Dual Prongs for the Doubly Imprisoned: Transsexual Inmates & the Eighth Amendment Right to Treatment

34 Pages Posted: 8 Sep 2007

See all articles by Matthew Stoloff

Matthew Stoloff

The Law Office of Matthew Stoloff

Date Written: August 2007

Abstract

Transsexual inmates suffer from gender identity disorder and face complex legal challenges in their efforts to obtain appropriate medical care for their condition. This paper first provides an overview of Gender Identity Disorder (GID), transsexual inmates in prison, and the various treatments available to transsexuals. Next, the historical origins and development of the Eighth Amendment are examined. The subjective and objective components of the Eighth Amendment are then analyzed within the context of transsexual inmates seeking treatment for their disorder. I explain that transsexual inmates are not always able to establish a two-prong test to show that the prison's failure to provide appropriate medical care violates the Eighth Amendment. I argue that transsexual inmates frequently face one or more extremely difficult hurdles: (1) he or she is not able to satisfy the objective component of an Eighth Amendment claim either because there is no objective criterion for diagnosing GID or because GID is not perceived by a medical expert as a serious medical need; (2) he or she is not able to satisfy the subjective component of an Eighth Amendment claim either because there is no constitutional right to a specific treatment or because failure to provide the most effective course of treatment does not implicate the Eighth Amendment; and/or (3) the fact that prison authorities have failed to provide some treatment for GID does not necessarily implicate the Eighth Amendment because the Eighth Amendment requires treatment only for serious medical needs.

Keywords: transsexual, transsexual inmate, eighth amendment, gender identity disorder, gender dysphoria

JEL Classification: K00, K10, K19

Suggested Citation

Stoloff, Matthew, Dual Prongs for the Doubly Imprisoned: Transsexual Inmates & the Eighth Amendment Right to Treatment (August 2007). Available at SSRN: https://ssrn.com/abstract=1012980 or http://dx.doi.org/10.2139/ssrn.1012980

Matthew Stoloff (Contact Author)

The Law Office of Matthew Stoloff ( email )

707 Alexander Road
Building 2, Suite 208
Princeton, NJ 08540
United States

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