Karlan and four other Department of Justice staff wrote a statement of interest in Diamond v. Ward stating that it is the position of the federal government that a prison's failure to provide sex reassignment surgery or hormones to a prisoner that wants them amounts to "cruel and unusual punishment" under the Eighth Amendment.
In a case ongoing in the US District Court for the Middle District of Georgia, transgender inmate Ashley Diamond at Coastal State Prison is suing the Commissioner of the Georgia Department of Corrections (GDC), Timothy C. Ward, over alleged mistreatment while in GDC custody in a case named Diamond v. Ward. The Department of Justice authored a Statement of Interest in this case in April 2021, which was signed by Pamela Karlan, as well as the US Attorney for the Middle District of Georgia and three other DOJ staff. While it is important to note that Karlan, et al. did not take “a position on questions of fact” in the case, the Statement does take the opportunity to inject transgender ideology into prisons on behalf of the DOJ.
The Statement stated affirmatively that “prison officials violate the Constitution” if they do not house prisoners according to their gender identity or provide individualized medical care for “treatment of gender dysphoria”: [1]
…Prison officials violate the Constitution by (1) categorically refusing to assign transgender prisoners to housing that corresponds to their gender identity even if an individualized risk assessment indicates that doing so is necessary to mitigate a substantial risk of serious harm, and (2) failing to individualize the medical care of transgender prisoners for the treatment of gender dysphoria…
The Statement went on to elaborate that “categorical refusals to transfer transgender prisoners to housing that corresponds to their gender identity…violate the Eighth Amendment’s prohibition on cruel and unusual punishment”:
…In recognition of the particular dangers facing transgender prisoners, the PREA standards not only require prison officials to conduct individualized risk assessments of transgender prisoners to determine their risk of being sexually victimized but specifically allow for placements in housing that corresponds to their gender identity. The failure to conduct individualized assessments that carefully consider the housing placements of transgender prisoners and take steps to mitigate their risk of sexual victimization, up to and including placement in a facility that matches their gender identity if necessary to provide reasonable safety, is contrary to evolving standards of decency. See Crawford, 796 F.3d at 260.8 For these reasons, categorical refusals to transfer transgender prisoners to housing that corresponds to their gender identity without due consideration of the risks identified by screenings and assessments violate the Eighth Amendment’s prohibition on cruel and unusual punishment. And a failure to ever house transgender prisoners in housing that corresponds to their gender identity suggests that the requisite screening and assessments are either not taking place or are so inadequate as to be entirely ineffective…
The Statement then claimed what the “appropriate treatments for gender dysphoria” are, including hormone therapy, hair removal, laser treatment, waxing, and surgery:
…9. Appropriate treatments for gender dysphoria may include but are not limited to: changes in gender expression and role; hormone therapy; hair removal through electrolysis,10 laser treatment, or waxing; surgery; and psychotherapy. Id. at 9-10. The Standards of Care also provide specific guidance on the administration and management of hormone therapy. According to the Standards, hormone therapy “must be individualized,” managed by medical professionals, and “the dose, route of administration, and medications used, [] are selected in accordance with the patient’s goals.” Id. at 33, 38, 41. The Standards further caution that the administration of hormones must be followed by “ongoing medical monitoring, including regular physical and laboratory examination to monitor hormone effectiveness and side effects.” Id. at 42, 46.
Courts have recognized a wide range of interventions that have been deemed by the Standards of Care and qualified professionals as medically necessary to treat gender dysphoria, depending on the individual needs of the prisoner. These treatments have included gender expression allowances such as permanent hair removal, undergarments consistent with a prisoner’s gender identity, pronouns corresponding to a prisoner’s gender identity; and surgery, based on the circumstances of the individual prisoner…
…
… Critically, prison officials are not free to pick and choose arbitrarily which medical treatments they provide to transgender inmates with gender dysphoria, particularly when doing so diminishes the effectiveness of treatment or results in pain or injury…
Pamela Karlan and her co-authors wrote on behalf of the US Government that prisons should be a free-for-all. If male prisoners that think they are transgender women want to go to women’s prisons, Pamela Karlan thinks they should be accommodated. If male prisoners that think they are transgender women want sex reassignment surgery, hormone treatment, laser hair removal and waxing…Pamela Karlan thinks taxpayers should pay for it, as failing to provide transgender inmates “with adequate medical care” “amounts to cruel and unusual punishment under the Eight Amendment.” Simply put, Pamela Karlan is advocating on behalf of the US Government for radical transgender ideology to be implemented in prisons.
Sources:
[1] Department of Justice, Diamond v. Ward, Statement of Interest filed in US District Court for the Middle District of Georgia” on April 22, 2021.