Allow Private Funding for Prisoner Gender Transitions

Matthew Cavedon

Transgender federal inmates may soon face heart disease, diabetes, and broken bones — not from violence or neglect, but from a new federal policy deliberately tapering off their hormones. More than 600 inmates currently receiving hormone treatments could be affected. Recently, the Bureau of Prisons (BOP) published a program statement that goes even further than previous guidance: it promotes the use of psychotropic drugs to manage gender dysphoria, forbids inmates from receiving sex-modification surgeries, and tapers off all access to hormones.

Tapering will be physically dangerous. Says one physician specializing in transgender medicine: “We’re going to see an increase in the risk of cardiovascular disease events,” together with bone and metabolic problems. These risks are especially high for inmates who have had sex-modification surgery and whose bodies no longer naturally produce hormones the way other people’s do. Tapering will lead to heart disease, diabetes, and broken bones—not from neglect, but because the government straightforwardly disregarded those risks in banning treatment. 

Up until recently, the Trump administration’s policies on inmate gender transitions carried a certain logic. Shortly after his second inauguration, President Trump issued an executive order rejecting “gender ideology.” Among its provisions was a direction to the Bureau of Prisons (BOP) to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.” Last summer, a federal court enjoined BOP from carrying out the order while a lawsuit challenging it is ongoing. BOP then issued the new program statement banning gender transitions outright.

Like the executive order, the new program statement has met with resistance. In a lawsuit, the ACLU is relying on the likelihood of physical injuries and psychological traumas to inmates to argue that both measures impose cruel and unusual punishment in violation of the Eighth Amendment. While the courts will have to work through that question, the Trump administration does have an appealing counterargument, especially as to inmates who have yet to start gender-transition treatments. Americans have strong moral disagreements about using drugs and surgery to carry out gender transitions, and respect for pluralism counsels against using taxpayer money to fund contentious procedures. Indeed, the Hyde Amendment reflected that principle in the abortion context for half a century: 1970s Democrats prohibited federal funding for abortions even while many defended the right to have one. They recognized that moral disagreement is a reason to avoid committing tax dollars to controversial procedures.

Breaking the logjam between transgender inmates and the Trump administration could involve a similar arrangement. This would require withdrawing BOP’s program statement, but not the president’s executive order, which simply holds that federal tax dollars will not fund gender transition treatments; it is the BOP statement that extends this prohibition to banning inmates from receiving these treatments altogether. A compromise would be to allow inmates to receive treatments funded by themselves and their supporters.

Precedent exists for inmates securing outside funding for practices the government will not pay for. In the context of religion, the Supreme Court stated in Cutter v. Wilkinson that while a prison cannot obstruct an inmate’s religious observance, it need not “pay for an inmate’s devotional accessories.” Likewise, federal courts have held that a Muslim prisoner cannot be forced to eat non-halal meat but can be required to pay for halal meat if he does not want to eat only prison-funded vegetarian meals—with help from outside donors.

A similar method could ensure inmate access to gender-transition treatment. Most states already require copays for inmate medical care, some of which family and friends help fund. BOP could establish a streamlined process for external contributions to cover gender transition treatments.

Inmate religious and gender accommodations do differ. Courts have proven skeptical about burdening inmates with more than minimal religion-associated expenses, given constitutional and statutory protections for that right, while sex-modification surgeries can be very expensive (as can hormone treatment, to a lesser degree). But inmates’ supporters and transgender mutual aid funds should be given the chance to fund these procedures even if the government won’t.

Ending federal funding of gender transitions is philosophically appealing and may prove legally justifiable. But an outright prohibition on adult inmates undergoing or even maintaining them is not. The Trump administration should withdraw BOP’s program statement and let inmates and their supporters fund gender-transition treatments with their own money.