A federal judge in Florida on Wednesday issued the most affirming judicial about transgender people I’ve ever read.
For several years, the Florida prison system denied Reiyn Keohane access to hormones and prevented her from following the that all other women are subjected to, because she is a woman who has been placed in a male facility.
Despite the fact that she was diagnosed with gender dysphoria and had been receiving hormone therapy prior to her incarceration, Florida told her she would never get access to hormones in prison. Even though she began to live publicly as her true self at age 14, years before she was incarcerated, prison officials buzzed her hair short, made her wear boxer shorts, and confiscated her women’s underpants and bras as contraband. The refusal to allow her to express her femininity caused her severe distress that resulted in several attempts at self-castration and suicide.
Under the Constitution, the state can’t be “deliberately indifferent” to the serious medical needs of prisoners. It’s a tough standard to meet, but after listening to the evidence the ACLU and ACLU of Florida put on at trial, Judge Mark E. Walker, the chief judge for the Northern District of Florida, saw a clear constitutional violation. He wrote:
And if Ms. Keohane’s treatment in Defendant’s custody isn’t deliberate indifference, then surely there is no such beast. Ultimately, this case is about whether the law, and this Court by extension, recognizes Ms. Keohane’s humanity as a transgender woman. The answer is simple. It does, and I do.
Judge Walker concluded his opinion stating “Ms. Keohane is not an animal. She is a transgender woman. Forthwith, Defendant shall treat her with the dignity the Eighth Amendment commands.”
Compassion for people in prison is so rare, those passages make me tear up.
This is one of very few decisions to hold specifically that social transitioning — the ability to live as a woman in daily life — can be part of medically necessary care for transgender people in prison, just as it is in the outside world. The judge explained:
For purposes of this order, “social transitioning” refers only to Ms. Keohane’s request for access to Defendant’s clothing and grooming standards for female inmates. To be clear, Ms. Keohane is not requesting permission to wear stiletto heels or costume jewelry while in Defendant’s custody. Instead, she’s only ever sought to be treated like any other female inmate in this state. This includes the ability to possess and wear the same bras, panties, hairstyles, and makeup items permitted in Defendant’s female facilities.
And he made clear why this is so important: “All inmates, male and female, are severely limited when it comes to self-expression. For Ms. Keohane, aside from using the appropriate pronouns, the only way she can express her gender identity in prison is by wearing women’s undergarments and grooming like a woman.”
The portion of the decision that requires the state to let Reiyn follow the women’s hair length standards is particularly important — and a legal first. This decision was issued five years to the day after Chelsea Manning came out as transgender and was told by the United States government in no uncertain terms that she would not get any treatment for her gender dysphoria while she was in prison. In Chelsea’s case, the Department of Defense, which was holding her in a military prison, ultimately treated her with hormones after we sued, but forced her to maintain male hair-length standards until her release.
The decision in Reiyn’s case shows how important — and how powerful — the judicial system can be. It can force the state to change its policies and thereby transform the lives of people like Reiyn. And it can also inspire all of us to live up to the ideals in our Constitution. Here’s hoping this decision not only creates concrete change on the ground, but that it inspires more people — in prisons and elsewhere — to open their hearts to our fellow human beings, including our transgender friends, colleagues, and community members.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.