The Honorable Joan B. Gottschall, United States District



Judge for the Northern District of Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-2339 & 10-2466

ANDREA FIELDS, et al.,

Plaintiffs-Appellees,

Cross-Appellants,

v.

JUDY P. SMITH, et al.,

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
2 Nos. 10-2339 & 10-2466

A group of medical and mental health professionals sought 1

leave from the court to submit a brief as amici curiae. The

motion is granted.

Wisconsin Department of Corrections (“DOC”) from

providing transgender inmates with certain medical

treatments. The Inmate Sex Change Prevention Act 1

(“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
Nos. 10-2339 & 10-2466 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-
4 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.
Nos. 10-2339 & 10-2466 5

Defendants began reducing plaintiffs’ hormone levels on 2

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.

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
6 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
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
8 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.
Nos. 10-2339 & 10-2466 9

Plaintiff Moaton, for example, experienced suicidal ideation 3

after DOC officials began withdrawing hormone treatments.

Fields, 712 F. Supp. 2d at 835.

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. Fields, 712 F. Supp. 2d at 863. In fact, at 3

oral argument before this court, counsel for defendants

disclaimed any argument that Act 105 is justified by cost
10 Nos. 10-2339 & 10-2466

savings. See Oral Argument at 15:18, Field v. Smith, Nos. 10-

2339 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
Nos. 10-2339 & 10-2466 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
12 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
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
14 Nos. 10-2339 & 10-2466

The PLRA provides, in part: 4

Prospective relief in any civil action with respect to prison

conditions shall extend no further than necessary to correct

(continued...)

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, 321-

22 (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. They argue that 4
Nos. 10-2339 & 10-2466 15

(...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).

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
16 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
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-
18 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.
Nos. 10-2339 & 10-2466 19

III

The judgment of the district court is affirmed.

8-5-11