Prison Violates Serial Child Molester’s Constitutional Rights by Denying Sex-Change Surgery

The state prison system where a convicted serial child molester is serving a 40-year sentence for sexually abusing multiple kids over a decade is violating the felon’s Constitutional rights by refusing to provide him with costly genital surgery to treat his gender dysphoria, a federal judge has determined. The transgender inmate, Emalee Wagoner, was arrested in 2011 and charged with 50 counts of sexually abusing several children, including his stepchildren, biological daughter, and the daughter of a family friend throughout a 10-year period. He threatened to kill his underage victims if they told anyone about the pervasive abuse, official court documents reveal. In 2015 Wagoner pled guilty and was sentenced to 60 years in prison with 20 years suspended.

At some point during his incarceration in Alaska the child molester began identifying as a woman and a few years ago started undergoing hormone therapy. He was subsequently diagnosed with gender dysphoria, a condition in which people reportedly experience distress because their gender identity differs from their biological sex. Alaska has a policy of locking up convicts based on sex assigned at birth, so Wagoner is serving time at a medium-security men’s prison called Goose Creek Correctional Center in Wasilla about 40 miles north of Anchorage. For several years the convicted child predator has been trying to get the Alaska Department of Corrections (DOC) to provide him with gender-affirming surgery to become a woman, but the state has refused after the DOC medical advisory committee determined there was insufficient evidence to affirm the inmate’s mental health and well-being will decline without the procedure.

Wagoner’s attorney, who works for a nonprofit dedicated to promoting and litigating on behalf of LGBTQ+ rights, says gender-affirming surgery should be considered at the same level as cancer treatment so that if a prisoner needs it, they can immediately get it. According to court documents, Wagoner started to “socially transition” while in prison in 2016, changing his external presentation by growing out his hair, changing his name, wearing makeup and otherwise presenting as female to the extent possible. The Alaska DOC subsequently confirmed the diagnosis of gender dysphoria and shortly later Wagoner tried to perform a “penile inversion surgery to create a neo-vagina on herself.” The child sexual predator continues to crush his testicles, the legal filing reveals, and receives women’s deodorant and cosmetics, feminine hair accessories, and styling instruments as well as women’s undergarments. State officials have clearly made efforts to accommodate the transgender inmate but drew the line at surgery, so he sued the prison system.

Since gender dysphoria is a serious medical condition, sex-change surgery for certain inmates like Wagoner is a medically necessary treatment, according to the recently issued court order, and denying it violates the Eighth Amendment right to medically necessary care while in custody. Failure to provide adequate medical care to incarcerated people constitutes cruel and unusual punishment, the judge writes. “The Court is unpersuaded by Defendant’s argument that Plaintiff has done relatively well in custody, indicating that her gender dysphoria is not severe,” the ruling states. “While Plaintiff appears to have an active social life and has more or less socially transitioned from male to female, gender dysphoria is a mental health disorder that makes a person unreasonably distressed due to their biological gender not aligning with their gender identity, irrespective of their environment.” The Alaska DOC’s decision to provide hormone therapy does not satisfy its obligations to Wagoner when evidence shows that he continues to suffer from gender dysphoria, the judge writes in the 47-page opinion.

It is not the first time a federal court determines that denying a sex-change operation violates the Constitution. Last year an Obama-appointed judge ruled that the U.S. military’s health insurance plan is discriminatory and violates Equal Protection rights under the Fifth Amendment of the U.S. Constitution by failing to cover gender transition surgeries. The ruling was issued after two transgender women sued the Department of Defense (DOD) and its Tricare Health Plan over a provision that bans surgical coverage of procedures that improve physical appearance without a significant restoration of functions, including “sex gender changes.” The biological males, who want to be female, claim in their lawsuit that denying coverage of medically necessary gender transition surgeries violates their Constitutional Equal Protection rights, a guarantee that requires the government “to treat alike all persons similarly situated.”

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