A federal judge has ordered the state to provide long-sought gender confirmation surgery to a transgender female inmate, which would make her the first in Wisconsin to have the procedure.
“The rights of transgender persons and sex reassignment surgery remain politically controversial, even outside the prison context,” wrote U.S. District Judge James Peterson.
“And some members of the public are outraged at any effort to improve the health and well being of inmates,” he wrote. “But the true public interest lies in alleviating needless suffering by those who are dependent on the government for their care.”
Peterson’s order followed a three-day bench trial in March in the case of Nicole Campbell. Also known as Mark Campbell, who in 2007 began serving a 34-year-sentence for sexual assault of a child.
The Department of Corrections agrees that Campbell, 49, suffers from gender dysphoria, and has made some accommodations: she has received hormone treatment, counseling and is allowed to wear some women’s clothing at Racine Correctional Institute, a men’s prison.
But it had denied her reassignment surgery, which she first sought in 2013. Not everyone with gender dysphoria wants or needs surgery for treatment, or meets the strict medical requirements to be recommended for surgery.
Peterson found that Campbell has the most severe form of gender dysphoria, in which the presence of male genitalia on her body causes particularly severe anguish.
He noted that it could take a year to schedule an appointment with the one qualified surgeon in the state, and suggested DOC could move Campbell to the main women’s prison in the meantime.
The DOC took the position that Campbell met all the criteria for gender confirmation surgery except having practiced living as a woman in “real life,” which it said was impossible while residing in a men’s prison.
Peterson said denying the surgery by summarily citing policy amounted to deliberate indifference of her serious medical needs, a violation of the Eighth Amendment.
He gave particular consideration to the testimony of Cynthia Osborne, a social worker and sex therapist who has evaluated more than 200 inmates of gender dysphoria. She concluded the ‘real life experience’ requirement before surgery may not be so important or relevant for someone like Campbell, who had experienced it before prison, has done all that she can to successfully live as a woman for several years in prison, and faces many more years of incarceration.
Peterson noted that the DOC had requested that, if Peterson ordered surgery, he first require Campbell to live for a year at Taycheedah Correctional Institution, the state’s largest women’s prison first.
“That request came as a surprise, because previously the DOC designated any inmate with a penis to a male prison, regardless of gender identity or expression,” Peterson wrote.
“I decline to impose any further prerequisites on Campbell’s sex reassignment surgery; she has waited long enough.”
That doesn’t mean surgery will happen soon though. According to Peterson’s order, there’s only one surgeon in Wisconsin qualified to perform the operation, and it could be a year before Campbell’s surgery. Ultimately, the surgeon must also agree that the procedure is necessary.
Campbell was represented for free by lawyers from Husch Blackwell, led by Tom Henegen.
Earlier in the case, the U.S. Court of Appeals for 7th Circuit had ruled that the prison officials could not have anticipated that denying Campbell the surgery might violate her rights, and therefore were immune from damages.
The same court in 2011 upheld a judge’s ruling that struck down a Wisconsin law that tried to ban even hormone treatments for transgender inmates.