiborn is not aware of whether the International Bill of Gender Rights or the Health Law Standards of Care are peer-reviewed. (Claiborn Dep. Tr. at 42:11, 45:12-17.) He speculates incorrectly that the mere fact that transgender people created the latter document may alone qualify it as peer-reviewed. (Claiborn Dep. Tr. at 45:12-20.) In fact, none of the materials relied upon by Dr. Claiborn are peer-reviewed. (Transcript of June 4, 2007 Deposition of Plaintiff’s Expert Dr. George R. Brown (hereinafter “Brown Dep. Tr.”) at 7.) Dr. Claiborn relies on books about the DSM written by people who were either consultants to the DSM committees or interviewed members of those committees, but that make no mention of GID. See, e.g., Claiborn Dep. Tr. at 7778 (Caplan was consultant to personality disorders committee); id. at 65-67 (Caplan book does not mention GID). Whereas those books criticize inclusion of other specific diagnoses in the DSM, Dr. Claiborn extrapolates to GID, without similar knowledge of the committee process, and admits he does not know how GID came to be included in the DSM. (Claiborn Dep. Tr. at 77.)
Dr. Claiborn freely admits that his concerns about the DSM and GID are based on his perception of the concerns of other advocates (Claiborn Dep. Tr. at 221), gleaned from opinion pieces, rather than any research. Although an expert may rely on the legitimate research and analysis of others, the expert must be able to evaluate the scientific reliability of the data, and not simply
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accept others’ assertions as true. Dura, 285 F.3d at 613 (expert may not simply “parrot” opinions of others).
In short, Dr. Claiborn’s opinions offered in this case are based on repeating the opinions of others about the supposed motivations of the American Psychiatric Association and the mischaracterization of GID in non-peer reviewed opinion pieces. His testimony makes it clear that he is not in a position independently to evaluate the reliability of these opinions in order to determine which mental health conditions are valid.
(Pls.’ Br. in Support of Mot. to Exclude Testimony of Dr. Claiborn at 7-9.) (footnotes omitted).
The plaintiffs also contend that Dr. Claiborn’s “own personal, untested theory
for distinguishing valid from invalid mental health diagnoses which he uses to conclude that
GID is not a legitimate diagnosis requiring treatment” is unreliable and untested. Id. at 9.
Dr. Claiborn’s three-factor test for determining which diagnoses are legitimate is one that neither he nor anyone else has previously proposed, tested, or peer-reviewed. Daubert, 509 U.S. at 593-94. He fails to show that there is a known error rate or standards to control its operation, that it is generally accepted in the field of psychology, or that there are any other standards by which the test can be judged to show its reliability. Id. Even Dr. Claiborn’s application of his test to GID fails to show that GID is an illegitimate diagnosis.
Id. at 9-10.
The plaintiffs further contend that Dr. Claiborn does not connect his experience
treating transgender patients to his opinion that GID does not exist, and that he fails to offer
any other reliable basis for that opinion. According to the plaintiffs, Dr. Claiborn lacks the
qualifications to offer any expert opinion regarding the authoritativeness of the DSM or the
existence or treatment of GID.
Although Dr. Claiborn’s opinion that GID is not a legitimate mental health condition is heavily based on his critique of the DSM, he admits that he is “not an expert on the DSM and its possible political motivations” (Claiborn Dep. Tr. at 221), nor is he aware
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that the revisions to the DSM are based on extensive scientific literature reviews, scientific data analysis, and scientific research. (Claiborn Dep. Tr. at 217.) Dr. Claiborn’s clinical experience providing counseling for about 40 to 60 transgender people over the past three decades (Claiborn Dep. Tr. at 6:18-20; 129) does not qualify him to opine that GID does not exist and never requires treatment. Even if he had asserted that none of his patients experienced the symptoms of GID or benefitted from treatment – and he does not so assert – he could not plausibly conclude that the condition never exists. The possibility that none of his transgender patients met the diagnostic criteria for GID does not prove that the health condition itself is nonexistent.
Dr. Claiborn has never performed any research on GID or transgender issues, knows of no research that supports his assertion about the non-existence of GID, and has never written any books or articles concerning transgender people or GID. He subscribes to no journals or periodicals concerning transgender health. On certain key issues, such as suicide rates of transgender people, Dr. Claiborn testified that he was unaware of whether there are any studies on the issue. (Claiborn Dep. Tr. at 154: 12-14.) He has both largely ignored the extensive body of research regarding GID (Claiborn Dep. Tr. at 273-74) and taken an utterly unsupported position with respect to its existence. He plainly lacks the qualifications to offer such an opinion.
Finally, Dr. Claiborn’s opinion that treatment for GID is never medically necessary because a variety of therapeutic treatment options exist (Claiborn Dep. Tr. at 189:19-23) is unsupported by data and confuses the existence of treatment options with the concept of optional treatment. (Brown Dep. Tr. at 128.) Indeed, his assertion is undermined by his testimony that varied treatment options exist for many valid mental health conditions, such as depression (Claiborn Dep. Tr. at 170:18-22; 272-3), whose validity as a diagnosis he does not contest. (Claiborn Dep. Tr. at 164:7-12.)
Id. at 12-14.
In support of their contention that his testimony is reliable, the defendants first
assert that Dr. Claiborn is qualified to testify about issues relevant to this case. Dr. Claiborn’s
qualifications include that he holds a Ph.D. in psychology and has practiced psychology since
1970; he is licensed to practice psychology in Kansas and Missouri; he is a member of the
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American Psychological Association and the Kansas Psychological Association; he is a
Fellow and board Certified Forensic Examiner of the American College of Forensic
Examiners; and he has taught in graduate psychology programs at three universities and has
taught in the Psychiatry Residency Program at the University of Kansas Medical Center. The
defendants also assert that, although Dr. Claiborn has not written books or published
nationally on transgender issues, his direct experience with transgender issues derives from
his experience treating between 30 and 50 transgendered clients.
Second, the defendants contend that Dr. Claiborn’s opinions are reliable.
Dr. Claiborn will be called to testify about his opinions on the treatment needs of transgendered individuals. Those opinions are based on more than 30 years of experience as a licensed psychologist, and they are based on his treatment of a significant population of transgendered individuals.
“A court may admit somewhat questionable testimony if it falls within the range where experts might reasonably differ, and where the jury must decide among the conflicting views.” S.M. v. J.K., 262 F.3d 914, 921 (9th Cir. 2001) citing Kumho Tire, 526 U.S. at 153 (internal punctuation omitted). The plaintiffs here are attempting to establish that Dr. Claiborn’s testimony falls outside the range where experts might reasonably differ, and they do not succeed.
(Defs.’ Resp. at 6.) The defendants argue that Dr. Claiborn’s testimony should not be
excluded just because he believes that GID should not be included in the DSM. They also
oppose the plaintiffs’ assertion that Dr. Claiborn’s opinions are based solely on his
perceptions of the concerns of other advocates. Dr. Claiborn testified:
Q. If I understand you, that bias based on who’s creating the diagnosis in the DSM, is something . . . permeates the DSM entirely.
I’m wondering whether there are other factors besides unequal application that would raise your suspicions about a particular diagnosis being politically motivated?
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A. No. What raises my concern mostly is the concern of others, because I’m not an expert on the DSM and its possible political motivations, but when I read books and articles about it written by people who have studied it, and I note that they’re alarmed, that’s really the primary thing that alarms me.
And then when I see that they’re alarmed and I look at the DSM and I find so many disorders listed in there that are inappropriate, and not really mental disorders at all, it validates to me the concern that these people have about the DSM process that more and more – and we’ve joked about it here today – but more and more disorders, like caffeine withdrawal and minor depressive episode, and some things that are proposed to be included in this ever-expanding comprehensiveness of the DSM, the point where many, many normal life reactions are now categorized as mental diseases.
(Defs.’ Resp. at 8-9.) The defendants contend Dr. Claiborn’s methodology for determining
the validity of a mental health diagnosis is valid and that the plaintiffs are free to explore this
issue with Dr. Claiborn on cross-examination. The defendants also contend that Dr.
Claiborn’s opinions are directly connected to his experience treating patients and his
experience in the field of transgender support.
Dr. Claiborn recognizes that transgender situations exist; after all, he has treated numerous transgender patients. He opines that those transgender situations should not be pathologized and that treatment of transgender individuals is an issue of individual choice, not medical necessity. His report explains:
As outlined above, I do not believe the plaintiffs’ transgender situations represent a mental disorder, a medical condition, or a diagnosable disease requiring treatment. Thus, I believe, to a reasonable degree of psychological certainty, that their transgender issues do not result in serious medical needs.
The experts in the field do not view GID as a pathological entity, and my experience as a therapist, GID evaluator, and student of the literature all reinforce that the transgender individual decides which options to pursue and how far and how fast to go with regard to these life-
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changing options – based on age, physical characteristics, income, employment, personality, pain tolerance, and desired lifestyle, among other considerations. The entire field of transgender support, of which I am proud to have been a member these many years, encourages this to be so. It is all about freedom to choose, not about forced choices, social judgment, stigma, shame, or approval/disapproval.
[Sullivan aff., ex. A; Report of Daniel C. Claiborn dated March 23, 2007] As the report makes clear, this opinion is based on his personal experience as a therapist, his role as a GID evaluator, his study of the psychological literature, and his membership in the field of transgender support. He testified extensively in his deposition about the role that choice plays in an individual’s decision to address his or her perceived needs. [See Sullivan aff, ex. B: Claiborn dep., pp. 30-35] To the extent that the plaintiffs disagree with it, they can explore it on cross-examination.
(Defs.’ Resp. at 11.)
Third, the defendants argue that allowing Dr. Claiborn to testify presents no risk
of confusing a jury because there will be no jury present. “These are matters where experts
can reasonably disagree, and it is the court’s task to decide among the conflicting views.”
(Defs.’ Br. at 12 [citing S.M., 262 F.3d at 921].) “If Dr. Claiborn’s conclusions are as flawed
as the plaintiffs claim, they can highlight the flaws on cross-examination. If the court
concludes that Dr. Claiborn is less credible than the plaintiffs’ experts, it can give greater
weight to their opinions.” (Defs.’ Br. at 12.)
In United States v. Hall, 93 F.3d 1337 (7th Cir. 1996), the court determined that
the trial court had erred in excluding expert psychological and psychiatric testimony that the
defendant’s “confession” to the crime was false. The entire theory of the defense was that
the defendant had a personality disorder which made him pathologically eager to please and
susceptible to suggestion. The court explained that since the fields of psychology and
psychiatry deal with human behavior and mental disorders it may be more difficult at times
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to distinguish between testimony which reflects “genuine expertise” and “something that is nothing more than fancy phrases for common sense.” Id. at 1342. In overruling the district court, the appellate court emphasized that expert testimony need not be excluded merely because it overlaps in some way with matters within the jury’s experience. Id. at 1344.
In this case, the parties do not contend that Dr. Claiborn’s testimony would not be relevant. Thus, the court turns to whether the reliability requirement of Rule 702 and Daubert is satisfied.
Dr. Claiborn acknowledges that he is not an expert on the DSM. His expert opinion boils down to:
The bottom line for our purposes here is that the inclusion of Gender Identity Disorder as a “diagnosis” in the DSM-IV does not validate that entity as a disease, a medical condition, or a mental disorder. Inclusion of GID in DSM as a disorder does not imply necessary medical treatment. In fact, DSM designations of disorders do not describe, specify, or mandate treatments for any disorders. (Defs.’ Resp. at 6 [quoting Sullivan aff., ex. A: Claiborn report, p. 8].) He also opines that the plaintiffs’ “transgender situations” do not represent a mental disorder, a medical condition, or a diagnosable disease requiring treatment. (Defs.’ Resp. at 11.) Dr. Claiborn bases these opinions on his years of experience treating patients with transgender issues, the test of “inter-rater reliability”, his study of psychological literature, and his membership in the field of transgender support. The plaintiffs minimize the relevance of Dr. Claiborn’s years of experience treating transgender patients. However, the court finds that treating 30 to 50 transgendered clients is significant, and places great weight on this experience. “Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience.” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) (quoting Walker v.
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Soo Line R.R. Co., 208 F.3d 581, 591 (7th Cir. 2000); citing Kumho, 526 U.S. at 156.) “Thus, a court should consider a proposed expert’s full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area.” Smith, 215 F.3d at 718.
Also, the court recognizes that one of the issues in this case is the treatment rendered for a serious medical need, not whether GID is a serious medical need. In this circuit, for the purposes of the Eighth Amendment, GID (or transsexualism or gender dysphoria) is a serious medical need. Meriwether v. Faulkner, 821 F.2d 408, 411-13 (7th Cir. 1987); Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997). Dr. Claiborn has relevant and reliable experience treating individuals with GID, or transgender issues. He may testify to the treatment of individuals with that condition in this case.
Finally, the court notes that where, as in this case, the gatekeeper and the fact finder are the same – that is, the judge – the need to make such decisions prior to hearing the testimony is lessened. In re Salem, 465 F.3d 767, 777 (7th Cir. 2006) (citing United States v. Brown, 415 F.3d 1257, 1268-69 (11th Cir. 2005)). The scientific reliability requirement is not lessened is such situations; “the point is only that the court can hear the evidence and make its reliability determination during, rather than in advance of, trial.” In re Salem, 465 F.3d at 777. Thus, where the fact finder and the gatekeeper are the same, a court does not err in admitting the evidence subject to the ability later to exclude it or disregard it if it turns out not to meet the standard of reliability established by Rule 702. Id.
Based on the foregoing, the plaintiffs’ motion to exclude the expert testimony of Dr. Claiborn will be denied.
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DEFENDANTS’ MOTIONS IN LIMINE
The defendants move the court for preliminary rulings on three
evidentiary issues.
1. First Motion
First, the defendants contend that they should be allowed to present evidence
of the plaintiffs’ prior criminal convictions pursuant to Federal Rule of Evidence 609(a)(2).
They assert that such convictions are relevant to the plaintiffs’ credibility and thus should be
admissible. The plaintiffs contend that the defendants should be permitted to present
evidence of the plaintiffs’ prior criminal convictions only if the plaintiffs testify at trial and the
convictions are relevant to plaintiffs’ credibility.
Federal Rule of Evidence 609 provides in relevant part:
(a) General rule. – For the purpose of attacking the credibility of a witness,
(1) . . .
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
(b) Time limit. – Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
The defendants move that the following judgments of convictions be admitted
pursuant to Rule 609(a) because they involve dishonesty.
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a. Kari Sundstrom, Forgery – Uttering, Wis. Stat. § 943.38(2) (felony), convicted on 7-28-05.
b. Kari Sundstrom, Forgery, Wis. Stat. § 943.38(2), 9 counts, convicted on 8-6-93.
c. Andrea Fields, Theft – False Representation, Wis. Stat. § 943.20(1)(D), 2 counts, convicted on 8-17-06.
d. Andrea Fields, Forgery – Uttering, Wis. Stat. § 943.38(2), 2 counts, convicted on 10-30-2003.
e. Vankemah Moaton, Unauthorized Use of Individual’s Personal ID, Wis. Stat. § 943.201(2), 2 counts, convicted on 6-16-06.
f. Vankemah Moaton, Forgery, convicted September 1998, Indianapolis, Indiana, 2 years probation.
g. Vankemah Moaton, Theft by deception, convicted December 1999, Birmingham, Alabama, 2 years probation.
h. Vankemah Moaton, Conspiracy/Counterfeiting, convicted December 2001, U.S.D.Ct. Savannah, Georgia.
I. Kari Sundstrom, Bank Fraud and False Use of Social Security, convicted 1990, U.S.D.Ct.
(Defs.’ Mot. in Limine at 1-2.)
In response, the plaintiffs contend that the court should deny the defendants’
motion as to plaintiff Sundstrom’s August 6, 1993, state conviction and federal convictions in
1990, since more than ten years have elapsed since the date of conviction. Moreover, it is
not clear from the record that plaintiff Sundstrom’s period of incarceration for the 1990 and
1993 convictions extends into the relevant ten year period, depriving plaintiffs of fair
opportunity to contest the use of such evidence. Finally, plaintiffs assert that the probative
value of these convictions is minimal in light of more recent convictions that convey the same
information.
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With respect to the remaining convictions, plaintiffs agree that proof of the judgments of convictions may be admitted, but only if the plaintiff or plaintiffs who committed these crimes are “witnesses” whose testimony is offered at trial and only for the purpose of impeaching their credibility. Plaintiffs assert that convictions of the plaintiffs whose testimony is not presented at trial should not be admitted, because they are not witnesses.
In reply, defendants argue that regardless of when plaintiff Sundstrom was released from confinement for the 1993 convictions of forgery and the 1990 convictions for bank fraud and false use of social security, these repeated crimes of dishonesty are relevant to and extremely probative of Sundstrom’s credibility. Also, the defendants submit that if the plaintiffs do not testify, evidence of their convictions should be admissible under Federal Rule of Evidence 806.
The admission of crimes involving dishonesty or false statement under Rule 609(a)(2) is mandatory, for the purpose of attacking the credibility of a witness. However, evidence of stale convictions, that is, convictions more than ten years old or if more than ten years has elapsed since the release of the witness from confinement, are not admissible, unless the court determines that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
It is unclear at this stage whether plaintiff Sundstrom’s August 6, 1993, state conviction and 1990 federal convictions are time-barred. Moreover, at this time their probative value is unclear. Hence, the defendants have failed to demonstrate that evidence of these convictions should be admitted. As for the remaining convictions, the plaintiffs do not object to their admittance if the relevant plaintiff is called as a witness. Thus, the defendants’ motion will be granted in part and denied in part.
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2. Second Motion
Second, the defendants contend that evidence of plaintiff Moaton’s medical
need for hormone therapy should be excluded given the invocation of plaintiff Moaton’s Fifth
Amendment privilege. In response, the plaintiffs contend that evidence of Vankemah
Moaton’s need for hormone therapy should not be excluded.
However, in their response the plaintiffs agree that plaintiff Moaton will waive
the Fifth Amendment privilege and answer questions concerning prior use (and possible
withdrawal) of hormone therapy, along with prior feminizing procedures. Given this
stipulation, the defendants have withdrawn their motion to exclude evidence of Moaton’s need
for hormones and/or dismiss this plaintiff’s Eighth Amendment claim on that basis, provided
leave to conduct this second limited deposition outside of the deadline for completing
discovery is granted. (Defs.’ Reply at 3.)
3. Third Motion
Third, the defendants contend that highlighted portions of Dr. Randi Ettner’s
report should be excluded because these opinions lack sufficient foundation and exceed the
doctor’s qualifications. According to the defendants, several excerpts from Dr. Randi Ettner’s
reports go beyond the doctor’s expertise as a Ph.D. psychologist. See Schmelzer Aff., Exs.
526, 527. For example,
Dr. Ettner hypothesizes that plaintiff Andrea Field my [sic] have “some rare chromosomal patter,” and speculates as to cause of his “abnormality of stature” (see, Exhibit 526, p. 7). Dr. Ettner also repeatedly states certain treatments are “medically necessary,” and talks extensively about the body’s endocrine system (see generally, the highlighted provisions of Exhibits 526, 527). Dr. Ettner, however, does not have any education or professional training in medicine or endocrinology. Hence, the highlighted portions of her reports, as reflected in Exhibits 526 and 527, should be excluded.
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(Defs.’ Mot. in Limine at 7.)
The plaintiffs offer that the opinions set forth in the highlighted portions of Dr.
Ettner’s reports fall within the doctor’s expertise and experience as a clinical psychologist
specializing in the treatment of GID. The defendants seek to exclude highlighted portions of
Dr. Ettner’s reports relating to the medical necessity of hormonal and surgical treatments for
GID; offering general information about the physical effects of such treatments; and
discussing the possible etiology of GID.2
The highlighted portions of Dr. Ettner’s testimony fall within her knowledge, training, and experience as a clinical psychologist, researcher and instructor specializing in the etiology, diagnosis and treatment of GID. Dr. Ettner has worked with 2500 gender dysphoric patients over the past three decades (Thaler Decl., Exh. F, R. Ettner Dep. Tr. at 78) and has published extensively on possible causes and treatment of GID (Thaler Decl., Exh. F, R. Ettner Dep. Tr. at 21-23; see also Thaler Decl., Exh. I, Curriculum Vitae of Dr. Randi C. Ettner). She is the editor of a forthcoming medical textbook entitled Principles of Transgender Medicine and Surgery (Thaler Decl., Exh. F, R. Etter Dep. Tr. at 21), and wrote the chapter of that book on the etiology of GID. (Thaler Decl., Exh. F, R. Ettner Dep. Tr. at 22.) Dr. Ettner’s testimony about the nature and treatment of the health condition in which she specializes is supported by decades of clinical and research experience and should not be excluded.
(Pls.’ Br. at 11.)
Dr. Ettner’s experience speaks for itself. See Smith, 215 F.3d at 718.
Moreover, the doctor has conducted research and has been an instructor specializing in the
etiology, diagnosis and treatment of GID. Finally, Dr. Ettner is the editor of a medical textbook
in which she wrote the chapter of that book on the etiology of GID. The court finds that Dr.
Ettner is sufficiently qualified to provide expert testimony as described above. Based on the
foregoing, the defendants’ motion will be denied.
2 The court is unable to discern what portions of Exhibits 526 and 527 are highlighted.
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PLAINTIFF’S MOTION TO EXCLUDE MEDICAL OPINIONS OFFERED BY DEFENDANTS’ EXPERT EUGENE ATHERTON The plaintiffs move for the exclusion of the medical opinion testimony of defendants’ designated corrections expert, Eugene Atherton. In support of their motion, the plaintiffs assert that Mr. Atherton offers some opinions about the medical treatment of GID even though he has no psychological or medical “knowledge, skill, experience, training or education,” as required by Federal Rule of Evidence 702. The plaintiffs request the court to limit Mr. Atherton’s testimony to areas within his expertise, and to exclude any of his testimony regarding the medical diagnosis or treatment of GID, any differences of opinion with respect to its diagnosis or treatment, or the effects of such treatment. The defendants have not filed a response to this motion. Mr. Atherton is a corrections expert and testified that his expertise is in corrections. He testified that he does not have expertise in the medical treatment of inmates. Therefore, he will not be permitted to testify in that regard. Accordingly, the plaintiffs’ motion to exclude medical opinions offered by defendants’ expert Eugene Atherton will be granted. Now, therefore, IT IS ORDERED that the plaintiffs’ motion to exclude testimony of defendants’ expert Daniel C. Claiborn (Docket #116) is DENIED. IT IS FURTHER ORDERED that the defendants’ motion in limine (Docket #125) is GRANTED IN PART AND DENIED IN PART and that the convictions of the plaintiffs set forth in said motion may be admitted pursuant to Fed. R. Civ. P. 609(a) as follows, except for the convictions of plaintiff Sundstrom:
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Andrea Fields:

Theft – False Representation, Wis. Stat. § 943.20(1)(D), 2 counts, convicted 8/17/06;

Forgery – Uttering, Wis. Stat. § 943.38(2), 2 counts, convicted 10/20/03.

Vankemah Moaton: Unauthorized Use of Individual’s Personal ID, Wis. Stat. § 943.201(2), 2 counts, convicted on 6/16/06;

Forgery, convicted September 1998, Indianapolis, Indiana, 2 years probation;

Theft by Deception, December 1999, Birmingham, Alabama, 2 years probation;

Conspiracy/Counterfeiting, convicted December 2001, U.S.D.Ct., Savannah, Georgia.

IT IS FURTHER ORDERED that the plaintiffs’ motion to exclude medical

opinions testimony regarding medical treatment of inmates is GRANTED as to Eugene

Atherton (Docket #127).

Dated at Milwaukee, Wisconsin, this 5th day of October, 2007.

BY THE COURT:

s/ C. N. Clevert, Jr. C. N. CLEVERT, JR. United States District Judge

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

KARI SUNDSTROM, ANDREA FIELDS, LINDSEY BLACKWELL, MATTHEW DAVISON, also known as Jessica Davison, and VANKEMAH D. MOATON,
Plaintiffs,
v.
MATTHEW J. FRANK, WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, WARDEN ROBERT HUMPHREYS, and MANAGER SUSAN NYGREN,
Defendants.

Case No. 06-C-112

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. #120), GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE SURREPLY (DOC. #163), DISMISSING DEFENDANTS
HUMPHREYS AND NYGREN, AND DISMISSING PLAINTIFFS SUNDSTROM AND BLACKWELL
Before the court is the defendants’ motion for partial summary judgment.
Defendants’ Statement of the Case follows:
The plaintiffs, all current or former inmates in the Wisconsin prison system, filed this action on January 24, 2006, against the defendants, all Wisconsin Department of Corrections (DOC) officials. The plaintiffs have all been diagnosed as suffering from some form of gender identity disorder. In their Third Amended Complaint (Complaint), the plaintiffs challenge the Inmate Sex Change Prevention Act (the Act), Wis. Stat. § 302.386(5m), which prevents state or federal resources to be used to provide hormone therapy or sexual reassignment surgery to Wisconsin prisoners. The statute defines “hormonal therapy”

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as “the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m)(a)(1). It also defines “sexual reassignment surgery” as “surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m)(a)(2).
The Complaint sets forth essentially three claims: (1) the Act, as applied to the plaintiffs, violates the Eighth Amendment; (2) the Act, on its face, violates the Eighth Amendment; and (3) the Act violates the plaintiffs’ Fourteenth Amendment equal protection rights. As relief, the plaintiffs request injunctive relief against DOC’s enforcement of the Act against them, along with declaratory relief holding the Act, both on its face and as applied to plaintiffs, violates the Eighth and Fourteenth Amendments to the constitution.
By this motion, the defendants seek summary judgment on the following claims: (1) Plaintiff Moaton’s Eighth Amendment asapplied challenge to the Act; (2) the Eighth Amendment facial challenge to the Act; (3) all claims brought by plaintiffs Sundstrom and Blackwell; (4) all claims brought against defendants Humphreys and Nygren; and (5) the Fourteenth Amendment equal protection claim.
(Defs.’ Br. in Support of Mot. for Summ. J. at 2-3.)
STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); McNeal
v. Macht, 763 F. Supp. 1458, 1460-61 (E.D. Wis. 1991). “Material facts” are those facts that,
under the applicable substantive law, “might affect the outcome of the suit.” See Anderson,
2
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477 U.S. at 248. A dispute of “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
The burden of showing the needlessness of trial – (1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law – is upon the movant. However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Anderson, 477 U.S. at 267; see also Celotex Corp., 477 U.S. at 324 (“proper” summary judgment may be “opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings . . . ”). “Rule 56(c) mandates the entry of summary judgment, . . . upon motion, against a party who fails to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. Johnson v. Pelker, 891 F.2d 136, 138 (7th Cir. 1989). “However, we are not required to draw every conceivable inference from the record – only those inferences that are reasonable.” Bank Leumi Le-Israel, B.M. v. Leek, 928 F.2d 232, 236 (7th Cir. 1991) (citation omitted).
FACTS1
1 In this section, Defendants’ Proposed Findings of Fact (DFOF) are set forth first, along with Plaintiffs’ Response to Defendants’ Proposed Findings (PRDFOF), and Defendants’ Reply to Plaintiffs’ Response to Defendants’ Proposed Findings of Fact (DReply). Next, Plaintiffs’ Proposed Findings of Fact (PFOF) are set forth, including Plaintiffs’ Am ended Proposed Finding of Fact Num ber 20, along with Defendants’ Response to Plaintiffs’ Findings of Fact (DRPFOF).
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Plaintiff Kari Sundstrom is an anatomical male and was an inmate incarcerated at the Oshkosh Correctional Institution (OSCI). (DFOF ¶ 1.) On December 12, 2006, Sundstrom was released from DOC incarceration. Plaintiff Andrea Fields is an anatomical male and an inmate incarcerated at OSCI. (DFOF ¶ 2.) Plaintiff Lindsay Blackwell is an anatomical male and was previously an inmate incarcerated at the Racine Correctional Institution (RCI). (DFOF ¶ 3.) On October 10, 2006, Blackwell was released from DOC incarceration. Plaintiff Matthew Davison is an anatomical male and an inmate incarcerated at OSCI. (DFOF ¶ 4.) Plaintiff Vankemah Moaton is an anatomical male and an inmate currently incarcerated at the Jackson Correctional Institution. (DFOF ¶ 5.)
Defendant Matthew J. Frank was the Secretary of the State of Wisconsin Department of Corrections when this action was filed. (DFOF ¶ 6.) Defendant James Greer is the Director of the DOC Bureau of Health Services. (DFOF ¶ 7.) Defendant Judy P. Smith is the Warden at OSCI. (DFOF ¶ 8.) Defendant Thomas Edwards is the Health Services Manager of the OSCI Health Services Unit. (DFOF ¶ 9.) Defendant Robert Humphreys is the Warden at RCI. (DFOF ¶ 10.) Defendant Susan Nygren is the Health Services Manager of the RCI Health Services Unit. (DFOF ¶ 11.)
The Harry Benjamin International Gender Dysphoria Association’s Standards of Care for Gender Identity Disorders, Sixth Version (Standards of Care) refer to three elements or phases of therapy once a person is diagnosed with gender identity disorder, which include: (1) a real-life experience in the desired role; (2) hormones of the desired gender; and (3) surgery to change the genitalia and other sex characteristics. The Standards of Care refer to these three phases as triadic therapy. (DFOF ¶ 12.)
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The Standards of Care state that “the diagnosis of GID invites consideration of
a variety of therapeutic options, only one of which is the complete therapeutic triad. Clinicians
have increasingly become aware that not all persons with gender identity disorders need or
want all three elements of triadic therapy.”2 (Docket No. 5, Dupuis Declaration, Exhibit E,
Standards of Care for Gender Identity Disorders, Sixth Version, p. 3) (DFOF ¶ 13.) The
Standards of Care state that “[m]any adults with gender identity disorder find comfortable,
effective ways of living that do not involve all the components of the triadic treatment
sequence.” (Doc. No. 5, Dupuis Declaration, Exhibit E, Standards of Care for Gender Identity
Disorders, Sixth Version, p. 9).3 (DFOF ¶ 14.)
Before hormone therapy is administered to a GID patient, the Standards of Care
recommend that a letter from a mental health professional be written to the physician who will
be responsible for the patient’s medical treatment. This letter should succinctly specify: (1)
the patient’s general identifying characteristics; (2) the initial and evolving gender, sexual and
2Plaintiffs do not dispute that this is an accurate quotation for the Standards of Care. However, plaintiffs dispute defendants’ im plication that this quotation means that horm one therapy and sex reassignment surgery can never be medically necessary treatm ents for GID. Based on the standards of care medically necessary treatm ent for GID m ost often involves horm one therapy or surgical interventions. Dr. Randi Ettner testified, “[W ]e know that untreated as m any as 35 percent of patients [with GID] will com mit suicide. And the treatm ent for the disorder m ost often involves horm ones and/or surgical interventions. So those are the appropriate and medically necessary treatm ent for this disorder.” (Knight Decl., Exh. 213, R. Ettner Dep. Tr. at 51.) The process of determ ining what treatm ents are medically necessary for a patient with GID involves an individualized evaluation and assessment. The Standards of Care state that, “[i]n persons diagnosed with transsexualism or profound GID, sex reassignm ent surgery, along with horm one therapy and real-life experience, is a treatm ent that has proven to be effective. Such a therapeutic regim en, when prescribed or recomm ended by qualified practitioners, is medically indicated and medically necessary.” (Docket No. 5, Dupuis Declaration, Exhibit E, Standards of Care for Gender Identity Disorders, Sixth Version at 18.) The only medical treatm ent that effectively relieves suffering caused by severe GID is horm one therapy or surgery to bring anatomy and appearance into alignm ent with gender identity. (PRDFOF ¶ 1.)
Defendants dispute plaintiffs additional assertions of fact. In addition, plaintiffs’ expert, Dr. Frederic Ettner, testified that not every individual with GID needs to be on horm ones.
3 Plaintiffs incorporate by reference their response to DFOF ¶ 13 above. (PRDFOF ¶ 2.) Defendants incorporate by reference their reply to DFOF ¶ 13 above. (DReply ¶ 14.)
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other psychiatric diagnoses; (3) the duration of their professional relationship including the
type of psychotherapy or evaluation that the patient underwent; (4) that eligibility criteria have
been met and the mental health professional’s rationale for hormone therapy; (5) the degree
to which the patient has followed the Standards of Care to date and the likelihood of future
compliance; (6) whether the author of the report is part of a gender team; and (7) that the
sender welcomes a phone call to verify that the mental health professional wrote the letter.
(DFOF ¶ 15.) The Standards of Care state that “[g]enital surgery is not a right that must be
granted upon request.” (Doc. No. 5, Dupuis Declaration, Exhibit E, Standards of Care for
Gender Identity Disorders, Sixth Version, p. 18).4 (DFOF ¶ 16.)
During the deposition of plaintiff Vankemah Moaton on June 21, 2007, plaintiffs’
counsel Laurence Dupuis voiced the following objection:
I’m going to object and actually direct [Moaton] not to answer questions about her interactions with – about her taking hormones prior to 2004 on grounds of Fifth Amendment Privilege.
(Schmelzer Aff., Exhibit 531, p. 18). (DFOF ¶ 17.) During the deposition of plaintiff
Vankemah Moaton on June 21, 2007, plaintiffs’ counsel, Laurence Dupuis, voiced the
4 Plaintiffs do not dispute that this is an accurate quotation from the Standards of Care. However, plaintiffs assert that this proposed finding of fact is im m aterial. This action does not seek any particular form of treatment for plaintiffs, nor do plaintiffs claim that genital surgery is a right that must be granted upon request, to them or to anyone else. Rather, plaintiffs seek the treatm ents that DOC physicians determine to be medically necessary for them based on individualized evaluation. Before the provision of sex reassignment surgery could even be considered, a GID diagnosis m ust be m ade, which includes a finding of “clinically significant distress or impairment in social, occupational, or other important areas of functioning.” (Knight Decl., Exh. 232, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition - Text Reference (DSM-IV) at 581.) In addition, the Standards of Care do not perm it genital surgery until the patient with GID has m et strict eligibility and readiness criteria. Sex reassignment surgery is not cosmetic or elective; rather, for som e individuals with severe GID, it is the only effective treatment for their condition. Some such individuals suffer so profoundly without effective GID treatm ent that they m utilate their own genitals, essentially perform ing their own m akeshift sex reassignment surgery. For anatom ic m ales with severe GID, “having a fem ale anatom y reconstructed is their therapy.” (Knight Decl., Exh. 218, F. Ettner Dep. Tr. at 34.) (PRDFOF ¶ 3.)
As to plaintiffs’ objections, defendants m aintain that this proposed finding is m aterial in that it supports their view that not every application of the Inmate Sex Change Prevention Act, W is. Stat. § 302.386(5m ), is unconstitutional. (DReply ¶ 16.)
6
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following objection to defense counsel’s inquiry about feminizing procedures Moaton has had done:
On these procedures I’m going to direct [Moaton] not to answer any questions after the end of 2000 on the same grounds as before, so she can describe things that happened up until the end of 2000. (Schmelzer Aff., Exhibit 531, p. 36). (DFOF ¶ 18.) Dr. Randi Ettner’s report notes that Moaton “underwent facial and body feminizing procedures to attain an authentic female presentation. She began taking hormones eleven years ago.” The report adds that while in prison in Minnesota, Moaton “was able to taper off medication.” (Schmelzer Aff., Exhibit 527, pp. 8).5 (DFOF ¶ 19.) A portion of Dr. Ettner’s report reads: “[g]ender identity disorder, previously known as transexualism, is an extremely rare and misunderstood disorder, with an incidence of 1 in 11,900 natal males and 1 in 30,400 females.” (Schmelzer Aff., Exhibit 526, p. 1). (DFOF ¶ 20.) Continuing, Dr. Ettner’s report states that, “[h]owever, as the field matured, professionals became aware that not all persons with bona fide gender identity disorders desired or were candidates for sex reassignment surgery.” (Schmelzer Aff., Exhibit 526, p. 10). (DFOF ¶ 21.) Another portion of Dr. Ettner’s report provides that, “[i]n select cases, incarcerated persons who meet these criteria may be candidates for medically ordained surgical treatment.” (Schmelzer Aff., Exhibit 526, p. 13). (DFOF ¶ 22.)
5 Plaintiffs do not dispute that these are accurate quotations of portions of Dr. Randi Ettner’s report. However, they dispute defendants’ suggestion that because plaintiff was taken off hormones for a time several years ago means that they are not medically necessary now. (PRDFOF ¶ 4.)
Defendants dispute plaintiffs’ additional assertions of fact. This dispute, however, is not material as it related to the defendants’ motion for sum m ary judgm ent. (DReply ¶ 19.)
7
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Dr. George Brown’s report advises that “SRS is a last resort treatment, reserved
for those who have not been able to find less invasive ways to treat their condition.”
(Schmelzer Aff., Exhibit 516, p. 9). (DFOF ¶ 23.) The deposition of Lindsay Blackwell’s
deposition of May 2, 2006, included the following exchange:
Q: So you feel that the Department of Corrections should provide you with breast implants? A: No, with the proper stages that we’re supposed to go through. Q: Tell me what those stages are then. A: The counseling.
(Schmelzer Aff., Exhibit 534, p. 36).6 (DFOF ¶ 24.) The following was stated during the May
3, 2006, deposition of Andrea Fields:
Q: Do you want to have other surgeries? A: Yes. Q: What other surgeries do you want to have. A: I want to do the whole sex change. Q: Okay. So that – is that what’s known as gender reassignment surgery? A: Yes. Q: Are you also looking to – strike that. Do you feel like you’re ready for that now? A: Yes, I am. Q: Do you feel that that’s something that the Department of Corrections should provide for you?
6 Plaintiffs do not dispute the accuracy of this quotation. However, they take issue with defendants’ implication that this quotation means that medically necessary treatm ent is determined by a transgender inmate evaluation by a medical provider, and that sex reassignment surgery is never medically necessary for inm ates. It has been stated that gender dysphoria resulting from GID “appears to intensify over a lifetim e, escalating with age.” (Knight Decl., Exh. 217, June 28, 2006 R. Ettner Report at 13; Knight Decl., Exh. 216, Kallas Dep. Tr., 7/19/07, at 82.) Several opinions expressed in this case are that the determ ination that hormones or surgery are m edically necessary treatm ents for some inmates with GID does not take place until after they have been incarcerated. For some individuals with GID, sex reassignment surgery is a medically necessary treatment that eliminates gender dysphoria. (PRDFOF ¶ 5.)
Defendants dispute plaintiffs’ additional assertions of fact. The suggestion that hormones or surgery would be imposed upon an inmate with GID who does not want this form of treatment is inconceivable. The Standards of Care expressly require inform ed consent for initiation of horm one treatm ent, and further require, at a minimum, patient consent for reassignment surgery. The medical necessity of these forms of treatm ent is also disputed.
8
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A: No.
(Schmelzer Aff., Exhibit 535, pp. 75-76).7 (DFOF ¶ 25.) Kari Sundstrom’s deposition of May
3, 2006, included the following:
Q: Do you believe that the Department of Corrections should provide you with gender reassignment surgery? A: Do I? Q: Yeah. A: For me personally? Not for me.
(Schmelzer Aff., Exhibit 536, p. 36)8 (DFOF ¶ 26.)
Walter Kautzky’s report submits that, “Gender Identity Disorder and the
presentation of effeminate characteristics create challenges in a prison setting, but those
problems are not different than complexity of mental illness or HIV positive inmates.”
(Schmelzer Aff., Exhibit 533, pp. 15-16).9 (DFOF ¶ 27.) Walter Kautzky testified on May 31,
2007:
Q: So let me see if I understand you correctly. If a prisoner is perceived as being sexually available, is it your testimony that that increases the possibility that the prisoner may be sexually assaulted by other prisoners? A: That’s correct, yes. Q: Is it your belief that inmates who cross-dress are perceived as sexually available?
7 Plaintiffs incorporate by reference their response to DFOF ¶ 24, supra. (PRDFOF ¶ 6.) Defendants incorporate by reference their response to DFOF ¶ 24 supra. (DReply ¶ 25.)
8 Plaintiffs incorporate by reference their response to DFOF ¶ 24 supra. (PRDFOF ¶ 7.) Defendants incorporate by reference their response to DFOF ¶ 24 supra. (DReply ¶ 26.)
9 Plaintiffs do not dispute the accuracy of this quotation, but dispute defendants’ im plication that this quotation m eans that inm ates with GID dem and m ore correctional resources than do other inm ates. Mr. Kautzky testified that he has never known inm ates with GID to create extra staffing burdens. (PRDFOF ¶ 8.)
Defendants dispute plaintiffs’ additional assertions of fact. Atherton has stated that fem inization of inm ates in a m ale prison increases the work demand of existing staff, and that this will cause resources to be drawn from attendance to the other operations duties in the institution that are also likely to involve safety and control. Defendants further assert that this is not a dispute of m aterial fact as it relates to the defendants’ motion for summary judgment. (DReply ¶ 27.)
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A: Yes. Q: Is it your belief that inmates who display effeminate characteristics are viewed as sexually available? A: Yes.
(Schmelzer Aff., Exhibit 533, pp. 34-35).10 (DFOF ¶ 28.) Walter Kautzky testified on May 31,
2007, stating:
Q: Would it present security concerns for a male inmate to spend a year living as a female inmate?
10 Plaintiffs do not dispute the accuracy of this quotation. However, they dispute defendants’ im plication that this means that inmates who receive medically necessary treatm ent for GID are perceived as more sexually available by other inmates and will consequently be sexually assaulted following hormone therapy. Any im plication regarding the effects of cross-dressing is im m aterial, because this lawsuit does not involve clothing. Cross-dressers or transvestites are a distinct category from transsexuals or people with GID. The DSM lists Transvestic Fetishism as a separate diagnosis from GID. Furtherm ore, individuals with effem inate characteristics do not necessarily have GID. “Fem ininity is a broad range. Som e [fem inine inm ates] m ay have GID. Som e m aybe not.” (Knight Decl., Exh. 221, Atherton Dep. Tr. at 35.) In addition, it is im possible to predict or generalize about the am ount of external fem inization that results from adm inistration of horm one therapy to individuals with GID. “Heredity lim its the tissue response to horm ones and this cannot be overcom e by increasing dosage. The degree of effects actually attained varies from patient to patient.” (Docket No. 5, Dupuis declaration, Exhibit E, Standards of Care at 14.) The degree to which horm one therapy induces feminization for a particular person with GID cannot be ascertained by prison security experts, but rather can only be determ ined by medical experts. Defendants produce no evidence indicating that denying medically necessary treatments to an inm ate with GID decreases effem inate dem eanor or sim ilar characteristics.
Plaintiffs further dispute any im plication that this quotation means Kautzky believes that inm ates with GID are more vulnerable because they take horm ones or that GID treatm ent cannot be adm inistered in a prison setting. Kautzky testified that prison adm inistrators should follow m edical instructions. Moreover, Kautzky testified that, if an inmate was at risk of suicide or self-harm without sex reassignment surgery, and if a prison comm ittee of health care providers recom m ended that surgery be provided to that inmate, then prison administrators “would have to take those steps based on the best medical advice that they had.” (Knight Decl., Exh. 220, Kautzky Dep. Tr. at 185-86.) (PRDFOF ¶ 9.)
As to plaintiffs’ additional assertions of fact, defendants submit that plaintiffs’ expert describes the fem inizing effects horm ones have on a m ale inm ate:
Testosterone is a very potent hormone, and reversing its effects is not entirely possible. However, administering estrogen compounds and anti-androgenic compounds creates changes in the brain, and visible changes in the body, of a natal m ale. These include: Notable increase in breast size, smoothing and softening of skin, change in subcutaneous fat distribution, shortening of the penis, loss of size and volum e of the testes, reduction in the size of the prostate gland, change in lipid profile, and preservation of bone mass. (Schmelzer Aff., Docket No. 124, Exhibit 526, p. 11) (emphasis added). To argue male inmates on female horm one therapy do not display effem inate characteristics is nonsensical and contrary to Dr. Ettner’s opinion. Indeed, the Act in question only applies when horm ones are used “to sim ulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears m ore like the opposite gender.” W is. Stat. § 302.386(5m )(a)(1). Sim ilarly, only surgical procedures that “alter a person’s physical appearance so that the person appears m ore like the opposite gender” are prevented under the Act. W is. Stat. § 302.386(5)(a)(2). (See also, PFOF ¶ 6). The remainder of the plaintiffs’ assertions are not m aterial facts as it relates to the defendants’ m otion for sum m ary judgm ent. (DReply ¶ 28.)
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A: Would it present security concerns. And I think my answer would be there probably would be security concerns for any highly effeminate inmate whether they were undergoing gender identity disorder, real life experience or not. And I think the research from BJS is real clear that inmates who are highly effeminate or known homosexuals or in other cases, you know, known transgender inmates may, you know, not be homosexual, have nothing to do with homosexuality do, in fact, by virtue of presenting themselves as highly effeminate people present additional security concerns, yes.
(Schmelzer Aff., Exhibit 533, p. 155).11 (DFOF ¶ 29.) Walter Kautzky further testified:
Q: All other things being equal, is an inmate who is more feminine than another inmate at increased risk of victimization? A: According to the research, yes. Q: And you agree with that? A: Yes, sir.
(Schmelzer Aff., Exhibit 533, p. 161). (DFOF ¶ 30.) Continuing, Kautzky stated:
Q: Would you agree with me that correctional institutions should not create conditions that make inmates more vulnerable to assault? A: Would I agree that institutions should not make – create conditions that would make inmates more vulnerable to assault? Yes, I would agree with that.
(Schmelzer Aff., Exhibit 533, pp. 161-162). (DFOF ¶ 31.)
On June 20, 2007, Matthew Davison was deposed and testified:
11 Plaintiffs do not dispute the accuracy of this quotation. However, this proposed finding is m isleading because it is taken out of context. This quotation refers to the Real Life Experience, a period of living as a different gender that is recomm ended by the Standards of Care prior to certain form s of sex reassignment surgery. The Real Life Experience m ay be possible in a prison setting. Regardless, however, facilitation of the Real Life Experience in a prison setting is not at issue in this case. Furtherm ore, even if the Real Life Experience were relevant to this case, it is not a prerequisite for adm inistration of hormone therapy. The Standards of Care acknowledge that some form s of sex reassignment surgery can be appropriate even without RLE. Contrary to defendants’ im plication, provision of hormone therapy or sex reassignm ent surgery does not necessarily require the prison to facilitate a fem ale gender role for an inm ate by providing access to m akeup or fem ale clothing, nor do plaintiffs seek this. (PRDFOF ¶ 10.)
Defendants submit that as to plaintiffs’ additional assertions, Mr. Kautzky’s response speaks for itself. Though asked about the real life experience, Mr. Kautzky’s response was clearly broader in scope, and he clearly stated that highly effem inate inm ates present additional security concerns. (DReply ¶ 29.)
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Q: Do you think you’re able to live as a woman here in prison? A: In a male institution, it’s hard. Q: Why is that? A: The men trying to get on you, harass a lot by staff and inmates. I’m pretty much perceived as a female in here. Q: Is prison life different than life outside prison? A: Yes. Q: Is it a lot different? A: Yes. You’ve got to be much more careful. Q: Do you think they make you more of a target for men trying to get on you and harass here in prison? A: I’m not sure how to answer that. Q: Do you think some of the physical effects that you’ve seen result from – I’ll finish for the record. Some of the physical effects that you have seen from female hormones make you more of a target for men trying to get on you and being harassed here in prison? A: Yes. Q: When you say men trying to get on you, what do you mean by that? A: Trying to have sex.
(Schmelzer Aff., Exhibit 532, pp. 43-44). (DFOF ¶ 32.) According to plaintiff Matthew
Davison, another inmate raped Davison and, in a separate incident, was also molested by yet
another inmate. (DFOF ¶ 33.)
In this action, plaintiffs ask that DOC health care providers be allowed to provide
them with medically necessary treatments for their serious health condition, Gender Identity
Disorder (GID).12 (PFOF ¶ 1.)
Gender Identity Disorder and its Treatment
GID is a serious health condition classified in the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edition - Text
12 Defendants dispute that plaintiffs have a serious m edical need that requires m edically necessary treatments. (DRPFOF ¶ 1.)
12
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Revision).13 (PFOF ¶ 2.) In its most severe manifestation, GID is referred to as transsexualism. The DSM is the official diagnostic manual used by nearly all mental health providers.14 (PFOF ¶ 3.) Ordinarily, a GID diagnosis is made when the following criteria are present: 1) a strong and persistent cross-gender identification; 2) a persistent discomfort with one’s sex or a sense of inappropriateness in the gender role of that sex; 3) the disturbance is not concurrent with a physical intersex condition; and 4) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.15 (PFOF ¶ 4.) Also, cross-gender identification cannot be reversed through psychotherapy. (PFOF ¶ 5.) According to Dr. Frederic Ettner, M.D.: “Once you’re born with gender identity disorder, you stay with gender identity disorder, whether you’re withdrawn from therapy or on therapy.” (Knight Decl., Exh. 218, F. Ettner Dep. Tr. at 32.)
To alleviate the psychological distress or impairment caused by GID, many male-to-female transsexuals seek to express their female gender identity through appearance, mannerisms, name and pronoun choices, or by otherwise identifying and expressing themselves as women. (PFOF ¶ 6.) Significantly, many do so well before hormone therapy.
Transsexual health experts have determined that hormone therapy and sex reassignment surgery are medically necessary treatments for some individuals with GID. This determination is supported by the Standards of Care, which are accepted worldwide, and
13 Defendants dispute that “GID is a serious health condition.” (DRPFOF ¶ 2.) 14 Defendants dispute. (DRPFOF ¶ 3.) 15 Defendants do not dispute that this is the diagnostic criteria for GID in the DSM-IV. Defendants object to the statement “GID is properly diagnosed when the following criteria are present” as not supported by the evidentiary material cited. (DRPFOF ¶ 4.)
13
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represent the consensus of professionals regarding the psychiatric, medical and surgical
management of GID. Untreated GID “will cause disastrous results quite often.” (Knight Decl.,
Exh. 213, R. Ettner Dep. Tr. at 51.) No treatments can substitute for hormone therapy or sex
reassignment surgery for people with GID who have a medical need for such treatments.16
(PFOF ¶ 7.)
DOC medical personnel agree that hormone therapy and sex reassignment
surgery are medically necessary treatments for some individuals with GID. As Dr. David
Burnett, DOC Medical Director, stated in his deposition of June 12, 2006:
Q: Is it your professional medical opinion that gender identity disorder is a health condition that requires treatment? A: Yes, I would agree with that, that it requires treatment and evaluation. Q: To your knowledge, what are the commonly-accepted forms of treatment for gender identity disorder? A: My understanding is there is what is referred to as the triad system in terms of hormonal therapy, living in a real-life situation and surgical therapy.
16 Defendants dispute. Transgender issues and GID do not result in a serious medical need and do not require treatm ent. Rather, each transgender individual decides which options to pursue and how far and how fast to go with regard to these life-changing options. Som e elect horm one therapy without surgery. Som e elect cosmetic surgery. Som e cross-dress and cross identify in select circum stances only. Each individual does what they need and can accept and can afford, not what is “required.” It is undisputed that the Standards of Care state:
However, the diagnosis of GID invites the consideration of a variety of therapeutic options, only one of which is the com plete therapeutic triad. Clinicians have increasingly becom e aware that not all persons with gender identity disorders need or want all three elem ents of triadic therapy. .... The therapist should make clear that it is the patient’s right to choose among many options. .... Horm one therapy can provide significant comfort to gender patients who do not wish to cross live or undergo surgery, or who are unable to do so. .... Although professionals m ay recom m end living in the desired gender, the decision as to when and how to begin the real-life experience remains the person’s responsibility. (Docket No. 5, Dupuis Declaration, Exhibit E, Standards of Care for Gender Identity Disorders, Sixth Version, pp. 3, 10, 12, 15.) W hether this choice is term ed “treatm ent” by plaintiffs’ experts and the SOC or not, it cannot be disputed that a GID patient chooses what conditions would sufficiently alleviate distress caused by their condition. (DRPFOF ¶ 7.)
14
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(Knight Decl., Exh. 222, Burnett Dep. Tr. at 35-36.) Dr. Kevin Kallas, DOC Mental Health Director, agrees that “gender identity disorder is a condition that needs treatment, and to prohibit that treatment in a blanket way without taking into account the individual circumstances of offenders is not a good idea.” (Knight Decl., Exh. 215, Kallas Dep. Tr., 6/12/06, at 14-15.) He further agrees that the DOC considers treatment necessary for some inmates with GID, and that Act 105 “takes away medically necessary treatment.” (Knight Decl., Exh. 215, Kallas Dep. Tr., 6/12/06, at 14-15.)17 (PFOF ¶ 8.)
DOC medical personnel admit that for some individuals, failure to provide medically necessary hormone therapy could cause adverse consequences to psychological well-being, including ongoing gender dysphoria, depression, anxiety, and, for some, even suicidal ideation. Other risks of not providing hormone therapy to a person with GID include “a higher risk of alcohol and drug use or dependency issues. . . . [and] some increased risk of borderline behaviors which could involve cutting on one’s self, as an example.” (Knight Decl., Exh. 224, Hull Dep. Tr. at 28.)18 (PFOF ¶ 9.) Hormone therapy might relieve the desire to self-castrate that is sometimes caused by GID. Hormone therapy is one of the mainstays of treatment for GID.19 (PFOF ¶ 10.)
17 Defendants object to the statem ent that “sex reassignm ent surgery” is “medically necessary treatm ent [] for some individuals with GID” as not supported by the evidentiary materials cited. Defendants do not dispute that these were statem ents made by Dr. Kallas and Dr. Burnett, but dispute the accuracy of those opinions. (DRPFOF ¶ 8.)
18 Defendants do not dispute that these were the opinions of Dr. Kallas, Mr. Greer, and Dr. Hull, but dispute the accuracy of those opinions. (DRPFOF ¶ 9.)
19 Defendants object to the statem ent “[h]orm one therapy m ight relieve the desire to self-castrate that is som etim es caused by GID” as not supported by the evidentiary materials cited. Defendant do not dispute that the rem ainder of this proposed finding is the opinion of Dr. Kallas, but dispute the accuracy of those opinions. (DRPFOF ¶ 10.)
15
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For a treatment to be medically necessary, it does not have to be a treatment for an emergency condition, but could be a chronic condition like gender dysphoria.20 (PFOF ¶ 11.) DOC personnel agree that, for some prison inmates with GID, sex reassignment surgery could be medically necessary.21 (PFOF ¶ 12.) Hormone therapy provided by DOC physicians is medically necessary care for the plaintiffs. In the deposition of Dr. David Burnett, DOC Medical Director, taken on June 12, 2006, the following was said:
Q: Do you have an opinion about whether the hormone therapy that those three inmates are receiving is medically necessary? A: Well, I believe that it is. Q: Why do you believe that? A: Well, I don’t believe that our physicians would prescribe it if it wasn’t medically necessary. (Knight Decl., Exh. 222, Burnett Dep. Tr. at 53-54.) Dr. Randi C. Ettner, who conducted evaluations of each plaintiff, agrees that hormone therapy is medically necessary for the plaintiffs that Dr. Ettner examined.22 (PFOF ¶ 13.) Removing an individual with GID from existing hormone therapy treatment creates the risk of negative health consequences on one or more body systems, including the brain and the metabolic systems, and can cause loss of bone density, increased risk of infection, and elevated lipids, leading to a heightened risk of heart disease or stroke. In addition to these medical risks and consequences, hormone withdrawal is accompanied by
20 Defendants do not dispute that this is the opinion of Dr. Kallas, but dispute the accuracy of those opinions. (DRPFOF ¶ 11.)
21 Defendants object to this proposed finding as not supported by the evidentiary m aterials cited. (DRPFOF ¶ 12.)
22 Defendants do not dispute that this accurately recites Dr. Burnett’s deposition testim ony, and that Dr. Ettner found a m edical necessity for each plaintiff, but dispute the accuracy of those opinions. (DRPFOF ¶ 13.)
16
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psychological and emotional risks and consequences, including depression and suicidal thoughts. (PFOF ¶ 14.)
DOC medical personnel agree that severe mental and physical health risks are associated with removing individuals with GID from hormone therapy treatment. Suicidal ideation is one risk of removing a patient with GID from their hormone therapy. Other medical consequences of hormone withdrawal include risk of self-mutilation; reversal or partial reversal of the changes induced by the hormones (such as breast development or redistribution of body fat); menopause-like symptoms; hot flashes, hair loss, mood swings, depression, and agitation; gender dysphoria, and a sense of loss. “Any preexisting psychiatric condition could worsen on the basis of being off hormones,” including depression. (Knight Decl., Exh. 215, Kallas Dep. Tr. 6/12/06, at 33-35.) Some of these risks may require treatment with antidepressants or psychotropic medications. Restoration of hormones reverses these effects.23 (PFOF ¶ 15.)
DOC administrative personnel agree that on health care matters, deference should be given to DOC health care staff. In the deposition of Judy Smith, Warden of Oshkosh Correctional Institution, taken on August 15, 2007, the following was stated:
Q: Would it be fair to say that you would defer to prison psychiatrists and psychologists in determining whether or not a particular condition warrants treatment in the prison setting? A: Yes.
23 Defendants object to the statem ent that DOC m edical personnel agree that “severe m ental and physical health risks” are associated with removing individuals with GID from horm one therapy treatment, as not supported by the evidentiary m aterials cited. They do not dispute the rem ainder of this proposed finding. (DRPFOF ¶ 15.)
17
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(Knight Decl., Exh. 225, Smith Dep. Tr. at 59.) (PFOF ¶ 16.) Prison security experts agree that they should follow the advice of prison health care providers regarding health care issues. (PFOF ¶ 17.)
Male-to-female transsexual inmates who seek hormone therapy in prison, notwithstanding any risks they perceive from any feminizing effects of those hormones, often express their feminine identity even in the absence of treatment or in ways that supplement the effects of the hormones.24 (PFOF ¶ 18.) Act 105
Prior to the passage of Act 105, DOC provided hormone therapy where medically necessary for inmates with GID.25 (PFOF ¶ 19.) Sometimes, DOC prescribes hormone therapy for reasons that do not have to do with GID, such as estrogen replacement therapy in post-menopausal years, or for inmates with a congenital or hormonal disorder that requires the administration of hormone therapy. (PFOF ¶ 20.) Only inmates with GID are singled out for the denial of medically necessary treatment.26 (PFOF ¶ 20, amended.)
The sponsors of Act 105 labeled it the “Inmate Sex Change Prevention Act.” (PFOF ¶ 21.) Press releases were issued by the sponsors of Act 105 prior to passage of the legislation stating that it was intended to prevent “bizarre taxpayer funded sex change procedure,” (Knight Decl., Exh. 227, Margolies Dep. Tr. at 29; Knight Decl., Exh. 246,
24 Defendants object to this proposed finding on the grounds that the evidentiary m aterials cited herein does not support this general proposition. (DRPFOF ¶ 18.)
25 Defendants do not dispute that DOC provided horm one therapy to some inm ates with GID prior to the passage of Act 105. They dispute that horm one therapy was medically necessary. (DRPFOF ¶ 19.)
26 Defendants dispute the statem ent “[o]nly inm ates with GID are singled out for the denial of medically necessary treatment.” (DRPFOF ¶ 20.)
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Margolies Dep. Exh. 266), and to stop the DOC policy of “[allowing] pharmacists within the

corrections system to give hormones to an inmate diagnosed with gender identity disorder.”

(Knight Decl., Exh. 227, Margolies Dep. Tr. at 29; Knight Decl., Exh. 246, Margolies Dep. Exh.

267.) (PFOF ¶ 22.) Several of the press releases noted that the issue of sex reassignment

treatment for inmates came to light when they learned that a Wisconsin transgender inmate

was receiving treatment that led her to develop “female characteristics, such as breasts.”

(Knight Decl., Exh. 227, Margolies Dep. Tr. at 27-28; Knight Decl., Exh. 246, Margolies Dep.

Exhs. 263, 265.) (PFOF ¶ 23.)

The legislative history of Act 105 shows that it was conceived and intended to

prevent administration of treatment for Gender Identity Disorder. The record does not

disclose any other medical testimony or arguments based on medical opinion that were presented during the only other hearing concerning Act 105. (Assembly Bill 184)27 (PFOF

¶ 24.)

Officially, DOC took a neutral position on Act 105.28 (PFOF ¶ 25.) However,

DOC medical personnel oppose Act 105's limitation on medical decision-making. In his

March 2005 Senate testimony regarding Act 105, Dr. Kallas stated that the cons of Act 105

“far outweighed the pros” (Knight Decl., Exh. 215, Kallas Dep. Tr., 6/12/06, at 114-15), and

that GID “is worthy of treatment in selected cases.” (Knight Decl., Exh. 215, Kallas Dep. Tr.,

6/12/06, at 129; Knight Decl., Exh. 249, Kallas Dep. Exh. 17.) He advised that taking away

27 Defendants object because the evidentiary m aterial cited does not support this proposed finding of fact, and because the evidentiary m aterial cited lacks sufficient foundation to support the propositions contained in this proposed finding. (DRPFOF ¶ 24.)
28 Defendants do not dispute that DOC testified “for inform ation only” of Act 105, and assert that it is rare that DOC “do it any other way.” (Knight Decl., Exh. 227, Robert Margolies Dep. Tr. at 79-81.) (DRPFOF ¶ 25.)
19

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hormones from inmates for whom they are medically necessary may cause those inmates to
“become distressed or despondent; may go to point of clinical depression or an anxiety
disorder, or suicidality; increase in staff time for mental health care, or placement on WRC;
may lead to increase in disruptive behavior and segregation time; increase in psychotropic
medication (Antidep) (offset any cost savings).” (Knight Decl., Exh. 215, Kallas Dep. Tr.,
6/12/06, at 129; Knight Decl., Exh. 249, Kallas Dep. Exh. 17.) (PFOF ¶ 26.)
Dr. David Burnett, DOC Medical Director, testified in his June 12, 2006,
deposition:
A: Well, my opinion on Act 105 is a general one that I don’t believe that medical care ought to be legislated and that medical care ought to be left to clinicians. I think it’s bad public policy to get into legislating health care in terms of specifics like this. Q: When you say “like this,” do you mean the prohibition of care to transgender inmates? A: Correct . . .
(Knight Decl., Exh. 222, Burnett Dep. Tr. at 90.) (PFOF ¶ 27.)
James Greer, Bureau Director for DOC Health Services, had the following
deposition exchange:
Q: Would you agree that this Act takes away the ability of the Department of Corrections’ doctors to rely on their own medical judgment about providing hormones? A: Yes. Q: Can you tell me your views of the Act, its pros and cons? A: I guess the legislature – legislation basically takes away the autonomy of physicians to practice medicine to the best of their ability. Q: Do you think that’s a good thing or a bad thing? A: I think it’s a bad thing. Q: So in your view the medical judgment ought to remain within the doctors within the Department of Corrections? A: That’s my opinion, yes.
(Knight Decl., Exh. 223, Greer Dep. Tr. at 33-34.) (PFOF ¶ 28.)
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Dr. Stephen Hull was deposed on June 18, 2007, and said:
Q: Do you believe that Act 105 limits your ability to effectively treat GID? A: Yes.
(Knight Decl., Exh. 224, Hull Dep. Tr. at 59.) (PFOF ¶ 29.)
The cost of providing hormone therapy is low, in absolute terms and in terms
relative to the cost of providing medical treatment to address problems caused by untreated
GID. The cost of sex reassignment surgery is no greater than several other surgical
procedures provided to inmates.29 (PFOF ¶ 30.)
Act 105 has prevented DOC from undertaking thorough evaluation of several
inmates to determine what forms of GID treatment are medically necessary and appropriate
for them, because such evaluations would be futile under Act 105.30 (PFOF ¶ 31.)
DOC leadership rejects that notion that refusing to provide medically necessary
treatment for inmates with GID increases prison security or saves money. In the deposition
of Warden Judy Smith, taken on August 15, 2007, the following was stated:
Q: Do you think somebody being a transgendered prisoner makes them more likely to be the victim of sexual assault? A: No. Q: Do you think the fact that somebody is receiving hormone therapy makes them to be more likely to be a victim of sexual assault? A: No.
29 Defendants object to the statem ent, “[t]he cost of sex reassignm ent surgery is no greater than are several other surgical procedures provided to inm ates” as not supported by the evidentiary materials cited. Defendants do not dispute that most expensive surgical procedures include organ transplants, such as liver, kidney and pancreas and open heart surgical procedures; that for a coronary bypass – paid $37,244.09; that for a kidney transplant – paid $32,897.00; and that genital reassignment surgery costs approxim ately $20,000. (DRPFOF ¶ 30.)
30 Defendants object to the reference to “several inm ates” in this proposed finding as not supported by the evidentiary m aterials cited. They do not dispute the two DOC inm ates were not evaluated for horm one therapy given Act 105. (DRPFOF ¶ 31.)
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Q: Do you think a prisoner’s effeminate appearance or behavior might make them more likely to be a victim of sexual assault? A: No.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 51.)
Q: Do you consider transgendered inmates to be particularly vulnerable? A: No. Q: Do you consider gay inmates to be particularly vulnerable? A: No. Q: Do you view transgendered inmates as being a higher security risk in any way? A: No. Q: What about gay prisoners? A: No.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 44.)
Q: Are you aware of any situations in which you felt there was an aggressive prisoner – or prisoner who has a risk to be violent – where you felt that that prisoner was likely to target transgendered inmates? A: No. Q: Have you ever had a potentially aggressive prisoner that you thought only wanted to attack transgendered inmates? A: No that I can recall.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 35.)31 (PFOF ¶ 32.)
In the deposition of Dr. David Burnett, DOC Medical Director, taken on June 12,
2006, the following was said:
Q: What I’m asking is whether you think that the Department of Corrections has any interests that are furthered by Act 105? A: I guess, in my opinion, I don’t see interests that are furthered by Act 105.
31 Defendants object to the statem ent “DOC leadership rejects the notion that refusing to provide m edically necessary treatm ent for inmates with GID increase prison security or saves money” as not supported by the evidentiary material cited and that the evidentiary m aterial cited lacks sufficient foundation to support this assertion. They do not dispute that this proposed finding contains accurate excerpts from Sm ith’s deposition testim ony. (DRPFOF ¶ 32.)
22
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(Knight Decl., Exh. 222, Burnett. Tr. at 98.) (PFOF ¶ 33.)
The plaintiffs have been in general population for the bulk of their sentences to
date.32 (PFOF ¶ 34.) OCI Warden Judy Smith testified that, during her almost eleven years
as warden at OCI, she knows of no substantiated allegations of inmate-on-inmate sexual
violence.33 (PFOF ¶ 35.) In the deposition of OCI Warden Judy Smith taken on August 15,
2007, the following was stated:
Q: Do you do anything to identify prisoners who are more likely to be victims of violence by other prisoners?
A: No.
Q: I think when we were talking about identifying potentially violent prisoners, you gave a similar answer – that there’s not really a formal process. Is there an informal process? I mean, is there observation – the observations of staff about individual inmates – would that potentially go into a determination that somebody is more at risk of being a victim of violence?
A: I think as I answered previously, I expect that staff look at everyone and be looking for signs that an inmate might be victimized – might be assaulted. You know, whichever way that it is, staff are expected to do continual daily observations. And when something – we’re seeing any kind of an adjustment issue or an inmate that is not coping well for whatever reason, then we will take steps to address that.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 39.)
Q: Are you aware of any situations in which a prisoner has been identified as potentially more assaultive than the average prisoner and something was done as a result of that?
32 Defendants do not dispute that plaintiff Sundstrom was in general population for the bulk of her DOC prison sentence, but object to the rem ainder of this proposed finding as not supported by the evidentiary materials cited. (DRPFOF ¶ 34.)
33 Defendants object to this proposed finding because it is not supported by the evidentiary m aterial cited. Sm ith testified that she does not recall any instances of prisoner-on-prisoner sexual violence at OSCI, but that she does recall investigations for this type of activity. (DRPFOF ¶ 35.)
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A: Yes.
Q: Can you explain – describe that situation?
A: I can recall a situation where an inmate arrived that had – was known to staff, and was brought to the supervisor’s attention. And, you know, we did a little closer monitoring of that particular inmate.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 30.)
A: If we separate an inmate from another, I just place that inmate in a different housing unit. There’s not generally a cost associated with that.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 37.) (PFOF ¶ 36.)
Other vulnerable inmates are provided with medically necessary care that creates even greater security concerns than the feminization due to hormones.34 (PFOF ¶
37.) There are no additional security costs associated with protecting prisoners with GID from
violence. As Warden Judy Smith testified on August 15, 2007:
Q: Okay. Are you able to identify any costs associated with protecting inmates with gender identity disorder from violence? A: I – no. Q: So there are no costs that you’re aware of? A: I’m not aware of any.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 57.)
Q: Has having transgendered prisoners at Oshkosh made any difference in terms of how you staff units in which they’re living? A: No. Q: Have you ever had to ask for additional staff because of the presence of transgendered inmates? A: No.
34 Defendants object to this proposed finding because it is not supported by the evidentiary material cited. (DRPFOF ¶ 37.)
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(Knight Decl, Exh. 225, Smith Dep. Tr. at 49.)35 (PFOF ¶ 38.) Vankemah Moaton
DOC’s own medical personnel have diagnosed plaintiff Vankemah Moaton with GID and have prescribed hormone therapy for Moaton repeatedly.36 (PFOF ¶ 39.) Dr. Randi Ettner, an expert in GID diagnosis and treatment, has confirmed that Moaton has GID, that hormones are medically necessary for Moaton, and that termination of Moaton’s hormones would have devastating and potentially life-threatening consequences.37 (PFOF ¶ 40.) Defendants’ expert in another pending case involving a transgender inmate in Wisconsin concluded that termination of hormones for someone already taking them is “cruel and clinically inappropriate.”38 (PFOF ¶ 41.) Dr. Daniel Claiborn
Defendants’ psychology expert, Daniel Claiborn, testified that no one has a medical need for hormone therapy or sex reassignment surgery, because GID is not a valid psychiatric diagnosis and, even if it were, no treatment for it would be medically necessary. In the deposition of Dr. Claiborn taken on June 12, 2007, the following was said:
35 Defendants do not dispute these are accurate excerpts from Sm ith’s deposition testim ony, however, objects to the statem ent “[t]here are no additional security costs associated with protecting prisoners with GID from violence” because the evidentiary m aterial cited lacks sufficient foundation to support this broad assertion. W hile this may be the case at OSCI and W arden Sm ith’s experience, she never testified as to the experiences of GID inm ates in other facilities with other security levels, security classifications, and/or different classifications of inm ates. (DRPFOF ¶ 38.)
36 Defendants do not dispute, but assert that horm one therapy is not m edically necessary treatment. (DRPFOF ¶ 39.)
37 Defendants do not dispute that this is Dr. Ettner’s opinion, but dispute the accuracy of those opinions. (DRPFOF ¶ 40.)
38 Defendants do not dispute that this was the opinion of Cynthia S. Osborne, MSW , in another case, but dispute the accuracy of that opinion. (DRPFOF ¶ 41.)
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Q: Who hired you in this case? A: The State of Wisconsin. Q: Who contacted you first? A: Jody Schmelzer. Q: And what did Jody ask you to do? A: She asked me to review the records on – with regard to these plaintiffs, and offer opinions not so much about these particular plaintiffs, but about the issues having to do with medical necessity and requirement to treat gender identity disorder as a mental illness.
(Knight Decl., Exh. 231, Claiborn Dep. Tr. at 11.)
A: . . . The opinions I outline in my report are: One, that I don’t believe gender identity disorder is a mental disorder or a mental illness. And, secondly, that since it isn’t a mental disorder or mental illness, I don’t believe that medical treatment is a requirement for people who find themselves in that situation. The third opinion would be that I don’t believe that the DSM and the process behind that is scientific or authoritative in the strictest scientific sense in terms of outlining and defining mental disorders. I think those are the primary ones.
(Knight Decl., Exh. 231, Claiborn Dep. Tr. at 13-14.)
Q: Do you think transgender people who have taken hormone therapy for years have a medical need for those hormones? A: No. Q: Why not? A: Well, I’m not – I don’t know – I’m not a medical doctor, and I don’t know the physiology of how their bodies are functioning. But speaking in terms of treatment for a disorder, I don’t think that they would have a need to start. It’s an option, and it’s something that they make a decision about continuing to use with the advice of their doctors in terms of the physical effects, but I’m not speaking as an M.D.
(Knight Decl., Exh. 231, Claiborn Dep. Tr. at 226-27.) (PFOF ¶ 42.)
Dr. Claiborn disclaimed any opinion about the validity of any particular plaintiff’s
diagnosis or need for treatment:
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Q: Turning to page 3 of the report, at the top you have a note about plaintiffs Moatan [sic] and Davison. Have you reviewed any records for either Moatan or Davison? A: No. Q: And you write, “It is not expected that reviewing their records will change any of the opinions contained herein.” Did I read that correctly? A: Yes. Q: Why do you not expect, or why did you not expect that reviewing their records would change your opinions? A: Because my opinions are more general about the issue of diagnosing transgender situations as mental disorders, not so much specifically about the particulars of the plaintiffs in the case. Q: So in the records of the three plaintiffs that you did review, did you see anything in those records that affected your opinion in this case? A: I didn’t see anything in the records that directly affected my opinion about the general issue of whether transgender situations are mental disorders. Q: So is it accurate to say that your review of the plaintiffs’ records did not affect your opinion about whether GID is a mental disorder? A: Yes.
(Knight Decl., Exh. 231, Claiborn Dep. Tr. at 18-19.)
Q: Did you form any opinions about the diagnoses of the plaintiffs? A: I observed in the records what their diagnoses have been, but I didn’t independently render a diagnosis on these three plaintiffs. Q: Did you ask to meet with the plaintiffs? A: No. Q: Did you form an opinion based on your review of their records as to whether they had diagnoses of GID? A: Yes. Q: What was you opinion? A: It seems as though each one of them has been diagnosed GID. Q: And were you able to evaluate or discern whether you agree with that diagnosis? A: I didn’t actually critically examine it. I took it for granted that those diagnoses were warranted.
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(Knight Decl., Exh. 231, Claiborn Dep. Tr. at 20-21.)39 (PFOF ¶ 43.) Kari Sundstrom and Lindsey Blackwell
Kari Sundstrom has been released from prison, but remains on extended supervision. (PFOF ¶ 44.) The DOC directory, Vinelink, lists Sundstrom as having “absconded.”40 (PFOF ¶ 45.) On April 20, 2007, a criminal complaint against Sundstrom was filed in Dane County Circuit Court. (PFOF ¶ 46.) Consequently, a felony warrant issued the same day. Lindsey Blackwell has been released from prison, but remains on extended supervision. (PFOF ¶ 47.)
ANALYSIS The defendants contend that, 1) summary judgment is proper on the plaintiffs’ facial challenge to the Inmate Sex Change Prevention Act because the Act is not unconstitutional in all applications; 2) plaintiffs Sundstrom and Blackwell should be dismissed inasmuch as the only relief requested is injunctive and declaratory relief; these plaintiffs are no longer in prison; and none of the incarcerated plaintiffs is housed at Racine Correctional Institution; and 3) plaintiffs cannot prevail on their equal protection claim because the Inmate Sex Change Prevention Act is rationally related to DOC’s legitimate penological goals of safety and security.41
39 Defendants dispute the statem ent that Dr. Claiborn “disclaim ed any opinion about the validity of any particular plaintiffs ... need for treatment.” (DRPFOF ¶ 43.)
40 Defendants do not dispute, for the purposes of sum m ary judgm ent only. (DRPFOF ¶ 45.) 41 In their brief-in-chief, the defendants also argued that summary judgment was proper on plaintiff Moaton’s as-applied challenge to the Inm ate Sex Change Prevention Act because no adm issible expert testim ony supported that horm one therapy was medically necessary to treat plaintiff Moaton’s gender identity disorder. However, subsequently plaintiff Moaton agreed to waive the Fifth Am endment privilege and answer questions concerning prior use (and possible withdrawal) of horm one therapy, along with prior feminizing procedures that had been done. Given this stipulation, the defendants withdrew their motion for sum m ary judgm ent on plaintiff Moaton’s as-applied challenge to W is. Stat. § 302.286(5m ). (Defs.’ Reply Br. at 1.)
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In response, plaintiffs first contend that there are disputed facts material to whether Act 105 is facially unconstitutional. They argue that Act 105 applies only when it bars doctors from prescribing medically necessary health care, and that it categorically prevents DOC medical providers from exercising their medical judgment to provide medically necessary treatment. Second, plaintiffs contend that plaintiffs Sundstrom and Blackwell’s claims for declaratory injunctive relief are not moot. Third, plaintiffs submit that there is a genuine dispute of fact whether Act 105 violates the Equal Protection Clause of the Fourteenth Amendment, and that their evidence shows that Act 105 intentionally discriminates between similarly situated classes. Also, plaintiffs assert their evidence shows that Act 105 cannot withstand the constitutionally-mandated level of scrutiny because it is not justified by defendants’ interest in maintaining prison security. Specifically, plaintiffs argue that their evidence shows that Act 105 does not rationally further defendants’ interest in maintaining prison security; that their evidence shows that prisoners have no alternative means of accessing the medical treatment at issue; that their evidence shows that accessing hormones and surgery has no significant impact on prison guards or other prisoners, or the allocation of prison resources; and that their evidence shows that Act 105 is an exaggerated response to defendants’ prison security concern. 1. Facial Challenge to the Inmate Sex Change Prevention Act
The defendants contend that plaintiffs’ facial challenge to the Act cannot succeed because the Act is not unconstitutional in all applications. According to the defendants, the Act does not apply to all inmates, because not all inmates have gender issues. For those inmates who do not have a medical need for those procedures because
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they do not have gender issues, the Act does not run afoul of the Eighth Amendment. The
defendants assert:
Clearly, the Act is not unconstitutional in all applications. In fact, the plaintiffs have, at best, only presented evidence that of the over 20,000 inmates it covers, the Act may only run afoul of the constitution as it applies to seven (7) individual inmates’ need for hormones, . . . (2) two of which [sic] the Act no longer effects . . .
(Defs. Br. in Support of Mot. for Summ. J. at 9) (internal citations omitted).
The plaintiffs contend that disputed facts material to whether the Act is facially
unconstitutional preclude granting summary judgment on the facial challenge. According to
the plaintiffs, the Act “applies” only when it bars doctors from prescribing medically necessary
health care; it does not “apply” to all DOC inmates.
Supreme Court precedent makes clear that only the relevant applications are to be considered, rejecting states’ attempts to defend legislation by pointing to the fact that some members of the general public remain unaffected. The Act is unconstitutional in all of its applications because the Act applies only where it makes a difference by actually preventing a DOC doctor from following her own medical judgment and providing medically necessary care. All of those applications violate the Eighth Amendment and the Equal Protection Clause.
(Pls.’ Resp. Br. at 6-7.) The plaintiffs offer that there is a dispute over whether the medical
care prohibited by the Act is necessary to meet a serious medical need.
In reply, the defendants assert that assuming, arguendo, the appropriate class
is limited to those inmates who desire hormone therapy and/or sexual reassignment surgery
and whose physicians would otherwise prescribe those treatments, plaintiffs cannot show that
there is no set of circumstances under which the Act could be applied constitutionally.
Thus, even for inmates who are diagnosed with GID, and even for those whose physician might otherwise prescribe
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hormonal and surgical procedures as treatment for their GID, there is no violation for Eighth Amendment purposes where prison policy or statute forbids those treatments, as long as the physician evaluates serious medical needs and prescribes an alternate treatment to address the inmate’s symptoms.
Here, the plaintiffs could prevail on their facial challenge only if they showed that, for every inmate seeking hormone therapy or surgery, only those treatments – not the myriad of treatments that remain available to inmates – could provide even palliative care. The case law forecloses that claim, and the plaintiffs do not even assert it.
(Defs.’ Reply Br. at 3.)
The plaintiffs filed a surreply42 in which they contend that defendants’ argument
that the Act has constitutional applications “is simply incorrect as a matter of law.” (Pls.’
Surreply at 2.) Plaintiffs go on state:
Plaintiffs have never claimed that they are entitled to hormone therapy or SRS because they “desire” or “choose” it. Nor do they claim it because an outside medical expert believes that the treatment is medically necessary. Instead, they claim that they have a right to the medically necessary care to treat their serious GID, as determined by DOC health care professionals in the exercise of their medical judgment. The problem with Act 105 is that it deprives Plaintiffs of medical care that DOC medical personnel believe is medically necessary for them. In the case of all of the current Plaintiffs, the undisputed medical judgment of their DOC care providers is that hormone therapy is medically necessary treatment. Defendants’ medical personnel will decide that hormone therapy and possibly even surgery in some rare cases are medically necessary for inmates in the future, but Act 105 will impermissibly prevent them from providing it. Each such instance constitutes an application of Act 105.
...
42 On Septem ber 27, 2007, the plaintiffs filed Plaintiffs’ Motion for Leave to File Surreply Brief in Opposition to Defendants’ Motion for Sum m ary Judgm ent. They seek leave to file a surreply addressing argum ents raised for the first tim e in the defendants’ reply. Plaintiffs’ m otion, which is unopposed, will be granted.
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Defendants also argue for the first time that, as long as they provide some treatment for prisoners’ GID, they have satisfied the Eighth Amendment, even if they do not provide the hormone therapy or SRS that DOC medical staff have prescribed as medically necessary. Reply Br. at 3. This is simply a misstatement of law. If a treatment is necessary to treat a medical condition, a defendant cannot escape Eighth Amendment liability by providing plainly ineffective alternative treatments. See, e.g., Edwards, 478 F.3d at 831 (7th Cir. 2007) (“a plaintiff’s receipt of some medical care does not automatically defeat a claim of deliberate indifference,” if fact-finder could determine treatment was “blatantly inappropriate”); Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir. 1990); Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (Eighth Amendment plaintiff need not prove a “complete failure to treat”); Harrison v. Barkely, 219 F.3d 132, 138 (2d Cir. 2000) (“Even if prison officials give inmates access to treatment, they may still be deliberately indifferent to inmates’ needs if they fail to provide prescribed treatment”). Again, if some hypothetical prisoners with GID could be effectively treated, in the medical judgment of DOC medical staff, without hormone therapy or SRS (perhaps with psychotherapy alone), the Act would not “apply” to them, because it imposes no restriction on their right to treatment for a serious medical need. However, for Plaintiffs, and for other prisoners for whom hormone therapy and surgery would be prescribed as medically necessary but for Act 105, the Act is unconstitutional in all of its applications.
(Surreply at 2, 4.)
Wisconsin Statute § 302.386 provides in relevant part:
(5m)(a) In this subsection:
1. “Hormonal therapy” means the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender. 2. “Sexual reassignment surgery” means surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender. (b) The department may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual
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reassignment surgery for a resident or patient specified in sub. (1).
Wis. Stat. § 302.386(5m).
“A facial challenge to a legislative Act is, of course, the most difficult challenge
to mount successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 746 (1987). In
Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833 (1992), the Court
described the appropriate class for the purpose of determining the validity of an abortion
statute:
Respondents attempt to avoid the conclusion that § 3209 is invalid by pointing out that it imposes almost no burden at all for the vast majority of women seeking abortions. They begin by noting that only about 20 percent of the women who obtain abortions are married. They then note that of these women about 95 percent notify their husbands of their own volition. Thus, respondents argue, the effects of § 3209 are felt by only one percent of the women who obtain abortions. Respondents argue that since some of these women will be able to notify their husbands without adverse consequences or will qualify for one of the exceptions, the statute affects fewer than one percent of women seeking abortions. For this reason, it is asserted, that statute cannot be invalid on its face. See Brief for Respondents 83-86. We disagree with respondents’ basic method of analysis.
The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not say that a law which requires a newspaper to print a candidate’s reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974). The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.
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Respondents’ argument itself gives implicit recognition to this principle, at one of its critical points. Respondents speak of the one percent of women seeking abortions who are married and would choose not to notify their husbands of their plans. By selecting as the controlling class women who wish to obtain abortions, rather than all women or all pregnant women, respondents in effect concede that § 3209 must be judged by reference to those for whom it is an actual rather than an irrelevant restriction. Of course, as we have said, § 3209's real target is narrower even than the class of women seeking abortions identified by the State: it is married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that in a large fraction of the cases in which § 3209 is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion. It is an undue burden, and therefore invalid.
Id. at 894-895; see also Gonzales v. Carhart, 127 S. Ct. 1610, 1639 (2007) (holding that
Partial Birth Abortion Act of 2003's ban “applies to all instances in which the doctor proposes
to use the prohibited procedure, not merely those in which the woman suffers from medical
complications”).
The case law indicates that the controlling class is determined by whom the Act
applies to. In this case, the Act applies when it bars doctors from prescribing health care that
they have determined to be medically necessary. Thus, according to plaintiffs, the Act is
unconstitutional in all applications. However, defendants contend that the Act is not
unconstitutional in all instances because DOC doctors could prescribe some other form of
treatment. Under these circumstances, according to the defendants, an inmate would be
receiving “some treatment” and thus there would be no Eighth Amendment violation.
To establish liability under the Eighth Amendment, a prisoner must show: (1)
that his or her medical need was objectively serious; and (2) that the official acted with
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deliberate indifference to the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001); see also Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir. 2000).
A serious medical need is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). Factors that indicate a serious medical need include “the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Gutierrez, 111 F.3d at 1373 (citations omitted). A medical condition need not be life-threatening to qualify as serious and to support a § 1983 claim, providing the denial of medical care could result in further significant injury or in the unnecessary infliction of pain. See Reed v. McBride, 178 F.3d 849, 852-53 (7th Cir. 1999); Gutierrez, 111 F.3d at 1371.
A prison official acts with deliberate indifference when “the official knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Prison officials act with deliberate indifference when they act “intentionally or in a criminally reckless manner.” Tesch v. County of Green Lake, 157 F.3d 465, 474 (7th Cir. 1998). Neither negligence nor even gross negligence is a sufficient basis for liability. See Salazar v. City of Chi., 940 F.2d 233, 238 (7th Cir. 1991). A finding of deliberate indifference requires evidence
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“that the official was aware of the risk and consciously disregarded it nonetheless.” Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001) (citing Farmer, 511 U.S. at 840-42).
Mere differences of opinion among medical personnel regarding a plaintiff’s appropriate treatment do not give rise to deliberate indifference. Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). However, deliberate indifference may be inferred “when the medical professional’s decision is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.” Id.; see also Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996) (citing as examples “the leg is broken, so it must be set; the person is not breathing, so CPR must be administered”).
“[T]o prevail on an Eighth Amendment claim ‘a prisoner is not required to show that he was literally ignored.’” Greeno v. Daley, 414 F.3d 645, 653-54 (7th Cir. 2005) (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)). A defendant’s contention that a medical care claim fails because the prisoner “received some treatment overlooks the possibility that the treatment [the prisoner] did receive was ‘so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate’ his condition.” Greeno, 414 F.3d at 654 (quoting Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (internal quotations omitted)).
In this case, DOC doctors have determined that hormone therapy is medically necessary to treat the plaintiffs’ GID. However, the parties disagree whether the medical treatments proscribed by the Act, hormone therapy and sex reassignment surgery, are ever medically necessary treatments for inmates with GID. If such treatments are medically necessary when doctors say that they are, and if prisoners do not receive the medically
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necessary treatment because of the Act, plaintiffs argue that the denial would violate the Eighth Amendment.
The parties agree that there are a variety of therapeutic options for persons with GID. (DFOF ¶ 13.) However, as plaintiffs point out (and as defendants dispute), that does not mean that the treatments proscribed by the Act are not medically necessary for some individuals with GID. Interfering with a doctor’s determination of “medical necessity” is serious; it may qualify as treatment “‘so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate’ his condition.” Greeno, 414 F.3d at 654 (citation omitted). At this stage, the court cannot conclude that the Act is not invalid on its face. Thus, the defendants’ motion for summary judgment as to this issue will be denied. 2. Plaintiffs Kari Sundstrom and Lindsey Blackwell
The defendants contend that plaintiffs Sundstrom and Blackwell should be dismissed because the only relief is injunctive and declaratory relief and because they are no longer in prison. Moreover, the defendants maintain that because plaintiff Blackwell was the only plaintiff in this suit residing at Racine Correctional Institution, defendants Humphreys and Nygren should be dismissed from this case.
The plaintiffs do not oppose the dismissal of defendants Humphreys and Nygren, but reserve the right to seek amendment of the pleadings should a plaintiff be assigned to Racine Correctional Institution prior to judgment. Regardless, the plaintiffs assert that plaintiffs Sundstrom and Blackwell’s claims for declaratory and injunctive relief are not moot because there is a reasonable likelihood that one or both of them might return to prison.
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To invoke Article III jurisdiction, a plaintiff seeking injunctive relief must show immediate, personal danger of sustaining direct injury. City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). In Knox v. McGinnis, 998 F.2d 1405, 1413-15 (7th Cir. 1993), the court held that a prisoner lacked standing to seek injunctive relief against the future use of a “black box” on prisoners in segregation because he had been released from segregation and had returned to the general prison population where he was no longer subjected to the use of the “black box.” In reaching its decision, the court relied upon City of Los Angeles v. Lyons, 461 U.S. 95 (1983) and O’Shea v. Littleton, 414 U.S. 488 (1974).
In Lyons, the plaintiff sued the City of Los Angeles and several police officers, alleging that the officers stopped him for a routine traffic violation and applied a choke hold without provocation. The plaintiff sought an injunction against future use of the choke hold unless the suspect threatened deadly force. The Supreme Court held that the plaintiff lacked standing to seek injunctive relief because he could not show a real or immediate threat of future harm. Lyons, 461 U.S. at 105. The Court relied upon its earlier decision in O’Shea in which it stated that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief...if unaccompanied by any continuing, present adverse effects.” O’Shea, 414 U.S. at 495-96. In O’Shea, the plaintiffs had alleged discriminatory enforcement of criminal laws. The Court held that there was no case and controversy because “the threat to plaintiffs was not ‘sufficiently real and immediate.’” Id. at 496-497. Similarly, in Lyons, the Court found that, although an allegation of an earlier choking was sufficient to confer standing for a damage claim, it did “nothing to establish a real and immediate threat” that the plaintiff would again be stopped for a traffic violation and a choke hold put on him. Lyons, 461 U.S. at 105.
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In the instant case, plaintiffs Sundstrom and Blackwell cannot establish a real and immediate threat that they again will be incarcerated in a DOC institution. The mere possibility that plaintiffs Sundstrom and Blackwell may again be incarcerated in a DOC institution is too speculative and does not establish a real and immediate case or controversy. Knox, 998 F.2d at 1413-14; see also Robinson v. City of Chi., 868 F.2d 959 (7th Cir. 1989). In light of the foregoing, plaintiffs Sundstrom and Blackwell lack standing to pursue their claims for injunctive relief. Therefore, they will be dismissed from this action. Defendants Humphreys and Nygren will be dismissed as well. 3. Equal Protection Claim
The defendants contend that the Act is rationally related to DOC’s legitimate penological goals of safety and security and that they are entitled to summary judgment dismissing the plaintiffs’ equal protection claim. According to the defendants, “[i]t is undisputed that denial of hormone therapy and sex reassignment surgeries is rationally related to prison safety and security.” (Defs. Br. in Support of Mot. for Summ. J. at 16.)
In this case, it is undisputed that limiting prisoners’ access to hormone therapy and sexual reassignment surgery makes them less effeminate, and as a result, less likely that they will be victimized by other inmates. DOC has an undisputable security interest in preventing these types of assaults. As this is a ‘conceivable state of facts’ that provides a rational basis for state action, the defendants are entitled to summary judgment on plaintiffs’ equal protection claim. Id. at 17. Plaintiffs counter that there is a genuine dispute of fact whether the Act violates the Equal Protection Clause. According to the plaintiffs, their evidence shows that the Act intentionally discriminates between similarly situated classes. In addition, plaintiffs contend
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that their evidence shows that the Act cannot withstand the constitutionally-mandated level
of scrutiny. Plaintiffs point to the standard of review set forth in Turner v. Safley, 482 U.S. 78
(1987), and conclude that “[b]ecause Plaintiffs’ evidence shows that Act 105 cannot withstand
the Turner standard, there are genuine disputes of material fact that preclude summary
judgment on plaintiffs’ equal protection claim.” (Pls.’ Resp. at 20.) Plaintiffs assert that their
evidence shows that Act 105 is not justified by defendants’ interest in maintaining prison
security because it is not reasonably related to it. Furthermore, plaintiffs contend that Act 105
cannot withstand even rational basis review.
Recently, the Seventh Circuit Court of Appeals reiterated the standard to be
applied in equal protection cases where no fundamental right or suspect classification is at
issue.
The purpose of the Equal Protection Clause of the Fourteenth Amendment is to “secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Vill of Willowbrok v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) (per curiam) (quoting Sioux City Bridge Co. v. Dakota County, Neb., 260 U.S. 441, 445, 43 S. Ct. 190, 67 L. Ed. 340 (1923)); Martin v. Shawano-Gresham Sch. Dist., 295 F.3d 701, 713-14 (7th Cir. 2002). Where (as here) no fundamental right or suspect classification is at issue, equal protection claims are evaluated under the rational-basis standard of review. Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277, 282 (7th Cir. 2003); Martin, 295 F.3d at 712; Hilton v. City of Wheeling, 209 F.3d 1005, 1007-08 (7th Cir. 2000). To prevail, a plaintiff must prove the following: (1) the defendant intentionally treated him differently from others similarly situated, (2) the defendant intentionally treated him differently because of his membership in the class to which he belonged, and (3) the difference in treatment was not rationally related to a legitimate state interest. Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950-51 (7th Cir. 2002); Discovery House, 319 F.3d at 282.
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Smith v. City of Chi., 457 F.3d 643, 650-51 (7th Cir. 2006). Thus, the court applies rational
basis review to plaintiffs’ equal protection claim.
The defendants argue that Act 105 is rationally related to the legitimate
penological interests of safety and security. See FCC v. Beach Communications, Inc., 508
U.S. 307, 313 (1993) (Under rational basis review, there is no constitutional violation if “any
reasonably conceivable state of facts” would provide a rational basis for government action).
It is undisputed that denial of hormonal therapy and sex reassignment surgeries is rationally related to prison safety and security. Even Plaintiffs’ prison security expert, Walter L. Kautzky, acknowledged that “Gender Identity Disorder and the presentation of effeminate characteristics create challenges in a prison system” (DFOF ¶ 27), and there is no question that the intent of hormone therapy and sexual reassignment surgery is to increase the presentation of feminine characteristics. See, Wis. Stat. § 302.386(5m)(a)(1). Kautzky also concedes that inmates who display effeminate characteristics are viewed as sexually available, which increases the possibility that the prisoner may be sexually assaulted by other prisoners (DFOF ¶ 28). There is no dispute that male inmates who appear more feminine are at an increased risk of victimization (DFOF ¶ 30). According to Kautzky, inmates presenting themselves as highly effeminate in a male prison present additional security concerns (DFOF ¶ 29). Kautzky also agrees that institutions should not create conditions that would make inmates more vulnerable to assault. (DFOF ¶ 31).
Plaintiff Matthew Davison, unfortunately, has first-hand knowledge of the effects his hormone therapy has upon his safety in prison. Davison was both raped and molested while in prison, and is constantly harassed by other inmates. (DFOF ¶¶ 32, 33). Davison agrees that he is more of a target for this type of aggression by other male inmates because of the physical effects his body has seen on hormone therapy. (DFOF ¶ 32).
The crux of Kautzky’s report is an attempt to mitigate the difficulty posed by inmates who use hormones to increase their femininity by comparing them to other inmates who pose difficulties, such as inmate who have HIV or are mentally ill. However, the fact that other inmates pose security difficulties in
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the prison has no bearing on whether the legislature had a rational basis for passing Wis. Stat. § 302.386(5m). The legislature need not “strike at all evils at the same time or in the same way.” Sutker v. Illinois State Dental Soc., 808 F.2d 632, 635 (7th Cir. 1986) (citing Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610 (1935)). It is sufficient that there is a problem “at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical, Inc., 348 U.S. 483, 48788 (1955). In this case, it is undisputed that limiting prisoners’ access to hormone therapy and sexual reassignment surgery makes them less effeminate, and as a result, less likely that they will be victimized by other inmates. DOC has an undisputable security interest in preventing these types of assaults. As this is a “conceivable state of facts” that provides a rational basis for state action, the defendants are entitled to summary judgment on plaintiff’s equal protection claim.
(Defs.’ Br. in Support of Mot. for Summ. J. at 16-17.)
There is no dispute that prison safety and security are legitimate penological
interests. See Overton v. Bazzetta, 539 U.S. 126, 133 (1993) (describing “internal security”
as “perhaps the most legitimate of penological goals). However, according to the plaintiffs,
their evidence shows that Act 105 does not rationally further defendants’ interest in
maintaining prison security.
Even if transsexual prisoners who present femininely are at risk of assault at the hands of male prisoners, Plaintiffs’ evidence shows that denying the medical treatment at issue does not rationally further Defendants’ interest in mitigating the risk of assault. By definition, male-to-female transsexuals experience a persistent discomfort with their assigned male sex and a strong female gender identity. (PFOF ¶¶ 2-4.) To alleviate the psychological distress or impairment caused by their GID, many such individuals whose gender identity is female express it through their appearance, mannerism, name and pronoun choices, or by otherwise identifying and expressing themselves as women. (PFOF ¶ 6.) Significantly, many seek to do so even absent surgery or hormone therapy. (PFOF ¶ ¶ 6, 18.) Thus, even without the medical treatments at issue, many male-tofemale transsexual prisoners will still identify or present
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themselves femininely, and therefore will still be at risk of assault at the hands of male prisoners. Defendants’ mischaracterization of Plaintiffs’ expert’s testimony does not change the analysis. The relevant inquiry is not whether transsexual prisoners who present femininely are at risk of assault, but rather whether denying hormones or surgery mitigates any such risk. Because denying Plaintiffs hormones or surgery does not reduce any risk of assault, it does not rationally further Defendants’ interest in mitigating the risk of assault.
(Pls.’ Resp. at 22.)
Based on the foregoing, the court finds that there is a genuine dispute of
material fact concerning whether Act 105 is rationally related to prison safety and security.
Thus, defendants’ motion for summary judgment on plaintiffs’ equal protection claim will be
denied.
Now, therefore,
IT IS ORDERED that the defendants’ motion for partial summary judgment
(Doc. #120) is GRANTED IN PART AND DENIED IN PART as described herein.
IT IS FURTHER ORDERED that defendants Robert Humphrey and Susan
Nygren are DISMISSED.
IT IS FURTHER ORDERED that plaintiffs’ motion for leave to file surreply brief
(Doc. #163) is GRANTED.
IT IS FURTHER ORDERED that plaintiffs’ motion for leave to file surreply brief
(Doc. #163) is GRANTED.
Dated at Milwaukee, Wisconsin, this 15th day of October, 2007.
BY THE COURT
s/ C. N. CLEVERT, JR. C. N. CLEVERT, JR. U. S. DISTRICT JUDGE
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 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

KARI SUNDSTROM, et al., Plaintiffs, v.
MATTHEW J. FRANK, et al., Defendants.

Case No. 06-C-0112 (CNC)

PLAINTIFFS’ TRIAL BRIEF ________________________________________________________________________

John A. Knight American Civil Liberties Union Foundation 180 N. Michigan Avenue Suite 2300 Chicago, Illinois 60601 (312) 201-9740 jknight@aclu-il.org

Laurence Dupuis
American Civil Liberties Union of Wisconsin Foundation, Inc. State Bar No. 1029261 207 East Buffalo Street Suite 325 Milwaukee, WI 53202-5712 (414) 272-4032 ldupuis@aclu-wi.org

Cole Thaler Lambda Legal Defense & Education Fund, Inc. 730 Peachtree St. NE, Suite 1070 Atlanta, GA 30308 (404) 897-1880 cthaler@lambdalegal.org

Attorneys for Plaintiffs

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TABLE OF CONTENTS
SUMMARY OF MATERIAL FACTS ...............................................................................1 Gender Identity Disorder and its Treatment. ................................................................1 Plaintiffs are Inmates with GID For Whom Hormone Therapy is Medically Necessary. .....................................................................................................................3 Defendants are Aware that GID is a Serious Medical Condition Requiring Treatment. .....................................................................................................................4 Act 105 Takes Away the Medical Discretion of DOC Medical Personnel to Prescribe the Medical Treatment for GID They Deem Medically Necessary. .............6 Act 105 Offers No Material Improvement in Security for Transsexuals or Reduction in Cost. .........................................................................................................7
ARGUMENT ....................................................................................................................10 I. Defendants’ enforcement of Act 105 to deny medically necessary treatment to Plaintiffs violates the Eighth Amendment. ..............................................................................................10 II. Defendants’ enforcement of Act 105 to deny medically necessary treatment to Plaintiffs even though they provide necessary medical treatment to other inmates violates the Equal Protection Clause. ...........................................................................24 III. Defendants’ enforcement of Act 105 to deny medically necessary treatment to transsexual inmates violates, on its face, the Eighth Amendment and the Equal Protection Clause. .......................................................................................................29 IV. Plaintiffs are entitled to a permanent injunction against the enforcement of Act 105 against them and on its face. ..............................30
CONCLUSION .................................................................................................................35
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SUMMARY OF MATERIAL FACTS Gender Identity Disorder and its Treatment.
Gender Identity Disorder (“GID”) is a serious mental health condition that typically requires treatment. Its diagnostic criteria are set out in the Diagnostic and Statistical Manual of Mental Disorders (“DSM”), the official diagnosis manual published by the American Psychiatric Association (“APA”). Persons with GID often describe their experience as being born into the wrong body, since they were born with the anatomy typically associated with one gender (e.g., male), but identify with the other (e.g., female). The DSM criteria include “a strong and persistent cross-gender identification,” and “a persistent discomfort with one’s sex or a sense of inappropriateness in the gender role of that sex” that cause “clinically significant distress or impairment in social, occupational, or other important areas of functioning.” “Clinically significant distress or impairment” refer to the existence of serious, persistent symptoms that impede one’s life by compromising work, social or intimate relationships, or some combination of these or other life functions. There are different levels of severity of GID. Persons who experience higher levels of distress as a result of the condition have severe or profound GID.
The established medical treatments for severe GID – cross-sex hormone therapy and, in some cases, sex reassignment surgery (“SRS”) – reduce and can even cure the serious distress of persons with GID by making their anatomy and appearance conform to their gender identity. For treatment to be medically necessary, the condition need not be a life-threatening emergency condition but may be a chronic illness, such as GID, whose symptoms improve or cease because of the treatment. The persons with GID for whom
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hormone therapy or SRS is medically necessary are transsexuals.1 Hormone therapy and SRS are the only treatments that effectively relieve, or even cure, the suffering caused by severe GID, and a substantial body of scientific research demonstrates that these treatments are effective at reducing the distress, or dysphoria, caused by GID. Psychotherapy may, for example, help persons understand their GID and manage the stresses associated with GID, its treatment, and the reactions of family, friends and employers, but it does not obviate the need for hormones or SRS nor can it cure the disorder. Experts in GID agree that hormone therapy is medically necessary for persons with severe or profound GID, and for others SRS is medically necessary.
The decision whether hormone therapy and surgery are medically necessary requires an individual assessment of the severity of someone’s GID. For some transsexuals, hormone therapy is sufficiently effective at treating the person’s dysphoria such that SRS is not medically necessary. For a smaller subset of transsexuals, SRS is medically necessary. A substantial body of scientific research shows that these treatments are the only effective ones for severe GID and that psychotherapy, antidepressants, and other medications are not successful alternatives. As with almost all medical treatment, a patient has the right to refuse the treatment for GID prescribed by medical providers. However, the existence of this choice does not show that the treatment is elective or cosmetic rather than medically mandated.
Male-to-female transsexuals who cannot access treatment often experience serious anxiety, depression, suicidal ideation, and a strong impulse to self-castrate in order to remove their testicles and rid themselves of the effects of testosterone. The
1 Although there are some subtle differences in the way different sources define transsexual, Plaintiffs use the word here to describe persons with severe Gender Identity Disorder who have a serious medical need for hormone therapy or sex reassignment surgery.
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symptoms of persons with GID who have another psychiatric disorder typically worsen when their GID is not treated. Untreated, studies show that twenty to thirty-five percent of persons with GID will commit suicide or attempt it. A significant percentage of maleto-female transsexual inmates whose GID is untreated either attempt or succeed at castrating themselves. The likelihood of self-castration or suicide among persons with untreated serious GID is especially great in prison, since there are no alternative means for the inmate to access treatment. A transsexual who attempted suicide in the past because of her GID is at greater risk of attempting suicide again. A male-to-female transsexual whose hormone therapy is interrupted faces a serious risk of negative health consequences to her body and will likely experience menopause-like symptoms, hot flashes, and mood swings, in addition to the psychological symptoms experienced by other transsexuals denied initiation of treatment. Re-starting a transsexual on hormone therapy will reverse many of the harmful physical and psychological effects of that treatment’s cessation.
Plaintiffs are Inmates with GID for Whom Hormone Therapy is Medically Necessary.
All of the Plaintiffs are inmates with GID who have taken feminizing cross-sex hormone therapy for many years, and consequently all have, to varying degrees, feminine physical characteristics. In addition, some of them have undergone further procedures to make themselves appear more feminine. For example, Plaintiff Andrea Fields has undergone breast augmentation surgery. All of the Plaintiffs identified and expressed themselves as women from an early age (well before they began hormone therapy) by using stereotypically female names, dressing in female clothing, wearing makeup,
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choosing feminine hairstyles, and walking and talking in stereotypically feminine ways. Several of the Plaintiffs attempted suicide several times prior to incarceration, in some cases expressly because of their transsexualism.
All of the Plaintiffs were diagnosed with GID by DOC medical providers who also prescribed hormone therapy for them, because the providers determined that hormone therapy was medically necessary for them. However, because of Act 105, DOC began to taper the hormone dosages of the Plaintiffs, and they consequently experienced a number of negative symptoms, including mood swings, hot flashes, severe headaches, bloating, crying fits, nausea and depression, until, as a result of the preliminary injunction entered in this case, the hormone dosages were returned to their previous levels. The reinstatement of hormone therapy ended the adverse withdrawal symptoms experienced by the Plaintiffs.
Other inmates whom DOC medical personnel have diagnosed with GID have not been evaluated to determine whether hormone therapy is medically necessary for them, because of Act 105. One of those inmates is Kenneth Krebs, a/k/a Karen Krebs. Another, Erik Huelsbeck, a/k/a Erika Huelsbeck, was in DOC-administered facilities until she was transferred to the Wisconsin Resource Center in July 2007. Dr. Randi Ettner examined Karen Krebs and concluded that hormone therapy is medically necessary for her.
Defendants are Aware that GID is a Serious Medical Condition Requiring Treatment.
DOC medical personnel agree that GID is a serious health condition that requires treatment, and that hormone therapy and sex reassignment surgery are medically
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necessary treatments for some individuals with GID. Prior to the passage of Act 105, DOC’s practice was to prescribe hormone therapy for inmates with GID who were receiving it prior to incarceration and to initiate hormone therapy for inmates with GID for whom they concluded it was medically necessary. If not for Act 105, DOC would continue its former policy of prescribing hormone therapy to inmates who were taking it when incarcerated and to other inmates for whom they conclude it is medically mandated. DOC policy prior to the passage of Act 105, as set out in Executive Directive 68, prohibited medical personnel from prescribing SRS as a treatment for GID, but DOC leadership could have overridden that policy if medical judgment required them to do so in order to treat a severe case of transsexualism.
The Defendants know the serious medical and psychiatric risks of denying hormone therapy to inmates with GID, including gender dysphoria, depression, anxiety, and suicidal ideation. DOC medical and psychiatric personnel agree that hormone therapy is medically necessary treatment for Plaintiffs. They also admit that certain inmates with GID who have not received hormone therapy in the past, such as Karen Krebs, should be evaluated to determine whether hormone therapy is medically necessary for them. DOC would have evaluated Ms. Krebs for hormone therapy, if Act 105 did not make that evaluation futile.
DOC medical personnel agree that medically necessary treatment should not be decided solely based on the care commonly reimbursed by health insurance, since inmates do not have the freedom of choice over health insurance and care available to others. They also not that many inmates receive better health care in prison they did before incarceration, because so many people are uninsured or underinsured.
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Consequently, the fact that some inmates with GID did not have insurance to pay for their GID treatment does not distinguish them from other inmates.
Act 105 Takes Away the Medical Discretion of DOC Medical Personnel to Prescribe the Medical Treatment for GID They Deem Medically Necessary.
Act 105 prevents DOC from prescribing hormone therapy or SRS to alter a “person’s physical appearance so that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m). Although the Act is directed at the funding of these therapies, the result, in light of DOC’s policy against allowing inmates to pay for or seek insurance coverage to pay for their health care, is a complete bar on these treatments in DOC administered prisons. DOC medical staff can prescribe hormone therapy to treat conditions other than GID, such as estrogen replacement therapy in post-menopausal women, without violating the Act. Only transsexuals are denied across-the-board medically necessary treatment without the exercise of any individualized medical judgment. No laws other than Act 105, and no DOC policies, completely deprive DOC personnel of their ability to exercise medical judgment to provide appropriate treatment.
Act 105 was drafted without the involvement of DOC, was passed against the advice of DOC medical personnel who testified before the Legislature, and was motivated by skepticism about the legitimacy of GID and hostility toward transsexuals. DOC’s Mental Health Director, Dr. Kevin Kallas, testified that the negative consequences of Act 105 outweighed any benefit from the Act, since barring hormone therapy can cause significant health risks whose treatment would offset any cost savings from not providing hormones. In the legislative hearing at which Dr. Kallas testified, some legislators expressed skepticism that GID is a valid diagnosis, notwithstanding the
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fact that no other medical personnel spoke. No medical or correctional personnel testified before the legislature other than Dr. Kallas and Dr. David Burnett, the Medical Director for DOC. The legislative sponsors of the bill that became Act 105 labeled it the “Inmate Sex Change Prevention Act,” stating in press releases that it aimed to prevent “bizarre taxpayer funded sex procedures,” “outlandish taxpayer funded medical procedures,” and “the most ridiculous program I’ve seen yet in the state government.” “[I]f [DOC] can’t do the right thing on their own, it looks like we’ll have to legislate common sense,” wrote the legislative sponsors.
Act 105 Offers No Material Improvement in Security for Transsexuals or Cost Savings for DOC.
Even if effeminate inmates are at greater risk of harassment or assault by other inmates in a male prison than are more masculine ones, Plaintiffs and other male-tofemale transsexual inmates have long-standing female identities and find various ways to identify themselves as women and express their femininity even in the absence of hormone therapy. They do so by the way they dress, style their hair, groom, walk and talk and by their choice of female names and pronouns. They also simply disclose their female identity to others, whether or not they are on hormone therapy. They are motivated to identify and express themselves as women, even in prison, in those ways that are available to them even before they have taken hormone therapy to help them alleviate their gender dysphoria. However, even though these efforts may reduce slightly the gender dysphoria, the failure of these efforts by themselves to successfully treat transsexuals’ GID is virtually assured.
Plaintiffs and other inmates, such as Karen Krebs, have expressed and identified
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themselves as women while in prison, since their female identity does not go away even though they are in a male prison. The appearance of each of the Plaintiffs has been feminized to varying degrees by taking hormones for many years, and some of those feminine physical characteristics are permanent. Plaintiffs have made themselves appear feminine in ways other than the feminine physical characteristics that are the result of their years of hormone usage. In order to protect themselves from harassment or assault, some of the Plaintiffs take precautions to avoid attracting attention from the male inmates, such as avoiding tight or revealing clothing, that are the same kinds of measures any woman placed in a male prison would be expected to take. However, none of the Plaintiffs has denied her female identity, refused to accept feminizing hormones, or tried to prevent others from seeing them as women while in prison. Karen Krebs has not received hormone therapy, but wears her hair in a long, feminine style, shaves her face, legs and armpits, and tells prison staff and other inmates that she identifies as a woman.
All of the Plaintiffs, and former Plaintiffs Kari Sundstrom and Lindsey Blackwell, have been or were in the general population for most of their sentences, largely without experiencing serious harassment or assault. The one remarkable exception is Jessica Davison, who was raped in prison. Ms. Davison had identified and expressed herself as a woman for a number of years and had also taken feminizing hormones before she was incarcerated. There is no evidence to suggest that she became significantly more feminine in appearance or presentation during her stay in prison than she already was. Most importantly, there is no evidence that Ms. Davison’s rape could have been prevented by denying her medically necessary hormone therapy while in DOC custody, nor is that a reasonable conclusion to draw from the evidence.
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DOC is responsible for protecting Ms. Davison and other vulnerable inmates from harassment and assault, and it can and often does do so through readily available means, such as closer monitoring of inmates and moving those who need protection to different housing units. These measures cost DOC little or nothing. Their failure to protect Ms. Davison does not show that their procedures are generally ineffective. Plaintiffs Davison and Andrea Fields, former Plaintiff Kari Sundstrom, and Karen Krebs were or are housed at Oshkosh Correctional Institution (OSCI). The Warden of OSCI testified that an inmate who is effeminate in appearance or behavior is not at a higher risk of sexual assault than other inmates and does not require more correctional resources. There is no evidence that refusing to provide a transsexual hormone therapy or SRS will reduce any security risk transsexuals present. Similarly, there is no evidence that cutting someone off of hormone therapy makes her more secure against assault or harassment. Additionally, transsexuals are not the only effeminate inmates in prison, and effeminate inmates are not the only ones who may be at risk of harassment or assault. Medical conditions, other than GID, and their treatment present security challenges to which DOC has responded and must continue to respond.
The cost of hormone therapy is very small in comparison to other medications regularly prescribed for inmates by DOC medical personnel. Although more expensive than hormone therapy, SRS is no more expensive than some of the surgeries DOC provides for other serious medical conditions, such as organ transplants and open heart procedures.
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ARGUMENT
I. Defendants’ enforcement of Act 105 to deny medically necessary treatment to Plaintiffs violates the Eighth Amendment. “[C]oncepts of dignity, civilized standards, humanity, and decency” embodied in
the Eighth Amendment “establish the government’s obligation to provide medical care for those whom it is punishing by incarceration,” because “[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 102-103 (1976). See also Boyce v. Moore, 314 F.3d 884, 888-89 (7th Cir. 2002); Meriwether v. Faulkner, 821 F.2d 408, 411 (7th Cir.), cert. denied, 484 U.S. 935 (1987). Prison officials violate the Eighth Amendment when their actions or failures to act in response to prisoners’ health conditions evince “deliberate indifference to serious medical needs of prisoners.” Estelle, 429 U.S. at 104. An Eighth Amendment plaintiff must prove that the prison’s care was objectively inadequate to treat an objectively serious medical need and that the responsible prison official acted or failed to act with subjective “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 842 (1994).
Defendants’ enforcement of Act 105 results in objectively inadequate care for an objectively serious medical need, GID. A serious medical need is a medical or mental health condition diagnosed by a health care professional that requires treatment. See Monmouth Co. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987); see also Edwards v. Snyder, 478 F.3d 827, 830-31 (7th Cir. 2007) (the objective “serious medical need” element of Eighth Amendment claim is satisfied by “a medical condition ‘that has been diagnosed by a physician as mandating treatment’”). “A prescription medication is,
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by definition, medical treatment that has been deemed necessary by a medical professional.” Chambers v. Eppolito, No. 06-cv-449-PB, 2007 WL 1892093 *5 (D.N.H. June 29, 2007). Transsexuals’ need for medically prescribed treatment for their GID is, therefore, a serious medical need.
Psychiatric or psychological conditions have long been recognized as serious medical needs in this Circuit, Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983), and GID, a recognized mental health condition, is no exception. Meriwether, 821 F.2d at 413 (GID “may present a ‘serious medical need’” under Eighth Amendment); see also De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (serious medical need for treatment of compulsion to self-castrate caused by termination of transsexual prisoner’s hormones); Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991); White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988); Gammett v. Idaho State Bd. of Corrections, No. CV05-257S-MHW, 2007 WL 2186896, *14-15 (D. Idaho July 27, 2007); Barrett v. Coplan, 292 F.Supp.2d 281, 286 (D.N.H. 2003); Brooks v. Berg, 270 F. Supp. 2d 302, 309-10 (N.D.N.Y. 2003), vacated on other grounds, 289 F. Supp. 2d 286 (N.D.N.Y. 2003), and rev’d on other grounds sub nom. Lewis v. Berg, No. 9:00-CV-1433 (GLS/DEP), 2006 WL 1064174 (N.D.N.Y. April 20, 2006); Kosilek v. Maloney, 221 F.Supp.2d 156, 184 (D.Mass. 2002) (severe GID is serious medical need);Wolfe v. Horn, 130 F. Supp. 2d 648, 652 (E.D. Pa. 2001); Phillips v. Michigan Dep’t of Corrections, 731 F.Supp.792, 799 (W.D. Mich. 1990), aff’d, 932 F.2d 969 (6th Cir. 1991).
The Eighth Amendment requires that treatment for serious medical needs be objectively “adequate.” Meriwether, 821 F.2d at 411. “To prevail on an Eighth Amendment claim ‘a prisoner is not required to show that he was literally ignored.’”
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Greeno v. Daley, 414 F.3d 645, 653-54 (7th Cir. 2005) (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)). Nor must a plaintiff “prove a ‘complete failure to treat.’” Gammett, 2007 WL 2186896, *12 (quoting Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989); see also Edwards, 478 F.3d at 831 (“[A] plaintiffs’ receipt of some medical care does not automatically defeat a claim of deliberate indifference if a fact finder could infer the treatment was . . . blatantly inappropriate . . .”) (citation omitted). Rather, the determination of what care is adequate for a particular inmate’s condition “is a question of judgment that does not lend itself to mechanical resolution.” Ralston v. McGovern, 167 F.3d 1160, 1161-62 (7th Cir. 1999) (ascertaining whether medical care is “adequate” is “a matter of determining the civilized minimum of public concern for the health of prisoners, which depends on the particular circumstances of the individual prisoner”) (emphasis added). As another court explained, “[a]dequate medical care requires treatment by qualified medical personnel who provide services that are of a quality acceptable when measured by prudent professional standards in the community, tailored to an inmate’s particular medical needs, and that are based on medical considerations.” Barrett, 292 F. Supp. 2d at 285 (citing United States v. DeCologero, 821 F.2d 39, 42-43 (1st Cir. 1987)).
While recognizing that “medical ‘need’ runs the gamut,” Ralston, 167 F.3d at 1161-62, the Seventh Circuit has made clear that providing plainly ineffective or substantially less effective treatment violates the obligation to provide objectively adequate treatment. Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir. 1990); Harrison v. Barkley, 219 F.3d 132, 138 (2d Cir. 2000) (“Even if prison officials give inmates access to treatment, they may still be deliberately indifferent to inmates’ needs if they fail to
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provide prescribed treatment.”) (citation omitted); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985) (“[M]edical care . . . so cursory as to amount to no treatment at all” violates Eighth Amendment); West v. Keve, 571 F.2d 158, 162 & n.6 (3d Cir. 1978) (providing “easier and less efficacious treatment” may result in liability) (citation omitted). This is equally true where the care at issue is psychiatric care. See, e.g., Steele v. Shah, 87 F.3d 1266, 1269 (11th Cir. 1996) (psychiatric care that deviates so substantially from the accepted standards of care for that condition can constitute deliberate indifference).
Likewise, the Seventh Circuit has held on numerous occasions that delaying or denying medical treatment for reasons unrelated to the exercise of medical judgment can amount to a violation of the Eighth Amendment. See, e.g., Edwards, 478 F.3d at 831 (inmate stated Eighth Amendment claim where he was denied medical treatment for two days because prison doctor was “ringing in the new year” and did not want to be disturbed); Greeno, 414 F.3d at 654 (denying summary judgment where there was a factual dispute regarding whether denial of medication to inmate was a product of erroneous medical judgment or a desire to make inmate suffer); Foelker v. Outagamie County, 394 F.3d 510, 513 (7th Cir. 2005) (same); Kelley, 899 F.2d at 616 (holding that inmate could recover if he could prove that “clinic personnel deliberately gave him a certain kind of treatment knowing that it was ineffective, either as a means of toying with him or as a way of choosing ‘the easier and less efficacious treatment’”) (quoting Estelle, 429 U.S. at 104 n.10 (internal quotations omitted)). Other circuits have ruled likewise. See, e.g., Durmer v. O’Carroll, 991 F.2d 64, 67-69 (3d Cir. 1993) (“if the failure to
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provide adequate care . . . was deliberate, and motivated by non-medical factors, then [plaintiff] has a viable claim”).
This is not a situation where hormones or surgery were denied because a doctor decided, in the exercise of medical judgment, that they were not medically necessary. To the contrary, in this case, Plaintiffs will present evidence that each of them suffers from Gender Identity Disorder of such a severity that hormone therapy is a necessary part of adequate treatment for them. That showing will establish that they have a serious medical need for hormone therapy.
Nevertheless all inmates for whom hormones or surgery are medically necessary will be denied these forms of treatment because of Act 105’s blanket ban on their use to treat GID. Because Defendants are barred by Act 105 from providing treatments that the evidence will show that DOC health care staff believes are medically required, the care they provide is objectively inadequate. Durmer, 991 F.2d at 69 (If the failure to provide adequate care is “deliberate and motivated by non-medical factors,” it gives rise to Eighth Amendment liability.); see also Edwards, 478 F.3d at 830 (allegation that plaintiff “failed to receive adequate, timely care for a nonmedical reason” states deliberate indifference claim); Lanzaro, 834 F.2d at 347 (“by specifically categorizing elective abortions as beyond its duty to provide, the County denies to a class of inmates the type of individualized treatment normally associated with the provision of adequate medical care”).
In fact, since the enactment of Act 105, the evidence will show that Defendants have failed to evaluate for the appropriateness of hormone therapy some prisoners who have been diagnosed with GID, but have never previously received hormones, because
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such evaluations are made futile by Act 105. Yet the Eighth Amendment right to
adequate medical care requires that prisoners be provided not only with adequate
treatment but also with necessary diagnostic and evaluative services to determine what
treatment is necessary. Bismark v. Lang, No. 2:02-cv-FtM-29SPC, 2006 WL 1119189,
*13 (M.D. Fla. April 26, 2006) (adequate medical care “may include diagnostic tests
known to be necessary, not just medicinal and surgical care.”) (quoting Harris v. Coweta County, 21 F.3d 388, 394 (11th Cir. 1994)). Accordingly, by not evaluating prisoners
with GID and not forming individualized medical judgments as to whether hormone
therapy or sex reassignment surgery is medically necessary for them, Defendants are
deliberately indifferent to those prisoners’ serious medical needs. Brooks, 270 F. Supp.
2d at 312 (“Prison officials cannot deny transsexual inmates all medical treatment simply
by referring to a prison policy which makes a seemingly arbitrary distinction between
inmates who were and were not diagnosed with GID prior to incarceration”).
In addition to being objectively inadequate, Defendants’ decision to deny
adequate treatment for Plaintiffs’ serious medical need also runs afoul of the “subjective”
prong of the Estelle standard. As the Seventh Circuit has explained,
To satisfy the subjective component, a prisoner must demonstrate that prison officials acted with a “‘sufficiently culpable state of mind.’” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). The officials must know of and disregard an excessive risk to inmate health; indeed they must “both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists” and “must also draw the inference.” Farmer, 511 U.S. at 837. This is not to say that a prisoner must establish that officials intended or desired the harm that transpired. Walker [v. Benjamin], 293 F.3d [1030,] 1037 [(7th Cir. 2002)]. Instead, it is enough to show that the defendants knew of a substantial risk of harm to the inmate and disregarded the risk. Id. Additionally, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.
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Greeno, 414 F.3d at 653. Plaintiffs will show that Defendants have restricted access to medically necessary
care for transsexual inmates knowing that there was a high risk that serious harm could result from denying them hormones or surgery. Defendants are subjectively aware of the serious medical and psychiatric risks of denying hormone therapy for Plaintiffs and other transsexuals for whom it is medically necessary. Specifically, DOC medical personnel will testify that for some individuals with GID, failure to provide medically necessary hormone therapy could cause adverse consequences to psychological well-being, including ongoing gender dysphoria, depression, anxiety, substance abuse, and, for some, even suicidal ideation. DOC medical personnel also acknowledge that hormone therapy might relieve the desire to self-castrate that is sometimes caused by GID and that, for some inmates with GID, SRS could be medically necessary. This is sufficient to satisfy the “subjective” prong of the Eighth Amendment test. Haley v. Gross, 86 F.3d 630, 641 (7th Cir. 1996) (“a prisoner claiming deliberate indifference need not prove that the prison officials intended, hoped for, or desired the harm that transpired”).
In an attempt to frame this case as merely a dispute about particular medical decisions, Defendants insist that psychotherapy alone can constitute adequate medical care. This argument cannot withstand scrutiny. First of all, as a factual matter, the testimony of Plaintiffs’ experts and Defendants’ medical staff will establish that each of the Plaintiffs suffers from Gender Identity Disorder of such a severity that hormone therapy is a necessary part of adequate treatment for them. The fact that some transsexual individuals may not need hormone therapy or SRS to alleviate the distress associated with their GID does not make these treatments any less medically necessary
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for Plaintiffs. See, e.g., Lanzaro, 834 F.2d at 348 (existence of alternative approaches of
childbirth or abortion to pregnancy does not “affect the legal characterization of the
nature of the medical treatment necessary to pursue either alternative”).2 Consequently,
this case is unlike either Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997), or Supre v.
Ricketts, 792 F.2d 958 (10th Cir. 1986), cases in which there was no definitive medical
judgment by treating physicians that hormone therapy was medically necessary to treat
the plaintiffs’ alleged GID.3 In contrast to those cases, Plaintiffs here are prisoners with
gender identity issues who both have been diagnosed with GID and have been prescribed
medically necessary treatment for that condition by DOC medical providers. But for Act
105, Plaintiffs’ DOC doctors would proscribe GID treatment for Plaintiffs.
More importantly, however, courts have repeatedly rejected prisons’ attempts to
institute a “one size fits all” approach to the treatment of GID as constitutionally
unsound. For example, in Kosilek, the warden contended that the fact that the inmate had
received “some therapy” – i.e., psychotherapy – precluded the inmate from challenging
the policy denying her access to hormones. The court rejected this argument, noting that
the prison guidelines
2 Likewise, the fact that some private insurance policies do not provide coverage for hormone therapy or SRS for transsexual individuals does not undermine the fact that this care is medically necessary for Plaintiffs. As the court explained in Kosilek, “The Supreme Court has never held that a law-abiding private citizen has a right to adequate medical care. It is, however, clearly established that an inmate has such a right.” 221 F. Supp. 2d at 192 (noting that the Seventh Circuit’s reasoning in Maggert regarding the lack of Medicaid coverage for hormone therapy and SRS “ignores [this] crucial constitutional consideration”). See also Johnson v. Daley, 339 F.3d 582, 587-88 (7th Cir. 2003) (prisons have an obligation to “provide care appropriate to [inmates’] serious medical needs because imprisonment takes away their ability to fend for themselves.”) (citing DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189 (1989)). 3 In Maggert, the plaintiff had never even been diagnosed with GID, so the Circuit Court’s subsequent discussion of the “broader issue” of its appropriate treatment in prison was unnecessary to the decision of the case, as the court itself recognized, and thus is dictum. Maggert, 131 F.3d at 670 (affirming dismissal where the prison “psychiatrist does not believe that Maggert suffers from gender dysphoria . . . Maggert has not submitted a contrary affidavit by a qualified expert and so has not created a genuine issue of material fact that would keep this case alive.”). In Supre, although the plaintiff clearly had GID, the prison medical professionals involved in her care disagreed about whether hormone therapy was medically necessary. Supre, 792 F.2d at 960.
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preclude[d] the possibility that Kosilek will ever be offered hormones or sex reassignment surgery, which are the treatments commensurate with modern medical science that prudent professionals in the United States prescribe as medically necessary for some, but not all, individuals suffering from gender identity disorders. The Guidelines, in effect, prohibit forms of treatment that may be necessary to provide Kosilek any real treatment. 221 F. Supp. 2d at 186. Other courts have likewise held that the Eighth Amendment does not allow prisons to deny categorically certain forms of medical treatment (e.g., hormone therapy) simply by pointing to the fact that inmates have access to other forms of treatment (e.g., psychotherapy or psychotropic medications) that may be wholly inadequate in their particular case. See, e.g., De’Lonta, 330 F.3d 630, 635 (4th Cir. 2003) (contrasting individualized decisions about propriety of hormone therapy and blanket policy prohibiting provision of hormones in all cases); Allard v. Gomez, 9 Fed. Appx. 793, 794-95 (9th Cir. 2001) (unpublished) (accord); Wolfe, 130 F. Supp. 2d at 653 (prescribing Prozac and psychotherapy may be adequate for treatment of depression but inadequate for treatment of GID). Making a treatment decision by mechanical application of a general rule or blanket policy (e.g., that psychotherapy is always sufficient), rather than by applying independent medical judgment about an individual prisoner’s need for a particular treatment, constitutes deliberate indifference. Bismark, 2006 WL 1119189 at *19 (“This is not a case where plaintiff simply disagrees with the treatment modality of prison doctors. . . . While doctors can disagree with one another without violating Eighth Amendment rights, the facts of this case are overwhelmingly in support of deliberate policy decisions not to provide needed medical care which was known to have been prescribed by the experts.”); Mahan v. Plymouth County House of Corr., 64 F.3d 14, 18
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& n.6 (1st Cir. 1995) (“inflexible” application of “policy relating to prescription medications” that prevents use of a medication necessary to treat a serious medical need may violate Eighth Amendment); Jorden v. Farrier, 788 F.2d 1347, 1348-49 (8th Cir. 1986) (prison medical administrators’ application of pharmaceutical formulary to preclude use of medicine prescribed by treating physician may be “an arbitrary decision amounting to cruel and unusual punishment”).
Consequently, Defendants’ application of Act 105 to deny hormone therapy to Plaintiffs, contrary to the medical judgment of Plaintiffs’ care providers and other medical experts that such therapy is necessary for them, constitutes deliberate indifference to Plaintiffs’ serious medical need for hormone therapy to treat their GID, in violation of the Eighth Amendment. De’Lonta, 330 F.3d at 635 (plaintiff may prevail by proving that “refusal to provide hormone treatment to [plaintiff] was based solely on the policy rather than on a medical judgment concerning [plaintiff’s] specific circumstances”); Allard, 9 Fed. Appx. at 794-95 (unpublished) (triable issue as to “whether hormone therapy was denied . . . on the basis of an individualized medical evaluation or as the result of a blanket rule, the application of which constituted deliberate indifference to [plaintiff’s] medical needs”); Wolfe, 130 F. Supp.2d at 653 (E.D. Penn. 2001) (“abrupt termination of prescribed hormonal treatments by a prison official with no understanding of Wolfe's condition, and failure to treat her severe withdrawal symptoms or after-effects, could constitute ‘deliberate indifference.’”); Phillips, 731 F.Supp. at 800 (noting that withdrawal of hormones would “wreak havoc on plaintiff’s physical and emotional state” and concluding that “[t]aking measures which actually reverse the effects of years of healing medical treatment . . . is measurably
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worse” than “fail[ing] to provide an inmate with care that would improve his or her medical state,” thus “making the cruel and unusual determination much easier”); Barrett, 292 F.Supp.2d at 285 (“A blanket policy that prohibits a prison’s medical staff from making a medical determination of an individual inmate's medical needs and prescribing and providing adequate care to treat those needs violates the Eighth Amendment.”); Houston v. Trella, No. 04-1393 (JLL), 2006 WL 2772748, * 21 (D.N.J. Sept. 25, 2006) (existence of “agreement banning female hormone therapy as a form of treatment to all INS detainees regardless of the transitional state in which they are in [sic] is sufficient to show a deliberate policy of denying treatment” that “is sufficient to create a genuine issue of material fact as to [jail medical personnel’s] deliberate indifference to a medical need”).4
Defendants also argue that they are permitted to deny Plaintiffs adequate medical treatment for their serious medical needs due to concerns about security. While courts acknowledge that “‘the realities of prison administration’ are relevant to the issue of deliberate indifference,” Kosilek, 221 F. Supp. 2d at 191 (quoting Helling v. McKinney, 509 U.S. 25, 37 (1993)), they repeatedly emphasize that “judgments concerning the care to be provided to inmates for their serious medical needs generally must be based on medical considerations.” Id. (citing, inter alia, Estelle, 429 U.S. at 104 n.10; Durmer, 991 F.2d at 67-69). For this reason, “the policy of deferring to the judgment of prison officials in matters of prison discipline and security does not usually apply in the context
4 A condition need not be life-threatening and the medical treatment need not be “essential” to qualify as a “serious medical need.” See Gutierrez v. Peters, 111 F.3d 1364, 1370-71 (7th Cir. 1997) (Eighth Amendment prohibits “deliberate indifference to serious, not essential, medical needs”; delay in treating painful conditions “that are not life-threatening can support Eighth Amendment claims”) (emphasis in original). Even if there were such a requirement, the evidence shows that untreated GID is often lifethreatening.
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of medical care to the same degree as in other contexts.” Wellman, 715 F.2d at 272.5
In Kosilek, the court acknowledged that prison administrators might have
legitimate security concerns if inmates were given hormone therapy or SRS.
Nevertheless, the court made clear that the existence of such concerns did not give the
prison free rein to deny transsexual inmates appropriate medical care for their GID.
Kosilek, 221 F. Supp. at 161 (noting that the Eighth Amendment “proscribes the
unnecessary infliction of pain on the prisoner”) (emphasis in original). Rather, a court
must assess whether denying the inmate adequate medical care is necessary to address
the prison’s security concerns. Specifically, in determining whether the denial of
hormones and SRS would constitute the infliction of “unnecessary” punishment in the
Kosilek case, the court enumerated a number of factors that would need to be taken into
account, including the existence (or absence) of security concerns already posed by the
transsexual inmate,6 the fact that other penal institutions have successfully implemented
health care programs that allow patients to access hormone therapy and SRS where
medically necessary, id. at 194, and the existence of alternative placements for the
transsexual inmate or others who might pose a risk to the transsexual inmate.7 Id. at 194-
5 Even if Defendants were able to show that the Act’s ban on medical treatment was rationally related to legitimate penological interests in security, and they cannot, Defendants would still violate the entirely different, and less deferential, Eighth Amendment standard. Johnson v. California, 543 U.S. 499, 511 (2005) (“We judge violations of [the Eighth] Amendment under the ‘deliberate indifference’ standard, rather than” under lesser standards, such as “Turner’s ‘reasonably related’ standard” or rational basis review). “This is because the integrity of the criminal justice system depends on full compliance with the Eighth Amendment.” Id. “Mechanical deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a nullity in precisely the context where it is most necessary.” Id. (quoting Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir. 1979)). 6 Specifically, the court commented that, “if this [security] issue arises, [Warden] Maloney may wish to consider that Kosilek is already living largely as a female in the general population of a medium security male prison. This has not presented security problems.” 221 F. Supp. 2d at 194. 7 The existence of one constitutional duty – to keep transsexual inmates safe – does not negate the prison’s constitutional duty to provide adequate medical care for transsexual inmates’ serious medical needs. Cf. Fricke v. Lynch, 491 F. Supp. 381, 385, 387 (D.R.I. 1980) (school’s duty to keep gay students safe does not justify school censoring gay students’ speech). As the Kosilek court explained, “[p]rison officials must take
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95. As the prison had not yet engaged in an individual assessment of Kosilek, the district
court found it premature to rule on whether any “security” defense to care deemed
medically necessary for Kosilek could survive an Eighth Amendment challenge.
All of the factors identified by the Kosilek court are equally applicable here. First
of all, the transsexual women who need access to hormone therapy and SRS are already
presenting as feminine in the context of a male prison. Yet, the warden of one of the
facilities where several of the Plaintiffs in this case have been housed testified that
transsexual prisoners have not created increased security risks or required special security
measures to prevent other prisoners from assaulting them. Even assuming, however, that
there is some increase in risk of assault for effeminate prisoners, Defendants offer no
plausible argument for why denying hormones or surgery to transsexual prisoners would
mitigate any such risk. Male-to-female transsexuals, by definition, have a strong female
gender identity and experience a persistent discomfort with their assigned male sex. For
this reason, they express their female gender identity in whatever ways that they can –
namely, through their appearance, mannerisms, name and pronoun choices, and other
ways, including by explicitly identifying themselves as women. They do so even if
denied hormones or surgery. Thus, even if male-to-female transsexual prisoners are
denied medically appropriate hormone therapy or surgery, many will continue to identify
or present themselves femininely. Moreover, these Plaintiffs were taking hormones when
reasonable measures to guarantee the safety of inmates, as well as to provide them with adequate medical care. One way to attempt to discharge both of these duties to a transsexual inmate taking hormones is to make reasonable efforts to incarcerate him with a less dangerous population of other prisoners.” 221 F. Supp. 2d at 194 (internal citations and quotations omitted). While this case involves GID, the dangers associated with crediting a “security concern” defense to Eighth Amendment claims extend beyond this medical condition. Yet, no court would allow a prison to justify denying a female prisoner a medically necessary hysterectomy on the ground that she would be more vulnerable to sexual assault by guards because her infertility makes the offense less detectable. Nor could a prison justify denying a diabetic prisoner a medically necessary amputation because his lack of mobility might make him a more likely target of abuse.
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they were incarcerated, so they already appeared feminine to varying degrees. Taking them off of hormones would not completely rid them of the female sex characteristics that result from taking hormones, since many of those characteristics are irreversible. Therefore, Defendants simply cannot plausibly assert that denying transsexual inmates’ Eighth Amendment rights is necessary to ensure security.
Moreover, this court, like the court in Kosilek, can take judicial notice of the fact that other correctional systems have not felt it necessary (or appropriate) to categorically deny transsexual inmates certain types of medically appropriate care in order to meet their security concerns and safety obligations. 221 F. Supp. at 194. Finally, in the event that certain transsexual inmates are victims of harassment or violence, or certain inmates are perpetrating violence against transsexual inmates, Defendants have tools at their disposal, including administrative segregation and discipline, to address those problems on a case-by-case basis. See Jorden, 788 F.2d at 1348-49 (8th Cir. 1986) (formulary restriction driven by concerns about drug hoarding and abuse had to be applied on caseby-case basis to avoid unnecessary denial of adequate medical care to particular inmate); Sawyer v. Sigler, 320 F. Supp. 690, 694 (D. Neb. 1970) (accord), aff’d, 455 F.2d 818, 819 (8th Cir. 1971). Therefore, Defendants have no constitutionally sufficient justification for denying transsexual inmates adequate medical care for their GID.
Other justifications for denying medically necessary hormone therapy or SRS to transsexual inmates likewise cannot withstand scrutiny. “[C]oncern for controversy is not a constitutionally permissible basis for denying an inmate necessary medical care.” Kosilek, 221 F. Supp. 2d at 192. Nor can cost considerations justify the denial of medically necessary care. Wellman, 715 F.2d at 274; see also Durmer, 991 F.2d at 68-69
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(deliberate indifference exists where “motive for deliberately avoiding” a treatment was that the treatment “would have placed a considerable burden and expense on the prison and was therefore frowned upon,” rather than individual medical considerations); Ancata, 769 F.2d at 705 (“Lack of funds . . . cannot justify an unconstitutional lack of competent medical care and treatment for inmates.”); Kosilek, 221 F. Supp. at 161 (“It is not . . . permissible to deny an inmate adequate medical care because it is costly. In recognition of this, prison officials at times authorize CAT scans, dialysis, and other forms of expensive medical care required to diagnose or treat familiar forms of serious illness.”).8
II. Defendants’ enforcement of Act 105 to deny medically necessary treatment to Plaintiffs even though they provide necessary medical treatment to other inmates violates the Equal Protection Clause. “[T]he Constitution prohibits intentional invidious discrimination between
otherwise similarly situated persons based on one’s membership in a definable minority.” Nabozny v. Podlesny, 92 F.3d 446, 457 (7th Cir. 1996).
Persons who meet the GID diagnostic criteria and have a serious medical need for cross-sex hormone therapy or sex reassignment surgery are a definable minority – transsexuals. The classification created by Act 105 discriminates between similarly situated classes. By its terms, Act 105 categorically prohibits hormone therapy or surgery that is intended “to alter [a prisoner’s] physical appearance so that the [prisoner] appears more like the opposite gender.” Wis. Stat. Ann. § 302.386(5m). In doing so, Act 105 categorically denies access to medical treatment that is needed by transsexual
8 The evidence in this case will show that hormone therapy is a relatively low cost treatment and that the alternative costs of psychiatric and other care to treat the severe depression, anxiety, suicidal ideation and other symptoms that typically result when hormones are denied far outweigh that cost. Sex reassignment surgery is more costly than hormone therapy, but the evidence will show that other expensive surgical procedures are provided by DOC, and that SRS may, in some cases, be the only treatment that will effectively prevent attempts at suicide or self-mutilation.
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prisoners, but does not categorically deny access to medical treatment that is needed by other prisoners (including hormone therapies and surgeries that are not intended to induce gender transition, such as treatments for hormone deficiencies or estrogen treatments for post-menopausal women). Additionally, Act 105 sets transsexuals apart from other inmates and denies only them essential medical care, since there is no other law or DOC policy that bans necessary medical care across the board.
Discrimination is intentional “whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350, 352 (1918); see also Snowden v. Hughes, 321 U.S. 1, 8 (1944). Act 105 is directed only against medical treatment that is needed by transsexuals. Wis. Stat. Ann. § 302.386(5m). Moreover, since, in practice, Defendants enforce Act 105 only against transsexuals, they intentionally discriminate. See also M.L.B. v. S.L.J., 519 U.S. 102, 126-27 (1996) (distinguishing disparate enforcement from disparate impact).
Act 105: (1) singles out a definable minority, transsexuals, (2) denies them necessary medical care not denied other similarly situated inmates who are not transsexual, and (3) discriminates intentionally. Because the unequal and intentional treatment of transsexuals under Act 105 cannot be justified under even the most deferential standard applicable to these facts, Defendants’ enforcement of Act 105 violates Plaintiffs’ rights to equal protection.
Assuming that Act 105 employs, as Defendants claim, a non-suspect classification to deny equal access to a non-fundamental right, it is unconstitutional because the Act does not rationally further a legitimate penological interest. City of Cleburne v. Cleburne
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Living Ctr., 473 U.S. 432, 440 (1985) (“[T]he classification drawn by the statute [must be] rationally related to a legitimate state interest.”) (citations omitted); see also Order Granting in Part and Denying in Part Defendants’ Motion for Partial Summary Judgment, Case No. 2:06-C-112 (E.D. Wis. 10/15/07)[Doc. # 175] at p. 43.9 There is no rational connection between Act 105 and the interest Defendants claim it supports -prison security. Firstly, the Seventh Circuit has admonished that “we do not read anything in [the case law] as requiring this court to grant automatic deference to ritual incantations by prison officials that their actions foster the goals of order and discipline.” Lock v. Jenkins, 641 F.2d 488, 498 (7th Cir. 1981); accord Williams, 851 F.2d at 886 (Flaum, J., concurring) (“[P]rison officials whose actions are challenged cannot avoid court scrutiny by reflexive, rote assertions that existing conditions are dictated by security concerns and that the cost of change is prohibitive.”); see also, e.g., Martin v. Rison, 741 F. Supp. 1406, 1425 (N.D. Cal. 1990), vacated as moot sub nom. Chronicle Publ’g Co. v. Rison, 962 F.2d 959 (9th Cir. 1992), cert. denied, 507 U.S. 984 (1993) (“[T]he word ‘security’ cannot be just a label invoked to shield all actions from scrutiny.”).
More to the point, Act 105 does not rationally further Defendants’ interest in mitigating the risk of assault against transsexual inmates. Turner, 482 U.S. at 97-98 (the Court rejected “[t]he security concern emphasized by [the government] . . . that ‘love triangles’ might lead to violent confrontations between inmates,” because “[c]ommon sense . . . suggests that there is no logical connection between the marriage restriction and the formation of love triangles: surely in prisons housing both male and female prisoners,
9 Plaintiffs preserve for purposes of appeal their alternative arguments that the classification at issue is subject, not to rational basis review, but rather to either intermediate scrutiny as a sex classification or the standard set forth in Turner v. Safley, 482 U.S. 78 (1987). See Plaintiffs’ Brief in Opposition to Defendants’ Motion for Partial Summary Judgment [Doc. # 138]. .
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inmate rivalries are as likely to develop without a formal marriage ceremony as with one.”) (citation omitted);10 Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988) (prison regulation prohibiting the wearing of dreadlocks failed meaningfully to reduce the risk of violence, since forcing Rastafarians to cut their hair is unlikely to change their belief in black superiority); Whitmire v. Arizona, 298 F.3d 1134, 1136 (9th Cir. 2002) (regulation prohibiting same-sex affection between prisoners and inmates failed to meaningfully mitigate the risk of violence, since “prisoners who are willing to display affection toward their same-sex partner during a prison visit likely are already open about their sexual orientation....”); see also Salaam v. Lockhart, 905 F.2d 1168, 1175 (8th Cir. 1990) (“It is not apparent . . . why the addition of [the prisoner’s] new [Muslim] name [to his clothing] would cause a net increase in the incidence of confrontation. Moreover, if the rights of those who would cooperate could be sacrificed in fear of those who would cause trouble under any regime, officials could ignore any individual right. Inmates do not abandon their rights to individualized judgments about their behavior.”).
There is no reasonable connection between the Act’s denial of hormones or surgery and a reduction in the risk that transsexual inmates will be assaulted. Even assuming some increase in risk of assault for effeminate prisoners, the relevant inquiry is not whether transsexual prisoners who present femininely are at risk of assault, but rather whether denying hormones or surgery mitigates any such risk. As set out above, male-tofemale transsexuals express their feminine identity, whether or not they are taking hormones, because GID compels them to do what they can to resolve the dysphoria
10 The Turner factors include whether “the governmental objective [is] a legitimate and neutral one” and whether there is “a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at 89. The analysis undertaken with respect to this factor is identical to the analysis undertaken under rational basis review. Accordingly, Turner and its progeny are relevant to this case to the extent that they apply this factor.
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caused by a body that fails to conform with their feminine identity. Consequently, the hormones place them at no greater risk than their denial.
Transsexual inmates, such as the Plaintiffs are, therefore, like the lesbian and gay inmates in Whitmire, whose willingness to display same-sex affection shows that they likely have already identified themselves as lesbian or gay. Transsexual inmates are similarly willing to express their femininity, even if denied hormones. Their serious need to identify and express themselves as women – with or without hormones -- strongly outweighs their fears of harassment or harm, and shows that Act 105 is not related to security. Moreover, these Plaintiffs were taking hormones when they were incarcerated, so they already appeared feminine to varying degrees. Taking them off of hormones would not completely rid them of the female sex characteristics that result from taking hormones, since many of those characteristics are irreversible.
Moreover, there is no reasonable connection between Act 105 and cost savings, since there is no rational explanation for singling out transsexuals to be denied medically necessary care as compared to other inmates. Plyler v. Doe, 457 U.S. 202, 227 (1982) (“Of course, a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”) (citation omitted); Shapiro v. Thompson, 394 U.S. 618, 633 & n.11 (1969) (a state may not limit government spending “by invidious distinctions between classes of its citizens”); Rinaldi v. Yeager, 384 U.S. 305, 308-309 (1966) (“The Equal Protection Clause ... imposes a requirement of some rationality in the nature of the class singled out.”) (citation omitted).
Act 105 is unconstitutional because it does not rationally further Defendants’ purported interest in mitigating the risk of assault against transsexual inmates, and there
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is no reasonable relationship between the Act and cost savings. This is especially so in light of the fact that the legislative history of Act 105 reveals a discriminatory intent against transsexual people. Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring) (“When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”).
III. Defendants’ enforcement of Act 105 to deny medically necessary treatment to transsexual inmates violates, on its face, the Eighth Amendment and the Equal Protection Clause. The evidence shows that there is “no set of circumstances . . . under which [Act
105] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987); Doe v. Heck, 327 F.3d 492, 528 (7th Cir. 2003). Every time Act 105 is applied, it results in the denial of either hormones or surgery for an inmate with GID since the only circumstances under which the Act has any effect are instances when a DOC medical provider has prescribed one of these treatments. Otherwise, the Act is irrelevant.
The evidence shows that inmates do not dictate what medical care they receive; only DOC medical personnel can determine what treatments are medically necessary and appropriate. Consequently, even if an inmate with GID requested hormones or surgery, DOC’s practice – even before the passage of Act 105 – would have been to deny such medical care unless it was medically necessary. The passage of Act 105 did not change this practice. What it did is deny DOC medical personnel the discretion they had before to prescribe hormones or surgery, when, in their judgment, they were medically necessary.
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This blanket denial of medical judgment mandated by Act 105 in all the statute’s applications violates the Eighth Amendment, for the same reasons that Act 105’s application to Plaintiffs violates that Amendment. Plaintiffs have been taking hormones for many years, so cutting off their hormone therapy is the denial of necessary medical treatment that places them at great risk of harm, and induces certain withdrawal symptoms. The denial of necessary medical care to persons who have had it in the past does not distinguish Plaintiffs under the Eighth Amendment and Equal Protection Clause from transsexuals newly diagnosed with GID and prescribed the treatment for the first time by DOC health care professionals.
Act 105’s blanket denial of medical judgment regarding the treatment that is medically necessary only for transsexual inmates violates the Equal Protection Clause on its face, Romer v. Evans, 517 U.S. 620 (1996), for the same reason its application to Plaintiffs violates that clause of the Fourteenth Amendment. Consequently, Act 105 is unconstitutional on its face because it violates the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment.
IV. Plaintiffs are entitled to a permanent injunction against the enforcement of Act 105 against them and on its face. A permanent injunction is appropriately granted where: “(1) the moving party has
succeeded on the merits; (2) no adequate remedy at law exists; (3) the moving party will suffer irreparable harm without injunctive relief; (4) the irreparable harm suffered without injunctive relief outweighs the irreparable harm the nonprevailing party will suffer if the injunction is granted; and (5) the injunction will not harm the public
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interest.” Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1081 (7th Cir. 1998).
The evidence will show that Act 105 violates the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment as applied to them and on its face.
Plaintiffs and other transsexual inmates do not have an adequate remedy at law and they will suffer irreparable harm without entry of a permanent injunction. “In saying that the plaintiff must show that an award of damages at the end of trial will be inadequate, we do not mean wholly ineffectual; we mean seriously deficient as a remedy for the harm suffered.” Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984).
The evidence shows that denying Plaintiffs and other transsexual inmates medically necessary treatment for their serious GID places them in a perilous state of psychological and emotional pain and distress, causing depression, suicidal ideation, anxiety, and a high risk of self-harm. The denial of hormone therapy to Plaintiffs, who have been on it for many years, causes them additional negative health consequences.
The balance of harms strongly supports the entry of a permanent injunction. As set out in these Conclusions of Law, Defendants have not made a substantial showing that the Eighth Amendment permits a blanket denial of medical treatment as a security measure. Defendants must show much more than a reasonable connection to show that they were not deliberately indifferent to a serious medical need, and they have failed to do even that. There is no reasonable connection between Defendants’ asserted interests in security and Act 105. Similarly, there is no reasonable connection between minimizing costs to the state and denying necessary medical care for transsexual inmates
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only. Furthermore, the public interest will be served by granting a preliminary injunction here and “safeguarding Eighth Amendment rights in the prisons in [Wisconsin].” Phillips, 731 F. Supp. at 801.
The Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626, mandates that “[p]rospective relief in any civil action with respect to prison conditions … extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” Id. at § 3626(a)(1)(A). A court may not grant any prospective relief “unless the court finds that such relief is narrowly drawn, extends no further than necessary to correction the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Id. “The court shall give substantial weight to any adverse impact on public safety or the operation of the criminal justice system caused by the relief.” Id.
The limits on prospective relief set out in the PLRA are no different than those that governed federal court injunctions prior to the PLRA’s passage. Gilmore v. California, 220 F.3d 987, 1006 (9th Cir. 2000); Smith v. Arkansas Dept. of Correction, 103 F.3d 637, 647 (8th Cir. 1996) (finding PLRA “merely codifies existing law and does not change the standards for determining whether to grant an injunction”); Morales Feliciano v. Calderon Serra, 300 F.Supp. 2d 321, 332 (D.P.R. 2004) (“This language mimics long standing requirements for injunctive relief under Rule 65 of the Federal Rules of Civil Procedure...."), aff’d, 378 F.3d 42, 54-56 (1st Cir. 2004), cert. denied, 543 U.S. 1054 (2005). See Duran v. Elrod, 760 F.2d 756, 760-61 (7th Cir. 1985) (pre-PRLA limitations on federal court injunctions).
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In cases governed by the PLRA, “[t]he scope of injunctive relief is dictated by the extent of the violation established.” Clement v. California Dept. of Corrections, 364 F.3d 1148, 1153 (9th Cir. 2004) (per curiam) (citations omitted). The PLRA does not foreclose the possibility of facial or class-wide relief if dictated by the scope of the violation. Id. (district court properly found in case challenging one prison’s policy banning internetgenerated mail that all similar policies adopted in California prisons violate the First Amendment, since there was “no indication ... that the policies that other California prisons have enacted differ in any material way from” the policy applicable to the plaintiff).
An injunction against the enforcement of Act 105 is narrowly drawn, since it enjoins only the enforcement of a statute that is unconstitutional every time it comes into play for purposes of barring the treatment ordered by DOC medical personnel for transsexual inmates. Id. (“injunction is ...sufficiently narrow to avoid unnecessary disruption to the state agency’s normal course of proceeding” since “it closely matched the identified violation....”) (citation and quotations omitted); Asker v. California Dep’t of Corrections, 350 F.3d 917, 921-22, 924 (9th Cir. 2003) (affirming injunction against a requirement that “approved vendor labels” be affixed to all books sent to prisoners). Compare Lindell v. Frank, 377 F.3d 655, 660 (7th Cir. 2004) (injunction that reached conduct not a part of the identified First Amendment violation, in as-applied challenge, was overbroad).
Neither public safety nor the operation of the criminal justice system is harmed by restoring discretion to the medical personnel of the DOC over what kind of medical treatment is medically necessary for transsexual inmates in Wisconsin. An injunction
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that restores discretion to DOC personnel does not “require for its enforcement the
continuous supervision by the federal court over the conduct of [state officers].”
Clement, 364 F.3d at 1153 (citations omitted). It is sufficiently narrow “to avoid
unnecessary disruption to the state agency’s normal course of proceeding.” Id.
(quotation and citation omitted).
CONCLUSION
The evidence will show, under the governing law set forth in this brief, that
Plaintiffs are entitled to a judgment for permanent injunctive relief, a declaration that the
Act, both on its face and as applied to Plaintiffs, violates the Eighth and Fourteenth
Amendments, costs and fees, and the other relief that the Court deems just and proper.
Dated this 17th day of October, 2007.
s/John A. Knight____________________ John A. Knight American Civil Liberties Union Foundation 180 N. Michigan Avenue Suite 2300 Chicago, Illinois 60601 (312) 201-9740 jknight@aclu-il.org
Laurence Dupuis American Civil Liberties Union of Wisconsin Foundation, Inc. State Bar No. 1029261 207 East Buffalo Street Suite 325 Milwaukee, WI 53202-5712 (414) 272-4032 ldupuis@aclu-wi.org
Cole Thaler Lambda Legal Defense & Education Fund, Inc. 730 Peachtree St. NE, Suite 1070
34
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Atlanta, GA 30308 (404) 897-1880 Attorneys for Plaintiffs
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

ANDREA FIELDS, MATTHEW DAVISON, and VANKEMAH MOATON,
Plaintiffs,
v.
MATTHEW J. FRANK, et al.,
Defendants.

Case No. 06-C-0112

DEFENDANTS’ TRIAL BRIEF

The defendants by their attorneys, J.B. Van Hollen, Attorney General, and Jody J. Schmelzer, Assistant Attorney General, hereby submit this trial brief to clarify the applicable law in this case.
I. THE EIGHTH AMENDMENT FACIAL CHALLENGE TO ACT 105.
As acknowledged by the court, to succeed on a facial challenge to Act 105, the plaintiffs must establish that no set of circumstances exists under which the Act would be valid. Order, 10-15-07, Docket No. 175, p. 33; U.S. v. Salerno, 481 U.S. 739, 745 (1987). In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Court emphasized that “[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Id. at 894. The plaintiffs’ argue that the only relevant applications of the law are those in which a DOC doctor as determined hormones or surgery to be medically necessary

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for an inmate. (Pl. Resp. Brief, Docket No. 138, pp. 6-7). However, this argument improperly narrows the controlling class to the point where the facial and as-applied challenges become onein-the same. Under the majority holding in Gonzales v. Carhart, 127 S. Ct. 1610 (2007), this type of narrowing of the controlling class was expressly rejected.
In Gonzalez, the Court held that Partial Birth Abortion Act of 2003 “applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications.” Id. at 1639 (emphasis added). In Justice Ginsberg’s dissent in Gonzalez, she defined a slightly different class--one composed of women whose doctors have concluded that the procedure was medically necessary:
Casey makes clear that, in determining whether any restriction poses an undue burden on a “large fraction” of women, the relevant class is not all women, nor “all pregnant women,” nor even all women “seeking abortions”. . . . Rather, a provision restricting access to abortion, “must be judged by reference to those [women] for whom it is an actual rather than an irrelevant restriction” . . . . Thus the absence of a health exception [in the challenged statute] burdens all women for whom it is relevant—women who, in the judgment of their doctors, require an intact D & E because other procedures would place their health at risk. Id. at 1651 (citations omitted). The majority in Gonzalez, though, clearly did not adopted Justice Ginsberg’s narrowed class in upholding the law’s facial validity. Just as in Gonzalez, the plaintiffs seek to define the controlling class under Act 105 to just those inmates in which DOC medical staff have determined have a medical need for the prohibited treatments. However, just as in Gonzalez, this is too narrow a definition for those affected by Act 105. Act 105 removes even the consideration of hormones or surgery for inmates with gender issues. It is undisputed that DOC halted evaluations of inmates with GID for hormones because of the Act (Stip. FOF ¶ 52). Whether it is ultimately determined by DOC personnel that they have a medical need for hormones or not, the Act undisputedly affects them.
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The proper class definition should include inmates for whom hormone therapy and/or surgery would be considered as treatment for gender issues. This definition is consistent with the majority’s holding in Gonzalez, and also with the plaintiffs’ prior motion for class certification in this case in which they proposed a class consisting of:
prisoners … who are transgender, including those who have been diagnosed with Gender Identity Disorder and those who have a strong persistent cross-gender identification and either a persistent discomfort with their sex or a sense of inappropriateness in the gender role of that sex. (Pl. Brief, Docket No. 36, p. 1); see also, City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (“When asserting a facial challenge, a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question.”) (Emphasis added). In this case, there is no dispute that not all individuals with GID want or qualify for hormones and/or reassignment surgery. Therefore, the evidence will show that Act 105 is not unconstitutional in all circumstances where Act 105 would be applied, and a facial challenge must fail.
II. THE EIGHTH AMENDMENT AS-APPLIED CHALLENGE TO ACT 105.
The Eighth Amendment forbids cruel and unusual punishment; it does not require the most intelligent, progressive, humane, or efficacious prison administration. Oliver v. Deen, 77 F.3d 156, 161 (7th Cir. 1996). The Constitution "does not mandate comfortable prisons," Rhodes v. Chapman, 452 U.S. 337, 349 (1981), but neither does it permit inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832 (1994). It is well established that prisoners have a right to receive adequate medical care. Estelle v. Gamble, 429 U.S. 97 (1976). There can be little doubt that this right encompasses a right to receive mental health treatment. Jones 'El v. Berge, 164 F. Supp.2d 1096 (W.D. Wis. 2001) (citing Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir.1987);
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Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir.1983)). But see Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002) (prisoners "do not have a fundamental right to psychiatric care at public expense") (dicta) (emphasis in original).
A prison inmate’s dissatisfaction with the adequacy of medical treatment actually received, though, does not state a claim under 42 U.S.C. § 1983. Courts will not attempt to second-guess licensed physicians as to the propriety of a particular course of medical treatment for a given prisoner-patient. Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1974), vacated on other grounds sub nom Cannon v. Thomas, 419 U.S. 813 (1974) (a difference of opinion does not raise a material issue of fact). A difference of opinion between physician and patient concerning the adequacy of medical treatment actually provided does not rise to a claim under § 1983. Davis v. Schmidt, 57 F.R.D. 37, 41 (W.D. Wis. 1972). Where medical experts disagree, a prison official does not act indifferently by following the advice of one of the experts. Thomas, 493 F.2d at 158; Jorden v. Farrier, 788 F.2d 1347 (8th Cir. 1986) (states in dicta that following the advice of one treating medical official over another does not raise a constitutional claim); see also United States v. Rovetuso, 768 F.2d 809, 825 (7th Cir. 1985), cert. denied, 474 U.S. 1076 (1986) (a prisoner has no right to a doctor of his own choice).
Indeed, courts have specifically held that transsexual inmates have no constitutional right to any particular type of treatment, including hormone therapy. Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987); Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986); Lamb v. Maschner, 633 F. Supp. 351 (D. Kansas 1986); White v. Farrier, 849 F.2d 322, 327 (recognizing other courts’ holdings that inmates are not constitutionally entitled to hormone therapy); Tiller v. Owens, 719 F. Supp. 1256, 1308 (W.D. Penn. 1989); Long v. Nix, 877 F. Supp. 1358 (S.D. Iowa
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1995). Moreover, the controlling case in the Seventh Circuit further supports Act 105 and
limiting the availability of specific forms of treatment for inmates with GID. In Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997), a prisoner sought estrogen therapy
under the Eighth Amendment for his gender dysphoria. The court affirmed dismissal of the case,
holding that:
except in special circumstances that we do not at present foresee, the Eighth Amendment does not entitle a prison inmate to curative treatment for his gender dysphoria.
Id. at 672. In so holding, the court reasoned that:
A prison is not required by the Eighth Amendment to give a prisoner medical care that is as good as he would receive if he were a free person, let alone an affluent free person. (Citation omitted). He is entitled only to minimum care.
Id. at 671. The court went on to state:
Gender dysphoria is not, at least not yet, generally considered a severe enough condition to warrant expensive treatment at the expense of others than the person suffering from it. That being so, making the treatment a constitutional duty of prisons would give prisoners a degree of medical care that they could not obtain if they obeyed the law.
Id. at 672.
The evidence in this case will clearly show that, under the holding in Maggert, Act 105
does not violate the Eighth Amendment by preventing specific forms of “curative treatment” for
gender dysphoria.
III. THE FOURTEENTH AMENDMENT EQUAL PROTECTION CHALLENGES TO ACT 105.
The plaintiffs assert that Act 105 violated the Fourteenth Amendment equal protection
clause both on its fact and as applied to these three inmates. It is important to note the difference
between a facial and as-applied equal protection challenge.
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In cases where the particular law or policy is fair on its face, but is applied in a way that treats similarly situated individuals differently, the equal protection clause requires plaintiffs to allege and prove the presence of an unlawful intent to discriminate against the plaintiff for an invalid reason. Hamlyn v. Rock Island County Metropolitan Mass Transit Dist., 986 F. Supp. 1126, 1133 -1134 (C.D. Ill. 1997), citing Snowden v. Hughes, 321 U.S. 1, 8 (1944). Thus, the unequal application of a law or policy is not enough. Id.; see also Batra v. Bd. of Regents, 79 F.3d 717, 721 (8th Cir.1 996). The goal of requiring intent is to protect the government from liability for mere negligence in the application of otherwise valid laws. Thus, in order to give rise to a constitutional grievance, a departure from the norm must be rooted in design and not derive merely from error or fallible judgment. Hamlyn, 986 F. Supp. at 1133, citing Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir. 1995) (C.J. Posner) (refusal to renew liquor license actionable under equal protection clause if defendants'action “was a spiteful effort to ‘get’ [plaintiff] for reasons wholly unrelated to any legitimate state objective.”).
Facial challenges to a law, however, are different. Hamlyn, 986 F. Supp. at 1133. When a law can be shown, on its face, to classify persons similarly situated for different treatment without any legitimate basis, rather than in its application or its impact, then the question of discriminatory intent is subsumed by the determination that the classification established by the terms of the challenged law or policy is, itself, discriminatory. Id. Presumably, the state actors designing a discriminatory classification, and then giving it the force of law, intended the resulting discrimination. Id. Thus,
[a] classification within a law can be established ... “on its face.” This means that the law by its own terms classifies persons for different treatment. In such a case there is no problem of proof and the court can proceed to test the validity of the classification by the appropriate standard.
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J. Nowak and R. Rotunda, Constitutional Law § 14.4 (1992). In other words, analysis of facial challenges alleging an improper classification involves
only two steps: (1) plaintiff must first show that the challenged statute or policy, on its face, results in members of a certain group being treated differently from other persons based on membership in that group; and (2) if it is demonstrated that a cognizable class is treated differently, then the court must analyze under the appropriate level of scrutiny whether the distinction made between the groups is justified. Hamlyn, 986 F. Supp. at 1134, citing Jones v. Helms, 452 U.S. 412, 423-24 (1981)Plyler v. Doe, 457 U.S. 202, 217-18 (1982). The defense to a facial challenge is, therefore, not whether the defendants intended to discriminate Id. Rather, the defense is ultimately whether the classification established on the face of the law is rationally related to those legitimate government objectives.
As to the facial challenge of Act 105, the individual legislator’s motives for introducing and/or voting for the law are irrelevant—if a law, on its face, results in transsexual inmates being treated differently than other inmates, we proceed directly to determining whether the Act survives rational basis scrutiny. Under the rational basis test, there is no constitutional violation if “any reasonably conceivable state of facts” would provide a rational basis for government action. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). The burden is upon the challenging party to eliminate any “reasonably conceivable state of facts that could provide a rational basis for the classification.” Smith v. City of Chicago, 457 F.3d 643, 652 (7th Cir. 2006). This basic formulation also applies to the plaintiffs’ as-applied challenge. Id.
In this case, the evidence will support the obvious. Hormone therapy and/or reassignment surgery results in a more effeminate appearance, and the more effeminate a male inmate looks, the more likely he will be victimized in prison. By eliminating the availability of these
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feminizing procedures, Act 105 is rationally related to DOC’s interests in protecting these
inmates from harm and maintaining the safety and security of other inmates, staff and the
institution. Thus, the plaintiffs’ equal protection claim must fail.
CONCLUSION
The evidence will show that based upon the applicable law set forth in this brief, along
with the law set forth by the Court in its decision on summary judgment and in the defendants’
proposed conclusions of law, that the plaintiffs’ are not entitled to injunctive or declaratory relief,
and that Act 105 is constitutional both on its face and as applied to these three plaintiffs.
Dated at Madison, Wisconsin, this 19th day of October, 2007.
Respectfully submitted,
J.B. VAN HOLLEN Attorney General
s/JODY J. SCHMELZER Assistant Attorney General State Bar No. 1027796 Attorney for Defendants Department of Justice 17 West Main Street, PO Box 7857 Madison, Wisconsin 53707-7857 Telephone: (608) 266-3094 Fax: (608) 267-8906 E-mail: schmelzerjj@doj.state.wi.us
s/FRANCIS X. SULLIVAN Assistant Attorney General State Bar No. 1030932 Attorney for Defendants Department of Justice 17 West Main Street, PO Box 7857 Madison, Wisconsin 53707-7857 Telephone: (608) 267-2222 Fax: (608) 267-8906 E-mail: sullivanfx@doj.state.wi.us
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ANDREA FIELDS, MATTHEW DAVISON, also known as Jessica Davison, and VANKEMAH D. MOATON,
Plaintiffs,
v.
WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, and RICHARD RAEMISCH,
Defendants.

Case No. 06-C-112

MEMORANDUM DECISION Following a court trial, in March 31, 2010, this court entered an order declaring Wis. Stat. § 302.386(5m) unconstitutional and enjoining the enforcement of the statute. The following memorandum constitutes the court’s findings of fact and conclusions of law underlying that order in accordance with Federal Rule of Civil Procedure 52.
BACKGROUND Plaintiffs1, who are Wisconsin prison inmates, bring this action under 42 U.S.C. § 1983 for declaratory and injunctive relief claiming that the defendants violated the United States Constitution by enforcing 2005 Wisconsin Act 105, codified as Wis. Stat. § 302.386(5m) (Act 105), and abruptly terminating and depriving them of medical treatment

1
On October 15, 2007, pursuant to the defendants’ motion for partial summary judgment, form er plaintiffs Kari Sundstrom and Lindsey Blackwell were dism issed from this case because their claim s for injunctive and declaratory relief are moot as they are no longer in prison.
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for their serious health condition, Gender Identity Disorder (GID). Further, plaintiffs assert that the defendants acted without exercising individualized medical judgment and in contrast to the treatment the defendants provide to similarly situated inmates in Wisconsin Department of Corrections (DOC) facilities. Consequently, plaintiffs ask this court to find that the defendants have violated their Fourteenth Amendment right to equal protection and their Eighth Amendment right to be free from cruel and unusual punishment. Moreover, they ask that Wis. Stat. § 302.386(5m) be declared unconstitutional on its face. During the pendency of this case, the DOC has provided hormone therapy to plaintiffs under the terms of a preliminary injunction.
STIPULATED FACTS Plaintiff Andrea Fields is a male-to-female transsexual in DOC custody at Green Bay Correctional Institution (GBCI). The DOC has diagnosed Fields with GID. Fields has received feminizing hormone therapy continuously since 1996. In 2003, Fields underwent breast augmentation as a component of gender transition. After becoming incarcerated in 2005, the DOC confirmed Fields’s GID diagnosis and continued hormone therapy. In 2006, because of the passage of Act 105, the DOC began to taper Fields’s hormone therapy by halving the dosage. As a result of the reduction, Fields experienced nausea, muscle weakness, loss of appetite, increased hair growth, skin bumps, and depression. The reinstatement of Fields's hormone therapy following the preliminary injunction in this action abated the withdrawal symptoms. Plaintiff Matthew Davison, also known as Jessica Davison, is a male-tofemale transsexual in DOC custody at Oshkosh Correctional Institution (“OSCI”). The DOC has diagnosed Davison with GID. Prior to receiving hormone therapy, Davison attempted
2
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suicide by jumping off a roof. Davison was diagnosed with GID in 2005 and began hormone therapy as treatment for that condition shortly thereafter. The DOC has provided Davison with hormone therapy during incarceration. After arriving at Dodge Correctional Institution, the DOC began to withdraw Davison's hormone therapy because of Act 105. As a result of that withdrawal, Davison experienced increased and darker hair growth, voice deepening, breast reduction and leaking, mood swings, mental and emotional instability, hot flashes, and body aches. The reinstatement of Davison's hormone therapy because of the preliminary injunction in this action led to an abatement of withdrawal symptoms.
Plaintiff Vankemah Moaton is a male-to-female transsexual in DOC custody at Jackson Correctional Institution (JCI). The DOC has diagnosed Moaton with GID. Moaton has experienced suicidal ideation in the past, including after being removed from hormone therapy. Moaton began taking feminizing hormones in the late 1990s, took medically prescribed hormone therapy beginning in 2000, and has continued to receive that treatment during DOC incarceration. After entering DOC custody, the DOC began to withdraw Moaton's hormone therapy because of Act 105. As a result of that withdrawal, Moaton started growing chest and facial hair, developing tenderness in the chest and groin areas, and experiencing skin breakouts, hot flashes, and depression. The reinstatement of Moaton's hormone therapy because of the preliminary injunction in this action led to an abatement of withdrawal symptoms. All of plaintiffs have, to varying degrees, feminine physical characteristics as a result of their hormone usage.
Matthew J. Frank was, at the time this action was filed, the Secretary of the DOC. The current Secretary of the DOC is defendant Richard Raemisch. Defendant
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James Greer is the Director of the DOC Bureau of Health Services. Defendant Judy P. Smith is the Warden at OSCI. Defendant Thomas Edwards was the Health Services Unit Manager of the OSCI Health Services Unit until May 11, 2007. That position is currently vacant.
GID is classified as a psychiatric disorder in the DSM-IV-TR, the current edition of the Diagnostic and Statistical Manual of Mental Disorders ("DSM"). GID has been included in the DSM since the third edition of that manual, which was published in 1980. In prior editions, the DSM classified "transsexualism" as a psychiatric disorder. The following diagnostic criteria are listed in the DSM for GID: 1) a strong and persistent crossgender identification; 2) a persistent discomfort with one’s sex or a sense of inappropriateness in the gender role of that sex; 3) the disturbance is not concurrent with a physical intersex condition; and 4) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Matthew Davison, a/k/a Jessica Davison, has used a female name since childhood. Andrea Fields acted like a girl at school, talked like a girl, walked like a girl, wore makeup, and had a feminine hairstyle. Vankemah Moaton started behaving in a feminine manner prior to age eight.
Kenneth Krebs, a/k/a Karen Krebs, a male-to-female transsexual in DOC custody, cross-dressed as a child and adolescent. Erik Huelsbeck, a/k/a Erika Huelsbeck, another male-to-female transsexual held by the DOC, dressed as a girl for “dressed-up” day at school and other times, sometimes publicly.
DOC administrative personnel generally agree that deference on health care matters should be given to DOC health care staff. Sometimes the DOC prescribes
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hormone therapy for reasons that do not have to do with GID, such as estrogen
replacement therapy in postmenopausal years, or for inmates with a congenital or
hormonal disorder that requires the administration of hormone therapy.
The legislative sponsors of Act 105 labeled it the “Inmate Sex Change
Prevention Act.” Act 105 provides:
SECTION 1. 302.386(5m) of the statutes is created to read:
302.386(5m) (a) In this subsection:
1. “Hormonal therapy” means the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender.
2. “Sexual reassignment surgery” means surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender.
(b) The department may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery for a resident or patient specified in sub. (1).
SECTION 2. Initial applicability.
(1) PROVISION OF HORMONAL THERAPY OR SEXUAL REASSIGNMENT THERAPY. This act first applies to hormonal therapy, as defined in section 302.386 (5m) (a) 1. of the statutes, as created by this act, or sexual reassignment surgery, as defined in section 302.386 (5m) (a) 2. of the statutes, as created by this act, provided on the effective date of this subsection.
(Ex. 24.)
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The legislative sponsors issued multiple press releases prior to its passage stating that it was intended to prevent “bizarre taxpayer-funded sex change procedures” and to stop the DOC policy of “[allowing] pharmacists within the correction system to give hormones to an inmate diagnosed with gender identity disorder.” The only correctional or medical expertise offered during the legislative hearings regarding Act 105 was that of defendants' correctional medical personnel, Dr. Kevin Kallas and Dr. David Burnett. No other DOC representative testified before the legislature regarding Act 105. No one other than legislators spoke in support of the bill that became Act 105. An earlier draft of Act 105 made explicit reference to GID, banning the use of DOC funds "to provide or facilitate the provision of hormonal therapy or sexual reassignment surgery for the treatment of gender identity disorder." Several of the press releases issued by the sponsors of Act 105 noted specifically that the issue of sex reassignment treatment for inmates came to light when they learned that a Wisconsin transgender inmate was receiving treatment that led her to develop “female characteristics, such as breasts.”
While sex reassignment surgery is more expensive than hormone therapy, DOC provides surgeries of equal or greater cost, such as organ transplant and open heart surgical procedures, when medically necessary. Genital sex reassignment surgery costs approximately $20,000. The most expensive surgical procedures provided to inmates by defendants include organ transplants, such as liver, kidney and pancreas transplants, and open heart surgical procedures. In 2005, the defendants paid $37,244.09 for one coronary bypass surgery and $32,897.00 for one kidney transplant surgery. The Fiscal Estimate prepared for AB-184, the bill that became Act 105, noted that the defendants paid a total of $2,300 for cross-gender hormone therapy for two inmates with GID in 2004. Such
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hormone therapy for inmates with GID costs defendants approximately $300 to $1,000 per inmate per year. A second-generation antipsychotic, Quetiapine, costs approximately $2,555 to $2,920 per inmate per year on average, and, in 2004, the defendants paid approximately $2.5 million for inmates to have Quetiapine. Another second-generation antipsychotic, Risperidone, costs approximately $2,555 per inmate per year on average.
Act 105 has prevented the DOC from undertaking thorough evaluations of at least two inmates to determine whether hormone therapy is medically necessary and appropriate for them. Erik Huelsbeck, a/k/a Erika Huelsbeck, was continuously in facilities administered by the DOC from December 2004 until July 2007, when Huelsbeck was transferred to the Wisconsin Resource Center. Huelsbeck was first diagnosed with GID by the DOC in 2006. Huelsbeck has not been evaluated to determine whether hormone therapy will be prescribed, nor could such treatment be prescribed, because of Act 105. Similarly, Krebs has been diagnosed with GID by the DOC. However, Krebs has not been evaluated to determine whether hormone therapy will be prescribed, nor could Krebs receive such treatment, because of Act 105.
Plaintiffs have been in DOC general population for most of their sentences. When OSCI identifies inmates who are more likely to be victims of violence by other prisoners, or more likely to perpetrate violence, it takes steps to address that through closer monitoring or placing the inmate in a different housing unit.
OSCI has eleven different housing units. One is a dormitory setting and houses 148 inmates. Two are wet cell units—they have toilet and shower facilities in the cell. The remaining nine have group bathrooms. The non-dormitory units have between 160-200 inmates each. The majority of the inmates in those units are double-celled.
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The DOC does not permit inmates to pay for their own health care or to seek insurance coverage, as non-inmates could, so Act 105 bars the only avenue for inmates with GID to receive hormone therapy and/or sex reassignment surgery. Neither the DOC as a whole nor any of the defendants have had any involvement in the drafting of, or the introduction of, any of the bills that became Act 105.
EVIDENCE PRESENTED AT TRIAL 1. Witnesses
Plaintiffs’ witness Dr. Randi Ettner is a clinical psychologist who received a Ph.D. in psychology in 1979. (Trial Tr. vol. 1, 13-14, Oct. 22, 2007; see also Ex. 525.) She has evaluated or treated between 2,500 and 3,000 clients with GID since 1976. (Trial Tr. vol. 1, 15, Oct. 22, 2007.) Dr. R. Ettner conducts independent research in the area of GID; has written three books, two of which are peer-reviewed; provides consultation to other mental health professionals; provides in-service or education to physicians, attorneys, and other groups; and collaborates with colleagues in organizations that treat individuals with GID. (Id. at 14, 16.) She is the editor of the International Journal of Transgenderism, which is published by Haworth Medical Press. (Id. at 17.) Dr. R. Ettner is a member of the scientific committee of the World Professional Association for Transgender Health (“WPATH”)2, known previously as the Harry Benjamin International Gender Dysphoria Association (“HBIGDA”). (Id. at 18.) Approximately 70% of her work time is spent seeing clients. (Id.) As part of her role as clinician for clients with GID, Dr. R. Ettner examines
2
W PATH is an international organization of professionals, m ainly m edical people and attorneys, who work with and give services to individuals who have GID. (Trial Tr. vol. 1, 19, Oct. 22, 2007.) W PATH publishes the Standards of Care (“SOC”) which, according to Dr. R. Ettner, is the worldwide acceptable protocol for treating GID. Id. at 19-20.
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clients and recommends necessary medical treatments. (Id. at 22.) Her role is to collaborate with medical caregivers, endocrinologists, and surgeons who implement the treatments. (Id.) Dr. R. Ettner assesses the intensity of the GID in a given individual, and determines whether or not a particular treatment would be medically necessary. (Id.)
Plaintiffs’ witness Dr. Frederic Ettner has been a family medicine physician for the past thirty years. (Id. at 83.) In approximately 1994, he started seeing patients with GID in his private practice. Since that time he has seen over 500 GID patients. (Id. at 88.) Dr. F. Ettner is a member of WPATH. (Id. at 91.) In 2007, Dr. F. Ettner presented a medical education seminar on family medicine and transgender at the WPATH international conference, which was held in Chicago. (Id. at 91-92.) Dr. F. Ettner addresses GID in his teaching as a clinical instructor for Northwestern University and the University of Southern California Medical Schools. (Id. at 92.) He considers himself an expert in transgender medicine. (Id. at 93.)
Vankemah Moaton, incarcerated at JCI, is one of the plaintiffs in this case. Moaton is a 29-year-old biological male who recalls feeling or acting in a feminine way as early as age four. (Trial Tr. vol. 2, 140, Oct. 23, 2007.) As Moaton got older, the feeling intensified, along with feelings of hatred for having a male body. (Id. at 140-41.) Moaton felt better when able to act like a girl, dress up in girl clothes, and play with dolls. (Id. at 142.) Moaton experienced anger and “lots of depression” as Moaton’s body began developing as a man and self-hatred feelings intensified. (Id. at 142-43.) Moaton started taking female hormones around age seventeen or eighteen and as a result started seeing less facial hair growth and a skin “glow” and developed breasts. (Id. at 144.) These
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changes made Moaton feel happier than ever before because steps were being taken toward becoming a woman. (Id. at 144-45.) A year or two after starting hormones, Moaton began dressing as a woman and living life as a female, including in a couple of jobs. (Id. at 146.) In addition, Moaton has had electrolysis on the face, as well as silicone injections in cheeks, chin, breasts, and hips. (Id. at 147.) Moaton considers Moaton to be a woman and is “completely detached” from the male part or male characteristics. (Id. at 148.) Moaton is currently taking feminizing hormones. (Id. at 154.)
Plaintiffs’ witness Dr. Kevin Kallas is the Mental Health Director for the DOC. (Id. at 168.) He is board certified in general psychiatry and forensic psychiatry. (Id.) Dr. Kallas is responsible for informing the psychologists and psychiatrists within the DOC about the care of inmates with GID. (Id. at 173.) Dr. Kallas’s responsibilities include clinical oversight of approximately thirty-five psychiatrists and approximately 100 psychology staff; development of policy for achieving consensus within the department as to what policies ought to be; clinical consultation to the psychologists and psychiatrists; formulating policy for psychotropic medications; and acting as a liaison to outside groups such as advocacy groups. (Id. at 196.) He sits on the DOC gender identity committee. (Id. at 170.) Dr. Kallas’s prior experience in working with persons with GID includes five years at the San Francisco psychiatric emergency room where he saw about a dozen transgender patients, some on a recurring basis. (Id. at 171-72.) He also had at least one transgender patient while in private practice and, while working as a psychiatrist at Dodge Correctional Institution, evaluated and treated at least one patient with GID. (Id. at 172.)
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Defendants’ witness Dr. David Burnett is the Medical Director of the DOC. (Id. at 210.) He has been licensed to practice medicine in Wisconsin since 1980 and is board certified in family medicine. (Id. at 211.) Dr. Burnett also has a degree in Masters of Medical Management. (Id.) His duties and responsibilities as DOC Medical Director include oversight for care within the Wisconsin prison system, including the primary care physicians; oversight to the mental health director; oversight to the dental area and the pharmacy; and review of medical policy. (Id. at 212.) Dr. Burnett is a member of the DOC gender identity disorder committee. (Id. at 223.)
Plaintiffs’ witness Dr. George Brown is chief of psychiatry at the Mountain Home VA Medical Care Center in Johnson City, Tennessee, and Professor of Psychiatry at East Tennessee State University. (Trial Tr. vol. 3, 245, Oct. 24, 2007.) He is board certified in psychiatry and licensed to practice psychiatry in Tennessee, Texas, and Ohio. (Id. at 246.) Dr. Brown’s specialized training in the field of GID includes pursuing such training with experts at the University of Rochester, Case Western Reserve University, and the Institute of Living in Hartford, Connecticut. (Id.) He has published articles on GID and transgender issues in approximately twenty-six journals and has had about forty abstracts published from scientific meetings. (Id. at 246-47.) Dr. Brown has published one scientific abstract on the issue of prison inmates with GID and currently has one paper being considered for publication. (Id. at 248.) He has conducted research on “gender phenomenon” since the mid-1980s, some of which has been specific to GID and transsexualism, some on prison issues with GID, as well as a variety of other transgender phenomenon including transvestism. (Id. at 248-49.) Dr. Brown has been involved in the
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clinical evaluation of patients with GID for about twenty-six years and evaluated or treated more than 500 patients with gender identity concerns. (Id. at 249.) He is a member of WPATH and holds the position of secretary/treasurer for that organization. (Id.) Dr. Brown’s correctional experience consists of working for one month as a staff psychiatrist in two maximum security prisons in Ohio and working for six months part-time in a forensic psychiatric facility for criminally insane inmates. (Id. at 250.) He has evaluated five prison inmates with GID. (Id. at 251.)
Defendants’ witness Dr. Daniel Claiborn is a psychologist who has been licensed in Missouri and Kansas since 1980. (Id. at 335.) He holds a Ph.D. in counseling psychology. (Id. at 336.) He is a member of the American Psychological Association and is the chair of the ethics committee of the Kansas Psychological Association. (Id. at 339.) Dr. Claiborn has a psychotherapy practice which covers “all the dimensions of psychopathology, basically[,] including depression, anxiety, marital problems, relationship issues, and some unique categories like eating disorders.” (Id. at 346.) He has a special niche working with gay and lesbian clients in his community and for the past twenty years has had a steady flow of those clients. (Id.) Since the early 1980's, Dr. Claiborn has had one to three transgender clients per year. (Id.) In his private practice he has had approximately fifty clients who suffer from GID or have transgender issues. (Id. at 347.) Dr. Claiborn is trained to treat mental disorders such as anxiety and depression. (Id. at 353-54.) Dr. Claiborn has been an expert witness in approximately sixty-six cases between 2004 and October 2006. (Id. at 378.) About 20% of his work consists of seeing patients
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and 80% is consulting or expert witness work. (Id. at 379.) Dr. Claiborn has not done any research on GID and has not published any articles or books on GID. (Id. at 379-80.)
Eugene E. Atherton is the defendants’ security expert. He is a retiree of the Colorado Department of Corrections, and also acts as a private consultant in criminal areas of criminal justice. (Id. at 406.) He has worked in corrections since 1975. (Id.) A good portion of Atherton’s employment with the correctional system has focused on security issues, including as warden at medium and maximum security institutions, and assistant director of prison operations for the western region of the Colorado Department of Corrections. (Id. at 408.) Since 2004, Atherton has worked as an expert witness in various cases. He also published the only book on use of force in corrections. Id. at 409. He does technology work for the National Law Enforcement and National Technology Center out of Denver, on a national level, which requires him to communicate with a number of states and agencies on security and safety issues as they relate to technology. (Id. at 410.) Atherton works approximately thirty hours per week, visits jails and prisons and interacts with staff, and is currently building an organization in the Rocky Mountain states for viewing and assessing technology among agencies, all related to safety and security. (Id. at 41011.) Approximately once or twice a year, he gets called to the National Institute of Corrections as a subject matter expert on issues of security and safety. (Id. at 411.)
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2. Plaintiffs According to Dr. R. Ettner, all three plaintiffs have severe GID.3 (Trial Tr. vol. 1, 43, Oct. 22, 2007.) Dr. R. Ettner testified that, at a minimum, plaintiffs require hormone therapy to treat their severe GID. (Id.) Hormone therapy is medically necessary for the plaintiffs because nothing short of that treatment will provide an attenuation or relief from the severe distress caused by GID at that level. (Id. at 55.) According to Dr. R. Ettner, plaintiff Fields looks like a woman, has large breasts, and is “very feminine in appearance.” (Id. at 51.) The prison guards refer to Fields as “she, I mean he.” (Id.) Fields “is fully feminine in her presentation and in her appearance.” (Id.) Dr. R. Ettner testified: Andrea Fields is one of those individuals who thought she was a girl when she was growing up, and always behaved and lived as a girl. She never even tried to live as a boy. Even though, for instance, she was punished for playing with nail polish, she never ever attempted to be anything other than what she thought she was. (Id.) Dr. R. Ettner says Plaintiff Davison looked “fairly feminine” in appearance. (Id. at 52.) Davison had some breast growth and a female hairstyle, and attempted to present with female mannerisms. (Id.) As a result of using hormones for a period of time, Davison had some of the physical manifestations of female secondary sex characteristics, which come on with hormone usage. (Id.) Davison appeared to have other psychiatric disorders
3
Dr. R. Ettner personally interviewed the three plaintiffs in this case, adm inistered psychological testing, and reviewed medical records that she was provided with. (Trial Tr. vol. 1, 43, Oct. 22, 2007). She m et with each plaintiff for approxim ately three and a half hours. (Id. at 44.) Most of this section is taken from Dr. R. Ettner’s testim ony regarding her interviews of the plaintiffs. (See id. at 42-58.)
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as well as GID. (Id.) Davison had previously sought treatment for depression, and Dr. R. Ettner believes that Davison had a personality disorder. (Id. at 53.) Davison sought treatment for GID at the Pathways Clinic in Milwaukee. (Id.) Davison made several suicide attempts in the past. (Id.) Davison is married to a woman and has two children. (Id. at 71.)
According to Dr. R. Ettner, plaintiff Vankemah Moaton is “a bona fide transsexual.” (Id. at 54.) Prior to incarceration, Moaton was living and working as female and everyone, including family, regarded Moaton as a female. (Id.) Moaton looks like a female in that Moaton has female bone structure, a female hairstyle, a voice that is entirely female, a waist to hip ratio that appeared female, breast development, no facial or body hair, and a lack of the muscle mass that is characteristic of genetic males. (Id. at 58.) Moaton served in the Army Reserves from 1995 to 2003. (Id. at 71.)
3. Gender Identity Disorder4 a) Dr. R. Ettner
Dr. R. Ettner testified that GID is: a rare condition in which an individual has the persistent idea that they are or wish to be a member of the opposite sex, and the persistent feeling that their own body is inappropriate or wrong, and they desire to rid themselves of the characteristics of the sex they were born with and attain the characteristics of the other sex. (Trial Tr. vol 1, 23, Oct. 22, 2007.) The criteria for the diagnosis is set out in two places, the International Classification of Disease (“ICD”), and the DSM. (Id. at 24-25.) The ICD and the DSM “are nomenclature, in one case of all medical and psychiatric disorders, and
4
This section sets forth relevant testim ony with respect to defining and diagnosing GID from witnesses Dr. R. Ettner, Dr. F. Ettner, Dr. Burnett, Dr. Brown, and Dr. Claiborn.
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the other psychiatric disorders that mental health professionals need to familiarize themselves with and treat.” (Id. at 25.) GID affects one in 11,900 genetic males. (Id.) The best way to diagnose it is “that they come in and tell us.” (Id. at 24.) An individual will seek out a professional and relate a history of gender dysphoria or history of feeling trapped in the wrong body. (Id.) “And that’s usually causing them distress, at least enough to bring them to a mental health professional.” (Id.)
The intensity of the distress varies depending on the severity of the disorder. (Id.) “For some people the disorder is so intense and so severe, that they simply cannot function unless they do something to correct this disorder. For other people the discomfort is less intense, and they are able to manage the condition over a lifetime.” (Id.) Taking a history of a client is important in diagnosing GID because the diagnosis is partially based on the duration of the symptoms and the feelings. (Id. at 26.)
Dr. R. Ettner’s GID clients have some common characteristics: People who have severe Gender Identity Disorder, what we refer to as transsexualism, will give a lifelong history, often beginning as early as three or four. Sometimes they say that they thought they were a girl until they realized at a later age they weren’t. They will describe a period of dressing or what we would call cross-dressing, dressing in the desired gender, often taking a mother or sister’s clothes when they’re young and wearing those. Typically they have a dislike of their genitals. Puberty is a very difficult time for these individuals. And they will track along their lifeline various stigmata of gender confusion or gender disorder. . . . .
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They try to rid themselves of the secondary sex characteristics.
So a male will shave their body hair, oftentimes even before they know the name of this disorder or what it is that they’re experiencing. They’ll tuck their genitals. They will, you know, try to appear and be perceived as a member of the other sex, if not publicly for fear of being punished or shamed, at least privately when they feel safe they’ll try to restore some sense that when they look in the mirror what they’re seeing feels like who they really are. . . . .
Even children, often very young, will show Gender Identity Disorder. They know nothing about hormones, they know nothing about surgery, but they believe that they are or they very much want to be a member of the other sex.
So, for instance, a young boy will put on a dress or nail polish. And oftentimes they’re punished or shamed for doing that. They’ll continue. They’ll play mostly with girls when they have the opportunity. They won’t like rough and tumble play.
(Id. at 26-27.)
According to Dr. R. Ettner, there is no definitive test to say whether someone
has GID. (Id. at 28.) However, there is no controversy over the existence of the disorder.
(Id. at 42.)
b) Dr. F. Ettner
Dr. F. Ettner testified that, based on his medical knowledge and experience
treating transgender patients, GID is a serious health condition. (Id. at 93.) He stated:
Those individuals, with Gender Identity Disorder who express dysphoria, not being in the right body, where the brain is not in concert with their physical appearance, will have a lot of dysfunction. Initially it may present as depression, lethargy, and they will then come to my attention. If not treated, whether it be by talk therapy and/or hormones, they can develop serious medical problems.
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(Id. at 94.) The medical problems include further depression, morbid depression, and suicidal ideation. (Id.) A family physician may diagnose GID. (Id.) In practice, Dr. F. Ettner will consult with other experts, namely, gender therapists, psychologists, psychiatrists, or social workers to confirm his suspicions of GID. (Id. at 94-95.) GID varies in its severity and is a generally accepted medical condition. (Id. at 128.)
c) Dr. Burnett Dr. Burnett acknowledges GID as a serious health condition that requires evaluation and treatment. (Trial Tr. vol. 2, 227-28, Oct. 23, 2007.)
d) Dr. Brown Dr. Brown testified that once a person has reached the clinical significance threshold, by definition it becomes a clinical diagnosis that warrants medical attention. (Trial Tr. vol. 3, 259, Oct. 24, 2007.) Once the clinical threshold is reached, a person will have “significant symptomatology that in most cases warrants some type of individualized treatment.” (Id.) There is no controversy among professionals who work in the GID field that it is a serious health condition. (Id. at 260.) On the other hand, there is the following controversy among professionals working in the field of GID: There are a lot of things that are in the DSM, a lot of diagnoses in the DSM that have substantial medical components. And again, there’s no bright line in medicine between what’s socalled medical and so-called psychiatric. And the DSM is very clear on that in the preamble, because there is substantial overlap in most of our conditions. So, there are some people who believe that because it’s likely that there are biological underpinnings to Gender Identity Disorder that that’s predominantly a medical disorder and, therefore, should be in the list of medical conditions or neurological conditions as opposed to a psychiatric condition.
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But whether it exists at all and whether it’s serious, those things are not controversial. It’s a matter of placement.
(Id.)
The mental state of a person presenting with GID who is not receiving
treatment varies:
Usually the people that make it to me through referral sources from all over the country, have at least moderate to severe form of the disorder.
And prior to receiving treatment they are very preoccupied with their condition, spend considerable amount of their time, effort, energy and resources trying to obtain treatment in the form of psychotherapy hormones, and in some cases ultimately sex reassignment surgery.
They uniformly have gender dysphoria which is not a diagnosis but an amalgam of symptoms that includes depression, anxiety and irritability mixed together.
Frequently they have suicidal ideation and have had suicide attempts in the past.
They often harbor thoughts of wanting to engage in what I would call surgical self-treatment. In the literature it’s sometimes described as genital self-mutilation or autocastration as a way to rid themselves of the hormones associated with the testicles.
They’re often very desperate, frantic impaired people who are looking for treatment from someone who knows what they’re doing in this area, and unfortunately that’s limited to very few people.
(Id. at 262.) Generally, Dr. Brown diagnoses GID based on a two- to three-hour face-to-
face clinical interview, his experience, and all of the records that he can find. (Id. at 263.)
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e) Dr. Claiborn Dr. Claiborn testified that, in his opinion, GID is not a mental disease or disorder. (Id. at 357.) He believes that a person who has GID does not typically suffer from an impairment in psychological functions. (Id. at 364.) According to Dr. Claiborn, people with GID can have mental disorders such as depression and anxiety, but those disorders are not directly a result of being transgendered. (Id. at 367.) Dr. Claiborn uses the DSM in two main ways, for filling out insurance forms and in some cases for forensic evaluations. (Id. at 361.) He testified that the DSM is not constructed to be helpful to therapists because it does not address the causes of disorders. (Id. at 361-62.)
4. Treatment for Gender Identity Disorder a) Dr. R. Ettner
Dr. R. Ettner testified about the treatments for the distress that accompanies severe GID. The treatments are referred to as “triadic treatment,” which consists of, 1) a real life experience which helps the person socially take on the role and life that they want in the preferred gender; 2) hormones; and 3) surgical treatments involving genital alteration. (Trial Tr. vol. 1, 29, Oct. 22, 2007.) These treatments are set out in the Standards of Care, which is published by WPATH. (Id. at 30.) The treatments are also found in the DSM-IV treatment manual, a book that accompanies the diagnostic manual, as well as in other handbooks for clinicians and for professionals in the medical and mental health fields. (Id.) The Standards of Care “are a document that articulates professional consensus about the treatment of gender identity disorders, and it’s produced by the
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WPATH organization and distributed throughout the world to organizations such as World He[alth] Organization and other providers of health care worldwide.” (Id. at 30-31.)
As a treatment, hormone therapy helps those with GID by providing them with a level of well-being because the effect on the brain is one that restores them to a nondistressed, non-dysphoric level of well-being. (Id. at 31.) Dr. R. Ettner’s clients who started taking hormones while under her care have experienced remarkable changes in their level of well-being, in their overall mental health, and in the way that they conduct their lives. (Id. at 32.) For many people, hormonal treatment is sufficient to manage and reduce the gender dysphoria. (Id. at 33-34.) Whether a client should have hormone therapy depends on the intensity of the disorder and the distress that the disorder causes him or her. (Id. at 35.) If it impairs the person’s functioning, occupationally, socially, or in another major arena, and it cannot be managed without medical treatment, at that point one would recommend medical intervention. (Id.)
Hormone therapy is not required for all persons with GID. (Id. at 39.) Dr. R. Ettner has refused to recommend hormone therapy for a client. (Id. at 36.) One common reason for such a decision is that the person does not have the intensity of the disorder to meet the criteria for that treatment. (Id.)
There is a role for psychotherapy in treating GID, which consists of four components: 1) educating the patient about the disorder; 2) helping the patient understand and navigate some of the social consequences that accompany GID; 3) following up with the patient after some treatments; and 4) offering support, helping the person find
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reputable physicians and support groups or other venues for assistance. (Id. at 37.) However, psychotherapy cannot talk someone out of GID; it is not a cure. (Id. at 38.)
If hormone therapy is medically necessary but not provided, the person is at risk for autocastration, suicide, substance abuse, and depression. (Id. at 39.) The psychological risks of being taken off of hormone therapy are depression, autocastration, and suicide. (Id. at 41.)
b) Dr. F. Ettner The nature of the treatments that Dr. F. Ettner prescribes depends upon the level of severity of the GID. (Trial Tr. vol. 1, 101, Oct. 22, 2007.) The symptoms of someone that he considers severe enough to need hormone therapy are: These are individuals that will present to me and describe a history of depression, anxiety, sleeplessness, inability to concentrate, inability to maintain their job, family conflict. And no matter what they’ve done, whether they have crossdressed secretively, it’s not sufficient. They’ll then be referred for therapy and maybe the therapy is not gonna be sufficient and the therapist will then refer those clients to me, and those patients will then receive hormonal therapy. (Id. at 101-02.) Hormone therapy is not medically necessary for every GID patient that has come to Dr. F. Ettner; approximately five to ten percent of his GID patients have been able to go without hormone therapy. (Id. at 102.) For those patients with severe GID for whom he prescribes hormone therapy—and in some cases surgery—psychotherapy on its own is not effective as a treatment. (Id. at 103.)
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The therapeutic effects of hormones on the body of a patient with GID are:
Patients who have GID and qualify for hormones will experience initially – the organ system that will experience the most benefit initially will be the brain.
The dysphoria will tamp down, dysthymia, the depression, anxiety will all tamp down initially.
Other organ systems that eventually will respond, and it will take a good couple months of therapy, include secondary sexual characteristics, in the case of the male to female, breast development, fat deposition on the hips, decrease in muscle mass on the chest, softening of the skin.
(Id. at 107-08.) The birth gender hormones begin to be suppressed, “almost to the point
of suppression that is sufficient to represent the gender that that individual is transitioning
into.” (Id. at 108.)
When hormone therapy is withdrawn from a GID patient, the following occurs:
So after being on hormonal therapy for a significant period of time, couple of years, even a year, there could be enough suppression that that testosterone now approaches female levels or the same as female levels withdrawing that hormone, withdrawing estrogens create this cascade of events, the systemic events of stress.
And so stress is monitored in our bodies by the amount of hormone that will secrete or prehormone that will secrete in our pituitary glands. And this will stimulate our adrenal glands that create lots of cortisol. And cortisol then affects all these target systems.
For example, in muscles we’ll see some muscle wasting, in nerves we’ll see neuroexcitability. We’ll see fatty deposition. There’ll be more of a tendency for blood pressure to increase because of water and salt imbalances.
And all of these things can lead to diseases – heart disease, hypertension, diabetes.
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(Id. at 110-11.) Termination of hormone therapy does not reverse all of the change that occurred to secondary sexual characteristics. (Id. at 111.) In a male-to-female person, gynecomastia or increase in breast size will remain, a lot of the fatty deposition will stay, and some of the muscle wasting will stay. (Id.) On the other hand, hair growth can come back if there are enough hair follicles still present and the natal hormones may begin to increase and create dysphoria again. (Id.) Termination can affect the neurological system and with neuroexcitability, seizure disorder can be seen, and sleeplessness, anxiety, and further depression can occur. (Id.) Suicidal ideation, if it was present, would be accelerated. (Id.) The effect to the metabolic muscle system, besides muscle wasting, creates higher glucose levels and can lead to diabetes, more water loss, and higher hypertension. (Id. at 112.) Termination can soften the bones. (Id.) Termination of hormone therapy also affects the cardiovascular system by way of water retention, which increases plasma volume and increases the pressure within the system, and the release of epinephrine and norepinephrine which stimulates the body and can constrict the blood vessels that convey blood to the organs and make the heart beat faster which increases blood pressure. (Id. at 113.) Finally, withdrawal of hormone therapy affects the immune system due to decreased protein. (Id.) Lymphocytes made in the lymph system that protect people from infection are suppressed. (Id.) Every patient who is taken off hormones will experience these risks chemically. (Id. at 114.) Some patients will experience the effects clinically, others subclinically. (Id.) All patients taken off hormone therapy need to be followed, and all of these organ systems need to be monitored. (Id.)
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Based on these risks, it is not medically acceptable to take someone off of hormone
therapy if they do not have to come off for some other medical reason. (Id.)
Based on a review of plaintiff Fields’ medical records, Dr. F. Ettner formed
an opinion to a reasonable degree of medical certainty about the likely effects of
withdrawing Fields from hormones. (Id.) He opines that withdrawal could have serious
adverse effects on Fields’ health and well-being:
I think, you know, based on the records and looking at her as a transgendered woman, she’s diminutive, she had had breast implants, she had been on hormones for a period of time. All commentary about her in the records declared her as very effeminate. She was on significant amounts of hormone.
She also in her laboratory tests had an elevated cholesterol. Taking her off would certainly upset her lipid balance, her cholesterol balance. It could increase her cholesterol levels to even higher levels than these are, and these are pretty high to begin with, 261. Being that 130 is normal and 261 is abnormal, it would put her at risk for heart disease.
I think also in taking her off of hormones due to her presentation for such a long period of time as a female, the neuroexcitability issues would be very prominent for her, be an increased risk of seizure, increased suicidal ideation.
(Id. at 116.)
c) Dr. Kallas
Dr. Kallas testified about the diagnosis of and treatment for GID. He
considers the DSM to be an authoritative manual for diagnosing mental health disorders.
(Trial Tr. vol. 2, 173, Oct. 23, 2007.) The primary goal of hormone therapy is to reduce
gender dysphoria and to improve the psychological adjustment of an individual receiving
the hormone therapy. (Id. at 174.) Hormones are medically necessary for some
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individuals. (Id.) Hormone therapy is “probably the most common and accepted treatment
for those with severe gender dysphoria” although “it’s not the answer for everybody.” (Id.
at 175.) The most widely referenced set of standards for the treatment of severe gender
dysphoria is the Standards of Care. (Id.)
When asked whether there may be individuals for whom hormones are the
only satisfactory route to alleviate their gender dysphoria, Dr. Kallas responded:
I’m hesitant to agree with that statement exactly as worded.
The Harry Benjamin standards speak to a number of routes for treatment, and those include real life experience, hormonal treatment, surgical reassignment, and – I wouldn’t say necessarily that for every single individual with severe gender dysphoria that hormonal treatment is – would be required, but, again, it’s a mainstay of treatment, it’s one of the primary ways, easily the most common ways that severe gender dysphoria is treated.
I would be hesitant to say that there are individuals where hormones would be the only way that the dysphoria could be – could be alleviated, but there are certainly individuals where it may be difficult to envision that other routes would be as satisfactory.
(Id. at 176.) He went on to state:
I do believe there are individuals where hormonal treatment is medically necessary for the gender dysphoria. Although I would be hesitant to say that it could be the only route in which they could accommodate the gender dysphoria.
There may be individuals – it’s difficult to imagine that they could successfully accommodate the gender dysphoria without hormones. I think what I’m saying is very close to what you’re saying.
(Id. at 177.) By “medically necessary,” Dr. Kallas means that there are adverse
consequences to psychological well-being if the hormones are not provided. (Id.)
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To the extent that hormone therapy assists in alleviating gender dysphoria,
withdrawal may bring about reemergence of that dysphoria. (Id. at 178.) Thus, the person
may experience depression, anxiety, difficulty with social or occupational functioning, and
suicidal ideation. (Id. at 178-79.)
d) Dr. Brown
Dr. Brown testified that some form of treatment is indicated for anyone who
reaches the clinical threshold of severity to be diagnosed with GID. (Trial Tr. vol. 3, 269,
Oct. 24, 2007.) Severe GID causes distress that can be relieved by following the treatment
set forth in the Standards of Care. (Id. at 269-70.) As to whether GID is curable, Dr. Brown
stated:
I’ll use my personal experience in answering that question. I’ve had patients that I started treatment, went through the [S]tandards of [C]are sequential treatments that are described, and in individuals that I’m thinking of in this experience these individuals did have sex reassignment surgery, and I’ve been able to follow them for as long as 15 years after the surgery, and by any definition of the word “cure” from any dictionary or any medical text, they no longer have the diagnosis of GID. Meaning that the symptoms for which they were treated no longer exist for a significant period of follow-up time afterwards.
And cancer examples are usually five years. If a person doesn’t have any evidence of that cancer after treatment five years later they’re considered cured. Prior to that they’d be called in remission. And certainly if you follow someone who has had all of these treatments for five to 15 years afterwards with no recurrence of any symptoms of GID at all, I think that that would meet the definition of a cure.
(Id. at 271-72.) For some patients, GID can be adequately treated with a combination of
psychotherapy and hormones. (Id. at 272.) For individuals with severe GID, psychotherapy
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alone has never been adequate treatment, “not just in my experience but also in the
literature over decades.” (Id. at 272-73.) With regard to the efficacy of hormone therapy
in treating GID, Dr. Brown testified:
In my clinical practice the patients who are properly diagnosed and followed and following [sic] the [S]tandards of [C]are, again, hormonal treatment really has some fairly striking positive results in reversing or ameliorating a lot of the symptomatology that the patient is presented with.
And these are in the domains of their psychiatric functioning as well as in changes in the body. And there’s some interrelationship between the two, but there are emotional and psychiatric responses to hormonal medications that actually precede any changes in the body of the person.
(Id. at 273.) There is no other equally effective treatment for these patients. (Id.)
Inmates whose hormone therapy has been interrupted and have been seen
by Dr. Brown have been evaluated as follows:
It’s uniformly a very bad thing to do medically and psychiatrically.
The patients who had gender dysphoria that may have been largely ameliorated or at least partially controlled, that gender dysphoria comes back fairly rapidly, and often it comes back in a more severe and potentially more dangerous form than it was prior to when they received hormones in the first place.
They may develop suicidality for the first time if they didn’t have it before. They may again harbor thoughts of surgical self-treatment, which would mean thinking about removing the testicles as a way to self-treat by removing the testosterone from the body.
They certainly would get depression symptoms, anxiety symptoms, irritability symptoms, crying, having difficulty functioning, all of these things would be likely in patients who were previously stabilized on cross-sex hormones.
(Id. at 274.) As to whether treatment for GID was optional, Dr. Brown testified:
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Again, once a person reaches the clinical threshold and they have the diagnosis, I don’t consider treatment optional. It’s individualized to a given patient, but the treatment itself is not optional.
Just as in a patient who has prostate cancer, the urologist will present, well, here are your treatment options. You can get radiation, you can get surgery, you can get a combination of the two, you can get chemotherapy. Here are the probabilities in your given case of the likelihood of success with each individual treatment, but the effects are this, this, and this.
It’s really something that you need to work out with me what treatment you want to choose, but the treatment itself is not optional unless the person decides that they don’t want to continue to live.
(Id. at 278.) Dr. Brown has conducted extensive research in the area of genital self-harm
and described his findings as follows:
[T]hese are tentative conclusion[s] based on my research which is still ongoing, but the first conclusion was that genital self-harm is in fact surgical self-treatment in prison settings or in other institutional settings where a person with GID, usually moderate to severe, is denied or blocked access to cross-sex hormonal treatment and then they take matters into their own hands as it were and surgical self-treat [sic], and that that’s much more common in incarcerated institutionalized settings than it is for people who are in the free world.
(Id. at 281-82.)
In Dr. Brown’s experience, anti-depressants cannot adequately treat GID
because they “don’t at all treat the underlying condition.” (Id. at 284.) Also, GID cannot be
adequately managed through psychotropic medications:
No, I don’t believe so at all. You may be able to take the edge off of some symptoms by using a variety of medications, but it’s like putting a Band-Aid on a burst appendix or giving somebody with a burst appendix pain medication. You know, you might make them feel a little bit better but the underlying condition is what needs to be treated.
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(Id.) Brown says that under the Standards of Care, a patient is ready for hormone therapy
under the following circumstances:
In terms of being ready for hormones you have to first be eligible. So eligibility would involve having a prior real-life experience or, in the alternative, having a minimum of three months of psychotherapy. Being in the age of majority, so we’re not treating children in this setting.
And in addition to that, some consolidation of their crossgender identity and satisfactory control of other psychiatric comorbidities that may be present at the same time because there are often other diagnoses present in people who have GID.
(Id. at 286-87.) Gender identity cannot be changed:
Since gender identity is a subjective construct, it’s in the brain, it’s not in the body, I think people’s gender identity is what it is.
Now, their body may not match what their gender identity is in their brain. But there’s nothing that I or anyone else can do medically, psychiatrically, or surgically to change someone’s gender identity in their brain. And that’s why we seek to change the body, because we don’t know of any way to change the brain to match the body.
(Id. at 297.)
Psychotherapy is not an acceptable means of treating GID:
Well, for example, if you have a marital problem and you’re in therapy for the marital problem, the psychotherapy, the intent of the psychotherapy is to help work through and resolve the marital problem. So it’s primary treatment for that problem.
In patients who have GID the psychotherapy is not intended to nor designed to cure or eliminate the symptoms that they have; it’s to help them understand more about themselves, it’s educational, it’s to help them understand the implications of the treatment alternatives that they’re being presented with potentially by other physicians or surgeons, and to help them adjust to who it is that they are because that’s never gonna change.
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So, and similar to homosexuality, you don’t change a person’s sexual orientation by working with them psychotherapeutically. You help them to understand that this is who they are and that that’s not gonna change no matter how much psychotherapy they get. (Id. at 330-31.) A treatment approach whereby only psychological treatments are available to help GID patients accept their biological sex would be “absolutely inconsistent” with the triadic approach to addressing GID. (Id. at 332.) 5. DOC Policy Prior to Act 105; DOC Reaction to Act 105;
DOC Medical and Mental Health Treatment a) Dr. Kallas
Dr. Kallas testified that in approximately 2002 the DOC established the gender identity committee, which consists of Dr. Kallas, Dr. Burnett, Bureau of Health Services Director James Greer, the warden of an institution, and a psychologist of an institution. (Trial Tr. vol. 2, 170, Oct. 23, 2007.) The role of the gender identity committee “is to consult on policy with respect to gender identity disorder, to review individual cases, to make determinations about hormonal treatment, especially starting new treatment, and then to consult in a clinical fashion to the psychologists and psychiatrists who are within the institutions about gender identity disorder matters.” (Id.) Prior to Act 105, a person who came into the prison system on hormone therapy would continue such therapy unless the prison doctor had a reason to believe that the hormones were inappropriate. (Id. at 171.) When an individual came and requested to be put on new hormone therapy, that request would go to the GID committee, “and there’s a process that’s described in our policies
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about how that would play out.” (Id.) The DOC’s policy prior to Act 105 was set forth in Executive Directive 68. (Id.)5

5
Executive Directive 68 provides:

SUBJECT: Scope of Services for the Treatm ent of Gender Identity Disorder

I.

Background

It is the policy of the W isconsin Departm ent of Corrections (DOC) to provide appropriate treatm ent services to offenders m eeting the criteria for a diagnosis of gender identity disorder (DSM-IV 302.85). Practitioners shall take correctional and com m unity standards of care into consideration when providing treatm ent services.

II.

Definitions

Diagnostic and Statistical Manual, 4th Edition, Revised (DSM-IV): The standard manual of psychiatric diagnoses and classification codes.

Gender Identity Disorder: A psychiatric disorder in which a person is not satisfied and is seriously dysphoric with regard to their anatom ical gender. In general, this condition is a stable, nonviolent condition and not due to psychosis, but it may accompany other mental disorders.

Hormonal Therapy: The use of hormones to stimulate the development of secondary sexual characteristics such as enlargement of breasts and which may exert systemic effects such as body hair loss.

Sexual Reassignment Therapy: Treatm ent for gender identity disorder in which one or m ore of the following are used: horm onal m edications, surgical procedures to alter a person's physical appearance so that he/she appears m ore like the opposite gender and psychological counseling.

II. [sic] Guidelines

A. No surgical procedures for the purpose of sexual reassignm ent shall be provided to any offenders incarcerated in the W DOC.

B. After consultation with the Gender Identity Disorder Comm ittee, horm onal therapy for severe gender dysphoria may be initiated by the W DOC physicians. The Gender Identity Disorder Com m ittee will consult with a non-W DOC consultant before approving or denying a request from a W DOC physician for initiating horm onal therapy. If the Com m ittee and the non-W DOC consultant do not agree regarding initiating horm onal therapy for severe gender dysphoria, the DOC Medical Director and non-W DOC Consultant will meet with the Secretary's Office to reach a decision.

C. An offender who is receiving horm onal m edications as a part of an established sexual reassignm ent therapy regim en under the supervision of a m edical doctor at the tim e of incarceration may be continued on horm onal medications provided that the offender cooperates with the DOC in obtaining confirm ation of his/her previous treatm ent. If an offender chooses to discontinue horm onal medications and then wishes to restart horm onal m edications, the comm ittee referenced below will evaluate the request and make a determ ination.

D. The offender m ust agree to sign DOC-1163, Confidential Inform ation Release Authorization, allowing DOC m edical and mental health staff access to medical and mental health records regarding all prior treatm ent related to gender identity disorder.

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Act 105 takes away the ability of DOC medical personnel to provide hormone
therapy to individuals with GID. (Id. at 182.) Also, because of Act 105, the DOC has not
evaluated two inmates who may suffer from GID to determine whether hormone therapy
E. Offenders identified or claim ing to suffer from gender identity disorder shall have access to the full range of m ental health therapies available through the W isconsin DOC. They shall have access to therapies in which they may explore their am bivalence, confusion and conflict around sexual identity as well as those services focusing on enabling those with identifiable mental health problem s to better adjust to institutional living.
F. Self-inflicted genital m utilation or other form s of self-m utilation are not consistent with successful sexual reassignment therapy.
Facility Placement
A. In the event that an offender who has completed a surgical sexual reassignment treatm ent program is com m itted to the DOC, that offender shall be placed in a correctional facility appropriate for his/her reassigned gender.
B. In general, offenders shall be placed in facilities in accordance with their gender as determined by their external genitalia.
Name and Apparel for Inmates with Gender Identity Disorder
A. The DOC shall use the name of the offender as it appears on the Judgement [sic] of Conviction. The only exception to a name change will be through an order of a judge to have the name of the offender legally changed after the Judgement [sic] of Conviction. A new Judgement [sic] of Conviction must be issued or the court order must specifically state "change all records".
B. Property and apparel shall be consistent with the offender's determ ined gender.
Gender Identity Disorder Management and Treatment Committee
A. Composition: The Com m ittee shall be com posed of the DOC Medical Director, the DOC Mental Health Director, the Bureau of Health Services Director or designee, an assigned doctoral prepared psychologist, and a W arden or designee. In addition, a m edical specialist in the treatm ent of gender identity disorder from the com m unity m ay be retained as a consultant on specific cases. If the offender is identified as a sex offender, the Chief Psychologist, Sex Offender Specialist shall participate as a member.
B. Function: The com m ittee shall be convened to address issues in the managem ent of individuals with gender identity disorder after review and referral by the m edical director, m ental health director or Bureau director. Inm ates may be referred to the m edical director, m ental health director or bureau director to address issues of concern through the com m ittee by institution W ardens or their designees.
The com m ittee shall advise the medical director or treating physician on issues such as appropriate diagnoses, complications of treatm ent, m anagem ent issues, and/or the design and im plem entation of a plan of care.
(Tr. Ex. 2.)
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is medically necessary for them. (Id.) Dr. Kallas had concerns about Act 105 because it takes the medical decision out of the hands of health care practitioners with respect to the provision of hormones. (Id. at 183.) He expressed those concerns to his boss, Dr. Burnett, and also to Mr. Margolis, the legislative liaison in the DOC Secretary’s office. (Id.) In an email in which Dr. Kallas was responding to a request for information about legislation that takes away the ability to provide hormone therapy (which ultimately became Act 105), Dr. Kallas stated in relevant part:
The cost of discontinuing treatments would vary from inmate to inmate. Overall hormones tend to improve psychological well-being for those with gender identity disorder, thus some inmates may stop hormones with relatively little impact, however, others may experience depression, anxiety, disruptive behavior or suicidality. Additional resources may be needed for time in segregation, clinical observation, or the Wisconsin Resource Center. Additional suicides or suicide attempts may occur based on such a policy. (Id. at 183-85, Ex. 11.) The email also stated: “It would be contrary to the medical judgment of the Wisconsin Department of Corrections medical director and mental health director.” (Id. at 185, Ex. 11.) When asked why taking away medical decision-making was a concern for him, Dr. Kallas stated: “It’s difficult to articulate because it seems so obvious to me, that it’s important that doctors are ably [sic] to use their clinical judgment with respect to conditions that are significant, especially when it pertains to medically necessary treatment.” (Id. at 186.) Dr. Kallas testified that Act 105 takes away the ability to provide medically necessary treatment in some cases. (Id. at 187.) He is unaware of any other mental health
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treatments for medically necessary conditions in individuals or inmates that are barred by
law or regulation with the DOC. (Id.)
In March 2005, Dr. Kallas testified before the legislature with respect to the
bill that became Act 105. (Id. at 187-88, Ex. 17.) He informed the legislature that the
Standards of Care are considered to be the most authoritative guidelines for the treatment
of GID. (Id. at 189.) Dr. Kallas emphasized that hormone therapy was a valid treatment
on it own, because
there were some in the legislature who had the belief, or maybe the sponsors of the bill had the belief that starting an individual on hormonal treatment would commit the department to provide surgery.
In other words, that it would start an inmate down the road where there was more of an argument for surgery later on. And this was my effort to try to dispel that notion.
In other words, the individuals, many individuals find successful accommodations just with hormonal treatment and do not desire to go on or need to go on to surgical reassignment.
(Id. at 189-90.) He also testified before the legislature that the DOC policy as outlined in
Executive Directive 68 was similar to those of many other states and the Federal Bureau
of Prisons. (Id. at 190.) As for the effect of withdrawing hormones from an individual, Dr.
Kallas added:
[I]f the department were to take away hormones from individuals with gender identity disorder, those individuals may become distressed and despondent, may go to the point of clinical depression or an anxiety disorder or suicidality.
It may result in an increase in staff time for mental health care or placement in WRC, which is the Wisconsin Resource Center, which is our facility for acute care.
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It also may lead to disruptive behavior and segregation time, or an increase in psychotropic medications particularly antidepressants, which would offset any cost savings that would be directly attributable to not prescribing hormones. (Id. at 190-91.) DOC prisons have mental health resources consisting of psychiatric and psychological care. (Id. at 197.) A typical institution with approximately 1000 inmates has a couple of days per week of psychiatric coverage. (Id.) It has four or five full-time psychologists who work Monday through Friday and provide on-call coverage over the weekend. (Id.) In terms of mental health services available to inmates, psychiatrists perform evaluations for psychotropic medications and follow inmates who are on psychotropic medication. (Id.) Psychologists provide evaluations for a number of different purposes and provide treatment which may consist of crisis intervention, counseling, psychotherapy, or monitoring inmates for mental health symptoms. (Id.) It is not uncommon for DOC inmates to have thoughts of suicide. (Id. at 198.) Correctional officers and front line staff are trained in suicide prevention annually. (Id.) Psychology staff intervenes from a mental health perspective if someone is having suicidal thinking, and staff would be available for counseling or for placing someone on suicide watch. (Id.) Psychology staff participates in the decision whether to send an inmate to the Wisconsin Resource Center, which is more like a hospital setting. (Id.) These services are available for any inmate who is at risk for harming himself or herself. (Id. at 198-99.) The DOC system is also equipped to deal with inmates who have depression, anxiety, psychosis, mood disorders, and adjustment disorders. (Id. at 199-200.) These services
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would be available to an inmate coming into the system on hormone therapy and had hormone therapy withdrawn under Act 105. (Id. at 200.)
b) Dr. Burnett Dr. Burnett testified about the health services that are available for DOC inmates. (Id. at 212.) Most DOC facilities have a health services unit centered around primary care, which includes mental health care. (Id. at 213.) Most of these units have nursing staff, a physician, and psychiatry and psychology staff. (Id.) The medical portion is similar to an outpatient clinic in the community. (Id.) To obtain care, an inmate puts in a health service request, which is evaluated initially by nursing staff and then addressed by the appropriate person. (Id.) There are also ongoing appointments for follow-up care or regularly scheduled visits for those with chronic medical conditions such as high blood pressure, diabetes, and hepatitis. (Id. at 213-14.) Dr. Burnett described the process by which inmates would be withdrawn from hormone therapy pursuant to Act 105. (Id. at 214.) First, the primary care physician would meet with the inmate and explain the reason for withdrawal of medication and inform the inmate about the potential side effects. (Id.) The physician would then issue an order to taper the medication over a period of about two months. (Id.) In addition, the inmate would have an appointment with psychology staff to talk about potential withdrawal symptoms and to seek follow-up case as needed. (Id.) The inmate would be monitored by health services staff. (Id.) Inmates in the DOC system may present with a variety of medical problems, including cardiovascular problems, gastrointestinal problems, endocrine problems,
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diabetes, osteoporosis, muscle weakness, and poor wound healing/subject to infection. (Id. at 216-20.) Treatment is available for these inmates in DOC institutions, or arrangements will be made to have offsite specialty care when necessary. (Id.) The DOC health care personnel do not provide medical treatment to inmates if it is not medically necessary. (Id. at 228.)
Some inmates are prescribed hormone therapy for conditions other than GID. (Id.) However, Act 105 requires the DOC to withdraw hormone therapy only from inmates who are receiving it to treat their GID. (Id.) Inmates who are receiving hormone therapy for health conditions other than GID would not be withdrawn from that hormone therapy because of Act 105. (Id.)
Dr. Burnett testified that he agreed that medical care should be left to clinicians. (Id. at 229.) He does not know of any other Wisconsin laws or DOC policies banning medical treatments for inmates. (Id. at 230.) Dr. Burnett does not believe it was medically appropriate to taper and terminate hormone therapy for inmates with GID. (Id.)
6. Security Atherton testified about the correctional environment as it relates to prison security and indicated that it is dangerous: It’s highly unique in that we have a collection of human beings that have past histories of having committed felony offenses, many of which are violent and highly aggressive in confined and very small spaces, over long periods of time. This is not like a county jail, this is – prisons are for long periods of time. So the mere fact that we do that and then over the last 20 years we’ve doubled and tripled populations in fixed spaces in corrections because of bed space explosion, it makes for a very volatile environment in which safety and the application of
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safety systems is absolutely critical seven days 24 hours a day. (Trial Tr. vol. 3, 412-13, Oct. 24, 2007.) Security concerns include violence, sale and use of drugs, manufacture of weapons, management of the mentally ill, escape, gangs, and inmate relationships including sexual relationships. (Id. at 413-14.) Aside from health issues, sexual activity among inmates has a history of being extremely dangerous and volatile and that is why there are rules prohibiting such conduct. (Id. at 414.) Sexual relationships include consensual and non-consensual sexual relationships. (Id.) An inmate’s personal appearance can make that inmate more vulnerable to sexual assault. (Id. at 419.) For example, if an inmate’s appearance is sexually suggestive: Well, you know, it’s hard for me to distinguish between behavior and physical attributes, but if an inmate is small in stature and carries themself in sort of an effeminate way, okay, then that makes that inmate an automatic target for inmates who are interested in sexual aggression or sexual relationships. (Id.) An inmate who is feminized might be a victim of assault and could be a center of conflict among the prison population. (Id. at 420.) Atherton does not believe that feminizing male inmates is consistent with the mission of the DOC because “it raises the level of risk in general populations that manage inmates who have been feminized in the male environment.” (Id. at 422.) The implication is that inmates and staff are going to get hurt. (Id. at 423.)
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Inmates can feminize themselves to some extent: There are times where they can modify their uniform and kind of roll their sleeves in a certain way or bring up the – show their midriff by bringing up the top of their uniform top. You know, in a certain way that’s typically feminine, although there are times where there are rules against that. There are ways of grooming themselves, and sometimes in violation of contraband rules by using various substances to color, you know, do eyebrow liner and blush on the face and cheeks. That’s often attempted, although in most systems I’m aware that that is prohibited by rule. (Id.) However, further feminization “will raise the level of risk specifically.” (Id. at 424.) At deposition, Atherton stated that “hormonal therapy may or may not be something – have something to do with physical appearance which are one of many ingredients that may contribute to something that supports sexual attraction from one inmate to another which may or may not arise in the form of an assault.” (Id. at 426-27.) He also indicated that “it is possible that allowing inmates to have hormone therapy will not cause an increase in sexual assault.” (Id. at 428.) Atherton testified that correctional needs, security, and safety must be considered along with medical and mental health concerns. (Id. at 431.) One overriding the other “just simply doesn’t work . . . in the correctional world.” (Id.) The Colorado Department of Corrections has a policy of allowing prisoners with GID to have hormone therapy. (Id. at 432.) Atherton believes that the policy is reasonable and has never argued that the policy should be changed. (Id.) When asked whether he agreed that the policy does not by itself create security problems, Atherton
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testified that the policy had a good history and that security is able to implement it fairly well. (Id. at 432-33.)
ANALYSIS Plaintiffs contend that enforcing Act 105 to deny medically necessary treatment to plaintiffs violates their rights under the Eighth Amendment and the Equal Protection Clause, and the rights of all transsexual inmates under the Eighth Amendment and the Equal Protection Clause. They seek a permanent injunction barring enforcement of Act 105. Defendants submit that the plaintiffs’ Eighth Amendment facial challenge fails because Act 105 is not unconstitutional in all circumstances where it would be applied. (Defs.’ Trial Br. at 3.) Specifically, not all individuals with GID want or qualify for hormones or reassignment surgery. Next, defendants contend that plaintiffs’ Eighth Amendment asapplied challenge to Act 105 fails because the evidence establishes that, “under the holding in Maggert [v. Hanks, 131 F.3d 670 (7th Cir. 1997)], Act 105 does not violate the Eighth Amendment by preventing specific forms of ‘curative treatment’ for gender dysphoria.” (Id. at 5.) With respect to plaintiffs’ Fourteenth Amendment equal protection challenges, defendants assert that hormone therapy results in a more effeminate appearance, and the more effeminate a male inmate looks, the more likely he will be victimized in prison. By eliminating the availability of hormone therapy, the defendants reason that Act 105 is rationally related to the DOC’s interests in protecting these inmates from harm and maintaining the safety and security of other inmates, staff, and the institution.
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1. Eighth Amendment Claim To establish liability under the Eighth Amendment, a prisoner must show: 1) that his medical need was objectively serious; and 2) that the state official acted with deliberate indifference to the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001); see also Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir. 2000). A serious medical need is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). Factors that indicate a serious medical need include “the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Gutierrez, 111 F.3d at 1373 (citations omitted). A medical condition need not be life-threatening to qualify as serious and to support a § 1983 claim, providing the denial of medical care could result in further significant injury or the unnecessary infliction of pain. See Reed v. McBride, 178 F.3d 849, 852-53 (7th Cir. 1999); Gutierrez, 111 F.3d at 1371. A prison official acts with deliberate indifference when “the official knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Prison officials act with deliberate indifference when they act “intentionally or in a criminally
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reckless manner.” Tesch v. County of Green Lake, 157 F.3d 465, 474 (7th Cir. 1998). Neither negligence nor even gross negligence is a sufficient basis for liability. See Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991). A finding of deliberate indifference requires evidence “that the official was aware of the risk and consciously disregarded it nonetheless.” Chapman, 241 F.3d at 845 (citing Farmer, 511 U.S. at 840-42).
Mere difference of opinion among medical personnel regarding a plaintiff’s appropriate treatment does not give rise to deliberate indifference. Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). However, deliberate indifference may be inferred “when the medical professional’s decision is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.” Id.; see also Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996) (citing as examples “the leg is broken, so it must be set; the person is not breathing, so CPR must be administered”).
“[T]o prevail on an Eighth Amendment claim ‘a prisoner is not required to show that he was literally ignored.’” Greeno v. Daley, 414 F.3d 645, 653-54 (7th Cir. 2005) (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)). On the other hand, a defendant’s contention that a medical care claim fails because the prisoner “received some treatment overlooks the possibility that the treatment [the prisoner] did receive was ‘so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate’ his condition.” Greeno, 414 F.3d at 654 (quoting Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (internal quotations omitted)).
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The court turns to a review of cases containing claims brought by prisoners
with GID issues to help frame the legal landscape. The Seventh Circuit Court of Appeals
has issued two opinions in this regard. In Meriwether v. Faulkner, 821 F.2d 408, 413 (7th
Cir. 1987), the court held that an inmate stated a valid claim under the Eighth Amendment
in connection with denial of medical treatment for transsexualism. The prisoner in that
case was a biological male who underwent nine years of estrogen therapy before
incarceration. Id. at 410. Once incarcerated the inmate was denied all medical treatment -
chemical, psychiatric or otherwise - for GID and related medical needs. Id. In concluding
that the complaint stated a claim, the court first found that transsexualism was a serious
medical need. Id. at 411-13.
Next, the court determined that the complaint contained allegations indicating
that the defendants were deliberately indifferent to that need because they allegedly “failed
to provide the plaintiff with any kind of medical treatment, not merely hormone therapy, for
her gender dysphoria.” Id. at 413. The court went on to say,
We therefore conclude that plaintiff has stated a valid claim under the Eighth Amendment which, if proven, would entitle her to some kind of medical treatment. It is important to emphasize, however, that she does not have a right to any particular type of treatment, such as estrogen therapy which appears to be the focus of her complaint. The only two federal courts to have considered the issue have refused to recognize a constitutional right under the Eighth Amendment to estrogen therapy provided that some other treatment option is made available. See Supre v. Ricketts, 792 F.2d 958 (10th Cir.1986); Lamb v. Maschner, 633 F. Supp. 351 (D.Kansas 1986). Both of these courts nevertheless agreed that a transsexual inmate is constitutionally entitled to some type of medical treatment.
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In Supre v. Ricketts, the plaintiff, an inmate in the Colorado Department of Corrections, was examined by two endocrinologists and a psychiatrist. These doctors considered estrogen treatment, but ultimately advised against it, citing the dangers associated with this controversial form of therapy. Instead they prescribed testosterone replacement therapy and mental health treatment consisting of a program of counseling by psychologists and psychiatrists. Given the wide variety of options available for the treatment of the plaintiff's psychological and physical medical conditions, the Tenth Circuit refused to hold that the decision not to provide the plaintiff with estrogen violated the Eighth Amendment as long as some treatment for gender dysphoria was provided. Similarly, in Lamb v. Maschner, the plaintiff, an inmate at the Kansas State Penitentiary, had been evaluated by medical doctors, psychologists, psychiatrists and social workers and was undergoing some type of mental treatment. As a result of this treatment, the court held that the defendant prison officials were not constitutionally required to provide the plaintiff with pre-operative hormone treatment and a sex change operation.
The courts in Supre and Lamb both emphasized that a different result would be required in a case where there had been a total failure to provide any kind of medical attention at all. That is precisely the type of case before us. We agree with the Tenth Circuit that given the wide variety of options available for the treatment of gender dysphoria and the highly controversial nature of some of those options, a federal court should defer to the informed judgment of prison officials as to the appropriate form of medical treatment. But no such informed judgment has been made here. While we cannot and will not prescribe any overall plan of treatment, the plaintiff has stated a claim under the Eighth Amendment entitling her to some kind of medical care.
Id. at 413-14.
The other Seventh Circuit case to address GID is Maggert v. Hanks, 131 F.3d
670 (7th Cir. 1997). In Maggert, the court affirmed dismissal of the action because the
prisoner failed to create a genuine issue of material fact that he had GID. Id. at 671.
However, the court then addressed “a broader issue, having to do with the significance of
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gender dysphoria in prisoners’ civil rights litigation.” Id. First, the court defined gender
dysphoria, “the condition in which a person believes that he is imprisoned in a body of the
wrong sex, that though biologically a male (the more common form of the condition) he is
‘really a female,’” as a “serious psychiatric disorder.” Id. Treatment, or “the cure,” for
transsexualism, was also discussed:
The cure for the male transsexual consists not of psychiatric treatment designed to make the patient content with his biological sexual identity - that doesn’t work - but of estrogen therapy designed to create the secondary sexual characteristics of a woman followed by the surgical removal of the genitals and the construction of a vagina-substitute out of penile tissue.
. . . .
Someone eager to undergo this mutilation is plainly suffering from a profound psychiatric disorder.
Id. However, prisons do not necessarily have a duty to authorize these hormonal and
surgical curative procedures:
Withholding from a prisoner an esoteric medical treatment that only the wealthy can afford does not strike us as a form of cruel and unusual punishment. It is not unusual; and we cannot see what is cruel about refusing a benefit to a person who could not have obtained the benefit if he had refrained from committing crimes. We do not want transsexuals committing crimes because it is the only route to obtaining a cure.
It is not the cost per se that drives this conclusion. For lifethreatening or crippling conditions, Medicaid and other publicaid, insurance, and charity programs authorize treatments that often exceed $100,000. Gender dysphoria is not, at least not yet, generally considered a severe enough condition to warrant expensive treatment at the expense of others than the person suffering from it. That being so, making the treatment a constitutional duty of prisons would give prisoners a degree of medical care that they could not obtain if they obeyed the law.
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Id. at 672. Finally, the court stated: “We conclude that, except in special circumstances that we do not at present foresee, the Eighth Amendment does not entitle a prison inmate to curative treatment for his gender dysphoria.” Id. at 672.
In Phillips v. Michigan Department of Corrections, 731 F. Supp. 792, 801 (W.D. Mich. 1990), the court granted a prisoner’s motion for preliminary injunction ordering correctional officials to provide the inmate with estrogen therapy. The prisoner in that case was a thirty-four-year-old male-to-female transsexual who lived as a woman since age seventeen. Id. at 793-94. Prior to incarceration, the inmate had a number of “surgeries and other procedures to enhance her appearance as a female, including electrolysis, a brow lift, dermabrasions, a chemical face peel, jaw reduction, a chin implant, and breast implant surgery.” Id. at 794. In addition, the inmate took estrogen treatment beginning at the age of seventeen or eighteen to slow hair growth, soften skin, and to further develop the breast implants and female characteristics. Id. Not long after incarceration, the plaintiff was examined by a Michigan Department of Corrections physician who stopped the hormonal treatments and denied requests for brassieres. Id. The prisoner’s request for brassieres was later granted, after the physician’s supervisor intervened. Id. In granting the request for a preliminary injunction, the court found that the prisoner had a serious medical need and that the defendant denied medical care through both intentional conduct and deliberate indifference:
The denial of medical care in this case stems from at least three sources – which in concert violate plaintiff’s right under the constitution to be free from cruel and unusual punishment. A result decried in Meriwether and in dicta by the Supre and Lamb courts is present here: defendant has failed to provide plaintiff with treatment of any kind. And, as was the plaintiff in
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Meriwether, plaintiff has been the subject of ridicule and offensive remarks at the hands of Dr. Opika. Third, this Court characterizes defendant’s conduct in this case as conduct which actually reversed the therapeutic effects of previous treatment. It is one thing to fail to provide an inmate with care that would improve his or her medical state, such as refusing to provide sex reassignment surgery or to operate on a longendured cyst. Taking measures which actually reverse the effects of years of healing medical treatment, as I observe here, is measurably worse, making the cruel and unusual determination much easier. Id. at 800 (footnote omitted). In Kosilek v. Maloney, 221 F. Supp. 2d 156, 158 (D. Mass. 2002), plaintiff Kosilek was a male-to-female transsexual sentenced to life in prison. Since becoming incarcerated in 1990, Kosilek had tried to access proper diagnosis and treatment, but such claims were consistently denied by the institution. Id. at 159. While incarcerated, Kosilek tried to commit suicide on two occasions and also attempted self-castration. Id. at 158. Kosilek also complained of being in severe mental anguish. Id. The prisoner sued the Massachusetts Department of Corrections and Commissioner Michael Maloney, who in 2000 had adopted a blanket policy regarding the treatment of transsexuals in prisons. Id. Under the policy, transsexuals who had received treatment by doctors prior to incarceration could have that treatment continued after incarceration; however, transsexuals taking hormones that had not been prescribed by a doctor were not permitted to continue hormone usage in prison. Id. at 159-60. The policy also denied the possibility of any inmate receiving gender reassignment surgery. Id. at 160. Since Kosilek’s transsexualism was undiagnosed, the policy denied access to doctors for both treatment and diagnosis for GID. Id.
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The court found that Kosilek’s GID was a serious medical need. Id. at 184.
Kosilek’s GID “has prompted him to attempt suicide twice while incarcerated, and to try to
castrate himself as well. There is a significant risk that he will attempt to kill, mutilate, or
otherwise harm himself again if he is not afforded adequate treatment for this disorder.”
Id. Next, the court found that Kosilek had not been offered adequate treatment for the
serious medical need in that “[t]he services now being offered Kosilek are not sufficient to
diminish his intense emotional distress, and the related risks of suicide and self-mutilation,
to the point at which he would no longer be at a substantial risk of serious harm.” Id. at
185. The court reasoned that “no informed medical judgment has been made by the DOC
concerning what treatment is necessary to treat adequately Kosilek’s severe gender
identity disorder.” Id. at 186. The Massachusetts Department of Corrections policy, also
known as the Guidelines, prevented an individualized medical assessment:
However, the Guidelines preclude the possibility that Kosilek will ever be offered hormones or sex reassignment surgery, which are the treatments commensurate with modern medical science that prudent professionals in the United States prescribe as medically necessary for some, but not all, individuals suffering from gender identity disorders. The Guidelines, in effect, prohibit forms of treatment that may be necessary to provide Kosilek any real treatment. Maloney’s decision to implement the Guidelines precluded the medical professionals and social workers he employs and regularly relies upon from even considering whether hormones should be prescribed to treat Kosilek’s severe gender identity disorder.
Id. at 186 (internal citation omitted). Thus, the court concluded that Kosilek satisfied the
objective component of the Eighth Amendment. Id. at 189.
However, the court found that Maloney’s failure to provide Kosilek with
adequate care was not due to deliberate indifference. Id. at 189-92. Maloney’s actions
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may have seemed ignorant, if not malicious; however, the court pointed out that his actions
were those of “a defendant with a legal problem” and were not done to inflict pain on
Kosilek. Id. at 162, 191. Finally, the court concluded that Maloney was not likely to be
indifferent to Kosilek’s serious medical need in the future. Id. at 193-95. It reasoned that
Maloney “is now on notice that Kosilek’s severe gender identity disorder constitutes a
serious medical need” and, therefore, “the DOC has a duty to provide Kosilek adequate
treatment.” Id. at 193. The court continued:
It is permissible for the DOC to maintain a presumptive freezeframe policy. However, decisions as to whether psychotherapy, hormones, and/or sex reassignment surgery are necessary to treat Kosilek adequately must be based on an “individualized medical evaluation” of Kosilek rather than as “a result of a blanket rule.” Those decisions must be made by qualified professionals. Such professionals must exercise sound medical judgment, based upon prudent professional standards, particularly the Standards of Care.
Thus, the court expects that Maloney will follow the DOC's usual policy and practice of allowing medical professionals to assess what is necessary to treat Kosilek. As the DOC does not employ anyone with expertise in treating gender identity disorders, the DOC may decide to follow its regular practice of retaining an outside expert to evaluate Kosilek and to participate in treating, or recommending treatment for him.
The evidence demonstrates that, at a minimum, Kosilek should receive genuine psychotherapy from, or under the direction of, someone qualified by training and experience to address a severe gender identity disorder. It will be Kosilek's obligation to cooperate in establishing a proper relationship with his therapist(s). The Standards of Care indicate that such therapy, or such therapy and pharmacology, may be sufficient to reduce the anguish caused by Kosilek's gender identity disorder so that it no longer constitutes a serious medical need.
If psychotherapy, and possibly psychopharmacology, do not eliminate the significant risk of serious harm that now exists, consideration should be given to whether hormones should be
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prescribed to treat Kosilek. Administering female hormones to a male prisoner in a male prison could raise genuine security concerns. Maloney would be entitled to consider whether those concerns make it necessary to deny Kosilek care that the medical professionals regard as required to provide minimally adequate treatment for his serious medical need.
. . . .
As the Standards of Care explain, “hormone therapy alone may provide sufficient symptomatic relief to obviate the need for cross-living or surgery.” If psychotherapy, hormones, and possibly psychopharmacology are not sufficient to reduce the anguish caused by Kosilek's gender identity disorder to the point that there is no longer a substantial risk of serious harm to him, sex reassignment surgery might be deemed medically necessary. If that occurs, Maloney may consider whether security requirements make it truly necessary to deny Kosilek adequate care for his serious medical need. If and when he makes such a decision, a court may have to determine again whether the Eighth Amendment has been violated.
Id. at 193-95 (internal citations omitted).
In De’Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003), the court of appeals
reversed the district court’s dismissal of the complaint for failure to state a claim. The
plaintiff in that case, a biological male, had GID and was incarcerated in the custody of the
Virginia Department of Corrections since 1983. Id. at 632. Department of Corrections
doctors diagnosed the prisoner with GID and prescribed estrogen from 1993 until 1995,
at which time the treatment was terminated pursuant to a new Department of Corrections
policy. Id. The policy provided that neither medical nor surgical interventions related to
gender or sex change would be provided to inmates with GID. Id. Inmates entering prison
taking hormone medication or already receiving such medication were to be informed of
the policy and then the medication would be tapered immediately and afterward
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discontinued. Id. Following termination of the hormone medication, the prisoner developed an uncontrollable urge to mutilate his genitals. Id. Repeatedly, the inmate requested resumption of the hormone therapy and treatment by a gender specialist, however, those requests were denied and the self-mutilation continued. Id. As an initial matter, the court held that the plaintiff’s “need for protection against continuous selfmutilation constitutes a serious medical need to which prison officials may not be deliberately indifferent.” Id. at 634 (citing Lee v. Downs, 641 F.2d 1117, 1121 (4th Cir. 1981)). Next, it found that the inmate stated an Eighth Amendment claim by alleging inadequate medical treatment to protect the inmate from the compulsion to self-mutilate. Id. at 635.
In Brooks v. Berg, 270 F. Supp. 2d 302 (N.D.N.Y.), vacated in part on other grounds, 289 F. Supp. 2d 286 (N.D.N.Y. 2003), a prisoner, who was a biological male, diagnosed himself with GID. Id. at 304. The prisoner sought treatment by writing letters to a Mental Health Satellite Unit and to a supervisor; however, he never received a response. Id. The prisoner then filed suit alleging that the defendants failed to provide him with necessary medical treatment for his serious medical need in violation of the Eighth Amendment, and asking the court to force the defendants to allow him to see a doctor qualified to propose a course of treatment. Id. at 305, 306. Pursuant to a Department of Corrections policy, inmates who could prove that they received hormone therapy prior to incarceration might be eligible for continued hormone therapy. Id. at 305. The policy further stated that transsexual surgical operations were not honored during incarceration. Id.
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The court found that the defendants were deliberately indifferent to the
prisoner’s serious medical need:
Defendants do not contest Plaintiff's claim that he was never treated for GID notwithstanding numerous requests for treatment. In addition, Defendants have not provided the Court with any evidence showing that the decision to refuse Plaintiff treatment was based on sound medical judgment. Finally, Defendants have failed to submit any evidence that they were not aware that Plaintiff's health could be jeopardized if treatment was refused. Accordingly, the Court finds that Defendants have failed to establish, as a matter of law, that Plaintiff was provided adequate treatment for his serious medical needs.
Id. at 310. The court went on to say:
This blanket denial of medical treatment is contrary to a decided body of case law. Prisons must provide inmates with serious medical needs some treatment based on sound medical judgment. There is no exception to this rule for serious medical needs that are first diagnosed in prison. Prison officials are thus obliged to determine whether Plaintiff has a serious medical need and, if so, to provide him with at least some treatment. Prison officials cannot deny transsexual inmates all medical treatment simply by referring to a prison policy which makes a seemingly arbitrary distinction between inmates who were and were not diagnosed with GID prior to incarceration. In light of the numerous cases which hold that prison officials may not deny transsexual inmates all medical attention, especially when this denial is not based on sound medical judgment, the Court finds that Defendants have failed to establish as a matter of law that their actions were objectively reasonable.
Id. at 312.
In Praylor v. Texas Department of Criminal Justice, 430 F.3d 1208, 1208-09
(5th Cir. 2005), a transsexual state prison inmate sought an injunction instructing the Texas
Department of Criminal Justice (TDCJ) to provide him with hormone therapy and
brassieres. The court concluded that the prisoner was not entitled to such treatment:
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This circuit has not addressed the issue of providing hormone treatment to transsexual inmates. Other circuits that have considered the issue have concluded that declining to provide a transsexual with hormone treatment does not amount to acting with deliberate indifference to a serious medical need. See, e.g., White v. Farrier, 849 F.2d 322 (8th Cir. 1988) (acknowledging that transsexualism is a serious medical condition, but holding that declining to provide hormone therapy did not constitute deliberate indifference to that medical need); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (holding transsexual prisoner has no constitutional right to “any particular type of treatment, such as estrogen therapy”); Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986) (concluding that declining to provide hormone therapy did not constitute deliberate indifference when prison officials offered alternate treatment). Assuming, without deciding, that transsexualism does present a serious medical need, we hold that, on this record, the refusal to provide hormone therapy did not constitute the requisite deliberate indifference.
In Praylor's case, the record reflects that he did not request any form of treatment other than hormone therapy. Testimony from the medical director at the TDCJ revealed that the TDCJ had a policy for treating transsexuals, but that Praylor did not qualify for hormone therapy because of the length of his term and the prison's inability to perform a sex change operation, the lack of medical necessity for the hormone, and the disruption to the all-male prison. Cf. De'Lonta v. Angelone, 330 F.3d 630, 635 (4th Cir. 2003). Moreover, the director testified that Praylor had been evaluated on two occasions and denied eligibility for hormone treatment and that the TDCJ did provide mental health screening as part of its process for evaluating transsexuals. See Supre, 792 F.2d at 963. Accordingly, based upon the instant record and circumstances of Praylor's complaint, the denial of his specific request for hormone therapy does not constitute deliberate indifference. See Meriwether, 821 F.2d at 413; Supre, 792 F.2d at 963.
Id. at 1209.
Plaintiffs contend that the defendants’ enforcement of Act 105 to deny them
medically necessary treatment violates the Eighth Amendment because it results in
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objectively inadequate care for an objectively serious medical need that DOC medical personnel acknowledge is a condition requiring treatment. In response, the defendants maintain that the evidence in this case shows, under the holding in Maggert, 131 F.3d at 670, that Act 105 does not violate the Eighth Amendment by preventing specific forms of “curative treatment” for gender dysphoria. The defendants submit that courts have held that transsexual inmates have no constitutional right to a particular type of treatment, and that Maggert supports Act 105 and Wisconsin’s decision to limit the availability of specific forms of treatment for inmates with GID.
Several courts, including the Seventh Circuit, have considered GID or transsexualism a “serious medical need” for the purposes of the Eighth Amendment. See Meriwether, 821 F.2d at 411-13; Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000); White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988); Wolfe v. Horn, 130 F. Supp. 2d 648, 652 (E.D. Pa. 2001); Phillips, 731 F. Supp. at 792. Based on the evidence presented in the bench trial in this case, this court agrees.
Inasmuch as this court finds that GID is a severe medical condition, it must now consider whether enforcement of Act 105 against these plaintiffs constitutes deliberate indifference to their serious medical needs.
As an initial matter, the defendants’ reliance on Maggert is misplaced because this case is distinguishable. First, DOC doctors evaluated the plaintiffs clinically and determined that hormone therapy is medically necessary to treat their conditions. Moreover, the evidence establishes that DOC health care personnel provide medical treatment to inmates only after they have concluded that the treatment is medically
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necessary. Act 105 undermines the doctor-patient relationship of DOC physicians and inmates by preventing treatments that those health care providers, in their clinical judgment, determined to be warranted. Second, the plaintiffs in this case were receiving hormone therapy prior to their incarceration in DOC institutions; therefore, the concern that transsexuals may commit crimes so the state will pay for their care, expressed in Maggert, 131 F.3d at 672, does not pertain to these plaintiffs. Further, the evidence indicates that the cost to the DOC of withdrawing hormone therapy may be greater than the cost of continuing the treatment prescribed by DOC health care professionals. Third,, the plaintiffs in this case are not arguing entitlement to a specific treatment, rather they are simply contending that Act 105 violates their rights under the Eighth Amendment because it deprives DOC medical personnel of their ability to provide inmates with appropriate treatment.
This court is persuaded that the enforcement of Act 105 prevents DOC doctors from providing the treatment that they have determined is medically necessary to treat the plaintiffs’ serious conditions. Notably, in approximately 2002, the DOC established a gender identity committee consisting of Dr. Kallas, Dr. Burnett, Bureau of Health Services Director James Greer, the warden of an institution, and a psychologist of an institution. (Trial Tr. vol. 2, 170, Oct. 23, 2007.) The gender identity committee “is to consult on policy with respect to gender identity disorder, to review individual cases, to make determinations about hormonal treatment, especially starting new treatment, and then to consult in a clinical fashion to the psychologists and psychiatrists who are within the institutions about gender identity disorder matters.” Id. Consequently, a person who came into the prison system on hormone therapy would continue such therapy unless the
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prison doctor had a reason to believe that the hormones were inappropriate. Id. at 171. When an individual requested to be put on new hormone therapy, that request would go to the gender identity committee, which would process the request in accordance with DOC policies. Id.
Plaintiff Fields was incarcerated in 2005 at which time the DOC confirmed Fields’ GID diagnosis and continued hormone therapy. It was determined that Fields had received feminizing hormone therapy continuously starting in 1996 and had undergone breast augmentation in 2003. Plaintiff Davison was diagnosed with GID in 2005 and began hormone therapy for treatment, which the DOC has continued during Davidson’s incarceration. Prior to receiving hormone therapy, Davison attempted suicide by jumping off a roof. Plaintiff Moaton began taking feminizing hormones in the late 1990s, and commenced medically prescribed hormone therapy in 2000. The DOC continued that treatment after Moaton’s incarceration. Moaton experienced suicidal ideation in the past, especially after being removed from hormone therapy.
In 2006, because of the passage of Act 105, the DOC began to taper the hormone therapy of the plaintiffs, all of whom, to varying degrees, had feminine physical characteristics as a result of hormone usage. Following the reduction of hormone therapy, plaintiff Fields experienced nausea, muscle weakness, loss of appetite, increased hair growth, skin bumps, and depression; plaintiff Davison had increased and darker hair growth, voice deepening, breast reduction and leakage, mood swings, mental and emotional instability, hot flashes, and body aches; and plaintiff Moaton grew chest and facial hair, complained of increased tenderness in the chest and groin, and complained of skin breakouts, hot flashes, and depression. All of the symptoms were abated when the
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plaintiffs’ hormone therapy was reinstated after the court issued the preliminary injunction in this action.
The legislative history of Act 105 demonstrates that the bill was passed despite objections from DOC medical personnel and that the only correctional or medical expertise offered during the legislative hearings was that of Dr. Kallas and Dr. Burnett. Dr. Kallas informed the legislature that the Standards of Care are considered to be the most authoritative guidelines for the treatment of GID, emphasized that hormone therapy was a valid treatment on its own, and stated that if the DOC were to take away hormones from individuals with GID, those persons may become distressed and despondent to the point of clinical depression, anxiety disorder, or suicidality. He also explained that this may result in an increase in staff time for mental health care or placement at the Wisconsin Resource Center, and that it may also lead to disruptive behavior as well as segregation time, or an increase in psychotropic medications, particularly antidepressants, which would offset any cost savings attributable to not prescribing hormones.
At trial, outside physician Dr. R. Ettner testified that the intensity of the distress that people with GID experience varies depending on the severity of the disorder. Some people cannot function because the disorder is so intense and severe while others experience less discomfort. For those with severe GID, symptoms may include depression, anxiety, irritability, suicidal ideation, suicide attempts, and self-mutilation or autocastration. When asked why the taking away of medical decision-making was a concern, Dr. Kallas added: “It’s difficult to articulate because it seems so obvious to me, that it’s important that doctors are abl[e] to use their clinical judgment with respect to conditions that are significant, especially when it pertains to medically necessary
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treatment.” (Trial Tr. vol. 2, 186, Oct. 23, 2007.) DOC Medical Director Dr. Burnett further
testified that he did not believe it was medically appropriate to taper and terminate
hormone therapy for inmates with GID.
Additionally, plaintiffs contend that on its face Act 105 violates the Eighth
Amendment and the Equal Protection Clause of the Fourteenth Amendment because it
applies in every instance in which a DOC medical provider has prescribed hormone
therapy or sexual reassignment surgery. Plaintiffs argue
that inmates do not dictate what medical care they receive; only DOC medical personnel can determine what treatments are medically necessary and appropriate. Consequently, even if an inmate with GID requested hormones or surgery, DOC’s practice - even before the passage of Act 105 - would have been to deny such medical care unless it was medically necessary. The passage of Act 105 did not change this practice. What it did is deny DOC medical personnel the discretion they had before to prescribe hormones or surgery, when, in their own judgment, they were medically necessary.
This blanket denial of medical judgment mandated by Act 105 in all the statute’s applications violates the Eighth Amendment, for the same reasons that Act 105's application to Plaintiffs violates that Amendment. Plaintiffs have been taking hormones for many years, so cutting off their hormone therapy is the denial of necessary medical treatment that places them at great risk of harm, and induces certain withdrawal symptoms. The denial of necessary medical care to persons who have had it in the past does not distinguish Plaintiffs under the Eighth Amendment and Equal Protection Clause from transsexuals newly diagnosed with GID and prescribed the treatment for the first time by DOC health care professionals.
(Pl.’s Corrected Tr. Br. at 29-30.) This court agrees.
The defendants acknowledge that Act 105 removes even the consideration
of hormones or surgery for inmates with gender issues and that the DOC halted
evaluations of inmates with GID for possible administration of hormone therapy because
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of the Act. (Stip. FOF ¶ 52, Defs.’ Tr. Br. at 2.) However, in determining whether a facial
challenge to Act 105 may succeed here, the defendants submit that the court must take
into account all inmates in DOC custody for whom hormone therapy or sexual
reassignment surgery would be considered as treatment for gender issues. If that is done,
they maintain that there are circumstances where Act 105 may be applied without violating
the Constitution, and that, as a result, the plaintiffs’ facial challenge to the law must fail.
Unfortunately, the defendants do not support this point.
“A facial challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.” United States v. Salerno, 481
U.S. 739, 746 (1987). In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992), the Court described the appropriate class for the purpose of determining
the validity of an abortion statute:
Respondents attempt to avoid the conclusion that § 3209 is invalid by pointing out that it imposes almost no burden at all for the vast majority of women seeking abortions. They begin by noting that only about 20 percent of the women who obtain abortions are married. They then note that of these women about 95 percent notify their husbands of their own volition. Thus, respondents argue, the effects of § 3209 are felt by only one percent of the women who obtain abortions. Respondents argue that since some of these women will be able to notify their husbands without adverse consequences or will qualify for one of the exceptions, the statute affects fewer than one percent of women seeking abortions. For this reason, it is asserted, that statute cannot be invalid on its face. We disagree with respondents’ basic method of analysis.
The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not
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say that a law which requires a newspaper to print a candidate’s reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974). The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.
Respondents’ argument itself gives implicit recognition to this principle, at one of its critical points. Respondents speak of the one percent of women seeking abortions who are married and would choose not to notify their husbands of their plans. By selecting as the controlling class women who wish to obtain abortions, rather than all women or all pregnant women, respondents in effect concede that § 3209 must be judged by reference to those for whom it is an actual rather than an irrelevant restriction. Of course, as we have said, § 3209's real target is narrower even than the class of women seeking abortions identified by the State: it is married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that in a large fraction of the cases in which § 3209 is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion. It is an undue burden, and therefore invalid.
Id. at 894-95 (internal citation omitted); see also Gonzales v. Carhart, 127 S. Ct. 1610,
1639 (2007) (holding that the Partial Birth Abortion Act of 2003's ban “applies to all
instances in which the doctor proposes to use the prohibited procedure, not merely those
in which the woman suffers from medical complications”).
In certain cases, as with the plaintiffs in this case, the effect of Act 105 is to
withdraw an ongoing course of treatment, the result of which has negative medical
consequences. In other cases, the effect of Act 105 is to prevent DOC medical personnel
from evaluating inmates for treatment because such evaluation would be futile in light of
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Act 105's ban on the treatment they may determine to be medically necessary for the health of the inmate.
It is undisputed that Act 105 has prevented the DOC from undertaking thorough evaluations of inmates Erik, a/k/a Erika, Huelsbeck and Kenneth, a/k/a Karen, Krebs to determine whether hormone therapy is medically necessary for them.
Act 105 bars doctors and other DOC medical personnel from providing treatment, namely, hormone therapy and sex reassignment surgery, that they may determine to be medically necessary. Thus, the possibility that other DOC inmates may have conditions that may not require hormone therapy or the possibility that a particular inmate such as Huelsbeck or Krebs may not medically require hormone therapy does not repel a facial challenge to Act 105. If DOC doctors evaluate any DOC inmate and find that hormone therapy is medically necessary, then that inmate is within the group or class of inmates to whom Act 105 applies. The case law indicates that the controlling class for a facial challenge to a statute is “the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Casey, 505 U.S. at 894.
It is well established that prison officials may not substitute their judgments for a medical professional’s prescription. “Of course they cannot.” Zentmyer v. Kendall County, Ill., 220 F.3d 805, 812 (7th Cir. 2000) (citing Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999); Johnson v. Hay, 931 F.2d 456, 461 (8th Cir. 1991)). If a prison official consciously chooses to disregard a nurse’s or doctor’s directions in the face of medical risks, then he may well have exhibited the necessary deliberate indifference. Zentmyer, 220 F.3d at 812.
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In this case, Act 105 bars the use of hormones “to stimulate the development
or alteration of a person’s sexual characteristics in order to alter the person’s physical
appearance so that the person appears more like the opposite gender,” as well as sexual
reassignment surgery “to alter a person’s physical appearance so that the person appears
more like the opposite gender.” Wis. Stat. § 302.386(5m)(a). The statute applies
irrespective of an inmate’s serious medical need or the DOC’s clinical judgment if at the
outset of treatment, it is possible that the inmate will develop the sexual characteristics of
the opposite gender. The reach of this statute is sweeping inasmuch as it is applicable to
any inmate who is now in the custody of the DOC or may at any time be in the custody of
the DOC, as well as any medical professional who may consider hormone therapy or
gender reassignment as necessary treatment for an inmate.
2. Equal Protection Claim
Recently, the Seventh Circuit Court of Appeals reiterated the standard to be
applied in equal protection cases where no fundamental right or suspect classification is
at issue:
The purpose of the Equal Protection Clause of the Fourteenth Amendment is to “secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Where (as here) no fundamental right or suspect classification is at issue, equal protection claims are evaluated under the rationalbasis standard of review. To prevail, a plaintiff must prove the following: (1) the defendant intentionally treated him differently from others similarly situated, (2) the defendant intentionally treated him differently because of his membership in the class to which he belonged, and (3) the difference in treatment was not rationally related to a legitimate state interest.
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Smith v. City of Chicago, 457 F.3d 643, 650-51 (7th Cir. 2006) (internal citations omitted). Thus, the court applies rational basis review to plaintiffs’ equal protection claim.
The defendants contend that by eliminating the availability of hormone therapy and sexual reassignment surgery, Act 105 is rationally related to the DOC’s interests in protecting effeminate-appearing inmates from harm and maintaining the safety and security of other inmates, staff, and the institution.
Act 105 takes away the DOC’s discretion to provide “hormonal therapy” to the plaintiffs. “‘Hormonal therapy’ means the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m)(a). It is undisputed that the DOC sometimes prescribes hormone therapy for reasons that do not have to do with GID, such as estrogen replacement therapy in postmenopausal years, or for congenital or hormonal disorders.
The evidence establishes that GID is the only medically necessary condition for which mental health treatments are barred by law or regulation within the DOC. Act 105 requires the DOC to withdraw hormone therapy only from inmates who are using it to treat their GID. Moreover, there is no evidence of any other Wisconsin laws banning medical treatment for inmates or any DOC policies that ban necessary medical treatment for inmates.
Hence, the plaintiffs have satisfied the first two prongs of an equal protection claim. And they have done so as to both their as-applied challenge and their facial challenge. Defendants treat the plaintiffs themselves differently than others similarly situated because of their membership in the class of persons who need hormonal therapy
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to treat GID, and they treat the entire class differently. As stated above, the controlling class for a facial challenge is “the group for whom the law is a restriction, not the group for whom the law is irrelevant,” Casey, 505 U.S. at 894.
The court now turns to the third prong, whether the difference in treatment is rationally related to the legitimate state interest of safety and security. The rationalrelationship test is a lenient standard. Smith, 457 F.3d at 652. Under rational basis review, there is no constitutional violation if “any reasonably conceivable state of facts” would provide a rational basis for government action. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). The challenging party bears the burden of eliminating any reasonablyconceivable set of facts that could provide a rational basis for the difference in treatment. Smith, 457 F.3d at 652. In other words, the plaintiffs must prove the government’s enactment of Act 105 irrational. Id. And this burden is the same whether the plaintiffs challenge a statute on its face or as applied. Id. The rational-basis test is not subject to courtroom factfinding and may include rational speculation. Id. at 651 (citing Beach Commc’ns, 508 U.S. at 315). The government may defend on any ground, not just the one articulated at the time of decision. Id. at 652.
Prison safety and security are legitimate penological interests. See Overton v. Bazzetta, 539 U.S. 126, 133 (2003) (describing “internal security” as “perhaps the most legitimate of penological goals”). The correctional environment can be dangerous, and one major area of security concern is sexual activity, especially sexual activity among inmates, which has a history of being extremely dangerous and volatile.
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However, no reasonably conceivable state of facts provides a rational tie between Act 105 and prison safety and security. Atherton testified that he does not think feminizing inmates is consistent with the mission of the DOC because “it raises the level of risk in general populations that manage inmates who have been feminized in the male environment.” (Trial Tr. vol. 3, 422, Oct. 24, 2007.) However, he also testified that the policy of the Colorado Department of Corrections, where he has worked for many years, allows prisoners with GID to have hormone therapy, and he believes that the policy is reasonable. According to Atherton, the policy has a good history and security staff are able to implement it well.
Furthermore, at his deposition, Atherton was asked whether preventing inmates with GID from getting hormones was a way to prevent sexual assaults from happening in the future. He responded:
That question is an incredible stretch between hormonal therapy and preventing sexual assaults. As I explained in an answer previously, hormonal therapy may or may not be something – have something to do with physical appearance which are one of many ingredients that may contribute to something that supports sexual attraction from one inmate to another which may or may not arise in the form of an assault. (Id. at 426-27.) Although plaintiff Davison was sexually assaulted, there is nothing in the record to indicate Davison would not been assaulted in the absence of hormone therapy. Also, it is undisputed that inmates can look effeminate without hormone therapy. Furthermore, nothing in the record to support a finding that withdrawing hormone therapy from the plaintiffs will decrease the risk that they will become victims of sexual assault. Thus, a connection between the hormone therapy barred by Act 105 and sexual assaults
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is not reasonable—instead, defendants’ own expert said connecting them was “an incredible stretch.”
Defendants’ argument that the “evidence supports the obvious” is not sufficient to show that Act 105 is rationally related to prison security. For one thing, DOC policy, Executive Directive 68, allowed for hormone therapy for GID inmates prior to the enactment of Act 105. Also, defendants’ security expert was not particularly helpful for the defendants, as described above.
Plaintiffs have satisfied the three elements of an equal protection violation both to the extent that Act 105 applies to them and regarding their facial challenge.
3. Relief Plaintiffs seek a permanent injunction barring enforcement of Act 105 against them and other inmates. A party seeking a permanent injunction “must demonstrate (1) it has succeeded on the merits; (2) no adequate remedy at law exists; (3) the moving party will suffer irreparable harm without injunctive relief; (4) the irreparable harm suffered without injunctive relief outweighs the irreparable harm the nonprevailing party will suffer if the injunction is granted; and (5) the injunction will not harm the public interest.” Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1081 (7th Cir. 1998) (citations omitted). The Prison Litigation Reform Act provides that a court “shall not approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1). Given the court’s finding that Act 105 is unconstitutional, as applied to these
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plaintiffs and on its face, the plaintiffs are entitled to relief. Specific language of the injunction will be discussed at the upcoming status conference.
4. Further Conclusions of Law Further conclusions of law were addressed in this court’s order of March 31, 2010, and are incorporated herein. Dated at Milwaukee, Wisconsin, this 13th day of May, 2010.
BY THE COURT /s/ C. N. Clevert, Jr. C. N. CLEVERT, JR. CHIEF U. S. DISTRICT JUDGE
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 Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
Nos.10-2339 and 10-2466
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
ANDREA FIELDS, et al., Plaintiffs-Appellees, Cross-Appellants
v. JUDY P. SMITH, et al.,
Defendants-Appellants, Cross-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN, NO. 06-C-112,
THE HONORABLE JUDGE C. N. CLEVERT, JR., PRESIDING
BRIEF AND APPENDIX OF DEFENDANTS-APPELLANTS, CROSS-APPELLEES
ABIGAIL C. S. POTTS* Assistant Attorney General State Bar No. 1060762 Attorney for Defendants-Appellants, Cross-Appellees Wisconsin Department of Justice Post Office Box 7857 Madison, WI 53707-7857 Telephone: (608) 267-7292 Fax: (608) 267-8906 E-Mail: pottsac@doj.state.wi.us *Counsel of Record
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TABLE OF CONTENTS
Page
JURISDICTIONAL STATEMENT ........................................................... 1 ISSUES PRESENTED .............................................................................. 3 STATEMENT OF THE CASE .................................................................. 3 STATEMENT OF THE FACTS ................................................................ 5 SUMMARY OF THE ARGUMENT .......................................................... 9 STANDARD OF REVIEW....................................................................... 10 ARGUMENT ............................................................................................ 10
I. WIS. STAT. § 302.386(5M) DOES NOT VIOLATE THE EIGHTH AMENDMENT OF THE CONSTITUTION AS APPLIED TO THE PLAINTIFFS........................................................................ 10 A. The Eighth Amendment Standard ........................... 11 1. The serious medical need standard ................ 12 2. The deliberate indifference standard ............. 13 B. Wis. Stat. § 302.386(5m) Does Not Violate the Eighth Amendment As Applied to the Plaintiffs Because It Does Not Effectuate Deliberate Indifference. ............................................................... 15 1. A legislative act denying some medical discretion does not effectuate per se deliberate indifference under the Eighth Amendment. ..................................................... 15 2. The state has no obligation to provide curative treatment to its prisoners in order to comply with the Eighth Amendment. ..................................................... 21
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Page
3. Enforcement of the statute on these plaintiffs is constitutional because it has not denied plaintiffs all or even most of the treatment available to those clinically diagnosed with severe GID.............................. 28
II. WIS. STAT. § 302.386(5M) DOES NOT VIOLATE THE EIGHTH AMENDMENT OF THE CONSTITUTION ON ITS FACE BECAUSE IT IS NOT UNCONSTITUTIONAL IN EVERY APPLICATION OR EVEN IN A LARGE FRACTION OF CASES. ........................................................................... 33
A. The Applicable Test ................................................... 33
B. The Relevant Class .................................................... 35
C. The Act is Valid on Its Face Because It Does Not Violate the Eighth Amendment in all cases or in a large fraction of cases. ................................... 40
1. The Act does not implicate an Eighth Amendment right, let alone violate it, as to the majority of inmates it affects because only a handful of inmates have been diagnosed with severe GID and prescribed hormone therapy. .......................... 40
2. The Act is facially valid even under the “large fraction” test and where the relevant class of inmates is all inmates with severe GID for whom hormone therapy or surgery have been prescribes as medically necessary. ................................... 42
D. For the Same Reasons That the Act is Facially Valid, The District Court Improperly Applied the PLRA and The Injunction Should be Lifted. ..... 43
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Page
III. THE ACT DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE EITHER AS APPLIED OR ON ITS FACE. ..................................................................... 46
A. Transgender individuals are not a suspect class for the purposes of the Equal Protection Clause and the Act, therefore, is subject only to rational basis review.................................................. 47
B. The statute is justified by legitimate security and liability concerns and employs means rationally related to furthering those ends. ............. 50
1. The statute protects the State’s interest in the peaceful administration of the State’s corrections facilities by ameliorating or preventing gendermotivated violence or abuse. ........................... 50
2. The district court improperly applied the rational basis standard to the evidence.......... 53
3. The Act protects the state from civil liability for failure to live up to its duty to provide a safe environment for transsexual prisoners. ..................................... 56
CONCLUSION......................................................................................... 58
TABLE OF AUTHORITIES
3M v. Pribyl, 259 F.3d 587 (7th Cir. 2001).......................................................... 10
A Woman's Choice-East Side Women's Clinic v. Newman, 305 F.3d 684 (7th Cir. 2002).......................................................... 34
Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003).......................................................... 34
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Page
Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990) ................................................ 47
Brooks v. Berg, 270 F.Supp.2d 302 (N.D.N.Y. 2003).............................................. 28
Campbell v. Beto, 460 F.2d 765 (5th Cir.1972)........................................................... 18
City of Chicago v. Shalala, 189 F.3d 598 (7th Cir. 1999).................................................... 49, 50
Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ........................................................................ 49
De'Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003).......................................................... 27
DeMallory v. Cullen, 855 F.2d 442 (7th Cir. 1988).......................................................... 14
Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) ........................................................................ 49
Doe v. Heck, 327 F.3d 492 (7th Cir. 2003).......................................................... 34
Edwards v. Duncan, 355 F.2d 993 (4th Cir.1966)........................................................... 18
Edwards v. Snyder, 478 F.3d 827 (7th Cir. 2007).................................................... 31, 32
Estate of Cole by Pardue v. Fromm, 94 F.3d 254 (7th Cir. 1996)...................................................... 31, 32
Estelle v. Gamble, 429 U.S. 97 (1976) .................................................................... 11, 18
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Page
Farmer v. Brennan, 511 U.S. 825 (1994) ............................................................ 13, 56, 57
FCC v. Beach Communications, Inc., 508 U.S. 307 (1993) ........................................................................ 48
Forbes v. Edgar, 112 F.3d 262 (7th Cir. 1997).................................................... 22, 32
Gonzales v. Carhart, 550 U.S. 124 (U.S. 2007).........................................................passim
Gutierrez v. Peters, 111 F.3d 1364 (7th Cir. 1997)............................................ 12, 13, 14
Heller v. Doe, 509 U.S. 312 (1993) ................................................ 46, 47, 48, 49, 54
Henderson v. Sheahan, 196 F.3d 839 (7th Cir. 1999).......................................................... 12
Hewitt v. Helms, 459 U.S. 460 (1983) ........................................................................ 50
Hill v. Shobe, 93 F.3d 418 (7th Cir. 1996)............................................................ 14
Hodel v. Indiana, 452 U.S. 314 (1981) ........................................................................ 47
Home Builders Ass'n v. United States Army Corps of Eng'rs, 335 F.3d 607 (7th Cir. 2003).......................................................... 34
Hudson v. McMillian, 503 U.S. 1 (1992) ...................................................................... 11, 12
Joelner v. Village of Wash. Park, 378 F.3d 613 (7th Cir. 2004).......................................................... 34
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Page
Johnson v. Hay, 931 F.2d 456 (8th Cir.1991)........................................................... 18
Johnson v. Phelan, 69 F.3d 144(7th Cir. 1995), cert. denied, 519 U.S. 1006 (1996) ................................................ 51
Jones v. Flannigan, 949 F.2d 398 (7th Cir. 1991).......................................................... 23
Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988) ........................................................................ 47
Kansas v. Hendricks, 521 U.S. 346 (1997) ........................................................................ 16
Keeney v. Heath, 57 F.3d 579 (7th Cir. 1995)............................................................ 51
Knapp v. Northwestern University, 101 F.3d 473 (7th Cir. 1996).......................................................... 10
Kosilek v. Maloney, 221 F.Supp.2d 156 (D.Mass. 2002) ............................................... 27
Lawrence v. Texas, 539 U.S. 558 (2003) ........................................................................ 49
Loving v. Va., 388 U.S. 1 (U.S. 1967).................................................................... 47
Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997).............................................. 17, 23, 24
Martinez v. Mancusi, 443 F.2d 921 (2d Cir.1970) ............................................................ 18
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Page
Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987).............................................. 22, 23, 28
Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977)........................................................ 47
Nabonzy v. Podlesny, 92 F.3d 446 (7th Cir. 1996)............................................................ 47
Nordlinger v. Hahn, 509 U.S. 1, 112 S.Ct. 2326 (1992).................................................. 49
Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502 (1990) ........................................................................ 35
Outlaw v. Newkirk, 259 F.3d 833 (7th Cir. 2001).......................................................... 11
Personnel Administrator of Mass v. Feeney, 442 U.S. 256 (1979) ........................................................................ 46
Phillips v. Michigan Dept. of Corrections, 731 F.Supp.792 (W.D. Mich. 1990) ......................................... 26, 27
Planned Parenthood v. Casey, 505 U.S. 833 (1992) .................................................................passim
Praylor v. Texas Dept. of Criminal Justice, 430 F.3d 1208 (5th Cir. 2005)........................................................ 25
Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) ........................................................................ 34
Qz'etax v. Ortiz, 170 Fed.Appx. 551, 2006 WL 515612............................................ 26
Ralston v. McGovern, 167 F.3d 1160 (7th Cir.1999)......................................................... 18
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Page
Redding v. Pate, 220 F.Supp. 124 (N.D. Ill. 1963).................................................... 11
Reed v. McBride, 178 F.3d 849 (7th Cir. 1999).......................................................... 13
Robinson v. California, 370 U.S. 660 (1962) ........................................................................ 11
Romer v. Evans, 517 U.S. 620 (1996) ...................................................... 46, 48, 49, 50
Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608 (1935) ........................................................................ 56
Smith v. City of Chicago, 457 F.3d 643 (7th Cir. 2006).............................................. 48, 53, 55
Snipes v. DeTella, 95 F.3d 586 (7th Cir. 1996)............................................................ 14
Summers v. Touchpoint Health Plan, Inc., 2006 WI App 217, 296 Wis. 2d 566, 723 N.W.2d 784................... 17
Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986)........................................................ 26
Sutker v. Illinois State Dental Soc., 808 F.2d 632 (7th Cir. 1986).......................................................... 56
Thornburgh v. Abbott, 490 U.S. 401 (1989) ........................................................................ 50
Tolbert v. Eyman, 434 F.2d 625 (9th Cir.1970)........................................................... 18
U.S. v. Turner, 93 F.3d 276 (7th Cir. 1996)............................................................ 53
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Page
United States v. Raines, 362 U.S. 17 (1960) .................................................................... 33, 35
United States v. Salerno, 481 U.S. 739 (1987) ............................................................ 33, 34, 35
Walker v. Benjamin, 293 F.3d 1030 (7th Cir. 2002)........................................................ 11
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) .................................................................. 33, 35
Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................................. 16, 35
White v. Farrier, 849 F.2d 322 (8th Cir. 1988).......................................................... 26
Whitley v. Albers, 475 U.S. 312 (1986) ........................................................................ 18
Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955) ........................................................................ 56
Wynn v. Southward, 251 F.3d 588 (7th Cir 2001)..................................................... 11, 13
Zentmyer v. Kendall County, Ill., 220 F.3d 805 (7th Cir. 2000)........................................ 12, 18, 19, 20
STATUTES AND OTHER AUTHORITIES
18 U.S.C. § 3626(a) ...................................................................... 44, 45, 46
18 U.S.C. § 3626(a)(1) .............................................................................. 45
28 U.S.C. § 1291......................................................................................... 2
28 U.S.C. § 1331......................................................................................... 2
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42 U.S.C. §1983.................................................................................... 1, 58 2005 Wisconsin Act 105 ..................................................................... 1, 7, 8 Wis. Stat. § 49.46(2)................................................................................. 17 Wis. Stat. § 49.47(6)(a) ............................................................................ 17 Wis. Stat. § 302.386(5m)...................................................................passim Wis. Stat. § 302.386(5m)(a) ....................................................................... 7 Wis. Stat. § 302.386(5m)(a)(1)................................................................... 4 Wis. Stat. § 302.386(5m)(a)(2)................................................................... 4 Wis. Stat. § 302.386(5m)(b) ..................................................................... 41 Wis. Admin. Code § DHS 107.10 (2010) ................................................. 17
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Nos.10-2339 and 10-2466
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
ANDREA FIELDS, et al., Plaintiffs-Appellees, Cross-Appellants
v. JUDY P. SMITH, et al.,
Defendants-Appellants, Cross-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN, NO. 06-C-112,
THE HONORABLE JUDGE C. N. CLEVERT, JR., PRESIDING
BRIEF AND APPENDIX OF DEFENDANTS-APPELLANTS, CROSS-APPELLEES
JURISDICTIONAL STATEMENT The Plaintiffs-Appellees-Cross-Appellants (“plaintiffs”) filed a complaint for declaratory and injunctive relief in the United States District Court for the Eastern District of Wisconsin on January 24, 2006, pursuant to 42 U.S.C. §1983, alleging that 2005 Wisconsin Act 105 (hereinafter “the Act” or “Wis. Stat. § 302.386(5m)”) violates the

Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
Eighth and Fourteenth Amendments of the United States Constitution. [R.1] The district court had jurisdiction under 28 U.S.C. § 1331. On March 31, 2010, the United States District Court for the Eastern District of Wisconsin entered an Order declaring Wis. Stat. § 302.386(5m) unconstitutional and enjoining enforcement of the statute. [R.206; App. 101] On May 13, 2010, the district court entered a memorandum decision setting forth the findings of fact and conclusions of law. [R.212; App. 104] The Defendants-Appellants-Cross-Appellees (“defendants”) filed a timely notice of appeal on June 2, 2010. [R.214] On June 9, 2010, the plaintiffs filed a motion for additional findings pursuant to Fed. R. Civ. P. 52(b). [R.222] On June 16, 2010, the plaintiffs timely filed a notice of cross appeal. [R.228] On June 22, 2010, the district court entered a final judgment. [R.235; App. 172] On June 29, 2010, the plaintiffs made an unopposed motion to amend/correct judgment by making additional findings. [R.237] And on July 9, 2010, the district court granted the plaintiffs’ unopposed motion for additional findings and issued a final order disposing of all remaining post judgment motions. [R.239; App. 173] This court has appellate jurisdiction under 28 U.S.C. § 1291, as the appeal is from the final order of a district court.
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ISSUES PRESENTED 1. Whether the district court erred in holding that Wis. Stat. §
302.386(5m) violates the Eighth Amendment as-applied to the plaintiffs where the statute only limits certain treatment options. 2. Whether the district court erred in holding that Wis. Stat. § 302.386(5m) violates the Eighth Amendment on its face where the statute is not unconstitutional in all, or most, applications. 3. Whether the district court erred in finding that Wis. Stat. § 302.386(5m) violates the Fourteenth Amendment, both asapplied and on its face, where the statute is rationally related to a legitimate governmental security interest.
STATEMENT OF THE CASE The plaintiffs, all current inmates in the Wisconsin prison system, filed this action on January 24, 2006, against the defendants, all Wisconsin Department of Corrections (DOC) officials. [R.95 at ¶¶515] The plaintiffs have all been diagnosed as suffering from some form of gender identity disorder. In their Third Amended Complaint (Complaint), the plaintiffs challenge the Inmate Sex Change Prevention Act (the Act), Wis. Stat. § 302.386(5m), which prevents state or federal resources to be used to provide hormone therapy or sexual reassignment surgery to Wisconsin prisoners. [R.95 at ¶2] The statute defines “hormonal therapy” as “the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so
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that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m)(a)(1). It also defines “sexual reassignment surgery” as “surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m)(a)(2).
The Complaint set forth essentially three claims: (1) the Act, as applied to the plaintiffs, violates the Eighth Amendment; (2) the Act, on its face, violates the Eighth Amendment; and (3) the Act violates the plaintiffs’ Fourteenth Amendment equal protection rights both on its face and as-applied. [R.95 at ¶¶62-72] As relief, the plaintiffs requested injunctive relief against DOC’s enforcement of the Act against them, along with declaratory relief holding the Act, both on its face and as applied to plaintiffs, violates the Eighth and Fourteenth Amendments to the constitution. [R.95 at page 13]
The defendants moved for summary judgment on July 31, 2007, which the district court granted in part, dismissing plaintiffs Sundstrom and Blackwell, along with Defendants Humphreys and Nygren. [R.175; App. 176] The case proceeded to trial on October 22, 2007, through October 25, 2007. [R.200-203] On March 31, 2010, the court issued an Order declaring the Act unconstitutional under both
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the Eighth Amendment and Equal Protection Clause and enjoining its enforcement. [R.206; App. 101] On May 13, 2010, the court issued a Memorandum Decision outlining its findings and conclusions. [R.212; App. 104] On June 22, 2010, the district court entered a final judgment. [R.235; App. 172] On June 29, 2010, the plaintiffs made an unopposed motion to amend/correct judgment and make additional findings. [R.237] And on July 9, 2010, the district court granted the plaintiffs’ unopposed motion for additional findings and issued a final order disposing of all remaining post judgment motions. [R.239; App. 173] This appeal followed.
STATEMENT OF THE FACTS1 The plaintiffs are all male-to-female transsexuals in DOC custody who have been diagnosed with Gender Identity Disorder (GID). [R.212:2-3; App. 105-106] GID is classified as a psychiatric disorder in the DSM-IV-TR, the current edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). Id. In prior editions, the DSM classified “transsexualism” as a psychiatric disorder. Id. The following diagnostic criteria are listed in the DSM for GID: 1) a strong and
1The district court’s memorandum decision, filed May 13, 2010, sets for a detailed recitation of the stipulated facts and trial testimony. That decision accompanies this brief as pages 147 through 214 of the appendix. [R.212; App.147]
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persistent cross-gender identification; 2) a persistent discomfort with one’s sex or a sense of inappropriateness in the gender role of that sex; 3) the disturbance is not concurrent with a physical intersex condition; and 4) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. [R.212:2-3; App. 105-106] Having a diagnosis in the DSM does not dictate a specific treatment; treatment is individualized. [R.202:256] Hormone therapy and gender reassignment surgery (GRS) are two of the treatment options for GID recommended by the World Professional Association for Transgender Health (WPATH) in their “triadic treatment” approach. [R.200:29-30] Hormone therapy, and especially gender reassignment surgery, are extreme measures reserved for serious cases. [R.202:289 (testimony that Dr. Brown has only seen one inmate that he thought was eligible for sex reassignment surgery); R.200:6 (plaintiffs’ counsel arguing that hormone therapy is only required treatment in “severe cases of Gender Identity Disorder” and sex reassignment surgery is required “for an even smaller group.”); R.201:175 (Kallas testimony that hormones are one of the central ways to treat those with “severe gender dysphoria.”); R.200:118-119 (Dr. F. Ettner testifying that there are lots of alternatives in treatment
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therapies); R.201:186 (Dr. Kallas testifying that not all gender dysphoria requires hormones or surgery); R.200:60-61 (Dr. R. Ettner testifying that not all individuals with GID need hormones, a diagnosis of GID does not require treatment in every case, and under the standards of care, therapists are directed to let GID patients simply choose among treatment options); R.200:64 (Dr. R. Ettner testifying that it is possible that inmates may request hormone therapy when it is not an appropriate treatment for them)]
Wis. Stat. § 302.386(5m) (2009) was enacted in 2006 – as 2005 Wisconsin Act 105 (“Act 105” or “the Act”) – by the Wisconsin State Legislature to address the use of hormone therapy and gender reassignment in medical care in correctional facilities. The legislative sponsors of Act 105 labeled it the “Inmate Sex Change Prevention Act.” Act 105 provides:
SECTION 1. 302.386(5m) of the statutes is created to read: 302.386(5m) (a) In this subsection: 1. “Hormonal therapy” means the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender. 2. “Sexual reassignment surgery” means surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender.
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(b) The department may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery for a resident or patient specified in sub. (1).
SECTION 2. Initial applicability. (1) PROVISION OF HORMONAL THERAPY OR SEXUAL REASSIGNMENT THERAPY. This act first applies to hormonal therapy, as defined in section 302.386 (5m) (a) 1. of the statutes, as created by this act, or sexual reassignment surgery, as defined in section 302.386 (5m) (a) 2. of the statutes, as created by this act, provided on the effective date of this subsection.
[2005 Wisconsin Act 105]
Hormone treatments feminize inmates by rendering effects on
“secondary sexual characteristics such as hair, fatty metabolism,
muscle, and . . . breasts.” [R.201:197] The Act serves to prevent sexual
violence in prison, the risk of which is increased when an inmate
presents an effeminate manner. [R.202:412-435]
The plaintiffs challenge the Act because it prevents state or
federal resources to be used to provide hormone therapy or sexual
reassignment surgery to Wisconsin prisoners. [R.95 at ¶2] As a result
of the Act, certain inmates were denied evaluations for determining the
suitability of the prohibited treatments. [R.212:7; App. 110] It is
undisputed, however, that the psychiatric and psychological services
provided by DOC to treat psychoses, adjustment disorders, or mood
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disorders like depression or anxiety, would all be available to inmates with GID despite the Act. [R.201:199-200] Additionally, the array of medical treatment available to treat any gastrointestinal problems, cardiovascular problems, muscle weakness, endocrine problems, diabetes, osteoporosis, and healing issues related to withdrawal of hormones would all be available to inmates with GID with the Act in effect. [R.201:216-222]
SUMMARY OF THE ARGUMENT The Act does not violate the Eighth Amendment on its face because there is no evidence in the record to support a conclusion that there is “no set of circumstances” under which the Act does not effectuate deliberate indifference with regards to inmates with GID who are interested in being evaluated for hormones or surgery. In fact, the vast majority of the evidence supports the opposite conclusion, that the medical experts believe the prohibited treatments are only medically necessary in limited, serious cases. The Act does not violate the Eighth Amendment as applied to the plaintiffs because the Act merely limits treatment options, the State has no constitutional obligation to provide curative treatment, and legislation limiting medical discretion as to treatment options does not effectuate per se
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196 deliberate indifference. Finally, the Act does not violate the Equal Protection Clause, either as-applied or on its face, because it is rationally related to legitimate security interests. The district court misapplied the rational basis standard by not affording appropriate weight to the evidence identifying and supporting the State’s security interests in preventing sexually motivated violence in prisons.
STANDARD OF REVIEW On appeal, a decision granting a permanent injunction is reviewed for abuse of discretion. Knapp v. Northwestern University, 101 F.3d 473, 478 (7th Cir. 1996). Factual determinations are reviewed under a clearly erroneous standard and legal conclusions are given de novo review. Id.; see also, 3M v. Pribyl, 259 F.3d 587, 607 (7th Cir. 2001).
ARGUMENT I. WIS. STAT. § 302.386(5M) DOES NOT VIOLATE THE
EIGHTH AMENDMENT OF THE CONSTITUTION AS APPLIED TO THE PLAINTIFFS.
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A.

The Eighth Amendment Standard

“Cruel and unusual punishment” of individuals is prohibited by

the Eighth Amendment and this theory applies to the states through

the Due Process Clause of the Fourteenth Amendment. Robinson v.

California, 370 U.S. 660, 666 (1962); Redding v. Pate, 220 F. Supp. 124,

127 (N.D. Ill. 1963). The Eighth Amendment prohibits unnecessary

and wanton infliction of pain. Hudson v. McMillian, 503 U.S. 1, 5

(1992), Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). The

prohibition against unnecessary and wanton infliction of pain has been

extended to the treatment of an inmate’s serious medical needs. Estelle

v. Gamble, 429 U.S. 97, 104 (1976); Wynn v. Southward, 251 F.3d 588,

593 (7th Cir 2001). A serious medical need is one that has been

diagnosed by a physician as mandating treatment, or one that is so

obvious that even a lay person would easily recognize the necessity for

doctor’s attention. Wynn, 251 F. 3d at 593.

To establish an Eighth Amendment violation based on deliberate

indifference to a serious medical need, the plaintiffs must first

demonstrate that they had an objectively serious medical need. Walker

v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002). Second, they must

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demonstrate that the defendants were subjectively deliberately indifferent to their serious medical condition. Id.
1. The serious medical need standard Deliberate indifference to medical needs is an Eighth Amendment violation only if an inmate’s needs are “serious.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Estelle v. Gamble, 429 U.S. at 103-04). Courts objectively distinguish medical needs that are serious from those that are trivial. Gutierrez v. Peters, 111 F.3d 1364, 1372 (7th Cir. 1997) (noting that not every medically recognized condition involving discomfort can support an Eighth Amendment claim). The deprivation alleged must be, objectively, sufficiently serious. Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999) (explaining that for liability to exist the prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities). An objectively serious medical need is one that has either “been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir. 2000) (an ear infection that inflicted prolonged suffering for months and led to permanent loss of hearing was an objectively serious
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
medical condition). A condition is objectively serious if "failure to treat [it] could result in further significant injury or unnecessary and wanton infliction of pain." Reed v. McBride, 178 F.3d 849, 852 (7th Cir. 1999) (quoting Gutierrez, 111 F.3d at 1373).
2. The deliberate indifference standard The second prong of deliberate indifference requires the plaintiffs to establish that the defendants acted with a specific state of mind. Deliberate indifference to a serious medical need is more than “mere negligence,” as it requires that the prison official was “subjectively aware of the prisoner’s serious medical needs and disregarded an excessive risk that a lack of treatment posed to the prisoner’s health and safety.” Wynn v. Southward, 251 F.3d at 593 (holding that denial of heart medication after repeated oral and written requests demonstrates deliberate indifference). A prison official is not deliberately indifferent “unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, “[u]nder the subjective standard, it is not enough to show that a state actor should have known
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of the danger his actions created. Rather, a plaintiff must demonstrate that the defendant had actual knowledge of impending harm which he consciously refused to prevent.” Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996). The Court must examine the totality of the inmate’s medical care in determining whether the care demonstrates deliberate indifference of a serious medical need. Gutierrez, 111 F.3d at 1375 (holding that isolated delays in treatment over a ten-month period of treatment did not constitute deliberate indifference) (citing DeMallory v. Cullen, 855 F.2d 442, 445 (7th Cir. 1988)).
Furthermore, an inmate’s disagreement with the course of treatment cannot establish deliberate indifference violating the Eighth Amendment. Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996) (holding that a disagreement over the deliberate decision not to use local anesthetic did not meet the deliberate indifference standard). The Court in Snipes approached the inmate’s treatment as a whole, refusing to evaluate one specific medical decision for deliberate indifference. Id. Medical decisions that may be characterized as classic examples of matters for medical judgment, such as whether one course of treatment is preferable to another, are beyond the Amendment's
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purview. Id. Such matters are questions of tort, not constitutional law. Id.
B. Wis. Stat. § 302.386(5m) Does Not Violate the Eighth Amendment As Applied to the Plaintiffs Because It Does Not Effectuate Deliberate Indifference.
As an initial matter, based on the testimony at trial, the district court found that GID constitutes a serious medical need, thus establishing the first prong of the plaintiffs’ Eighth Amendment claim. [R.212:55; App. 158] Although the defendants disagree, they acknowledge that review of such a finding is conducted using the deferential “clearly erroneous” standard. The defendants believe the crux of this appeal relates to the deliberate indifference prong of the analysis and, therefore, are electing not to challenge the lower court’s finding as to serious medical need.
1. A legislative act denying some medical discretion does not effectuate per se deliberate indifference under the Eighth Amendment.
The district court’s decision that the Act violates the Eighth Amendment hinges primarily on its conclusion that “prison officials may not substitute their judgments for a medical professional’s prescription.” [R.212:62; App. 165] The problem is that that conclusion
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has no basis in case law and its extension to legislative acts would produce an absurd result.
Both the Supreme Court and the Seventh Circuit Court of Appeals have repeatedly affirmed the right of the state to limit the discretion of medical professionals both directly (through regulation) and indirectly (through public financing restrictions). See Gonzales v. Carhart, 550 U.S. 124, 162-165 (U.S. 2007) (“The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”); Kansas v. Hendricks, 521 U.S. 346, 360 (1997) (“[I]t is precisely where such disagreement exists that legislatures have been afforded the widest latitude in drafting such statutes…when a legislature ‘undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation’”); Washington v. Glucksberg, 521 U.S. 702 (1997) (upholding a state law criminalizing physician assisted suicide). The Supreme Court’s latest foray into this particular question endorsed a broad view of this issue:
A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to
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regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives.
Gonzales, 550 U.S. 166-167. Speaking directly to the issue of
transsexuals in prison, this court noted that many states’ Medicaid
statutes “contain a blanket exclusion” of coverage for sex-change
operations. Maggert v. Hanks, 131 F.3d 670, 672 (7th Cir. 1997).
Indeed, Wisconsin’s own Medicaid program denies coverage of both
hormone therapy and gender reassignment surgery. [Wis. Stat. §
49.46(2) (2010); Wis. Stat. § 49.47(6)(a); Wis. Admin. Code § DHS
107.10 (2010); see also Burnett Test., R.201:221-222]2 Moreover,
Courts have routinely recognized that even a private insurance plan
governed by the Employee Retirement Income Security Act may
exercise its discretion to cover treatment prescribed by healthcare
providers provided that the decision not to cover is intended to be
discretionary under ERISA and is not arbitrary and capricious.
Summers v. Touchpoint Health Plan, Inc., 2006 WI App 217, 296 Wis.
2Record entries 200-203 are the transcripts from the court trial.
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
2d 566, 723 N.W.2d 784. Finally, a prison official may enact a security
measure, even one that impinges on medical needs, if the measure “was
applied in a good faith effort to maintain or restore discipline.” Whitley
v. Albers, 475 U.S. 312, 320-21 (1986).
Instead of addressing this considerable reservoir of support for
the notion that the state may cabin the discretion of medical
professionals, especially when those medical professionals are
operating within correctional institutions, the lower court, in insulating
the medical profession from all state interference, focused on (and
arguably distorted) dicta from Zentmyer, which is itself worth quoting
at length:
This is not to say that prison officials may substitute their judgments for a medical professional's prescription. Of course they cannot. See Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir.1999); Johnson v. Hay, 931 F.2d 456, 461 (8th Cir.1991). If a defendant consciously chose to disregard a nurse or doctor's directions in the face of medical risks, then he may well have exhibited the necessary deliberate indifference. But deliberate indifference is an onerous standard for the plaintiff, and forgetting doses of medicine, however incompetent, is not enough to meet it here. Zentmyer cites several cases from other circuits decided before Estelle and Farmer finding that denial of prescribed medication, when combined with other privations, violated a prisoner's substantive due process rights. None of these cases hold that failure to administer medication exactly as prescribed without additional exacerbating hardships violates the Eighth or Fourteenth Amendment. See Campbell v. Beto, 460 F.2d 765 (5th Cir.1972); Martinez v. Mancusi, 443 F.2d 921 (2d Cir.1970); Tolbert v. Eyman, 434 F.2d 625 (9th Cir.1970); Edwards v. Duncan, 355 F.2d 993 (4th Cir.1966).
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Zentmyer v. Kendall County, Ill. 220 F.3d 805, 812 (7th Cir. 2000). This passage simply does not support the broad proposition attributed to it by the lower court that a state legislature may not substitute its judgment for that of medical professionals. In fact, it appears to allow even some administrative departures from prescribed treatments, and therefore is not particularly supportive of plaintiffs’ case. At most, the passage supports the proposition that prison officials may not substitute their judgment for that of medical professionals in the absence of regulation, but that is not the issue in this case.
Here, the state legislature acted to limit treatment options. The people of the state, through their elected officials, passed a law prohibiting certain treatments for GID using public funds. The Supreme Court in Gonzales explicitly stated that state and federal legislatures have wide discretion to pass legislation in areas where there is medical and scientific uncertainty. Gonzales, 550 U.S. at 162165. The record in this case shows that GID is a condition about which there is limited knowledge and vast uncertainty. [R.200:59-60 (testimony by Dr. R. Ettner indicating that the standards of care for GID acknowledge that there is limited knowledge in the area of GID, that there are clinical uncertainties that are hoped to be resolved in the
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future, and that the standards of care are evolving and flexible); R.202:357-358 (testimony by Dr. Claiborn that GID is not a mental disease or disorder and that there is a difference of opinion on whether GID is a mental disorder)]
This is a very different situation than a prison official simply disregarding a doctor’s recommendation for a legal and medically necessary treatment option, which was the scenario discussed in Zentmyer. The passage in Zentmyer does not reach the question of whether the state legislature can regulate the judgments of medical professionals, let alone hold that such regulation is improper. This is fortunate since such a limit on the state’s power would produce the absurd result that medical professionals contracted by the state would have authority over the state treasury superseding even that of elected officials in state legislatures.
If adopted, the district court’s extension of Zentmyer to the state legislature – and its extreme position that the Eighth Amendment prohibits a state legislature from placing any limits on a medical professional’s discretion – would have far-reaching and unintended consequences. Such an interpretation would elevate the subjective opinions of medical professionals above the legislature and the law.
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Individual doctors would have the power to decide what treatments can and cannot be legally regulated. If a vocal group of physicians declared assisted suicide, partial-birth abortions, or medical marijuana medically necessary, the legislature would be barred from prohibiting such treatments under the Eighth Amendment. Notably, in this case, the plaintiffs’ expert, Dr. R. Ettner, testified that if a patient has GID and desires hormone treatment, such treatment is medically necessary. [R.200:62] Surely more is required to render the treatment constitutionally necessary and bind the hands of the state legislature.
Moreover, it cannot be the case that any limit on medical discretion at all would be per se an instance of deliberate indifference. Such a per se rule would be in direct contradiction with the cases recognizing that the Eighth Amendment poses no duty on the state to cure all serious medical ailments and eliminate all serious risks. See Section I(B)(2) infra. If a physician employed by the state decided to only offer curative treatment, the states would be forced to acquiesce to that decision by the lower court’s per se rule.
2. The state has no obligation to provide curative treatment to its prisoners in order to comply with the Eighth Amendment.
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There is no precedent for imposing the additional requirement under the Eighth Amendment that defendants completely eliminate a risk or cure a serious medical condition, yet that is what the plaintiffs would have this Court do. This Court has explained that the Eight Amendment does not entitle inmates to demand specific care and inmates are not entitled to the best care possible. Forbes v. Edgar,112 F.3d 262, 267 (7th Cir. 1997). The Eighth Amendment does not require prevention of all harm, it merely provides a right to “reasonable measures to meet a substantial risk of serious harm.” Id. (emphasis added).
In Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987), this Court held that a transsexual prisoner stated a valid claim under the Eighth Amendment when she was denied treatment of any kind, including hormone therapy, for her GID. Meriwether, 821 F.2d at 413. However, the Court made it very clear that the problem was the complete denial of all treatment for a serious medical need and that the outcome would have been different had she been provided “some type of medical treatment.” Id. at 413. Indeed, the Court broadly concluded that “given the wide variety of options available for the treatment of gender dysphoria and the highly controversial nature of some of those
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options, courts should defer to the informed judgment of prison officials as to the appropriate form of medical treatment.” Id. at 414. The Seventh Circuit has subsequently hewed closely to the analysis in Meriwether. In Jones v. Flannigan, this court endorsed in dicta the Meriwether approach, referring to the administration of “continuous psychological treatment” as enough to satisfy any constitutional requirements and noting that “although a transsexual inmate is entitled to some type of treatment, the inmate ‘does not have a right to any particular type of treatment.’” Jones v. Flannigan, 949 F.2d 398 (7th Cir. 1991) (quoting Meriwether, 821 F.2d at 413). More recently, this court has formulated the same basic concept in terms of “curative treatment:” “it does not follow that the prisons have a duty to authorize the hormonal and surgical procedures that in most cases at least would be necessary to ‘cure’ a prisoner's gender dysphoria.” Maggert, 131 F.3d at 671-72.
The lower court’s opinion attempted to distinguish this established line of Seventh Circuit precedent, but the attempt was unavailing. First, the opinion notes that here the doctors evaluated the plaintiffs and prescribed the hormone therapy prohibited by the Act. [R.212:55; App. 158] This may be true, but this case is also dealing
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with a legislative act limiting treatment options, not merely a prison official disregarding a doctor’s medical decision. Maggert is applicable and relevant because it supports the position that the Eighth Amendment does not require that inmates with GID receive hormones or surgery as long as some treatment is provided. As a result, legislation does not effectuate deliberate indifference simply by limiting treatment options. Second, the district court opinion asserts that the fact that the plaintiffs in this case were receiving hormone therapy before incarceration eliminates the concerns voiced in Maggert about transsexual individuals committing crimes simply so the state can pay for their care. But it should hardly have to be pointed out that 1) prior use of hormone therapy does not eliminate the incentive to commit crimes to have therapy covered since having this therapy covered by the state is precisely what the plaintiffs wish to happen in this case; and 2) this perverse incentive structure was not the only policy justification noted by the Maggert decision. In Maggert, the Court relied heavily on the principal that prisons are not required by the Eighth Amendment to give a prisoner medical care that is as good as he would receive if he were a free person, let alone a free affluent person. Maggert, 131 F.3d at 671-672. Finally, the opinion asserts that “the
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plaintiffs in this case are not arguing entitlement to a specific treatment, rather they are simply contending that Act 105 violates their rights under the Eighth Amendment because it deprives DOC medical personnel of their ability to provide inmates with appropriate treatment.” Id. As discussed in section I(C)(1) above, however, a denial of some medical discretion does not effectuate a per se violation of the Eighth Amendment.
None of the distinguishing features identified by the district court undermines the central position taken by the Seventh Circuit over the years: that the Eighth Amendment does not prohibit prison officials, prison medical personnel, and, most certainly, a state legislature, from denying a small subset of the wide variety of treatments available for a particular diagnosis.
The Seventh Circuit’s treatment of the duty of the state vis-à-vis transsexual prisoners is in accord with the treatment given by the overwhelming majority of other circuits. The Fifth Circuit upheld a decision to deny hormone therapy to a particular individual, noting that the denial was based on ineligibility and lack of medical necessity and that the plaintiff had not asked for any other form of treatment. Praylor v. Texas Dept. of Criminal Justice, 430 F.3d 1208 (5th Cir.
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
2005). The Eighth Circuit has likewise held that a denial of hormone therapy is not unconstitutional “provided that some other treatment is made available to him.” White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988) (referencing the decision in Meriweather). The Tenth Circuit has also held that, though GID is a serious medical condition, “[A] mere difference in opinion regarding the proper course of treatment is not tantamount to deliberate indifference.” Qz’etax v. Ortiz, 170 Fed.Appx. 551, 553, 2006 WL 515612 (C.A.10(Colo.)); see also Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986) (holding that the DOC was not required by the Constitution to provide an inmate hormone therapy where such treatments are controversial).
Instead of bowing to this considerable controlling and persuasive precedent, the lower court placed disproportionate emphasis on an analysis of several district court opinions in other circuits. First, the lower court turned to Phillips v. Michigan Department of Corrections, which found an Eighth Amendment violation when a prison physician discontinued a prisoner’s estrogen treatment, which had begun prior to incarceration, and denied requests for brassieres. Phillips v. Michigan Dept. of Corrections, 731 F.Supp. 792, 801 (W.D. Mich. 1990). In particular, the lower court pointed to the Phillips court’s discussion of
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the “measurably worse” decision to “actually reverse the effects of years of healing medical treatment.” Id. at 800. But it must be noted that this factor was only one of several factors, including the fact that the plaintiff was denied “treatment of any kind,” which drove the court to that conclusion. Id. at 800. Next, the lower court turned to Kosilek v. Maloney, which held that prison officials’ policy of denying access to doctors for undiagnosed GID patients was unconstitutional because the treatment offered was “not sufficient” given the circumstances. Kosilek v. Maloney, 221 F.Supp.2d 156, 185 (D.Mass. 2002). Again, it must be noted that Kosilek ultimately only held that some adequate treatment must be given, and it even expressly recognized that “genuine psychotherapy,” “psychopharmacology,” or some combination of the two “may be sufficient to reduce the anguish caused by Kosilek’s gender identity disorder so that it no longer constitutes a serious medical need.” Id. at 193-195. Notably, neither psychotherapy nor psychopharmacology are barred by Wis. Stat. § 302.386(5m). Next, the lower court turned to De’Lonta v. Angelone, which merely reversed a lower court’s dismissal of a suit by a GID plaintiff and allowed the case to go forward and is of extremely limited precedential value. De’Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003). Finally, the lower court
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considered Brooks v. Berg, which found an Eighth Amendment violation when the plaintiff’s numerous requests for treatment were ignored, but again the court hewed closely to the Seventh Circuit in noting the problem was simply that the plaintiff had been denied “all medical treatment” and that he was entitled to “at least some treatment.” Brooks v. Berg, 270 F.Supp.2d 302 (N.D.N.Y. 2003).
In short, all of the persuasive authority relied on by the lower court can be squared with Meriwether’s and Maggert’s holding that there is no Eighth Amendment violation when some treatment is available to transsexual prisoners.
3. Enforcement of the statute on these plaintiffs is constitutional because it has not denied plaintiffs all or even most of the treatment available to those clinically diagnosed with severe GID.
There is no dispute in this case that other treatment options are available to the plaintiffs. At the close of the trial the plaintiffs expressly admitted that there was no evidence that the defendants were not prepared to treat the plaintiffs using means other than hormone therapy and no evidence that the defendants would provide nothing to the plaintiffs in terms of treatment. [R.203:452] In fact, there is extensive testimony by the DOC medical professionals on the other treatment options available to treat inmates with GID. [See, e.g.,
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
Burnett Test., R.201:215-221; Kallas Test., R.201:197-201] Dr. Kallas testified that the psychiatric and psychological services provided by DOC to treat psychoses, adjustment disorders, or mood disorders like depression or anxiety, would all be available to inmates with GID. [R.201:199-200] Dr. Burnett testified that the array of medical treatment available to treat any gastrointestinal problems, cardiovascular problems, muscle weakness, endocrine problems, diabetes, osteoporosis, and healing issues related to withdrawal of hormones would all be available to inmates with GID. [R.201:216-222]
Additionally, the plaintiffs’ expert, Dr. R. Ettner, testified that hormone therapy merely “attenuates psychopathology” by attenuating or remitting anxiety or depression. [R.200:31-32] In fact, Dr. Frederick Ettner testified that starting hormone therapy actually causes certain health risks. Hormone therapy increases propensity to blood clotting, pulmonary embolism, pituitary tumors, infertility, waking, emotional liability, liver disease, gallstone formation, somnolence, hypertension, diabetes, sexual desire, cardiovascular disease. [R.200:123-125]
Dr. Claiborn explained that anxiety and depression are treated separately from GID, [R.202:368], and as just noted above, Dr. Kallas testified that the psychiatric and psychological services provided by
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DOC to treat mood disorders like depression or anxiety would all still be available to inmates with GID. [R.201:199-200]
The district court noted that the Act prevented the DOC from undertaking thorough evaluations of two inmates in order to determine if hormone therapy is necessary and appropriate. [R.212:7; App. 110] This discussion is misleading and implies the Act kept inmates from actually getting evaluated for treatment generally. However, while it may be true that the Act made evaluations for hormone treatments unnecessary, it does not mean that the Act prevented inmates with GID from being evaluated with regards to other treatment options, such as psychotherapy and/or mood disorder medications. It is not a surprise that the Act would keep inmates from being evaluated for the specific treatment option it prohibits, but there is no evidence that the Act precluded any inmates with GID from being diagnosed or evaluated for treatment generally.
The fact is that there is a dispute here as to whether hormones and/or surgery are medically necessary to address GID. The plaintiffs’ experts’ claims of necessity are more accurately views on preferred treatment. For example, as noted above, Dr. R. Ettner testified that if a patient has GID and desires hormone treatment, such treatment is
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
medically necessary. [R.200:62] Dr. F. Ettner testified that “there are lots of alternatives in treatment therapies” and if a certain treatment is “not acceptable for whatever reason” they go onto another level. [R.200:118] Additionally, the plaintiffs’ attorneys tried to get Dr. Kallas to testify that there may be inmates for whom no treatment other than hormone therapy would be satisfactory; but Dr. Kallas did not agree with that characterization. [R.201:175-176] Instead, Dr. Kallas stated that there are individuals for whom it would be difficult to envision that other routes would be “as satisfactory.” [R.201:175176] He also testified that “there are a number of ways in which individuals with gender dysphoria can [sic] accommodate.” Id. at 175. Finally, Dr. Claiborn testified that GID, like homosexuality, is not actually a mental disease or disorder itself and that there is a difference of opinion on whether GID is a mental disorder. [R.202:357358]
The Act does not effectuate deliberate indifference merely by barring a treatment option that some medical professionals deem the appropriate treatment. Deliberate indifference only occurs if the only course of treatment available is “blatantly inappropriate.” Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007). See, e.g., Estate of Cole by
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). As noted above, the Eight Amendment does not entitle inmates to demand specific care and inmates are not entitled to the best care possible. Forbes v. Edgar,112 F.3d 262, 267 (7th Cir. 1997). The Eighth Amendment merely provides a right to “reasonable measures to meet a substantial risk of serious harm.” Id. (Emphasis added).
As the district court noted, most of the medical experts that testified in this case agreed that some treatment is necessary for inmates with severe GID. [Decision, R.212:18-22; App. 121-125; Burnett Test., R.201:227-228; Brown Test., R.202:259, 268; R. Ettner Test., R.200:29] And Dr. Brown and Dr. F. Ettner both testified that psychotherapy alone is not an effective treatment for severe GID. [Decision, R.212:22, 28; App. 125, 131; F. Ettner Test., R.200:103; Brown Test., R.202:272-273] However, there was no evidence, or finding by the court, that the DOC was not prepared to make some form of treatment available to the plaintiffs or that the DOC was limiting the available treatment options to psychotherapy alone. There is no finding, or evidence to support such a finding, that the Act left available only “blatantly inadequate” treatment options. See Edwards, 478 F.3d 827, 831 (7th Cir. 2007). There is no basis in the record to
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support the district court’s finding that the Act effectuates deliberate indifference as to these plaintiffs.

II. WIS. STAT. § 302.386(5M) DOES NOT VIOLATE THE EIGHTH AMENDMENT OF THE CONSTITUTION ON ITS FACE BECAUSE IT IS NOT UNCONSTITUTIONAL IN EVERY APPLICATION OR EVEN IN A LARGE FRACTION OF CASES.

A.

The Applicable Test

“[A]s-applied challenges are the basic building blocks of

constitutional adjudication.” Gonzales v. Carhart, 550 U.S. 124, 168

(2007) (quoting Fallon, As-Applied and Facial Challenges and Third-

Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000)). Proceeding

cautiously, if at all, in facial challenges is appropriate because

“exercising judicial restraint in a facial challenge ‘frees the Court not

only from unnecessary pronouncement on constitutional issues, but

also from premature interpretations of statutes in areas where their

constitutional application might be cloudy.’” Wash. State Grange v.

Wash. State Republican Party, 552 U.S. 442, 450 (2008) (quoting United

States v. Raines, 362 U.S. 17, 22 (1960)).

This posture of avoidance is engrafted into the law of this

jurisdiction. While the familiar Salerno “no set of circumstances” test

is unsettled law at the Supreme Court level, United States v. Salerno,

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481 U.S. 739, 745 (1987)( “[A] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”); Planned Parenthood v. Casey, 505 U.S. 833, 895 (1992)(“[I]n a large fraction of the cases in which [the statute] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.”); Gonzales, 550 U.S. at 167 (declining to resolve the debate between the “no set of circumstances” and “large fraction of cases” approach to facial challenges), it has been consistently applied in the Seventh Circuit. E.g., Joelner v. Village of Wash. Park, 378 F.3d 613, 621 (7th Cir. 2004); Doe v. Heck, 327 F.3d 492, 528 (7th Cir. 2003); Home Builders Ass'n v. United States Army Corps of Eng'rs, 335 F.3d 607, 619 (7th Cir. 2003); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702, 708 (7th Cir. 2003); but see A Woman’s Choice-East Side Women’s Clinic v. Newman, 305 F.3d 684, 687 (7th Cir. 2002). When instruction from the Supreme Court is unclear (e.g., when the Supreme Court has not expressly overruled a line of cases that nevertheless seem somewhat incompatible with Supreme Court precedent), lower courts are to apply their circuit precedent, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989), and the
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balance of precedent appears to be in favor of the Salerno “no set of circumstances” approach in the Seventh Circuit. At the very least, “all [justices of the Supreme Court] agree that a facial challenge must fail where the statute has a “‘plainly legitimate sweep.’” Wash. State Grange at 449 (citing Glucksberg, 521 U.S. at 739-740). In considering the sweep of a statute, reviewing courts are not permitted to consider the “worst case scenario” or “hypotheticals” and “imaginary” cases. Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 514 (1990); Raines, 362 U.S. at 22.
In this case, the district court properly acknowledged the “no set of circumstances” test outlined in United States v. Salerno, 481 U.S. 739, 745 (1987), when analyzing the plaintiffs’ facial challenge. [R.212:60; App. 163] Where the court erred, however, is in its application of the test.

B.

The Relevant Class

The district court erred in its analysis of the facial challenge by

applying the “no set of circumstances” test to too narrow a class of

inmates. Here, the relevant class is, at its narrowest, all inmates with

GID that are interested in hormone therapy or surgery.

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The district court quoted the United States Supreme Court’s decision in Planned Parenthood v. Casey, 505 U.S. 833, 895 (1992), as support for its conclusion that the relevant class of inmates in this case is limited to those with severe GID for whom hormones or surgery have been prescribed as medically necessary. [R.212:60-62; App. 163-165] Although the Supreme Court’s analysis in Casey is relevant and instructive, the district court misapplied the Court’s mode of analysis, in part, because the district court failed to recognize the differences between the regulation here and the regulation in Casey. As a result, the district court applied the “no set of circumstances” test to far too narrow a class. In Casey, the relevant provision required married women to sign a statement indicating that they notified their husband of an intended abortion. Casey, 505 U.S. at 833. The Casey Court held that the relevant class of women for a facial challenge to the notification provision was limited to those women for whom the provision was a relevant restriction; therefore, the class was limited to married women that wanted to have an abortion and would not choose to tell their husbands on their own volition. Id. at 894-895. This disputed provision in Casey did not ban all abortions, it merely created a spousal notification requirement. The specific nature of the provision
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narrowed the affected class. In this case, however, the Act is much broader; it broadly prevents state or federal resources from being used to provide hormone therapy or sexual reassignment surgery to Wisconsin prisoners. Wis. Stat. § 302.386(5m).
As the district court explicitly stated in its decision, the Act prevented the DOC from evaluating inmates in order to determine if hormone therapy was necessary and appropriate. [R.212:62; App. 165] If the Act bars evaluation for hormones or surgery, at its most narrow extreme, the relevant class for a facial challenge would be all GID inmates that are interested in being evaluated for hormones or surgery, since the Act prohibits all of them from being evaluated for those specific treatments. Yet the district court goes on to ignore this application of the Act and limit the relevant class to inmates that have already been evaluated for hormones or surgery and for whom such treatments were deemed necessary. [R.212:62; App. 165] The district court cannot have it both ways; it cannot claim the Act affects all GID inmates interested in the prohibited treatments and then argue, for purposes of the facial challenge, that the Act only “applies” to inmates with severe GID who have been prescribed the treatment.
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This case is closely analogous to Gonzales, where the Supreme Court rejected a facial challenge to the Partial-Birth Abortion Ban Act of 2003, finding that the Act, while banning a particular kind of abortion entirely, left open another “commonly used and generally accepted method” to obtain an abortion. Gonzales, 550 U.S. at 165.
As noted above, reading the Act in this case so narrowly as to only apply to the sub-class of extreme cases of GID in which hormone therapy or gender reassignment surgery are prescribed as medically necessary, as the lower court appeared to do, [R.212:32; App. 135], ignores the broad sweep of the language used in that statute. That the affected class is larger than this is illustrated by considering the effect facial invalidity would have: if the statute is facially invalid, then there would at least be the theoretical possibility that a prisoner without GID or with only a minor case of GID would be able to obtain these extreme treatments using the usual institutional procedures for requesting treatment. This possibility is heightened by the fact that the severity of GID is determined largely by the patient simply telling the medical professional what they are feeling. [R.200:24] Notably, as Dr. Claiborn testified, many transgender individuals seek GID treatments such as hormone therapy or surgery simply by choice and as a means of moving
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
forward with changing their circumstances. [R.202:369] In other words, the statute does serve as a restriction on these larger classes of cases, and so, arguably, the relevant class for the purposes of a facial challenge should either be the whole prison population or at least the subset of prisoners with any degree of GID.
Moreover, it is manifestly illogical to assume that the “denominator” (i.e., the relevant or regulated class) in either the “no set of circumstances” or “large fraction of cases” approach to facial challenges should be so narrowly limited to extreme cases because it would make judicial invalidation of a statute on its face redundant of the as-applied analysis. Had this approach been used by the Supreme Court in Gonzales, the ban of the dilation and extraction procedure that the Partial-Birth Abortion Ban Act targeted would have been impossible to square with the Court’s findings that the procedure might be necessary, 550 U.S. at 162, and that there need not be an exception for when the procedure is necessary to save the life of the mother. Id. at 165-166. The approach taken by the lower court is incompatible with Gonzales, for it would have held that the relevant class is only the women for whom the dilation and extraction procedure was medically necessary—a move that would have compelled the conclusion that the
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Act was facially unconstitutional as an undue burden on the right to an abortion. Of course, the Gonzales Court did not hold the Act facially unconstitutional, and it is almost certainly because of the patent absurdity of limiting the scope of a facial challenge to a relevant class so small.
This Court should avoid the tendency to either view the affected class so narrowly or engage in an inappropriate examination of what might be and focus instead on the overwhelming facts at hand: of the over 20,000 inmates it covers, the Act may at worst only run afoul of the constitution as it applies to a handful of individual inmates’ need for hormones. These facts are sufficient to satisfy the statute’s validity under any of the approaches to facial challenges available to this Court.
C. The Act is Valid on Its Face Because It Does Not Violate the Eighth Amendment in all cases or in a large fraction of cases.
1. The Act does not implicate an Eighth Amendment right, let alone violate it, as to the majority of inmates it affects because only a handful of inmates have been diagnosed with severe GID and prescribed hormone therapy.
In holding that the Act is facially unconstitutional, the lower court’s opinion swept too broadly and ignored the many run-of-the-mill
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cases in which the statute will not violate the Eight Amendment. First, the Act applies to all inmates, regardless of their diagnosis status:
The department may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery for a resident or patient specified in sub. (1). Wis. Stat. § 302.386(5m)(b). Since GID is not a common diagnosis, it is highly unlikely that the prohibition will ever affect the treatment of the vast majority of prisoners in Wisconsin correctional facilities. Second, though the affected class may need to be narrowed to those with gender identity issues, Casey, 505 U.S. at 894 (“The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”), the trial record shows that even the plaintiffs’ witnesses agree that the treatments prohibited by the Act will not be required whenever a prisoner has gender identity issues. On the contrary, hormone therapy and especially gender reassignment surgery are extreme measures reserved for serious cases. [R.202:289 (testimony that Dr. Brown has only seen one inmate that he thought was eligible for sex reassignment surgery); R.200:6 (plaintiffs’ counsel arguing that hormone therapy is only required treatment in “severe cases of Gender Identity Disorder” and sex reassignment surgery is required “for an even smaller group.”); R.201:175 (Kallas
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testimony that hormones are one of the central ways to treat those with “severe gender dysphoria.”); R.200:118-119 (Dr. F. Ettner testifying that there are lots of alternatives in treatment therapies); R.201:186 (Dr. Kallas testifying that not all gender dysphoria requires hormones or surgery); R.200:60-61 (Dr. R. Ettner testifying that not all individuals with GID need hormones, a diagnosis of GID does not require treatment in every case, and under the standards of care, therapists are directed to let GID patients simply choose among treatment options); R.200:64 (Dr. R. Ettner testifying that it is possible that inmates may request hormone therapy when it is not an appropriate treatment for them)] Notably, there is no evidence that any inmate currently has any medical need for gender reassignment surgery.
There is simply no evidence in the record to support a conclusion that there is “no set of circumstances” under which the Act does not effectuate deliberate indifference with regards to inmates with GID who are interested in being evaluated for hormones or surgery. Similarly, there is no evidence to support a conclusion that, as to a “large fraction” of inmates with GID that are interested in being
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evaluated for hormones or surgery, the Act violates the Eighth Amendment by preventing evaluation for those specific treatments.
2. The Act is facially valid even under the “large fraction” test and where the relevant class of inmates is all inmates with severe GID for whom hormone therapy or surgery have been prescribes as medically necessary.
For the same reasons that the Act is valid as-applied to the plaintiffs, the Act is facially valid even if the test is the “large fraction” test applied in Casey, and the relevant denominator is all inmates with severe GID for whom hormone therapy or surgery have been prescribed as medically necessary. The Act is valid under such a test because other treatment options remain available, the Eighth Amendment does not require curative treatment, and a legislative act limiting medical discretion as to specific treatment options does not effectuate per se deliberate indifference. See Sections I(C)(1)-(3) supra.
D. For the Same Reasons That the Act is Facially Valid, The District Court Improperly Applied the PLRA and The Injunction Should be Lifted.
The district court erred in its determination that the Act violates the Eighth Amendment on its face; and in so doing, the court also violated the requirements of the Prison Litigation Reform Act (PLRA). The PLRA requires that prospective relief:
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[S]hall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a).
Here, the district court made after-the-fact findings to comply
with the PLRA. [R.239; App. 173-175] In so doing, the court found that
enjoining the enforcement of the Act “is narrowly tailored in that
enjoining the enforcement of Wis. Stat. § 302.386(5m) prohibits only
unconstitutional applications of the statute which this court has found
to be unconstitutional any time it is applied.” [R.239:1; App. 173]
The court went on to find that:
[A]n injunction against enforcement of Wis. Stat. § 302.386(5m) extends no further than is necessary to correct the Eighth Amendment and Equal Protection violations because any application of the statute would violate the Eighth Amendment and Equal Protection and enjoining all applications of Wis. Stat. § 302.386(5m) is necessary to prevent constitutional violations.
[R.239:2; App. 174] Finally, The court stated that:
[A]n injunction against enforcement of Wis. Stat. § 302.386(5m) is the least intrusive means possible to correct Eighth Amendment and Equal Protection violations that would be caused in the future through any application of the facially invalid statute. Lastly, the court concludes that the aforementioned injunctive relief will have no significant
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“adverse impact on public safety or the operation of a criminal justice system.” 18 U.S.C. § 3626(a)(1). [R.239:2-3; App. 174-175] Although the court made most of the findings required by the PLRA, these findings are based on errors in law. See Sections II(B) and (C), supra. In particular, the court erred in determining that the Act only applied to inmates with GID for whom surgery or hormones have been prescribed as medically necessary. Additionally, the court did not find that the relief ordered extends “no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C. § 3626(a) (emphasis added). This is not a class action and the injunction issued by the court extends well beyond any violation to the plaintiffs. The court enjoined enforcement of the entire Act, which includes a prohibition on gender reassignment surgery. There is no evidence that the plaintiffs have been prescribed gender reassignment surgery or even desire such surgery. In fact, there is no evidence that any inmate in DOC custody has a medical need for sexual reassignment surgery. Finally, the relief ordered by the district court is impermissibly broad because it enjoins enforcement of the Act as to inmates for whom the barred treatments are not medically necessary. The district court,
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by its own argument, claims that the Act is only unconstitutional as to inmates for whom the treatments have been prescribed as medically necessary. [R.212:62 (finding that the Act only applies to inmates for whom a doctor has determined that hormone therapy is medically necessary); R.239:1 (claiming that the Act is unconstitutional in every application)] The Act itself makes no distinction as to medical need and, in fact, expressly applies to all inmates. Therefore, banning enforcement of the Act entirely is not narrowly-drawn relief and goes far beyond that which is “necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C. § 3626(a).
III. THE ACT DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE EITHER AS APPLIED OR ON ITS FACE.
The Fourteenth Amendment’s guarantee of equal protection of the laws must coexist with the fact that almost all legislation classifies people in one way or another. Romer v. Evans, 517 U.S. 620, 624 (1996) (citing Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271272 (1979)). These principles have been reconciled by the approach that courts will uphold laws that do not burden a protected class or the exercise of a fundamental right as long as the law can pass rational basis review. E.g., Romer, 571 U.S. at 624; Heller v. Doe, 509 U.S.
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312, 319 (1993); Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988); Hodel v. Indiana, 452 U.S. 314, 331-332 (1981).
A. Transgender individuals are not a suspect class for the purposes of the Equal Protection Clause and the Act, therefore, is subject only to rational basis review.
Even if Wis. Stat. § 302.386(5m) does draw a distinction between those with GID and those without it (which the statute does not, as a matter of language, do), the statute would not be subject to strict or heightened scrutiny. Rational basis scrutiny must be applied in this case because the Act does not target a suspect or quasi-suspect class, such as a race, see, e.g., Loving v. Va., 388 U.S. 1, 11 (U.S. 1967), nor does it affect a fundamental right, such as the right to vote, the right to privacy, or the right to travel between states. See, e.g., Miller v. Carter, 547 F.2d 1314, 1320 (7th Cir. 1977). Rather, the statute at most draws a distinction based on sexual orientation, which has never been deemed a suspect classification. See Nabonzy v. Podlesny, 92 F.3d 446 (7th Cir. 1996); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990). Recent cases striking down state statutes arguably targeting those of a particular sexual orientation have explicitly avoided holding that sexual orientation is a suspect class and have instead focused on the fact that the statutes in
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question were “divorced from any factual context from which we could discern a relationship to legitimate state interests.” Romer, 571 U.S. at 635.
Under rational basis review, a governmental classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could supply a rational basis for the classification.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637 (1993) (emphasis added); see also FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). For both facial and as-applied challenges, the burden is upon the challenging party to eliminate any ‘reasonably conceivable state of facts that could provide a rational basis for the classification. Smith v. City of Chicago, 457 F.3d 643, 652 (7th Cir. 2006). Rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Id. Similarly, it does not “authorize the judiciary to sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.” Heller v. Doe by Doe, 509 U.S. 312, 319, 113 S.Ct. 2637 (1993) (citations omitted). “A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Heller, 509 U.S. at 320-321. “[C]ourts are compelled under
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rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Id. “A statute is presumed constitutional, and the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record.” Heller, 509 U.S. at 320.
Therefore, legislatures must be given a presumption that they acted within their constitutional power. Nordlinger v. Hahn, 509 U.S. 1, 10, 112 S.Ct. 2326 (1992). While the Supreme Court has “consistently held, however, that some objectives, such as ‘a bare ... desire to harm a politically unpopular group,’ are not legitimate state interests,” and has “applied a more searching form of rational basis review” in those circumstances, Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor J., concurring) (citing Department of Agriculture v. Moreno 413 U.S. 528, 534 (1973); Cleburne v. Cleburne Living Center 473 U.S. 432, 446-47 (1985); Romer, 571 U.S. at 632), that triggering animus only exists where a law is “inexplicable by anything but animus
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toward the class that it affects.” City of Chicago v. Shalala, 189 F.3d 598 (7th Cir. 1999) (quoting Romer, 571 U.S. at 632) (emphasis added).
B. The statute is justified by legitimate security and liability concerns and employs means rationally related to furthering those ends.
1. The statute protects the State’s interest in the peaceful administration of the State’s corrections facilities by ameliorating or preventing gendermotivated violence or abuse.
In conducting rational basis review of a statute governing prison administration, it is of utmost importance that the reviewing court remain cognizant of the special disciplinary and security needs of corrections facilities and assume the traditional posture of deference to the decisions of prison administrators on the frontlines. There can be no dispute that the provision of security must be central to all other prison goals. Thornburgh v. Abbott, 490 U.S. 401, 415 (1989). Courts are obligated to defer to prison officials' adoption of policies necessary to preserve security and internal order. Hewitt v. Helms, 459 U.S. 460, 474 (1983). In the prison environment, “safety of the institution's guards and inmates is perhaps the most fundamental responsibility of the prison administration.” Id. at 473. The Seventh Circuit has repeatedly recognized this principle:
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Judges should be cautious about disparaging disciplinary and security concerns expressed by the correctional authorities. American jails are not safe places, and judges should not go out of their way to make them less safe.
Keeney v. Heath, 57 F.3d 579, 581 (7th Cir. 1995).
Less-restrictive-alternative arguments are too powerful: a prison always can do something, at some cost, to make prisons more habitable, but if courts assess and compare these costs and benefits then judges rather than wardens are the real prison administrators. Wolfish emphasized what is the animating theme of the Court's prison jurisprudence for the last 20 years: the requirement that judges respect hard choices made by prison administrators.
Johnson v. Phelan, 69 F.3d 144, 145 (7th Cir. 1995), cert. denied, 519
U.S. 1006 (1996)(emphasis in original).
In its decision, the lower court did not afford appropriate weight
to the evidence identifying and supporting the State’s security interests
in preventing sexual abuse in prisons. First, there can be no doubt that
the prohibited treatments feminize inmates by rendering effects on
“secondary sexual characteristics such as hair, fatty metabolism,
muscle, and . . . breasts.” [R.201:197] There can also be little doubt
that taking the plaintiffs off of hormone therapy would result in
measurable decreases in their femininity. One of the plaintiffs,
Vankemah Moaton, confirmed that he “started growing thicker body
hair” and experienced a decrease in breast tissue after being
withdrawn from hormone therapy while serving another sentence in
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federal prison [R.201:149], and flatly agreed that he could not look as feminine without hormone therapy as he could with them. [R.201:162]
The State of Wisconsin’s expert witness, Eugene Atherton, testified that sexual assault is something that needs to be prevented in prisons and is difficult to prevent. [R.202:415] Mr. Atherton also concluded that prisons are highly unique and highly dangerous places which require unusual diligence, oversight, and caution, especially when considering the dangers of sexual activity [R.202:412-414], and that the appearance of femininity makes those inmates an “automatic target for inmates who are interested in sexual aggression or sexual relationships.” [R.202:419] Mr. Atherton testified that if an inmate presents an effeminate manner, whether by dress or behavior, that makes the inmate more likely to be sexually victimized. Id. Finally, Mr. Atherton testified that the fact that an inmate’s physical appearance changes to become more feminine leads to increased security concerns for the institution. [R.202:435] Indeed, the heightened risk created by artificially induced femininity in the prison context is nowhere better demonstrated than in some of the plaintiffs’ own personal experiences. Vankemah Moaton testified that he took extra precautions to conceal his femininity, including wearing baggier
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clothing, specifically because “I am female and I am in a male’s prison so I don’t do those type of things, leave myself susceptible of being assaulted or possibly leave myself open for sexual assault.” [R.201:155] Though Moaton was confident in believing that withdrawing hormone therapy would not reduce the harassment he was receiving while in prison because “I’m still gonna be female,” it is certainly not unreasonable for the State to presume that most prisoners will not be as tactful as Moaton in protecting their own security interests.
2. The district court improperly applied the rational basis standard to the evidence.
The lower court did not give the extensive evidence in support of a rational basis proper weight. [R.212:66-67; App. 169-170] It is this misapplication of the law that the defendants challenge on appeal and which this Court should review de novo. See generally Smith v. City of Chicago, 457 F.3d 643, 650 fn. 2 (7th Cir. 2006); U.S. v. Turner, 93 F.3d 276, 286 (7th Cir. 1996).
First, the lower court concluded that the fact that the State’s prison expert had not challenged a Colorado policy allowing hormone therapy because he believed it to be reasonable was enough to negate his other testimony on the inherent dangers of increased feminization in the prison context. [R.212:66; App. 169] However, it is clear that
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Atherton’s opinion on the matter was merely that the Colorado policy was reasonable, and it had no bearing at all on the reasonableness of Wis. Stat. § 302.386(5m)—indeed, both could be reasonable simultaneously without rendering the Act unconstitutional in this case. As noted above, “that rational-basis review in equal protection analysis “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices…Nor does it authorize ‘the judiciary to sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.’” Heller v. Doe by Doe, 509 U.S. 312, 319, 113 S.Ct. 2637 (1993) (internal citations omitted).
Second, the lower court’s opinion notes Atherton’s comment that he did not think withdrawal of hormone therapy would necessarily lead to a reduction in risk of sexual assaults, as well as a fruitless counterfactual questioning about whether Davison would have been assaulted without hormone therapy, to argue that the causal connection was insufficient. [R.212:66; App. 169] Again, this analysis betrays the spirit of rational basis review. The only relevant question under rational basis review is whether the State could reasonably conceive that withdrawal of hormone therapy would further any legitimate interest. Whether withdrawal would necessarily lead to a
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reduction in sexual assaults and whether Davison would have
necessarily been saved from his sexual assault with a withdrawal of
hormone therapy are ultimately irrelevant for the purposes of equal
protection analysis.
While plaintiffs point to the lack of discussion about security
interests during the legislative debate on Wis. Stat. § 302.386(5m) as
evidence that the State has not met its burden to demonstrate a
rational basis for the statute, the point is inapposite in the context of
an equal protection challenge. The State has no obligation to maintain
the same rational basis at all times. Rather, as previously noted, it is
free to re-articulate its justification for the law even during litigation:
The government may defend the rationality of its action on any ground it can muster, not just the one articulated at the time of decision (if a reason was given at all.) Our various departments and agencies of government make thousands of decisions every day; not every one will come with an explanation. The absence of an explanation, or even an incomplete, inadequate, or inaccurate explanation will not equate to a lack of rational basisotherwise “the federal courts would be drawn deep into the local enforcement of ... state and local laws.” Accordingly, the reason stated at the time of the challenged action may be relevant but is not dispositive in the application of rationality review.
Smith v. City of Chicago, 457 F.3d 643, 652 (7th Cir. 2006) (internal
citations omitted). Nor is it enough to point, as the plaintiffs do, to
other prisoners whose characteristics or conditions might lead to
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heightened security risks (such as homosexual inmates or inmates with HIV). The legislature need not “strike at all evils at the same time or in the same way.” Sutker v. Illinois State Dental Soc., 808 F.2d 632, 635 (7th Cir. 1986) (citing Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610 (1935)). It is sufficient that there is a problem “at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical, Inc., 348 U.S. 483, 487-88 (1955).
3. The Act protects the state from civil liability for failure to live up to its duty to provide a safe environment for transsexual prisoners.
Because the State would face civil liability for failure to provide a safe environment for transsexual prisoners, the State should not be denied the ability to adopt a cost-effective mechanism for protecting the constitutional rights of these prisoners. In Farmer v. Brennan, the Supreme Court held that a transsexual prisoner who was raped and beaten after being placed in the prison’s general population could assert a prima facie case for deliberately indifferent failure to protect prisoner safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994). Though “prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause,” (Id. at 845),
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the Supreme Court ultimately found that such action (i.e., treating transsexuals as just like any other prisoner) was not reasonable per se. Rather, the relevant inquiry in determining deliberate indifference was whether the prison officials had subjective knowledge of a substantial risk to the safety of the prisoner, and this inquiry can be satisfied by examining circumstantial evidence of awareness:
[If] an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was “longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.” Id. at 842-843. In Farmer, that inquiry was satisfied by evidence that the prison officials admitted “there was a high probability that [petitioner] could not safely function” in the prison and that they believed the petitioner’s “youth and feminine appearance” made the petitioner “likely to experience a great deal of sexual pressure.” Id. at 848-849. Both direct and circumstantial evidence show that the State is subjectively aware of the problems associated with providing a safe environment for transsexual prisoners. The Act was passed largely out of recognition of these difficulties, and even the plaintiffs’ experts admit
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that there are difficulties and challenges associated with housing transsexual prisoners among gender-segregated prison populations. [See e.g., R.202:318-319] Given this evidence, it is not implausible to conceive of § 1983 actions against prison officials for failure to deal with the special security challenges surrounding transsexual prisoners. In passing the Act, the State of Wisconsin took positive steps to avoid this kind of civil liability. The Act minimizes the ability of prisoners to change their appearance, thereby making it less dangerous for prison officials to place the prisoners in general prison populations. The denial of hormone therapy, in particular, can help reduce or reverse the acquisition of characteristics of the opposite sex. Instead of continuing hormone therapy and permanently utilizing drastic measures such as segregation or isolation to protect these prisoners, the State has chosen to avoid liability by minimizing the vulnerabilities created by hormone therapy and gender reassignment surgery. The State should not be penalized for taking steps to protect the safety of inmates and their corresponding constitutional rights.
CONCLUSION For the reasons stated above, the defendants respectfully request that the Court REVERSE the district court’s decision and judgment
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below as to both the Eighth Amendment and Equal Protection claims and DECLARE Wis. Stat. § 302.386(5m) constitutional under both the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment.
Dated this 24th day of September, 2010. J.B. VAN HOLLEN Attorney General
ABIGAIL C. S. POTTS* Assistant Attorney General State Bar #1060762 Attorneys for Defendants-Appellants, Cross Appellees Wisconsin Department of Justice Post Office Box 7857 Madison, WI 53707-7857 Telephone: (608) 267-7292 Fax: (608) 267-8906 E-Mail: pottsac@doj.state.wi.us *Counsel of Record
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CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(A)(7)
The undersigned, counsel of record for the defendants-appellees, furnishes the following in compliance with F.R.A.P. Rule 32(a)(7).
I hereby certify that this brief conforms to the rules contained in F.R.A.P. Rule 32(a)(7) for a brief produced with a proportionally spaced font. The length of this brief is 11,888 words.
Dated this 24th day of September, 2010.
ABIGAIL C. S. POTTS* Assistant Attorney General State Bar No. 1060762 Attorney for Defendants-Appellants, Cross Appellees
Wisconsin Department of Justice Post Office Box 7857 Madison, WI 53707-7857 Telephone: (608) 267-7292 Fax: (608) 267-8906 E-Mail: pottsac@doj.state.wi.us *Counsel of Record

Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
CIRCUIT RULE 31(E) CERTIFICATION
The undersigned hereby certifies that I have filed electronically,
pursuant to Circuit Rule 31(e), a version of the brief that is available in non-scanned PDF format.
Dated this 24th day of September, 2010.
__________________________________ ABIGAIL C. S. POTTS* Assistant Attorney General State Bar No. 1060762 Attorney for Defendants-Appellants, Cross-Appellees
Wisconsin Department of Justice Post Office Box 7857 Madison, WI 53707-7857 Telephone: (608) 267-7292 Fax: (608) 267-8906 E-Mail: pottsac@doj.state.wi.us *Counsel of Record

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A P P E N D I X

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INDEX TO APPENDIX
APPENDIX PAGE
Order Declaring Wis. Stat. § 302.386(5)) Unconstitutional and Enjoining Enforcement of Statute (Doc. 206) dated March 31, 2010 . . . . . . . . . . . . . . . . . . App. 101-103
Memorandum Decision (Doc. 212) dated May 13, 2010 . . . . . . . . . . . . . . . . . . . . App. 104-171
Judgment (Doc. 235) dated June 22, 2010 . . . . . . . . . . . . . . . . . . . . . . . .App. 172
Order Granting Motions for Additional Findings (Doc. 239) dated July 9, 2010 . . . . . . . . . . . . . . . . . . . . . .App. 173-175
Order Granting in Part and Denying in Part Defendants’ Motion for Partial Summary Judgment (Doc. 175) dated October 15, 2007 . . . . . . . . . . . . . . . . . .App. 176-218

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APPPENDIX CERTIFICATION The undersigned hereby certifies that this appendix includes all of the materials required by Circuit Rule 30(a) and (b). Dated this 24th day of September, 2010.
ABIGAIL C. S. POTTS* Assistant Attorney General State Bar #1060762 Attorney for Defendants-Appellants, Cross-Appellees
Wisconsin Department of Justice Post Office Box 7857 Madison, WI 53707-7857 Telephone: (608) 267-7292 Fax: (608) 267-8906 E-Mail: pottsac@doj.state.wi.us *Counsel of Record

Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ANDREA FIELDS, MATTHEW DAVISON, also known as Jessica Davison, and VANKEMAH D. MOATON,
Plaintiffs,
v.
WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, and RICHARD RAEMISCH,
Defendants.

Case No. 06-C-112

ORDER DECLARING WIS. STAT. § 302.386(5m) UNCONSTITUTIONAL AND ENJOINING ENFORCEMENT OF STATUTE
The plaintiffs in this case seek declaratory and injunctive relief claiming that the defendants have violated the United States Constitution by enforcing 2005 Wisconsin Act 105, codified as Wis. Stat. § 302.386(5m), and depriving them of medical treatment for their serious health condition, Gender Identity Disorder. Further, the plaintiffs ask the court to find that the defendants enforced the statute without regard for individualized medical judgment and in contrast to the medical treatment that the defendants provide to similarly situated inmates in Wisconsin Department of Corrections (DOC) facilities. Consequently, the plaintiffs ask this court to find that the defendants have violated their Fourteenth Amendment right to equal protection and their Eighth Amendment right to be free from cruel and unusual punishment. Moreover, the plaintiffs ask this court to find that enforcement of the statute evinces deliberate indifference to the serious medical needs of

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the plaintiffs as well as the serious medical needs of all other inmates of DOC facilities. Lastly, the plaintiffs seek a declaration that Wis. Stat. § 302.386(5m) is unconstitutional on its face and as applied.
After careful consideration, the court concludes that the defendants’ application of Wis. Stat. § 302.386(5m) to these plaintiffs constitutes deliberate indifference to the plaintiff’s serious medical needs in violation of the Eighth Amendment inasmuch as enforcement of the statute results in the denial of hormone therapy without regard for the individual medical needs of inmates and the medical judgment of their health care providers.
The court further finds that Wis. Stat. § 302.386(5m) is unconstitutional on its face under the Eighth Amendment because it bans the use of any Wisconsin State resources or federal funds passing through the government to provide hormone therapy and, thereby, requires the withdrawal of any such ongoing hormone therapy for inmates in DOC facilities without regard for the medical need for that treatment.
The court further finds that Wis. Stat. § 302.386(5m) prevents DOC medical personnel from evaluating inmates for treatment because such evaluation would be futile in light of the statute’s ban on such hormone therapy. Furthermore, the application of Wis. Stat. § 302.386(5m) to the plaintiffs violates the plaintiffs’ constitutional right to equal protection because there is no rational basis for treating the plaintiffs differently than similarly situated inmates.
The court further finds there is no rational basis for Wis. Stat. § 302.386(5m) and that the statute is invalid on its face, as it violates the Equal Protection Clause of the
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196 Fourteenth Amendment. A memorandum decision shall be issued forthwith. Now, therefore,
IT IS ORDERED that enforcement of Wis. Stat. § 302.386(5m) violates the plaintiffs’ Eighth Amendment right to be free from cruel and unusual punishment and Fourteenth Amendment right to equal protection.
IT IS FURTHER ORDERED that Wis. Stat. § 302.386(5m) is unconstitutional. IT IS FURTHER ORDERED that the defendants are permanently enjoined from the enforcement of Wis. Stat. § 302.386(5m). Dated at Milwaukee, Wisconsin, this 31st day of March, 2010.
BY THE COURT /s/ C. N. Clevert, Jr. C. N. CLEVERT, JR. Chief U.S. District Judge
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ANDREA FIELDS, MATTHEW DAVISON, also known as Jessica Davison, and VANKEMAH D. MOATON,
Plaintiffs,
v.
WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, and RICHARD RAEMISCH,
Defendants.

Case No. 06-C-112

MEMORANDUM DECISION Following a court trial, in March 31, 2010, this court entered an order declaring Wis. Stat. § 302.386(5m) unconstitutional and enjoining the enforcement of the statute. The following memorandum constitutes the court’s findings of fact and conclusions of law underlying that order in accordance with Federal Rule of Civil Procedure 52.
BACKGROUND Plaintiffs1, who are Wisconsin prison inmates, bring this action under 42 U.S.C. § 1983 for declaratory and injunctive relief claiming that the defendants violated the United States Constitution by enforcing 2005 Wisconsin Act 105, codified as Wis. Stat. § 302.386(5m) (Act 105), and abruptly terminating and depriving them of medical treatment

1
On October 15, 2007, pursuant to the defendants’ motion for partial summary judgment, form er plaintiffs Kari Sundstrom and Lindsey Blackwell were dism issed from this case because their claim s for injunctive and declaratory relief are moot as they are no longer in prison.
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for their serious health condition, Gender Identity Disorder (GID). Further, plaintiffs assert that the defendants acted without exercising individualized medical judgment and in contrast to the treatment the defendants provide to similarly situated inmates in Wisconsin Department of Corrections (DOC) facilities. Consequently, plaintiffs ask this court to find that the defendants have violated their Fourteenth Amendment right to equal protection and their Eighth Amendment right to be free from cruel and unusual punishment. Moreover, they ask that Wis. Stat. § 302.386(5m) be declared unconstitutional on its face. During the pendency of this case, the DOC has provided hormone therapy to plaintiffs under the terms of a preliminary injunction.
STIPULATED FACTS Plaintiff Andrea Fields is a male-to-female transsexual in DOC custody at Green Bay Correctional Institution (GBCI). The DOC has diagnosed Fields with GID. Fields has received feminizing hormone therapy continuously since 1996. In 2003, Fields underwent breast augmentation as a component of gender transition. After becoming incarcerated in 2005, the DOC confirmed Fields’s GID diagnosis and continued hormone therapy. In 2006, because of the passage of Act 105, the DOC began to taper Fields’s hormone therapy by halving the dosage. As a result of the reduction, Fields experienced nausea, muscle weakness, loss of appetite, increased hair growth, skin bumps, and depression. The reinstatement of Fields's hormone therapy following the preliminary injunction in this action abated the withdrawal symptoms. Plaintiff Matthew Davison, also known as Jessica Davison, is a male-tofemale transsexual in DOC custody at Oshkosh Correctional Institution (“OSCI”). The DOC has diagnosed Davison with GID. Prior to receiving hormone therapy, Davison attempted
2
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suicide by jumping off a roof. Davison was diagnosed with GID in 2005 and began hormone therapy as treatment for that condition shortly thereafter. The DOC has provided Davison with hormone therapy during incarceration. After arriving at Dodge Correctional Institution, the DOC began to withdraw Davison's hormone therapy because of Act 105. As a result of that withdrawal, Davison experienced increased and darker hair growth, voice deepening, breast reduction and leaking, mood swings, mental and emotional instability, hot flashes, and body aches. The reinstatement of Davison's hormone therapy because of the preliminary injunction in this action led to an abatement of withdrawal symptoms.
Plaintiff Vankemah Moaton is a male-to-female transsexual in DOC custody at Jackson Correctional Institution (JCI). The DOC has diagnosed Moaton with GID. Moaton has experienced suicidal ideation in the past, including after being removed from hormone therapy. Moaton began taking feminizing hormones in the late 1990s, took medically prescribed hormone therapy beginning in 2000, and has continued to receive that treatment during DOC incarceration. After entering DOC custody, the DOC began to withdraw Moaton's hormone therapy because of Act 105. As a result of that withdrawal, Moaton started growing chest and facial hair, developing tenderness in the chest and groin areas, and experiencing skin breakouts, hot flashes, and depression. The reinstatement of Moaton's hormone therapy because of the preliminary injunction in this action led to an abatement of withdrawal symptoms. All of plaintiffs have, to varying degrees, feminine physical characteristics as a result of their hormone usage.
Matthew J. Frank was, at the time this action was filed, the Secretary of the DOC. The current Secretary of the DOC is defendant Richard Raemisch. Defendant
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James Greer is the Director of the DOC Bureau of Health Services. Defendant Judy P. Smith is the Warden at OSCI. Defendant Thomas Edwards was the Health Services Unit Manager of the OSCI Health Services Unit until May 11, 2007. That position is currently vacant.
GID is classified as a psychiatric disorder in the DSM-IV-TR, the current edition of the Diagnostic and Statistical Manual of Mental Disorders ("DSM"). GID has been included in the DSM since the third edition of that manual, which was published in 1980. In prior editions, the DSM classified "transsexualism" as a psychiatric disorder. The following diagnostic criteria are listed in the DSM for GID: 1) a strong and persistent crossgender identification; 2) a persistent discomfort with one’s sex or a sense of inappropriateness in the gender role of that sex; 3) the disturbance is not concurrent with a physical intersex condition; and 4) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Matthew Davison, a/k/a Jessica Davison, has used a female name since childhood. Andrea Fields acted like a girl at school, talked like a girl, walked like a girl, wore makeup, and had a feminine hairstyle. Vankemah Moaton started behaving in a feminine manner prior to age eight.
Kenneth Krebs, a/k/a Karen Krebs, a male-to-female transsexual in DOC custody, cross-dressed as a child and adolescent. Erik Huelsbeck, a/k/a Erika Huelsbeck, another male-to-female transsexual held by the DOC, dressed as a girl for “dressed-up” day at school and other times, sometimes publicly.
DOC administrative personnel generally agree that deference on health care matters should be given to DOC health care staff. Sometimes the DOC prescribes
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hormone therapy for reasons that do not have to do with GID, such as estrogen
replacement therapy in postmenopausal years, or for inmates with a congenital or
hormonal disorder that requires the administration of hormone therapy.
The legislative sponsors of Act 105 labeled it the “Inmate Sex Change
Prevention Act.” Act 105 provides:
SECTION 1. 302.386(5m) of the statutes is created to read:
302.386(5m) (a) In this subsection:
1. “Hormonal therapy” means the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender.
2. “Sexual reassignment surgery” means surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender.
(b) The department may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery for a resident or patient specified in sub. (1).
SECTION 2. Initial applicability.
(1) PROVISION OF HORMONAL THERAPY OR SEXUAL REASSIGNMENT THERAPY. This act first applies to hormonal therapy, as defined in section 302.386 (5m) (a) 1. of the statutes, as created by this act, or sexual reassignment surgery, as defined in section 302.386 (5m) (a) 2. of the statutes, as created by this act, provided on the effective date of this subsection.
(Ex. 24.)
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The legislative sponsors issued multiple press releases prior to its passage stating that it was intended to prevent “bizarre taxpayer-funded sex change procedures” and to stop the DOC policy of “[allowing] pharmacists within the correction system to give hormones to an inmate diagnosed with gender identity disorder.” The only correctional or medical expertise offered during the legislative hearings regarding Act 105 was that of defendants' correctional medical personnel, Dr. Kevin Kallas and Dr. David Burnett. No other DOC representative testified before the legislature regarding Act 105. No one other than legislators spoke in support of the bill that became Act 105. An earlier draft of Act 105 made explicit reference to GID, banning the use of DOC funds "to provide or facilitate the provision of hormonal therapy or sexual reassignment surgery for the treatment of gender identity disorder." Several of the press releases issued by the sponsors of Act 105 noted specifically that the issue of sex reassignment treatment for inmates came to light when they learned that a Wisconsin transgender inmate was receiving treatment that led her to develop “female characteristics, such as breasts.”
While sex reassignment surgery is more expensive than hormone therapy, DOC provides surgeries of equal or greater cost, such as organ transplant and open heart surgical procedures, when medically necessary. Genital sex reassignment surgery costs approximately $20,000. The most expensive surgical procedures provided to inmates by defendants include organ transplants, such as liver, kidney and pancreas transplants, and open heart surgical procedures. In 2005, the defendants paid $37,244.09 for one coronary bypass surgery and $32,897.00 for one kidney transplant surgery. The Fiscal Estimate prepared for AB-184, the bill that became Act 105, noted that the defendants paid a total of $2,300 for cross-gender hormone therapy for two inmates with GID in 2004. Such
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hormone therapy for inmates with GID costs defendants approximately $300 to $1,000 per inmate per year. A second-generation antipsychotic, Quetiapine, costs approximately $2,555 to $2,920 per inmate per year on average, and, in 2004, the defendants paid approximately $2.5 million for inmates to have Quetiapine. Another second-generation antipsychotic, Risperidone, costs approximately $2,555 per inmate per year on average.
Act 105 has prevented the DOC from undertaking thorough evaluations of at least two inmates to determine whether hormone therapy is medically necessary and appropriate for them. Erik Huelsbeck, a/k/a Erika Huelsbeck, was continuously in facilities administered by the DOC from December 2004 until July 2007, when Huelsbeck was transferred to the Wisconsin Resource Center. Huelsbeck was first diagnosed with GID by the DOC in 2006. Huelsbeck has not been evaluated to determine whether hormone therapy will be prescribed, nor could such treatment be prescribed, because of Act 105. Similarly, Krebs has been diagnosed with GID by the DOC. However, Krebs has not been evaluated to determine whether hormone therapy will be prescribed, nor could Krebs receive such treatment, because of Act 105.
Plaintiffs have been in DOC general population for most of their sentences. When OSCI identifies inmates who are more likely to be victims of violence by other prisoners, or more likely to perpetrate violence, it takes steps to address that through closer monitoring or placing the inmate in a different housing unit.
OSCI has eleven different housing units. One is a dormitory setting and houses 148 inmates. Two are wet cell units—they have toilet and shower facilities in the cell. The remaining nine have group bathrooms. The non-dormitory units have between 160-200 inmates each. The majority of the inmates in those units are double-celled.
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The DOC does not permit inmates to pay for their own health care or to seek insurance coverage, as non-inmates could, so Act 105 bars the only avenue for inmates with GID to receive hormone therapy and/or sex reassignment surgery. Neither the DOC as a whole nor any of the defendants have had any involvement in the drafting of, or the introduction of, any of the bills that became Act 105.
EVIDENCE PRESENTED AT TRIAL 1. Witnesses
Plaintiffs’ witness Dr. Randi Ettner is a clinical psychologist who received a Ph.D. in psychology in 1979. (Trial Tr. vol. 1, 13-14, Oct. 22, 2007; see also Ex. 525.) She has evaluated or treated between 2,500 and 3,000 clients with GID since 1976. (Trial Tr. vol. 1, 15, Oct. 22, 2007.) Dr. R. Ettner conducts independent research in the area of GID; has written three books, two of which are peer-reviewed; provides consultation to other mental health professionals; provides in-service or education to physicians, attorneys, and other groups; and collaborates with colleagues in organizations that treat individuals with GID. (Id. at 14, 16.) She is the editor of the International Journal of Transgenderism, which is published by Haworth Medical Press. (Id. at 17.) Dr. R. Ettner is a member of the scientific committee of the World Professional Association for Transgender Health (“WPATH”)2, known previously as the Harry Benjamin International Gender Dysphoria Association (“HBIGDA”). (Id. at 18.) Approximately 70% of her work time is spent seeing clients. (Id.) As part of her role as clinician for clients with GID, Dr. R. Ettner examines
2
W PATH is an international organization of professionals, m ainly m edical people and attorneys, who work with and give services to individuals who have GID. (Trial Tr. vol. 1, 19, Oct. 22, 2007.) W PATH publishes the Standards of Care (“SOC”) which, according to Dr. R. Ettner, is the worldwide acceptable protocol for treating GID. Id. at 19-20.
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clients and recommends necessary medical treatments. (Id. at 22.) Her role is to collaborate with medical caregivers, endocrinologists, and surgeons who implement the treatments. (Id.) Dr. R. Ettner assesses the intensity of the GID in a given individual, and determines whether or not a particular treatment would be medically necessary. (Id.)
Plaintiffs’ witness Dr. Frederic Ettner has been a family medicine physician for the past thirty years. (Id. at 83.) In approximately 1994, he started seeing patients with GID in his private practice. Since that time he has seen over 500 GID patients. (Id. at 88.) Dr. F. Ettner is a member of WPATH. (Id. at 91.) In 2007, Dr. F. Ettner presented a medical education seminar on family medicine and transgender at the WPATH international conference, which was held in Chicago. (Id. at 91-92.) Dr. F. Ettner addresses GID in his teaching as a clinical instructor for Northwestern University and the University of Southern California Medical Schools. (Id. at 92.) He considers himself an expert in transgender medicine. (Id. at 93.)
Vankemah Moaton, incarcerated at JCI, is one of the plaintiffs in this case. Moaton is a 29-year-old biological male who recalls feeling or acting in a feminine way as early as age four. (Trial Tr. vol. 2, 140, Oct. 23, 2007.) As Moaton got older, the feeling intensified, along with feelings of hatred for having a male body. (Id. at 140-41.) Moaton felt better when able to act like a girl, dress up in girl clothes, and play with dolls. (Id. at 142.) Moaton experienced anger and “lots of depression” as Moaton’s body began developing as a man and self-hatred feelings intensified. (Id. at 142-43.) Moaton started taking female hormones around age seventeen or eighteen and as a result started seeing less facial hair growth and a skin “glow” and developed breasts. (Id. at 144.) These
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changes made Moaton feel happier than ever before because steps were being taken toward becoming a woman. (Id. at 144-45.) A year or two after starting hormones, Moaton began dressing as a woman and living life as a female, including in a couple of jobs. (Id. at 146.) In addition, Moaton has had electrolysis on the face, as well as silicone injections in cheeks, chin, breasts, and hips. (Id. at 147.) Moaton considers Moaton to be a woman and is “completely detached” from the male part or male characteristics. (Id. at 148.) Moaton is currently taking feminizing hormones. (Id. at 154.)
Plaintiffs’ witness Dr. Kevin Kallas is the Mental Health Director for the DOC. (Id. at 168.) He is board certified in general psychiatry and forensic psychiatry. (Id.) Dr. Kallas is responsible for informing the psychologists and psychiatrists within the DOC about the care of inmates with GID. (Id. at 173.) Dr. Kallas’s responsibilities include clinical oversight of approximately thirty-five psychiatrists and approximately 100 psychology staff; development of policy for achieving consensus within the department as to what policies ought to be; clinical consultation to the psychologists and psychiatrists; formulating policy for psychotropic medications; and acting as a liaison to outside groups such as advocacy groups. (Id. at 196.) He sits on the DOC gender identity committee. (Id. at 170.) Dr. Kallas’s prior experience in working with persons with GID includes five years at the San Francisco psychiatric emergency room where he saw about a dozen transgender patients, some on a recurring basis. (Id. at 171-72.) He also had at least one transgender patient while in private practice and, while working as a psychiatrist at Dodge Correctional Institution, evaluated and treated at least one patient with GID. (Id. at 172.)
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Defendants’ witness Dr. David Burnett is the Medical Director of the DOC. (Id. at 210.) He has been licensed to practice medicine in Wisconsin since 1980 and is board certified in family medicine. (Id. at 211.) Dr. Burnett also has a degree in Masters of Medical Management. (Id.) His duties and responsibilities as DOC Medical Director include oversight for care within the Wisconsin prison system, including the primary care physicians; oversight to the mental health director; oversight to the dental area and the pharmacy; and review of medical policy. (Id. at 212.) Dr. Burnett is a member of the DOC gender identity disorder committee. (Id. at 223.)
Plaintiffs’ witness Dr. George Brown is chief of psychiatry at the Mountain Home VA Medical Care Center in Johnson City, Tennessee, and Professor of Psychiatry at East Tennessee State University. (Trial Tr. vol. 3, 245, Oct. 24, 2007.) He is board certified in psychiatry and licensed to practice psychiatry in Tennessee, Texas, and Ohio. (Id. at 246.) Dr. Brown’s specialized training in the field of GID includes pursuing such training with experts at the University of Rochester, Case Western Reserve University, and the Institute of Living in Hartford, Connecticut. (Id.) He has published articles on GID and transgender issues in approximately twenty-six journals and has had about forty abstracts published from scientific meetings. (Id. at 246-47.) Dr. Brown has published one scientific abstract on the issue of prison inmates with GID and currently has one paper being considered for publication. (Id. at 248.) He has conducted research on “gender phenomenon” since the mid-1980s, some of which has been specific to GID and transsexualism, some on prison issues with GID, as well as a variety of other transgender phenomenon including transvestism. (Id. at 248-49.) Dr. Brown has been involved in the
11
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clinical evaluation of patients with GID for about twenty-six years and evaluated or treated more than 500 patients with gender identity concerns. (Id. at 249.) He is a member of WPATH and holds the position of secretary/treasurer for that organization. (Id.) Dr. Brown’s correctional experience consists of working for one month as a staff psychiatrist in two maximum security prisons in Ohio and working for six months part-time in a forensic psychiatric facility for criminally insane inmates. (Id. at 250.) He has evaluated five prison inmates with GID. (Id. at 251.)
Defendants’ witness Dr. Daniel Claiborn is a psychologist who has been licensed in Missouri and Kansas since 1980. (Id. at 335.) He holds a Ph.D. in counseling psychology. (Id. at 336.) He is a member of the American Psychological Association and is the chair of the ethics committee of the Kansas Psychological Association. (Id. at 339.) Dr. Claiborn has a psychotherapy practice which covers “all the dimensions of psychopathology, basically[,] including depression, anxiety, marital problems, relationship issues, and some unique categories like eating disorders.” (Id. at 346.) He has a special niche working with gay and lesbian clients in his community and for the past twenty years has had a steady flow of those clients. (Id.) Since the early 1980's, Dr. Claiborn has had one to three transgender clients per year. (Id.) In his private practice he has had approximately fifty clients who suffer from GID or have transgender issues. (Id. at 347.) Dr. Claiborn is trained to treat mental disorders such as anxiety and depression. (Id. at 353-54.) Dr. Claiborn has been an expert witness in approximately sixty-six cases between 2004 and October 2006. (Id. at 378.) About 20% of his work consists of seeing patients
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and 80% is consulting or expert witness work. (Id. at 379.) Dr. Claiborn has not done any research on GID and has not published any articles or books on GID. (Id. at 379-80.)
Eugene E. Atherton is the defendants’ security expert. He is a retiree of the Colorado Department of Corrections, and also acts as a private consultant in criminal areas of criminal justice. (Id. at 406.) He has worked in corrections since 1975. (Id.) A good portion of Atherton’s employment with the correctional system has focused on security issues, including as warden at medium and maximum security institutions, and assistant director of prison operations for the western region of the Colorado Department of Corrections. (Id. at 408.) Since 2004, Atherton has worked as an expert witness in various cases. He also published the only book on use of force in corrections. Id. at 409. He does technology work for the National Law Enforcement and National Technology Center out of Denver, on a national level, which requires him to communicate with a number of states and agencies on security and safety issues as they relate to technology. (Id. at 410.) Atherton works approximately thirty hours per week, visits jails and prisons and interacts with staff, and is currently building an organization in the Rocky Mountain states for viewing and assessing technology among agencies, all related to safety and security. (Id. at 41011.) Approximately once or twice a year, he gets called to the National Institute of Corrections as a subject matter expert on issues of security and safety. (Id. at 411.)
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2. Plaintiffs According to Dr. R. Ettner, all three plaintiffs have severe GID.3 (Trial Tr. vol. 1, 43, Oct. 22, 2007.) Dr. R. Ettner testified that, at a minimum, plaintiffs require hormone therapy to treat their severe GID. (Id.) Hormone therapy is medically necessary for the plaintiffs because nothing short of that treatment will provide an attenuation or relief from the severe distress caused by GID at that level. (Id. at 55.) According to Dr. R. Ettner, plaintiff Fields looks like a woman, has large breasts, and is “very feminine in appearance.” (Id. at 51.) The prison guards refer to Fields as “she, I mean he.” (Id.) Fields “is fully feminine in her presentation and in her appearance.” (Id.) Dr. R. Ettner testified: Andrea Fields is one of those individuals who thought she was a girl when she was growing up, and always behaved and lived as a girl. She never even tried to live as a boy. Even though, for instance, she was punished for playing with nail polish, she never ever attempted to be anything other than what she thought she was. (Id.) Dr. R. Ettner says Plaintiff Davison looked “fairly feminine” in appearance. (Id. at 52.) Davison had some breast growth and a female hairstyle, and attempted to present with female mannerisms. (Id.) As a result of using hormones for a period of time, Davison had some of the physical manifestations of female secondary sex characteristics, which come on with hormone usage. (Id.) Davison appeared to have other psychiatric disorders
3
Dr. R. Ettner personally interviewed the three plaintiffs in this case, adm inistered psychological testing, and reviewed medical records that she was provided with. (Trial Tr. vol. 1, 43, Oct. 22, 2007). She m et with each plaintiff for approxim ately three and a half hours. (Id. at 44.) Most of this section is taken from Dr. R. Ettner’s testim ony regarding her interviews of the plaintiffs. (See id. at 42-58.)
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as well as GID. (Id.) Davison had previously sought treatment for depression, and Dr. R. Ettner believes that Davison had a personality disorder. (Id. at 53.) Davison sought treatment for GID at the Pathways Clinic in Milwaukee. (Id.) Davison made several suicide attempts in the past. (Id.) Davison is married to a woman and has two children. (Id. at 71.)
According to Dr. R. Ettner, plaintiff Vankemah Moaton is “a bona fide transsexual.” (Id. at 54.) Prior to incarceration, Moaton was living and working as female and everyone, including family, regarded Moaton as a female. (Id.) Moaton looks like a female in that Moaton has female bone structure, a female hairstyle, a voice that is entirely female, a waist to hip ratio that appeared female, breast development, no facial or body hair, and a lack of the muscle mass that is characteristic of genetic males. (Id. at 58.) Moaton served in the Army Reserves from 1995 to 2003. (Id. at 71.)
3. Gender Identity Disorder4 a) Dr. R. Ettner
Dr. R. Ettner testified that GID is: a rare condition in which an individual has the persistent idea that they are or wish to be a member of the opposite sex, and the persistent feeling that their own body is inappropriate or wrong, and they desire to rid themselves of the characteristics of the sex they were born with and attain the characteristics of the other sex. (Trial Tr. vol 1, 23, Oct. 22, 2007.) The criteria for the diagnosis is set out in two places, the International Classification of Disease (“ICD”), and the DSM. (Id. at 24-25.) The ICD and the DSM “are nomenclature, in one case of all medical and psychiatric disorders, and
4
This section sets forth relevant testim ony with respect to defining and diagnosing GID from witnesses Dr. R. Ettner, Dr. F. Ettner, Dr. Burnett, Dr. Brown, and Dr. Claiborn.
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the other psychiatric disorders that mental health professionals need to familiarize themselves with and treat.” (Id. at 25.) GID affects one in 11,900 genetic males. (Id.) The best way to diagnose it is “that they come in and tell us.” (Id. at 24.) An individual will seek out a professional and relate a history of gender dysphoria or history of feeling trapped in the wrong body. (Id.) “And that’s usually causing them distress, at least enough to bring them to a mental health professional.” (Id.)
The intensity of the distress varies depending on the severity of the disorder. (Id.) “For some people the disorder is so intense and so severe, that they simply cannot function unless they do something to correct this disorder. For other people the discomfort is less intense, and they are able to manage the condition over a lifetime.” (Id.) Taking a history of a client is important in diagnosing GID because the diagnosis is partially based on the duration of the symptoms and the feelings. (Id. at 26.)
Dr. R. Ettner’s GID clients have some common characteristics: People who have severe Gender Identity Disorder, what we refer to as transsexualism, will give a lifelong history, often beginning as early as three or four. Sometimes they say that they thought they were a girl until they realized at a later age they weren’t. They will describe a period of dressing or what we would call cross-dressing, dressing in the desired gender, often taking a mother or sister’s clothes when they’re young and wearing those. Typically they have a dislike of their genitals. Puberty is a very difficult time for these individuals. And they will track along their lifeline various stigmata of gender confusion or gender disorder. . . . .
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They try to rid themselves of the secondary sex characteristics.
So a male will shave their body hair, oftentimes even before they know the name of this disorder or what it is that they’re experiencing. They’ll tuck their genitals. They will, you know, try to appear and be perceived as a member of the other sex, if not publicly for fear of being punished or shamed, at least privately when they feel safe they’ll try to restore some sense that when they look in the mirror what they’re seeing feels like who they really are. . . . .
Even children, often very young, will show Gender Identity Disorder. They know nothing about hormones, they know nothing about surgery, but they believe that they are or they very much want to be a member of the other sex.
So, for instance, a young boy will put on a dress or nail polish. And oftentimes they’re punished or shamed for doing that. They’ll continue. They’ll play mostly with girls when they have the opportunity. They won’t like rough and tumble play.
(Id. at 26-27.)
According to Dr. R. Ettner, there is no definitive test to say whether someone
has GID. (Id. at 28.) However, there is no controversy over the existence of the disorder.
(Id. at 42.)
b) Dr. F. Ettner
Dr. F. Ettner testified that, based on his medical knowledge and experience
treating transgender patients, GID is a serious health condition. (Id. at 93.) He stated:
Those individuals, with Gender Identity Disorder who express dysphoria, not being in the right body, where the brain is not in concert with their physical appearance, will have a lot of dysfunction. Initially it may present as depression, lethargy, and they will then come to my attention. If not treated, whether it be by talk therapy and/or hormones, they can develop serious medical problems.
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(Id. at 94.) The medical problems include further depression, morbid depression, and suicidal ideation. (Id.) A family physician may diagnose GID. (Id.) In practice, Dr. F. Ettner will consult with other experts, namely, gender therapists, psychologists, psychiatrists, or social workers to confirm his suspicions of GID. (Id. at 94-95.) GID varies in its severity and is a generally accepted medical condition. (Id. at 128.)
c) Dr. Burnett Dr. Burnett acknowledges GID as a serious health condition that requires evaluation and treatment. (Trial Tr. vol. 2, 227-28, Oct. 23, 2007.)
d) Dr. Brown Dr. Brown testified that once a person has reached the clinical significance threshold, by definition it becomes a clinical diagnosis that warrants medical attention. (Trial Tr. vol. 3, 259, Oct. 24, 2007.) Once the clinical threshold is reached, a person will have “significant symptomatology that in most cases warrants some type of individualized treatment.” (Id.) There is no controversy among professionals who work in the GID field that it is a serious health condition. (Id. at 260.) On the other hand, there is the following controversy among professionals working in the field of GID: There are a lot of things that are in the DSM, a lot of diagnoses in the DSM that have substantial medical components. And again, there’s no bright line in medicine between what’s socalled medical and so-called psychiatric. And the DSM is very clear on that in the preamble, because there is substantial overlap in most of our conditions. So, there are some people who believe that because it’s likely that there are biological underpinnings to Gender Identity Disorder that that’s predominantly a medical disorder and, therefore, should be in the list of medical conditions or neurological conditions as opposed to a psychiatric condition.
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But whether it exists at all and whether it’s serious, those things are not controversial. It’s a matter of placement.
(Id.)
The mental state of a person presenting with GID who is not receiving
treatment varies:
Usually the people that make it to me through referral sources from all over the country, have at least moderate to severe form of the disorder.
And prior to receiving treatment they are very preoccupied with their condition, spend considerable amount of their time, effort, energy and resources trying to obtain treatment in the form of psychotherapy hormones, and in some cases ultimately sex reassignment surgery.
They uniformly have gender dysphoria which is not a diagnosis but an amalgam of symptoms that includes depression, anxiety and irritability mixed together.
Frequently they have suicidal ideation and have had suicide attempts in the past.
They often harbor thoughts of wanting to engage in what I would call surgical self-treatment. In the literature it’s sometimes described as genital self-mutilation or autocastration as a way to rid themselves of the hormones associated with the testicles.
They’re often very desperate, frantic impaired people who are looking for treatment from someone who knows what they’re doing in this area, and unfortunately that’s limited to very few people.
(Id. at 262.) Generally, Dr. Brown diagnoses GID based on a two- to three-hour face-to-
face clinical interview, his experience, and all of the records that he can find. (Id. at 263.)
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e) Dr. Claiborn Dr. Claiborn testified that, in his opinion, GID is not a mental disease or disorder. (Id. at 357.) He believes that a person who has GID does not typically suffer from an impairment in psychological functions. (Id. at 364.) According to Dr. Claiborn, people with GID can have mental disorders such as depression and anxiety, but those disorders are not directly a result of being transgendered. (Id. at 367.) Dr. Claiborn uses the DSM in two main ways, for filling out insurance forms and in some cases for forensic evaluations. (Id. at 361.) He testified that the DSM is not constructed to be helpful to therapists because it does not address the causes of disorders. (Id. at 361-62.)
4. Treatment for Gender Identity Disorder a) Dr. R. Ettner
Dr. R. Ettner testified about the treatments for the distress that accompanies severe GID. The treatments are referred to as “triadic treatment,” which consists of, 1) a real life experience which helps the person socially take on the role and life that they want in the preferred gender; 2) hormones; and 3) surgical treatments involving genital alteration. (Trial Tr. vol. 1, 29, Oct. 22, 2007.) These treatments are set out in the Standards of Care, which is published by WPATH. (Id. at 30.) The treatments are also found in the DSM-IV treatment manual, a book that accompanies the diagnostic manual, as well as in other handbooks for clinicians and for professionals in the medical and mental health fields. (Id.) The Standards of Care “are a document that articulates professional consensus about the treatment of gender identity disorders, and it’s produced by the
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WPATH organization and distributed throughout the world to organizations such as World He[alth] Organization and other providers of health care worldwide.” (Id. at 30-31.)
As a treatment, hormone therapy helps those with GID by providing them with a level of well-being because the effect on the brain is one that restores them to a nondistressed, non-dysphoric level of well-being. (Id. at 31.) Dr. R. Ettner’s clients who started taking hormones while under her care have experienced remarkable changes in their level of well-being, in their overall mental health, and in the way that they conduct their lives. (Id. at 32.) For many people, hormonal treatment is sufficient to manage and reduce the gender dysphoria. (Id. at 33-34.) Whether a client should have hormone therapy depends on the intensity of the disorder and the distress that the disorder causes him or her. (Id. at 35.) If it impairs the person’s functioning, occupationally, socially, or in another major arena, and it cannot be managed without medical treatment, at that point one would recommend medical intervention. (Id.)
Hormone therapy is not required for all persons with GID. (Id. at 39.) Dr. R. Ettner has refused to recommend hormone therapy for a client. (Id. at 36.) One common reason for such a decision is that the person does not have the intensity of the disorder to meet the criteria for that treatment. (Id.)
There is a role for psychotherapy in treating GID, which consists of four components: 1) educating the patient about the disorder; 2) helping the patient understand and navigate some of the social consequences that accompany GID; 3) following up with the patient after some treatments; and 4) offering support, helping the person find
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reputable physicians and support groups or other venues for assistance. (Id. at 37.) However, psychotherapy cannot talk someone out of GID; it is not a cure. (Id. at 38.)
If hormone therapy is medically necessary but not provided, the person is at risk for autocastration, suicide, substance abuse, and depression. (Id. at 39.) The psychological risks of being taken off of hormone therapy are depression, autocastration, and suicide. (Id. at 41.)
b) Dr. F. Ettner The nature of the treatments that Dr. F. Ettner prescribes depends upon the level of severity of the GID. (Trial Tr. vol. 1, 101, Oct. 22, 2007.) The symptoms of someone that he considers severe enough to need hormone therapy are: These are individuals that will present to me and describe a history of depression, anxiety, sleeplessness, inability to concentrate, inability to maintain their job, family conflict. And no matter what they’ve done, whether they have crossdressed secretively, it’s not sufficient. They’ll then be referred for therapy and maybe the therapy is not gonna be sufficient and the therapist will then refer those clients to me, and those patients will then receive hormonal therapy. (Id. at 101-02.) Hormone therapy is not medically necessary for every GID patient that has come to Dr. F. Ettner; approximately five to ten percent of his GID patients have been able to go without hormone therapy. (Id. at 102.) For those patients with severe GID for whom he prescribes hormone therapy—and in some cases surgery—psychotherapy on its own is not effective as a treatment. (Id. at 103.)
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The therapeutic effects of hormones on the body of a patient with GID are:
Patients who have GID and qualify for hormones will experience initially – the organ system that will experience the most benefit initially will be the brain.
The dysphoria will tamp down, dysthymia, the depression, anxiety will all tamp down initially.
Other organ systems that eventually will respond, and it will take a good couple months of therapy, include secondary sexual characteristics, in the case of the male to female, breast development, fat deposition on the hips, decrease in muscle mass on the chest, softening of the skin.
(Id. at 107-08.) The birth gender hormones begin to be suppressed, “almost to the point
of suppression that is sufficient to represent the gender that that individual is transitioning
into.” (Id. at 108.)
When hormone therapy is withdrawn from a GID patient, the following occurs:
So after being on hormonal therapy for a significant period of time, couple of years, even a year, there could be enough suppression that that testosterone now approaches female levels or the same as female levels withdrawing that hormone, withdrawing estrogens create this cascade of events, the systemic events of stress.
And so stress is monitored in our bodies by the amount of hormone that will secrete or prehormone that will secrete in our pituitary glands. And this will stimulate our adrenal glands that create lots of cortisol. And cortisol then affects all these target systems.
For example, in muscles we’ll see some muscle wasting, in nerves we’ll see neuroexcitability. We’ll see fatty deposition. There’ll be more of a tendency for blood pressure to increase because of water and salt imbalances.
And all of these things can lead to diseases – heart disease, hypertension, diabetes.
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(Id. at 110-11.) Termination of hormone therapy does not reverse all of the change that occurred to secondary sexual characteristics. (Id. at 111.) In a male-to-female person, gynecomastia or increase in breast size will remain, a lot of the fatty deposition will stay, and some of the muscle wasting will stay. (Id.) On the other hand, hair growth can come back if there are enough hair follicles still present and the natal hormones may begin to increase and create dysphoria again. (Id.) Termination can affect the neurological system and with neuroexcitability, seizure disorder can be seen, and sleeplessness, anxiety, and further depression can occur. (Id.) Suicidal ideation, if it was present, would be accelerated. (Id.) The effect to the metabolic muscle system, besides muscle wasting, creates higher glucose levels and can lead to diabetes, more water loss, and higher hypertension. (Id. at 112.) Termination can soften the bones. (Id.) Termination of hormone therapy also affects the cardiovascular system by way of water retention, which increases plasma volume and increases the pressure within the system, and the release of epinephrine and norepinephrine which stimulates the body and can constrict the blood vessels that convey blood to the organs and make the heart beat faster which increases blood pressure. (Id. at 113.) Finally, withdrawal of hormone therapy affects the immune system due to decreased protein. (Id.) Lymphocytes made in the lymph system that protect people from infection are suppressed. (Id.) Every patient who is taken off hormones will experience these risks chemically. (Id. at 114.) Some patients will experience the effects clinically, others subclinically. (Id.) All patients taken off hormone therapy need to be followed, and all of these organ systems need to be monitored. (Id.)
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Based on these risks, it is not medically acceptable to take someone off of hormone therapy if they do not have to come off for some other medical reason. (Id.)
Based on a review of plaintiff Fields’ medical records, Dr. F. Ettner formed an opinion to a reasonable degree of medical certainty about the likely effects of withdrawing Fields from hormones. (Id.) He opines that withdrawal could have serious adverse effects on Fields’ health and well-being:
I think, you know, based on the records and looking at her as a transgendered woman, she’s diminutive, she had had breast implants, she had been on hormones for a period of time. All commentary about her in the records declared her as very effeminate. She was on significant amounts of hormone. She also in her laboratory tests had an elevated cholesterol. Taking her off would certainly upset her lipid balance, her cholesterol balance. It could increase her cholesterol levels to even higher levels than these are, and these are pretty high to begin with, 261. Being that 130 is normal and 261 is abnormal, it would put her at risk for heart disease. I think also in taking her off of hormones due to her presentation for such a long period of time as a female, the neuroexcitability issues would be very prominent for her, be an increased risk of seizure, increased suicidal ideation. (Id. at 116.)
c) Dr. Kallas Dr. Kallas testified about the diagnosis of and treatment for GID. He considers the DSM to be an authoritative manual for diagnosing mental health disorders. (Trial Tr. vol. 2, 173, Oct. 23, 2007.) The primary goal of hormone therapy is to reduce gender dysphoria and to improve the psychological adjustment of an individual receiving the hormone therapy. (Id. at 174.) Hormones are medically necessary for some
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individuals. (Id.) Hormone therapy is “probably the most common and accepted treatment
for those with severe gender dysphoria” although “it’s not the answer for everybody.” (Id.
at 175.) The most widely referenced set of standards for the treatment of severe gender
dysphoria is the Standards of Care. (Id.)
When asked whether there may be individuals for whom hormones are the
only satisfactory route to alleviate their gender dysphoria, Dr. Kallas responded:
I’m hesitant to agree with that statement exactly as worded.
The Harry Benjamin standards speak to a number of routes for treatment, and those include real life experience, hormonal treatment, surgical reassignment, and – I wouldn’t say necessarily that for every single individual with severe gender dysphoria that hormonal treatment is – would be required, but, again, it’s a mainstay of treatment, it’s one of the primary ways, easily the most common ways that severe gender dysphoria is treated.
I would be hesitant to say that there are individuals where hormones would be the only way that the dysphoria could be – could be alleviated, but there are certainly individuals where it may be difficult to envision that other routes would be as satisfactory.
(Id. at 176.) He went on to state:
I do believe there are individuals where hormonal treatment is medically necessary for the gender dysphoria. Although I would be hesitant to say that it could be the only route in which they could accommodate the gender dysphoria.
There may be individuals – it’s difficult to imagine that they could successfully accommodate the gender dysphoria without hormones. I think what I’m saying is very close to what you’re saying.
(Id. at 177.) By “medically necessary,” Dr. Kallas means that there are adverse
consequences to psychological well-being if the hormones are not provided. (Id.)
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To the extent that hormone therapy assists in alleviating gender dysphoria,
withdrawal may bring about reemergence of that dysphoria. (Id. at 178.) Thus, the person
may experience depression, anxiety, difficulty with social or occupational functioning, and
suicidal ideation. (Id. at 178-79.)
d) Dr. Brown
Dr. Brown testified that some form of treatment is indicated for anyone who
reaches the clinical threshold of severity to be diagnosed with GID. (Trial Tr. vol. 3, 269,
Oct. 24, 2007.) Severe GID causes distress that can be relieved by following the treatment
set forth in the Standards of Care. (Id. at 269-70.) As to whether GID is curable, Dr. Brown
stated:
I’ll use my personal experience in answering that question. I’ve had patients that I started treatment, went through the [S]tandards of [C]are sequential treatments that are described, and in individuals that I’m thinking of in this experience these individuals did have sex reassignment surgery, and I’ve been able to follow them for as long as 15 years after the surgery, and by any definition of the word “cure” from any dictionary or any medical text, they no longer have the diagnosis of GID. Meaning that the symptoms for which they were treated no longer exist for a significant period of follow-up time afterwards.
And cancer examples are usually five years. If a person doesn’t have any evidence of that cancer after treatment five years later they’re considered cured. Prior to that they’d be called in remission. And certainly if you follow someone who has had all of these treatments for five to 15 years afterwards with no recurrence of any symptoms of GID at all, I think that that would meet the definition of a cure.
(Id. at 271-72.) For some patients, GID can be adequately treated with a combination of
psychotherapy and hormones. (Id. at 272.) For individuals with severe GID, psychotherapy
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alone has never been adequate treatment, “not just in my experience but also in the
literature over decades.” (Id. at 272-73.) With regard to the efficacy of hormone therapy
in treating GID, Dr. Brown testified:
In my clinical practice the patients who are properly diagnosed and followed and following [sic] the [S]tandards of [C]are, again, hormonal treatment really has some fairly striking positive results in reversing or ameliorating a lot of the symptomatology that the patient is presented with.
And these are in the domains of their psychiatric functioning as well as in changes in the body. And there’s some interrelationship between the two, but there are emotional and psychiatric responses to hormonal medications that actually precede any changes in the body of the person.
(Id. at 273.) There is no other equally effective treatment for these patients. (Id.)
Inmates whose hormone therapy has been interrupted and have been seen
by Dr. Brown have been evaluated as follows:
It’s uniformly a very bad thing to do medically and psychiatrically.
The patients who had gender dysphoria that may have been largely ameliorated or at least partially controlled, that gender dysphoria comes back fairly rapidly, and often it comes back in a more severe and potentially more dangerous form than it was prior to when they received hormones in the first place.
They may develop suicidality for the first time if they didn’t have it before. They may again harbor thoughts of surgical self-treatment, which would mean thinking about removing the testicles as a way to self-treat by removing the testosterone from the body.
They certainly would get depression symptoms, anxiety symptoms, irritability symptoms, crying, having difficulty functioning, all of these things would be likely in patients who were previously stabilized on cross-sex hormones.
(Id. at 274.) As to whether treatment for GID was optional, Dr. Brown testified:
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Again, once a person reaches the clinical threshold and they have the diagnosis, I don’t consider treatment optional. It’s individualized to a given patient, but the treatment itself is not optional.
Just as in a patient who has prostate cancer, the urologist will present, well, here are your treatment options. You can get radiation, you can get surgery, you can get a combination of the two, you can get chemotherapy. Here are the probabilities in your given case of the likelihood of success with each individual treatment, but the effects are this, this, and this.
It’s really something that you need to work out with me what treatment you want to choose, but the treatment itself is not optional unless the person decides that they don’t want to continue to live.
(Id. at 278.) Dr. Brown has conducted extensive research in the area of genital self-harm
and described his findings as follows:
[T]hese are tentative conclusion[s] based on my research which is still ongoing, but the first conclusion was that genital self-harm is in fact surgical self-treatment in prison settings or in other institutional settings where a person with GID, usually moderate to severe, is denied or blocked access to cross-sex hormonal treatment and then they take matters into their own hands as it were and surgical self-treat [sic], and that that’s much more common in incarcerated institutionalized settings than it is for people who are in the free world.
(Id. at 281-82.)
In Dr. Brown’s experience, anti-depressants cannot adequately treat GID
because they “don’t at all treat the underlying condition.” (Id. at 284.) Also, GID cannot be
adequately managed through psychotropic medications:
No, I don’t believe so at all. You may be able to take the edge off of some symptoms by using a variety of medications, but it’s like putting a Band-Aid on a burst appendix or giving somebody with a burst appendix pain medication. You know, you might make them feel a little bit better but the underlying condition is what needs to be treated.
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(Id.) Brown says that under the Standards of Care, a patient is ready for hormone therapy
under the following circumstances:
In terms of being ready for hormones you have to first be eligible. So eligibility would involve having a prior real-life experience or, in the alternative, having a minimum of three months of psychotherapy. Being in the age of majority, so we’re not treating children in this setting.
And in addition to that, some consolidation of their crossgender identity and satisfactory control of other psychiatric comorbidities that may be present at the same time because there are often other diagnoses present in people who have GID.
(Id. at 286-87.) Gender identity cannot be changed:
Since gender identity is a subjective construct, it’s in the brain, it’s not in the body, I think people’s gender identity is what it is.
Now, their body may not match what their gender identity is in their brain. But there’s nothing that I or anyone else can do medically, psychiatrically, or surgically to change someone’s gender identity in their brain. And that’s why we seek to change the body, because we don’t know of any way to change the brain to match the body.
(Id. at 297.)
Psychotherapy is not an acceptable means of treating GID:
Well, for example, if you have a marital problem and you’re in therapy for the marital problem, the psychotherapy, the intent of the psychotherapy is to help work through and resolve the marital problem. So it’s primary treatment for that problem.
In patients who have GID the psychotherapy is not intended to nor designed to cure or eliminate the symptoms that they have; it’s to help them understand more about themselves, it’s educational, it’s to help them understand the implications of the treatment alternatives that they’re being presented with potentially by other physicians or surgeons, and to help them adjust to who it is that they are because that’s never gonna change.
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So, and similar to homosexuality, you don’t change a person’s sexual orientation by working with them psychotherapeutically. You help them to understand that this is who they are and that that’s not gonna change no matter how much psychotherapy they get. (Id. at 330-31.) A treatment approach whereby only psychological treatments are available to help GID patients accept their biological sex would be “absolutely inconsistent” with the triadic approach to addressing GID. (Id. at 332.) 5. DOC Policy Prior to Act 105; DOC Reaction to Act 105;
DOC Medical and Mental Health Treatment a) Dr. Kallas
Dr. Kallas testified that in approximately 2002 the DOC established the gender identity committee, which consists of Dr. Kallas, Dr. Burnett, Bureau of Health Services Director James Greer, the warden of an institution, and a psychologist of an institution. (Trial Tr. vol. 2, 170, Oct. 23, 2007.) The role of the gender identity committee “is to consult on policy with respect to gender identity disorder, to review individual cases, to make determinations about hormonal treatment, especially starting new treatment, and then to consult in a clinical fashion to the psychologists and psychiatrists who are within the institutions about gender identity disorder matters.” (Id.) Prior to Act 105, a person who came into the prison system on hormone therapy would continue such therapy unless the prison doctor had a reason to believe that the hormones were inappropriate. (Id. at 171.) When an individual came and requested to be put on new hormone therapy, that request would go to the GID committee, “and there’s a process that’s described in our policies
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about how that would play out.” (Id.) The DOC’s policy prior to Act 105 was set forth in Executive Directive 68. (Id.)5

5
Executive Directive 68 provides:

SUBJECT: Scope of Services for the Treatm ent of Gender Identity Disorder

I.

Background

It is the policy of the W isconsin Departm ent of Corrections (DOC) to provide appropriate treatm ent services to offenders m eeting the criteria for a diagnosis of gender identity disorder (DSM-IV 302.85). Practitioners shall take correctional and com m unity standards of care into consideration when providing treatm ent services.

II.

Definitions

Diagnostic and Statistical Manual, 4th Edition, Revised (DSM-IV): The standard manual of psychiatric diagnoses and classification codes.

Gender Identity Disorder: A psychiatric disorder in which a person is not satisfied and is seriously dysphoric with regard to their anatom ical gender. In general, this condition is a stable, nonviolent condition and not due to psychosis, but it may accompany other mental disorders.

Hormonal Therapy: The use of hormones to stimulate the development of secondary sexual characteristics such as enlargement of breasts and which may exert systemic effects such as body hair loss.

Sexual Reassignment Therapy: Treatm ent for gender identity disorder in which one or m ore of the following are used: horm onal m edications, surgical procedures to alter a person's physical appearance so that he/she appears m ore like the opposite gender and psychological counseling.

II. [sic] Guidelines

A. No surgical procedures for the purpose of sexual reassignm ent shall be provided to any offenders incarcerated in the W DOC.

B. After consultation with the Gender Identity Disorder Comm ittee, horm onal therapy for severe gender dysphoria may be initiated by the W DOC physicians. The Gender Identity Disorder Com m ittee will consult with a non-W DOC consultant before approving or denying a request from a W DOC physician for initiating horm onal therapy. If the Com m ittee and the non-W DOC consultant do not agree regarding initiating horm onal therapy for severe gender dysphoria, the DOC Medical Director and non-W DOC Consultant will meet with the Secretary's Office to reach a decision.

C. An offender who is receiving horm onal m edications as a part of an established sexual reassignm ent therapy regim en under the supervision of a m edical doctor at the tim e of incarceration may be continued on horm onal medications provided that the offender cooperates with the DOC in obtaining confirm ation of his/her previous treatm ent. If an offender chooses to discontinue horm onal medications and then wishes to restart horm onal m edications, the comm ittee referenced below will evaluate the request and make a determ ination.

D. The offender m ust agree to sign DOC-1163, Confidential Inform ation Release Authorization, allowing DOC m edical and mental health staff access to medical and mental health records regarding all prior treatm ent related to gender identity disorder.

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Act 105 takes away the ability of DOC medical personnel to provide hormone
therapy to individuals with GID. (Id. at 182.) Also, because of Act 105, the DOC has not
evaluated two inmates who may suffer from GID to determine whether hormone therapy
E. Offenders identified or claim ing to suffer from gender identity disorder shall have access to the full range of m ental health therapies available through the W isconsin DOC. They shall have access to therapies in which they may explore their am bivalence, confusion and conflict around sexual identity as well as those services focusing on enabling those with identifiable mental health problem s to better adjust to institutional living.
F. Self-inflicted genital m utilation or other form s of self-m utilation are not consistent with successful sexual reassignment therapy.
Facility Placement
A. In the event that an offender who has completed a surgical sexual reassignment treatm ent program is com m itted to the DOC, that offender shall be placed in a correctional facility appropriate for his/her reassigned gender.
B. In general, offenders shall be placed in facilities in accordance with their gender as determined by their external genitalia.
Name and Apparel for Inmates with Gender Identity Disorder
A. The DOC shall use the name of the offender as it appears on the Judgement [sic] of Conviction. The only exception to a name change will be through an order of a judge to have the name of the offender legally changed after the Judgement [sic] of Conviction. A new Judgement [sic] of Conviction must be issued or the court order must specifically state "change all records".
B. Property and apparel shall be consistent with the offender's determ ined gender.
Gender Identity Disorder Management and Treatment Committee
A. Composition: The Com m ittee shall be com posed of the DOC Medical Director, the DOC Mental Health Director, the Bureau of Health Services Director or designee, an assigned doctoral prepared psychologist, and a W arden or designee. In addition, a m edical specialist in the treatm ent of gender identity disorder from the com m unity m ay be retained as a consultant on specific cases. If the offender is identified as a sex offender, the Chief Psychologist, Sex Offender Specialist shall participate as a member.
B. Function: The com m ittee shall be convened to address issues in the managem ent of individuals with gender identity disorder after review and referral by the m edical director, m ental health director or Bureau director. Inm ates may be referred to the m edical director, m ental health director or bureau director to address issues of concern through the com m ittee by institution W ardens or their designees.
The com m ittee shall advise the medical director or treating physician on issues such as appropriate diagnoses, complications of treatm ent, m anagem ent issues, and/or the design and im plem entation of a plan of care.
(Tr. Ex. 2.)
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is medically necessary for them. (Id.) Dr. Kallas had concerns about Act 105 because it takes the medical decision out of the hands of health care practitioners with respect to the provision of hormones. (Id. at 183.) He expressed those concerns to his boss, Dr. Burnett, and also to Mr. Margolis, the legislative liaison in the DOC Secretary’s office. (Id.) In an email in which Dr. Kallas was responding to a request for information about legislation that takes away the ability to provide hormone therapy (which ultimately became Act 105), Dr. Kallas stated in relevant part:
The cost of discontinuing treatments would vary from inmate to inmate. Overall hormones tend to improve psychological well-being for those with gender identity disorder, thus some inmates may stop hormones with relatively little impact, however, others may experience depression, anxiety, disruptive behavior or suicidality. Additional resources may be needed for time in segregation, clinical observation, or the Wisconsin Resource Center. Additional suicides or suicide attempts may occur based on such a policy. (Id. at 183-85, Ex. 11.) The email also stated: “It would be contrary to the medical judgment of the Wisconsin Department of Corrections medical director and mental health director.” (Id. at 185, Ex. 11.) When asked why taking away medical decision-making was a concern for him, Dr. Kallas stated: “It’s difficult to articulate because it seems so obvious to me, that it’s important that doctors are ably [sic] to use their clinical judgment with respect to conditions that are significant, especially when it pertains to medically necessary treatment.” (Id. at 186.) Dr. Kallas testified that Act 105 takes away the ability to provide medically necessary treatment in some cases. (Id. at 187.) He is unaware of any other mental health
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treatments for medically necessary conditions in individuals or inmates that are barred by
law or regulation with the DOC. (Id.)
In March 2005, Dr. Kallas testified before the legislature with respect to the
bill that became Act 105. (Id. at 187-88, Ex. 17.) He informed the legislature that the
Standards of Care are considered to be the most authoritative guidelines for the treatment
of GID. (Id. at 189.) Dr. Kallas emphasized that hormone therapy was a valid treatment
on it own, because
there were some in the legislature who had the belief, or maybe the sponsors of the bill had the belief that starting an individual on hormonal treatment would commit the department to provide surgery.
In other words, that it would start an inmate down the road where there was more of an argument for surgery later on. And this was my effort to try to dispel that notion.
In other words, the individuals, many individuals find successful accommodations just with hormonal treatment and do not desire to go on or need to go on to surgical reassignment.
(Id. at 189-90.) He also testified before the legislature that the DOC policy as outlined in
Executive Directive 68 was similar to those of many other states and the Federal Bureau
of Prisons. (Id. at 190.) As for the effect of withdrawing hormones from an individual, Dr.
Kallas added:
[I]f the department were to take away hormones from individuals with gender identity disorder, those individuals may become distressed and despondent, may go to the point of clinical depression or an anxiety disorder or suicidality.
It may result in an increase in staff time for mental health care or placement in WRC, which is the Wisconsin Resource Center, which is our facility for acute care.
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It also may lead to disruptive behavior and segregation time, or an increase in psychotropic medications particularly antidepressants, which would offset any cost savings that would be directly attributable to not prescribing hormones. (Id. at 190-91.) DOC prisons have mental health resources consisting of psychiatric and psychological care. (Id. at 197.) A typical institution with approximately 1000 inmates has a couple of days per week of psychiatric coverage. (Id.) It has four or five full-time psychologists who work Monday through Friday and provide on-call coverage over the weekend. (Id.) In terms of mental health services available to inmates, psychiatrists perform evaluations for psychotropic medications and follow inmates who are on psychotropic medication. (Id.) Psychologists provide evaluations for a number of different purposes and provide treatment which may consist of crisis intervention, counseling, psychotherapy, or monitoring inmates for mental health symptoms. (Id.) It is not uncommon for DOC inmates to have thoughts of suicide. (Id. at 198.) Correctional officers and front line staff are trained in suicide prevention annually. (Id.) Psychology staff intervenes from a mental health perspective if someone is having suicidal thinking, and staff would be available for counseling or for placing someone on suicide watch. (Id.) Psychology staff participates in the decision whether to send an inmate to the Wisconsin Resource Center, which is more like a hospital setting. (Id.) These services are available for any inmate who is at risk for harming himself or herself. (Id. at 198-99.) The DOC system is also equipped to deal with inmates who have depression, anxiety, psychosis, mood disorders, and adjustment disorders. (Id. at 199-200.) These services
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would be available to an inmate coming into the system on hormone therapy and had hormone therapy withdrawn under Act 105. (Id. at 200.)
b) Dr. Burnett Dr. Burnett testified about the health services that are available for DOC inmates. (Id. at 212.) Most DOC facilities have a health services unit centered around primary care, which includes mental health care. (Id. at 213.) Most of these units have nursing staff, a physician, and psychiatry and psychology staff. (Id.) The medical portion is similar to an outpatient clinic in the community. (Id.) To obtain care, an inmate puts in a health service request, which is evaluated initially by nursing staff and then addressed by the appropriate person. (Id.) There are also ongoing appointments for follow-up care or regularly scheduled visits for those with chronic medical conditions such as high blood pressure, diabetes, and hepatitis. (Id. at 213-14.) Dr. Burnett described the process by which inmates would be withdrawn from hormone therapy pursuant to Act 105. (Id. at 214.) First, the primary care physician would meet with the inmate and explain the reason for withdrawal of medication and inform the inmate about the potential side effects. (Id.) The physician would then issue an order to taper the medication over a period of about two months. (Id.) In addition, the inmate would have an appointment with psychology staff to talk about potential withdrawal symptoms and to seek follow-up case as needed. (Id.) The inmate would be monitored by health services staff. (Id.) Inmates in the DOC system may present with a variety of medical problems, including cardiovascular problems, gastrointestinal problems, endocrine problems,
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diabetes, osteoporosis, muscle weakness, and poor wound healing/subject to infection. (Id. at 216-20.) Treatment is available for these inmates in DOC institutions, or arrangements will be made to have offsite specialty care when necessary. (Id.) The DOC health care personnel do not provide medical treatment to inmates if it is not medically necessary. (Id. at 228.)
Some inmates are prescribed hormone therapy for conditions other than GID. (Id.) However, Act 105 requires the DOC to withdraw hormone therapy only from inmates who are receiving it to treat their GID. (Id.) Inmates who are receiving hormone therapy for health conditions other than GID would not be withdrawn from that hormone therapy because of Act 105. (Id.)
Dr. Burnett testified that he agreed that medical care should be left to clinicians. (Id. at 229.) He does not know of any other Wisconsin laws or DOC policies banning medical treatments for inmates. (Id. at 230.) Dr. Burnett does not believe it was medically appropriate to taper and terminate hormone therapy for inmates with GID. (Id.)
6. Security Atherton testified about the correctional environment as it relates to prison security and indicated that it is dangerous: It’s highly unique in that we have a collection of human beings that have past histories of having committed felony offenses, many of which are violent and highly aggressive in confined and very small spaces, over long periods of time. This is not like a county jail, this is – prisons are for long periods of time. So the mere fact that we do that and then over the last 20 years we’ve doubled and tripled populations in fixed spaces in corrections because of bed space explosion, it makes for a very volatile environment in which safety and the application of
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safety systems is absolutely critical seven days 24 hours a day. (Trial Tr. vol. 3, 412-13, Oct. 24, 2007.) Security concerns include violence, sale and use of drugs, manufacture of weapons, management of the mentally ill, escape, gangs, and inmate relationships including sexual relationships. (Id. at 413-14.) Aside from health issues, sexual activity among inmates has a history of being extremely dangerous and volatile and that is why there are rules prohibiting such conduct. (Id. at 414.) Sexual relationships include consensual and non-consensual sexual relationships. (Id.) An inmate’s personal appearance can make that inmate more vulnerable to sexual assault. (Id. at 419.) For example, if an inmate’s appearance is sexually suggestive: Well, you know, it’s hard for me to distinguish between behavior and physical attributes, but if an inmate is small in stature and carries themself in sort of an effeminate way, okay, then that makes that inmate an automatic target for inmates who are interested in sexual aggression or sexual relationships. (Id.) An inmate who is feminized might be a victim of assault and could be a center of conflict among the prison population. (Id. at 420.) Atherton does not believe that feminizing male inmates is consistent with the mission of the DOC because “it raises the level of risk in general populations that manage inmates who have been feminized in the male environment.” (Id. at 422.) The implication is that inmates and staff are going to get hurt. (Id. at 423.)
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Inmates can feminize themselves to some extent: There are times where they can modify their uniform and kind of roll their sleeves in a certain way or bring up the – show their midriff by bringing up the top of their uniform top. You know, in a certain way that’s typically feminine, although there are times where there are rules against that. There are ways of grooming themselves, and sometimes in violation of contraband rules by using various substances to color, you know, do eyebrow liner and blush on the face and cheeks. That’s often attempted, although in most systems I’m aware that that is prohibited by rule. (Id.) However, further feminization “will raise the level of risk specifically.” (Id. at 424.) At deposition, Atherton stated that “hormonal therapy may or may not be something – have something to do with physical appearance which are one of many ingredients that may contribute to something that supports sexual attraction from one inmate to another which may or may not arise in the form of an assault.” (Id. at 426-27.) He also indicated that “it is possible that allowing inmates to have hormone therapy will not cause an increase in sexual assault.” (Id. at 428.) Atherton testified that correctional needs, security, and safety must be considered along with medical and mental health concerns. (Id. at 431.) One overriding the other “just simply doesn’t work . . . in the correctional world.” (Id.) The Colorado Department of Corrections has a policy of allowing prisoners with GID to have hormone therapy. (Id. at 432.) Atherton believes that the policy is reasonable and has never argued that the policy should be changed. (Id.) When asked whether he agreed that the policy does not by itself create security problems, Atherton
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testified that the policy had a good history and that security is able to implement it fairly well. (Id. at 432-33.)
ANALYSIS Plaintiffs contend that enforcing Act 105 to deny medically necessary treatment to plaintiffs violates their rights under the Eighth Amendment and the Equal Protection Clause, and the rights of all transsexual inmates under the Eighth Amendment and the Equal Protection Clause. They seek a permanent injunction barring enforcement of Act 105. Defendants submit that the plaintiffs’ Eighth Amendment facial challenge fails because Act 105 is not unconstitutional in all circumstances where it would be applied. (Defs.’ Trial Br. at 3.) Specifically, not all individuals with GID want or qualify for hormones or reassignment surgery. Next, defendants contend that plaintiffs’ Eighth Amendment asapplied challenge to Act 105 fails because the evidence establishes that, “under the holding in Maggert [v. Hanks, 131 F.3d 670 (7th Cir. 1997)], Act 105 does not violate the Eighth Amendment by preventing specific forms of ‘curative treatment’ for gender dysphoria.” (Id. at 5.) With respect to plaintiffs’ Fourteenth Amendment equal protection challenges, defendants assert that hormone therapy results in a more effeminate appearance, and the more effeminate a male inmate looks, the more likely he will be victimized in prison. By eliminating the availability of hormone therapy, the defendants reason that Act 105 is rationally related to the DOC’s interests in protecting these inmates from harm and maintaining the safety and security of other inmates, staff, and the institution.
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1. Eighth Amendment Claim To establish liability under the Eighth Amendment, a prisoner must show: 1) that his medical need was objectively serious; and 2) that the state official acted with deliberate indifference to the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001); see also Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir. 2000). A serious medical need is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). Factors that indicate a serious medical need include “the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Gutierrez, 111 F.3d at 1373 (citations omitted). A medical condition need not be life-threatening to qualify as serious and to support a § 1983 claim, providing the denial of medical care could result in further significant injury or the unnecessary infliction of pain. See Reed v. McBride, 178 F.3d 849, 852-53 (7th Cir. 1999); Gutierrez, 111 F.3d at 1371. A prison official acts with deliberate indifference when “the official knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Prison officials act with deliberate indifference when they act “intentionally or in a criminally
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reckless manner.” Tesch v. County of Green Lake, 157 F.3d 465, 474 (7th Cir. 1998). Neither negligence nor even gross negligence is a sufficient basis for liability. See Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991). A finding of deliberate indifference requires evidence “that the official was aware of the risk and consciously disregarded it nonetheless.” Chapman, 241 F.3d at 845 (citing Farmer, 511 U.S. at 840-42).
Mere difference of opinion among medical personnel regarding a plaintiff’s appropriate treatment does not give rise to deliberate indifference. Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). However, deliberate indifference may be inferred “when the medical professional’s decision is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.” Id.; see also Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996) (citing as examples “the leg is broken, so it must be set; the person is not breathing, so CPR must be administered”).
“[T]o prevail on an Eighth Amendment claim ‘a prisoner is not required to show that he was literally ignored.’” Greeno v. Daley, 414 F.3d 645, 653-54 (7th Cir. 2005) (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)). On the other hand, a defendant’s contention that a medical care claim fails because the prisoner “received some treatment overlooks the possibility that the treatment [the prisoner] did receive was ‘so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate’ his condition.” Greeno, 414 F.3d at 654 (quoting Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (internal quotations omitted)).
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The court turns to a review of cases containing claims brought by prisoners with GID issues to help frame the legal landscape. The Seventh Circuit Court of Appeals has issued two opinions in this regard. In Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987), the court held that an inmate stated a valid claim under the Eighth Amendment in connection with denial of medical treatment for transsexualism. The prisoner in that case was a biological male who underwent nine years of estrogen therapy before incarceration. Id. at 410. Once incarcerated the inmate was denied all medical treatment chemical, psychiatric or otherwise - for GID and related medical needs. Id. In concluding that the complaint stated a claim, the court first found that transsexualism was a serious medical need. Id. at 411-13.
Next, the court determined that the complaint contained allegations indicating that the defendants were deliberately indifferent to that need because they allegedly “failed to provide the plaintiff with any kind of medical treatment, not merely hormone therapy, for her gender dysphoria.” Id. at 413. The court went on to say,
We therefore conclude that plaintiff has stated a valid claim under the Eighth Amendment which, if proven, would entitle her to some kind of medical treatment. It is important to emphasize, however, that she does not have a right to any particular type of treatment, such as estrogen therapy which appears to be the focus of her complaint. The only two federal courts to have considered the issue have refused to recognize a constitutional right under the Eighth Amendment to estrogen therapy provided that some other treatment option is made available. See Supre v. Ricketts, 792 F.2d 958 (10th Cir.1986); Lamb v. Maschner, 633 F. Supp. 351 (D.Kansas 1986). Both of these courts nevertheless agreed that a transsexual inmate is constitutionally entitled to some type of medical treatment.
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In Supre v. Ricketts, the plaintiff, an inmate in the Colorado Department of Corrections, was examined by two endocrinologists and a psychiatrist. These doctors considered estrogen treatment, but ultimately advised against it, citing the dangers associated with this controversial form of therapy. Instead they prescribed testosterone replacement therapy and mental health treatment consisting of a program of counseling by psychologists and psychiatrists. Given the wide variety of options available for the treatment of the plaintiff's psychological and physical medical conditions, the Tenth Circuit refused to hold that the decision not to provide the plaintiff with estrogen violated the Eighth Amendment as long as some treatment for gender dysphoria was provided. Similarly, in Lamb v. Maschner, the plaintiff, an inmate at the Kansas State Penitentiary, had been evaluated by medical doctors, psychologists, psychiatrists and social workers and was undergoing some type of mental treatment. As a result of this treatment, the court held that the defendant prison officials were not constitutionally required to provide the plaintiff with pre-operative hormone treatment and a sex change operation.
The courts in Supre and Lamb both emphasized that a different result would be required in a case where there had been a total failure to provide any kind of medical attention at all. That is precisely the type of case before us. We agree with the Tenth Circuit that given the wide variety of options available for the treatment of gender dysphoria and the highly controversial nature of some of those options, a federal court should defer to the informed judgment of prison officials as to the appropriate form of medical treatment. But no such informed judgment has been made here. While we cannot and will not prescribe any overall plan of treatment, the plaintiff has stated a claim under the Eighth Amendment entitling her to some kind of medical care.
Id. at 413-14.
The other Seventh Circuit case to address GID is Maggert v. Hanks, 131 F.3d
670 (7th Cir. 1997). In Maggert, the court affirmed dismissal of the action because the
prisoner failed to create a genuine issue of material fact that he had GID. Id. at 671.
However, the court then addressed “a broader issue, having to do with the significance of
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gender dysphoria in prisoners’ civil rights litigation.” Id. First, the court defined gender
dysphoria, “the condition in which a person believes that he is imprisoned in a body of the
wrong sex, that though biologically a male (the more common form of the condition) he is
‘really a female,’” as a “serious psychiatric disorder.” Id. Treatment, or “the cure,” for
transsexualism, was also discussed:
The cure for the male transsexual consists not of psychiatric treatment designed to make the patient content with his biological sexual identity - that doesn’t work - but of estrogen therapy designed to create the secondary sexual characteristics of a woman followed by the surgical removal of the genitals and the construction of a vagina-substitute out of penile tissue.
. . . .
Someone eager to undergo this mutilation is plainly suffering from a profound psychiatric disorder.
Id. However, prisons do not necessarily have a duty to authorize these hormonal and
surgical curative procedures:
Withholding from a prisoner an esoteric medical treatment that only the wealthy can afford does not strike us as a form of cruel and unusual punishment. It is not unusual; and we cannot see what is cruel about refusing a benefit to a person who could not have obtained the benefit if he had refrained from committing crimes. We do not want transsexuals committing crimes because it is the only route to obtaining a cure.
It is not the cost per se that drives this conclusion. For lifethreatening or crippling conditions, Medicaid and other publicaid, insurance, and charity programs authorize treatments that often exceed $100,000. Gender dysphoria is not, at least not yet, generally considered a severe enough condition to warrant expensive treatment at the expense of others than the person suffering from it. That being so, making the treatment a constitutional duty of prisons would give prisoners a degree of medical care that they could not obtain if they obeyed the law.
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Id. at 672. Finally, the court stated: “We conclude that, except in special circumstances that we do not at present foresee, the Eighth Amendment does not entitle a prison inmate to curative treatment for his gender dysphoria.” Id. at 672.
In Phillips v. Michigan Department of Corrections, 731 F. Supp. 792, 801 (W.D. Mich. 1990), the court granted a prisoner’s motion for preliminary injunction ordering correctional officials to provide the inmate with estrogen therapy. The prisoner in that case was a thirty-four-year-old male-to-female transsexual who lived as a woman since age seventeen. Id. at 793-94. Prior to incarceration, the inmate had a number of “surgeries and other procedures to enhance her appearance as a female, including electrolysis, a brow lift, dermabrasions, a chemical face peel, jaw reduction, a chin implant, and breast implant surgery.” Id. at 794. In addition, the inmate took estrogen treatment beginning at the age of seventeen or eighteen to slow hair growth, soften skin, and to further develop the breast implants and female characteristics. Id. Not long after incarceration, the plaintiff was examined by a Michigan Department of Corrections physician who stopped the hormonal treatments and denied requests for brassieres. Id. The prisoner’s request for brassieres was later granted, after the physician’s supervisor intervened. Id. In granting the request for a preliminary injunction, the court found that the prisoner had a serious medical need and that the defendant denied medical care through both intentional conduct and deliberate indifference:
The denial of medical care in this case stems from at least three sources – which in concert violate plaintiff’s right under the constitution to be free from cruel and unusual punishment. A result decried in Meriwether and in dicta by the Supre and Lamb courts is present here: defendant has failed to provide plaintiff with treatment of any kind. And, as was the plaintiff in
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Meriwether, plaintiff has been the subject of ridicule and offensive remarks at the hands of Dr. Opika. Third, this Court characterizes defendant’s conduct in this case as conduct which actually reversed the therapeutic effects of previous treatment. It is one thing to fail to provide an inmate with care that would improve his or her medical state, such as refusing to provide sex reassignment surgery or to operate on a longendured cyst. Taking measures which actually reverse the effects of years of healing medical treatment, as I observe here, is measurably worse, making the cruel and unusual determination much easier. Id. at 800 (footnote omitted). In Kosilek v. Maloney, 221 F. Supp. 2d 156, 158 (D. Mass. 2002), plaintiff Kosilek was a male-to-female transsexual sentenced to life in prison. Since becoming incarcerated in 1990, Kosilek had tried to access proper diagnosis and treatment, but such claims were consistently denied by the institution. Id. at 159. While incarcerated, Kosilek tried to commit suicide on two occasions and also attempted self-castration. Id. at 158. Kosilek also complained of being in severe mental anguish. Id. The prisoner sued the Massachusetts Department of Corrections and Commissioner Michael Maloney, who in 2000 had adopted a blanket policy regarding the treatment of transsexuals in prisons. Id. Under the policy, transsexuals who had received treatment by doctors prior to incarceration could have that treatment continued after incarceration; however, transsexuals taking hormones that had not been prescribed by a doctor were not permitted to continue hormone usage in prison. Id. at 159-60. The policy also denied the possibility of any inmate receiving gender reassignment surgery. Id. at 160. Since Kosilek’s transsexualism was undiagnosed, the policy denied access to doctors for both treatment and diagnosis for GID. Id.
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The court found that Kosilek’s GID was a serious medical need. Id. at 184. Kosilek’s GID “has prompted him to attempt suicide twice while incarcerated, and to try to castrate himself as well. There is a significant risk that he will attempt to kill, mutilate, or otherwise harm himself again if he is not afforded adequate treatment for this disorder.” Id. Next, the court found that Kosilek had not been offered adequate treatment for the serious medical need in that “[t]he services now being offered Kosilek are not sufficient to diminish his intense emotional distress, and the related risks of suicide and self-mutilation, to the point at which he would no longer be at a substantial risk of serious harm.” Id. at 185. The court reasoned that “no informed medical judgment has been made by the DOC concerning what treatment is necessary to treat adequately Kosilek’s severe gender identity disorder.” Id. at 186. The Massachusetts Department of Corrections policy, also known as the Guidelines, prevented an individualized medical assessment:
However, the Guidelines preclude the possibility that Kosilek will ever be offered hormones or sex reassignment surgery, which are the treatments commensurate with modern medical science that prudent professionals in the United States prescribe as medically necessary for some, but not all, individuals suffering from gender identity disorders. The Guidelines, in effect, prohibit forms of treatment that may be necessary to provide Kosilek any real treatment. Maloney’s decision to implement the Guidelines precluded the medical professionals and social workers he employs and regularly relies upon from even considering whether hormones should be prescribed to treat Kosilek’s severe gender identity disorder. Id. at 186 (internal citation omitted). Thus, the court concluded that Kosilek satisfied the objective component of the Eighth Amendment. Id. at 189. However, the court found that Maloney’s failure to provide Kosilek with adequate care was not due to deliberate indifference. Id. at 189-92. Maloney’s actions
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may have seemed ignorant, if not malicious; however, the court pointed out that his actions
were those of “a defendant with a legal problem” and were not done to inflict pain on
Kosilek. Id. at 162, 191. Finally, the court concluded that Maloney was not likely to be
indifferent to Kosilek’s serious medical need in the future. Id. at 193-95. It reasoned that
Maloney “is now on notice that Kosilek’s severe gender identity disorder constitutes a
serious medical need” and, therefore, “the DOC has a duty to provide Kosilek adequate
treatment.” Id. at 193. The court continued:
It is permissible for the DOC to maintain a presumptive freezeframe policy. However, decisions as to whether psychotherapy, hormones, and/or sex reassignment surgery are necessary to treat Kosilek adequately must be based on an “individualized medical evaluation” of Kosilek rather than as “a result of a blanket rule.” Those decisions must be made by qualified professionals. Such professionals must exercise sound medical judgment, based upon prudent professional standards, particularly the Standards of Care.
Thus, the court expects that Maloney will follow the DOC's usual policy and practice of allowing medical professionals to assess what is necessary to treat Kosilek. As the DOC does not employ anyone with expertise in treating gender identity disorders, the DOC may decide to follow its regular practice of retaining an outside expert to evaluate Kosilek and to participate in treating, or recommending treatment for him.
The evidence demonstrates that, at a minimum, Kosilek should receive genuine psychotherapy from, or under the direction of, someone qualified by training and experience to address a severe gender identity disorder. It will be Kosilek's obligation to cooperate in establishing a proper relationship with his therapist(s). The Standards of Care indicate that such therapy, or such therapy and pharmacology, may be sufficient to reduce the anguish caused by Kosilek's gender identity disorder so that it no longer constitutes a serious medical need.
If psychotherapy, and possibly psychopharmacology, do not eliminate the significant risk of serious harm that now exists, consideration should be given to whether hormones should be
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prescribed to treat Kosilek. Administering female hormones to a male prisoner in a male prison could raise genuine security concerns. Maloney would be entitled to consider whether those concerns make it necessary to deny Kosilek care that the medical professionals regard as required to provide minimally adequate treatment for his serious medical need.
. . . .
As the Standards of Care explain, “hormone therapy alone may provide sufficient symptomatic relief to obviate the need for cross-living or surgery.” If psychotherapy, hormones, and possibly psychopharmacology are not sufficient to reduce the anguish caused by Kosilek's gender identity disorder to the point that there is no longer a substantial risk of serious harm to him, sex reassignment surgery might be deemed medically necessary. If that occurs, Maloney may consider whether security requirements make it truly necessary to deny Kosilek adequate care for his serious medical need. If and when he makes such a decision, a court may have to determine again whether the Eighth Amendment has been violated.
Id. at 193-95 (internal citations omitted).
In De’Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003), the court of appeals
reversed the district court’s dismissal of the complaint for failure to state a claim. The
plaintiff in that case, a biological male, had GID and was incarcerated in the custody of the
Virginia Department of Corrections since 1983. Id. at 632. Department of Corrections
doctors diagnosed the prisoner with GID and prescribed estrogen from 1993 until 1995,
at which time the treatment was terminated pursuant to a new Department of Corrections
policy. Id. The policy provided that neither medical nor surgical interventions related to
gender or sex change would be provided to inmates with GID. Id. Inmates entering prison
taking hormone medication or already receiving such medication were to be informed of
the policy and then the medication would be tapered immediately and afterward
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discontinued. Id. Following termination of the hormone medication, the prisoner developed an uncontrollable urge to mutilate his genitals. Id. Repeatedly, the inmate requested resumption of the hormone therapy and treatment by a gender specialist, however, those requests were denied and the self-mutilation continued. Id. As an initial matter, the court held that the plaintiff’s “need for protection against continuous selfmutilation constitutes a serious medical need to which prison officials may not be deliberately indifferent.” Id. at 634 (citing Lee v. Downs, 641 F.2d 1117, 1121 (4th Cir. 1981)). Next, it found that the inmate stated an Eighth Amendment claim by alleging inadequate medical treatment to protect the inmate from the compulsion to self-mutilate. Id. at 635.
In Brooks v. Berg, 270 F. Supp. 2d 302 (N.D.N.Y.), vacated in part on other grounds, 289 F. Supp. 2d 286 (N.D.N.Y. 2003), a prisoner, who was a biological male, diagnosed himself with GID. Id. at 304. The prisoner sought treatment by writing letters to a Mental Health Satellite Unit and to a supervisor; however, he never received a response. Id. The prisoner then filed suit alleging that the defendants failed to provide him with necessary medical treatment for his serious medical need in violation of the Eighth Amendment, and asking the court to force the defendants to allow him to see a doctor qualified to propose a course of treatment. Id. at 305, 306. Pursuant to a Department of Corrections policy, inmates who could prove that they received hormone therapy prior to incarceration might be eligible for continued hormone therapy. Id. at 305. The policy further stated that transsexual surgical operations were not honored during incarceration. Id.
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The court found that the defendants were deliberately indifferent to the
prisoner’s serious medical need:
Defendants do not contest Plaintiff's claim that he was never treated for GID notwithstanding numerous requests for treatment. In addition, Defendants have not provided the Court with any evidence showing that the decision to refuse Plaintiff treatment was based on sound medical judgment. Finally, Defendants have failed to submit any evidence that they were not aware that Plaintiff's health could be jeopardized if treatment was refused. Accordingly, the Court finds that Defendants have failed to establish, as a matter of law, that Plaintiff was provided adequate treatment for his serious medical needs.
Id. at 310. The court went on to say:
This blanket denial of medical treatment is contrary to a decided body of case law. Prisons must provide inmates with serious medical needs some treatment based on sound medical judgment. There is no exception to this rule for serious medical needs that are first diagnosed in prison. Prison officials are thus obliged to determine whether Plaintiff has a serious medical need and, if so, to provide him with at least some treatment. Prison officials cannot deny transsexual inmates all medical treatment simply by referring to a prison policy which makes a seemingly arbitrary distinction between inmates who were and were not diagnosed with GID prior to incarceration. In light of the numerous cases which hold that prison officials may not deny transsexual inmates all medical attention, especially when this denial is not based on sound medical judgment, the Court finds that Defendants have failed to establish as a matter of law that their actions were objectively reasonable.
Id. at 312.
In Praylor v. Texas Department of Criminal Justice, 430 F.3d 1208, 1208-09
(5th Cir. 2005), a transsexual state prison inmate sought an injunction instructing the Texas
Department of Criminal Justice (TDCJ) to provide him with hormone therapy and
brassieres. The court concluded that the prisoner was not entitled to such treatment:
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This circuit has not addressed the issue of providing hormone treatment to transsexual inmates. Other circuits that have considered the issue have concluded that declining to provide a transsexual with hormone treatment does not amount to acting with deliberate indifference to a serious medical need. See, e.g., White v. Farrier, 849 F.2d 322 (8th Cir. 1988) (acknowledging that transsexualism is a serious medical condition, but holding that declining to provide hormone therapy did not constitute deliberate indifference to that medical need); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (holding transsexual prisoner has no constitutional right to “any particular type of treatment, such as estrogen therapy”); Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986) (concluding that declining to provide hormone therapy did not constitute deliberate indifference when prison officials offered alternate treatment). Assuming, without deciding, that transsexualism does present a serious medical need, we hold that, on this record, the refusal to provide hormone therapy did not constitute the requisite deliberate indifference.
In Praylor's case, the record reflects that he did not request any form of treatment other than hormone therapy. Testimony from the medical director at the TDCJ revealed that the TDCJ had a policy for treating transsexuals, but that Praylor did not qualify for hormone therapy because of the length of his term and the prison's inability to perform a sex change operation, the lack of medical necessity for the hormone, and the disruption to the all-male prison. Cf. De'Lonta v. Angelone, 330 F.3d 630, 635 (4th Cir. 2003). Moreover, the director testified that Praylor had been evaluated on two occasions and denied eligibility for hormone treatment and that the TDCJ did provide mental health screening as part of its process for evaluating transsexuals. See Supre, 792 F.2d at 963. Accordingly, based upon the instant record and circumstances of Praylor's complaint, the denial of his specific request for hormone therapy does not constitute deliberate indifference. See Meriwether, 821 F.2d at 413; Supre, 792 F.2d at 963.
Id. at 1209.
Plaintiffs contend that the defendants’ enforcement of Act 105 to deny them
medically necessary treatment violates the Eighth Amendment because it results in
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objectively inadequate care for an objectively serious medical need that DOC medical personnel acknowledge is a condition requiring treatment. In response, the defendants maintain that the evidence in this case shows, under the holding in Maggert, 131 F.3d at 670, that Act 105 does not violate the Eighth Amendment by preventing specific forms of “curative treatment” for gender dysphoria. The defendants submit that courts have held that transsexual inmates have no constitutional right to a particular type of treatment, and that Maggert supports Act 105 and Wisconsin’s decision to limit the availability of specific forms of treatment for inmates with GID.
Several courts, including the Seventh Circuit, have considered GID or transsexualism a “serious medical need” for the purposes of the Eighth Amendment. See Meriwether, 821 F.2d at 411-13; Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000); White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988); Wolfe v. Horn, 130 F. Supp. 2d 648, 652 (E.D. Pa. 2001); Phillips, 731 F. Supp. at 792. Based on the evidence presented in the bench trial in this case, this court agrees.
Inasmuch as this court finds that GID is a severe medical condition, it must now consider whether enforcement of Act 105 against these plaintiffs constitutes deliberate indifference to their serious medical needs.
As an initial matter, the defendants’ reliance on Maggert is misplaced because this case is distinguishable. First, DOC doctors evaluated the plaintiffs clinically and determined that hormone therapy is medically necessary to treat their conditions. Moreover, the evidence establishes that DOC health care personnel provide medical treatment to inmates only after they have concluded that the treatment is medically
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necessary. Act 105 undermines the doctor-patient relationship of DOC physicians and inmates by preventing treatments that those health care providers, in their clinical judgment, determined to be warranted. Second, the plaintiffs in this case were receiving hormone therapy prior to their incarceration in DOC institutions; therefore, the concern that transsexuals may commit crimes so the state will pay for their care, expressed in Maggert, 131 F.3d at 672, does not pertain to these plaintiffs. Further, the evidence indicates that the cost to the DOC of withdrawing hormone therapy may be greater than the cost of continuing the treatment prescribed by DOC health care professionals. Third,, the plaintiffs in this case are not arguing entitlement to a specific treatment, rather they are simply contending that Act 105 violates their rights under the Eighth Amendment because it deprives DOC medical personnel of their ability to provide inmates with appropriate treatment.
This court is persuaded that the enforcement of Act 105 prevents DOC doctors from providing the treatment that they have determined is medically necessary to treat the plaintiffs’ serious conditions. Notably, in approximately 2002, the DOC established a gender identity committee consisting of Dr. Kallas, Dr. Burnett, Bureau of Health Services Director James Greer, the warden of an institution, and a psychologist of an institution. (Trial Tr. vol. 2, 170, Oct. 23, 2007.) The gender identity committee “is to consult on policy with respect to gender identity disorder, to review individual cases, to make determinations about hormonal treatment, especially starting new treatment, and then to consult in a clinical fashion to the psychologists and psychiatrists who are within the institutions about gender identity disorder matters.” Id. Consequently, a person who came into the prison system on hormone therapy would continue such therapy unless the
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prison doctor had a reason to believe that the hormones were inappropriate. Id. at 171. When an individual requested to be put on new hormone therapy, that request would go to the gender identity committee, which would process the request in accordance with DOC policies. Id.
Plaintiff Fields was incarcerated in 2005 at which time the DOC confirmed Fields’ GID diagnosis and continued hormone therapy. It was determined that Fields had received feminizing hormone therapy continuously starting in 1996 and had undergone breast augmentation in 2003. Plaintiff Davison was diagnosed with GID in 2005 and began hormone therapy for treatment, which the DOC has continued during Davidson’s incarceration. Prior to receiving hormone therapy, Davison attempted suicide by jumping off a roof. Plaintiff Moaton began taking feminizing hormones in the late 1990s, and commenced medically prescribed hormone therapy in 2000. The DOC continued that treatment after Moaton’s incarceration. Moaton experienced suicidal ideation in the past, especially after being removed from hormone therapy.
In 2006, because of the passage of Act 105, the DOC began to taper the hormone therapy of the plaintiffs, all of whom, to varying degrees, had feminine physical characteristics as a result of hormone usage. Following the reduction of hormone therapy, plaintiff Fields experienced nausea, muscle weakness, loss of appetite, increased hair growth, skin bumps, and depression; plaintiff Davison had increased and darker hair growth, voice deepening, breast reduction and leakage, mood swings, mental and emotional instability, hot flashes, and body aches; and plaintiff Moaton grew chest and facial hair, complained of increased tenderness in the chest and groin, and complained of skin breakouts, hot flashes, and depression. All of the symptoms were abated when the
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plaintiffs’ hormone therapy was reinstated after the court issued the preliminary injunction in this action.
The legislative history of Act 105 demonstrates that the bill was passed despite objections from DOC medical personnel and that the only correctional or medical expertise offered during the legislative hearings was that of Dr. Kallas and Dr. Burnett. Dr. Kallas informed the legislature that the Standards of Care are considered to be the most authoritative guidelines for the treatment of GID, emphasized that hormone therapy was a valid treatment on its own, and stated that if the DOC were to take away hormones from individuals with GID, those persons may become distressed and despondent to the point of clinical depression, anxiety disorder, or suicidality. He also explained that this may result in an increase in staff time for mental health care or placement at the Wisconsin Resource Center, and that it may also lead to disruptive behavior as well as segregation time, or an increase in psychotropic medications, particularly antidepressants, which would offset any cost savings attributable to not prescribing hormones.
At trial, outside physician Dr. R. Ettner testified that the intensity of the distress that people with GID experience varies depending on the severity of the disorder. Some people cannot function because the disorder is so intense and severe while others experience less discomfort. For those with severe GID, symptoms may include depression, anxiety, irritability, suicidal ideation, suicide attempts, and self-mutilation or autocastration. When asked why the taking away of medical decision-making was a concern, Dr. Kallas added: “It’s difficult to articulate because it seems so obvious to me, that it’s important that doctors are abl[e] to use their clinical judgment with respect to conditions that are significant, especially when it pertains to medically necessary
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treatment.” (Trial Tr. vol. 2, 186, Oct. 23, 2007.) DOC Medical Director Dr. Burnett further
testified that he did not believe it was medically appropriate to taper and terminate
hormone therapy for inmates with GID.
Additionally, plaintiffs contend that on its face Act 105 violates the Eighth
Amendment and the Equal Protection Clause of the Fourteenth Amendment because it
applies in every instance in which a DOC medical provider has prescribed hormone
therapy or sexual reassignment surgery. Plaintiffs argue
that inmates do not dictate what medical care they receive; only DOC medical personnel can determine what treatments are medically necessary and appropriate. Consequently, even if an inmate with GID requested hormones or surgery, DOC’s practice - even before the passage of Act 105 - would have been to deny such medical care unless it was medically necessary. The passage of Act 105 did not change this practice. What it did is deny DOC medical personnel the discretion they had before to prescribe hormones or surgery, when, in their own judgment, they were medically necessary.
This blanket denial of medical judgment mandated by Act 105 in all the statute’s applications violates the Eighth Amendment, for the same reasons that Act 105's application to Plaintiffs violates that Amendment. Plaintiffs have been taking hormones for many years, so cutting off their hormone therapy is the denial of necessary medical treatment that places them at great risk of harm, and induces certain withdrawal symptoms. The denial of necessary medical care to persons who have had it in the past does not distinguish Plaintiffs under the Eighth Amendment and Equal Protection Clause from transsexuals newly diagnosed with GID and prescribed the treatment for the first time by DOC health care professionals.
(Pl.’s Corrected Tr. Br. at 29-30.) This court agrees.
The defendants acknowledge that Act 105 removes even the consideration
of hormones or surgery for inmates with gender issues and that the DOC halted
evaluations of inmates with GID for possible administration of hormone therapy because
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of the Act. (Stip. FOF ¶ 52, Defs.’ Tr. Br. at 2.) However, in determining whether a facial
challenge to Act 105 may succeed here, the defendants submit that the court must take
into account all inmates in DOC custody for whom hormone therapy or sexual
reassignment surgery would be considered as treatment for gender issues. If that is done,
they maintain that there are circumstances where Act 105 may be applied without violating
the Constitution, and that, as a result, the plaintiffs’ facial challenge to the law must fail.
Unfortunately, the defendants do not support this point.
“A facial challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.” United States v. Salerno, 481
U.S. 739, 746 (1987). In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992), the Court described the appropriate class for the purpose of determining
the validity of an abortion statute:
Respondents attempt to avoid the conclusion that § 3209 is invalid by pointing out that it imposes almost no burden at all for the vast majority of women seeking abortions. They begin by noting that only about 20 percent of the women who obtain abortions are married. They then note that of these women about 95 percent notify their husbands of their own volition. Thus, respondents argue, the effects of § 3209 are felt by only one percent of the women who obtain abortions. Respondents argue that since some of these women will be able to notify their husbands without adverse consequences or will qualify for one of the exceptions, the statute affects fewer than one percent of women seeking abortions. For this reason, it is asserted, that statute cannot be invalid on its face. We disagree with respondents’ basic method of analysis.
The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not
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say that a law which requires a newspaper to print a candidate’s reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974). The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.
Respondents’ argument itself gives implicit recognition to this principle, at one of its critical points. Respondents speak of the one percent of women seeking abortions who are married and would choose not to notify their husbands of their plans. By selecting as the controlling class women who wish to obtain abortions, rather than all women or all pregnant women, respondents in effect concede that § 3209 must be judged by reference to those for whom it is an actual rather than an irrelevant restriction. Of course, as we have said, § 3209's real target is narrower even than the class of women seeking abortions identified by the State: it is married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that in a large fraction of the cases in which § 3209 is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion. It is an undue burden, and therefore invalid.
Id. at 894-95 (internal citation omitted); see also Gonzales v. Carhart, 127 S. Ct. 1610,
1639 (2007) (holding that the Partial Birth Abortion Act of 2003's ban “applies to all
instances in which the doctor proposes to use the prohibited procedure, not merely those
in which the woman suffers from medical complications”).
In certain cases, as with the plaintiffs in this case, the effect of Act 105 is to
withdraw an ongoing course of treatment, the result of which has negative medical
consequences. In other cases, the effect of Act 105 is to prevent DOC medical personnel
from evaluating inmates for treatment because such evaluation would be futile in light of
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Act 105's ban on the treatment they may determine to be medically necessary for the health of the inmate.
It is undisputed that Act 105 has prevented the DOC from undertaking thorough evaluations of inmates Erik, a/k/a Erika, Huelsbeck and Kenneth, a/k/a Karen, Krebs to determine whether hormone therapy is medically necessary for them.
Act 105 bars doctors and other DOC medical personnel from providing treatment, namely, hormone therapy and sex reassignment surgery, that they may determine to be medically necessary. Thus, the possibility that other DOC inmates may have conditions that may not require hormone therapy or the possibility that a particular inmate such as Huelsbeck or Krebs may not medically require hormone therapy does not repel a facial challenge to Act 105. If DOC doctors evaluate any DOC inmate and find that hormone therapy is medically necessary, then that inmate is within the group or class of inmates to whom Act 105 applies. The case law indicates that the controlling class for a facial challenge to a statute is “the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Casey, 505 U.S. at 894.
It is well established that prison officials may not substitute their judgments for a medical professional’s prescription. “Of course they cannot.” Zentmyer v. Kendall County, Ill., 220 F.3d 805, 812 (7th Cir. 2000) (citing Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999); Johnson v. Hay, 931 F.2d 456, 461 (8th Cir. 1991)). If a prison official consciously chooses to disregard a nurse’s or doctor’s directions in the face of medical risks, then he may well have exhibited the necessary deliberate indifference. Zentmyer, 220 F.3d at 812.
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In this case, Act 105 bars the use of hormones “to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender,” as well as sexual reassignment surgery “to alter a person’s physical appearance so that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m)(a). The statute applies irrespective of an inmate’s serious medical need or the DOC’s clinical judgment if at the outset of treatment, it is possible that the inmate will develop the sexual characteristics of the opposite gender. The reach of this statute is sweeping inasmuch as it is applicable to any inmate who is now in the custody of the DOC or may at any time be in the custody of the DOC, as well as any medical professional who may consider hormone therapy or gender reassignment as necessary treatment for an inmate.
2. Equal Protection Claim Recently, the Seventh Circuit Court of Appeals reiterated the standard to be applied in equal protection cases where no fundamental right or suspect classification is at issue: The purpose of the Equal Protection Clause of the Fourteenth Amendment is to “secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Where (as here) no fundamental right or suspect classification is at issue, equal protection claims are evaluated under the rationalbasis standard of review. To prevail, a plaintiff must prove the following: (1) the defendant intentionally treated him differently from others similarly situated, (2) the defendant intentionally treated him differently because of his membership in the class to which he belonged, and (3) the difference in treatment was not rationally related to a legitimate state interest.
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Smith v. City of Chicago, 457 F.3d 643, 650-51 (7th Cir. 2006) (internal citations omitted). Thus, the court applies rational basis review to plaintiffs’ equal protection claim.
The defendants contend that by eliminating the availability of hormone therapy and sexual reassignment surgery, Act 105 is rationally related to the DOC’s interests in protecting effeminate-appearing inmates from harm and maintaining the safety and security of other inmates, staff, and the institution.
Act 105 takes away the DOC’s discretion to provide “hormonal therapy” to the plaintiffs. “‘Hormonal therapy’ means the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m)(a). It is undisputed that the DOC sometimes prescribes hormone therapy for reasons that do not have to do with GID, such as estrogen replacement therapy in postmenopausal years, or for congenital or hormonal disorders.
The evidence establishes that GID is the only medically necessary condition for which mental health treatments are barred by law or regulation within the DOC. Act 105 requires the DOC to withdraw hormone therapy only from inmates who are using it to treat their GID. Moreover, there is no evidence of any other Wisconsin laws banning medical treatment for inmates or any DOC policies that ban necessary medical treatment for inmates.
Hence, the plaintiffs have satisfied the first two prongs of an equal protection claim. And they have done so as to both their as-applied challenge and their facial challenge. Defendants treat the plaintiffs themselves differently than others similarly situated because of their membership in the class of persons who need hormonal therapy
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to treat GID, and they treat the entire class differently. As stated above, the controlling class for a facial challenge is “the group for whom the law is a restriction, not the group for whom the law is irrelevant,” Casey, 505 U.S. at 894.
The court now turns to the third prong, whether the difference in treatment is rationally related to the legitimate state interest of safety and security. The rationalrelationship test is a lenient standard. Smith, 457 F.3d at 652. Under rational basis review, there is no constitutional violation if “any reasonably conceivable state of facts” would provide a rational basis for government action. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). The challenging party bears the burden of eliminating any reasonablyconceivable set of facts that could provide a rational basis for the difference in treatment. Smith, 457 F.3d at 652. In other words, the plaintiffs must prove the government’s enactment of Act 105 irrational. Id. And this burden is the same whether the plaintiffs challenge a statute on its face or as applied. Id. The rational-basis test is not subject to courtroom factfinding and may include rational speculation. Id. at 651 (citing Beach Commc’ns, 508 U.S. at 315). The government may defend on any ground, not just the one articulated at the time of decision. Id. at 652.
Prison safety and security are legitimate penological interests. See Overton v. Bazzetta, 539 U.S. 126, 133 (2003) (describing “internal security” as “perhaps the most legitimate of penological goals”). The correctional environment can be dangerous, and one major area of security concern is sexual activity, especially sexual activity among inmates, which has a history of being extremely dangerous and volatile.
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However, no reasonably conceivable state of facts provides a rational tie between Act 105 and prison safety and security. Atherton testified that he does not think feminizing inmates is consistent with the mission of the DOC because “it raises the level of risk in general populations that manage inmates who have been feminized in the male environment.” (Trial Tr. vol. 3, 422, Oct. 24, 2007.) However, he also testified that the policy of the Colorado Department of Corrections, where he has worked for many years, allows prisoners with GID to have hormone therapy, and he believes that the policy is reasonable. According to Atherton, the policy has a good history and security staff are able to implement it well.
Furthermore, at his deposition, Atherton was asked whether preventing inmates with GID from getting hormones was a way to prevent sexual assaults from happening in the future. He responded:
That question is an incredible stretch between hormonal therapy and preventing sexual assaults. As I explained in an answer previously, hormonal therapy may or may not be something – have something to do with physical appearance which are one of many ingredients that may contribute to something that supports sexual attraction from one inmate to another which may or may not arise in the form of an assault. (Id. at 426-27.) Although plaintiff Davison was sexually assaulted, there is nothing in the record to indicate Davison would not been assaulted in the absence of hormone therapy. Also, it is undisputed that inmates can look effeminate without hormone therapy. Furthermore, nothing in the record to support a finding that withdrawing hormone therapy from the plaintiffs will decrease the risk that they will become victims of sexual assault. Thus, a connection between the hormone therapy barred by Act 105 and sexual assaults
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is not reasonable—instead, defendants’ own expert said connecting them was “an incredible stretch.”
Defendants’ argument that the “evidence supports the obvious” is not sufficient to show that Act 105 is rationally related to prison security. For one thing, DOC policy, Executive Directive 68, allowed for hormone therapy for GID inmates prior to the enactment of Act 105. Also, defendants’ security expert was not particularly helpful for the defendants, as described above.
Plaintiffs have satisfied the three elements of an equal protection violation both to the extent that Act 105 applies to them and regarding their facial challenge.
3. Relief Plaintiffs seek a permanent injunction barring enforcement of Act 105 against them and other inmates. A party seeking a permanent injunction “must demonstrate (1) it has succeeded on the merits; (2) no adequate remedy at law exists; (3) the moving party will suffer irreparable harm without injunctive relief; (4) the irreparable harm suffered without injunctive relief outweighs the irreparable harm the nonprevailing party will suffer if the injunction is granted; and (5) the injunction will not harm the public interest.” Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1081 (7th Cir. 1998) (citations omitted). The Prison Litigation Reform Act provides that a court “shall not approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1). Given the court’s finding that Act 105 is unconstitutional, as applied to these
67
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196 plaintiffs and on its face, the plaintiffs are entitled to relief. Specific language of the injunction will be discussed at the upcoming status conference.
4. Further Conclusions of Law Further conclusions of law were addressed in this court’s order of March 31, 2010, and are incorporated herein. Dated at Milwaukee, Wisconsin, this 13th day of May, 2010.
BY THE COURT /s/ C. N. Clevert, Jr. C. N. CLEVERT, JR. CHIEF U. S. DISTRICT JUDGE
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Rev. 5/85) Judgment in a Civil Case q

United States District Court

EASTERN DISTRICT OF WISCONSIN

ANDREA FIELDS, MATTHEW DAVISON, also known as Jessica Davison, and VANKEMAH D. MOATON,

Plaintiffs, v.

JUDGMENT IN A CIVIL CASE Case No. 06-C-112

WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, and RICHARD RAEMSICH,

Defendants.

This action came before the court for a trial by the court, the issues have

been decided, and a decision has been rendered. Now, therefore,

IT IS ORDERED AND ADJUDGED that Wis. Stat. § 302.386(5m) is

unconstitutional and invalid.

IT IS FURTHER ORDERED AND ADJUDGED that the defendants and their

successors in office and all others acting on behalf of them are permanently enjoined and

restrained from enforcing or attempting to enforce Wis. Stat. § 302.386(5m), by direct,

indirect, or other means.

IT IS FURTHER ORDERED AND ADJUDGED that the defendants and their

successors in office, and all others acting on behalf of them, are permanently enjoined

and restrained from enforcing or attempting to enforce the provisions of Wis. Stat. §

302.386(5m), by direct, indirect, or other means, against the plaintiffs.

APPROVED:

s/ C. N. CLEVERT, JR. C. N. CLEVERT, JR. Chief U. S. District Judge

JON W . SANFILIPPO Clerk

6/22/10

s/C. Fehrenbach

Date

(By) Deputy Clerk

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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ANDREA FIELDS, MATTHEW DAVISON, also known as Jessica Davison, and VANKEMAH D. MOATON,
Plaintiffs,
v.
WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, and RICHARD RAEMSICH,
Defendants.

Case No. 06-C-112

ORDER GRANTING MOTIONS FOR ADDITIONAL FINDINGS PURSUANT TO FED. R. CIV. P. 52(b) (DOC. # 222 & # 237) The plaintiffs have filed two motions for additional findings to supplement the court’s Memorandum Decision pursuant to Rule 52(b) of the Federal Rules of Civil Procedure. The defendants do not object to the request. Now, therefore, IT IS ORDERED that the plaintiffs’ motions are granted. Accordingly, pursuant to Fed. R. Civ. P. 52(b), the court now finds that a permanent injunction that restrains the defendants from enforcing or attempting to enforce the provisions of Wis. Stat. § 302.386(5m), by direct, indirect or other means, against any prisoner to whom the statute would otherwise apply and specifically against the plaintiffs, is warranted in this case. Such relief is narrowly tailored in that enjoining the enforcement of Wis. Stat. § 302.386(5m) prohibits only unconstitutional applications of the statute which this court has found to be unconstitutional any time it is applied. (Mem. Dec. at 62.) See, e.g.,

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Jordan v. Pugh, 2007 WL 2908931, at *1-2 (D. Colo. Oct. 4, 2007); Cline v. Fox, 319 F. Supp. 2d 685, 695-96 (N.D. W. Va. 2004) (finding prison policy facially invalid and enjoining its enforcement).
The court further finds that an injunction against enforcement of Wis. Stat. § 302.386(5m) extends no further than is necessary to correct the Eighth Amendment and Equal Protection violations because any application of the statute would violate the Eighth Amendment and Equal Protection and enjoining all applications of Wis. Stat. § 302.386(5m) is necessary to prevent constitutional violations. (Mem. Dec. at 55-57 (finding that application of statute violates Eighth Amendment prohibition on deliberate indifference to serious medical needs by preventing DOC physicians from providing treatment they determine is medically necessary to treat serious medical condition of Gender Identity Disorder (GID)); 59-60 (finding that the statute violates the Eighth Amendment by removing “even the consideration of hormones or surgery” and thus “halted evaluations of inmates with GID for possible administration of hormone therapy because of the Act”); 61-63 (finding facial violation of Eighth Amendment because statute “withdraw[s] an ongoing course of treatment” for prisoners such as plaintiffs, “prevent[s] the DOC from undertaking thorough evaluations of inmates” who may have GID and require treatment prohibited by the statute, and that the statute applies only to those prisoners “for whom the law is a restriction” (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 894 (1992))); 63-67 (finding violation of Equal Protection, because prisoners with GID are treated differently from prisoners with all other medical conditions, without a rational basis for the differential treatment).)
2
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196 Furthermore, the court finds that an injunction against enforcement of Wis.
Stat. § 302.386(5m) is the least intrusive means possible to correct Eighth Amendment and Equal Protection violations that would be caused in the future through any application of the facially invalid statute. Lastly, the court concludes that the aforementioned injunctive relief will have no significant “adverse impact on public safety or the operation of a criminal justice system.” 18 U.S.C. § 3626(a)(1). (See Mem. Dec. at 66-67 (rejecting prison security justification for statute).)
Dated at Milwaukee, Wisconsin, this 9th day of July, 2010, nunc pro tunc June 22, 2010.
BY THE COURT /s/ C. N. Clevert, Jr. C. N. CLEVERT, JR. Chief U.S. District Judge
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196 Nos.10-2339 and 10-2466
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

ANDREA FIELDS, et al.,
Plaintiffs-Appellees, Cross-Appellants
v.
JUDY P. SMITH, et al., Defendants-Appellants. Cross-Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN, NO. 06-C-112,
THE HONORABLE JUDGE C. N. CLEVERT, JR., PRESIDING

APPENDIX OF DEFENDANTS-APPELLANTS, CROSS-APPELLEES

Wisconsin Department of Justice Post Office Box 7857 Madison, WI 53707-7857 Telephone: (608) 267-7292 Fax: (608) 267-8906 E-Mail: pottsac@doj.state.wi.us *Counsel of Record

J.B. VAN HOLLEN Attorney General
ABIGAIL C. S. POTTS* Assistant Attorney General State Bar #1060762 Attorneys for Defendants-Appellants, Cross-Appellees

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INDEX TO APPENDIX
APPENDIX PAGE
Order Declaring Wis. Stat. § 302.386(5)) Unconstitutional and Enjoining Enforcement of Statute (Doc. 206) dated March 31, 2010 . . . . . . . . . . . . . . . . . . App. 101-103
Memorandum Decision (Doc. 212) dated May 13, 2010 . . . . . . . . . . . . . . . . . . . . App. 104-171
Judgment (Doc. 235) dated June 22, 2010 . . . . . . . . . . . . . . . . . . . . . . . .App. 172
Order Granting Motions for Additional Findings (Doc. 239) dated July 9, 2010 . . . . . . . . . . . . . . . . . . . . . .App. 173-175
Order Granting in Part and Denying in Part Defendants’ Motion for Partial Summary Judgment (Doc. 175) dated October 15, 2007 . . . . . . . . . . . . . . . . . .App. 176-218

Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
APPPENDIX CERTIFICATION The undersigned hereby certifies that this appendix includes all of the materials required by Circuit Rule 30(a) and (b). Dated this 24th day of September, 2010.
ABIGAIL C. S. POTTS* Assistant Attorney General State Bar #1060762 Attorney for Defendants-Appellants, Cross-Appellees
Wisconsin Department of Justice Post Office Box 7857 Madison, WI 53707-7857 Telephone: (608) 267-7292 Fax: (608) 267-8906 E-Mail: pottsac@doj.state.wi.us *Counsel of Record

Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

KARI SUNDSTROM, ANDREA FIELDS, LINDSEY BLACKWELL, MATTHEW DAVISON, also known as Jessica Davison, and VANKEMAH D. MOATON,
Plaintiffs,
v.
MATTHEW J. FRANK, WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, WARDEN ROBERT HUMPHREYS, and MANAGER SUSAN NYGREN,
Defendants.

Case No. 06-C-112

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. #120), GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE SURREPLY (DOC. #163), DISMISSING DEFENDANTS
HUMPHREYS AND NYGREN, AND DISMISSING PLAINTIFFS SUNDSTROM AND BLACKWELL
Before the court is the defendants’ motion for partial summary judgment.
Defendants’ Statement of the Case follows:
The plaintiffs, all current or former inmates in the Wisconsin prison system, filed this action on January 24, 2006, against the defendants, all Wisconsin Department of Corrections (DOC) officials. The plaintiffs have all been diagnosed as suffering from some form of gender identity disorder. In their Third Amended Complaint (Complaint), the plaintiffs challenge the Inmate Sex Change Prevention Act (the Act), Wis. Stat. § 302.386(5m), which prevents state or federal resources to be used to provide hormone therapy or sexual reassignment surgery to Wisconsin prisoners. The statute defines “hormonal therapy”

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as “the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m)(a)(1). It also defines “sexual reassignment surgery” as “surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m)(a)(2).
The Complaint sets forth essentially three claims: (1) the Act, as applied to the plaintiffs, violates the Eighth Amendment; (2) the Act, on its face, violates the Eighth Amendment; and (3) the Act violates the plaintiffs’ Fourteenth Amendment equal protection rights. As relief, the plaintiffs request injunctive relief against DOC’s enforcement of the Act against them, along with declaratory relief holding the Act, both on its face and as applied to plaintiffs, violates the Eighth and Fourteenth Amendments to the constitution.
By this motion, the defendants seek summary judgment on the following claims: (1) Plaintiff Moaton’s Eighth Amendment asapplied challenge to the Act; (2) the Eighth Amendment facial challenge to the Act; (3) all claims brought by plaintiffs Sundstrom and Blackwell; (4) all claims brought against defendants Humphreys and Nygren; and (5) the Fourteenth Amendment equal protection claim.
(Defs.’ Br. in Support of Mot. for Summ. J. at 2-3.)
STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); McNeal
v. Macht, 763 F. Supp. 1458, 1460-61 (E.D. Wis. 1991). “Material facts” are those facts that,
under the applicable substantive law, “might affect the outcome of the suit.” See Anderson,
2
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477 U.S. at 248. A dispute of “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
The burden of showing the needlessness of trial – (1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law – is upon the movant. However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Anderson, 477 U.S. at 267; see also Celotex Corp., 477 U.S. at 324 (“proper” summary judgment may be “opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings . . . ”). “Rule 56(c) mandates the entry of summary judgment, . . . upon motion, against a party who fails to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. Johnson v. Pelker, 891 F.2d 136, 138 (7th Cir. 1989). “However, we are not required to draw every conceivable inference from the record – only those inferences that are reasonable.” Bank Leumi Le-Israel, B.M. v. Leek, 928 F.2d 232, 236 (7th Cir. 1991) (citation omitted).
FACTS1
1 In this section, Defendants’ Proposed Findings of Fact (DFOF) are set forth first, along with Plaintiffs’ Response to Defendants’ Proposed Findings (PRDFOF), and Defendants’ Reply to Plaintiffs’ Response to Defendants’ Proposed Findings of Fact (DReply). Next, Plaintiffs’ Proposed Findings of Fact (PFOF) are set forth, including Plaintiffs’ Am ended Proposed Finding of Fact Num ber 20, along with Defendants’ Response to Plaintiffs’ Findings of Fact (DRPFOF).
3
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Plaintiff Kari Sundstrom is an anatomical male and was an inmate incarcerated at the Oshkosh Correctional Institution (OSCI). (DFOF ¶ 1.) On December 12, 2006, Sundstrom was released from DOC incarceration. Plaintiff Andrea Fields is an anatomical male and an inmate incarcerated at OSCI. (DFOF ¶ 2.) Plaintiff Lindsay Blackwell is an anatomical male and was previously an inmate incarcerated at the Racine Correctional Institution (RCI). (DFOF ¶ 3.) On October 10, 2006, Blackwell was released from DOC incarceration. Plaintiff Matthew Davison is an anatomical male and an inmate incarcerated at OSCI. (DFOF ¶ 4.) Plaintiff Vankemah Moaton is an anatomical male and an inmate currently incarcerated at the Jackson Correctional Institution. (DFOF ¶ 5.)
Defendant Matthew J. Frank was the Secretary of the State of Wisconsin Department of Corrections when this action was filed. (DFOF ¶ 6.) Defendant James Greer is the Director of the DOC Bureau of Health Services. (DFOF ¶ 7.) Defendant Judy P. Smith is the Warden at OSCI. (DFOF ¶ 8.) Defendant Thomas Edwards is the Health Services Manager of the OSCI Health Services Unit. (DFOF ¶ 9.) Defendant Robert Humphreys is the Warden at RCI. (DFOF ¶ 10.) Defendant Susan Nygren is the Health Services Manager of the RCI Health Services Unit. (DFOF ¶ 11.)
The Harry Benjamin International Gender Dysphoria Association’s Standards of Care for Gender Identity Disorders, Sixth Version (Standards of Care) refer to three elements or phases of therapy once a person is diagnosed with gender identity disorder, which include: (1) a real-life experience in the desired role; (2) hormones of the desired gender; and (3) surgery to change the genitalia and other sex characteristics. The Standards of Care refer to these three phases as triadic therapy. (DFOF ¶ 12.)
4
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The Standards of Care state that “the diagnosis of GID invites consideration of
a variety of therapeutic options, only one of which is the complete therapeutic triad. Clinicians
have increasingly become aware that not all persons with gender identity disorders need or want all three elements of triadic therapy.”2 (Docket No. 5, Dupuis Declaration, Exhibit E,
Standards of Care for Gender Identity Disorders, Sixth Version, p. 3) (DFOF ¶ 13.) The
Standards of Care state that “[m]any adults with gender identity disorder find comfortable,
effective ways of living that do not involve all the components of the triadic treatment
sequence.” (Doc. No. 5, Dupuis Declaration, Exhibit E, Standards of Care for Gender Identity Disorders, Sixth Version, p. 9).3 (DFOF ¶ 14.)
Before hormone therapy is administered to a GID patient, the Standards of Care
recommend that a letter from a mental health professional be written to the physician who will
be responsible for the patient’s medical treatment. This letter should succinctly specify: (1)
the patient’s general identifying characteristics; (2) the initial and evolving gender, sexual and
2Plaintiffs do not dispute that this is an accurate quotation for the Standards of Care. However, plaintiffs dispute defendants’ im plication that this quotation means that horm one therapy and sex reassignment surgery can never be medically necessary treatm ents for GID. Based on the standards of care medically necessary treatm ent for GID m ost often involves horm one therapy or surgical interventions. Dr. Randi Ettner testified, “[W ]e know that untreated as m any as 35 percent of patients [with GID] will com mit suicide. And the treatm ent for the disorder m ost often involves horm ones and/or surgical interventions. So those are the appropriate and medically necessary treatm ent for this disorder.” (Knight Decl., Exh. 213, R. Ettner Dep. Tr. at 51.) The process of determ ining what treatm ents are medically necessary for a patient with GID involves an individualized evaluation and assessment. The Standards of Care state that, “[i]n persons diagnosed with transsexualism or profound GID, sex reassignm ent surgery, along with horm one therapy and real-life experience, is a treatm ent that has proven to be effective. Such a therapeutic regim en, when prescribed or recomm ended by qualified practitioners, is medically indicated and medically necessary.” (Docket No. 5, Dupuis Declaration, Exhibit E, Standards of Care for Gender Identity Disorders, Sixth Version at 18.) The only medical treatm ent that effectively relieves suffering caused by severe GID is horm one therapy or surgery to bring anatomy and appearance into alignm ent with gender identity. (PRDFOF ¶ 1.)
Defendants dispute plaintiffs additional assertions of fact. In addition, plaintiffs’ expert, Dr. Frederic Ettner, testified that not every individual with GID needs to be on horm ones.
3 Plaintiffs incorporate by reference their response to DFOF ¶ 13 above. (PRDFOF ¶ 2.) Defendants incorporate by reference their reply to DFOF ¶ 13 above. (DReply ¶ 14.)
5
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other psychiatric diagnoses; (3) the duration of their professional relationship including the
type of psychotherapy or evaluation that the patient underwent; (4) that eligibility criteria have
been met and the mental health professional’s rationale for hormone therapy; (5) the degree
to which the patient has followed the Standards of Care to date and the likelihood of future
compliance; (6) whether the author of the report is part of a gender team; and (7) that the
sender welcomes a phone call to verify that the mental health professional wrote the letter.
(DFOF ¶ 15.) The Standards of Care state that “[g]enital surgery is not a right that must be
granted upon request.” (Doc. No. 5, Dupuis Declaration, Exhibit E, Standards of Care for
Gender Identity Disorders, Sixth Version, p. 18).4 (DFOF ¶ 16.)
During the deposition of plaintiff Vankemah Moaton on June 21, 2007, plaintiffs’
counsel Laurence Dupuis voiced the following objection:
I’m going to object and actually direct [Moaton] not to answer questions about her interactions with – about her taking hormones prior to 2004 on grounds of Fifth Amendment Privilege.
(Schmelzer Aff., Exhibit 531, p. 18). (DFOF ¶ 17.) During the deposition of plaintiff
Vankemah Moaton on June 21, 2007, plaintiffs’ counsel, Laurence Dupuis, voiced the
4 Plaintiffs do not dispute that this is an accurate quotation from the Standards of Care. However, plaintiffs assert that this proposed finding of fact is im m aterial. This action does not seek any particular form of treatment for plaintiffs, nor do plaintiffs claim that genital surgery is a right that must be granted upon request, to them or to anyone else. Rather, plaintiffs seek the treatm ents that DOC physicians determine to be medically necessary for them based on individualized evaluation. Before the provision of sex reassignment surgery could even be considered, a GID diagnosis m ust be m ade, which includes a finding of “clinically significant distress or impairment in social, occupational, or other important areas of functioning.” (Knight Decl., Exh. 232, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition - Text Reference (DSM-IV) at 581.) In addition, the Standards of Care do not perm it genital surgery until the patient with GID has m et strict eligibility and readiness criteria. Sex reassignment surgery is not cosmetic or elective; rather, for som e individuals with severe GID, it is the only effective treatment for their condition. Some such individuals suffer so profoundly without effective GID treatm ent that they m utilate their own genitals, essentially perform ing their own m akeshift sex reassignment surgery. For anatom ic m ales with severe GID, “having a fem ale anatom y reconstructed is their therapy.” (Knight Decl., Exh. 218, F. Ettner Dep. Tr. at 34.) (PRDFOF ¶ 3.)
As to plaintiffs’ objections, defendants m aintain that this proposed finding is m aterial in that it supports their view that not every application of the Inmate Sex Change Prevention Act, W is. Stat. § 302.386(5m ), is unconstitutional. (DReply ¶ 16.)
6
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following objection to defense counsel’s inquiry about feminizing procedures Moaton has had done:
On these procedures I’m going to direct [Moaton] not to answer any questions after the end of 2000 on the same grounds as before, so she can describe things that happened up until the end of 2000. (Schmelzer Aff., Exhibit 531, p. 36). (DFOF ¶ 18.) Dr. Randi Ettner’s report notes that Moaton “underwent facial and body feminizing procedures to attain an authentic female presentation. She began taking hormones eleven years ago.” The report adds that while in prison in Minnesota, Moaton “was able to taper off medication.” (Schmelzer Aff., Exhibit 527, pp. 8).5 (DFOF ¶ 19.) A portion of Dr. Ettner’s report reads: “[g]ender identity disorder, previously known as transexualism, is an extremely rare and misunderstood disorder, with an incidence of 1 in 11,900 natal males and 1 in 30,400 females.” (Schmelzer Aff., Exhibit 526, p. 1). (DFOF ¶ 20.) Continuing, Dr. Ettner’s report states that, “[h]owever, as the field matured, professionals became aware that not all persons with bona fide gender identity disorders desired or were candidates for sex reassignment surgery.” (Schmelzer Aff., Exhibit 526, p. 10). (DFOF ¶ 21.) Another portion of Dr. Ettner’s report provides that, “[i]n select cases, incarcerated persons who meet these criteria may be candidates for medically ordained surgical treatment.” (Schmelzer Aff., Exhibit 526, p. 13). (DFOF ¶ 22.)
5 Plaintiffs do not dispute that these are accurate quotations of portions of Dr. Randi Ettner’s report. However, they dispute defendants’ suggestion that because plaintiff was taken off hormones for a time several years ago means that they are not medically necessary now. (PRDFOF ¶ 4.)
Defendants dispute plaintiffs’ additional assertions of fact. This dispute, however, is not material as it related to the defendants’ motion for sum m ary judgm ent. (DReply ¶ 19.)
7
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Dr. George Brown’s report advises that “SRS is a last resort treatment, reserved
for those who have not been able to find less invasive ways to treat their condition.”
(Schmelzer Aff., Exhibit 516, p. 9). (DFOF ¶ 23.) The deposition of Lindsay Blackwell’s
deposition of May 2, 2006, included the following exchange:
Q: So you feel that the Department of Corrections should provide you with breast implants? A: No, with the proper stages that we’re supposed to go through. Q: Tell me what those stages are then. A: The counseling.
(Schmelzer Aff., Exhibit 534, p. 36).6 (DFOF ¶ 24.) The following was stated during the May
3, 2006, deposition of Andrea Fields:
Q: Do you want to have other surgeries? A: Yes. Q: What other surgeries do you want to have. A: I want to do the whole sex change. Q: Okay. So that – is that what’s known as gender reassignment surgery? A: Yes. Q: Are you also looking to – strike that. Do you feel like you’re ready for that now? A: Yes, I am. Q: Do you feel that that’s something that the Department of Corrections should provide for you?
6 Plaintiffs do not dispute the accuracy of this quotation. However, they take issue with defendants’ implication that this quotation means that medically necessary treatm ent is determined by a transgender inmate evaluation by a medical provider, and that sex reassignment surgery is never medically necessary for inm ates. It has been stated that gender dysphoria resulting from GID “appears to intensify over a lifetim e, escalating with age.” (Knight Decl., Exh. 217, June 28, 2006 R. Ettner Report at 13; Knight Decl., Exh. 216, Kallas Dep. Tr., 7/19/07, at 82.) Several opinions expressed in this case are that the determ ination that hormones or surgery are m edically necessary treatm ents for some inmates with GID does not take place until after they have been incarcerated. For some individuals with GID, sex reassignment surgery is a medically necessary treatment that eliminates gender dysphoria. (PRDFOF ¶ 5.)
Defendants dispute plaintiffs’ additional assertions of fact. The suggestion that hormones or surgery would be imposed upon an inmate with GID who does not want this form of treatment is inconceivable. The Standards of Care expressly require inform ed consent for initiation of horm one treatm ent, and further require, at a minimum, patient consent for reassignment surgery. The medical necessity of these forms of treatm ent is also disputed.
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A: No.
(Schmelzer Aff., Exhibit 535, pp. 75-76).7 (DFOF ¶ 25.) Kari Sundstrom’s deposition of May
3, 2006, included the following:
Q: Do you believe that the Department of Corrections should provide you with gender reassignment surgery? A: Do I? Q: Yeah. A: For me personally? Not for me.
(Schmelzer Aff., Exhibit 536, p. 36)8 (DFOF ¶ 26.)
Walter Kautzky’s report submits that, “Gender Identity Disorder and the
presentation of effeminate characteristics create challenges in a prison setting, but those
problems are not different than complexity of mental illness or HIV positive inmates.”
(Schmelzer Aff., Exhibit 533, pp. 15-16).9 (DFOF ¶ 27.) Walter Kautzky testified on May 31,
2007:
Q: So let me see if I understand you correctly. If a prisoner is perceived as being sexually available, is it your testimony that that increases the possibility that the prisoner may be sexually assaulted by other prisoners? A: That’s correct, yes. Q: Is it your belief that inmates who cross-dress are perceived as sexually available?
7 Plaintiffs incorporate by reference their response to DFOF ¶ 24, supra. (PRDFOF ¶ 6.) Defendants incorporate by reference their response to DFOF ¶ 24 supra. (DReply ¶ 25.)
8 Plaintiffs incorporate by reference their response to DFOF ¶ 24 supra. (PRDFOF ¶ 7.) Defendants incorporate by reference their response to DFOF ¶ 24 supra. (DReply ¶ 26.)
9 Plaintiffs do not dispute the accuracy of this quotation, but dispute defendants’ im plication that this quotation m eans that inm ates with GID dem and m ore correctional resources than do other inm ates. Mr. Kautzky testified that he has never known inm ates with GID to create extra staffing burdens. (PRDFOF ¶ 8.)
Defendants dispute plaintiffs’ additional assertions of fact. Atherton has stated that fem inization of inm ates in a m ale prison increases the work demand of existing staff, and that this will cause resources to be drawn from attendance to the other operations duties in the institution that are also likely to involve safety and control. Defendants further assert that this is not a dispute of m aterial fact as it relates to the defendants’ motion for summary judgment. (DReply ¶ 27.)
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A: Yes. Q: Is it your belief that inmates who display effeminate characteristics are viewed as sexually available? A: Yes.
(Schmelzer Aff., Exhibit 533, pp. 34-35).10 (DFOF ¶ 28.) Walter Kautzky testified on May 31,
2007, stating:
Q: Would it present security concerns for a male inmate to spend a year living as a female inmate?
10 Plaintiffs do not dispute the accuracy of this quotation. However, they dispute defendants’ im plication that this means that inmates who receive medically necessary treatm ent for GID are perceived as more sexually available by other inmates and will consequently be sexually assaulted following hormone therapy. Any im plication regarding the effects of cross-dressing is im m aterial, because this lawsuit does not involve clothing. Cross-dressers or transvestites are a distinct category from transsexuals or people with GID. The DSM lists Transvestic Fetishism as a separate diagnosis from GID. Furtherm ore, individuals with effem inate characteristics do not necessarily have GID. “Fem ininity is a broad range. Som e [fem inine inm ates] m ay have GID. Som e m aybe not.” (Knight Decl., Exh. 221, Atherton Dep. Tr. at 35.) In addition, it is im possible to predict or generalize about the am ount of external fem inization that results from adm inistration of horm one therapy to individuals with GID. “Heredity lim its the tissue response to horm ones and this cannot be overcom e by increasing dosage. The degree of effects actually attained varies from patient to patient.” (Docket No. 5, Dupuis declaration, Exhibit E, Standards of Care at 14.) The degree to which horm one therapy induces feminization for a particular person with GID cannot be ascertained by prison security experts, but rather can only be determ ined by medical experts. Defendants produce no evidence indicating that denying medically necessary treatments to an inm ate with GID decreases effem inate dem eanor or sim ilar characteristics.
Plaintiffs further dispute any im plication that this quotation means Kautzky believes that inm ates with GID are more vulnerable because they take horm ones or that GID treatm ent cannot be adm inistered in a prison setting. Kautzky testified that prison adm inistrators should follow m edical instructions. Moreover, Kautzky testified that, if an inmate was at risk of suicide or self-harm without sex reassignment surgery, and if a prison comm ittee of health care providers recom m ended that surgery be provided to that inmate, then prison administrators “would have to take those steps based on the best medical advice that they had.” (Knight Decl., Exh. 220, Kautzky Dep. Tr. at 185-86.) (PRDFOF ¶ 9.)
As to plaintiffs’ additional assertions of fact, defendants submit that plaintiffs’ expert describes the fem inizing effects horm ones have on a m ale inm ate:
Testosterone is a very potent hormone, and reversing its effects is not entirely possible. However, administering estrogen compounds and anti-androgenic compounds creates changes in the brain, and visible changes in the body, of a natal m ale. These include: Notable increase in breast size, smoothing and softening of skin, change in subcutaneous fat distribution, shortening of the penis, loss of size and volum e of the testes, reduction in the size of the prostate gland, change in lipid profile, and preservation of bone mass. (Schmelzer Aff., Docket No. 124, Exhibit 526, p. 11) (emphasis added). To argue male inmates on female horm one therapy do not display effem inate characteristics is nonsensical and contrary to Dr. Ettner’s opinion. Indeed, the Act in question only applies when horm ones are used “to sim ulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears m ore like the opposite gender.” W is. Stat. § 302.386(5m )(a)(1). Sim ilarly, only surgical procedures that “alter a person’s physical appearance so that the person appears m ore like the opposite gender” are prevented under the Act. W is. Stat. § 302.386(5)(a)(2). (See also, PFOF ¶ 6). The remainder of the plaintiffs’ assertions are not m aterial facts as it relates to the defendants’ m otion for sum m ary judgm ent. (DReply ¶ 28.)
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A: Would it present security concerns. And I think my answer would be there probably would be security concerns for any highly effeminate inmate whether they were undergoing gender identity disorder, real life experience or not. And I think the research from BJS is real clear that inmates who are highly effeminate or known homosexuals or in other cases, you know, known transgender inmates may, you know, not be homosexual, have nothing to do with homosexuality do, in fact, by virtue of presenting themselves as highly effeminate people present additional security concerns, yes.
(Schmelzer Aff., Exhibit 533, p. 155).11 (DFOF ¶ 29.) Walter Kautzky further testified:
Q: All other things being equal, is an inmate who is more feminine than another inmate at increased risk of victimization? A: According to the research, yes. Q: And you agree with that? A: Yes, sir.
(Schmelzer Aff., Exhibit 533, p. 161). (DFOF ¶ 30.) Continuing, Kautzky stated:
Q: Would you agree with me that correctional institutions should not create conditions that make inmates more vulnerable to assault? A: Would I agree that institutions should not make – create conditions that would make inmates more vulnerable to assault? Yes, I would agree with that.
(Schmelzer Aff., Exhibit 533, pp. 161-162). (DFOF ¶ 31.)
On June 20, 2007, Matthew Davison was deposed and testified:
11 Plaintiffs do not dispute the accuracy of this quotation. However, this proposed finding is m isleading because it is taken out of context. This quotation refers to the Real Life Experience, a period of living as a different gender that is recomm ended by the Standards of Care prior to certain form s of sex reassignment surgery. The Real Life Experience m ay be possible in a prison setting. Regardless, however, facilitation of the Real Life Experience in a prison setting is not at issue in this case. Furtherm ore, even if the Real Life Experience were relevant to this case, it is not a prerequisite for adm inistration of hormone therapy. The Standards of Care acknowledge that some form s of sex reassignment surgery can be appropriate even without RLE. Contrary to defendants’ im plication, provision of hormone therapy or sex reassignm ent surgery does not necessarily require the prison to facilitate a fem ale gender role for an inm ate by providing access to m akeup or fem ale clothing, nor do plaintiffs seek this. (PRDFOF ¶ 10.)
Defendants submit that as to plaintiffs’ additional assertions, Mr. Kautzky’s response speaks for itself. Though asked about the real life experience, Mr. Kautzky’s response was clearly broader in scope, and he clearly stated that highly effem inate inm ates present additional security concerns. (DReply ¶ 29.)
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Q: Do you think you’re able to live as a woman here in prison? A: In a male institution, it’s hard. Q: Why is that? A: The men trying to get on you, harass a lot by staff and inmates. I’m pretty much perceived as a female in here. Q: Is prison life different than life outside prison? A: Yes. Q: Is it a lot different? A: Yes. You’ve got to be much more careful. Q: Do you think they make you more of a target for men trying to get on you and harass here in prison? A: I’m not sure how to answer that. Q: Do you think some of the physical effects that you’ve seen result from – I’ll finish for the record. Some of the physical effects that you have seen from female hormones make you more of a target for men trying to get on you and being harassed here in prison? A: Yes. Q: When you say men trying to get on you, what do you mean by that? A: Trying to have sex.
(Schmelzer Aff., Exhibit 532, pp. 43-44). (DFOF ¶ 32.) According to plaintiff Matthew
Davison, another inmate raped Davison and, in a separate incident, was also molested by yet
another inmate. (DFOF ¶ 33.)
In this action, plaintiffs ask that DOC health care providers be allowed to provide
them with medically necessary treatments for their serious health condition, Gender Identity
Disorder (GID).12 (PFOF ¶ 1.)
Gender Identity Disorder and its Treatment
GID is a serious health condition classified in the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edition - Text
12 Defendants dispute that plaintiffs have a serious m edical need that requires m edically necessary treatments. (DRPFOF ¶ 1.)
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Revision).13 (PFOF ¶ 2.) In its most severe manifestation, GID is referred to as transsexualism. The DSM is the official diagnostic manual used by nearly all mental health providers.14 (PFOF ¶ 3.) Ordinarily, a GID diagnosis is made when the following criteria are present: 1) a strong and persistent cross-gender identification; 2) a persistent discomfort with one’s sex or a sense of inappropriateness in the gender role of that sex; 3) the disturbance is not concurrent with a physical intersex condition; and 4) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.15 (PFOF ¶ 4.) Also, cross-gender identification cannot be reversed through psychotherapy. (PFOF ¶ 5.) According to Dr. Frederic Ettner, M.D.: “Once you’re born with gender identity disorder, you stay with gender identity disorder, whether you’re withdrawn from therapy or on therapy.” (Knight Decl., Exh. 218, F. Ettner Dep. Tr. at 32.)
To alleviate the psychological distress or impairment caused by GID, many male-to-female transsexuals seek to express their female gender identity through appearance, mannerisms, name and pronoun choices, or by otherwise identifying and expressing themselves as women. (PFOF ¶ 6.) Significantly, many do so well before hormone therapy.
Transsexual health experts have determined that hormone therapy and sex reassignment surgery are medically necessary treatments for some individuals with GID. This determination is supported by the Standards of Care, which are accepted worldwide, and
13 Defendants dispute that “GID is a serious health condition.” (DRPFOF ¶ 2.) 14 Defendants dispute. (DRPFOF ¶ 3.) 15 Defendants do not dispute that this is the diagnostic criteria for GID in the DSM-IV. Defendants object to the statement “GID is properly diagnosed when the following criteria are present” as not supported by the evidentiary material cited. (DRPFOF ¶ 4.)
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represent the consensus of professionals regarding the psychiatric, medical and surgical
management of GID. Untreated GID “will cause disastrous results quite often.” (Knight Decl.,
Exh. 213, R. Ettner Dep. Tr. at 51.) No treatments can substitute for hormone therapy or sex
reassignment surgery for people with GID who have a medical need for such treatments.16
(PFOF ¶ 7.)
DOC medical personnel agree that hormone therapy and sex reassignment
surgery are medically necessary treatments for some individuals with GID. As Dr. David
Burnett, DOC Medical Director, stated in his deposition of June 12, 2006:
Q: Is it your professional medical opinion that gender identity disorder is a health condition that requires treatment? A: Yes, I would agree with that, that it requires treatment and evaluation. Q: To your knowledge, what are the commonly-accepted forms of treatment for gender identity disorder? A: My understanding is there is what is referred to as the triad system in terms of hormonal therapy, living in a real-life situation and surgical therapy.
16 Defendants dispute. Transgender issues and GID do not result in a serious medical need and do not require treatm ent. Rather, each transgender individual decides which options to pursue and how far and how fast to go with regard to these life-changing options. Som e elect horm one therapy without surgery. Som e elect cosmetic surgery. Som e cross-dress and cross identify in select circum stances only. Each individual does what they need and can accept and can afford, not what is “required.” It is undisputed that the Standards of Care state:
However, the diagnosis of GID invites the consideration of a variety of therapeutic options, only one of which is the com plete therapeutic triad. Clinicians have increasingly becom e aware that not all persons with gender identity disorders need or want all three elem ents of triadic therapy. .... The therapist should make clear that it is the patient’s right to choose among many options. .... Horm one therapy can provide significant comfort to gender patients who do not wish to cross live or undergo surgery, or who are unable to do so. .... Although professionals m ay recom m end living in the desired gender, the decision as to when and how to begin the real-life experience remains the person’s responsibility. (Docket No. 5, Dupuis Declaration, Exhibit E, Standards of Care for Gender Identity Disorders, Sixth Version, pp. 3, 10, 12, 15.) W hether this choice is term ed “treatm ent” by plaintiffs’ experts and the SOC or not, it cannot be disputed that a GID patient chooses what conditions would sufficiently alleviate distress caused by their condition. (DRPFOF ¶ 7.)
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(Knight Decl., Exh. 222, Burnett Dep. Tr. at 35-36.) Dr. Kevin Kallas, DOC Mental Health Director, agrees that “gender identity disorder is a condition that needs treatment, and to prohibit that treatment in a blanket way without taking into account the individual circumstances of offenders is not a good idea.” (Knight Decl., Exh. 215, Kallas Dep. Tr., 6/12/06, at 14-15.) He further agrees that the DOC considers treatment necessary for some inmates with GID, and that Act 105 “takes away medically necessary treatment.” (Knight Decl., Exh. 215, Kallas Dep. Tr., 6/12/06, at 14-15.)17 (PFOF ¶ 8.)
DOC medical personnel admit that for some individuals, failure to provide medically necessary hormone therapy could cause adverse consequences to psychological well-being, including ongoing gender dysphoria, depression, anxiety, and, for some, even suicidal ideation. Other risks of not providing hormone therapy to a person with GID include “a higher risk of alcohol and drug use or dependency issues. . . . [and] some increased risk of borderline behaviors which could involve cutting on one’s self, as an example.” (Knight Decl., Exh. 224, Hull Dep. Tr. at 28.)18 (PFOF ¶ 9.) Hormone therapy might relieve the desire to self-castrate that is sometimes caused by GID. Hormone therapy is one of the mainstays of treatment for GID.19 (PFOF ¶ 10.)
17 Defendants object to the statem ent that “sex reassignm ent surgery” is “medically necessary treatm ent [] for some individuals with GID” as not supported by the evidentiary materials cited. Defendants do not dispute that these were statem ents made by Dr. Kallas and Dr. Burnett, but dispute the accuracy of those opinions. (DRPFOF ¶ 8.)
18 Defendants do not dispute that these were the opinions of Dr. Kallas, Mr. Greer, and Dr. Hull, but dispute the accuracy of those opinions. (DRPFOF ¶ 9.)
19 Defendants object to the statem ent “[h]orm one therapy m ight relieve the desire to self-castrate that is som etim es caused by GID” as not supported by the evidentiary materials cited. Defendant do not dispute that the rem ainder of this proposed finding is the opinion of Dr. Kallas, but dispute the accuracy of those opinions. (DRPFOF ¶ 10.)
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For a treatment to be medically necessary, it does not have to be a treatment for an emergency condition, but could be a chronic condition like gender dysphoria.20 (PFOF ¶ 11.) DOC personnel agree that, for some prison inmates with GID, sex reassignment surgery could be medically necessary.21 (PFOF ¶ 12.) Hormone therapy provided by DOC physicians is medically necessary care for the plaintiffs. In the deposition of Dr. David Burnett, DOC Medical Director, taken on June 12, 2006, the following was said:
Q: Do you have an opinion about whether the hormone therapy that those three inmates are receiving is medically necessary? A: Well, I believe that it is. Q: Why do you believe that? A: Well, I don’t believe that our physicians would prescribe it if it wasn’t medically necessary. (Knight Decl., Exh. 222, Burnett Dep. Tr. at 53-54.) Dr. Randi C. Ettner, who conducted evaluations of each plaintiff, agrees that hormone therapy is medically necessary for the plaintiffs that Dr. Ettner examined.22 (PFOF ¶ 13.) Removing an individual with GID from existing hormone therapy treatment creates the risk of negative health consequences on one or more body systems, including the brain and the metabolic systems, and can cause loss of bone density, increased risk of infection, and elevated lipids, leading to a heightened risk of heart disease or stroke. In addition to these medical risks and consequences, hormone withdrawal is accompanied by
20 Defendants do not dispute that this is the opinion of Dr. Kallas, but dispute the accuracy of those opinions. (DRPFOF ¶ 11.)
21 Defendants object to this proposed finding as not supported by the evidentiary m aterials cited. (DRPFOF ¶ 12.)
22 Defendants do not dispute that this accurately recites Dr. Burnett’s deposition testim ony, and that Dr. Ettner found a m edical necessity for each plaintiff, but dispute the accuracy of those opinions. (DRPFOF ¶ 13.)
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psychological and emotional risks and consequences, including depression and suicidal thoughts. (PFOF ¶ 14.)
DOC medical personnel agree that severe mental and physical health risks are associated with removing individuals with GID from hormone therapy treatment. Suicidal ideation is one risk of removing a patient with GID from their hormone therapy. Other medical consequences of hormone withdrawal include risk of self-mutilation; reversal or partial reversal of the changes induced by the hormones (such as breast development or redistribution of body fat); menopause-like symptoms; hot flashes, hair loss, mood swings, depression, and agitation; gender dysphoria, and a sense of loss. “Any preexisting psychiatric condition could worsen on the basis of being off hormones,” including depression. (Knight Decl., Exh. 215, Kallas Dep. Tr. 6/12/06, at 33-35.) Some of these risks may require treatment with antidepressants or psychotropic medications. Restoration of hormones reverses these effects.23 (PFOF ¶ 15.)
DOC administrative personnel agree that on health care matters, deference should be given to DOC health care staff. In the deposition of Judy Smith, Warden of Oshkosh Correctional Institution, taken on August 15, 2007, the following was stated:
Q: Would it be fair to say that you would defer to prison psychiatrists and psychologists in determining whether or not a particular condition warrants treatment in the prison setting? A: Yes.
23 Defendants object to the statem ent that DOC m edical personnel agree that “severe m ental and physical health risks” are associated with removing individuals with GID from horm one therapy treatment, as not supported by the evidentiary m aterials cited. They do not dispute the rem ainder of this proposed finding. (DRPFOF ¶ 15.)
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(Knight Decl., Exh. 225, Smith Dep. Tr. at 59.) (PFOF ¶ 16.) Prison security experts agree that they should follow the advice of prison health care providers regarding health care issues. (PFOF ¶ 17.)
Male-to-female transsexual inmates who seek hormone therapy in prison, notwithstanding any risks they perceive from any feminizing effects of those hormones, often express their feminine identity even in the absence of treatment or in ways that supplement the effects of the hormones.24 (PFOF ¶ 18.) Act 105
Prior to the passage of Act 105, DOC provided hormone therapy where medically necessary for inmates with GID.25 (PFOF ¶ 19.) Sometimes, DOC prescribes hormone therapy for reasons that do not have to do with GID, such as estrogen replacement therapy in post-menopausal years, or for inmates with a congenital or hormonal disorder that requires the administration of hormone therapy. (PFOF ¶ 20.) Only inmates with GID are singled out for the denial of medically necessary treatment.26 (PFOF ¶ 20, amended.)
The sponsors of Act 105 labeled it the “Inmate Sex Change Prevention Act.” (PFOF ¶ 21.) Press releases were issued by the sponsors of Act 105 prior to passage of the legislation stating that it was intended to prevent “bizarre taxpayer funded sex change procedure,” (Knight Decl., Exh. 227, Margolies Dep. Tr. at 29; Knight Decl., Exh. 246,
24 Defendants object to this proposed finding on the grounds that the evidentiary m aterials cited herein does not support this general proposition. (DRPFOF ¶ 18.)
25 Defendants do not dispute that DOC provided horm one therapy to some inm ates with GID prior to the passage of Act 105. They dispute that horm one therapy was medically necessary. (DRPFOF ¶ 19.)
26 Defendants dispute the statem ent “[o]nly inm ates with GID are singled out for the denial of medically necessary treatment.” (DRPFOF ¶ 20.)
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Margolies Dep. Exh. 266), and to stop the DOC policy of “[allowing] pharmacists within the

corrections system to give hormones to an inmate diagnosed with gender identity disorder.”

(Knight Decl., Exh. 227, Margolies Dep. Tr. at 29; Knight Decl., Exh. 246, Margolies Dep. Exh.

267.) (PFOF ¶ 22.) Several of the press releases noted that the issue of sex reassignment

treatment for inmates came to light when they learned that a Wisconsin transgender inmate

was receiving treatment that led her to develop “female characteristics, such as breasts.”

(Knight Decl., Exh. 227, Margolies Dep. Tr. at 27-28; Knight Decl., Exh. 246, Margolies Dep.

Exhs. 263, 265.) (PFOF ¶ 23.)

The legislative history of Act 105 shows that it was conceived and intended to

prevent administration of treatment for Gender Identity Disorder. The record does not

disclose any other medical testimony or arguments based on medical opinion that were presented during the only other hearing concerning Act 105. (Assembly Bill 184)27 (PFOF

¶ 24.)

Officially, DOC took a neutral position on Act 105.28 (PFOF ¶ 25.) However,

DOC medical personnel oppose Act 105's limitation on medical decision-making. In his

March 2005 Senate testimony regarding Act 105, Dr. Kallas stated that the cons of Act 105

“far outweighed the pros” (Knight Decl., Exh. 215, Kallas Dep. Tr., 6/12/06, at 114-15), and

that GID “is worthy of treatment in selected cases.” (Knight Decl., Exh. 215, Kallas Dep. Tr.,

6/12/06, at 129; Knight Decl., Exh. 249, Kallas Dep. Exh. 17.) He advised that taking away

27 Defendants object because the evidentiary m aterial cited does not support this proposed finding of fact, and because the evidentiary m aterial cited lacks sufficient foundation to support the propositions contained in this proposed finding. (DRPFOF ¶ 24.)
28 Defendants do not dispute that DOC testified “for inform ation only” of Act 105, and assert that it is rare that DOC “do it any other way.” (Knight Decl., Exh. 227, Robert Margolies Dep. Tr. at 79-81.) (DRPFOF ¶ 25.)
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hormones from inmates for whom they are medically necessary may cause those inmates to
“become distressed or despondent; may go to point of clinical depression or an anxiety
disorder, or suicidality; increase in staff time for mental health care, or placement on WRC;
may lead to increase in disruptive behavior and segregation time; increase in psychotropic
medication (Antidep) (offset any cost savings).” (Knight Decl., Exh. 215, Kallas Dep. Tr.,
6/12/06, at 129; Knight Decl., Exh. 249, Kallas Dep. Exh. 17.) (PFOF ¶ 26.)
Dr. David Burnett, DOC Medical Director, testified in his June 12, 2006,
deposition:
A: Well, my opinion on Act 105 is a general one that I don’t believe that medical care ought to be legislated and that medical care ought to be left to clinicians. I think it’s bad public policy to get into legislating health care in terms of specifics like this. Q: When you say “like this,” do you mean the prohibition of care to transgender inmates? A: Correct . . .
(Knight Decl., Exh. 222, Burnett Dep. Tr. at 90.) (PFOF ¶ 27.)
James Greer, Bureau Director for DOC Health Services, had the following
deposition exchange:
Q: Would you agree that this Act takes away the ability of the Department of Corrections’ doctors to rely on their own medical judgment about providing hormones? A: Yes. Q: Can you tell me your views of the Act, its pros and cons? A: I guess the legislature – legislation basically takes away the autonomy of physicians to practice medicine to the best of their ability. Q: Do you think that’s a good thing or a bad thing? A: I think it’s a bad thing. Q: So in your view the medical judgment ought to remain within the doctors within the Department of Corrections? A: That’s my opinion, yes.
(Knight Decl., Exh. 223, Greer Dep. Tr. at 33-34.) (PFOF ¶ 28.)
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Dr. Stephen Hull was deposed on June 18, 2007, and said:
Q: Do you believe that Act 105 limits your ability to effectively treat GID? A: Yes.
(Knight Decl., Exh. 224, Hull Dep. Tr. at 59.) (PFOF ¶ 29.)
The cost of providing hormone therapy is low, in absolute terms and in terms
relative to the cost of providing medical treatment to address problems caused by untreated
GID. The cost of sex reassignment surgery is no greater than several other surgical procedures provided to inmates.29 (PFOF ¶ 30.)
Act 105 has prevented DOC from undertaking thorough evaluation of several
inmates to determine what forms of GID treatment are medically necessary and appropriate for them, because such evaluations would be futile under Act 105.30 (PFOF ¶ 31.)
DOC leadership rejects that notion that refusing to provide medically necessary
treatment for inmates with GID increases prison security or saves money. In the deposition
of Warden Judy Smith, taken on August 15, 2007, the following was stated:
Q: Do you think somebody being a transgendered prisoner makes them more likely to be the victim of sexual assault? A: No. Q: Do you think the fact that somebody is receiving hormone therapy makes them to be more likely to be a victim of sexual assault? A: No.
29 Defendants object to the statem ent, “[t]he cost of sex reassignm ent surgery is no greater than are several other surgical procedures provided to inm ates” as not supported by the evidentiary materials cited. Defendants do not dispute that most expensive surgical procedures include organ transplants, such as liver, kidney and pancreas and open heart surgical procedures; that for a coronary bypass – paid $37,244.09; that for a kidney transplant – paid $32,897.00; and that genital reassignment surgery costs approxim ately $20,000. (DRPFOF ¶ 30.)
30 Defendants object to the reference to “several inm ates” in this proposed finding as not supported by the evidentiary m aterials cited. They do not dispute the two DOC inm ates were not evaluated for horm one therapy given Act 105. (DRPFOF ¶ 31.)
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Q: Do you think a prisoner’s effeminate appearance or behavior might make them more likely to be a victim of sexual assault? A: No.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 51.)
Q: Do you consider transgendered inmates to be particularly vulnerable? A: No. Q: Do you consider gay inmates to be particularly vulnerable? A: No. Q: Do you view transgendered inmates as being a higher security risk in any way? A: No. Q: What about gay prisoners? A: No.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 44.)
Q: Are you aware of any situations in which you felt there was an aggressive prisoner – or prisoner who has a risk to be violent – where you felt that that prisoner was likely to target transgendered inmates? A: No. Q: Have you ever had a potentially aggressive prisoner that you thought only wanted to attack transgendered inmates? A: No that I can recall.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 35.)31 (PFOF ¶ 32.)
In the deposition of Dr. David Burnett, DOC Medical Director, taken on June 12,
2006, the following was said:
Q: What I’m asking is whether you think that the Department of Corrections has any interests that are furthered by Act 105? A: I guess, in my opinion, I don’t see interests that are furthered by Act 105.
31 Defendants object to the statem ent “DOC leadership rejects the notion that refusing to provide m edically necessary treatm ent for inmates with GID increase prison security or saves money” as not supported by the evidentiary material cited and that the evidentiary m aterial cited lacks sufficient foundation to support this assertion. They do not dispute that this proposed finding contains accurate excerpts from Sm ith’s deposition testim ony. (DRPFOF ¶ 32.)
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(Knight Decl., Exh. 222, Burnett. Tr. at 98.) (PFOF ¶ 33.)
The plaintiffs have been in general population for the bulk of their sentences to
date.32 (PFOF ¶ 34.) OCI Warden Judy Smith testified that, during her almost eleven years
as warden at OCI, she knows of no substantiated allegations of inmate-on-inmate sexual
violence.33 (PFOF ¶ 35.) In the deposition of OCI Warden Judy Smith taken on August 15,
2007, the following was stated:
Q: Do you do anything to identify prisoners who are more likely to be victims of violence by other prisoners?
A: No.
Q: I think when we were talking about identifying potentially violent prisoners, you gave a similar answer – that there’s not really a formal process. Is there an informal process? I mean, is there observation – the observations of staff about individual inmates – would that potentially go into a determination that somebody is more at risk of being a victim of violence?
A: I think as I answered previously, I expect that staff look at everyone and be looking for signs that an inmate might be victimized – might be assaulted. You know, whichever way that it is, staff are expected to do continual daily observations. And when something – we’re seeing any kind of an adjustment issue or an inmate that is not coping well for whatever reason, then we will take steps to address that.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 39.)
Q: Are you aware of any situations in which a prisoner has been identified as potentially more assaultive than the average prisoner and something was done as a result of that?
32 Defendants do not dispute that plaintiff Sundstrom was in general population for the bulk of her DOC prison sentence, but object to the rem ainder of this proposed finding as not supported by the evidentiary materials cited. (DRPFOF ¶ 34.)
33 Defendants object to this proposed finding because it is not supported by the evidentiary m aterial cited. Sm ith testified that she does not recall any instances of prisoner-on-prisoner sexual violence at OSCI, but that she does recall investigations for this type of activity. (DRPFOF ¶ 35.)
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A: Yes.
Q: Can you explain – describe that situation?
A: I can recall a situation where an inmate arrived that had – was known to staff, and was brought to the supervisor’s attention. And, you know, we did a little closer monitoring of that particular inmate.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 30.)
A: If we separate an inmate from another, I just place that inmate in a different housing unit. There’s not generally a cost associated with that.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 37.) (PFOF ¶ 36.)
Other vulnerable inmates are provided with medically necessary care that creates even greater security concerns than the feminization due to hormones.34 (PFOF ¶
37.) There are no additional security costs associated with protecting prisoners with GID from
violence. As Warden Judy Smith testified on August 15, 2007:
Q: Okay. Are you able to identify any costs associated with protecting inmates with gender identity disorder from violence? A: I – no. Q: So there are no costs that you’re aware of? A: I’m not aware of any.
(Knight Decl., Exh. 225, Smith Dep. Tr. at 57.)
Q: Has having transgendered prisoners at Oshkosh made any difference in terms of how you staff units in which they’re living? A: No. Q: Have you ever had to ask for additional staff because of the presence of transgendered inmates? A: No.
34 Defendants object to this proposed finding because it is not supported by the evidentiary material cited. (DRPFOF ¶ 37.)
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(Knight Decl, Exh. 225, Smith Dep. Tr. at 49.)35 (PFOF ¶ 38.) Vankemah Moaton
DOC’s own medical personnel have diagnosed plaintiff Vankemah Moaton with GID and have prescribed hormone therapy for Moaton repeatedly.36 (PFOF ¶ 39.) Dr. Randi Ettner, an expert in GID diagnosis and treatment, has confirmed that Moaton has GID, that hormones are medically necessary for Moaton, and that termination of Moaton’s hormones would have devastating and potentially life-threatening consequences.37 (PFOF ¶ 40.) Defendants’ expert in another pending case involving a transgender inmate in Wisconsin concluded that termination of hormones for someone already taking them is “cruel and clinically inappropriate.”38 (PFOF ¶ 41.) Dr. Daniel Claiborn
Defendants’ psychology expert, Daniel Claiborn, testified that no one has a medical need for hormone therapy or sex reassignment surgery, because GID is not a valid psychiatric diagnosis and, even if it were, no treatment for it would be medically necessary. In the deposition of Dr. Claiborn taken on June 12, 2007, the following was said:
35 Defendants do not dispute these are accurate excerpts from Sm ith’s deposition testim ony, however, objects to the statem ent “[t]here are no additional security costs associated with protecting prisoners with GID from violence” because the evidentiary m aterial cited lacks sufficient foundation to support this broad assertion. W hile this may be the case at OSCI and W arden Sm ith’s experience, she never testified as to the experiences of GID inm ates in other facilities with other security levels, security classifications, and/or different classifications of inm ates. (DRPFOF ¶ 38.)
36 Defendants do not dispute, but assert that horm one therapy is not m edically necessary treatment. (DRPFOF ¶ 39.)
37 Defendants do not dispute that this is Dr. Ettner’s opinion, but dispute the accuracy of those opinions. (DRPFOF ¶ 40.)
38 Defendants do not dispute that this was the opinion of Cynthia S. Osborne, MSW , in another case, but dispute the accuracy of that opinion. (DRPFOF ¶ 41.)
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Q: Who hired you in this case? A: The State of Wisconsin. Q: Who contacted you first? A: Jody Schmelzer. Q: And what did Jody ask you to do? A: She asked me to review the records on – with regard to these plaintiffs, and offer opinions not so much about these particular plaintiffs, but about the issues having to do with medical necessity and requirement to treat gender identity disorder as a mental illness.
(Knight Decl., Exh. 231, Claiborn Dep. Tr. at 11.)
A: . . . The opinions I outline in my report are: One, that I don’t believe gender identity disorder is a mental disorder or a mental illness. And, secondly, that since it isn’t a mental disorder or mental illness, I don’t believe that medical treatment is a requirement for people who find themselves in that situation. The third opinion would be that I don’t believe that the DSM and the process behind that is scientific or authoritative in the strictest scientific sense in terms of outlining and defining mental disorders. I think those are the primary ones.
(Knight Decl., Exh. 231, Claiborn Dep. Tr. at 13-14.)
Q: Do you think transgender people who have taken hormone therapy for years have a medical need for those hormones? A: No. Q: Why not? A: Well, I’m not – I don’t know – I’m not a medical doctor, and I don’t know the physiology of how their bodies are functioning. But speaking in terms of treatment for a disorder, I don’t think that they would have a need to start. It’s an option, and it’s something that they make a decision about continuing to use with the advice of their doctors in terms of the physical effects, but I’m not speaking as an M.D.
(Knight Decl., Exh. 231, Claiborn Dep. Tr. at 226-27.) (PFOF ¶ 42.)
Dr. Claiborn disclaimed any opinion about the validity of any particular plaintiff’s
diagnosis or need for treatment:
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Q: Turning to page 3 of the report, at the top you have a note about plaintiffs Moatan [sic] and Davison. Have you reviewed any records for either Moatan or Davison? A: No. Q: And you write, “It is not expected that reviewing their records will change any of the opinions contained herein.” Did I read that correctly? A: Yes. Q: Why do you not expect, or why did you not expect that reviewing their records would change your opinions? A: Because my opinions are more general about the issue of diagnosing transgender situations as mental disorders, not so much specifically about the particulars of the plaintiffs in the case. Q: So in the records of the three plaintiffs that you did review, did you see anything in those records that affected your opinion in this case? A: I didn’t see anything in the records that directly affected my opinion about the general issue of whether transgender situations are mental disorders. Q: So is it accurate to say that your review of the plaintiffs’ records did not affect your opinion about whether GID is a mental disorder? A: Yes.
(Knight Decl., Exh. 231, Claiborn Dep. Tr. at 18-19.)
Q: Did you form any opinions about the diagnoses of the plaintiffs? A: I observed in the records what their diagnoses have been, but I didn’t independently render a diagnosis on these three plaintiffs. Q: Did you ask to meet with the plaintiffs? A: No. Q: Did you form an opinion based on your review of their records as to whether they had diagnoses of GID? A: Yes. Q: What was you opinion? A: It seems as though each one of them has been diagnosed GID. Q: And were you able to evaluate or discern whether you agree with that diagnosis? A: I didn’t actually critically examine it. I took it for granted that those diagnoses were warranted.
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(Knight Decl., Exh. 231, Claiborn Dep. Tr. at 20-21.)39 (PFOF ¶ 43.) Kari Sundstrom and Lindsey Blackwell
Kari Sundstrom has been released from prison, but remains on extended supervision. (PFOF ¶ 44.) The DOC directory, Vinelink, lists Sundstrom as having “absconded.”40 (PFOF ¶ 45.) On April 20, 2007, a criminal complaint against Sundstrom was filed in Dane County Circuit Court. (PFOF ¶ 46.) Consequently, a felony warrant issued the same day. Lindsey Blackwell has been released from prison, but remains on extended supervision. (PFOF ¶ 47.)
ANALYSIS The defendants contend that, 1) summary judgment is proper on the plaintiffs’ facial challenge to the Inmate Sex Change Prevention Act because the Act is not unconstitutional in all applications; 2) plaintiffs Sundstrom and Blackwell should be dismissed inasmuch as the only relief requested is injunctive and declaratory relief; these plaintiffs are no longer in prison; and none of the incarcerated plaintiffs is housed at Racine Correctional Institution; and 3) plaintiffs cannot prevail on their equal protection claim because the Inmate Sex Change Prevention Act is rationally related to DOC’s legitimate penological goals of safety and security.41
39 Defendants dispute the statem ent that Dr. Claiborn “disclaim ed any opinion about the validity of any particular plaintiffs ... need for treatment.” (DRPFOF ¶ 43.)
40 Defendants do not dispute, for the purposes of sum m ary judgm ent only. (DRPFOF ¶ 45.) 41 In their brief-in-chief, the defendants also argued that summary judgment was proper on plaintiff Moaton’s as-applied challenge to the Inm ate Sex Change Prevention Act because no adm issible expert testim ony supported that horm one therapy was medically necessary to treat plaintiff Moaton’s gender identity disorder. However, subsequently plaintiff Moaton agreed to waive the Fifth Am endment privilege and answer questions concerning prior use (and possible withdrawal) of horm one therapy, along with prior feminizing procedures that had been done. Given this stipulation, the defendants withdrew their motion for sum m ary judgm ent on plaintiff Moaton’s as-applied challenge to W is. Stat. § 302.286(5m ). (Defs.’ Reply Br. at 1.)
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In response, plaintiffs first contend that there are disputed facts material to whether Act 105 is facially unconstitutional. They argue that Act 105 applies only when it bars doctors from prescribing medically necessary health care, and that it categorically prevents DOC medical providers from exercising their medical judgment to provide medically necessary treatment. Second, plaintiffs contend that plaintiffs Sundstrom and Blackwell’s claims for declaratory injunctive relief are not moot. Third, plaintiffs submit that there is a genuine dispute of fact whether Act 105 violates the Equal Protection Clause of the Fourteenth Amendment, and that their evidence shows that Act 105 intentionally discriminates between similarly situated classes. Also, plaintiffs assert their evidence shows that Act 105 cannot withstand the constitutionally-mandated level of scrutiny because it is not justified by defendants’ interest in maintaining prison security. Specifically, plaintiffs argue that their evidence shows that Act 105 does not rationally further defendants’ interest in maintaining prison security; that their evidence shows that prisoners have no alternative means of accessing the medical treatment at issue; that their evidence shows that accessing hormones and surgery has no significant impact on prison guards or other prisoners, or the allocation of prison resources; and that their evidence shows that Act 105 is an exaggerated response to defendants’ prison security concern. 1. Facial Challenge to the Inmate Sex Change Prevention Act
The defendants contend that plaintiffs’ facial challenge to the Act cannot succeed because the Act is not unconstitutional in all applications. According to the defendants, the Act does not apply to all inmates, because not all inmates have gender issues. For those inmates who do not have a medical need for those procedures because
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they do not have gender issues, the Act does not run afoul of the Eighth Amendment. The
defendants assert:
Clearly, the Act is not unconstitutional in all applications. In fact, the plaintiffs have, at best, only presented evidence that of the over 20,000 inmates it covers, the Act may only run afoul of the constitution as it applies to seven (7) individual inmates’ need for hormones, . . . (2) two of which [sic] the Act no longer effects . . .
(Defs. Br. in Support of Mot. for Summ. J. at 9) (internal citations omitted).
The plaintiffs contend that disputed facts material to whether the Act is facially
unconstitutional preclude granting summary judgment on the facial challenge. According to
the plaintiffs, the Act “applies” only when it bars doctors from prescribing medically necessary
health care; it does not “apply” to all DOC inmates.
Supreme Court precedent makes clear that only the relevant applications are to be considered, rejecting states’ attempts to defend legislation by pointing to the fact that some members of the general public remain unaffected. The Act is unconstitutional in all of its applications because the Act applies only where it makes a difference by actually preventing a DOC doctor from following her own medical judgment and providing medically necessary care. All of those applications violate the Eighth Amendment and the Equal Protection Clause.
(Pls.’ Resp. Br. at 6-7.) The plaintiffs offer that there is a dispute over whether the medical
care prohibited by the Act is necessary to meet a serious medical need.
In reply, the defendants assert that assuming, arguendo, the appropriate class
is limited to those inmates who desire hormone therapy and/or sexual reassignment surgery
and whose physicians would otherwise prescribe those treatments, plaintiffs cannot show that
there is no set of circumstances under which the Act could be applied constitutionally.
Thus, even for inmates who are diagnosed with GID, and even for those whose physician might otherwise prescribe
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hormonal and surgical procedures as treatment for their GID, there is no violation for Eighth Amendment purposes where prison policy or statute forbids those treatments, as long as the physician evaluates serious medical needs and prescribes an alternate treatment to address the inmate’s symptoms.
Here, the plaintiffs could prevail on their facial challenge only if they showed that, for every inmate seeking hormone therapy or surgery, only those treatments – not the myriad of treatments that remain available to inmates – could provide even palliative care. The case law forecloses that claim, and the plaintiffs do not even assert it.
(Defs.’ Reply Br. at 3.)
The plaintiffs filed a surreply42 in which they contend that defendants’ argument
that the Act has constitutional applications “is simply incorrect as a matter of law.” (Pls.’
Surreply at 2.) Plaintiffs go on state:
Plaintiffs have never claimed that they are entitled to hormone therapy or SRS because they “desire” or “choose” it. Nor do they claim it because an outside medical expert believes that the treatment is medically necessary. Instead, they claim that they have a right to the medically necessary care to treat their serious GID, as determined by DOC health care professionals in the exercise of their medical judgment. The problem with Act 105 is that it deprives Plaintiffs of medical care that DOC medical personnel believe is medically necessary for them. In the case of all of the current Plaintiffs, the undisputed medical judgment of their DOC care providers is that hormone therapy is medically necessary treatment. Defendants’ medical personnel will decide that hormone therapy and possibly even surgery in some rare cases are medically necessary for inmates in the future, but Act 105 will impermissibly prevent them from providing it. Each such instance constitutes an application of Act 105.
...
42 On Septem ber 27, 2007, the plaintiffs filed Plaintiffs’ Motion for Leave to File Surreply Brief in Opposition to Defendants’ Motion for Sum m ary Judgm ent. They seek leave to file a surreply addressing argum ents raised for the first tim e in the defendants’ reply. Plaintiffs’ m otion, which is unopposed, will be granted.
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Defendants also argue for the first time that, as long as they provide some treatment for prisoners’ GID, they have satisfied the Eighth Amendment, even if they do not provide the hormone therapy or SRS that DOC medical staff have prescribed as medically necessary. Reply Br. at 3. This is simply a misstatement of law. If a treatment is necessary to treat a medical condition, a defendant cannot escape Eighth Amendment liability by providing plainly ineffective alternative treatments. See, e.g., Edwards, 478 F.3d at 831 (7th Cir. 2007) (“a plaintiff’s receipt of some medical care does not automatically defeat a claim of deliberate indifference,” if fact-finder could determine treatment was “blatantly inappropriate”); Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir. 1990); Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (Eighth Amendment plaintiff need not prove a “complete failure to treat”); Harrison v. Barkely, 219 F.3d 132, 138 (2d Cir. 2000) (“Even if prison officials give inmates access to treatment, they may still be deliberately indifferent to inmates’ needs if they fail to provide prescribed treatment”). Again, if some hypothetical prisoners with GID could be effectively treated, in the medical judgment of DOC medical staff, without hormone therapy or SRS (perhaps with psychotherapy alone), the Act would not “apply” to them, because it imposes no restriction on their right to treatment for a serious medical need. However, for Plaintiffs, and for other prisoners for whom hormone therapy and surgery would be prescribed as medically necessary but for Act 105, the Act is unconstitutional in all of its applications.
(Surreply at 2, 4.)
Wisconsin Statute § 302.386 provides in relevant part:
(5m)(a) In this subsection:
1. “Hormonal therapy” means the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender. 2. “Sexual reassignment surgery” means surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender. (b) The department may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual
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reassignment surgery for a resident or patient specified in sub. (1).
Wis. Stat. § 302.386(5m).
“A facial challenge to a legislative Act is, of course, the most difficult challenge
to mount successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 746 (1987). In
Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833 (1992), the Court
described the appropriate class for the purpose of determining the validity of an abortion
statute:
Respondents attempt to avoid the conclusion that § 3209 is invalid by pointing out that it imposes almost no burden at all for the vast majority of women seeking abortions. They begin by noting that only about 20 percent of the women who obtain abortions are married. They then note that of these women about 95 percent notify their husbands of their own volition. Thus, respondents argue, the effects of § 3209 are felt by only one percent of the women who obtain abortions. Respondents argue that since some of these women will be able to notify their husbands without adverse consequences or will qualify for one of the exceptions, the statute affects fewer than one percent of women seeking abortions. For this reason, it is asserted, that statute cannot be invalid on its face. See Brief for Respondents 83-86. We disagree with respondents’ basic method of analysis.
The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not say that a law which requires a newspaper to print a candidate’s reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974). The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.
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Respondents’ argument itself gives implicit recognition to this principle, at one of its critical points. Respondents speak of the one percent of women seeking abortions who are married and would choose not to notify their husbands of their plans. By selecting as the controlling class women who wish to obtain abortions, rather than all women or all pregnant women, respondents in effect concede that § 3209 must be judged by reference to those for whom it is an actual rather than an irrelevant restriction. Of course, as we have said, § 3209's real target is narrower even than the class of women seeking abortions identified by the State: it is married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that in a large fraction of the cases in which § 3209 is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion. It is an undue burden, and therefore invalid.
Id. at 894-895; see also Gonzales v. Carhart, 127 S. Ct. 1610, 1639 (2007) (holding that
Partial Birth Abortion Act of 2003's ban “applies to all instances in which the doctor proposes
to use the prohibited procedure, not merely those in which the woman suffers from medical
complications”).
The case law indicates that the controlling class is determined by whom the Act
applies to. In this case, the Act applies when it bars doctors from prescribing health care that
they have determined to be medically necessary. Thus, according to plaintiffs, the Act is
unconstitutional in all applications. However, defendants contend that the Act is not
unconstitutional in all instances because DOC doctors could prescribe some other form of
treatment. Under these circumstances, according to the defendants, an inmate would be
receiving “some treatment” and thus there would be no Eighth Amendment violation.
To establish liability under the Eighth Amendment, a prisoner must show: (1)
that his or her medical need was objectively serious; and (2) that the official acted with
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deliberate indifference to the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001); see also Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir. 2000).
A serious medical need is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). Factors that indicate a serious medical need include “the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Gutierrez, 111 F.3d at 1373 (citations omitted). A medical condition need not be life-threatening to qualify as serious and to support a § 1983 claim, providing the denial of medical care could result in further significant injury or in the unnecessary infliction of pain. See Reed v. McBride, 178 F.3d 849, 852-53 (7th Cir. 1999); Gutierrez, 111 F.3d at 1371.
A prison official acts with deliberate indifference when “the official knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Prison officials act with deliberate indifference when they act “intentionally or in a criminally reckless manner.” Tesch v. County of Green Lake, 157 F.3d 465, 474 (7th Cir. 1998). Neither negligence nor even gross negligence is a sufficient basis for liability. See Salazar v. City of Chi., 940 F.2d 233, 238 (7th Cir. 1991). A finding of deliberate indifference requires evidence
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“that the official was aware of the risk and consciously disregarded it nonetheless.” Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001) (citing Farmer, 511 U.S. at 840-42).
Mere differences of opinion among medical personnel regarding a plaintiff’s appropriate treatment do not give rise to deliberate indifference. Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). However, deliberate indifference may be inferred “when the medical professional’s decision is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.” Id.; see also Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996) (citing as examples “the leg is broken, so it must be set; the person is not breathing, so CPR must be administered”).
“[T]o prevail on an Eighth Amendment claim ‘a prisoner is not required to show that he was literally ignored.’” Greeno v. Daley, 414 F.3d 645, 653-54 (7th Cir. 2005) (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)). A defendant’s contention that a medical care claim fails because the prisoner “received some treatment overlooks the possibility that the treatment [the prisoner] did receive was ‘so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate’ his condition.” Greeno, 414 F.3d at 654 (quoting Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (internal quotations omitted)).
In this case, DOC doctors have determined that hormone therapy is medically necessary to treat the plaintiffs’ GID. However, the parties disagree whether the medical treatments proscribed by the Act, hormone therapy and sex reassignment surgery, are ever medically necessary treatments for inmates with GID. If such treatments are medically necessary when doctors say that they are, and if prisoners do not receive the medically
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necessary treatment because of the Act, plaintiffs argue that the denial would violate the Eighth Amendment.
The parties agree that there are a variety of therapeutic options for persons with GID. (DFOF ¶ 13.) However, as plaintiffs point out (and as defendants dispute), that does not mean that the treatments proscribed by the Act are not medically necessary for some individuals with GID. Interfering with a doctor’s determination of “medical necessity” is serious; it may qualify as treatment “‘so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate’ his condition.” Greeno, 414 F.3d at 654 (citation omitted). At this stage, the court cannot conclude that the Act is not invalid on its face. Thus, the defendants’ motion for summary judgment as to this issue will be denied. 2. Plaintiffs Kari Sundstrom and Lindsey Blackwell
The defendants contend that plaintiffs Sundstrom and Blackwell should be dismissed because the only relief is injunctive and declaratory relief and because they are no longer in prison. Moreover, the defendants maintain that because plaintiff Blackwell was the only plaintiff in this suit residing at Racine Correctional Institution, defendants Humphreys and Nygren should be dismissed from this case.
The plaintiffs do not oppose the dismissal of defendants Humphreys and Nygren, but reserve the right to seek amendment of the pleadings should a plaintiff be assigned to Racine Correctional Institution prior to judgment. Regardless, the plaintiffs assert that plaintiffs Sundstrom and Blackwell’s claims for declaratory and injunctive relief are not moot because there is a reasonable likelihood that one or both of them might return to prison.
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To invoke Article III jurisdiction, a plaintiff seeking injunctive relief must show immediate, personal danger of sustaining direct injury. City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). In Knox v. McGinnis, 998 F.2d 1405, 1413-15 (7th Cir. 1993), the court held that a prisoner lacked standing to seek injunctive relief against the future use of a “black box” on prisoners in segregation because he had been released from segregation and had returned to the general prison population where he was no longer subjected to the use of the “black box.” In reaching its decision, the court relied upon City of Los Angeles v. Lyons, 461 U.S. 95 (1983) and O’Shea v. Littleton, 414 U.S. 488 (1974).
In Lyons, the plaintiff sued the City of Los Angeles and several police officers, alleging that the officers stopped him for a routine traffic violation and applied a choke hold without provocation. The plaintiff sought an injunction against future use of the choke hold unless the suspect threatened deadly force. The Supreme Court held that the plaintiff lacked standing to seek injunctive relief because he could not show a real or immediate threat of future harm. Lyons, 461 U.S. at 105. The Court relied upon its earlier decision in O’Shea in which it stated that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief...if unaccompanied by any continuing, present adverse effects.” O’Shea, 414 U.S. at 495-96. In O’Shea, the plaintiffs had alleged discriminatory enforcement of criminal laws. The Court held that there was no case and controversy because “the threat to plaintiffs was not ‘sufficiently real and immediate.’” Id. at 496-497. Similarly, in Lyons, the Court found that, although an allegation of an earlier choking was sufficient to confer standing for a damage claim, it did “nothing to establish a real and immediate threat” that the plaintiff would again be stopped for a traffic violation and a choke hold put on him. Lyons, 461 U.S. at 105.
38
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
In the instant case, plaintiffs Sundstrom and Blackwell cannot establish a real and immediate threat that they again will be incarcerated in a DOC institution. The mere possibility that plaintiffs Sundstrom and Blackwell may again be incarcerated in a DOC institution is too speculative and does not establish a real and immediate case or controversy. Knox, 998 F.2d at 1413-14; see also Robinson v. City of Chi., 868 F.2d 959 (7th Cir. 1989). In light of the foregoing, plaintiffs Sundstrom and Blackwell lack standing to pursue their claims for injunctive relief. Therefore, they will be dismissed from this action. Defendants Humphreys and Nygren will be dismissed as well. 3. Equal Protection Claim
The defendants contend that the Act is rationally related to DOC’s legitimate penological goals of safety and security and that they are entitled to summary judgment dismissing the plaintiffs’ equal protection claim. According to the defendants, “[i]t is undisputed that denial of hormone therapy and sex reassignment surgeries is rationally related to prison safety and security.” (Defs. Br. in Support of Mot. for Summ. J. at 16.)
In this case, it is undisputed that limiting prisoners’ access to hormone therapy and sexual reassignment surgery makes them less effeminate, and as a result, less likely that they will be victimized by other inmates. DOC has an undisputable security interest in preventing these types of assaults. As this is a ‘conceivable state of facts’ that provides a rational basis for state action, the defendants are entitled to summary judgment on plaintiffs’ equal protection claim. Id. at 17. Plaintiffs counter that there is a genuine dispute of fact whether the Act violates the Equal Protection Clause. According to the plaintiffs, their evidence shows that the Act intentionally discriminates between similarly situated classes. In addition, plaintiffs contend
39
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
that their evidence shows that the Act cannot withstand the constitutionally-mandated level
of scrutiny. Plaintiffs point to the standard of review set forth in Turner v. Safley, 482 U.S. 78
(1987), and conclude that “[b]ecause Plaintiffs’ evidence shows that Act 105 cannot withstand
the Turner standard, there are genuine disputes of material fact that preclude summary
judgment on plaintiffs’ equal protection claim.” (Pls.’ Resp. at 20.) Plaintiffs assert that their
evidence shows that Act 105 is not justified by defendants’ interest in maintaining prison
security because it is not reasonably related to it. Furthermore, plaintiffs contend that Act 105
cannot withstand even rational basis review.
Recently, the Seventh Circuit Court of Appeals reiterated the standard to be
applied in equal protection cases where no fundamental right or suspect classification is at
issue.
The purpose of the Equal Protection Clause of the Fourteenth Amendment is to “secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Vill of Willowbrok v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) (per curiam) (quoting Sioux City Bridge Co. v. Dakota County, Neb., 260 U.S. 441, 445, 43 S. Ct. 190, 67 L. Ed. 340 (1923)); Martin v. Shawano-Gresham Sch. Dist., 295 F.3d 701, 713-14 (7th Cir. 2002). Where (as here) no fundamental right or suspect classification is at issue, equal protection claims are evaluated under the rational-basis standard of review. Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277, 282 (7th Cir. 2003); Martin, 295 F.3d at 712; Hilton v. City of Wheeling, 209 F.3d 1005, 1007-08 (7th Cir. 2000). To prevail, a plaintiff must prove the following: (1) the defendant intentionally treated him differently from others similarly situated, (2) the defendant intentionally treated him differently because of his membership in the class to which he belonged, and (3) the difference in treatment was not rationally related to a legitimate state interest. Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950-51 (7th Cir. 2002); Discovery House, 319 F.3d at 282.
40
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
Smith v. City of Chi., 457 F.3d 643, 650-51 (7th Cir. 2006). Thus, the court applies rational
basis review to plaintiffs’ equal protection claim.
The defendants argue that Act 105 is rationally related to the legitimate
penological interests of safety and security. See FCC v. Beach Communications, Inc., 508
U.S. 307, 313 (1993) (Under rational basis review, there is no constitutional violation if “any
reasonably conceivable state of facts” would provide a rational basis for government action).
It is undisputed that denial of hormonal therapy and sex reassignment surgeries is rationally related to prison safety and security. Even Plaintiffs’ prison security expert, Walter L. Kautzky, acknowledged that “Gender Identity Disorder and the presentation of effeminate characteristics create challenges in a prison system” (DFOF ¶ 27), and there is no question that the intent of hormone therapy and sexual reassignment surgery is to increase the presentation of feminine characteristics. See, Wis. Stat. § 302.386(5m)(a)(1). Kautzky also concedes that inmates who display effeminate characteristics are viewed as sexually available, which increases the possibility that the prisoner may be sexually assaulted by other prisoners (DFOF ¶ 28). There is no dispute that male inmates who appear more feminine are at an increased risk of victimization (DFOF ¶ 30). According to Kautzky, inmates presenting themselves as highly effeminate in a male prison present additional security concerns (DFOF ¶ 29). Kautzky also agrees that institutions should not create conditions that would make inmates more vulnerable to assault. (DFOF ¶ 31).
Plaintiff Matthew Davison, unfortunately, has first-hand knowledge of the effects his hormone therapy has upon his safety in prison. Davison was both raped and molested while in prison, and is constantly harassed by other inmates. (DFOF ¶¶ 32, 33). Davison agrees that he is more of a target for this type of aggression by other male inmates because of the physical effects his body has seen on hormone therapy. (DFOF ¶ 32).
The crux of Kautzky’s report is an attempt to mitigate the difficulty posed by inmates who use hormones to increase their femininity by comparing them to other inmates who pose difficulties, such as inmate who have HIV or are mentally ill. However, the fact that other inmates pose security difficulties in
41
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
the prison has no bearing on whether the legislature had a rational basis for passing Wis. Stat. § 302.386(5m). The legislature need not “strike at all evils at the same time or in the same way.” Sutker v. Illinois State Dental Soc., 808 F.2d 632, 635 (7th Cir. 1986) (citing Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610 (1935)). It is sufficient that there is a problem “at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical, Inc., 348 U.S. 483, 48788 (1955). In this case, it is undisputed that limiting prisoners’ access to hormone therapy and sexual reassignment surgery makes them less effeminate, and as a result, less likely that they will be victimized by other inmates. DOC has an undisputable security interest in preventing these types of assaults. As this is a “conceivable state of facts” that provides a rational basis for state action, the defendants are entitled to summary judgment on plaintiff’s equal protection claim.
(Defs.’ Br. in Support of Mot. for Summ. J. at 16-17.)
There is no dispute that prison safety and security are legitimate penological
interests. See Overton v. Bazzetta, 539 U.S. 126, 133 (1993) (describing “internal security”
as “perhaps the most legitimate of penological goals). However, according to the plaintiffs,
their evidence shows that Act 105 does not rationally further defendants’ interest in
maintaining prison security.
Even if transsexual prisoners who present femininely are at risk of assault at the hands of male prisoners, Plaintiffs’ evidence shows that denying the medical treatment at issue does not rationally further Defendants’ interest in mitigating the risk of assault. By definition, male-to-female transsexuals experience a persistent discomfort with their assigned male sex and a strong female gender identity. (PFOF ¶¶ 2-4.) To alleviate the psychological distress or impairment caused by their GID, many such individuals whose gender identity is female express it through their appearance, mannerism, name and pronoun choices, or by otherwise identifying and expressing themselves as women. (PFOF ¶ 6.) Significantly, many seek to do so even absent surgery or hormone therapy. (PFOF ¶ ¶ 6, 18.) Thus, even without the medical treatments at issue, many male-tofemale transsexual prisoners will still identify or present
42
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Case: 10-2339 Document: 15 Filed: 09/22/2010 Pages: 196
themselves femininely, and therefore will still be at risk of assault at the hands of male prisoners. Defendants’ mischaracterization of Plaintiffs’ expert’s testimony does not change the analysis. The relevant inquiry is not whether transsexual prisoners who present femininely are at risk of assault, but rather whether denying hormones or surgery mitigates any such risk. Because denying Plaintiffs hormones or surgery does not reduce any risk of assault, it does not rationally further Defendants’ interest in mitigating the risk of assault. (Pls.’ Resp. at 22.) Based on the foregoing, the court finds that there is a genuine dispute of material fact concerning whether Act 105 is rationally related to prison safety and security. Thus, defendants’ motion for summary judgment on plaintiffs’ equal protection claim will be denied. Now, therefore, IT IS ORDERED that the defendants’ motion for partial summary judgment
(Doc. #120) is GRANTED IN PART AND DENIED IN PART as described herein.
IT IS FURTHER ORDERED that defendants Robert Humphrey and Susan
Nygren are DISMISSED.
IT IS FURTHER ORDERED that plaintiffs’ motion for leave to file surreply brief
(Doc. #163) is GRANTED.
IT IS FURTHER ORDERED that plaintiffs’ motion for leave to file surreply brief
(Doc. #163) is GRANTED. Dated at Milwaukee, Wisconsin, this 15th day of October, 2007. BY THE COURT s/ C. N. CLEVERT, JR. C. N. CLEVERT, JR. U. S. DISTRICT JUDGE
43
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 Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

Nos. 10-2339 and 10-2466 In the United States Court of Appeals
For the Seventh Circuit

ANDREA FIELDS, et al., Plaintiffs-Appellees, Cross-Appellants,
v.
JUDY P. SMITH, et al., Defendant-Appellants, Cross Appellees.

) Appeals from the United States

) District Court

) For the Eastern District of Wisconsin.

)

)

) No. 2:06-cv-00112-CNC

)

) Charles N. Clevert, Jr.,

)

Chief Judge

_________________________________________________________________________________

BRIEF AND APPENDIX OF PLAINTIFFS-APPELLEES,

CROSS-APPELLANTS

_____________________________________________________________________

John A. Knight

Jonathan K. Baum

American Civil Liberties Union

Alyx S. Pattison

Foundation, Inc.

Katten Muchin Rosenman LLP

Chicago, Illinois 60601

525 West Monroe Street

Phone: (312) 201-9740

Chicago, Illinois 60661-3693

Email: jknight@aclu-il.org

Phone (312) 902-5479

Counsel of record

Laurence J. Dupuis American Civil Liberties Union
Foundation of Wisconsin, Inc. 207 E. Buffalo Street, Suite 325 Milwaukee, Wisconsin 53202 Phone (414) 272-4032

Erik R. Guenther Hurley, Burish & Stanton S.C. 33 E. Main Street, Suite 400 P.O. Box 1528 Madison, Wisconsin 53701-1528 Phone: (608) 257-0945

M. Dru Levasseur Lambda Legal Defense and Education
Fund, Inc. 120 Wall Street, Suite 1500 New York, New York 10005-3904 Phone: (212) 809-0055

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 10-2339
Short Caption: Fields et al. v. Smith et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a nongovernmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 .
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing the item #3): Andrea Fields; Matthew Davison, also known as Jessica Davison; and Vankemah D. Moaton
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
American Civil Liberties Union Foundation, Inc.; American Civil Liberties Union Foundation of Wisconsin, Inc.; Lambda Legal Defense and Education Fund, Inc; and Hurley, Burish & Stanton S.C.
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and ____________N/A________________________________________________________________
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock: ____________N/A________________________________________________________________

Attorney's Signature:

s / John A. Knight

Date: 6-14-10

Attorney's Printed Name: John A. Knight

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes__X___ No _____.

Address: 180 N. Michigan, Suite 2300, Chicago, IL 60601

Phone Number:__(312) 201-9740________________________Fax Number:____(312) 288-5225____

E-Mail Address: jknight@aclu-il.org

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 10-2339
Short Caption: Fields et al. v. Smith et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a nongovernmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 .
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing the item #3): Andrea Fields; Matthew Davison, also known as Jessica Davison; and Vankemah D. Moaton
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
American Civil Liberties Union Foundation, Inc.; American Civil Liberties Union Foundation of Wisconsin, Inc.; Lambda Legal Defense and Education Fund, Inc; and Hurley, Burish & Stanton S.C.
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and ____________N/A________________________________________________________________
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock: ____________N/A________________________________________________________________

Attorney's Signature:

s / Laurence J. Dupuis

Date: 6-14-10

Attorney's Printed Name: Laurence J. Dupuis

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes_____ No __X___.
Address: 207 E. Buffalo Street, Suite 325, Milwaukee, Wisconsin 53202

Phone Number:__(414) 272-4032________________________Fax Number:____(414) 272-0182____

E-Mail Address: ldupuis@aclu-wi.org

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 10-2339
Short Caption: Fields et al. v. Smith et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a nongovernmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 .
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing the item #3): Andrea Fields; Matthew Davison, also known as Jessica Davison; and Vankemah D. Moaton
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
American Civil Liberties Union Foundation, Inc.; American Civil Liberties Union Foundation of Wisconsin, Inc.; Lambda Legal Defense and Education Fund, Inc; and Hurley, Burish & Stanton S.C.
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and ____________N/A________________________________________________________________
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock: ____________N/A________________________________________________________________

Attorney's Signature:

s / Erik R. Guenther

Date: 6-14-10

Attorney's Printed Name: Erik R. Guenther

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes_____ No __X___.
Address: 33 E. Main Street – Suite 400; P.O. Box 1528; Madison, Wisconsin 53701-1528

Phone Number:__(608) 257-0945________________________Fax Number:____(608) 257-5764____

E-Mail Address: eguenther@hbslawfirm.com

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 10-2446
Short Caption: Fields et al. v. Smith et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a nongovernmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 .
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing the item #3): Andrea Fields; Matthew Davison, also known as Jessica Davison; and Vankemah D. Moaton
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
American Civil Liberties Union Foundation, Inc.; American Civil Liberties Union Foundation of Wisconsin, Inc.; Lambda Legal Defense and Education Fund, Inc; Hurley, Burish & Stanton S.C., and Katten Muchin Rosenman LLP
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and ____________N/A________________________________________________________________
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock: ____________N/A________________________________________________________________

Attorney's Signature:

s / Laurence J. Dupuis

Date: 6-24-10

Attorney's Printed Name: Laurence J. Dupuis
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes_____ No __X___.

Address: 207 E. Buffalo Street, Suite 325, Milwaukee, Wisconsin 53202

Phone Number:__(414) 272-4032________________________Fax Number:____(414) 272-0182____

E-Mail Address: ldupuis@aclu-wi.org

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 10-2446
Short Caption: Fields et al. v. Smith et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a nongovernmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 .
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing the item #3): Andrea Fields; Matthew Davison, also known as Jessica Davison; and Vankemah D. Moaton
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
American Civil Liberties Union Foundation, Inc.; American Civil Liberties Union Foundation of Wisconsin, Inc.; Lambda Legal Defense and Education Fund, Inc; Hurley, Burish & Stanton S.C., and Katten Muchin Rosenman LLP
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and ____________N/A________________________________________________________________
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock: ____________N/A________________________________________________________________

Attorney's Signature:

s / John A. Knight

Date: 6-24-10

Attorney's Printed Name: John A. Knight

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes__X___ No _____.

Address:

180 N. Michigan Avenue, Suite 2300, Chicago, Illinois 60601

Phone Number:__(312) 201-9740________________________Fax Number:____(312) 288-5225____

E-Mail Address: jknight@aclu-il.org

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 10-2446
Short Caption: Fields et al. v. Smith et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a nongovernmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 .
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing the item #3): Andrea Fields; Matthew Davison, also known as Jessica Davison; and Vankemah D. Moaton
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
American Civil Liberties Union Foundation, Inc.; American Civil Liberties Union Foundation of Wisconsin, Inc.; Lambda Legal Defense and Education Fund, Inc; Hurley, Burish & Stanton S.C., and Katten Muchin Rosenman LLP
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and ____________N/A________________________________________________________________
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock: ____________N/A________________________________________________________________

Attorney's Signature:

s / Erik R. Guenther

Date: 6-23-10

Attorney's Printed Name: Erik R. Guenther

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes_____ No __X___.

Address: 33 E. Main Street – Suite 400; P.O. Box 1528; Madison, Wisconsin 53701-1528

Phone Number:__(608) 257-0945________________________Fax Number:____(608) 257-5764____

E-Mail Address: eguenther@hbslawfirm.com

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 10-2446
Short Caption: Fields et al. v. Smith et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a nongovernmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 .
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing the item #3): Andrea Fields; Matthew Davison, also known as Jessica Davison; and Vankemah D. Moaton
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
American Civil Liberties Union Foundation, Inc.; American Civil Liberties Union Foundation of Wisconsin, Inc.; Lambda Legal Defense and Education Fund, Inc; Hurley, Burish & Stanton S.C., and Katten Muchin Rosenman LLP
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and ____________N/A________________________________________________________________
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock: ____________N/A________________________________________________________________

Attorney's Signature:

s / M. Dru Levasseur

Attorney's Printed Name: M. Dru Levasseur

Date: 6-23-10

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes_____ No __X___.

Address: 120 Wall Street, Suite 1500; New York, New York 10005-3904

Phone Number:__(212) 809-8585________________________Fax Number:____(212) 809-0055____

E-Mail Address: dlevasseur@lambdalegal.org

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 10-2446
Short Caption: Fields et al. v. Smith et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a nongovernmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 .
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing the item #3): Andrea Fields; Matthew Davison, also known as Jessica Davison; and Vankemah D. Moaton
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
American Civil Liberties Union Foundation, Inc.; American Civil Liberties Union Foundation of Wisconsin, Inc.; Lambda Legal Defense and Education Fund, Inc; Hurley, Burish & Stanton S.C., and Katten Muchin Rosenman LLP
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and ____________N/A________________________________________________________________
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock: ____________N/A________________________________________________________________

Attorney's Signature:

s / Jonathan K. Baum

Date: 6-23-10

Attorney's Printed Name: Jonathan K. Baum

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes_____ No __X___.

Address: 525 West Monroe Street, Chicago, Illinois 60661-3693

Phone Number:__(312) 902-5479________________________Fax Number:____(312) 577-8672____

E-Mail Address: jonathan.baum@kattenlaw.com

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 10-2446
Short Caption: Fields et al. v. Smith et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a nongovernmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 .
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing the item #3): Andrea Fields; Matthew Davison, also known as Jessica Davison; and Vankemah D. Moaton
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
American Civil Liberties Union Foundation, Inc.; American Civil Liberties Union Foundation of Wisconsin, Inc.; Lambda Legal Defense and Education Fund, Inc; Hurley, Burish & Stanton S.C., and Katten Muchin Rosenman LLP
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and ____________N/A________________________________________________________________
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock: ____________N/A________________________________________________________________

Attorney's Signature:

s / Alyx S. Pattison

Date: 6-23-10

Attorney's Printed Name: Alyx S. Pattison

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes_____ No __X___.

Address: 525 West Monroe Street, Chicago, Illinois 60661-3693

Phone Number:__(312) 902-5479________________________Fax Number:____(312) 577-8672____

E-Mail Address: alyx.pattison@kattenlaw.com

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
TABLE OF CONTENTS
TABLE OF AUTHORITIES............................................................................................. v
JURISDICTIONAL STATEMENT ..................................................................................1
ISSUES PRSENTED BY DEFENDANTS’ APPEAL......................................................1
ISSUE PRESENTED BY PLAINTIFFS’ CONDITIONAL CROSS APPEAL .............1
STATEMENT OF THE CASE ..........................................................................................2
STATEMENT OF FACTS .................................................................................................3 I. Department Of Corrections’ Medical Leadership Criticized Act 105’s
Ban On Treatment For GID .................................................................................3
II. Act 105 Injured Plaintiffs And Other Inmates With GID By Banning The Hormone Therapy Treatment They Had Been Prescribed By Department Of Corrections (“DOC”) Physicians ...................5
III. Hormone Therapy And Sex Reassignment Surgery Are Medically Necessary Treatment For GID ..........................................................7
IV. Psychiatric And Psychological Services Alone Are Ineffective Treatment............................................................................................8
V. Act 105 Prevents DOC Medical Personnel From Prescribing Treatment They Deem Medically Necessary For Inmates With GID ................................................................................................................9
VI. The Denial Of Hormone Therapy For Inmates With GID Places Them At Risk For Severe Health Problems And Defendants Are Aware Of These Risks.................................................................................10
VII. Act 105 Does Not Increase Security..................................................................11
i

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
VIII. Act 105 Does Not Reduce Costs And Likely Imposes Additional Expenses...........................................................................................12
SUMMARY OF ARGUMENT .......................................................................................12
STANDARD OF REVIEW .............................................................................................15
ARGUMENT ....................................................................................................................15
I. Defendants’ Enforcement Of Act 105 Violates The Eighth Amendment.....................................................................................15
A. The Eighth Amendment Forbids Deliberate Indifference To Serious Medical Needs .....................................................................15
B. GID Presents An Objectively “Serious Medical Need.” ....................17
C. Refusal to Provide Medically Necessary Hormone Therapy Or Sex Reassignment Surgery Constitutes Deliberate Indifference To A Serious Medical Need ...................................................................17
D. There is No Merit to Defendants’ Contention That They Can Ban Necessary Medical Treatment for GID Because The Wisconsin Legislature Has Unfettered Authority Over Prison Health Care, The Care Is Expensive And “Curative,” And There Are Treatment Alternatives...................................................................21
1. Defendants’ Argument That The Legislature Can Without Any Medical Basis, Prohibit Treatment Deemed Medically Necessary For Plaintiffs By Defendants’ Medical Leadership Has No Merit ...................................................................................................22
a. Prison Medical Care Denials Because Of A Statute Are Subject To The Same Constitutional Standards As Other Inmate Health Care Denials ......................................................23
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
b. The Denial Of Hormone Therapy And SRS Is Not Justified By Scientific Uncertainty........................................................... 26
2. Plaintiffs Do Not Seek Expensive Curative Treatment But Only The Treatment Prescribed For Them By DOC Doctors.............................29
3. Defendants’ Provision Of Ineffective Treatment For GID Does Not Absolve Them Of Eighth Amendment Liability ........................33
II. Defendants’ Enforcement Of Act 105 Violates The Equal Protection Clause .....................................................................................34
A. Act 105 Intentionally Discriminates Against Transsexuals, Who Are Similarly Situated To Other Inmates With Serious Medical Needs .........................................................................................35
B. There Is No Rational Connection Between The Denial Of Hormone Therapy And Surgery For Transsexuals And Security .....................................................................................................37
C. There Is No Rational Connection Between The Denial Of Hormone Therapy and Surgery For Transsexuals And Avoidance Of Civil Liability .................................................................44
D. Act 105 Is Not Justified By An Interest In Cost Savings....................45
III. Act 105 Violates The Eighth Amendment And The Equal Protection Clause On Its Face...............................................................................................46
IV. The District Court Properly Applied The PLRA In Deciding The Scope Of The Injunction .....................................................................................54
V. If This Court Reverses The Decision That Act 105 Is Unconstitutional On Its Face, Denial of Class Certification Should Also Be Reversed...........56
iii

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117 A. The District Court Failed To Consider The Existence of Legal
Commonalities and Incorrectly Concluded That No Factual Or Legal Commonalities Existed................................................................57 B. The District Court Committed Legal Error By Ignoring The Presence Of A Common, Typical Legal Question ......................59 C. The District Court Failed To Consider The Relevant Factors Affecting Numerosity ...............................................................61 CONCLUSION ................................................................................................................63
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
TABLE OF AUTHORITIES Cases Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ................................................... 53 Allard v. Gomez, 9 Fed. Appx. 793 (9th Cir. 2001)............................................................ 24 Allegheny Pittsburgh Coal Co. v. Webster County, 488 U.S. 336 (1989)............................ 38 Amati v. City of Woodstock, 176 F.3d 952 (7th Cir. 1999) ................................................. 56 Ancata v. Prison Health Servs., 769 F.2d 700 (11th Cir. 1985) .......................................... 31 Anderson v. City of Bessemer City, 470 U.S. 564 (1985) ..................................................... 39 Andrews v. Chevy Chase Bank, 545 F.3d 570 (7th Cir. 2008) ...................................... 15, 57 Arreola v. Godinez, 546 F.3d 788 (7th Cir. 2008) ............................................................... 60 Baby Neal v. Casey, 43 F.3d 48 (3d Cir. 1994) .................................................................... 59 Barragan v. Evanger’s Dog and Cat Food Co., Inc.,
259 F.R.D. 330 (N.D. Ill. 2009)................................................................................ 62 Barrett v. Coplan, 292 F. Supp. 2d 281 (D.N.H. 2003) ...................................................... 25 Bell v. Duperrault, 367 F.3d 703 (7th Cir. 2004) ................................................................ 35 Berkley v. United States, 287 F.3d 1076 (Fed. Cir. 2002) ................................................... 53 Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010) ........................................................ 31 Bismark v. Lang, No. 2:02-cv-FtM-29SPC,
2006 WL 1119189 (M.D. Fla. April 26, 2006)........................................................ 25 Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010) ............................. 50
v

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ....................................................... 39 Clement v. California Dep’t of Corrections, 364 F.3d 1148 (9th Cir. 2004) ....................... 55 Cooter & Gell v. Hartmarx Corp. 496 U.S. 384 (1990) ........................................................ 57 Dhamer v. Bristol-Meyers Squibb Co., 183 F.R.D. 520, 525 (N.D.Ill. 1998) ...................... 61 Daniels v. Area Plan Comm’n of Allen County, 306 F.3d 445 (7th Cir. 2002) ............ 51, 52 De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225 (7th Cir. 1983) ...................... 60, 61 De’Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003)..................................................... 24, 25 Department of Agriculture v. Moreno, 413 U.S. 528 (1973) ............................................... 35 Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) .................................................................... 51, 52 Dunn v. City of Chicago, 231 F.R.D. 367 (N.D. Ill. 2005) .................................................. 59 Durmer v. O’Carroll, 991 F.2d 64 (3d Cir. 1993) ......................................................... 21, 31 Edelman v. Jordan, 415 U.S. 651 (1974)............................................................................... 45 Edwards v. Snyder, 478 F.3d 827 (7th Cir. 2007) ................................................... 15, 20, 33 Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415 (N.D. Ill. 2003) ........................................ 61 Estelle v. Gamble, 429 U.S. 97 (1976)................................................................. 15, 21, 23, 32 Farmer v. Brennan, 511 U.S. 825 (1994) ........................................................................ 15, 32 Foelker v. Outagamie County, 394 F.3d 510 (7th Cir. 2005) .............................................. 21 Gen. Tel. Co. v. Falcon, 457 U.S. 147 (1982)........................................................................ 60 Gil v. Reed, 381 F.3d 649 (7th Cir. 2004) ............................................................................. 24
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
Gonzales v. Carhart, 550 U.S. 124 (2007) ..................................................................... passim Greeno v. Daley, 414 F.3d 645 (7th Cir. 2005) .............................................................. 15, 20 Haley v. Gross, 86 F.3d 630 (7th Cir. 1996) ........................................................................ 15 Heller v. Doe, 509 U.S. 312 (1993) ....................................................................................... 38 Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Engineers,
335 F.3d 607 (7th Cir. 2003) .................................................................................... 53 Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985) ................................................ 35 Houston v. Trella,
No. 04-1393 (JLL), 2006 WL 2772748 (D.N.J. Sept. 25, 2006) ............................. 25 Hudson v. City of Chicago, 242 F.R.D. 496 (N.D. Ill. 2007) ............................................... 58 Johnson v. California, 543 U.S. 499 (2005)........................................................................... 15 Jorden v. Farrier, 788 F.2d 1347 (8th Cir. 1986) ................................................................. 23 Kansas v. Hendricks, 521 U.S. 346 (1997)............................................................................ 29 Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998) ..................................................................... 56 Keeney v. Heath, 57 F.3d 579 (7th Cir. 1995)...................................................................... 38 Kelley v. McGinnis, 899 F.2d 612 (7th Cir. 1990) .............................................................. 21 Kosilek v. Maloney, 221 F. Supp.2d 156 (D. Mass. 2002) ............................................ 25, 34 Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................... 34 Lewis v. Casey, 518 U.S. 343 (1996)..................................................................................... 55 Lock v. Jenkins, 641 F.2d 488 (7th Cir. 1981)...................................................................... 38
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997)..................................................... 29, 30, 31 Mahan v. Plymouth County House of Corr., 64 F.3d 14 (1st Cir. 1995) ............................ 24 Marcial v. Coronet Ins. Co., 880 F.2d 954 (7th Cir. 1989).................................................. 61 May v. Sheahan, 226 F.3d 876 (7th Cir. 2000) .................................................................... 39 Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987).................................................. 15, 17 Meriwether, Jones v. Flannigan, 949 F.2d 398..................................................................... 32 Milner v. Apfel, 148 F.3d 812 (7th Cir. 1998) ..................................................................... 35 M.L.B. v. S.L.J., 519 U.S. 102 (1996) ................................................................................... 36 Monmouth Co. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987)..................... 24 Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996).............................................................. 34 Parents Involved in Comty. Sch. v. Seattle Sch. Dist. No. 1,
551 U.S. 701 (2007)................................................................................................... 53 Patterson v. Gen. Motors, 631 F.2d 476 (7th Cir. 1980) ..................................................... 57 Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992)................................................................................................... 47 Plyler v. Doe, 457 U.S. 202 (1982) ....................................................................................... 45 Ralston v. McGovern, 167 F.3d 1160 (7th Cir. 1999) ......................................................... 31 Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988)............................................................. 42, 43 Reed v. McBride, 178 F.3d 849 (7th Cir. 1999) ................................................................... 15
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
Revere v. Mass. Gen. Hosp., 563 U.S. 239 (1983) ................................................................ 31 Rinaldi v. Yeager, 384 U.S. 305 (1966)................................................................................. 45 Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993) ................................................................ 61 Romer v. Evans, 517 U.S. 620 (1997) ............................................................................. 34, 38 Rosario v. Cook Co., 101 F.R.D. 659 (N.D. Ill. 1983) .......................................................... 62 Rosario v. Livaditis, 963 F.2d 1013 (7th Cir. 1991)....................................................... 57, 60 Shapiro v. Thompson, 394 U.S. 618 (1969) .......................................................................... 45 Smith v. City of Chicago, 457 F.3d at 650................................................................ 35, 39, 44 Snowden v. Hughes, 321 U.S. 1, 8 (1944) ............................................................................ 36 Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979)................................................................ 15 United States v. Salerno, 481 U.S. 739 (1987) ......................................................... 46, 47, 53 United States v. Virginia, 543 U.S. 499 (1996).................................................................... 53 Washington v. Glucksberg, 521 U.S. 702 (1997),........................................................... 28, 46 Washington State Grange v. Washington State Repub. Party,
552 U.S. 442 (2008)................................................................................................... 46 Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983) ................................................ 15, 31, 38 Whitley v. Albers, 475 U.S. 312 (1986) ................................................................................ 29 Whitmire v. Arizona, 298 F.3d 1134 (9th Cir. 2002) .......................................................... 43 Williams v. Lane, 851 F.2d 867 (7th Cir. 1988)........................................................ 33, 39, 44
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Wolfe v. Horn, 130 F. Supp.2d 648 (E.D. Pa. 2001) ........................................................... 34 Yokoyama v Midland Nat’l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010) ........................... 57
Statutes 18 U.S.C. § 3626(a)(1) .......................................................................................................... 54 2005 Wisconsin Act 105 ............................................................................................... passim
Rules Fed. R. Civ. P. 23(a)(1) ........................................................................................................ 61 Fed. R. Civ. P. 23(a)(2) ........................................................................................................ 57 Fed. R. Civ. P. 23(b)(2) ........................................................................................................ 59 Circuit Rule 32.1(d) ............................................................................................................. 32
Other Authorities Richard H. Fallon, As-Applied and Facial Challenges,
113 HARV. L. REV. 1321, 1328 (2000)................................................................ 50, 53 Richard Green & Ray Blanchard, Gender Identity Disorders,
in Kaplan & Sadock’s Comprehensive Textbook of Psychiatry (Benjamin J. Sadock, M.D. & Virginia A. Sadock, M.D. eds., 2000) ................... 7 Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359, 421–56 (1998) .............................................. 54 Newberg on Class Actions (4th ed. 2002) ......................................................................... 61
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JURISDICTIONAL STATEMENT The jurisdictional statement of the Defendants is complete and correct.
ISSUES PRESENTED BY DEFENDANTS’ APPEAL 1. Whether Defendants’ enforcement of 2005 Wisconsin Act 105 (“Act 105”) to deny medically necessary treatment to Plaintiffs violates the Eighth Amendment. 2. Whether Defendants’ enforcement of Act 105 to deny medically necessary treatment to Plaintiffs even though they provide necessary medical treatment to other inmates violates the Equal Protection Clause. 3. Whether Act 105, on its face, violates the Eighth Amendment and the Equal Protection Clause.
ISSUE PRESENTED BY PLAINTIFFS’ CONDITIONAL CROSS-APPEAL
Whether the district court abused its discretion by refusing to certify a class of transsexual inmates for whom Defendants’ medical staff would have prescribed either hormone therapy or sex reassignment surgery but for Act 105.
1

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
STATEMENT OF THE CASE Plaintiffs supplement Defendants’ Statement of the Case as follows. On April 27, 2006, Plaintiffs moved for certification of a class of current or future prisoners or patients who are transgender, have been diagnosed with gender identity disorder (“GID”), or meet the criteria for a GID diagnosis. [R.35: 2].1 On February 16, 2007 the district court denied that motion, because Plaintiffs were already receiving hormone therapy whereas the proposed class would increase the scope of the lawsuit to include inmates not receiving hormones, [R.102: 5; Pltf. App. 5], and the claims of the proposed class were not “common or typical to those of the” Plaintiffs. Id. As a result of this narrow characterization of the case, the district court found that the proposed class failed the numerosity test. [R.102: 5-6; Pltf. App. 5-6]. Plaintiffs moved on March 5, 2007 for reconsideration of the court’s denial of class certification and moved for leave to amend to add as plaintiffs two inmates diagnosed with GID by Wisconsin Department of Corrections (“DOC”) medical providers who had not been evaluated for hormone therapy because such evaluation was rendered futile by Act 105. [R.104; R.105]. Plaintiffs proposed a class of: All current or future residents housed in prisons identified in Wis. Stat. § 302.01 who have been, or will in the future be, denied
1 Record citations list the docket number followed by the page, paragraph, or exhibit number, [Docket number: page, paragraph, or exhibit number]. Defendants-Appellants, Cross-Appellees’ Appendix is cited as “App.”, while Plaintiffs-Appellees, Cross-Appellants is cited as “Pltf. App.”.
2

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hormone therapy or sex reassignment surgery to treat a serious medical need because of the Inmate Sex Change Prevention Act, 2005 Wisconsin Act 105, codified at Wis. Stat. § 302.386(5m).
[R.104: 2]. The court denied the motion to amend and for reconsideration, because the Plaintiffs have been prescribed hormone therapy while the proposed class members have not. [R.131: 5; Pltf. App. 12].
After trial, the district court held Act 105 to be unconstitutional on its face and as applied to Plaintiffs. Granting Plaintiffs’ request for facial relief, the court reached a different conclusion about the relationship between the claims of inmates already receiving hormones, such as the Plaintiffs, and inmates newly prescribed them in prison. The court concluded that: “The denial of necessary medical care to persons who have had it in the past does not distinguish Plaintiffs under the Eighth Amendment and Equal Protection Clause from transsexuals newly diagnosed with GID and prescribed the treatment for the first time by DOC health care professionals.” [R.212: 59; App. 205].
STATEMENT OF FACTS I. Department Of Corrections’ Medical Leadership Criticized Act 105’s
Ban On Treatment For GID.
The Inmates Sex Change Prevention Act provides:
302.386(5m) (a) In this subsection:
1. “Hormonal therapy” means the use of hormones to stimulate the development or alteration of a person's sexual characteristics in order to alter the person's physical appearance so that the person appears more like the opposite gender.
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2. “Sexual reassignment surgery” means surgical procedures to alter a person's physical appearance so that the person appears more like the opposite gender.
(b) The department may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery for a resident or patient specified in sub. (1).
2005 Wisconsin Act 105.
Neither DOC nor any of Defendants was involved in the drafting of the bill that became Act 105. [R.187: ¶58] DOC’s mental health director, Dr. Kallas, and medical director, Dr. Burnett, provided the only medical or correctional expertise during the legislative hearings regarding Act 105, [R.187: ¶45; R.212: 6, 58; App. 152, 204]. Dr. Kallas was highly critical of the Act, explaining that hormone therapy is “medically necessary treatment,” [R.201: 187; R.236: Ex. 17], that ending the therapy may cause inmates to “become distressed and despondent . . . to the point of clinical depression or an anxiety disorder or suicidality,” [R.201: 191], and that Act 105 would increase costs to the state for clinical staff time to prevent suicide, additional psychotropic medication, and staff time addressing behavioral disruptions, and costs to inmates in the form of pain and suffering. [R.212: 58; App. 204; R.201: 190-195; R.236: Ex. 17]. Both doctors critiqued the law, because it takes the medical decision regarding hormone therapy out of
4

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the hands of health care practitioners and is “contrary to [their] medical judgment.” [R.201: 183, 185; R.236: Ex. 11]. Dr. Burnett agreed that medical decisions should be left to clinicians and that it was medically inappropriate to taper and terminate hormone therapy for inmates with GID. [R.201:229-230; R.236: Ex. 612 at p. 4]. The legislative sponsors of the Act issued multiple press releases prior to its passage stating that it was intended to prevent “bizarre taxpayer funded sex change procedures” and to stop the DOC policy of “[allowing] pharmacists within the correction system to give hormones to an inmate diagnosed with gender identity disorder.” [R.187: ¶44].
II. Act 105 Injured Plaintiffs And Other Inmates With GID By Banning The Hormone Therapy Treatment They Had Been Prescribed By Department Of Corrections (“DOC”) Physicians. Plaintiffs are male-to-female transsexual people2, all of whom were
diagnosed with GID and prescribed hormone therapy by DOC medical staff. [R.187: ¶¶1- 3 (Sundstrom); ¶¶8-10 (Fields); ¶¶13, 15, 16 (Blackwell); ¶¶21, 22, 24 (Davison); ¶¶27, 28, 30 (Moaton)]. A person with GID has persistent crossgender identification, persistent discomfort with his or her assigned sex, no concurrent intersex condition, and clinically significant distress. [R.202: 259-260]. Ms. Moaton described feeling feminine as early as four years old, dressing in girl’s clothing, and thinking she was a girl “until being told otherwise.” [R.201:
2 A “transsexual” person is someone with severe GID. [R.202: 268]. 5

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
140]. She said: “I used to come home and before I’d go to bed at night I’d say, God, let me wake up and be a girl.” Id. at 141. Most of the Plaintiffs had received hormone therapy to treat their GID for several years. [R.187: ¶3 (Sundstrom, since 1990); ¶10 (Fields, since 1996); ¶16 (Blackwell, since 1998); ¶24 (Davison, since 2005); ¶30 (Moaton, since the late 1990s)]. At least four of the Plaintiffs had attempted suicide or had suicidal thoughts. [R.236: Ex. 1013 at pp. 21-22 (Sundstrom, three suicide attempts, one hospitalization for suicidal ideation); R.187: ¶14 (Blackwell, suicide attempt as result of her GID); R.187: ¶23 (Davison suicide attempt); R. 187: ¶29; R.201: 143, 150 (Moaton suicidal ideation because of her GID)]. Someone who has previously attempted suicide is at greater risk of suicide. [R.200: 42].
Plaintiffs suffered when Defendants began tapering their hormone dosages in response to Act 105. [R. 187: ¶4 (Sundstrom suffered “mood swings, hot flashes, severe headaches, bloating, and crying fits”); ¶11 (Fields suffered “nausea, muscle weakness, loss of appetite, . . . and depression”); 3, ¶18 (Blackwell); 4, ¶25 (Davison); 4, ¶31 (Moaton)]. Plaintiffs’ symptoms abated when their hormone therapy was reinstated after the court issued a preliminary injunction. [R.212: 2-3, 57-58; App. 148-149, 203-204].
In addition to Plaintiffs, Kenneth a/k/a Karen Krebs and Erik, a/k/a Erika Huelsbeck are male-to-female transsexuals who were in DOC custody and diagnosed with GID by DOC medical staff. [R.187: ¶¶40, 53]. Plaintiffs’ expert, Dr. R. Ettner, examined Ms. Krebs and Ms. Huelsbeck and confirmed that both
6

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had been accurately diagnosed with GID and should have been prescribed hormone therapy. [R.200: 46-48].
III. Hormone Therapy And Sex Reassignment Surgery Are Medically Necessary Treatment For GID.
The district court found that GID is a “serious medical need” that requires evaluation and treatment. [R.212:55; App.201; R.201:227-228; 202: 258-259]. For those who reach a clinical threshold, individualized treatment, as set out in the Standards of Care published by the World Professional Association for Transgender Health (“WPATH”), is required and includes cross-sex hormone therapy, and in some cases surgery. [R.200: 29-30; R.202: 269].
Hormone therapy is medically necessary treatment for the Plaintiffs. [R.201: 225, 228 (Dr. Burnett testifying that each of the Plaintiffs had been prescribed hormone therapy by DOC doctors and that DOC doctors only prescribe medically necessary treatment); R.200: 43 (R. Ettner concluded that all Plaintiffs should be treated with hormone therapy)]. In addition, DOC’s medical and mental health directors agreed with Plaintiffs’ experts that hormone therapy is medically necessary treatment. [R.201: 177 (Dr. Kallas: “I do believe there are individuals where hormonal treatment is medically necessary for the gender dysphoria.3”); R.200: 55 (Dr. R. Ettner: hormone treatment is medically necessary
3 “Gender dysphoria . . . may be defined as discontent with one’s biological sex, the desire to possess the body of the opposite sex, and the wish to be regarded as a member of the opposite sex.” Richard Green & Ray Blanchard, Gender Identity Disorders, in Kaplan & Sadock’s Comprehensive Textbook of Psychiatry
7

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for Plaintiffs because “nothing short of it will provide an attenuation or relief from the severe distress caused by GID at that level.”); R.202: 273-274 (Plaintiffs’ expert Dr. Brown: There is no “other equally effective treatment for [these patients].”)]. Whether a patient should have hormone therapy depends on the intensity of the disorder and the distress that the disorder causes her. [R.200: 35] Treatment is in no way optional. [R.202: 278 (Dr. Brown: “Once a person reaches the clinical threshold and they have the diagnosis, I don’t consider treatment optional. It’s individualized to a given patient, . . . but the treatment itself is not optional . . . ”)].
The district court concluded, “Act 105 prevents DOC doctors from providing the treatment that they have determined is medically necessary to treat the plaintiffs’ serious conditions.” [R.212: 56; App. 202]. In addition to hormone therapy, Act 105 bans provision of sex reassignment surgery (“SRS”). Although SRS has not been prescribed for any of the Plaintiffs, it is medically necessary treatment for the most severe cases of GID, which make up a minority of all cases. [R.202: 270-272, 276 (Dr. Brown: Surgery was “life saving” for some of his patients)]. IV. Psychiatric And Psychological Services Alone Are Ineffective Treatment.
Psychiatric and psychological services alone are ineffective treatment for persons with severe GID, because such palliative care fails to address gender
(Benjamin J. Sadock, M.D. & Virginia A. Sadock, M.D. eds., 2000). [R.236: Ex. 610 at p. 1646].
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dysphoria. [R.200: 38-39, 103; R.202: 272-273, 278, 284]. Such an approach would be “absolutely inconsistent” with the accepted medical standards in addressing GID. [R.202: 330-332 (Dr. Brown: “Psychotherapy is not intended to nor designed to cure or eliminate the symptoms that they have; it’s to help them understand more about themselves, it’s educational, it’s to help them understand the implications of the treatment alternatives that they’re being presented with potentially by other physicians or surgeons, and to help them adjust to who it is that they are because that’s never gonna change”)]. Furthermore, GID cannot be adequately managed through psychotropic medications because they “don’t at all treat the underlying condition.” [R.202: 284 (Dr. Brown: “You may be able to take the edge off of some symptoms by using a variety of medications, but it’s like putting a Band-Aid over a burst appendix or giving somebody with a burst appendix pain medication . . . you might make them feel a little bit better but the underlying condition is what needs to be treated.”)]. V. Act 105 Prevents DOC Medical Personnel From Prescribing Treatment
They Deem Medically Necessary for Inmates With GID. Act 105 requires that DOC withdraw hormone therapy from inmates who are receiving it to treat GID, but not from inmates who require hormones for estrogen replacement therapy in postmenopausal years or for congenital or hormonal disorders. [R.212: 4-5, 64; App. 150-151; R.201: 228]. No other Wisconsin law or DOC policy bans medically necessary treatment for inmates. [R.212: 64; App. 210; R.201:187; R.236: Ex. 612 at p. 4].
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The district court found that Act 105 bars doctors and other DOC medical personnel from providing treatment that they deem medically necessary, both by stopping medically necessary treatment to Plaintiffs who have been on hormones for many years and by denying medically necessary care to inmates who are newly diagnosed with GID and prescribed treatment for the first time by DOC health care professionals. [R.212: 59, 61-62; App. 205, 207-208]. DOC decided to stop thorough evaluations of inmates with GID, such as Ms. Huelsbeck and Ms. Krebs, to determine whether hormone therapy was medically necessary for them because Act 105 made the evaluations futile. [R.212: 7, 61-62; App. 153, 208; R.201: 182; R.187: ¶53]. VI. The Denial Of Hormone Therapy For Inmates With GID Places Them
At Risk For Severe Health Problems And Defendants Are Aware Of These Risks. The district court also found, based on the testimony of the experts and DOC’s medical and mental health directors, that denial of treatment for severe GID places inmates at risk for depression, anxiety, suicidal ideation, suicide attempts, and self-mutilation or autocastration. [R.212:58; App.204; R.202:274 (Dr. Brown: “It’s uniformly a very bad thing to do medically and psychiatrically.”); R.200:114 (Dr. F. Ettner: “[I]t is not medically acceptable to take [someone] off [of hormone therapy] if they don’t have to come off for some other medical reason.”); R.200:41 (Dr. R. Ettner: “[T]he risk psychologically would be depression, autocastration, and suicide.”); R.201:190-191 (Dr. Kallas: “[I]f the
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[DOC] were to take away hormones from individuals with gender identity disorder, those individuals may become distressed and despondent, may go to the point of clinical depression or an anxiety disorder or suicidality.”)]. Indeed, the Court found that two Plaintiffs have a history of suicidal ideation when not receiving hormone therapy, and one even attempted suicide by jumping off a roof. [R.212:57; App.203]. VII. Act 105 Does Not Increase Security.
The district court found that “no reasonably conceivable state of facts provides a rational tie between Act 105 and prison safety and security.” [R.212:66; App.212] The district court found “nothing in the record to support a finding that withdrawing hormone therapy from the plaintiffs will decrease the risk that they will become victims of sexual assault.” [R.212: 66; App. 212] It is undisputed that inmates can look effeminate without hormone therapy. [R.212: 66; App. 212; R.202:423]
Defendants’ security expert, Eugene Atherton, described the connection between the hormone therapy barred by Act 105 and sexual assaults as “an incredible stretch.” [R.212:66-67; App.212-213]. The district court credited Atherton’s testimony regarding his experience working at the Colorado DOC, where the policy allows prisoners with GID to have hormone therapy. [R.212: 66; App. 212]. Atherton testified that he considers the Colorado policy reasonable and that it “has a good history and security staff are able to implement it well.” [R.212: 66; App. 212; R.202: 432-433]. Responding to whether correctional needs
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should override the medical staff’s decision to provide medical treatment, he stated “correctional needs, security and safety needs need to be heard in a partnership relationship with medical and mental health.” [R.202: 431]. VIII. Act 105 Does Not Reduce Costs And Likely Imposes Additional
Expenses. The district court found that the “cost to the DOC of withdrawing hormone therapy may be greater than the cost of continuing the treatment prescribed by DOC health care professionals.” [R.212:56; App.202] Defendants’ mental health director testified that discontinuing treatment for inmates with GID would likely require DOC to expend additional resources which would offset any savings from not prescribing hormones. [R.212: 58; App. 204 (district court summarizing Dr. Kallas’s testimony that discontinuing treatment “may also lead to disruptive behavior and segregation time, or an increase in psychotropic medications particularly antidepressants, which would offset any cost savings that would be directly attributable to not prescribing hormones”); R.201: 183-185; R.236: Ex. 17].
SUMMARY OF ARGUMENT Plaintiffs received medically necessary hormone therapy to treat their GID until the passage of Act 105 took away DOC doctors’ discretion to prescribe it. Even though Defendants knew the serious consequences of denying this treatment, they would have ceased providing it had the district court not entered a preliminary injunction. Moreover, other inmates with GID were not even
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evaluated to see if hormone therapy was necessary for them because DOC decided that Act 105 rendered such evaluations futile. The blanket denial of hormone therapy for inmates already receiving it and the ban on hormone therapy and SRS for inmates to whom DOC doctors prescribe these treatments violates the Eighth Amendment.
Additionally, the denial of medically necessary treatment only for transsexual inmates, but not for other inmates, violates the Equal Protection Clause, since there is no rational connection between the ban on medical care for transgender inmates and Defendants’ asserted interests in security and avoiding civil liability. Nor is there a rational connection between the ban on medical care and an interest in cost savings.
Act 105 violates the Constitution not only as applied to Plaintiffs but also facially. Transsexual inmates do not receive hormone therapy or SRS unless a DOC doctor prescribes it, and DOC doctors only prescribe medical treatment if they find it medically necessary. The ban on treatment is therefore facially unconstitutional under both the Eighth Amendment and the Equal Protection Clause, since the law discriminates against transsexual persons, always trumps the medical judgment of DOC doctors, and bans the only treatment that is effective for inmates with serious GID.
The district court’s conclusion after trial that the denial of hormone therapy to inmates with GID who are already receiving it does not distinguish their Eighth Amendment and Equal Protection claims from those of inmates who
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117 would be prescribed it in the future but for the Act shows that the court abused its discretion when it refused to certify a class of current and future inmates denied hormone therapy or SRS because of Act 105. If this Court reverses the district court’s decision to grant facial relief, it should reverse the district court’s denial of class certification and remand the case for reconsideration.
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STANDARD OF REVIEW Defendants’ statement of the standard of review for the district court’s permanent injunction decision is accurate. Plaintiffs’ conditional cross-appeal of the district court’s denial of class certification is reviewed for an abuse of discretion. Andrews v. Chevy Chase Bank, 545 F.3d 570, 573 (7th Cir. 2008). However, “purely legal determinations made in support of that decision are reviewed de novo.” Id.
ARGUMENT I. Defendants’ Enforcement Of Act 105 Violates The Eighth Amendment.
A. The Eighth Amendment Forbids Deliberate Indifference To Serious Medical Needs.
“[C]oncepts of dignity, civilized standards, humanity, and decency” embodied in the Eighth Amendment “establish the government’s obligation to provide medical care for those whom it is punishing by incarceration,” because “[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 102-103 (1976); see also Reed v. McBride, 178 F.3d 849, 852 (7th Cir. 1999); Meriwether v. Faulkner, 821 F.2d 408, 411 (7th Cir. 1987).
Prison officials violate the Eighth Amendment when their actions or failures to act in response to prisoners’ health conditions evince “deliberate indifference to serious medical needs of prisoners.” Estelle, 429 U.S. at 104. A
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plaintiff asserting a deliberate indifference claim must satisfy both an objective and a subjective test. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).
To satisfy the objective component, the plaintiff must prove that she has an objectively serious medical need. To satisfy the subjective component, a plaintiff must show that the responsible prison official acted or failed to act with “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 842 (1994). Prison officials who deny prescribed treatment for GID because of Act 105’s flat prohibition of such treatment, despite the undisputed medical judgment of the prison physicians that such treatment is medically necessary for Plaintiffs, act with deliberate indifference to the prisoners’ serious medical needs in violation of the Eighth Amendment. Deliberate indifference to serious medical needs violates the Eighth Amendment “whether the indifference is manifested” by prison doctors’ provision of inadequate care or by prison officials “intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104–105. Here, it is undisputed that Defendants, because of Act 105, are intentionally denying hormone therapy prescribed to Plaintiffs by DOC physicians to treat their GID.4
4 Defendants argue that “security interests” may justify “imping[ing] on medical needs.” Def. Br. at 18. However, courts do not apply a highly deferential standard to prison officials’ assertions of “penological interests” to justify deprivations of Eighth Amendment rights. See Johnson v. California, 543 U.S. 499, 511 (2005) (“We judge violations of [the Eighth] Amendment under the ‘deliberate indifference’ standard, rather than” under lesser standards, such as “Turner’s ‘reasonably related’ standard”). “This is because the integrity of the criminal justice system depends on full compliance with the Eighth
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B. GID Presents an Objectively “Serious Medical Need.” A medical or mental health condition diagnosed by a health care professional that requires treatment is a serious medical need. See Edwards v. Snyder, 478 F.3d 827, 830–31 (7th Cir. 2007). Psychiatric or psychological conditions have long been recognized as serious medical needs in this Circuit, Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983), and GID, a recognized mental health condition, is no exception. Meriwether, 821 F.2d at 413. Indeed, Defendants do not contest the district court’s finding that GID is a serious medical need that requires treatment. Def. Br. at 15. C. Refusal To Provide Medically Necessary Hormone Therapy Or
Sex Reassignment Surgery Constitutes Deliberate Indifference To A Serious Medical Need.
To be liable for a violation of the Eighth Amendment, a prison official “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. However, a successful plaintiff “need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842 (emphasis added); see also Haley v. Gross, 86 F.3d 630, 641 (7th Cir. 1996) (“a prisoner claiming deliberate
Amendment.” Id. “Mechanical deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a nullity in precisely the context where it is most necessary.” Id. (quoting Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir. 1979)).
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indifference need not prove that the prison officials intended, hoped for, or desired the harm that transpired”). “Whether a prison official has the requisite knowledge of a substantial risk is a question of fact [.]” Farmer, 511 U.S. at 842. The district court made a finding, supported by the record, that Defendants were aware of a substantial risk of harm yet would disregard that risk because of Act 105. [212: 55-59; App. 201-205]. This factual finding is by no means clearly erroneous.
In this case, Defendants diagnosed the Plaintiffs with GID, [R.187: ¶2, ¶9, ¶15, ¶22, ¶28], prescribed hormone therapy for them as medically necessary treatment for their GID ,[R.201: 225, 228], and knew the serious risks caused by denying the treatment [R.201: 178-79, 228-29]. Nonetheless, they would deny the hormones because of Act 105. [R.201: 182]. This is sufficient to establish deliberate indifference.
DOC’s medical and mental health directors criticized Act 105 because hormone therapy is legitimate and effective treatment, the decision to give it is guided by research and well-established standards of care, and denying it causes serious harm to inmates with GID. According to Dr. Burnett, hormone therapy is not “experimental or investigational,” and has “good sound medical evidence to back its use.” [R.201: 233]. When Dr. Kallas testified before the legislature, he informed legislators that the Harry Benjamin Standards (now called the WPATH standards) are the “most authoritative guideline for the treatment of [GID],” [R.201: 189], GID is a condition “worthy of treatment” [R.201: 188; R.236: Ex. 17],
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hormone therapy is valid treatment even if surgery is not provided, and that hormones should be provided to inmates if in the judgment of physicians “they are medically necessary.” [R.201: 188, 189; R.236: Ex. 17]. He also testified about the serious risks of harm from withdrawing hormone therapy from inmates with GID, including depression and suicidality, explained that inmates with GID are a psychologically vulnerable group of prisoners,5 and outlined the increased costs from forcing inmates to withdraw from hormone therapy. [R. 201: 188, 190-92; R.236: Ex. 17].
Responding to an earlier request for information about the bill that became Act 105, Dr. Kallas noted that in another lawsuit against DOC the “state’s own experts have opined that to discontinue hormones would be cruel and irresponsible for [the] inmate.” [R.201: 185; R.236: Ex. 11]. Denying hormone therapy “would be contrary to the medical judgment of the WDOC’s Medical Director and Mental Health Director.” [R.201: 185; R.236: Ex. 11].
Despite an awareness of these significant risks of substantial harm to Plaintiffs from failing to provide the hormone therapy prescribed by DOC medical personnel, Defendants would, but for the preliminary injunction in this case, refuse to provide it because of the command of Act 105. [R. 201: 182]. Such “intentional[] interferenc[e] with the treatment once prescribed” constitutes a
5 At trial, Dr. Kallas identified other potential results of denying hormone to patients with GID, including anxiety, difficulty in social functioning, and selfcastration or mutilation. [R.201: 178-79].
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quintessential form of deliberate indifference to a serious medical need. Estelle, 429 U.S. at 105.
This is not a case involving disagreements in medical judgment about the appropriate treatments for the Plaintiffs, as Defendants suggest. Def. Br. at 14-15, 23-26. DOC physicians diagnosed GID and prescribed hormone therapy as medically necessary treatment for Plaintiffs. There is no medical or mental health testimony questioning these diagnoses or the necessity of the treatment for Plaintiffs.6 Defendants are not refusing these treatments based on a medical judgment that such treatment is unnecessary, but because of a non-medical judgment made by legislators that such treatment is politically undesirable. Indeed, DOC’s medical professionals objected to Act 105 precisely because it prevented them from exercising medical judgment to provide necessary care. [R. 201: 182-83, 185-87].
A decision to deny effective medical treatment for reasons unrelated to the exercise of medical judgment violates the Eighth Amendment. See, e.g., Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007) (inmate stated Eighth Amendment claim where he was denied medical treatment for two days because prison doctor was “ringing in the new year” and did not want to be disturbed); Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005) (denying summary judgment where
6 Defendants’ expert, Dr. Claiborn, did not evaluate the Plaintiffs and did not base his testimony on any facts about them. [R. 202: 376-377, 388]. Indeed, he did not doubt that the Plaintiffs met the diagnostic criteria for GID. Id. at 388.
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there was a factual dispute regarding whether denial of medication to inmate was a product of erroneous medical judgment or a desire to make inmate suffer); Foelker v. Outagamie County, 394 F.3d 510, 513 (7th Cir. 2005) (same); Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir. 1990) (inmate could recover if he could prove that “clinic personnel deliberately gave him a certain kind of treatment knowing that it was ineffective, either as a means of toying with him or as a way of choosing ‘the easier and less efficacious treatment’”) (quoting Estelle, 429 U.S. at 104 n.10 (internal quotations omitted)); see also Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (“if the failure to provide adequate care . . . was deliberate, and motivated by non-medical factors, then [plaintiff] has a viable claim”). Denying effective medical treatment for reasons unrelated to medical judgment is exactly what Act 105 does. Accordingly, denying hormone therapy pursuant to Act 105 violates the Eighth Amendment.
D. There Is No Merit To Defendants’ Arguments That They Can Ban Necessary Medical Treatment For GID Because The Wisconsin Legislature Has Unfettered Authority Over Prison Health Care, The Care Is Expensive And “Curative,” And There Are Treatment Alternatives.
Defendants make three arguments in an attempt to absolve their interference with the medical judgment of their own staff in this case. First, Defendants argue that the legislature should have the authority to prohibit certain treatments to prisoners, especially when there is “medical uncertainty” regarding them. Def. Br. at 15-21. Second, they argue that the state has no
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Eighth Amendment obligation to provide expensive “curative” treatment to
prisoners. Def. Br. at 22-28. Third, they argue that, because they continue to
provide some treatment to prisoners with GID, the ban on hormone therapy and
SRS does not violate the Plaintiffs’ Eighth Amendment rights. Def. Br. at 28-33.
None of these arguments has merit.
1. Defendants’ Argument that the Legislature Can, Without Any Medical Basis, Prohibit Treatment Deemed Medically Necessary for Plaintiffs By Defendants’ Medical Leadership Has No Merit.
Defendants’ arguments about legislative authority boil down to the
hyperbolic claim that the district court’s holding will override reasonable
legislative control over medical care in Wisconsin’s prisons. See Def. Br. at 20
(characterizing the district court’s ruling as “prohibiting the state legislature
from placing any limits on a medical professional’s discretion” and thus
“elevat[ing] the subjective opinions of medical professionals above the
legislature and the law”).7 In addition, Defendants assert that there is scientific
uncertainty about the treatment of GID that justifies legislative intervention over
prison medical care decisions. Neither argument finds support in the law or the
factual record.
7 Defendants’ assertion that, under the district court’s decision, “[i]ndividual doctors would have the power to decide what treatments can and cannot be legally regulated” in the prison is preposterous. Def. Br. at 21. The district court recognized that mere difference of opinion among physicians is insufficient to establish deliberate indifference. However, here, the treating prison doctors, backed up by the medical and mental health directors, have concluded that hormone therapy is medically necessary treatment, so the government cannot interfere for non-medical reasons.
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a. Prison Medical Care Denials Because Of A Statute Are Subject To The Same Constitutional Standards As Other Inmate Health Care Denials
Defendants cite no law in support of their suggestion that the unconstitutional actions of a prison official taken pursuant to statutory command should be treated differently from the unconstitutional actions of prison officials acting independently. The source of the decision makes no difference, since it is “the government’s obligation to provide medical care for those whom it is punishing by incarceration.” Estelle, 429 U.S. at 103 (emphasis added).
Contrary to Defendants’ assertions, Plaintiffs do not claim -- and the district court did not hold -- that the legislature has no authority to limit medical discretion; what the legislature cannot do is establish a blanket ban against inmates receiving medically necessary treatment prescribed by prison doctors for a serious medical condition, as Act 105 did. See, supra. Section I.C. The legislature (and prison administrators) certainly may regulate medical practice in the prisons through “reasonable regulations for the orderly operation of a prison and for the safety and health of all prisoners, including those directives reasonably designed to prevent abusive use of drugs,” such as a drug formulary. Jorden v. Farrier, 788 F.2d 1347, 1349 (8th Cir. 1986) (citation omitted). But a formulary that excluded insulin for the treatment of diabetes without exception, for example, would be plainly unconstitutional. See id. at 1348-49 (factual issue as to whether prison medical administrators’ application of formulary to
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preclude use of medicine prescribed by treating physician was reasonable response to safety concern or “an arbitrary decision amounting to cruel and unusual punishment” precludes summary judgment); see also Gil v. Reed, 381 F.3d 649, 663 n.3 (7th Cir. 2004) (reserving judgment on whether “the government or a prison doctor may avoid liability for deliberate indifference by seeking shelter behind an inadequate formulary” because adequacy of formulary had not been challenged).
The Eighth Amendment does not allow prisons to deny categorically certain forms of medically necessary treatment prescribed by the prison medical staff. See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 635 (4th Cir. 2003) (plaintiff may prevail by proving that “refusal to provide hormone treatment to [plaintiff] was based solely on the Policy rather than on a medical judgment concerning [plaintiff’s] specific circumstances”); Allard v. Gomez, 9 Fed. Appx. 793, 794–95 (9th Cir. 2001) (unpublished) (triable issue as to “whether hormone therapy was denied . . . on the basis of an individualized medical evaluation or as a result of a blanket rule, the application of which constituted deliberate indifference to [plaintiff’s] medical needs”); Mahan v. Plymouth County House of Corr., 64 F.3d 14, 18 & n.6 (1st Cir. 1995) (“inflexible” application of “policy relating to prescription medications” that prevents use of a medication necessary to treat a serious medical need may violate Eighth Amendment); Monmouth Co. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (“by specifically categorizing elective abortions as beyond its duty to provide, the County denies to a class of inmates
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the type of individualized treatment normally associated with the provision of
adequate medical care”).8
In De’Lonta, the court ruled that if the plaintiff proved that her denial of
hormone therapy was based on a blanket policy rather than an individualized
medical opinion and that psychiatric treatment was not a “reasonable method of
preventing further” self harm, she could prevail on an Eighth Amendment claim.
330 F.3d at 634–635.9 In the present case, Plaintiffs have proven the very facts
that would have entitled them to relief under De’Lonta’s reasoning: they were
denied hormone therapy prescribed by DOC doctors.
8 A number of district courts have concluded that blanket bans on hormone therapy for prisoners with GID violate the Eighth Amendment. See Barrett v. Coplan, 292 F. Supp. 2d 281, 286 (D.N.H. 2003) (“A blanket policy that prohibits a prison’s medical staff from making a medical determination of an individual inmate’s medical needs and prescribing and providing adequate care to treat those needs violates the Eighth Amendment.”); Houston v. Trella, No. 04-1393 (JLL), 2006 WL 2772748, * 21 (D.N.J. Sept. 25, 2006) (existence of “agreement banning female hormone therapy as a form of treatment to all INS detainees regardless of the transitional state in which they are in [sic] is sufficient to show a deliberate policy of denying treatment” that “is sufficient to create a genuine issue of material fact as to [jail medical personnel’s] deliberate indifference to a medical need”); Bismark v. Lang, No. 2:02-cv-FtM-29SPC, 2006 WL 1119189, *19 (M.D. Fla. April 26, 2006) (“This is not a case where plaintiff simply disagrees with the treatment modality of prison doctors. . . . While doctors can disagree with one another without violating Eighth Amendment rights, the facts of this case are overwhelmingly in support of deliberate policy decisions not to provide needed medical care which was known to have been prescribed by the experts.”); Kosilek v. Maloney, 221 F. Supp.2d 156, 186 (D.Mass. 2002). 9 The fact that De’Lonta “merely” reversed a lower court’s dismissal of a suit challenging a denial of hormone therapy allegedly based on policy against providing it, Def. Br. at 27, does not diminish its persuasiveness here.
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b. The Denial Of Hormone Therapy And SRS Is Not Justified By Scientific Uncertainty.
Defendants rely heavily on Gonzales v. Carhart, 550 U.S. 124 (2007), to support their argument that the legislature had authority to regulate medical care here, because they assert incorrectly that there is scientific uncertainty concerning the treatment of GID. Gonzales upheld the federal ban on a particular abortion procedure against a facial substantive due process challenge finding that the law on its face did not impose an undue burden on a woman’s right to an abortion, but left open the possibility of a pre-enforcement as-applied challenge. Id. at 167–68. In upholding the ban, the Court relied on testimony that created “uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.” 550 U.S. at 166–167 (emphasis added). The Court said that the existence of safe alternatives made use of the banned procedure a “mere convenience.” 550 U.S. at 166. Still, the “prohibition [of the “partial birth” abortion procedure] would be unconstitutional . . . if it ‘subject[ed] [women] to significant health risks.’” 550 U.S. at 161 (citations omitted).
Here, in contrast to Gonzales, the evidence that hormone therapy is medically necessary to treat these Plaintiffs’ GID is uncontradicted. DOC’s own medical personnel prescribed the hormone therapy to Plaintiffs as medically necessary treatment. [R. 201: 225, 228]. In addition, while there are alternative
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procedures for an abortion, there are no effective alternatives to hormone therapy for Plaintiffs. See infra., Section I.D.3. Consequently, hormone therapy for Plaintiffs is treatment that is “not for the convenience of the patient or the physician.” [R. 202: 233 (emphasis added)]. Finally, in contrast to Gonzales, denying hormone therapy to Plaintiffs not only placed them at risk of significant health risks, of which the DOC medical and mental health directors were aware, [R. 202: 203-205], but actually caused them harm after their hormone dosages were tapered in response to Act 105. [R.187: ¶¶4, 11, 18, 25, 31].
There is no “medical or scientific uncertainty” about the substantial risk of significant harm to Plaintiffs from to denying them hormone therapy. [R.200: 42 (Dr. R. Ettner: “Among professionals,” there is no controversy about treatments.); R.202: 260 (Dr. Brown: There is no controversy among professionals who work in the field of GID regarding the treatment for GID); R.202: 297-298 (Dr. Brown: There is a body of medical evidence that supports the effectiveness of hormone therapy and SRS)]. Defendants cite to testimony of Dr. Randi Ettner and Defendants’ expert, Dr. Daniel Claiborn, to support their assertion that “GID is a condition about which there is limited knowledge and vast uncertainty.” Def. Br. 19. That was not their testimony. Dr. Ettner acknowledged that there is uncertainty about the causes of GID, not about the effectiveness of hormone therapy or SRS for those with severe GID. [R.200: 59-60.] Defendants’ expert, Daniel Claiborn, Ph.D., never examined the Plaintiffs and rendered no opinion as to the appropriate diagnosis or treatment of the Plaintiffs themselves. [R.202:
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376-77, 388]. He testified only to his more general “personal opinion” that GID is not a mental disease or disorder in the first place, [R.202: 357], and thus is not a serious medical need. [R.202: 370-72]. However, Defendants have expressly abandoned this position by not challenging the district court’s finding that GID is a serious medical need. Def. Br. at 15. The district court’s finding that hormone therapy is medically necessary treatment for the Plaintiffs is thus uncontradicted. [R.212:56; App.202 (“[T]he enforcement of Act 105 prevents DOC doctors from providing the treatment that they have determined is medically necessary to treat the plaintiffs’ serious conditions”).
The physician-assisted suicide and abortion cases Defendants rely on involve very different questions from the right at issue here. In its regulation of abortion, the government may constitutionally balance the interests of the woman seeking abortion services against the fetus. See, e.g., Gonzales, 550 U.S. at 146. Here, in contrast, the government’s interest in providing minimal effective care to prisoners is not counterbalanced against any comparable interest. In Washington v. Glucksberg, 521 U.S. 702 (1997), the asserted right to physicianassisted suicide implicated the Court’s “reluctan[ce] to expand the concept of substantive due process[.]” Id. at 720 (citation omitted). Plaintiffs here are not asking this Court to expand substantive due process rights, but to apply the established Eighth Amendment right to adequate care for their serious medical needs. As the district court correctly concluded on the facts before it, refusal to
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provide the hormone therapy prescribed to treat Plaintiffs’ GID is deliberately
indifferent to Plaintiffs’ serious medical needs.10
2. Plaintiffs Do Not Seek Expensive Curative Treatment But Only The Treatment Prescribed For Them By DOC Doctors.
Defendants assert that there is “no precedent” for requiring prisons to
“completely eliminate a risk or cure a serious medical condition.” Def. Br. at 22.
Their primary support for this position is Maggert v. Hanks, 131 F.3d 670 (7th Cir.
1997), in which this Court found no Eighth Amendment violation in denying
hormone therapy to an inmate who had no GID diagnosis, but went on to opine
in dicta that even with the diagnosis an inmate would not have been entitled to
“curative treatment,” which this Court asserted must include both hormone
therapy and SRS. Id. at 671-72.
10 Kansas v. Hendricks, 521 U.S. 346 (1997) (Def. Br. at 16), is even further afield, since it deals not with an individual’s asserted right to certain medical procedures, but with the state’s police power to establish civil commitment criteria to protect citizens from dangerous persons. Id. at 356–57. Here, there is no suggestion that providing hormone therapy to these prisoners will be dangerous to the public. Whitley v. Albers, 475 U.S. 312 (1986) (Def. Br. at 18), does not support the proposition for which Defendants cite it. Whitley held that infliction of pain in the course of quelling a prison riot did not violate the Eighth Amendment unless that infliction of pain was “unnecessary and wanton.” Id. at 319. Nowhere does it hold that a security measure “that impinges on medical needs” is permissible if applied in a good faith effort to impose order. Def. Br. at 18. In fact, the Whitley Court, in setting the higher “unnecessary and wanton” standard, contrasted government officials’ obligations in the medical care context, where “the State’s responsibility to attend to the medical needs of prisoners does not ordinarily clash with other equally important governmental responsibilities,” with actions taken “involving the use of force to restore order in the face of a prison disturbance,” where there is a “hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance. “ 475 U.S. at 320.
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Defendants’ reliance on Maggert is misplaced. Maggert’s conclusion that the Eighth Amendment does not generally oblige the State to provide “curative treatment” depends upon factual premises the district court has rejected: (1) the only effective treatment for GID is SRS (i.e., hormone therapy alone does not work); and (2) effective GID treatment is expensive.
The Maggert court’s assumption that the only effective treatment for most cases of GID involves SRS, 131 F.3d at 671, was disproven at trial in this case. In most cases, hormones, which are relatively inexpensive [R. 187: ¶51], can be effective treatment. [R. 201: 190 (Dr. Kallas testified that “many individuals find successful accommodations just with hormonal treatment and do not desire to go on or need to go on to surgical reassignment.”); R. 200: 33-34; 69 (R. Ettner); R. 200: 98, 102-103 (F. Ettner recommends hormone therapy for about 90% of patients with GID, but surgery for only about 10-15%); R. 202: 270-71 (George Brown, M.D., testified that “there are many people who will not be appropriate for sex reassignment surgery, even though they have GID”)]. In addition, the cost of SRS is approximately $20,000, [R.187: ¶50], instead of the $100,000 estimate in Maggert. 131 F.3d at 672. The annual cost of hormone therapy is between $300 and $1000 per inmate. [R.187: ¶51].
Given the fact that a majority of prisoners with severe GID can be treated effectively without surgery, the district court’s decision is not undermined by Maggert’s dicta regarding cost-benefit analysis based on assumptions contrary to the factual record in this case.
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Finally, Maggert’s emphasis on the cost of treatment and the rarity of insurance coverage for such treatment as a sufficient justification for denying care is inconsistent with settled Eighth Amendment law. This Court has stated,
[m]edical ‘need’ runs the gamut from a need for an immediate intervention to save the patient’s life to the desire for medical treatment of trivial discomforts and cosmetic imperfections that most people ignore. . . . [T]he civilized minimum is a function both of objective need and of cost. The lower the cost, the less need has to be shown, but the need must still be shown to be substantial.
Ralston v. McGovern, 167 F.3d 1160, 1161–62 (7th Cir. 1999) (internal citations omitted). Although cost may be a factor in the deliberate indifference analysis, id. at 1162, cost considerations alone cannot justify the denial of medically necessary care. Revere v. Mass. Gen. Hosp., 563 U.S. 239, 245 (1983) (Due process clause requires that “[i]f . . . the governmental entity can obtain the medical care needed for a detainee only by paying for it, then it must pay.”); Wellman v. Faulkner, 715 F.2d 269, 274 (7th Cir. 1983); see also Durmer v. O’Carroll, 991 F.2d 64, 68–69 (3d Cir. 1983)(deliberate indifference exists where “motive for deliberately avoiding” a treatment was that the treatment “would have placed a considerable burden and expense on the prison and was therefore frowned upon,” rather than individual medical considerations); Ancata v. Prison Health Servs., 769 F.2d 700, 705 (11th Cir. 1985) (“Lack of funds . . . cannot justify an unconstitutional lack of competent medical care and treatment for inmates.”); Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010) (Although “courts may consider the ‘cost of treatment alternatives [when] determining what constitutes adequate, minimum-level care’
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. . . ‘medical personnel cannot simply resort to an easier course of treatment that they know is ineffective”).
The basic principles underlying Estelle, 429 U.S. at 103, and its progeny make clear that the fact that many persons not in custody do not have private or public health insurance for medically necessary treatment simply cannot, on its own, be a basis for denying that treatment to people in prison. See also Farmer, 511 U.S. at 833 (“[H]aving stripped [prisoners] of virtually every means of self protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course”).11
Defendants argue that “the Eight[h] Amendment does not entitle inmates to demand specific care and inmates are not entitled to the best care possible,” Def. Br. at 22. But Plaintiffs here ask only for the care the DOC doctors determined was medically necessary and would prescribe for them but for Act 105’s strict ban. For the same reason, Meriwether, Jones v. Flannigan, 949 F.2d 398, (unpublished opinion) (7th Cir. 1991),12 and the decisions from other circuit courts cited by Defendants, Def. Br. at 25-26, are all distinguishable. None of those cases involves a prison’s refusal to provide the medical treatment prescribed by prison doctors as medically necessary.
11 Significantly, even if Plaintiffs had family with sufficient financial resources to pay for their treatments, state law would prevent them from doing so. [R. 187: ¶57]. 12 Defendants have cited Jones in violation of Circuit Rule 32.1(d), which prohibits the citation of unpublished orders issued before January 1, 2007, except to support a claim preclusion argument or to establish the law of the case.
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3. Defendants’ Provision Of Ineffective Treatment For GID Does Not Absolve Them Of Eighth Amendment Liability.
Defendants’ final argument regarding the Eighth Amendment is that the DOC’s provision of psychiatric and psychological services and medical treatments for the effects of withdrawal from hormones satisfies the Eighth Amendment. However, as noted above, the expert testimony in this case established without contradiction that psychotherapy and anti-depressant medications were insufficient to treat GID. [R.200: 54-55 (R. Ettner); R.202: 27374, 284 (George Brown, M.D.); see also R.201: 176-77 (Dr. Kallas acknowledges that treatment without hormones unlikely to be successful for some persons with GID)]. Moreover, DOC doctors had already decided that hormones were the medically necessary treatment for Plaintiffs’ GID, rather than limiting their treatment to psychotherapy or anti-depressants.
Prisons cannot simply choose an “easier course of [medical] treatment that they know is ineffective.” Berry, 604 F.3d at 441. See also Edwards, 478 F.3d at 831 (A prisoner’s “receipt of some medical care does not automatically defeat a claim of deliberate indifference if a fact finder could infer” the treatment was “blatantly inappropriate”). Treating the symptoms of GID with psychological and medical services instead of treating GID with hormone therapy is not only ineffective, but “blatantly inappropriate,” medical care. Edwards, 478 F.3d at 831. Knowingly
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providing such ineffective treatment violates the Eighth Amendment. Berry, 604
F.3d at 441.13
II. Defendant’s Enforcement Of Act 105 Violates The Equal Protection Clause.
“[T]he Constitution prohibits intentional invidious discrimination
between otherwise similarly situated persons based on one’s membership in a
definable minority.” Nabozny v. Podlesny, 92 F.3d 446, 457 (7th Cir. 1996). Even
applying rational basis, the most deferential level of review,14 to Act 105’s
discriminatory classification15 the district court found that:
13 In Kosilek, 221 F. Supp. 2d 156 (D.Mass. 2002), the warden contended that the fact that the inmate had received “some therapy” – i.e., psychotherapy – precluded the inmate from challenging the policy denying her access to hormones. The court rejected this argument, noting that the prison guidelines
preclude[d] the possibility that Kosilek will ever be offered hormones or sex reassignment surgery, which are the treatments commensurate with modern medical science that prudent professionals in the United States prescribe as medically necessary for some, but not all, individuals suffering from gender identity disorders. The Guidelines, in effect, prohibit forms of treatment that may be necessary to provide Kosilek any real treatment. Id. at 186. See also Wolfe v. Horn, 130 F. Supp. 2d 648, 653 (E.D.Pa. 2001) (raising the possibility that prescribing Prozac and psychotherapy may be adequate for treatment of depression but inadequate for treatment of GID). 14 The care exercised in applying the rational basis test is greater in cases involving laws intended to disadvantage a particular group, such as Act 105. See Lawrence v. Texas, 539 U.S. 558, 580 (2003) (“We have been most likely to apply rational basis review to hold a law unconstitutional . . . where . . . the challenged legislation” reflects “a desire to harm a politically unpopular group.”) (O’Connor, J., concurring) (collecting cases); Romer, 517 U.S. at 634 (“If the constitutional conception of ‘equal protection of the laws’ means anything, it must a the very least mean that
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(1) [T]he defendant[s] intentionally treated [Plaintiffs] differently from others similarly situated, (2) the defendant[s] intentionally treated [Plaintiffs] differently because of [their] membership in the class to which [they] belong, and (3) the difference in treatment was not rationally related to a legitimate state interest.”
[R.212: 63-67; App. 209-213] (quoting Smith v. City of Chicago, 457 F.2d 643,
650-51 (7th Cir. 2006).
A. Act 105 Intentionally Discriminates Against Transsexuals, Who Are Similarly Situated To Other Inmates With Serious Medical Needs.
The court found that “Act 105 takes away the DOC’s discretion to provide
‘hormonal therapy’ to the plaintiffs” and other inmates with GID, and only them,
since “DOC sometimes prescribes hormone therapy for reasons that do not have
a bar . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”) (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973); Vance v. Bradley, 440 U.S. 93, 97 (1979) (deferential rational basis “absent some reason to infer antipathy . . .”). See also Bell v. Duperrault, 367 F.3d 703, 710 (7th Cir. 2004) (“the ‘rational purpose’ test is no longer as toothless as it once seemed”) (collecting cases) (Posner, J., concurring).
The record shows that Act 105 was based on the bare desire to harm a politically unpopular group – transsexual inmates, [R.212: 6, App. 152] – and has no rational connection to any other governmental purpose. In the face of such evidence of irrational hatred or fear, “it is difficult to argue that the law is rational if ‘rational’ in this setting is to mean anything more than democratic preference,” and rationality review “must mean something more if the concept of equal protection is to operate, in accordance with its modern interpretations, as a check on majoritarianism.” Milner v. Apfel, 148 F.3d 812, 817 (7th Cir. 1998). 15 Because Act 105 cannot withstand even rational basis review, Plaintiffs need not show that the Act is subject to strict or intermediate scrutiny. Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618 (1985) (“[i]f the statutory scheme cannot pass even the minimum rationality test, our inquiry ends.”).
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to do with GID, such as estrogen replacement therapy in post-menopausal years, or for congenital or hormonal disorders.” [R.212: 64; App. 210]. Similarly, the evidence showed that DOC provided surgery, including very expensive surgery, for conditions other than GID, [R.212: 6; App. 152], and that there are no other bans on medically necessary treatment. [R.212: 64; App. 210]. Based on this evidence, the district court found “the plaintiffs have satisfied the first two prongs of an equal protection claim.” Id.
Defendants assert that Act 105 “does not, as a matter of language” discriminate, Def. Br. at 47, but, of course, intentional discrimination “may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself.” Snowden v. Hughes, 321 U.S. 1, 8 (1944) (citations omitted). Act 105 is directed only against medical treatment that is needed by transsexual people. Wis. Stat. § 302.386(5m).16 Moreover, in practice, Act 105 is enforced only against transsexual people. [R.187: ¶¶4, 11, 18, 25, 31 (tapering Plaintiffs’ hormones because of Act 105]. See also M.L.B. v. S.L.J., 519 U.S. 102, 126–27 (1996) (distinguishing disparate enforcement from disparate impact).
16The legislative history of Act 105 offers additional evidence that the Act was directed intentionally at transsexual people [R.212: 6: App. 152].
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Transsexuals – individuals with severe GID, [R.202:268] – are denied access to medical treatment needed only by them; no other inmates face a categorical denial of medically necessary treatment. B. There Is No Rational Connection Between The Denial Of Hormone
Therapy And Surgery For Transsexuals And Security. After carefully reviewing the evidence, the district court concluded that “no reasonably conceivable state of facts provides a rational tie between Act 105 and prison safety or security.” [R.212: 66; App. 212]. The court found that “defendants’ security expert was not particularly helpful for the defendant,” since he testified that the Colorado Department of Corrections, where he had worked, also had a policy that allowed inmates with GID to be treated with hormone therapy and that the policy was reasonable and did not negatively impact security. [R.212: 67; App. 213]. In addition, the expert stated that it was “an incredible stretch” to suggest that denying inmates hormone therapy would prevent sexual assaults. R.212: 66; App. 212]. There was “nothing in the record to support a finding that withdrawing hormone therapy from the plaintiffs will decrease the risk that they will become victims of sexual assault.” Id. Secondly, “it is undisputed that inmates can look effeminate without hormone therapy.” Id. Finally, the court found it significant that DOC’s policy prior to the passage of Act 105 authorized hormone therapy. [R.212: 67; App. 213]. The court rejected what it characterized as “Defendants’ argument that the ‘evidence supports the obvious.’” Id.
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Defendants argue that the district court “did not afford appropriate weight” or “proper weight” to evidence that feminized inmates are at risk of assault. Def. Br. at 51, 53. While district courts should be cautious about rejecting prison administrators’ judgment about security, “[a]s long as the concerns expressed by correctional authorities are plausible, and the burden that a challenged regulation of jail or prison security places on protected rights [is] a light or moderate one,” Keeney v. Heath, 57 F.3d 579, 581 (7th Cir. 1995), this Court has cautioned against “automatic deference to ritual incantations by prison officials that their actions foster the goals of order and discipline.” Lock v. Jenkins, 641 F.2d 488, 498 (7th Cir. 1981). See also Williams v. Lane, 851 F.2d 867, 872 (7th Cir. 1988) (“[A] court’s deference to administrative expertise and discretionary authority of correction officials must be schooled, not absolute.”) (internal quotations omitted); Wellman, 715 F.2d at 272 (“[T]he policy of deferring to the judgment of prison officials in matters of prison discipline and security does not usually apply in the context of medical care to the same degree as in other contexts”).
The relationship between the discriminatory classification and the governmental interest must be rational when viewed in its “factual context.” Romer v. Evans, 517 U.S. 620, 632–33 (1997); see also Heller v. Doe, 509 U.S. 312, 321 (1993) (rational basis review must have “footing in the realities of the subject matter addressed by the legislation”); Allegheny Pittsburgh Coal Co. v. Webster County, 488 U.S. 336, 343 (1989) (facts show no rational connection between
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classification and governmental objective); Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 446 (1985) (“The State may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction
arbitrary or irrational”). A district court’s weighing of the evidence regarding
prison officials’ security explanations is factual. Williams, 851 F.2d at 872; see also
May v. Sheahan, 226 F.3d 876, 882 (7th Cir. 2000) (assessing “the strength and
nature of [sheriff’s] security concerns as . . . factual assessments”). 17
Defendants criticize the district court’s decision to give greater weight to
their security expert’s testimony about the impact the Colorado Department of
Correction’s policy on hormone therapy had on security than to his testimony
17Defendants incorrectly label their argument about the district court’s allegedly improper weighing of the evidence a “misapplication of the law” that should be reviewed de novo. Def. Br. at 53. In support, Defendants cite Smith v. City of Chicago, 457 F.3d at 650 n. 2, and United States v. Turner, 93 F.3d 275, 286 (7th Cir. 1996), but neither case supports this position. The misapplication of law addressed in Smith was not a challenge to the weight given evidence, but involved the “rule of law” on which the district court based its decision – whether the City’s decision to pay attorneys’ fees for aldermen who opposed the mayor in unrelated litigation in the mid-1980s required it to pay the fees of aldermen who opposed a different mayor’s position in remap litigation in the 1990s. 457 F.3d at 653–54. Similarly, in Turner, the criminal defendant’s argument that a penalty scheme was “subject to arbitrary enforcement” required statutory interpretation only. 93 F.3d at 286–87. In contrast, weighing of evidence is the role of the district court as fact finder, Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (“If the district court’s account of the evidence is plausible . . . , the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently”), and must not be set aside unless clearly erroneous. Fed. R. Civ. P. 52(a)(6).
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that effeminate inmates present a security risk. The expert testified that he had
various security positions in the Colorado Department of Corrections where
there was a policy in place allowing inmates with GID to take hormone therapy,
that the policy was reasonable, that he had never argued that the policy should
be changed, that the policy is one that “security is able to implement fairly well,”
and that he has “never heard of any serious problems” from its implementation.
[R.202: 408, 432-33]. The court’s focus on this testimony is eminently reasonable,
since the pertinent legal question is whether there is a rational connection
between the denial of two forms of medical treatment for GID and security. In
contrast, even the expert’s testimony that effeminate inmates present a security
risk in a male prison does not show that the denial of hormones will enhance
security.18 The only testimony in the record from a DOC employee with security
responsibility – that of Warden Judy Smith – confirmed that transgender
18 Defendants seek to diminish the impact of their expert’s testimony that “it was a stretch” to say that “preventing inmates from taking hormones was a way to prevent sexual assaults” by reinterpreting it. They claim that the expert was answering the question “[w]hether withdrawal would necessarily lead to a reduction in sexual assaults” instead of “whether the State could reasonably conceive that withdrawal of hormone therapy would further a legitimate interest.” Def. Br. at 54. But he was asked: “Are you then suggesting that preventing inmates with GID from getting hormones is a way to prevent sexual assaults from happening in the future?”, and the answer he gave was: “That question is an incredible stretch between hormonal therapy and preventing sexual assaults.” [R.202: 426-427]. He was not asked whether there was a necessary connection denying hormone therapy and the prevention of sexual assault. His testimony was probative regarding the key question whether there was a rational connection between the denial of hormones and security.
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inmates, including the two to five inmates at Oshkosh Corrrectional where she is warden, do not present a higher security risk. [R.236: Ex. 613 at pp. 7-9].
In addition to the district court’s conclusion that the factual record failed “to support a finding that withdrawing hormone therapy from the plaintiffs will decrease the risk that they will become victims of sexual assault,” [R.212: 66; App. 212], the court also relied on the fact “that inmates can look effeminate without hormone therapy.” Id. In particular, male-to-female transsexuals express their feminine identity, whether or not they are taking hormones, because GID compels them to do what they can to resolve the dysphoria caused by a body that fails to conform with their feminine identity. [R.200: 45-46; R.202: 282-284]. To alleviate the psychological distress or impairment caused by their GID, many such individuals whose gender identity is feminine express it through their appearance, voice pitch, mannerisms, name and pronoun choices, or by otherwise identifying and expressing themselves as women. [R.200: 45-47 (Karen, a/k/a, Kenneth Krebs, who was not prescribed hormones while incarcerated, “disclosed to members of staff and other inmates that she was a transsexual and wanted to be referred to in the female gender.”); R.187: ¶42]. Significantly, many seek to do so even absent SRS or hormone therapy. [R.236: Ex. 238; R.187: ¶40 (Plaintiffs expressed femininity prior to starting hormone therapy)]. Thus, even absent the medical treatments at issue, many transsexual
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prisoners will still identify or present themselves femininely.19 Consequently, the hormones place them at no greater risk than they would face without them.
Other courts have scrutinized and rejected illogical and unsupported claims that prison rules promote security. In Turner, the Supreme Court struck down a prison regulation that restricted the right to marry. In doing so, the Court rejected “[t]he security concern emphasized by [the government] . . . that ‘love triangles’ might lead to violent confrontations between inmates.” Turner, 482 U.S. at 97 (citation omitted). The Court rejected the regulation as unrelated to serving that concern: prison administrators “have pointed to nothing in the record suggesting that the marriage regulation was viewed as preventing” love triangles, moreover, “[c]ommon sense . . . suggests that there is no logical connection between the marriage restriction and the formation of love triangles: surely in prisons housing both male and female prisoners, inmate rivalries are as likely to develop without a formal marriage ceremony as with one.” Id. at 98. In other words, because the regulation did not meaningfully mitigate the risk of violence, it did not rationally further the government’s interest in reducing the risk of violence.
Similarly, in Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988), this Court reinstated a challenge to a prison regulation that prohibited the wearing of
19 Female transsexual inmates – those for whom at least hormones are medically necessary – are highly likely to express their feminine identity, since their willingness to accept medically-prescribed hormones in prison notwithstanding any risks they perceive from appearing feminine in prison strongly suggests a similar willingness to express their femininity in other ways.
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dreadlocks. In doing so, the Court rejected “a security concern for potential racial conflict from the professed Rastafarian belief that the dreadlock symbolizes black superiority.” Id. at 962. It did so because “it is not easy to see how forcing Rastafarians to cut their hair is going to change this belief.” Id. at 963. Again, because the regulation did not meaningfully mitigate the risk of violence, it did not rationally further the government’s interest in reducing the risk of violence. In Reed, this Court recognized that “to suppose that the wearing of dreadlocks would lead to racial violence is . . . the piling of conjecture upon conjecture.” Id. Similarly, here the suggestion that denying hormones to inmates with GID will reduce their risk of assault is nothing more than “conjecture upon conjecture.”
Employing similar reasoning, the Ninth Circuit struck down a prison regulation prohibiting same-sex affection between prisoners and visitors. Whitmire v. Arizona, 298 F.3d 1134 (9th Cir. 2002). “[T]he [government] assert[ed] that its visitation policy protect[ed] inmates from being labeled as homosexuals and from being targeted for physical, sexual, or verbal abuse on account of such labeling.” Id. at 1136. The regulation, however, did not meaningfully mitigate the risk of violence:
The [government’s] visitation policy . . . does not possess a common-sense connection to the concern against homosexual labeling . . . . Common sense indicates that an inmate who intends to hide his homosexual sexual orientation from other inmates would not openly display affection with his homosexual partner during a prison visit. Rather, prisoners who are willing to display affection toward their same-sex partner during a prison visit likely are already open about their sexual orientation . . . . In situations
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like this, [the government’s] policy prohibiting same-sex displays of affection during visitation does nothing to prevent the marking of homosexual prisoners.
Id. (citation omitted).
For these reasons, the Act does not rationally further Defendants’
interest in mitigating any such risk.20
C. There Is No Rational Connection Between The Denial Of Hormone Therapy And Surgery For Transsexuals And Avoidance Of Civil Liability.
Defendants claim that their constitutional obligation to protect
transsexual prisoners from harm, and more particularly their desire to
protect the state from civil liability, justifies their denial to transsexuals –
and only transsexuals – their constitutional right to medically necessary
care. Def. Br. at 56-58. Unsurprisingly, they fail to cite any case support
20 In rejecting Defendants’ assertion that Act 105 promotes security, evidence that the asserted interest is “pretextual” should be considered to determine whether the intonation of a security rationale “masks [the government’s] real delinquencies.” Williams, 851 F.2d at 881 (emphasis added).
At the legislative hearing regarding Act 105, the only correctional expertise offered with respect to the Act was that of Defendants’ correctional medical personnel who opined that the harm caused by the Act outweighed any benefits. [R.187: ¶45; R.201: 183, 185, 188, 190-195]. The legislative history evidences anti-transsexual animus, rather than a concern about security. [R.212: 6; App. 152]. Even though a government is free at any time to assert new governmental interests, Smith, 457 F.3d at 652, the absence of any supportive testimony from Wisconsin prison personnel -- based on security or any other rationale -- in the legislature or at trial is compelling evidence that the security rationale is pretextual. Williams, 851 F.2d at 875 (prison’s “articulated security concerns are belied by its” conduct).
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for this argument that Defendants may sacrifice Plaintiffs’ constitutional right to medical care in order to avoid liability for violating their constitutional right to be protected from harm. The district court’s wellsupported factual finding that no reasonably conceivable state of facts connects the denial of medical care required by Act 105 to prison safety or security also means that there is no rational connection between the Act and the avoidance of civil liability.
D. Act 105 Is Not Justified By An Interest In Cost Savings. Cost savings can never be a constitutionally sufficient justification for any
classification, even under the most deferential level of scrutiny. Plyler v. Doe, 457 U.S. 202, 227 (1982) (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources”) (citation omitted); Shapiro v. Thompson, 394 U.S. 618, 633 & n.11 (1969), overruled in part by Edelman v. Jordan, 415 U.S. 651 (1974) (a state may not preserve finances “by invidious distinctions between classes of its citizens”). “The Equal Protection Clause . . . imposes a requirement of some rationality in the nature of the class singled out” to bear the burden of cost savings. Rinaldi v. Yeager, 384 U.S. 305, 308–309 (1966) (citation omitted).
Plaintiffs’ evidence shows that Act 105 does not rationally achieve cost savings. The cost of providing the medical treatment at issue is outweighed by the cost of denying it. [R.212: 56, 58; App. 202, 204; R.201: 183-185; R.236: Ex. 11].
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Moreover, the cost of providing the medical treatment at issue is low, both in absolute terms and relative to the cost of providing comparable medical treatment (i.e., hormone therapies and surgeries that are not intended as treatment for GID). [R.187: ¶¶ 50, 51].
Defendants have failed to show the implausibility of the district court’s conclusion that there was no reasonably conceivable tie between Act 105 and security, as they must do. Anderson, 470 U.S. at 574. Additionally, there is no rational connection between Act 105 and avoidance of liability or cost savings.
III. Act 105 Violates The Eighth Amendment And The Equal Protection Clause On Its Face.
Under United States v. Salerno, 481 U.S. 739 (1987), a statute is unconstitutional on its face if Plaintiffs show that “’no set of circumstances exists under which [it] would be valid,’ i.e., that the law is unconstitutional in all of its applications.” Washington State Grange v. Washington State Repub. Party, 552 U.S. 442, 449 (2008) (quoting Salerno, 481 U.S. at 745). The Washington State Grange Court noted the criticism by members of the Court of the Salerno test and set out an alternative formulation: “all agree that a facial challenge must fail where the statute has a ‘plainly legitimate sweep.’” Id. (quoting Glucksberg, 521 U.S. at 739-740 & n. 7 (Stevens, J, concurring in judgments)).21 Since Act 105 is facially unconstitutional under the Salerno formulation, it plainly meets the more lenient “plainly legitimate sweep” test. Glucksberg, 521 U.S. at 740 & n. 7. 21 First Amendment overbreadth challenges represent a second type of facial challenge. Washington State Grange. 552 U.S. at 450 n. 6.
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The district court found Act 105 facially invalid under Salerno, [R.212: 5967; App. 205-213], since the Act
bars doctors and other [Department of Corrections] medical personnel from providing treatment, namely, hormone therapy and sex reassignment surgery, that they may determine to be medically necessary. . . . If DOC doctors evaluate any DOC inmates and find that hormone therapy is medically necessary, then that inmate is within the group or class of inmates to whom Act 105 applies.
[R.212: 62; App. 208]. For the group or class of inmates to whom Act 105 applies – inmates for whom DOC doctors find treatment banned by the Act to be medically necessary – the Act violates the Eight Amendment and the Equal Protection Clause. [R.212: 59; App. 205].
Only relevant applications -- circumstances where Act 105 makes a difference -- are considered for purposes of the facial challenge. Invalidating a spousal abortion notification provision, the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), judged the statute “by its impact on those whose conduct it affects,” id. at 894, since a law “must be judged by reference to those for whom it is an actual rather than an irrelevant restriction . . . .” Id. at 895. Similarly, in Gonzales v. Carhart, 550 U.S. 124, 168 (2007), the Court noted that the challenged Act “applies to all instances in which the doctor proposes to use the prohibited procedure . . . .”22 Here, in the restricted context
22 Even though the numerator in the “large fraction” test applied in Casey, 505 U.S. at 895, and Gonzales, 550 U.S. at 168, is different from the numerator in either the “all of its applications” or “plainly legitimate sweep” standards, the analysis
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of a prison, hormone therapy and surgery are only available if prescribed by DOC medical providers as medically necessary treatment for a serious medical condition. Every time the Act is applied, it violates the Constitution.
Defendants argue incorrectly that the most narrow “relevant class is . . . all inmates with GID that [sic] are interested in hormone therapy or surgery.” Def. Br. at 35. In support, they rely on the district court’s finding that “Act 105 has prevented the DOC from undertaking thorough evaluations . . . to determine whether hormone therapy is medically necessary for them,” [R.212: 7; App. 153], but ignore the court’s explanation – that DOC medical personnel are not evaluating inmates for hormone therapy, “because such evaluation[s] would be futile in light of Act 105’s ban on the treatment they may determine to be medically necessary for the health of the inmate.” [R.212: 61-62; App. 207-208]. The evidence that DOC has stopped evaluating inmates for hormone therapy shows that there are additional inmates with GID – other than the current Plaintiffs – who might be prescribed hormone therapy based on DOC evaluations. DOC has chosen to cease futile evaluations even though the only conduct prohibited by Act 105 is the provision of treatment. The district court correctly concluded that the banned conduct is all that should be considered in deciding the facial challenge.
of what constitutes an application (i.e., the denominator of the fraction) for purposes of a facial challenge is no different.
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Additionally, Defendants contend that the differences between the spousal notification provision at issue in Casey and Act 105 led the district court to misapply Casey’s reasoning. Def. Br. at 36-37. However, for purposes of facial analysis, the two statutory provisions are the same. In Casey, that class was “married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement.” 505 U.S. at 895. Contrary to Defendants’ assertion that “[t]he specific nature of the provision narrowed the affected class,” it was the operation of the spousal notification statute that defined the class. All married women were required to give notice to their spouses, but the provision acted as a restriction only for women who did not wish to notify their husbands and did not qualify for a statutory exception. Similarly, although Defendants assert that Act 105 applies “to Wisconsin prisoners,” Def. Br. at 37, it operates as an actual restriction only for inmates with GID who are prescribed hormone therapy or SRS by a DOC doctor, since those treatments for GID are unavailable in prison by any other means. Regardless of the differences between the spousal notification provision and Act 105, it is the class of persons whose rights the laws restrict that determines the relevant applications (the denominator of the fraction) for deciding the facial validity of the statutes. 23
23 Contrary to Defendants’ effort to misconstrue the record, there are no alternatives to the banned treatments for prisoners with severe GID. See Statement of Facts, Sec. IV; Argument, Sec. I.D.3. And the treatments are not dictated by patient choice among treatment options, Def. Br. at 42, or
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Defendants assert that it “is manifestly illogical” to follow the direction of the Casey and Gonzales Courts regarding the relevant class of inmates for purposes of Plaintiffs’ facial challenge “because it would make judicial invalidation of a statute on its face redundant of the as-applied analysis.” Def. Br. at 39. But as the Supreme Court recently noted in Citizens United v. Federal Election Commission, 130 S. Ct. 876, 893 (2010), the “distinction between facial and as-applied challenges is not so well defined” but “goes to the breadth of the remedy employed by the Court.” The similarity between what qualifies as an “application” for as-applied and facial challenges is consistent with the concept that “[a]s applied challenges are the basic building blocks of constitutional adjudication.” Gonzalez, 550 U.S. at 168 (citing Richard H. Fallon, As-Applied and Facial Challenges, 113 HARV. L. REV. 1321, 1328 (2000)). Act 105 violates the rights of Plaintiffs and other current and future inmates with GID who would be prescribed hormone therapy or SRS by DOC medical staff, but for the existence of the Act. The constitutional violation is the same; the “breadth of the remedy,” however, is different. There is no redundancy or illogic in the award of both facial and as-applied relief where the constitutional flaw affects more individuals than the plaintiffs before the court.
“determined largely by the patient simply telling the medical professional what they are feeling.” Id. at 38. Like other mental health conditions, a diagnosis and treatment is determined based on clinical evaluations by experienced mental health practitioners. [R.202: 263-264]. The treatment is dictated by medical necessity, not by inmate choice. See Statement of Facts, Sec. III.
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Gonzales is consistent with the district court’s description of the relevant class for Plaintiffs’ facial challenge, since the Court found that the statute there “applies to all instances in which a doctor proposes to use the prohibited procedure.” 550 U.S. at 168. Defendant’s assertion that Act 105 is just like the act challenged in Gonzales, which banned one kind of abortion but “left open another ‘commonly used and generally accepted method’ to obtain an abortion” ignores the ample evidence in the record that there are no other effective treatments for serious GID other than the ones banned by the Act.
Defendants argue that if the district court’s description of the relevant class for facial analysis were the correct approach, then the Gonzales Court would have defined the relevant class of women affected by the prohibited abortion procedure more narrowly to include only those women for whom the procedure was medically necessary. Def. Br. at 39. However, the Gonzales Court found that “there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.” 550 U.S. at 166–167. Nowhere did the Court find that the challenged abortion procedure is medically necessary treatment as the district court has in this case.
This Court has interpreted application outside the abortion context consistently with the analysis in Casey and Gonzales. In Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) and Daniels v. Area Plan Comm’n of Allen County, 306 F.3d 445 (7th Cir. 2002), the Seventh Circuit upheld as-applied challenges to statutes providing
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the government with authority to act, but dismissed facial challenges because the
challenged statutes had other constitutional applications. In doing so, the court
considered only applications actually authorized by the statutes rather than
conduct unaffected by them. The Heck24 and Daniels25 courts looked at the
authority conveyed by the statutes, rather than at actions that the state could take
independent of the statute’s authority. The laws in Heck and Daniels apply where
they authorize government actions that could not happen without the challenged
statutory authority. Act 105 applies when it bars specific medical care prescribed
by a DOC physician. In both situations, the question for the court is whether any
of those actual applications are constitutional, rather than whether there is a
24 In Heck, parents challenged a statute that allowed government officials to interview children, without parental permission, when the officials suspected child abuse. Child interviews without parental permission were unconstitutional when the officials had no reasonable suspicion of abuse. 327 F.3d at 528. However, if the government officials “have definite and articulable evidence giving rise to a reasonable suspicion that a child has been abused by his parents or is [in] imminent danger of parental abuse,” id. at 528, then the official may conduct an interview without parental permission so the facial challenge failed. In finding constitutional applications of the statute, the court pointed to a situation where the statute gave the officials authority, rather than to situations (such as interviews where the officers sought and received parental consent) where the statute would be irrelevant to their conduct. 25 Similarly, in Daniels, a state statute authorized a local planning commission to vacate covenants restricting the use of private property. 306 F.3d at 449. Where the planning commission used its statutory authority to vacate a covenant in order to further a private purpose, rather than a public one, the court ruled that the statute authorized an unconstitutional taking. Id. at 465–66. While the statute was unconstitutional as applied in that situation, the court held that it was not facially unconstitutional because there were circumstances under which the statute could be applied constitutionally, by, for example, using the statutory authority to, “vacate a covenant [that] was rationally related to a public interest already authorized by legislative enactment.” Id. at 469.
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constitutional problem in situations unaffected by the restriction – or the
authority – set forth in the statute. See Casey, 505 U.S. at 895; Gonzales, 550 U.S. at
168. See also Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Engineers,
335 F.3d 607, 619–20 (7th Cir. 2003) (rejecting facial challenge where challenged
authority could be exercised constitutionally in other contexts).
As shown in Section I, GID is a serious medical need and Defendants
know of the harm caused by denying treatment for this condition. Without any
medical basis, Act 105 bans medical treatment for GID, and that ban applies only
when a DOC doctor decides the treatment is medically necessary and prescribes
it. The statute violates the Eighth Amendment, and it does so every time it
applies. In addition, Section II shows that Act 105 intentionally denies two
forms of treatment to transsexuals for whom it is medically necessary -- and only
to them -- and that there is no rational tie between the denial of that treatment
and any legitimate government interest. Act 105 violates Equal Protection on its
face and does so any time it applies.26
26 Equal protection facial challenges have been resolved without consideration of Salerno’s unconstitutional-in-all-of-its-applications test. E.g., Parents Involved in Comty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); United States v. Virginia, 543 U.S. 499 (1996); Romer v. Evans, 517 U.S. 620 (1996); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). See Berkley v. United States, 287 F.3d 1076, 1090 n. 14 (Fed. Cir. 2002) (“[I]n equal protection cases involving facial challenges, the Supreme Court has thus far not discussed or applied the Salerno test”).
The relevant constitutional test is what determines the approach to the question whether a particular statute is facially unconstitutional. Richard H. Fallon, As-Applied and Facial Challenges and Third Party Standing, 113 HARV. L. REV.
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IV. The District Court Properly Applied The PLRA In Deciding The Scope Of The Injunction.
The Prison Litigation Reform Act (PLRA) requires that prospective relief be narrowly drawn, extend no further than necessary to correct the violation of a federal right, and be the least intrusive means necessary to correct the violation. 18 U.S.C. § 3626(a)(1).
After concluding that Act 105 violates the Eighth Amendment prohibition on cruel and unusual punishment and the Equal Protection clause on its face, the district court permanently enjoined Defendants from enforcing Act 105. The court found that an injunction forbidding all applications of the Act satisfied the PLRA’s “need, narrowness and intrusiveness” requirements, because any application of the Act was unconstitutional. [R. 239:1-3; App. 216-218]. The court reached the conclusion that all applications of the Act were unconstitutional, because it correctly interpreted the Act to come into play only when a DOC physician prescribes hormone therapy or SRS as medically
1321 (2000); Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359, 421–56 (1998). Because equal protection statutory challenges are facially unconstitutional because of an “invalid purpose” or an impermissible burden on “too narrow . . . a range of conduct,” no attempt to sever applications of the statute will fix the constitutional problem. Fallon, supra at 1345-46.
Because of Act 105’s invalid purpose and the impermissible burden it places only on transsexual inmates, it violates the Equal Protection Clause on its face.
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necessary treatment for GID. [R. 212: 62; App. 208]. Defendants argue that if the district court erred in finding Act 105 facially
invalid, its injunction also violates the PLRA’s need, narrowness and intrusiveness requirements. Def. Br. at 43-45. To the extent that Defendants are simply stating that the scope of the relief must correspond to the scope of the violation, Plaintiffs agree. Lewis v. Casey, 518 U.S. 343, 360 (1996) (“The scope of injunctive relief is dictated by the extent of the violation established.”); Clement v. California Dep’t of Corrections, 364 F.3d 1148, 1152–53 (9th Cir. 2004) (upholding statewide injunction against enforcement of policy that applied statewide).
However, in making this argument, Defendants urge that the Act be interpreted more broadly than the district court interpreted it, so it “applies” to all prisoners with GID, regardless of whether they have been prescribed the forbidden treatments. Def. Br. at 45, 46. It is difficult to see what Defendants gain by taking this curious position. As a factual matter, the record makes clear that Plaintiffs cannot obtain any medical treatment that is not prescribed by DOC providers. [R. 187: ¶57]. It is also clear that Defendants and their physician employees prescribe treatment only when it is medically necessary. [R. 201: 228]. Thus, the only time that a prisoner could receive hormones or surgery for GID, and thus be subject to the prohibitions of the Act, would be when a physician prescribes the treatment as medically necessary. The Act is unnecessary to prevent prisoners who do not need hormones or SRS from receiving them.
Defendants also appear to suggest that the PLRA’s need, narrowness and 55

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intrusiveness limitations forbid facial relief altogether. Def. Br. at 45. They note that the case is “not a class action” and argue that the district court’s injunction is overbroad because it extends “further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” Id. (Defendants’ emphasis). Defendants cite no authority for the proposition that the PLRA forbids facial relief except in class actions. In addition, they did not raise this objection to the scope of the injunction in the district court. Indeed, Defendants’ counsel stated on the record at a Status Conference on June 17, 2010, that he agreed that the scope of the proposed injunction was appropriate, given the scope of the district court’s liability determinations. [R.238: 4; Pltf. App. 19]. Accordingly, this argument is waived.
V. If This Court Reverses The Decision That Act 105 Is Unconstitutional On Its Face, Denial Of Class Certification Should Also Be Reversed.
“Nominally prevailing parties are entitled to file . . . cross-appeals against the contingency that this court will reverse an otherwise thoroughly satisfactory judgment.” Council 31, AFSCME v. Ward, 978 F.2d 373, 380 (7th Cir. 1992); Amati v. City of Woodstock, 176 F.3d 952, 957 (7th Cir. 1999). If this Court leaves intact the district court’s facial invalidation of Act 105, then it need not reach the merits of Plaintiffs’ class certification appeal.
An appellate court will reverse a denial class certification where the district court abused its discretion. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998). “[P]urely legal determinations made in support of [a class certification]
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decision are reviewed de novo.” Andrews v. Checy Chase Bank, 545 F.3d 570, 573 (7th Cir. 2008). Moreover, errors of law constitute a per se abuse of discretion. Yokoyama v Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1091 (9th Cir. 2010) (“an error of law is an abuse of discretion.”) (emphasis in original); cf Cooter & Gell v. Hartmarx Corp. 496 U.S. 384, 405 (1990) (“[a] District Court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law . . .”). Here, the district court committed errors of law and abused its discretion by denying class certification, so the denial of class certification should be reversed and remanded for reconsideration.
A. The District Court Failed To Consider The Existence Of Legal Commonalities And Incorrectly Concluded That No Factual Or Legal Commonalities Existed.
The district court’s denial of class certification, based largely on the erroneous conclusion that no common facts or legal theories existed, was an abuse of discretion.
Rule 23(a)(2) provides that a class may be certified if there are questions of either law or fact common to the class. Fed. R. Civ. P. 23(a)(2); see also Patterson v. Gen. Motors, 631 F.2d 476, 481 (7th Cir. 1980). A plaintiff may meet the commonality requirement by demonstrating that the class claim “arise[s] out of the same legal or remedial theory.” Id. Additionally, “[a] common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2).” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1991). “Claims arising
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out of Defendants’ standardized conduct towards members of the proposed class present a classic case for treatment as a class action.” Hudson v. City of Chicago, 242 F.R.D. 496, 501 (N.D. Ill. 2007).
Here, contrary to the plain text of the rule, the district court failed to address or assess whether the named Plaintiffs shared common questions of law with the class they sought to represent. This lack of analysis was legal error.27 Regardless of whether the assertion that the DOC’s “standardized conduct” violated the Eighth and Fourteenth Amendments was characterized as a common fact impacting the proposed class or a common legal theory, or both, Rule 23(a)(2) was satisfied. Also, despite the existence of a “common nucleus of operative fact” and “standardized conduct” by Defendants, the district court concluded that no factual commonalities existed. This too was in error.
The district court’s post-trial Memorandum Decision finding Act 105 unconstitutional demonstrates the error in its earlier conclusion that there were no common facts or legal theories. With the benefit of a complete record, the district court held that Plaintiffs and the proposed class members shared both legal and factual commonalities when it embraced the assertion that “the denial of necessary medical care to persons who have had it in the past does not
27 Essentially, the district court concluded that because it could find Act 105 unconstitutional on its face, it need not certify a broader class to protect all those potential plaintiffs who might be swept up by the reach of Act 105, including those who had not yet begun to receive treatment. [R.131: 5-6]. Because the availability of an alternative remedy is not a cognizable factor for consideration under Rule 23(a), it should not have been considered.
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distinguish Plaintiffs under the Eighth Amendment and Equal Protection Clause from transsexuals newly diagnosed with GID and prescribed the treatment for the first time [.]” [R.212: 59; App. 205]. Given this result, it was legal error for the district court to have concluded that no common factual or legal issues existed based on how Act 105 impacted the class members, rather than on whether it did. [R.102: 4-5; Pltf. App. 4-5]. See Dunn v. City of Chicago, 231 F.R.D. 367, 373 (N.D. Ill. 2005) (“commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.”).
Moreover, because Plaintiffs moved for class certification under Rule 23(b)(2), the district court’s emphasis on factual differences was misplaced. Plaintiffs’ proposed remedy was for injunctive relief rather than damages. Given this posture, the relevance of factual differences is minimal. Baby Neal v. Casey, 43 F.3d 48, 56–57 (3d Cir. 1994) (“because [(b)(2)] cases do not also involve an individualized inquiry for the determination of damage awards, injunctive actions by their very nature often present common questions satisfying Rule 23(a)(2).”) (internal quotation marks and citation omitted).
The district court’s denial of class certification should be reversed and remanded because, as demonstrated by its own merits opinion, Rule 23(a)(2) was satisfied by the existence of both legal and factual commonalities between the Plaintiffs and the proposed class members.
B. The District Court Committed Legal Error By Ignoring The Presence Of A Common, Typical Legal Question.
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The district court committed legal error by ignoring the presence of a common and typical legal question that satisfied Rule 23(a)(3).
The question of whether a representative plaintiff’s claim is typical of the class plaintiff seeks to represent often merges with the commonality analysis. Rosario, 963 F.2d at 1013 (typicality “is closely related” to commonality); see also Gen. Tel. Co. v. Falcon, 457 U.S. 147, 158 n.13 (1982) (commonality and typicality analyses “tend to merge.”) “A Plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). Rule 23(a)(3) does not require that class members suffer the same injury as the named class representatives. Id. at 232–33.
Although the district court correctly identified the De La Fuente standard, it failed to apply it to the facts here. [R.102: 4-5; Pltf. App. 4-5]. The district court simply concluded without analysis that “potential claims of the proposed class members have not been shown to be common or typical to those of the five plaintiffs in this case.” Id. at 5. This conclusion was contrary to the law of this Circuit, which has consistently followed the De La Fuente standard. See Arreola v. Godinez,546 F.3d 788, 798–99 (7th Cir. 2008); Keele, 149 F.3d at 595. The error in this analysis is again demonstrated by the district court’s conclusion that the legal impact of the DOC’s conduct was to violate the proposed class members’ Eighth and Fourteenth Amendment rights in the same way as the named
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Plaintiffs. [R.212: 59]. The district court’s failure to apply the De La Fuente standard to the facts here amounts to an abuse of discretion and the district court should also reconsider this issue.
C. The District Court Failed To Consider The Relevant Factors Affecting Numerosity
Pursuant to Rule 23(a)(1), a class must be so numerous that joinder of all members is impracticable. Plaintiffs are not required to specify the exact number of persons in the proposed class. See Newberg on Class Actions (“Newberg”) §3:5, p. 233-35 (4th ed. 2002). Thus, a reasonable estimate of the number of class members will suffice. Dhamer v. Bristol-Meyers Squibb Co., 183 F.R.D. 520, 525 (N.D.Ill. 1998) (citing Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989)). In determining whether numerosity exists, courts should consider several factors relevant to the practicability of joinder, including: judicial economy, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members. Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993) (the “determination of practicability depends on all the circumstances surrounding a case, not on mere numbers.”); see also Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415, 421 (N.D. Ill. 2003). Here, the district court erred by ignoring several factors that should be considered when analyzing Rule 23(a)(1)’s numerosity requirement.
First, Plaintiffs requested injunctive relief which would necessarily affect the interests of future class members. Accordingly, the class should have been
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certified based on impracticability. Celani, 987 F.2d at 936 (injunctive relief is a factor that should be considered when analyzing R. 23(a)(1)); Rosario v. Cook Co., 101 F.R.D. 659, 661 (N.D. Ill. 1983) (certifying a class of 20 seeking injunctive relief because “[r]egardless of their number, the joinder of future alleged discriminatees is inherently impracticable.”). Although Plaintiffs argued that joinder was impracticable based on the presence of future class members, the district court ignored Plaintiffs’ argument and failed to provide any reason for doing so. [R. 36: 7-8; R.102: 5-6; Pltf. App. 5-6].
Additionally, the district court erred in denying class certification based only on its conclusion that the proposed class had just six members. As Plaintiffs asserted, the class was estimated to be 26 in 2006 alone. [R.36: 6-7]. Moreover, this estimate did not include any future class members to whom injunctive relief would have applied. Nevertheless, Plaintiffs’ good faith estimate of class size was rejected by the district court without analysis and without consideration of the other relevant factors. Thus, the district court’s conclusion was reached in error. Barragan v. Evanger’s Dog and Cat Food Co., Inc., 259 F.R.D. 330, 333 (N.D. Ill. 2009) (“In order to show numerosity, a plaintiff does not need to demonstrate the exact number of class members as long as a conclusion is apparent from good-faith estimates.”)
Finally, class actions are designed to serve the interests of judicial economy. Here, a failure to join future class members would “unnecessarily multipl[y] the expense of litigation.” Rosario, 101 F.R.D. at 662 (“forcing the
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parties to relitigate a common core of issues unnecessarily multiplies the expense of litigation, whereas allowing a suit to proceed as a class action protects defendants as well as plaintiffs.”) Although Plaintiffs asserted this argument, the district court failed to consider or address this factor. [R.36: 7-8; R.102: 1-7; Pltf. App. 1-7].
The district court’s failure to address the factors recognized in this Circuit as being relevant to a Rule 23(a)(1) numerosity analysis was an abuse of discretion. Consequently, the case should be remanded for reconsideration of those factors. Additionally, for the reasons stated above, the district court should be directed to reconsider its commonality and typicality analyses in light of its own decision on the merits.
CONCLUSION Plaintiffs respectfully request that this Court affirm the district court’s decision and judgment declaring Wis. Stat. § 302.386(5m) unconstitutional as it applies to Plaintiffs and on its face under the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment and enjoining the enforcement of Wis. Stat. § 302.386(5m). If this Court should reverse the district court’s decision to award facial relief, then Plaintiffs respectfully request that this Court reverse the district court’s denial of class certification and remand for reconsideration.
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Dated this 23rd day of November, 2010.
Respectfully submitted,
s/ John A. Knight John A. Knight American Civil Liberties Union Foundation 180 N. Michigan Avenue, Suite 2300 Chicago, Illinois 60601 (312) 201-9740 jknight@aclu-il.org Counsel of Record
Laurence J. Dupuis American Civil Liberties Union of Wisconsin Foundation 207 East Buffalo Street, Suite 325 Milwaukee, WI 53202-5712 (414) 272-4032
M. Dru Levasseur Lambda Legal Defense & Educ. Fund, Inc. 120 Wall Street, Suite 1500 New York, NY 10005 (212) 809-8585
Erik R. Guenther Hurley Burish & Stanton, SC 10 E Doty St # 320 PO Box 1528 Madison, WI 53701-1528 (608) 257-0945

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
Jonathan K. Baum Katten Muchin Rosenman LLP 525 West Monroe Street Chicago, Illinois 60661-3693 (312) 902-5479 jonathan.baum@katten.law.com
Alyx S. Pattison Katten Muchin Rosenman LLP 525 West Monroe Street Chicago, Illinois 60661-3693 (312) 902-5549 alyx.pattison@kattenlaw.com
Attorneys for Plaintiffs-Appellees, Cross-Appellants

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
CERTIFICATE OF COMPLIANCE The undersigned certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 29(d) and 32(a)(7)(B) for a brief produced with a proportionally spaced font. Exclusive of the exempted portions, the brief contains 16,497 words. Dated this 23rd day of November, 2010
/s John A. Knight John A. Knight Counsel for Plaintiffs-Appellees, Cross-Appellants

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
CIRCUIT RULE 31(e) CERTIFICATION The undersigned certifies that the digital version of the foregoing BRIEF AND APPENDIX OF PLAINTIFF-APPELLEES, CROSS-APPELLANTS was generated by printing to PDF format from the original word processing file and not by scanning paper documents, pursuant to Circuit Rule 31(e). Dated this 23rd day of November, 2010.
s/ John A. Knight John A. Knight Counsel for Plaintiffs-Appellees, Cross-Appellants

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
CIRCUIT RULE 30(d) CERTIFICATION
The undersigned certifies that all materials required by Circuit Rules 30(a) and 30(b), with the exception of materials included in the Appendix of Defendants-Appellants, Cross-Appellees, are included in the Appendix of Plaintiffs-Appellees, Cross-Appellants.
Dated this 23rd day of November, 2010.
s/ John A. Knight John A. Knight Counsel for Plaintiffs-Appellees, Cross-Appellants

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APPENDIX

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Table of Contents – Appendix
Order Denying Plaintiffs’ Motion for Class Certification (Doc. #35),. PLTF APP 1 - 7 Denying Plaintiffs’ Motion for Leave to File Second Amended Complaint,(Doc. #37), Granting Plaintiffs’ Motion for Leave, Instanter, to File Documents with a Nonparty Inmate’s Name Redacted and to File Unredacted Documents Under Seal (Doc. #80), and Granting Plaintiffs’ Motion for Leave, Instanter, to File Declarations with Nonparty Inmates’ Names Redacted and to File Unredacted Documents Under Seal (Doc. #98)
Order Denying Motion for Leave to Amend (Doc. #104) and ............ PLTF APP 8-14 Denying Motion to Reconsider Certification of Modified Class Definition (Doc. #104)
Transcript of Joint Status Conference held on Thursday, .................. PLTF APP 15-25 June 17, 2010

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
KARI SUNDSTROM, ANDREA FIELDS, LINDSEY BLACKWELL, MATTHEW DAVISON, also known as JESSICA DAVISON, and VANKEMAH D. MOATON,
Plaintiffs,
Case No. 06-C-112
MATTHEW J. FRANK, WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, WARDEN ROBERT HUMPHREYS, and MANAGER SUSAN NYGREN,
Defendants.
ORDER DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (DOC. #35),
DENYING PLAINTIFFS' MOTION OR LEAVE TO FILE SECOND AMENDED
COMPLAINT (DOC. #37), GRANTING PLAINTIFFS' MOTION FOR LEAVE, INSTANTER
TO FILE DOCUMENTS WITH ANONPARTY INMATE'S NAME REDACTED AND TO ' FILE UNREDACTED DOCUMENTS UNDER SEAL (DOC. #80), and GRANTING
PLAINTIFFS' MOTION FOR LEAVE, INSTANTER, TO FILE DECLARATIONS WITH NONPARTY INMATES' NAMES REDACTED AND TO FILE UNREDACTED DOCUMENTS UNDER SEAL (DOC. #98)
The plaintiffs, who are Wisconsin prison inmates, bring this civil rights action under 42 U.S.C. § 1983 for declaratory and injunctive relief claiming thatthe defendants have
violated the United States Constitution byenforcing 2005Wisconsin Act 105,codified as Wis. Stat. § 302.386(5m), and abruptly terminating and depriving them of medical treatment for their serious health condition, Gender Identity Disorder (GID). Further, the plaintiffs assert that thedefendants acted without exercising individualized medical judgment and in contrast
PLTF APP 1

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
to the treatment the defendants provide to similarly situated inmates in Wisconsin Department of Corrections (DOC) facilities. The third amended complaint (complaint) seeks an end to the defendants' actions that violate the plaintiffs' Fourteenth Amendment right to equal protection and Eighth Amendment right to be free from cruel and unusual punishment, as well as a
declaration that Wis. Stat. § 302.386(5m)1 is unconstitutional on its face. On January 27,2006, the court granted plaintiffs Sundstrom and Fields' motion
for preliminary injunction. Consequently, the defendants are enjoined from withdrawing any hormone therapy which was prescribed to the plaintiffs as of January 11, 2006, and must return the plaintiffs' hormonal therapy to the level in effect prior to the January 12, 2006, reduction. Later, the preliminary injunction was extended to plaintiffs Lindsey Blackwell, Matthew Davison a/k/a Jessica Davison, and Vankemah Moaton, as these plaintiffs were identified as inmates who had been diagnosed with GID or transsexualism and who faced
termination of hormone therapy pursuant to Wis. Stat. § 302.386(5m). The preliminary injunction remains in effect with regard to these five plaintiffs until a trial on the merits, as the parties have stipulated to consolidation of the preliminary injunction hearing and the trial on
the merits. PLAINTIFFS' MOTION TO CERTIFY CLASS
The plaintiffs have filed a motion tocertify a class action in thiscase. Theyseek certification ofthe following class pursuant to Federal Rule of Civil Procedure 23(b)(2):
All current or future prisoners or patients as specified inWis. Stat. 302.386(5m) who are transgender, including those who have
' The new law prohibits the use of state funds or"federal funds passing through state treasury to provide or to facilitate the provision of hormonal therapy," for the treatment of transgender prisoners, juvenile detainees, or residents in forensic mental health facilities in Wisconsin. Wis. Stat. § 302.386(5m).
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
been diagnosed with Gender Identity Disorder and those who have a strong persistent cross-gender identification and either a persistent discomfort with their sex or a sense of inappropriateness in the gender role of that sex. (Pis.' Br. in Supp. of Mot. for Class Cert, at 1.) The plaintiffscontend that the proposed class meets the requirements of Rule 23(a) and (b)(2). The defendants oppose the motion. According to the defendants, the court should deny the plaintiffs' motion because the proposed class is overly broad and members of the proposed class lack standing. Moreover, the defendants contend that the proposed class fails to satisfy the numerosity, typicality, and commonality requirements of Rule 23(a). Under Federal Rule of Civil Procedure 23(a), "[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." In addition, to prosecute a class action, the
plaintiffs mustshowthat "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief. . . with
respect to the class as a whole." Fed. R. Civ. P. 23(b)(2). 1. Commonality and Typicality
"A common nucleus of operative fact is usually enough to satisfy the commonality requirement." Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). A common nucleus of operative fact is typically found where the "defendants have engaged in standardized conduct towards members of the proposed class." Keele v. Wexler, 149 F.3d
3
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
589, 594 (7th Cir. 1998); see also Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (stating that "commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members").
A court's analysis of whether a representative party's claims are typical of the class members' claims is closely related to the court's commonality inquiry. Keele, 149 F.3d at 595. The Seventh Circuit has reasoned that "'[a] plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other members and his or her claims are based on the same legal theory' . . . even if there are factual distinctions between the claims of the named plaintiffs and those of other class members." De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (citations and internal quotations omitted).
The plaintiffs are proceeding on an Eighth Amendment medical care claim and a Fourteenth Amendment equal protection claim based on allegations that the defendants stopped or threatened to stop their hormone therapy medication to comply with Wis. Stat. § 302.386(5m). The pleadings indicated the following: PlaintiffSundstrom was diagnosed with
GID in 1990 at age 25 and has been on hormone therapy since 1990. During all periods of incarceration until January 12,2006, the defendants have provided Sundstrom with feminizing hormones and testosterone blockers. Plaintiff Fieldswas diagnosed with GID in 1993 at age 16 and has been on hormone therapy since 1996. During all periods of incarceration until January 12, 2006, the defendants have provided Fields with feminizing hormone therapy. Plaintiff Blackwell was diagnosed as a transsexual in 1998 at age 15, at whichtime Blackwell was prescribed feminizing hormones and began living full-time as a woman. During all periods of incarceration until January 23,2006, the defendants have provided Blackwell with
4
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
feminizing hormone therapy. Plaintiff Davison was diagnosed as a transsexual in June 2005
and has taken prescribed feminizing hormones continuously since July 2005. Plaintiff Moaton was diagnosed as a transsexual at Dodge Correctional Institution in September 2006. Moaton has taken prescribed feminizing hormones since 2000. At this time, the five plaintiffs are receiving hormone medication pursuant to this court's order.
The principal allegations in this case are that the plaintiffs have been diagnosed with GID or transsexualism and are taking hormone therapy that is in danger of being withdrawn. (See Court's Order of January 27,2006) (discussing the dangerous effects of the withdrawal of hormone therapy). The plaintiffs propose a class which includes all prisoners "who have a strong persistent cross-gender identification and either a persistent discomfort with their sex or a sense of inappropriateness in the gender role of that sex." However, the
proposed class would increase the scope of this lawsuit beyond the claims upon which the named plaintiffs are proceedings. Moreover, potential claimsof the proposed class members have not been shown to be common or typical to those of the five plaintiffs in this case.
2. Numerosity To establish numerosity, plaintiffs are not required to provide an exact number
ofclassmembers. Marcial v. Coronet Ins. Co., 880 F.2d 954,957 (7th Cir. 1989). Generally, a plaintiff can satisfy thenumerosity requirement by demonstrating that there are at leastforty potential plaintiffs. Stewart v. Abraham, 275 F.3d 220,226-27 (3d Cir. 2001) (citing 5 James Wm. Moore et al., Moore's Federal Practice § 23.22[3][a] (3d ed. 1999)).
In this case, only six prisoners within the DOC have been identified as
threatened with withdrawal of their hormone therapy through enforcement of Wis. Stat. §
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
302.386(5m).2 A class of five or six prisoners, five of whom have already been joined in the case, is not sufficient to meet the numerosity requirement of Rule 23(a)(1). See 7A Charles Alan Wright, et al., Federal Practice and Procedure § 1762 (3d ed. 2005) ("Ofcourse, ifthere
are no members of the class other than the named representatives, then Rule 23(a)(1) obviously has not been satisfied"). For these reasons, the Motion for Class Certification as well as the related Motion for Leave to File Second Amended Complaint to add class allegations must be denied.
ADDITIONAL MATTERS
On August 2,2006, the plaintiffs filed a motion to file redacted documents which conceal the personal medical information and the identities of nonparty witnesses. This motion goes along with the plaintiffs' motion to compel discovery filed on the same date,
which was resolved on December 6, 2006. Moreover, the motion is consistent with the
parties' April 6, 2006, Agreed Protective Order and seeks to protect sensitive nonpublic information. For that reason, the motion will be granted.
On January 30, 2007, the plaintiffs filed a motion to seal document and to file declarations with the names of nonparty inmates redacted. This motion was accompanied with the plaintiffs' reply to the class certification motion. Like the August 2 motion, this motion asks the court to approve the filing of documents which protect from public disclosure the identitiesof nonparty inmates in Department of Corrections facilities along with their medical treatment and diagnosis. In view of this court's decision on the plaintiffs' class certification motion, the privacy interest of the nonparty inmates, and the agreement of the parties,
1The six prisoners are the five named plaintiffs in this case and another prisoner who has a
separate case before this court.
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IT IS ORDERED that the plaintiffs' Motion for Class Certification (Doc. #35) is
DENIED.
IT IS FURTHER ORDERED that the plaintiffs' Motion for Leave to File Second Amended Complaint (Doc. #37) is DENIED.
IT IS FURTHER ORDERED that the plaintiffs' Motion for Leave, Instanter, to File Documents with a Nonparty Inmate's Name Redacted and to File Unredacted Documents under Seal (Doc. #80) is GRANTED.
IT IS FURTHER ORDERED that the plaintiffs' Motion for Leave, Instanter, to File Declarations with Nonparty Inmates' Names Redacted and to File Unredacted Documents under Seal (Doc. #98) is GRANTED.
Dated at Milwaukee, Wisconsin, this 16th day of February, 2007.
BY THE COURT
s/ C. N. CLEVERT, JR.
C. N. CLEVERT, JR. U. S. DISTRICT JUDGE
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

KARI SUNDSTROM, ANDREA FIELDS, LINDSEY BLACKWELL, MATTHEW DAVISON, also known as Jessica Davison, and VANKEMAH D. MOATON,
Plaintiffs,
MATTHEW J. FRANK, WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, MD, WARDEN ROBERT HUMPHREYS, and MANAGER SUSAN NYGREN,
Defendants.

Case No. 06-C-112

ORDER DENYING MOTION FOR LEAVE TO AMEND (DOC. #104) AND
DENYING MOTION TO RECONSIDER CERTIFICATION OF MODIFIED CLASS DEFINITION (DOC. #104)
On March 5, 2007, the plaintiffs filed a joint motion for leave to amend and to
reconsider certification ofa modified class definition. The plaintiffs request that the court, 1)
grant their motion to amend the complaint and allow them to add Erik Huelsbeck, a/k/a Erika
Huelsbeck, and Kenneth Krebs, a/k/a Karen Krebs as additional plaintiffs; 2) grant them leave to file a Fourth Amended Complaint, see Exhibit F, adding plaintiffs Huelsbeck and Krebs, and classallegations; and3)grant their motion toreconsider the February 15,2007, decision
denying class certification, and certifya modified class under Federal Rule of Civil Procedure
23 of:

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All current or future residents housed in prisons identified in Wis. Stat. § 302.01 who have been, or will in the future be, denied hormone therapy or sex reassignment surgery to treat a serious medical need because of the Inmate Sex Change Prevention Act, 2005 Wisconsin Act 105, codified at Wis. Stat. § 302.386(5m). (PL's Mot. U 5.) The defendants oppose the plaintiffs' motion and contend that allowing the plaintiffs to file a fourth amended complaint would result in substantial delay and unfairly prejudice the defendants. As for reconsideration of class certification the defendants submit that the proposed class still would not satisfy the typicality and numerosity requirements of Rule 23. Also, the defendants argue that allowing this case to proceed as a class action would result in substantial prejudice to the defendants because the scope of the lawsuit would be dramatically increased. Finally, the defendants assert that the plaintiffs' submission is not a motion for reconsideration because the plaintiffs are not asking the court to reconsider its ruling on their first proposed class. Rather, according to the defendants, the plaintiffs are asking the court to rule for the first time on an entirely new definition of a proposed class.
MOTION TO AMEND THE COMPLAINT
Rule 15(a) of the Federal Rules of Civil Procedure states that leave to file an amended complaint "shall be freely given when justice so requires." The Supreme Court has explained the meaning of "freely given" as used in Rule 15(a) by stating:
In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of a movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. - the leave sought should, as the rules require, be freely given. Foman v. Davis. 371 U.S. 178, 182 (1962).
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
The five named plaintiffs in this case maintain that they have Gender Identity Disorder (GID). They are proceeding on an Eighth Amendment medical care claim and a Fourteenth Amendment equal protection claim based on allegations that the defendants stopped or threatened to stop their hormone therapy medication to comply with Wis. Stat. § 302.386(5m)1. The third amended complaint (complaint) seeks an end to purported actions by the defendants that violate the plaintiffs' Fourteenth Amendment right to equal protection and Eighth Amendment right to be free from cruel and unusual punishment, as well as a declaration that Wis. Stat. § 302.386(5m) is unconstitutional on its face. The court has entered a preliminary injunction, enjoining the defendants from withdrawing any hormone therapy which was prescribed to the plaintiffs as of January 11, 2006, and ordering the defendants to return the plaintiffs' hormonal therapy to the levels in effect prior to the January
12, 2006, reduction.
The pending motions seek leave by the plaintiffs to file a fourth amended complaint naming two additional plaintiffs, Erik, a/k/a Erika, Huelsbeck and Kenneth, a/k/a Karen, Krebs. According to the proposed fourth amended complaint, Huelsbeck and Krebs, Wisconsin state prisoners who are being harmed because Wisconsin Department of Corrections (DOC) medical personnel have denied them hormones pursuant to Wis. Stat. § 302.386(5m). The proposed fourth amended complaint charges that Huelsbeck and Krebs were identified as male when born but since childhood have had an innate sense of being
female; both have been diagnosed with GID; both experience severe psychological distress
' The new law prohibits the use of state funds or "federal funds passing through state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery" for the treatment of
transgender prisoners, juvenile detainees, or residents in forensic mental health facilities in Wisconsin. Wis. Stat. § 302.386(5m).
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
because their bodies do not conform to their female gender identity; and both have attempted suicide inthe past and continue to experience depression or suicidal thoughts because of the psychological distress caused by their gender.
In support of the motion to amend, the plaintiffs contend that Wis. Stat. § 302.386(5m) is unconstitutional as applied to inmates who have a serious medical need for treatment for their GID. According to the plaintiffs,
Although both Ms. Huelsbeck and Ms. Krebs could file separate cases seeking hormones, the cases they would file to obtain the hormone therapy denied them because of the Act would be closely related to the present case. The most important facts regarding their cases - the expert testimony about what treatment is medically necessary for persons with GID - and the legal questions regarding whether the Constitution requires treatment for prisoners with GID and a serious medical need for
such treatment are the same as the facts and law at issue in this
case.
(Pis.' Supporting Br. at 5.) The plaintiffs assert that "refusing to provide hormones to an
inmate with GID who has a serious medical need for them inflicts the same kind of serious
harm caused by cutting someone off the therapy." Id. at 4 (citing Declaration of Randi C. Ettner, Ph.D. fl11.)
Based on the current record, Huelsbeck and Krebs are unlike the plaintiffs and have never been prescribed hormone therapy by the DOC. However, Huelsbeck and Krebs claim that, because of Wis. Stat. § 302.386(5m), the DOC refused to even consider them as candidates for hormone therapy. The proposed fourth amended complaint states that both Huelsbeck and Krebs have "asked DOC medical personnel to evaluate [them] for treatment,
but they have refused because 2005 Wisconsin Act 105 prevents them from providing hormone therapy." (Proposed Fourth Amendment Complaint flfl 73-74.) In Huelsbeck and
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Krebs' opinion, hormones are medically necessary to treat their GID. However, neither inmate came into the DOC system taking feminizing hormones, although Huelsbeck took Depo-Provera for about three months several years ago. (Proposed Fourth Amended Complaint U 54.)
There is a fundamental difference between the five named plaintiffs and the two proposed plaintiffs. The former have been prescribed and administered hormone therapy by
the DOC2; the latter have not. Allowing Huelsbeck and Krebs to participate in this lawsuit as
plaintiffs would expand this case to include the factual issue of whether hormone therapy is a medically necessary treatment for them individually. Expanding the nature of this lawsuit at this stage of the proceedings would prejudice the defendants unduly. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 (1971); Campania Mgmt. Co., Inc., v. Rooks, Pitts &Poust, 290 F.3d 843, 848 (7th Cir. 2002); Select Creations, Inc. v. Paliafito America, Inc., 830 F. Supp. 1213, 1217-18 (E.D. Wis. 1993).
It is clear that the plaintiffs are concerned that, if their motion to amend is denied, relief upon resolution of this case would be limited to prisoners who find themselves
in the current plaintiffs' situation, i.e., subject to withdrawal of hormone therapy because of
' The pleadings indicated the following: Plaintiff Sundstrom was diagnosed with GID in 1990 at age 25 and has been on hormone therapysince 1990. During all periodsof incarceration until January 12,2006, the defendants have provided Sundstrom with feminizing hormones and testosterone blockers. Plaintiff Fields was diagnosed with GID in 1993 at age 16and has been on hormone therapysince 1996. During all periods of incarceration until January 12, 2006, the defendants have provided Fields with feminizing hormone therapy. Plaintiff Blackwell was diagnosed as a transsexual in 1998 at age 15, at which time Blackwell was prescribed feminizing hormones and began living full-time as a woman. During all periods of incarceration until January 23, 2006, thedefendants have provided Blackwell with feminizing hormone therapy. Plaintiff Davison wasdiagnosed as a transsexual in June 2005 and has taken prescribed feminizing hormones continuously since July 2005. Plaintiff Moaton was diagnosed as a transsexual at Dodge Correctional Institution in September 2006. Moaton has taken prescribed feminizing hormones since 2000. At this time, the five plaintiffs are receiving hormone
medication pursuant to this court's order.
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Wis. Stat. § 302.386(5m). Moreover, the plaintiffs point out that a blanket policyof failing to treat inmates with GID with hormone therapy can violate the Constitution. However, one of the plaintiffs' claims for relief in this case is a declaration that Wis. Stat. § 302.386(5m) is unconstitutional and a ruling upon the constitutionality of the statute has the potential to impact more than the five plaintiffs in this case.
MOTION FOR RECONSIDERATION
Turning to the motion for reconsideration, the court notes that Federal Rule of Civil Procedure 54(b) allows any order adjudicating fewer than all the claims to be revised at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. Motions to reconsider (or more formally, to revise) an order under Rule 54(b) are judged by largely the same standards as motions to alter or amend a judgment under Rule 59(e): to correct manifest errors of law or fact or to present newly discovered evidence. Rothwell Cotton Co. v. Rosenthal &Co., 827 F.2d 246,251 (7th Cir. 1987) (quoting Keene Corp. v. InflFid. Ins. Co., 561 F. Supp. 656, 665-66 (N.D. III. 1982), afTd, 736 F.2d 388 (7th Cir. 1984) (citation and footnote omitted)), amended by, 835 F.2d 710 (7th Cir. 1987). Compare Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996) (providing nearly identical standard for motion under Rule 59(e)).
The plaintiffs contend that a class action is the most timesaving and efficient way to address the issues related to the statute's prohibition of medical treatment for "these plaintiffs" and for future inmates. The plaintiffs assert:
The inmate population in the custody of the Department of Corrections is and will likely continue to be dispersed among several prisons. Many of these inmates will not have the knowledge of the law or the financial resources to institute individual suits challenging the Act, future inmates will be
6
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
affected by the Act, and those future inmates who have the knowledge and financial resources to file cases for themselves or who manage to find attorneys to file cases for them will create a multiplicity of lawsuits deciding the same or substantially similar questions about the constitutionality of the Act raised in the current case. These factors show the impracticability of joining all inmates harmed now and in the future by the Act and strongly support the certification of a class.
(Pis.'Supporting Br. at 8.) The plaintiffs further contend that granting the relief sought in their
motion is well within the court's discretion and will not prejudice the defendants.
On February 16, 2007, the court denied the plaintiffs' motion for class
certification, reasoning, in part:
The principal allegations in this case are that the plaintiffs have been diagnosed with GID or transsexualism and are taking hormone therapy that is in danger or being withdrawn. (See Court's Order of January 27, 2006) (discussing the dangerous effects of the withdrawal of hormone therapy). The plaintiffs propose a class which includes all prisoners "who have a strong persistent cross-gender identification and either a persistent discomfort with their sex or a sense of inappropriateness in the gender role of that sex." However, the proposed class would increase the scope of this lawsuit beyond those claims upon which the named plaintiffs are proceeding. Moreover, potential claims of the proposed class members have not been shown to be common or typical to those of the five plaintiffs in this case.
(Court's order of February 16, 2007, at 5.) The plaintiffs' motion for reconsideration of the
court's denial proposes a revised class. See infra, at 2. However, for the reasons stated in
this order with respect to the plaintiffs' motion to amend the complaint as wellas the reasons
set forth in the February 16,2007, order, and because the plaintiffs have notpresented newly
discovered evidence or shown that the order of February 16,2007, contained a manifest error
of law,
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IT IS ORDERED that the plaintiffs' motion for leave to amend (Doc. #104) is

DENIED.

IT IS FURTHER ORDERED that the plaintiffs' motion to reconsider certification

of modified class definition (Doc. #104) is DENIED. Dated at Milwaukee, Wisconsin, this 7th day of August, 2007.

BY THE COURT
s/ C. N. CLEVERT, JR.
C. N. CLEVERT, JR.
U.S. DISTRICT JUDGE

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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
MILWAUKEE DIVISION

ANDREA FIELDS, ET AL .,

) CASE NO: 2:06-CV-112-•CNC

Plaintiffs,

)

CIVIL

VS .

)

Milwaukee, Wisconsin

JUDY P. SMITH, ET AL .,

)

Thursday, June 17, 2010

Defendants.

) (10:23 a.m. to 10:33 a m.)

MINX GOTTI, ET AL. ,

vs.

Plaintiffs,

) ) CASE NO: 2:07-CV-928-•CNC

RICK RAEMISCH, ET AL • i

)

Defendants.

)

JOINT STATUS CONFERENCE

BEFORE THE HONORABLE CHARLES N. CLEVERT, JR.
CHIEF UNITED STATES DISTRICT JUDGE

Deputy Clerk: Court Reporter Transcribed by

Kris Wilson

Recorded; FTR

Exceptional Reporting Services,
14493 S. Padre Island Drive Suite A-400
Corpus Christi, TX 78418-5940
361 949-2988

Inc.

Proceedings recorded by electronic sound recording; transcript produced by transcription service.
EXCEPTIONAL REPORTING SERVICES, INC
Case 2:06-cv-00112-CNC Filed 07/08/10 Page 1 of 10 Document 238

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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

APPEARANCES FOR:

Andrea Fields, et al. Judy Smith, et al,

LAURENCE J. DUPUIS, ESQ.
American Civil Liberties Union
Of WI Foundation, Inc. 207 E. Buffalo St., Suite 325 Milwaukee, WI 53202
JOHN A. KNIGHT, ESQ. (by phone)
American Civil Liberties
Union Foundation, Inc. 180 N. Michigan Ave., Suite 2300 Chicago, IL 60601
DRU M. LEVASSEUR, ESQ. (by phone) Lambda Legal Defense and Education Fund, Inc. 120 Wall St., Suite 1500 New York, NY 10005
JODY J. SCHMELZER, ESQ. (by phone) FRANK X. SULLIVAN, ESQ. (by phone) Wisconsin Department of Justice Office of the Attorney General
17 W. Main St. P.O. Box 7857
Madison, WI 53707

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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

1

Milwaukee, Wisconsin; Thursday, June 17, 2010; 10:23 a.m.

2

(Courtroom and telephonic appearances)

3

(Call to Order)

4

THE CLERK: Case Numbers 2006-C-112, Fields, et al v

5 Smith, et al and 07-C-928, Gotti, et al v Raemisch, et al.

6 This matter is before the court for a joint status conference.

7

May we have the appearances, please, starting with

8 the phone?

9

MR. KNIGHT: John Knight for the Plaintiffs.

10

MR. LEVASSEUR: Dru Levasseur (indiscernible).

11

MR. SULLIVAN: Assistant Attorney General Francis X.

12 Sullivan and Jody Schmelzer for the Defendants.

13

MR. DUPUIS: And Laurence DuPuis for the Plaintiffs.

14

THE COURT: Good morning, counsel. I'd like to begin

15 by noting receipt of a stipulation as well as a motion

16 respecting attorneys' fees and costs on this matter. The

17 parties have asked that the subject of attorneys' fees and

18 costs be held in abeyance and have offered a proposed order

19 consistent with the request.

20

Is there anything you'd like to say to supplement

21 what you submitted in writing?

22

MR. DUPUIS: No, your Honor, on behalf of the

23 Plaintiffs. This is Mr. DuPuis.

24

MR. SULLIVAN: Judge, this is Sullivan. The parties

25 conferred extensively about this and believe that the most
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1 expeditious and most effective way to resolve this matter is

2 simply to ask the Court to enter the order.

3

THE COURT: Well, given what you've presented and

4 with due regard for your exercise of prudence I will execute

5 the order immediately. And so your request has been requested

6 and the order shall be docketed forthwith.

7

MR. SULLIVAN: Thank you, your Honor.

8

THE COURT: With that having been said, I'd like to

9 next turn to the permanent injunction and proposed terms of

10 relief as submitted by the Plaintiffs in the Fields case. I

11 have not heard from the Defense on this matter and would like

12 to find out whether or not the Defense believes the order as

13 tendered, at least the substance of the Order as tendered, is

14 as narrow as is required and should be entered with due regard

15 for the fact that you do not believe that any relief should be

16 given to the Plaintiffs in this matter.

17

MR. SPEAKER: I think that's a fair statement, your

18 Honor. The position of the Defendants is that the Plaintiffs

19 are not entitled to any relief and that the Court, with all due

20 respect, incorrectly decided the matter. But given those

21 concerns we believe that the proposed order is fair.

22

THE COURT: All right. And do you believe that it is

23 as narrowly (indiscernible) as is warranted under the

24 circumstances?

25

MR. SPEAKER: I do, your Honor.

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1

THE COURT: All right. Well, an order will be

2 entered forthwith. I will tell you that I am in trial and have 3 a very complete schedule, but I will try to get this final

4 order entered within the next several days so that you can

5 proceed with the appeal and, of course, so that the relief

6 remains in place in this case.

7

Now, that having been said we then need to turn --we

8 next need to turn to the Gotti case and how you believe the

9 Gotti matter should be handled under the circumstance. It is

10 my recollection that the Gotti case has been held in abeyance

11 with the understanding that the relief which has been sought in

12 the Fields case should parallel the relief in the Gotti case

13 and the parties will abide by the relief in the Fields case as 14 it may apply in Gotti.

15

Is that how you desire to proceed?

16

MR. SULLIVAN: Your Honor, this is Sullivan again.

17 We have had extensive discussions on this matter as well, and I 18 would ask Mr. Knight to correct me if I misspeak in any way.

19 But I think what we decided was this:

20

There are three parties in the Gotti matter. Two of

21 them are already released. The third is set to be released I
22 believe in August of this year. What we would propose would be 23 to simply enter no order at all in the Gotti case at this time,

24 allow events to run their course and the third Plaintiff should
25 be released whereupon we would dismiss the matter as moot.
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THE COURT: What is the current release date?

2

MR. DUPUIS: Your Honor, this is Mr. DuPuis. I

3 believe it's August 16th, 2010. And that's based on an email

4 forwarded by Mr. Sullivan from Jackie Ryder (phonetic) at DOC.

5

THE COURT: Well, if --

6

MR. DUPUIS: That's not right, Mr. Sullivan?

7

THE COURT: Mr. Sullivan, is it August 16th?

8

MR. SULLIVAN: I believe that's correct. I know it's

9 around there, your Honor. I don't remember that exact date;

10 but, yes.

11

THE COURT: Well, I will do this. In light of what

12 you said I will enter an order which would become -- which

13 would dismiss the case effective at the end of August unless I

14 hear from the parties that the order should not be entered.

15 This will give you time between the projected release date and

16 the actual dismissal to advise the Court if another course

17 would be more prudent. Because I know from time to time

18 release dates get set back because of various things such as

19 disciplinary actions that may occur. And if that should be the

20 situation here, I don't want the case to get off track or for

21 you to have to do anything substantial to maintain the rights 22 of the one Plaintiff in the Gotti case who remains in custody. 23 And I would assume that another reason for pursuing this course

24 is to ensure that that Plaintiff continues to receive the
25 hormone treatment which has been provided under the terms of
EXCEPTIONAL REPORTING SERVICES, INC
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117

1 the Court's preliminary injunction.

2

MR. DUPUIS: Correct, your Honor. I believe that we

3 would prefer to take a course of possibly by joint motion and

4 we submit an order to dismiss the two current -- the Plaintiffs

5 who are currently already released but not enter even a

6 conditional order just because I'm a little concerned about

7 just -- I'd rather we actively take that step --

8

THE COURT: I know.

9

MR. DUPUIS: -- when the person is released than --

10

THE COURT: I know. And I can understand it. The

11 reason I am suggesting this course is all too often I have had

12 cases where things such as you've described were supposed to

13 have been pursued by a party, and the next thing I know a year

14 has passed and a stipulation has not come in. So I want to

15 force the issue.

16

MR. DUPUIS: Right. May I suggest a status

17 conference in this case specifically on the -- perhaps a week

18 after the release date?

19

THE COURT: That's a good alternative. All right.

20 We're on the same page.

21

MR. DUPUIS: All right.

22

THE COURT: We'll set it for a status conference in

23 late August. But I don't want it to go into September,

24 October, November of next year because it's been forgotten.

25

MR. DUPUIS: Right. Unless something unexpected

EXCEPTIONAL REPORTING SERVICES, INC
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Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
8

1 happens. And I believe, your Honor, it would make sense for us 2 to go ahead and proceed with the other two Plaintiffs now so

3 that there are dismissals without prejudice.

4

THE COURT: Which Plaintiffs have been released?

5

MR. DUPUIS: Right. Gotti, who is also known as

6 Alexander Lefleur (phonetic), and Darrick Walker. The

7 remaining Plaintiff is Jeffrey, also known as Jennifer Knutsen

8 I believe.

9

MR. SPEAKER: Sarah.

10

MR. SPEAKER: Sarah Knutsen. I'm sorry.

11

THE COURT: All right. Then what we will do is enter

12 an apex on the order dismissing Plaintiffs Gotti and Walker

13 from this case, a case where I proceed with the remaining

14 Plaintiff, and will be on the calendar for a status conference

15 on what date?

16

THE CLERK: August 30th at 1:30.

17

THE COURT: Of course, if things are resolved prior

18 to that time, then you would be able to take it off the

19 calendar by submitting a stipulation for dismissal. No order

20 is required in such an instance if there's a stipulation.

21

MR. SULLIVAN: Your Honor, this is Sullivan again.

22 We would ask permission to appear by telephone at that time.

23

THE COURT: No. This time I want you in person,

24 Mr. Sullivan.

25

MR. SULLIVAN: Okay.

EXCEPTIONAL REPORTING SERVICES, INC
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PLTF APP 21

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1

THE COURT: I'm kidding you. I'm kidding you.

2

MR. SULLIVAN: Well, your Honor, I just wanted --

3

(Laughter / Indiscernible)

4

MR. SPEAKER: May I object to that, your Honor?

5

THE COURT: It's duly noted. All right. Thank you,

6 very much.

7

MR. SPEAKER: Thank you, everybody.

8

THE COURT: Have a good weekend.

9

THE CLERK: All rise.

10

(This proceeding was adjourned at 10:33 a.m.)

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
EXCEPTIONAL REPORTING SERVICES, INC
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PLTF APP 24

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
CERTIFICATION
I certify that the foregoing is a correct transcript from the electronic sound recording of the proceedings in the above-
entitled matter.
July 7, 2010 TONI HUDSON, TRANSCRIBER

EXCEPTIONAL REPORTING SERVICES, INC
Case 2:06-cv-00112-CNC Filed 07/08/10 Page 10 of 10 Document 238

J
PLTF APP 25

Case: 10-2339 Document: 20 Filed: 11/19/2010 Pages: 117
CERTIFICATE OF SERVICE I, John A. Knight, hereby certify that on November 23, 2010, I caused two copies of the foregoing BRIEF AND APPENDIX OF PLAINTIFFS-APPELLEES, CROSS-APPELLANTS to be served via the United States Postal Service, first class mail, postage prepaid, upon the following:
Abigail C. S. Potts Assistant Attorney General Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857
John A. Knight Counsel for Plaintiffs-Appellees, Cross-Appellants

 
 Case: 10-2339 Document: 37 Filed: 08/05/2011 Pages: 19

In the
United States Court of Appeals
For the Seventh Circuit

Nos. 10-2339 & 10-2466 ANDREA FIELDS, et al.,
v. JUDY P. SMITH, et al.,

Plaintiffs-Appellees, Cross-Appellants,
Defendants-Appellants, Cross-Appellees.

Appeals from the United States District Court for the Eastern District of Wisconsin.
No. 2:06-cv-00112-CNC—Charles N. Clevert, Jr., Chief Judge.

ARGUED FEBRUARY 7, 2011—DECIDED AUGUST 5, 2011

Before ROVNER and WOOD, Circuit Judges, and GOTTSCHALL, District Judge.
GOTTSCHALL, District Judge. In this appeal, we are asked to review the decision of the district court invalidating a Wisconsin state statute which prohibits the
 The Honorable Joan B. Gottschall, United States District Judge for the Northern District of Illinois, sitting by designation.

Case: 10-2339 Document: 37 Filed: 08/05/2011 Pages: 19

2

Nos. 10-2339 & 10-2466

Wisconsin Department of Corrections (“DOC”) from providing transgender inmates with certain medical treatments.1 The Inmate Sex Change Prevention Act (“Act 105”) provides in relevant part:
(a) In this subsection:
1. “Hormonal therapy” means the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender.
2. “Sexual reassignment surgery” means surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender.
(b) The [Wisconsin Department of Corrections] may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery . . . .
2005 Wis. Act 105, codified at Wis. Stat. § 302.386(5m) (2010). The district court concluded that this provision violates the Eighth Amendment’s ban on cruel and unusual punishment and the Fourteenth Amendment’s

1 A group of medical and mental health professionals sought leave from the court to submit a brief as amici curiae. The motion is granted.

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3

Equal Protection Clause. Defendants, various DOC officials, now appeal.

I
A number of DOC inmates filed this lawsuit as a putative class action in the Eastern District of Wisconsin on behalf of all current and future DOC inmates with “strong, persistent cross-gender identification.” The district court denied plaintiffs’ motion for class certification, but permitted the case to proceed to trial on the individual claims of three plaintiffs.
The three plaintiffs—Andrea Fields, Matthew Davison (also known as Jessica Davison), and Vankemah Moaton—are male-to-female transsexuals. According to stipulated facts, each has been diagnosed with Gender Identity Disorder (“GID”). GID is classified as a psychiatric disorder in the DSM-IV-TR, the current edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. Individuals with GID identify strongly with a gender that does not match their physical sex characteristics. The condition is associated with severe psychological distress. Prior to the passage of Act 105, each of the plaintiffs had been diagnosed by DOC physicians with GID and had been prescribed hormones.
After a trial in which both sides presented expert testimony about GID, its treatment, and its potential effects on prison security, the district court ruled in favor of plaintiffs. The court ruled that Act 105 was unconstitu-

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Nos. 10-2339 & 10-2466

tional, both as applied and on its face, under the Eighth and Fourteenth Amendments. The district court ultimately issued an injunction barring defendants from enforcing Act 105. We need not recount all the evidence presented at trial—the district court’s 40-page opinion thoroughly describes the trial testimony, see Fields v. Smith, 712 F. Supp. 2d 830 (E.D. Wis. 2010)—but a brief review of the district court’s critical factual findings is warranted.
The district court credited much of the testimony from plaintiffs’ witnesses, including three experts in the treatment of GID. Plaintiffs’ experts testified that, collectively, they had treated thousands of patients with GID and published numerous peer-reviewed articles and books on the subject. One expert had specifically studied transsexuals in the correctional setting. These experts explained that GID can cause an acute sense that a person’s body does not match his or her gender identity. Even before seeking treatment and from an early age, patients will experience this dysphoria and may attempt to conform their appearance and behavior to the gender with which they identify.
The feelings of dysphoria can vary in intensity. Some patients are able to manage the discomfort, while others become unable to function without taking steps to correct the disorder. A person with GID often experiences severe anxiety, depression, and other psychological disorders. Those with GID may attempt to commit suicide or to mutilate their own genitals.

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5

The accepted standards of care dictate a gradual approach to treatment beginning with psychotherapy and real life experience living as the opposite gender. For some number of patients, this treatment will be effective in controlling feelings of dysphoria. When the condition is more severe, a doctor can prescribe hormones, which have the effect of relieving the psychological distress. Hormones also have physical effects on the body. For example, males may experience breast development, relocation of body fat, and softening of the skin. In the most severe cases, sexual reassignment surgery may be appropriate. But often the use of hormones will be sufficient to control the disorder.
When hormones are withdrawn from a patient who has been receiving hormone treatment, severe complications may arise. The dysphoria and associated psychological symptoms may resurface in more acute form. In addition, there may be severe physical effects such as muscle wasting, high blood pressure, and neurological complications. All three plaintiffs in this case experienced some of these effects when DOC doctors discontinued their treatment following the passage of Act 105.2

2 Defendants began reducing plaintiffs’ hormone levels on January 12, 2006; on January 27, 2006, the district court granted a preliminary injunction barring defendants from continuing to withdraw plaintiffs’ hormone therapy and ordering defendants to return plaintiffs to their previous hormone levels.

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Nos. 10-2339 & 10-2466

Plaintiffs also called Dr. David Burnett, the DOC’s Medical Director, and Dr. Kevin Kallas, the DOC Mental Health Director, to testify at trial. These officials explained that, prior to the enactment of Act 105, hormone therapy had been prescribed to some DOC inmates, including plaintiffs. DOC policies did not permit inmates to receive sex reassignment surgery. Drs. Kallas and Burnett served on a committee of DOC officials that evaluated whether hormone therapy was medically necessary for any particular inmate. Inmates are not permitted to seek any medical treatment outside the prison, regardless of their ability to pay. The doctors testified that they could think of no other state law or policy, besides Act 105, that prohibits prison doctors from providing inmates with medically necessary treatment.

II
We evaluate both the district court’s grant of injunctive relief and the scope of that relief for abuse of discretion. Knapp v. Nw. Univ., 101 F.3d 473, 478 (7th Cir. 1996); see Brown v. Plata, 131 S.Ct. 1910, 1957 (2011) (Scalia, J., dissenting) (noting that under the Prison Litigation Reform Act (“PLRA”), “when a district court enters a new decree with new benchmarks, the selection of those benchmarks is . . . reviewed under a deferential, abuse-of-discretion standard of review”); Russian Media Group, LLC v. Cable Am., Inc., 598 F.3d 302, 307 (7th Cir. 2010) (“[T]he appropriate scope of the injunction is left to the district court’s sound discretion.”); Thomas v. Bryant, 614 F.3d 1288, 1321

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Nos. 10-2339 & 10-2466

7

(11th Cir. 2010) (applying abuse of discretion standard to evaluate scope of injunction in conformity with PLRA); Crawford v. Clarke, 578 F.3d 39, 43 (1st Cir. 2009) (holding that district court did not abuse its discretion in awarding system-wide relief under the PLRA). The court’s factual findings are reviewed for clear error, and any legal determinations are reviewed de novo. Knapp, 101 F.3d at 478.
“Prison officials violate the Eighth Amendment’s proscription against cruel and unusual punishment when they display ‘deliberate indifference to serious medical needs of prisoners.’ ” Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). In this case, the district court held that plaintiffs suffered from a serious medical need, namely GID, and that defendants acted with deliberate indifference in that defendants knew of the serious medical need but refused to provide hormone therapy because of Act 105. Defendants do not challenge the district court’s holding that GID is a serious medical condition. They contend that Act 105 is constitutional because the state legislature has the power to prohibit certain medical treatments when other treatment options are available. And defendants argue that Act 105 is justified by a legitimate need to ensure security in state prisons.
Defendants rely primarily on two Seventh Circuit decisions which addressed constitutional challenges to refusals to provide treatment for gender dysphoria or transsexualism. Over twenty-four years ago, in Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987), this court reversed the dismissal of a complaint which alleged that

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Nos. 10-2339 & 10-2466

the plaintiff, who had previously been taking hormones, was denied all treatment for her gender dysphoria upon entering prison. The court held that the plaintiff stated a claim that transsexualism was a serious medical need and that prison officials acted with deliberate indifference in refusing all treatment. The court noted in dicta that “[i]t is important to emphasize, however, that she does not have a right to any particular type of treatment, such as estrogen therapy which appears to be the focus of her complaint.” Id. at 413.
Ten years later, in Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997), this court, in two brief paragraphs, upheld a decision granting summary judgment on a similar deliberate indifference claim where the plaintiff did not come forward with any evidence to rebut defendants’ expert witness, who testified that plaintiff did not suffer from gender dysphoria. The court’s opinion proceeded to address “a broader issue, having to do with the significance of gender dysphoria in prisoners’ civil rights litigation.” Id. at 671. The court commented, again in dicta, that the Eighth Amendment does not require the provision of “esoteric” treatments like hormone therapy and sexual reassignment surgery which are “protracted and expensive” and not generally available to those who are not affluent. Id. at 671-72. A prison would be required to provide some treatment for gender dysphoria, but not necessarily “curative” treatment because the Eighth Amendment requires only minimum health care for prison inmates. Id. at 672.

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Nos. 10-2339 & 10-2466

9

The court’s discussion of hormone therapy and sex reassignment surgery in these two cases was based on certain empirical assumptions—that the cost of these treatments is high and that adequate alternatives exist. More than a decade after this court’s decision in Maggert, the district court in this case held a trial in which these empirical assumptions were put to the test. At trial, defendants stipulated that the cost of providing hormone therapy is between $300 and $1,000 per inmate per year. The district court compared this cost to the cost of a common antipsychotic drug used to treat many DOC inmates. In 2004, DOC paid a total of $2,300 for hormones for two inmates. That same year, DOC paid $2.5 million to provide inmates with quetiapine, an antipsychotic drug which costs more than $2,500 per inmate per year. Sex reassignment surgery is significantly more expensive, costing approximately $20,000. However, other significant surgeries may be more expensive. In 2005, DOC paid $37,244 for one coronary bypass surgery and $32,897 for one kidney transplant surgery. The district court concluded that DOC might actually incur greater costs by refusing to provide hormones, since inmates with GID might require other expensive treatments or enhanced monitoring by prison security.3 Fields, 712 F. Supp. 2d at 863. In fact, at oral argument before this court, counsel for defendants disclaimed any argument that Act 105 is justified by cost

3 Plaintiff Moaton, for example, experienced suicidal ideation after DOC officials began withdrawing hormone treatments. Fields, 712 F. Supp. 2d at 835.

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Nos. 10-2339 & 10-2466

savings. See Oral Argument at 15:18, Field v. Smith, Nos. 102339 and 10-2466, available at http://www.ca7.uscourts.gov/ fdocs/docs.fwx?dname=arg.
More importantly here, defendants did not produce any evidence that another treatment could be an adequate replacement for hormone therapy. Plaintiffs’ witnesses repeatedly made the point that, for certain patients with GID, hormone therapy is the only treatment that reduces dysphoria and can prevent the severe emotional and physical harms associated with it. Although DOC can provide psychotherapy as well as antipsychotics and antidepressants, defendants failed to present evidence rebutting the testimony that these treatments do nothing to treat the underlying disorder. Defendants called their own expert to speak about GID: Dr. Daniel Claiborn, a Ph.D. in psychology who estimated he has treated only about fifty clients with GID over a period of twenty years in his private practice. Dr. Claiborn provided no testimony about the appropriate treatment for plaintiffs. He offered his opinion that GID is not properly characterized as a psychological disorder because a person with GID does not typically suffer from an impairment in psychological functions. However, defendants have now conceded that GID is a serious medical condition. Dr. Claiborn’s testimony does not support the assertion that plaintiffs can be effectively treated without hormones.
It is well established that the Constitution’s ban on cruel and unusual punishment does not permit a state to deny effective treatment for the serious medical needs of

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11

prisoners. The Supreme Court articulated this principle in Estelle v. Gamble:
An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical “torture or a lingering death,” the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. . . . We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain,” proscribed by the Eighth Amendment.
429 U.S. at 103-04 (citations omitted). Surely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional. Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture. Id.; see also Roe v. Elyea, 631 F.3d 843, 861-63 (7th Cir. 2011) (upholding verdict for plaintiff that prison policy on treatment of Hepatitis C was deliberately indifferent); Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir. 1990) (reversing dismissal of complaint alleging that prison provided inadequate treatment for inmate’s chronic foot problems). Although Act 105 permits DOC to provide plaintiffs with some treatment, the evidence at

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Nos. 10-2339 & 10-2466

trial indicated that plaintiffs could not be effectively treated without hormones.
Defendants point to the Supreme Court’s decision in Gonzales v. Carhart, 550 U.S. 124 (2007), for the proposition that a legislature may constitutionally limit the discretion of physicians by outlawing a particular medical procedure. In Carhart, the Court upheld the constitutionality of the Partial-Birth Abortion Ban Act of 2003 which outlawed a particular procedure used to perform late-term abortions. The Court noted the existence of “medical uncertainty” regarding whether the banned procedure was more dangerous than alternative procedures. Id. at 163-64. Because safe abortion alternatives to the prohibited procedure appeared to exist, the court turned away the facial challenge to the law. Id. at 164.
Carhart is not helpful to defendants in this case because they did not present any medical evidence that alternative treatments for GID are effective. As defendants point out, some medical uncertainty remains as to the causes of GID, but there was no evidence of uncertainty about the efficacy of hormone therapy as a treatment. Just as the legislature cannot outlaw all effective cancer treatments for prison inmates, it cannot outlaw the only effective treatment for a serious condition like GID.
Defendants argue that even if application of Act 105 to plaintiffs violates the Eighth Amendment, the district court erred in sustaining a facial challenge to the law. Act 105 bans treatment to all prisoners, even those for

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Nos. 10-2339 & 10-2466

13

whom hormones and surgery are not medically necessary. A facial challenge to the constitutionality of a law can succeed only where plaintiffs can “ ‘establish that no set of circumstances exists under which the Act would be valid.’ ” Doe v. Heck, 327 F.3d 492, 528 (7th Cir. 2003) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). Nonetheless, “[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 894 (1992). The district court, in this case, found that DOC doctors prescribe hormones only when the treatment is medically necessary. Fields, 712 F. Supp. 2d at 866. Thus, the court correctly concluded that Act 105 is irrelevant to inmates who are not diagnosed with severe GID and in medical need of hormones, and any application of Act 105 would necessarily violate the Eighth Amendment.
Defendants have also argued that Act 105 is justified by the state’s interest in preserving prison security. Defendants’ security expert, Eugene Atherton, testified that more feminine male inmates become targets for sexual assault in prisons. Because hormone therapy alters a person’s secondary sex characteristics such as breast size and body hair, defendants argue that hormones feminize inmates and make them more susceptible to inciting prison violence. But the district court rejected this argument, noting that the evidence showed transgender inmates may be targets for violence even without hormones. Atherton himself, in his deposition, testified that it would be “an incredible stretch” to conclude that banning the use of hormones could prevent

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Nos. 10-2339 & 10-2466

sexual assaults. Id. at 868. In the Colorado Department of Corrections, where Atherton worked for many years, the state had a policy of providing necessary hormones to inmates with GID. Atherton testified that this policy was reasonable and had been implemented effectively in Colorado.
Defendants cite Whitley v. Albers for the proposition that “ ‘[p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’ ” 475 U.S. 312, 32122 (1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). But deference does not extend to “actions taken in bad faith and for no legitimate purpose.” Id. at 322. The district court did not abuse its discretion in concluding that defendants’ evidence failed to establish any security benefits associated with a ban on hormone therapy. The legislators who approved Act 105 may have honestly believed they were improving prison security, but courts “retain[ ] an independent constitutional duty to review factual findings where constitutional rights are at stake.” Carhart, 550 U.S. at 165.
Finally, defendants contend that the district court’s injunction violates the PLRA, 18 U.S.C. § 3626(a), because it enjoins Act 105 in its entirety.4 They argue that

4 The PLRA provides, in part:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct
(continued...)

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15

plaintiffs have never demonstrated a need for sex reassignment surgery, which the law also prohibits. For their part, plaintiffs argue that defendants waived this argument by failing to raise it before the district court. In fact, the record establishes an admission, not a waiver. On June 9, 2010 plaintiffs requested that the district court supplement its findings relating to the PLRA’s socalled “need-narrowness-intrusiveness” standard. At a subsequent status conference, the court asked defendants’ counsel not once, but twice, “whether or not the Defense believes the order as tendered . . . is as narrow as is required”; counsel replied that it was. (See Pls.’ App. 19.) As a practical matter, then, defendants are precluded from making this argument now.
Regardless, the district court’s orders establish that the court evaluated the record as a whole and identified evidence that fully supports the scope of the injunctive relief granted. See Armstrong v. Schwarzenegger, 622 F.3d

(...continued)
the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(1)(A).

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Nos. 10-2339 & 10-2466

1058, 1070 (9th Cir. 2010) (“[T]he language of the PLRA does not suggest that Congress intended a provision-byprovision explanation of a district court’s findings . . . . [T]he statutory language [means] that the courts must do what they have always done when determining the appropriateness of the relief ordered: consider the order as a whole.”); Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir. 2001) (the PLRA “has not substantially changed the threshold findings and standards required to justify an injunction”); Smith v. Ark. Dep’t of Corr., 103 F.3d 637, 647 (8th Cir. 1996) (same); Williams v. Edwards, 87 F.3d 126, 133 n. 21 (5th Cir. 1996) (same). In the district court’s May 13, 2010 memorandum order, the court expressly addressed both hormone therapy and sex reassignment surgery. There, the court stated that:
The defendants acknowledge that Act 105 removes even the consideration of hormones or surgery for inmates with gender issues and that the DOC halted evaluations of inmates with GID for possible administration of hormone therapy because of the Act. However, in determining whether a facial challenge to Act 105 may succeed here, the defendants submit that the court must take into account all inmates in DOC custody for whom hormone therapy or sexual reassignment surgery would be considered as treatment for gender issues. If that is done, they maintain that there are circumstances where Act 105 may be applied without violating the Constitution, and that, as a result, the plaintiffs’ facial challenge

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Nos. 10-2339 & 10-2466

17

to the law must fail. Unfortunately, the defendants do not support this point.
. . . .
In certain cases, as with the plaintiffs in this case, the effect of Act 105 is to withdraw an ongoing course of treatment, the result of which has negative medical consequences. In other cases, the effect of Act 105 is to prevent DOC medical personnel from evaluating inmates for treatment because such evaluation would be futile in light of Act 105’s ban on the treatment they may determine to be medically necessary for the health of the inmate.
. . . .
In this case, Act 105 bars the use of hormones “to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender,” as well as sexual reassignment surgery “to alter a person’s physical appearance so that the person appears more like the opposite gender.” Wis. Stat. § 302.386(5m)(a). The statute applies irrespective of an inmate’s serious medical need or the DOC’s clinical judgment if at the outset of treatment, it is possible that the inmate will develop the sexual characteristics of the opposite gender. The reach of this statute is sweeping inasmuch as it is applicable to any inmate who is now in the custody of the DOC or may at any time be in the custody of the DOC, as well as any medical profes-

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Nos. 10-2339 & 10-2466

sional who may consider hormone therapy or gender reassignment as necessary treatment for an inmate.
Fields, 712 F. Supp. 2d at 865-67. The district court’s June 22, 2010 “additional findings” further support its conclusion that the statute is facially invalid. There, the court found that the injunction was “narrowly tailored in that enjoining the enforcement of [Act 105] prohibits only unconstitutional applications of the statute[,] which this court has found to be unconstitutional any time it is applied,” and the injunction extended no further than necessary to correct the Eighth Amendment violation because “enjoining all applications of [Act 105] is necessary to prevent constitutional violations.” The district court also specifically referenced its prior finding that the constitutional violation stemmed from “removing ‘even the consideration of hormones or surgery.’ ” (See App. 174-75.) We agree. Evaluating the record as a whole, the district court did not abuse its discretion in enjoining the entirety of Act 105.
Having determined that the district court properly held that Act 105 violates the Eighth Amendment, both on its face and as applied to plaintiffs, we need not address the district court’s alternate holding that the law violates the Equal Protection Clause. Plaintiffs have asserted a conditional cross-appeal of the district court’s denial of class certification. But because we have upheld the district court’s injunction, we also do not address the cross-appeal.

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III The judgment of the district court is affirmed.

8-5-11

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

KARI SUNDSTROM, ANDREA FIELDS, LINDSEY BLACKWELL,
Plaintiffs,
v.
MATTHEW J. FRANK, JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, ROMAN KAPLAN, M.D.,
Defendants.

Case No. 06-C-0112

ORDER GRANTING REQUEST FOR REFUND OF FEES When plaintiffs Kari Sundstrom and A ndrea Fields filed this case on January 24, 2006, they paid $500 in filing fees. Following the filing of their amended complaint on January 27, adding Lindsey Blackwell as a pl aintiff, Blackwell paid an additional $250. When these amounts were paid, counsel thought the Prison Litigation Reform Act, 28 U.S. C. § 191 5(b), required the p ayment of a $25 0 filing fee for each prisoner. Subsequently, counsel came to a different conclusion. I n a letter filed February 10, counsel asks for a refund of $500, arguing that under Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir. 2004), only prisoner plaintiffs seeking to proceed in forma pauperis are required to pay the filing fee individually. Counsel argues that where the plaintiffs did not seek leave to proceed in forma pauperis, the standard $250 filing fee for a civil action should apply.

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The court agrees. The “norm in civil litigation” is “one filing fee per suit, rather than per litigant.” Id. Title 28 U.S.C. § 1914(a) implies that the filing fee is $2501 per case rather than per litigant. Id.; see § 1914(a) (“The clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court . . . to pay a filing fee of $250.”) (emphasis added). The fee-per-litigant approach arises only from 28 U.S.C. § 1915(b)(1), which states (emphasis added) that “if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.” In Boriboune the Seventh Circuit stated that § 1915(b) should be taken at face value. It then held “that one price of forma pauperis status is each prisoner’s responsibility to pay the full fee in installments (or in advance, if § 1915(g) [the three-strikes provision] applies), no matter how many other plaintiffs join the complaint.” 391 F.3d at 856. All four plaintiffs in Boriboune had sought in forma pauperis status. Id. at 853.
Because plaintiffs here never moved for in forma pauperis status, § 1915(b) was never triggered. Nor is § 1915(g) applicable to these plaintiffs. Thus, the standard rule of one filing fee per lawsuit applies.
The court acknowledges that Judge Barbara B.Crabb in the Western District of Wisconsin has suggested that Boriboune applies more broadly, requiring a separate filing fee even from prisoners who do not seek in forma pauperis status. In an unpublished opinion, she stated that
the court of appeals held in Boriboune that joint litigation does not relieve any prisoner of the duties imposed upon him under the 1996 Prison Litigation Reform Act, including the duty to pay
1The filing fee has since risen to $350 per case, but plaintiffs filed their com plaint and am ended complaint before the increase.
2
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the full amount of the filing fees, either in installments or in full if the circumstances require it. This means that before the court will screen the complaint, each petitioner will have to pay either a f ull filing fee if the pet itioner does not qualify to proceed in forma pauperis, or an initial partial payment of the fee calculated pursuant to the method described in 28 U.S.C. § 1915(b). Pippin v. Frank, No. 04-C-582-C, 2005 WL 503823, *2 (W.D. Wis. Mar. 1, 2005). Judge Crabb’s references to full payment “if the circumstances require it” may refer only to those prisoners barred from proceeding in forma pauperis by § 1915(g), as suggested in Boriboune. But to the extent she may be suggesting that separate fees are required by all prisoners paying in full, this court disagrees respectfully. The Boriboune court expressly based its reasoning on the language of § 1915(b) and said that the tradeoff for proceeding in forma pauperis is a separate fee from each prisoner plaintiff. Here, the prisoner plain tiffs never sought to pr oceed in forma pauperis, thus § 191 5(b) is inapplicable and no trade-off occurs. As ac knowledged by the Boriboune court, the standard rule of one filing fee per case rather than per litigant applies when § 1915(b) does not. Moreover, Judge Crabb’s statement regarding full payment of the filing fee appears to be dicta. A review of the docket for the Pippin case indicates that Pippin did seek, and was granted, leave to proceed in forma pauperis. Thus, Judge Crabb did not directly face the question presently before this court. Requiring every prisoner plaintiff, in forma pauperis or not, to pay the full filing fee might further the intent of Congress to curtail prisoner litigation. See Hubbard v. Haley, 262 F.3d 1194, 1196 (11th Cir. 2001) (stating that the Eleventh Circuit as well as several other circuits had “recognized the intent of Congress to taper prisoner litigation” through the PLRA). But, as the Seventh Circuit stated in Boriboune, Congress’s “reason to do
3
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something differs from having done it.” 391 F.3d at 854. Whether charging all prisoner plaintiffs a full filing fee is a good idea is not the basis for decision. The language of the statue controls rather than Congressional intent. See Clay v. Rice, No. 01-C-50203, 2001 WL 1380526, *2 (N.D. Ill . Nov. 5, 2001) (“Although district courts are te mpted to apply common sense to bandage a bad ly-drafted statute [i.e., § 19 15(b)], lawmaking is Congress’s responsibility, not ours.”). The court takes §§ 1914 and 1915(b) as well as Boriboune at their word. Separate filing fees are required only from prisoner plaintiffs seeking leave to proceed in forma pauperis.
Therefore, IT IS ORDERED that th e request f or a re fund of overpaid filing fees is granted and the clerk of court return $500 to counsel for plaintiffs. Dated at Milwaukee, Wisconsin, this 12th day of July, 2006.
BY THE COURT s/ C. N. C LEVERT, JR. C. N. CLEVERT, JR. U. S. District Judge
4 Case 2:06-cv-00112-CNC Filed 07/12/06 Page 4 of 4 Document 70

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

KARI SUNDSTROM and ANDREA FIELDS,
Plaintiffs,
v.
MATTHEW J. FRANK, WARDEN JUDY P. SMITH, THOMAS EDWARDS, JAMES GREER, and ROMAN KAPLAN, MD,
Defendants.

Case No. 06-C-112

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND GRANTING MOTION FOR PRELIMINARY INJUNCTION BARRING DEFENDANTS
FROM WITHDRAWING PLAINTIFFS’ HORMONAL THERAPY A telephonic hearing was conducted by the court on January 25, 2006, for initial consideration and scheduling of Plaintiffs’ Emergency Motion for a Temporary Restraining Order and Preliminary Injunction Enjoining Defendants from Reducing or Terminating Plaintiffs’ Hormone Therapy. The plaintiffs appeared by Attorney Laurence J. Dupuis; and the defendants appeared by Assistant Attorney Generals Francis X. Sullivan, Corey F. Finkelmeyer, and Jody J. Schmelzer. Also appearing specially were Attorneys Cole Thaler and John A. Knight, pending admission to practice before this court. The plaintiffs, who are Wisconsin prison inmates, bring this civil rights action under 42 U.S.C. § 1983 for declaratory and injunctive relief to redress the defendants’ alleged violations of the plaintiffs’ rights under Eighth and Fourteenth Amendments to the United States Constitution. (Compl. ¶ 2.) The plaintiffs allege that the defendants have

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violated the Constitution by enforcing 2005 Wisconsin Act 105, codified at Wis. Stat. §302.386(5m), and abruptly terminating and depriving the plaintiffs of medical treatment for their serious health condition, Gender Identity Disorder (GID). Id. Further, the plaintiffs claim that the defendants took such actions with no exercise whatsoever of individualized medical judgment and in contrast to the treatment the defendants provide to other similarly situated inmates at Wisconsin Department of Corrections (DOC) facilities. Id. The complaint seeks an end to the defendants’ actions that violate the plaintiffs’ Fourteenth Amendment right to equal protection and their Eighth Amendment right to be free from cruel and unusual punishment, and a declaration that Wis. Stat. § 302.386(5m) is unconstitutional on its face. Id.
The plaintiffs’ January 24, 2006, emergency motion, filed pursuant to Fed. R. Civ. P. 65, asks this court to direct the defendants and persons acting under their authority to continue administration of the plaintiffs’ hormone therapy at the levels administered prior to January 12, 2006. The motion further requests this court to enjoin the defendants from enforcing Wis. Stat. § 302.386(5m) as applied to the plaintiffs. According to the plaintiffs’ brief and declarations of Laurence Dupuis, Frederic M. Ettner, M.D., Randi C. Ettner, Ph.D., and Nick Gorton, M.D., both plaintiffs have received hormonal therapy for the treatment of GID for many years. Plaintiff Sundstrom has taken hormones continuously for almost sixteen years and plaintiff Fields has taken them for ten years. The plaintiffs, who are incarcerated at Oshkosh Correctional Institution (OCI), were told by OCI medical personnel that their hormone therapy would be stopped. On January 12, 2006, the defendants reduced their dosages by one-half. The plaintiffs were told that
2
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the reduction would continue so that they would be completely taken off hormone therapy by March 13, 2006.
According to the plaintiffs, the reduction and eventual cessation of their hormonal therapy is due to Wis. Stat. § 302.386(5m), which took effect on January 24, 2006. The new law prohibits the use of state funds or “federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy,” for the treatment of transgender prisoner, juvenile detainees, or residents in forensic mental health facilities in Wisconsin. Wis. Stat. § 302.386(5m).
The plaintiff’s submit that as a result of the reduction in hormonal dosage, plaintiff Sundstrom has experienced mood swings, hot flashes, severe headaches, bloating, and crying fits. Plaintiff Fields claims to have suffered depression, nausea, muscle weakness, loss of appetite, increased hair growth, and skin bumps due to the hormone dosage reduction. Further, papers supporting the plaintiffs’ motion add that all of the plaintiffs’ endocrine functions and organ systems will be affected by cessation of the therapy, including but not limited to the cardiovascular system, metabolic function, gonadal function, pancreatic function, and adrenal function. In addition, they maintain that the plaintiffs’ depression will become more acute, blood pressure will rise, and suicidal ideation will accelerate. Consequently, the plaintiffs request that the court direct the defendants and persons acting under their authority to continue administration of the plaintiffs’ hormone therapy at the dosages administered prior to January 12, 2006, and enjoining their enforcement of Wis. Stat. §302.386(5m), because the statute, as applied to the plaintiffs, violates the plaintiffs’ Eighth Amendment right to be free from cruel and unusual punishment and the plaintiffs’ Fourteenth Amendment right to equal protection.
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During the telephonic hearing of January 25, 2006, defense counsel acknowledged receipt of the plaintiffs’ motion and advised that the defense needs times to prepare for a full hearing. Moreover, the defense acknowledged that this case is similar to Konitzer v. Bartow, Case No. 03-C-717 (E.D. Wis.), involving a DOC inmate who suffers from GID and whose hormonal therapy was set to be withdrawn under Wis. Stat. § 302.386(5m). In that case, on January 20, 2006, the court granted a preliminary injunction barring the defendants from withdrawing the plaintiff’s hormonal therapy. Although the defendants need more time to respond to the plaintiffs’ motion, the defendants’ did not dispute the potential gravity of the health consequences the plaintiffs claim in the materials supporting their motion. Also, the defendants stipulated that if the court concludes that an injunction should issue, it may remain in place upon the filing of an amended complaint adding one plaintiff. Finally, the defendants waived the exhaustion requirement of 42 U.S.C. § 1997e(a).
To prevail on a motion for a preliminary injunction, the plaintiffs must establish (1) a likelihood of success on the merits of at least one of the plaintiffs’ claims; (2) that there is no adequate remedy at law; and (3) that the plaintiffs will suffer irreparable harm if the injunction is not granted. Promatek Industries, Ltd. v. Equitrac Corp., 300 F.3d 808, 811 (7th Cir. 2002); see also Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). If these three conditions are met, the court must balance the harm to the plaintiffs if the injunction is not issued against the harm to the defendants if it is issued. Storck v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir. 1994). This balancing involves a
4
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sliding scale analysis: the greater the plaintiffs’ chances of success on the merits, the less strong a showing the plaintiffs must make that the balance of harm is in its favor. Id.
Based on the records and documents on file in this case, the court finds that the plaintiffs have established a basis for a temporary injunction. Specifically, the plaintiffs appear to have suffered adverse health consequences based on the January 12, 2006, reduction in level of hormones that they are administered. And, more adverse health consequences are expected if the plaintiffs’ hormone therapy is reduced further or terminated. It is likely that the plaintiffs can establish an Eighth Amendment violation by showing that the withdrawal of hormonal therapy will injure the plaintiffs’ long term health, and the adverse effects will be irreparable. Moreover, money damages would not provide an adequate remedy to the plaintiffs. Further, the balance of harms tips in favor of the plaintiffs because both plaintiffs have been receiving hormonal therapy for health reasons for years and reduction in those levels appear to be harmful. At this time, continuing the plaintiffs’ hormone treatments is more important than the saving of state and federal funds that must be expended for the treatments pending a further preliminary injunction hearing. hence, for the reasons stated above and those set forth in the record of the hearing of January 25, 2006,
IT IS ORDERED that the plaintiffs’ motion for preliminary injunction is granted.
IT IS FURTHER ORDERED, nunc pro tunc January 25, 2006, that the defendants and anyone acting under their authority or the authority of the State of Wisconsin, are enjoined from withdrawing from any hormone therapy prescribed to the
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plaintiffs as of January 11, 2006. Specifically, the plaintiffs’ hormonal therapy should return to the level that was in effect prior to the January 12, 2006, reduction.
IT IS FURTHER ORDERED that no security for costs is warranted with respect to the plaintiffs’ motion.
IT IS FURTHER ORDERED that a full hearing on the plaintiffs’ motion for preliminary injunction shall commence Thursday, August 24, 2006, at 8:30 a.m., in Court 222 U.S. Courthouse, 517 East Wisconsin Ave., Milwaukee, Wisconsin.
Inasmuch as the plaintiffs failed to present specific facts establishing that immediate and irreparable injury would be suffered by the plaintiffs before the defendants were heard, as required by Fed. R. Civ. P. 65(b),
IT IS FURTHER ORDERED that the plaintiffs’ motion for a Temporary Restraining Order is denied.
Dated at Milwaukee, Wisconsin, this 27th day of January, 2006. BY THE COURT s/ C. N. Clevert, Jr. C. N. CLEVERT, JR. U.S. District Judge
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 Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 1 of 19
APPEAL, CLOSED, PRISONER, PROTO
United States District Court Eastern District of Wisconsin (Milwaukee) CIVIL DOCKET FOR CASE #: 2:06−cv−00112−CNC

Sundstrom et al v. Frank et al Assigned to: Chief Judge Charles N Clevert, Jr related Cases: 2:03−cv−00717−CNC
2:07−cv−00928−CNC Case in other court: Seventh Circuit, 10−2339
USCA Smith etal, 10−2339 10−2466 USCA; Fields, 06/16/10, 10−2466 Cause: 42:1983 Prisoner Civil Rights Plaintiff

Date Filed: 01/24/2006 Date Terminated: 06/22/2010 Jury Demand: Defendant Nature of Suit: 555 Prisoner: Conditions of Confinement Jurisdiction: Federal Question

Kari Sundstrom TERMINATED: 10/15/2007

represented by Cole A Thaler Lambda Legal Defense and Education Fund Inc 730 Peachtree St NE − Ste 1070 Atlanta, GA 30308 404−897−1880 x232 Fax: 404−897−1884 Email: cthaler@lambdalegal.org TERMINATED: 04/16/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John A Knight American Civil Liberties Union Foundation Inc 180 N Michigan Ave − Ste 2300 Chicago, IL 60601 312−201−9740 Fax: 312−288−5225 Email: jknight@aclu−il.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J Dupuis American Civil Liberties Union of WI Foundation Inc 207 E Buffalo St − Ste 325 Milwaukee, WI 53202 414−272−4032 Fax: 414−272−0182 Email: ldupuis@aclu−wi.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dru M Levasseur Lambda Legal Defense and Education Fund Inc 120 Wall St − Ste 1500 New York, NY 10005−3904 212−809−8585 Fax: 212−809−0055 Email: dlevasseur@lambdalegal.org ATTORNEY TO BE NOTICED

Erik R Guenther Hurley Burish &Stanton SC

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 2 of 19

33 E Main St − Ste 400 PO Box 1528 Madison, WI 53701−1528 608−257−0945 Fax: 608−257−5764 Email: eguenther@hbslawfirm.com ATTORNEY TO BE NOTICED

Plaintiff Andrea Fields

represented by Cole A Thaler (See above for address) TERMINATED: 04/16/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John A Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dru M Levasseur (See above for address) ATTORNEY TO BE NOTICED

Erik R Guenther (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Lindsey Blackwell TERMINATED: 10/15/2007

represented by Cole A Thaler (See above for address) TERMINATED: 04/16/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John A Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dru M Levasseur (See above for address) ATTORNEY TO BE NOTICED

Erik R Guenther (See above for address) ATTORNEY TO BE NOTICED

Laurence J Dupuis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Matthew Davison also known as Jessica Davison

represented by Cole A Thaler (See above for address) TERMINATED: 04/16/2010 ATTORNEY TO BE NOTICED

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 3 of 19

Dru M Levasseur (See above for address) ATTORNEY TO BE NOTICED

Erik R Guenther (See above for address) ATTORNEY TO BE NOTICED

John A Knight (See above for address) ATTORNEY TO BE NOTICED

Laurence J Dupuis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Vankemah D Moaton

represented by Cole A Thaler (See above for address) TERMINATED: 04/16/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erik R Guenther (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John A Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dru M Levasseur (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Matthew J Frank TERMINATED: 10/19/2007

represented by Corey F Finkelmeyer Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−7342 Fax: 608−267−8906 Email: finkelmeyercf@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis X Sullivan Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 4 of 19

608−267−2222 Fax: 608−267−2223 Email: sullivanfx@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody J Schmelzer Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−3094 Fax: 608−267−8906 Email: schmelzerjj@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−1795 Fax: 608−267−8906 Email: burkert−bristm@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail CS Potts Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−267−7292 Fax: 608−267−8906 Email: pottsac@doj.state.wi.us ATTORNEY TO BE NOTICED

Defendant Judy P Smith

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail CS Potts (See above for address)

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 5 of 19

ATTORNEY TO BE NOTICED

Defendant Thomas Edwards

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail CS Potts (See above for address) ATTORNEY TO BE NOTICED

Defendant James Greer

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail CS Potts (See above for address) ATTORNEY TO BE NOTICED

Defendant Roman Kaplan, MD

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 6 of 19

Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail CS Potts (See above for address) ATTORNEY TO BE NOTICED

Defendant
Warden Robert Humphreys TERMINATED: 10/15/2007

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail CS Potts (See above for address) ATTORNEY TO BE NOTICED

Defendant
Susan Nygren TERMINATED: 10/15/2007

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail CS Potts (See above for address) ATTORNEY TO BE NOTICED

Defendant Rick Raemisch

represented by Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody J Schmelzer (See above for address) LEAD ATTORNEY

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 7 of 19
ATTORNEY TO BE NOTICED
Abigail CS Potts (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/24/2006
01/24/2006 01/24/2006
01/24/2006 01/24/2006 01/27/2006 01/27/2006 01/27/2006 01/27/2006 01/27/2006
01/27/2006 01/30/2006 01/30/2006 02/01/2006 02/01/2006 02/03/2006 02/03/2006

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Summons(es) Issued) against Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD filed by Kari Sundstrom, Andrea Fields. Consent forms distributed for Magistrate Judge Patricia J Gorence (Filing fee pd $ 500) .(kah, ) Document added on 1/30/2006 (bet) (Entered: 01/25/2006)
2 CERTIFICATE of Interest by Kari Sundstrom, Andrea Fields. (kah, ) Document added on 1/31/2006 (bet) (Entered: 01/25/2006)
3 Emergency MOTION for Temporary Restraining Order, and MOTION for Preliminary Injunction Enjoining Defts From Reducing or Terminating Pltfs Hormone Therapy by Kari Sundstrom, Andrea Fields. (kah, ) Document added on 1/30/2006 (bet) (Entered: 01/25/2006)
4 BRIEF in Support re 3 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction filed by all plaintiffs. (kah, ) Document added on 1/30/2006 (bet) (Entered: 01/25/2006)
5 DECLARATION of Laurence Dupuis − EXHIBITS AVAILABLE IN PAPER FORMAT ONLY (kah) Document added on 1/30/2006 (bet) (Entered: 01/25/2006)
6 NOTICE of Appearance by Francis X Sullivan, Jody J Schmelzer on behalf of Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD. (kah, ) Document added on 1/31/2006 (bet)
7 PDF Document Requirement form sent to Jody J. Schmelzer regarding Notice of Appearance and Certificate of Service filed on 1/27/06. (kah, )
8 AMENDED COMPLAINT against all defendants filed by Lindsey Blackwell.(Dupuis, Laurence)
9 LETTER from Laurence Dupuis (Dupuis, Laurence)
10 ORDER Denying Pltfs' Motion 3 for TRO and Granting Motion 3 for Preliminary Injunction Barring Defs. from Withdrawing Pltfs' Hormonal Therapy. Pltfs' hormonal therapy should return to the level that was in effect prior to the 1/12/06 reduction. Court schedules full hearing on Pltfs' Motion for PI on 8/24/06 at 8:30 AM, in Courtroom 222.((kwb), C. N. Clevert, Jr.) (Entered: 01/30/2006)
Set Hearings: PI Hearing set for 8/24/06 at 8:30 AM in Courtroom 222 before Judge Clevert.((kwb), C. N. Clevert, Jr.) (Entered: 01/30/2006)
MINUTES: Telephonic Hearing held on 1/25/06 re Pltfs' Emergency Motion for TRO and Preliminary Injunction. SEE Order. (Tape # 3:06:08 to 3:43:56 −− Court Reporter Cindy Bohman) ((kwb), C. N. Clevert, Jr.)
FILING FEE Received for additional pltf: $ 250.00, receipt number 102−118168. (kah, )
11 NOTICE of Appearance by Erik R Guenther on behalf of all plaintiffs. Attorney(s) appearing: Erik R. Guenther (Hurley, Burish &Stanton, S.C.) (Guenther, Erik)
12 CERTIFICATE of Interest by all plaintiffs. (Guenther, Erik)
13 ORDER EXTENDING PRELIMINARY INJUNCTION barring defendants from withdrawing hormonal therapy to plaintiff Lindsey Blackwell signed by Judge Charles N Clevert Jr on 2/3/2006. (cc: all counsel)((mj), C. N. CLEVERT, JR.)
14 Refusal to Jurisdiction by US Magistrate Judge by all plaintiffs (Dupuis, Laurence)

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 8 of 19

02/08/2006 02/08/2006 02/10/2006 02/13/2006 03/20/2006 03/20/2006 03/20/2006
03/20/2006 03/20/2006 03/20/2006
03/20/2006
03/21/2006 03/21/2006
04/10/2006 04/10/2006 04/11/2006 04/11/2006 04/11/2006 04/11/2006 04/12/2006 04/27/2006 04/27/2006
04/27/2006 04/27/2006

15 DECLARATION of Kari Sundstrom with declarant's signature (Dupuis, Laurence)
16 DECLARATION of Andrea Fields with declarant's signature (Dupuis, Laurence)
17 LETTER from Laurence Dupuis regarding request for partial refund of filing fees (Dupuis, Laurence)
18 ANSWER to Amended Complaint by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Robert Humphreys, Susan Nygren.(Schmelzer, Jody)
19 LETTER from Laurence Dupuis Cover Letter transmitting filings (Dupuis, Laurence)
20 JOINT REPORT of Rule 26(f) Plan by all parties (Dupuis, Laurence)
21 TO BE REFILED; Joint MOTION Consolidate Preliminary Injunction Hearing with Trial on Merits; New Trial Date; Extend Temporary Injunction by all plaintiffs. (Dupuis, Laurence) Modified on 3/22/2006 (kah, ).
22 STIPULATION to Extend Temporary Injunction Maintaining Hormone Therapy Until Trial by all parties (Dupuis, Laurence)
23 CERTIFICATE OF SERVICE by all plaintiffs (Dupuis, Laurence)
24 REFILED; SEE DOC. 27 − AMENDED DOCUMENT by all plaintiffs. Amended Joint Motion to Consolidate Preliminary Injunction Hearing with Trial on Merits; for New Trial Date; to Extend Temporary Injunction [Corrected Version of Doc. #21] (Dupuis, Laurence) Modified on 3/22/2006 (kah, ).
25 CERTIFICATE OF SERVICE by all plaintiffs Service of Amended Motion to Consolidate Preliminary Injunction Hearing with Trial on Merits, etc (Dupuis, Laurence)
26 Docket Annotation asking Atty Dupuis to refile doc. 21/24. (kah, )
27 Joint MOTION for Order Consolidating Prelim Injunction Hearing with Trial on Merits, Amended MOTION to Reset Trial Date, Joint MOTION to Extend Temporary Injunction by all plaintiffs. (Dupuis, Laurence)
28 Joint MOTION for Protective Order by all parties. (Attachments: # 1 Text of Proposed Order Agreed Protective Order)(Dupuis, Laurence)
32 Document Sealed as to Plaintiffs Lindsey Blackwell, Kari Sundstrom, Andrea Fields re: unredacted version of doc 28 . (kah, ) (Entered: 04/11/2006)
29 Joint MOTION for Leave to File Under Seal Unredacted Motion for Protective Order by all parties. (Dupuis, Laurence)
30 CERTIFICATE OF SERVICE by all plaintiffs Service of Motion for Protective Order and Proposed Order (Dupuis, Laurence)
31 CERTIFICATE OF SERVICE by all plaintiffs Service of Motion for Leave to File Under Seal Unredacted Motion for Protective Order (Dupuis, Laurence)
34 AGREED PROTECTIVE ORDER signed by Judge Charles N Clevert Jr on 4/11/06. (cc: all counsel)(kah, ) (Entered: 04/12/2006)
33 LETTER from Cole Thaler re: Address Change (Thaler, Cole)
35 First MOTION to Certify Class by all plaintiffs. (Thaler, Cole)
36 BRIEF in Support re 35 First MOTION to Certify Class filed by all plaintiffs. (Attachments: # 1 Exhibit Authentication and Index# 2 Exhibit Exhibits A−H)(Thaler, Cole)
37 First MOTION to Amend/Correct First Amended Complaint by all plaintiffs. (Attachments: # 1 Exhibit Exhibit A − Second Amended Complaint)(Thaler, Cole)
38 CERTIFICATE OF SERVICE by all plaintiffs (Thaler, Cole)

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 9 of 19

04/27/2006 04/28/2006 04/28/2006
05/01/2006
05/01/2006 05/30/2006 05/30/2006 05/30/2006 05/31/2006 05/31/2006 05/31/2006 05/31/2006 06/05/2006 06/05/2006 06/05/2006 06/09/2006
06/27/2006 06/27/2006

39 CERTIFICATE by all plaintiffs Pursuant to Local Civil Rule 7.1(a) (Thaler, Cole)
40 ORDER signed by Judge Charles N Clevert Jr on 4/28/06 granting 29 Joint Motion for Leave to File under Seal Unredacted Motion for Entry of Protective Order. (cc: all counsel) ((mj), C. N. CLEVERT, JR.) (Entered: 05/01/2006)
41 ORDER granting 27 Amended Joint Motion for Consolidation of Preliminary Injunction Hearing with trial on the merits, new date for hearing/trial, and extension of preliminary injunction, and Order setting schedule signed by Judge Charles N Clevert Jr on 4/28/2006 . (cc: all counsel) ((mj), C. N. CLEVERT, JR.) (Entered: 05/01/2006)
Set/Reset Scheduling Order: Defendant's opposing brief to motion for class certification is due 5/30/05; plaintiffs' reply due 6/13/2006. Plaintiffs Expert Witness List due by 6/30/2006. Defendants Expert Witness List due by 7/31/2006. Rebuttal expert diclsores are due 8/15/2006. Final Pretrial Conference set for 12/14/2006 09:00 AM in Courtroom 222 before Judge Charles N Clevert Jr. Motions in limine due 11/10/2006. Final/Joint Pretrial Report, proposed voir dire and jury instructions due by 12/4/2006. Jury Trial set for 1/8/2007 08:30 AM in Courtroom 222 before Judge Charles N Clevert Jr. Dispositive Motions due by 8/29/2006; filings in opposition due 9/29/2006; and any replys are due 10/16/06. ((mj), C. N. CLEVERT, JR.) Modified on 5/10/2006 − reply date corrected to 10/16/06. (kmf, ).
Set Deadlines/Hearings: Discovery due by 9/29/2006. (kah, ) (Entered: 05/02/2006)
42 RESPONSE to Motion re 35 First MOTION to Certify Class Pursuant to Fed. R. Civ. P. 23 filed by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD. (Schmelzer, Jody)
43 AFFIDAVIT of Francis X. Sullivan (Schmelzer, Jody)
44 CERTIFICATE OF SERVICE by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD (Schmelzer, Jody)
45 AFFIDAVIT of Francis X. Sullivan with Exhibit A (Attachments: # 1)(Schmelzer, Jody)
46 CERTIFICATE OF SERVICE by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD (Schmelzer, Jody)
47 Signed AFFIDAVIT of Francis X. Sullivan (Schmelzer, Jody)
48 CERTIFICATE OF SERVICE by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD of signed Affidavit of Francis X. Sullivan (Schmelzer, Jody)
49 Joint MOTION for Extension of Time Modifying Briefing Schedule by all parties. (Attachments: # 1 Text of Proposed Order Order Enlarging Time and Modifying Briefing Schedule)(Dupuis, Laurence)
50 STIPULATION for Enlargement of Time &Modification of Briefing Schedule by all parties (Dupuis, Laurence)
51 CERTIFICATE OF SERVICE by all plaintiffs (Dupuis, Laurence)
52 ORDER signed by Judge Charles N Clevert Jr on 6/9/06 granting 49 parties' joint motion for modification of the briefing schedule. Plaintiffs' reply brief and supporting papers in support of their motion for class certification is due 7/14/2006. (cc: all counsel) (C N Clevert, Jr)
53 Emergency MOTION for Preliminary Injunction Enjoining Defendants from Reducing or Terminating Matthew Davison, a/k/a Jassica Davison's Hormone Therapy by all plaintiffs. (Knight, John)
54 BRIEF in Support re 53 Emergency MOTION for Preliminary Injunction Enjoining Defendants from Reducing or Terminating Matthew Davison, a/k/a Jassica Davison's Hormone Therapy filed by all plaintiffs. (Attachments: # 1 Declaration of John A. Knight# 2 Exhibit Exhibits A and B to Knight Declaration#

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 10 of 19

06/27/2006 06/27/2006 06/27/2006 06/28/2006
06/28/2006 06/28/2006
06/29/2006 06/30/2006
07/12/2006
07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/13/2006 07/13/2006 07/14/2006 07/26/2006
07/26/2006 08/01/2006

3 Exhibit Exhibit C−1 to Knight Declaration# 4 Exhibit Exhibit C−2 to Knight Declaration# 5 Exhibit Exhibits D and E − Knight Declaration)(Knight, John)
55 MOTION to Amend/Correct Complaint by all plaintiffs. (Attachments: # 1 Exhibit A − Second Amended Complaint)(Knight, John)
56 BRIEF in Support re 55 MOTION to Amend/Correct Complaint filed by all plaintiffs. (Knight, John)
57 CERTIFICATE OF SERVICE by all plaintiffs (Knight, John)
58 STIPULATION to the addition of plaintiff Matthew Davison, a/k/a Jessica Davison, and the extension of preliminary injunctive relief to her by all plaintiffs (Attachments: # 1 Text of Proposed Order)(Knight, John)
59 CERTIFICATE OF SERVICE by all plaintiffs (Knight, John)
61 SECOND AMENDED COMPLAINT against all defendants filed by all pltfs; party Matthew Davison added.(kah, ) Modified on 6/29/2006 (kah, ). (Entered: 06/29/2006)
60 Docket Annotation to Atty Knight re: doc. 58. (kah, )
62 ORDER GRANTING MOTION [#53] for Preliminary Injunction as to Plaintiff Matthew Davison, a/k/a Jessica Davison; and pursuant to the filing of the Second Amended Complaint on 6/28/06. the Court terminates as moot Plaintiffs' Motion [#37] to Amend/Correct the First Amended Complaint.((kwb), C. N. Clevert, Jr.) Modified on 6/30/2006 (kmm, ).
63 Defendants' ANSWER to Amended Complaint and Affirmative Defenses for Declaratory and Injunctive Relief by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD.(Schmelzer, Jody)
64 CERTIFICATE OF SERVICE by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD (Schmelzer, Jody)
65 TO BE REFILED − MOTION to Compel Discovery &for Enlargement of Time by all plaintiffs. (Thaler, Cole) Modified on 7/13/2006 (kah, ).
66 BRIEF in Support re 73 MOTION to Compel Discovery &for Enlargement of Time filed by all plaintiffs. (Thaler, Cole) Modified link on 7/13/2006 (kah, ).
67 DECLARATION of John Knight (Attachments: # 1 Exhibit A − I)(Thaler, Cole)
68 STIPULATION to Modification of Scheduling Order by all parties (Thaler, Cole)
69 LETTER from Plaintiffs' Counsel (Thaler, Cole)
70 ORDER Granting Request for Refund of Fees signed by Judge Charles N Clevert Jr on 7/12/2006. (cc: all counsel)((mj), C. N. CLEVERT, JR.)
71 CERTIFICATE OF SERVICE by all plaintiffs (Thaler, Cole)
72 Docket Annotation asking Atty Thaler to refile doc. 65. (kah, )
73 MOTION to Compel Discovery, MOTION for Extension of Time by all plaintiffs. (Thaler, Cole)
74 ORDER signed by Judge Charles N Clevert Jr on 7/14/2006 granting 73 Motion for Extension of Time . (cc: all counsel) ((mj), C. N. CLEVERT, JR.)
75 RESPONSE to Motion re 73 MOTION to Compel Discovery MOTION for Extension of Time In Opposition filed by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD. (Schmelzer, Jody)
76 CERTIFICATE OF SERVICE by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD (Schmelzer, Jody)
77 MOTION to Strike Defendants' Demand for a Jury Trial by all plaintiffs. (Knight, John)

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 11 of 19

08/01/2006 08/02/2006
08/02/2006 08/02/2006 08/02/2006 08/03/2006 09/01/2006 09/01/2006
09/01/2006 09/15/2006 11/03/2006
11/07/2006
12/06/2006
12/18/2006
12/18/2006 12/18/2006 12/21/2006
12/21/2006
01/11/2007
01/30/2007 01/30/2007

78 BRIEF in Support re 77 MOTION to Strike Defendants' Demand for a Jury Trial filed by all plaintiffs. (Knight, John)
79 REPLY BRIEF in Support re 73 MOTION to Compel Discovery MOTION for Extension of Time filed by all plaintiffs. (Attachments: # 1 Exhibit A−B)(Thaler, Cole) Modified to fix event on 8/3/2006 (kah, ).
80 MOTION to File Redacted Documents by all plaintiffs. (Thaler, Cole)
81 CERTIFICATE by all plaintiffs Pursuant to Local Rule 7.1 (Thaler, Cole)
82 CERTIFICATE OF SERVICE by all plaintiffs (Thaler, Cole)
83 Docket Annotation to Atty Thaler re: doc. 79. (kah, )
84 LETTER from Jody J. Schmelzer in response to plaintiffs' Motion To Strike Defendants' Demand for Jury Trial. (Schmelzer, Jody)
85 MOTION for Order re Defendants' Motion To Impanel An Advisory Jury For Trial by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Robert Humphreys, Susan Nygren. (Schmelzer, Jody)
86 CERTIFICATE OF SERVICE by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Robert Humphreys, Susan Nygren (Schmelzer, Jody)
87 BRIEF in Opposition filed by all plaintiffs re 85 MOTION for Order re Defendants' Motion To Impanel An Advisory Jury For Trial. (Knight, John)
88 NOTICE of Hearing on 73 MOTION to Compel Discovery. Motion Hearing set for 12/6/2006 11:00 AM in Courtroom 222 before Judge Charles N Clevert Jr. ((mj), C. N. CLEVERT, JR.)
89 ORDER signed by Judge Charles N Clevert Jr on 11/7/06 granting 77 Motion to Strike Defendant's Demand for a Jury Trial ; denying 85 Motion to Impanel an Advisory Jury for Trial. (cc: all counsel) ((mj), C. N. CLEVERT, JR.)
90 Minute Order. Motion Hearing held on 12/6/2006 before Judge Charles N Clevert Jr: denying 73 Motion to Compel; Reply brief on motion for Class Certification due 1/30/2007;Discovery due by 4/6/2007; Telephone Conference set for 2/16/2007 10:30 AM before Judge Charles N Clevert Jr. (Tape #11:26:49 − 12:16:55.) ((mj), C. N. CLEVERT, JR.) (Entered: 12/08/2006)
91 MOTION for Amendment of Complaint to Add Plaintiff Vankemah Moaton, and for Extension of Preliminary Injunctive Relief to Her by all plaintiffs. (Attachments: # 1 Exhibit Third Amended Complaint# 2 Text of Proposed Order)(Thaler, Cole)
92 STIPULATION to the Addition of Plaintiff Vankemah Moaton, and to the Extension of Preliminary Injunctive Relief to Her by all parties. (Thaler, Cole)
93 CERTIFICATE OF SERVICE by all plaintiffs (Thaler, Cole)
94 ORDER signed by Judge Charles N Clevert Jr on 12/21/06 granting 91 Motion for Amendment of Complaint to Add Plaintiff Vankemah Moaton and for Extension of Preliminary Injunctive Relief. (cc: all counsel) ((mj), C. N. CLEVERT, JR.) (Entered: 12/22/2006)
95 THIRD AMENDED COMPLAINT against all defendants filed by all pltfs; added pltf Vankemah D Moaton. (kah) Modified filers on 12/26/2006 (kah). (Entered: 12/26/2006)
96 ANSWER to Amended Complaint by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD. (Attachments: # 1 Certificate of Service)(Sullivan, Francis)
97 REPLY BRIEF in Support filed by all plaintiffs re 35 First MOTION to Certify Class. (Attachments: # 1 Exhibit A−H)(Thaler, Cole)
98 MOTION to Seal Document and to File Declarations with Non−Party Inmates' Names Redacted by all plaintiffs. (Thaler, Cole)

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 12 of 19

01/30/2007 01/30/2007 01/30/2007 02/16/2007
02/16/2007
03/05/2007 03/05/2007 03/05/2007 03/05/2007 03/26/2007
03/26/2007
04/09/2007
04/09/2007 06/13/2007 06/13/2007 06/29/2007 06/29/2007 07/31/2007

99 CERTIFICATE OF SERVICE by all plaintiffs (Thaler, Cole)
100 CERTIFICATE OF SERVICE by all plaintiffs service of unredacted declarations by mail (Dupuis, Laurence)
101 Document Sealed as to all pltfs consisting of Exhibits D−H to 97 Reply Brief. (kah) (Entered: 01/31/2007)
102 ORDER signed by Judge Charles N Clevert Jr on 2/16/2007 denying 35 Motion to Certify Class; denying 37 Motion to for Leave to file second Amended Complaint; granting 80 Motion to File Documents with a nonparty inmate's name redacted ant to filed unredacted documents under seal; granting 98 Motion to Seal Document. (cc: all counsel) ((mj), C. N. CLEVERT, JR.)
103 MINUTES: Telephonic Scheduling Conference held on 2/16/07. Court SETS the following schedule: Deadline to seek leave to amend pleadings/join parties is 3/16/07; Defendants to provide expert reports by 3/30/07; Plaintiffs to provide any rebuttal expert reports by 4/30/07; Parties to complete discovery by 6/30/07 and file any pretrial motions by 7/31/07. BENCH Trial is set to commence on 10/22/07 at 9:00 AM in Courtroom 222. For rulings on motions see attached minutes or Order 102 .(Tape #10:35:39 to 10:58:46) ((kwb), C. N. Clevert, Jr.) (Entered: 02/21/2007)
104 MOTION to Amend/Correct Complaint, MOTION for Reconsideration of Certification of Modified Class Definition by all plaintiffs. (Knight, John)
105 BRIEF in Support filed by all plaintiffs re 104 MOTION to Amend/Correct Complaint MOTION for Reconsideration of Certification of Modified Class Definition. (Attachments: # 1 Exhibit A−d# 2 Exhibit E−F)(Knight, John)
106 DECLARATION of John Knight. (Knight, John)
107 CERTIFICATE OF SERVICE by all plaintiffs (Knight, John)
108 RESPONSE to Motion filed by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD re 104 MOTION to Amend/Correct Complaint MOTION for Reconsideration of Certification of Modified Class Definition Defendants' Response to Plaintiff's Motion for Leave to Amend and Motion to Reconsider Certification of Modified Class Definition. (Sullivan, Francis)
109 CERTIFICATE OF SERVICE by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Roman Kaplan, MD Defendants' Response to Plaintiff's Motion for Leave to Amend and Motion to Reconsider Certification of Modified Class Definition (Sullivan, Francis)
110 REPLY BRIEF in Support filed by all plaintiffs re 104 MOTION to Amend/Correct Complaint MOTION for Reconsideration of Certification of Modified Class Definition. (Attachments: # 1 Exhibit Exhibits A−D# 2 Exhibit Exhibit Authentication − Declaration of John Knight)(Knight, John)
111 CERTIFICATE OF SERVICE by all plaintiffs re Reply Brief in Support of Motion for Leave to Amend and Motion to Reconsider Certification of Modified Class (Knight, John)
112 LETTER from Laurence Dupuis regarding final pretrial conference. (Dupuis, Laurence)
113 CERTIFICATE OF SERVICE by all plaintiffs Letter regarding scheduling of final pretrial conference (Dupuis, Laurence)
114 Joint MOTION for Extension of Time Extending Discovery Deadline by all parties. (Attachments: # 1 Stipulation for Enlargement of Time and Extension of Discovery Deadline# 2 Text of Proposed Order)(Dupuis, Laurence)
115 CERTIFICATE OF SERVICE by all plaintiffs Service of Joint Motion for Enlargement of Time &Extension of Discovery Deadline (Dupuis, Laurence)
116 MOTION to Exclude Testimony of Defendants' Expert Daniel C. Claiborn by all plaintiffs. (Thaler, Cole)

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 13 of 19

07/31/2007 07/31/2007 07/31/2007 07/31/2007
07/31/2007
07/31/2007 07/31/2007 07/31/2007
07/31/2007 07/31/2007
07/31/2007 07/31/2007 07/31/2007 07/31/2007 08/07/2007
08/21/2007 08/21/2007 08/21/2007 08/21/2007 08/21/2007
08/21/2007 08/22/2007

117 BRIEF in Support filed by all plaintiffs re 116 MOTION to Exclude Testimony of Defendants' Expert Daniel C. Claiborn. (Thaler, Cole)
118 DECLARATION of Cole Thaler. (Attachments: # 1 Exhibit Part 1 of 2# 2 Exhibit part 2 of 2)(Thaler, Cole)
119 CERTIFICATE OF SERVICE by all plaintiffs (Thaler, Cole)
120 MOTION for Partial Summary Judgment by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Robert Humphreys, Susan Nygren. (Schmelzer, Jody)
121 BRIEF in Support filed by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Robert Humphreys, Susan Nygren re 120 MOTION for Partial Summary Judgment. (Schmelzer, Jody)
122 Proposed Findings of Fact by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Robert Humphreys, Susan Nygren (Schmelzer, Jody)
123 AFFIDAVIT of Christine Freeland. (Schmelzer, Jody)
124 AFFIDAVIT of Jody J. Schmelzer. (Attachments: # 1 Exhibit Exhibit 500# 2 Exhibit Exhibit 516# 3 Exhibit Exhibit 526# 4 Exhibit Exhibit 527# 5 Exhibit Exhibit 531# 6 Exhibit Exhibit 532# 7 Exhibit Exhibit 533# 8 Exhibit Exhibit 534# 9 Exhibit Exhibit 535# 10 Exhibit Exhibit 536)(Schmelzer, Jody)
125 MOTION in Limine by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Robert Humphreys, Susan Nygren. (Schmelzer, Jody)
126 CERTIFICATE OF SERVICE by Matthew J Frank, Judy P Smith, Thomas Edwards, James Greer, Robert Humphreys, Susan Nygren for Defendants' Motion for Partial Summary Judgment, Defendants' Brief in Support of Defendants' Motion for Partial Summary Judgment, Defendants' Proposed Findings of Fact, Defendants' Motions in Limine, and the Affidavits of Christine Freeland and Jody J. Schmelzer (Schmelzer, Jody)
127 MOTION to Exclude Medical Opinions Offered by Defendants' Expert Eugene Atherton by all plaintiffs. (Knight, John)
128 BRIEF in Support filed by all plaintiffs re 127 MOTION to Exclude Medical Opinions Offered by Defendants' Expert Eugene Atherton. (Knight, John)
129 DECLARATION of John Knight. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Knight, John)
130 CERTIFICATE OF SERVICE by all plaintiffs (Knight, John)
131 ORDER signed by Judge Charles N Clevert Jr on 8/7/07 denying 104 Motion for Leave to Amend; denying 104 Motion to Reconsider Certification of Modified Class Definition. (cc: all counsel) ((mj), C. N. CLEVERT, JR.)
132 BRIEF in Opposition filed by all plaintiffs re 125 MOTION in Limine. (Thaler, Cole)
133 DECLARATION of Cole Thaler. (Attachments: # 1 Exhibit # 2)(Thaler, Cole)
134 CERTIFICATE OF SERVICE by all plaintiffs (Thaler, Cole)
135 BRIEF in Opposition filed by all defendants re 116 MOTION to Exclude Testimony of Defendants' Expert Daniel C. Claiborn. (Sullivan, Francis)
136 AFFIDAVIT of Francis X. Sullivan. (Attachments: # 1 Exhibit A (Dr. Claiborn's report)# 2 Exhibit B (Portions of the transcript of the deposition of Daniel Claiborn, Ph.D.)# 3 Exhibit C (Portions of the transcript of plaintiffs' expert George R. Brown, M.D.))(Sullivan, Francis)
137 CERTIFICATE OF SERVICE by all defendants (Sullivan, Francis)
NOTICE Confirming Final Pretrial Conference is set for 10/5/07 at 1:30 PM in Courtroom 222. The FPT Report is due by 10/2/07. ((kwb), C. N. Clevert, Jr.)

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 14 of 19

08/29/2007 08/30/2007 08/30/2007 08/30/2007
08/30/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/10/2007
09/10/2007 09/11/2007 09/11/2007 09/14/2007
09/14/2007 09/17/2007 09/17/2007
09/19/2007

142 ORDER signed by Judge Charles N Clevert Jr on 8/29/07, nunc pro tunc June 30, 2007,granting 114 Motion for Extension of Time for Discovery.. (cc: all counsel) ((mj), C. N. CLEVERT, JR.) (Entered: 08/31/2007)
138 BRIEF in Opposition filed by all plaintiffs re 120 MOTION for Partial Summary Judgment. (Knight, John)
139 RESPONSE filed by all plaintiffs re 122 Proposed Findings of Fact. and Proposed Findings of Fact. (Knight, John)
140 DECLARATION of John Knight. (Attachments: # 1 Exhibit Exhibits 213−216# 2 # 3 Exhibit Exhibits 219−220# 4 Exhibit Exhibits 221−225# 5 Exhibit Exhibits 226−230# 6 Exhibit Exhibits 231−232# 7 Exhibit Exhibits 233−236# 8 Exhibit Exhibits 237−240# 9 Exhibit Exhibits 241−245# 10 Exhibit Exhibits 246−251)(Knight, John)
141 CERTIFICATE OF SERVICE by all plaintiffs (Knight, John)
143 REPLY BRIEF in Support filed by all plaintiffs re 116 MOTION to Exclude Testimony of Defendants' Expert Daniel C. Claiborn. (Thaler, Cole)
144 DECLARATION of Cole Thaler. (Attachments: # 1 Exhibit)(Thaler, Cole)
145 CERTIFICATE OF SERVICE by all plaintiffs (Thaler, Cole)
146 AFFIDAVIT of Jody J. Schmelzer. (Attachments: # 1 Exhibit 537)(Schmelzer, Jody)
147 REPLY BRIEF in Support filed by all defendants re 125 MOTION in Limine. (Schmelzer, Jody)
148 CERTIFICATE OF SERVICE by all defendants (Schmelzer, Jody)
149 Joint MOTION for Extension of Time and Modification of Discovery Deadline by all parties. (Attachments: # 1 Stipulation for Extension of Time and Modification of Discovery Schedule# 2 Text of Proposed Order Proposed Order for Extension of Time &Modifying Discovery Deadline)(Dupuis, Laurence)
150 CERTIFICATE OF SERVICE by all parties Service of Joint Motion for Enlargement of Time &Extension of Discovery Deadline (Dupuis, Laurence)
151 ORDER Enlarging Time and Extending Discovery Deadline signed by Judge Charles N Clevert Jr on 9/11/07 granting 149 Motion. (cc: all counsel) ((mj), C. N. CLEVERT, JR.)
Set Deadlines/Hearings: Discovery extended to 9/21/2007 (kah) (Entered: 09/12/2007)
152 Stipulation for Enlargment of Time and Declaration of John Knight − (MOTION TO BE REFILED) Joint MOTION for Extension of Time for Defendants to File Their Reply Brief and for Plaintiffs to File Their Amended Proposed Finding of Fact Number 20 by all parties. (Attachments: # 1 Stipulation for Enlargement of Time for Defendants to File Their Reply Brief and for Plaintiffs to File Their Amended Proposed Finding of Fact Number 20# 2 Text of Proposed Order # 3 Plaintiffs' Amended Proposed Finding of Fact Number 20# 4 Declaration of John Knight# 5 Exhibit 270−272)(Knight, John) Modified event on 9/17/2007 (kah).
153 CERTIFICATE OF SERVICE by all parties (Knight, John)
154 Docket Annotation to Atty Knight re: doc. 152. (kah)
155 Joint MOTION for Extension of Time to file reply brief, Joint MOTION for Leave to File Plaintiffs' Amended Proposed Finding of Fact Number 20 by all parties. (Attachments: # 1 Plaintiffs' Amended Proposed Finding of Fact Number 20)(Knight, John)
156 RESPONSE filed by all defendants re 139 Response (Non−Motion). to Plaintiff's Findings of Facts. (Schmelzer, Jody)

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 15 of 19

09/19/2007 09/19/2007 09/19/2007 09/19/2007
09/20/2007
09/20/2007 09/27/2007
09/27/2007 10/02/2007 10/02/2007 10/02/2007 10/02/2007 10/02/2007 10/02/2007 10/03/2007 10/03/2007 10/03/2007 10/05/2007
10/05/2007 10/15/2007

157 REPLY filed by all defendants re 139 Response (Non−Motion) to Plaintiffs' Response to Defendants' Proposed Findings of Fact. (Schmelzer, Jody)
158 AFFIDAVIT of Jody J. Schmelzer. (Attachments: # 1 Exhibit 538)(Schmelzer, Jody)
159 REPLY BRIEF in Support filed by all defendants re 120 MOTION for Partial Summary Judgment and In Response to Plaintiffs' Brief in Opposition. (Schmelzer, Jody)
160 CERTIFICATE OF SERVICE by all defendants for Defendants' Reply Brief in Support of Defendants' Motion for Partial Summary Judgment, Defendants' Reply to Plaintiffs' Response to Defendants' Proposed Findings of Fact, Defendants' Response to Plaintiffs' Finding of Facts, and the Affidavit of Jody J. Schmelzer (Schmelzer, Jody)
161 ORDER signed by Judge Charles N Clevert Jr on 9/20/07 granting 155 Motion for Extension of Time; granting 155 Motion for Leave to File Plaintiff's Amended Proposed Finding of Fact.. (cc: all counsel) ((mj), C. N. CLEVERT, JR.) (Entered: 09/21/2007)
162 Amended Proposed Finding of Fact Number 20 by all plaintiffs. (kah) (Entered: 09/24/2007)
163 MOTION for Leave to File Surreply Brief in Opposition to Defendants' Motion for Partial Summary Judgment by all plaintiffs. (Attachments: # 1 Exhibit Plaintiffs' Surreply Brief in Opposition to Defendants' Motion for Partial Summary Judgment)(Dupuis, Laurence)
164 CERTIFICATE OF SERVICE by all plaintiffs Motion for Leave to File Surreply in Opposition to Defendants' Motion for Partial Summary Judgment (Dupuis, Laurence)
165 PROPOSED FINDINGS OF FACT and Conclusions of Law PRETRIAL REPORT Findings of Fact and Conclusions of Law by all defendants. (Schmelzer, Jody) Modified event on 10/3/2007 (kah).
166 CERTIFICATE OF SERVICE by all defendants of Defendants' Pretrial Findings of Fact and Conclusions of Law (Schmelzer, Jody)
167 Joint PRETRIAL REPORT by all parties. (Thaler, Cole)
168 PROPOSED FINDINGS OF FACT and Conclusions of Law PRETRIAL REPORT Proposed Findings of Fact and Conclusions of Law by all plaintiffs. (Thaler, Cole) Modified event on 10/3/2007 (kah).
169 CERTIFICATE OF SERVICE by all plaintiffs (Thaler, Cole)
170 CERTIFICATE OF SERVICE by all plaintiffs (Thaler, Cole)
171 Docket Annotation to Atty Schmelzer re: doc. 165. (kah)
172 Docket Annotation to Atty Thaler re: doc. 168. (kah)
173 Docket Annotation to Atty's Thaler, Dupuis and Knight re: docs 167 and 168. (kah)
174 ORDER by Judge Charles N Clevert Jr that 116 plaintiffs' Motion to Exclude Testimony of Defendants' Expert Daniel C. Claiborn is DENIED; IT IS FURTHER ORDERED that 125 defendants' Motion in Limine is GRANTED IN PART AND DENIED IN PART and that the convictions of the plaintiffs set forth in said motion may be admitted pursuant to Fed. R. Civ. P. 609(a) as outlined in the order; IT IS FURTHER ORDERED that 127 plaintiff's Motion to Exclude medical opinions testimony regarding medical treatment of inmates is GRANTED as to Eugene Atherton; see order for further details (cc: all counsel) (vkb)
181 Minute Entry for proceedings held before Judge Charles N Clevert Jr: Final Pretrial Conference held on 10/5/2007 ((mj), C. N. CLEVERT, JR.) (Entered: 10/18/2007)
175 ORDER signed by Judge Charles N Clevert Jr on 10/15/07 granting in part and denying in part 120 Motion for Partial Summary Judgment; granting 163 Motion

Case: 2:06-cv-00112-CNC As of: 05/21/2011 03:06 PM CDT 16 of 19

10/17/2007
10/17/2007 10/17/2007
10/17/2007 10/17/2007 10/18/2007
10/18/2007 10/18/2007
10/18/2007 10/18/2007 10/18/2007 10/18/2007 10/19/2007 10/19/2007 10/19/2007 10/19/2007
10/19/2007 10/19/2007 10/22/2007
10/25/2007
11/01/2007

for Leave to File Surreply; dismissing defendants Humphreys and Nygren, and dismissing plaintiffs Sundstrom and Blackwell. (cc: all counsel) ((mj), C. N. CLEVERT, JR.)
176 MOTION for Writ of Habeas Corpus ad Testificandum by all plaintiffs. (Attachments: # 1 Text of Proposed Order For Issuance of Writ of Habeas Corpus ad Testificandum)(Dupuis, Laurence)
177 CERTIFICATE OF SERVICE by all plaintiffs Service of Motion for Writ and Proposed Order (Dupuis, Laurence)
178 MOTION for Leave to File Amended Proposed Findings of Fact and Conclusions of Law and for Leave to File 37 Page Trial Brief by all plaintiffs. (Attachments: # 1 Exhibit Plaintiffs' Amended Proposed Findings of Fact and Conclusions of Law)(Knight, John)
179 TRIAL BRIEF by all plaintiffs. (Knight, John)
180 CERTIFICATE OF SERVICE by all plaintiffs (Knight, John)
182 MOTION for Leave to File Plaitniffs' Corrected Amended Proposed Findings of Fact and Conclusions of Law and for Leave to File 37 Page Corrected Trial Brief by all plaintiffs. (Attachments: # 1 Exhibit Plaintiffs' Corrected Amended Proposed Findings of Fact and Conclusions of Law)(Knight, John)
183 TRIAL BRIEF (Corrected) by all plaintiffs. (Knight, John)
184 ORDER for Issuance of Writ of Habeas Corpus Ad Testificandum signed by Judge Charles N Clevert Jr on 10/18/07 granting motion 176 . (cc: all counsel) ((mj), C. N. CLEVERT, JR.)
185 WRIT OF HABEAS CORPUS AD TESTIFICANDUM as to Vankemah D. Moaton. ((mj), C. N. CLEVERT, JR.)
186 Exhibit List by all parties. (Dupuis, Laurence)
187 STIPULATION Revised Stipulated Facts by all parties. (Dupuis, Laurence)
188 CERTIFICATE OF SERVICE by all plaintiffs (Knight, John)
189 CERTIFICATE OF SERVICE by all plaintiffs service of revised exhibit list and revised stipulated facts (Dupuis, Laurence)
190 CERTIFICATE OF SERVICE by all plaintiffs service of trial exhibits (Dupuis, Laurence)
191 ORDER AMENDING CAPTION signed by Judge Charles N Clevert Jr on 10/19/07. (cc: all counsel)((mj), C. N. CLEVERT, JR.)
192 ORDER signed by Judge Charles N Clevert Jr on 10/19/07 finding as moot 178 Motion for Leave to File; granting 182 Motion for Leave to File Corrected Amended Proposed Findings of Fact and Conclusions of Law and for Leave to File 37 page Corrected Trial Brief.. (cc: all counsel) ((mj), C. N. CLEVERT, JR.)
193 TRIAL BRIEF by all defendants. (Schmelzer, Jody)
194 CERTIFICATE OF SERVICE by all defendants (Schmelzer, Jody)
195 MINUTES: Court Trial begins 10/22/07. Court hears opening statements and testimony of Dr. Randi Ettner and Dr. Frederic Ettner. Trial to resume 10/23/07 at 8:30 AM. Court Reporter: John Schindhelm (Tape #9:12:12 to 12:18:56 and 1:21:03 to 2:01:12) ((kwb), C. N. Clevert, Jr.) (Entered: 10/25/2007)
196 MINUTES: Continued Bench Trial held 10/23/07 through 10/25/07. Matter is taken under advisement. See Minutes for additional information. (Court Reporter John Schindhelm) ((kwb), C. N. Clevert, Jr.) (Entered: 10/30/2007)
197 LETTER from John A. Knight regarding Exhibits. (Knight, John)

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11/01/2007 11/02/2007 11/19/2007 11/19/2007 11/19/2007 11/19/2007 02/05/2010 02/05/2010 03/31/2010 04/09/2010 04/12/2010 04/13/2010
04/16/2010 04/21/2010 05/06/2010 05/11/2010 05/12/2010 05/13/2010 05/13/2010
06/02/2010

198 CERTIFICATE OF SERVICE by all plaintiffs (Knight, John)
199 LETTER from Jody J. Schmelzer regarding important exhibits. (Attachments: # 1 Certificate of Service)(Schmelzer, Jody)
200 TRANSCRIPT of Court Trial (Volume 1) held on 10/22/07 before Judge Charles N. Clevert. Court Reporter: John Schindhelm − (IN PAPER FORMAT). (kah)
201 TRANSCRIPT of Court Trial (Volume 2) held on 10/23/07 before Judge Charles N. Clevert. Court Reporter: John Schindhelm − (IN PAPER FORMAT). (kah)
202 TRANSCRIPT of Court Trial (Volume 3) held on 10/24/07 before Judge Charles N. Clevert. Court Reporter: John Schindhelm − (IN PAPER FORMAT). (kah)
203 TRANSCRIPT of Court Trial (Volume 4) held on 10/25/07 before Judge Charles N. Clevert. Court Reporter: John Schindhelm − (IN PAPER FORMAT). (kah)
204 LETTER from Laurence Dupuis with supplemental authority. (Attachments: # 1 Supplement Decision in Brugliera v. Commr of Mass. Dept of Corrections)(Dupuis, Laurence)
205 CERTIFICATE OF SERVICE by Lindsey Blackwell, Matthew Davison, Andrea Fields, Vankemah D Moaton, Kari Sundstrom (Dupuis, Laurence)
206 ORDER Declaring Wis. Stat. § 302.386(5m) Unconstitutional and Enjoining Enforcement of Statute. (cc: all counsel)((cef), C. N. Clevert, Jr.)
NOTICE: Status Conference is set for 5/13/10 at 3:00 PM in Courtroom 222 before Chief Judge Charles N Clevert Jr. ((cef), C. N. Clevert, Jr.)
207 MOTION for Extension of Time to File Petition for Atttorney's Fees and Bill of Costs by All Plaintiffs. (Knight, John)
ORAL ORDER: The plaintiffs' Motion For Extension of Time to File Petition For Attorney's Fees and Bill of Costs 207 is granted and the time for plaintiffs to file the petition for attorney fees and costs is extended until 14 days after the filing of the court's memorandum decision or 14 days after the status conference of 5/13/10, whichever is later. (cc: all counsel)((cef), C. N. Clevert, Jr.)
208 NOTICE of Appearance by Dru M Levasseur on behalf of All Plaintiffs. Attorney(s) appearing: M. Dru Levasseur (Levasseur, Dru)
209 MOTION ADDITIONAL FACTUAL FINDINGS by Thomas Edwards, James Greer, Roman Kaplan, MD, Rick Raemisch, Judy P Smith. (Attachments: # 1 Certificate of Service)(Sullivan, Francis)
210 ORDER Denying Motion For Additional Factual Findings 209 . (cc: all counsel) ((cef), C. N. Clevert, Jr.) (Entered: 05/07/2010)
211 REQUEST by All Plaintiffs for permission for M. Dru Levasseur to appear by telephone. (Dupuis, Laurence)
TEXT ONLY ORDER: Granting letter request 211 . Atty Levasseur is permitted to appear by telephone for the status conference set for 5/13/10 at 3:00 PM. (cc: all counsel)((cef), C. N. Clevert, Jr.)
212 MEMORANDUM DECISION. (cc: all counsel)((cef), C. N. Clevert, Jr.)
213 MINUTE ORDER. Status Conference held on 5/13/10. JOINT STATUS CONFERENCE is set for 6/17/10 at 10:00 AM in Courtroom 222. Parties are to submit a draft final judgment with language regarding the injunctive relief which is to be granted in Case No. 06−C−112. The parties stipulate to extend the deadline for filing a petition for attorneys' fees by at least 14 days from the date of the June 17th status conference. Parties agree that a decision in Fields will be binding in Gotti. To that extent, the parties are to prepare a stipulation and proposed order. (Tape #2:57:33 to 3:12:16) ((kwb), C. N. Clevert, Jr.) (Entered: 05/14/2010)
214 NOTICE OF APPEAL by All Defendants. Filing Fee PAID $455, receipt number 0757−1133907 (cc: all counsel) (Potts, Abigail)

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06/02/2010 06/02/2010 06/02/2010 06/02/2010 06/02/2010 06/03/2010 06/03/2010 06/09/2010
06/09/2010 06/09/2010 06/15/2010 06/16/2010 06/16/2010 06/16/2010 06/16/2010
06/16/2010
06/17/2010 06/17/2010 06/17/2010 06/17/2010

215 Docketing Statement by All Defendants re 214 Notice of Appeal (cc: all counsel) (Potts, Abigail)
216 CERTIFICATE OF SERVICE by All Defendants Re: E−File Doc #s 214 &215 (Potts, Abigail)
217 7th Circuit Information Sheet re: 214 Notice of Appeal (dlm)
218 Attorney Cover Letter re: 214 Notice of Appeal (Attachments: # 1 docket sheet)(dlm)
219 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 214 Notice of Appeal (dlm)
220 USCA Case Number 10−2339 Seventh Circuit re: 214 Notice of Appeal filed by Robert Humphreys, Susan Nygren, Matthew J Frank, Roman Kaplan, MD, Judy P Smith, James Greer, Thomas Edwards, Rick Raemisch. (dmm)
221 NOTICE of Appearance by Abigail CS Potts on behalf of All Defendants. Attorney(s) appearing: adding Abigail C. S. Potts to Jody J. Schmelzer and Francis X. Sullivan (Attachments: # 1 Certificate of Service)(Potts, Abigail)
222 MOTION to Amend/Correct 212 to Make Additional Findings &Submit Proposed Judgment by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion Make Additional Findings, # 2 Text of Proposed Order Proposed Terms of Judgment)(Dupuis, Laurence)
223 BRIEF in Support filed by All Plaintiffs re 222 MOTION to Amend/Correct 212 to Make Additional Findings &Submit Proposed Judgment. (Dupuis, Laurence)
224 CERTIFICATE OF SERVICE by All Plaintiffs (Dupuis, Laurence)
225 REQUEST by All Plaintiffs for Permission to Participate by Phone. (Dupuis, Laurence)
TEXT ONLY ORDER Granting Request 225 of Attorneys Knight and Levasseur to appear by telephone at the 6/17/10 conference. The court will initiate the call. ((kwb), C. N. Clevert, Jr.)
226 LETTER from Francis X Sullivan requesting to appear by telephone. (Attachments: # 1 Certificate of Service)(Sullivan, Francis)
TEXT ONLY ORDER Granting Request 226 of Attorneys Sullivan and Schmelzer to appear by telephone for the Status Conference set for 6/17/10 at 10:00 AM. ((kwb), C. N. Clevert, Jr.)
227 Joint MOTION for Attorney Fees to be Held in Abeyance by All Parties. (Attachments: # 1 Supplement Stipulation to Hold in Abeyance Proceedings Regarding Attorneys' Fees and Costs, # 2 Text of Proposed Order Entered Pursuant to Joint Motion)(Levasseur, Dru)
228 NOTICE OF CROSS APPEAL as to 131 Order on Motion to Amend/Correct, Order on Motion for Reconsideration, 102 Order on Motion to Certify Class, Order on Motion to Amend/Correct, Order on Motion to File, Order on Motion to Seal Document,,,, 90 Order on Motion to Compel, Motion Hearing, Set Deadlines/Hearings,,, 212 Order, 206 Order by Matthew Davison, Andrea Fields, Vankemah D Moaton. Filing Fee PAID $455, receipt number 0757−1140413. (Knight, John)
229 7th Circuit Information Sheet re: 228 Notice of Cross Appeal (lmt)
230 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 228 Notice of Cross Appeal (lmt)
231 Attorney Cover Letter re: 228 Notice of Cross Appeal (Attachments: # 1 Docket Sheet, # 2 settlement conference)(lmt)
232 USCA Case Number 10−2466 re: 228 Notice of Cross Appeal, filed by Matthew Davison, Vankemah D Moaton, Andrea Fields. (lmt)

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06/17/2010
06/22/2010 06/22/2010 06/25/2010 06/29/2010 07/08/2010
07/09/2010 01/06/2011 01/10/2011

233 MINUTE ORDER. Joint Status Conference held on 6/17/10. In CASE NO. 06−C−112 the court will enter an order granting the parties' joint motion to hold in abeyance proceedings re attorneys' fees and costs pending the outcome of the appeal. In CASE NO.07−C−928, plaintiffs Minx GOTTI and Darrick WALKER are DISMISSED pursuant to the representations of counsel. As to Jeffrey KNUTSEN, the remaining plaintiff, a STATUS CONFERENCE will be held on 8/30/10 at 1:30 PM in Courtroom 222. Defense counsel is granted leave to appear by telephone. (Tape #10:23:04 to 10:33:49) ((kwb), C. N. Clevert, Jr.) (Entered: 06/22/2010)
234 ORDER Granting Joint Motion to Hold in Abeyance Attorneys' Fees and Costs Pending Appeal 227 . All issues relating to an award of attorneys' fees and costs shall be held in abeyance until 30 days after the appeal of this case has been decided and the case returned to the District Court. (cc: all counsel) ((cef), C. N. Clevert, Jr.)
235 JUDGMENT signed by Deputy Clerk approved by Chief Judge Charles N Clevert, Jr on 6/22/10. It is ordered and adjudged that Wis. Stat. § 302.386(5m) is unconstitutional and invalid. See Judgment for details. (cc: all counsel)((cef), C. N. Clevert, Jr.)
236 EXHIBITS received for plaintiffs and defendants. Exhibit list filed. (Attachments: # 1 exhibit list) (bdr)
237 MOTION to Amend/Correct 212 Unopposed Motion for Entry of Order Pursuant to FRCP 52(b) by All Plaintiffs. (Dupuis, Laurence)
238 TRANSCRIPT of Joint Status Conference held on 6/17/10 before Judge Charles N. Clevert Court Reporter/Transcriber Exceptional Reporting Services, Contact at 361−949−2988. Transcripts may be purchased through the court reporter using the Transcript Order Form found here or viewed at the court public terminal. NOTICE RE REDACTION OF TRANSCRIPTS: If necessary, within 7 business days each party shall inform the Court of their intent to redact personal identifiers by filing a Notice of Intent to Redact. Please read the policy located on our website www.wied.uscourts.gov Redaction Statement due 7/29/2010. Redacted Transcript Deadline set for 8/9/2010. Release of Transcript Restriction set for 10/6/2010. (dmm)
239 ORDER Granting Motions For Additional Findings Pursuant to Fed R Civ P 52(b) 222 &237 signed by Chief Judge Charles N Clevert, Jr on 7/9/10, nunc pro tunc 6/22/10. (cc: all counsel) ((cef), C. N. Clevert, Jr.)
240 Appeal Record Request received from 7th Cir. Re: USCA Case Numbers 10−2339 and 10−2466. (lmt)
241 Certified Record on Appeal Transmitted to US Court of Appeals 10−2339 &10−2466 consisting of 1 vol pleadings in PDF format on CD, 4 vol transcripts, 1 folder of exhibits, 2 in camera materials (cc: all counsel) (Attachments: # 1 docket sheet)(dlm)