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September 28, 1999


The opinion of the court was delivered by: Kessler, District Judge.


Plaintiff Dee Deidre Farmer is an inmate at the federal correctional institute in Butner, North Carolina ("FCI-Butner"). Farmer is a pre-operative male-to-female transsexual suffering from gender dysphoria (or gender identity disorder), a medically recognized psychological disorder.*fn1 She brings this action to challenge the constitutionality of a Bureau of Prisons ("BOP") policy regarding the medical treatment of transsexuals.

This matter is now before the Court on Defendants' Renewed Motion to Dismiss or, in the Alternative, for Summary Judgment [# 111]. Having considered Defendants' Motion, Plaintiff's Opposition, Defendants' Reply, and the entire record herein, for the reasons set out below, Defendants' Motion is hereby granted.

I. Background*fn2

Plaintiff is a transsexual suffering from AIDS who has been incarcerated in the federal prison system since 1986. She claims that the BOP has failed to treat her transsexualism. The underlying facts in this action are explained in greater detail in this Court's Memorandum Opinion of January 22, 1998. This Memorandum Opinion focuses on the narrower issue of whether the BOP's policy regarding the treatment of transsexual prisoners violates the Equal Protection Clause of the Fifth Amendment to the U.S. Constitution.

In response to this Court's Memorandum Opinion of January 22, 1998, both parties submitted declarations of experts in the field of gender identity disorders. Defendants' expert is Dr. Gregory K. Lehne, Ph.D., a licensed psychologist in Maryland and Associate Professor of Medical Psychology at the Johns Hopkins University School of Medicine. Decl. of Lehne at 1. He has evaluated and/or treated more than 50 individuals with gender identity disorders, and has written several professional publications on this topic. Second Decl. of Lehne at 1.

Plaintiff's expert is Dr. George R. Brown, M.D., a board-certified psychiatrist, who is Professor of Psychiatry and Chairman of the Department of Psychiatry at East Tennessee State University. Decl. of Brown at 1. He has written extensively on the topic of gender identity disorder, and has evaluated and/or treated approximately 300 patients with gender identity disorder; he has also evaluated or interviewed approximately 500 additional individuals who are transgendered. Id. at 2. Dr. Brown is a member of the only international organization that addresses the evaluation and treatment of individuals with gender identity disorders, the Harry Benjamin International Gender Dysphoria Association. Id. at 1.

The following facts about gender identity disorder are adopted from the declarations of these two experts, as well as the Standards of Care established by the Harry Benjamin International Gender Dysphoria Association ("Benjamin Standards").*fn3 Only undisputed facts are presented, unless otherwise noted.

Gender identity disorder is most simply described as an individual's confusion or discomfort about his or her sexual status as a biological male or female. Diagnosis of gender identity disorder is difficult and takes time, because it requires differentiating between individuals who are homosexual or transvestite, and those who are truly suffering from gender identity disorder. A further complication concern is the fact that, because at its core gender identity disorder involves confusion about one's status as a member of a particular sex, such confusion can lead to spontaneous changes in desires. Additionally, it is not uncommon for individuals with gender identity disorder to become depressed, have suicidal ideation, or attempt autocastration. All these factors make diagnosing and treating individuals with gender identity disorder difficult and time-consuming. For the same reasons, an individual's self-reporting of their desires is only one consideration among many when choosing among treatment options.

The basic approach to the treatment of individuals with gender identity disorder is outlined in the Benjamin Standards. Under the Benjamin Standards, mental health professionals play a critical role in treatment; they perform the necessary functions of diagnosing an individual's gender disorder, counseling the individual about his or her treatment options, providing psychotherapy, determining the individual's eligibility and readiness for hormonal or surgical therapy, and taking all necessary steps, including follow-up care, should the individual elect to go forward with hormonal or surgical therapy. Benjamin Standards, Part Three, Section III (1998).

The mental health professional has many treatment options for individuals with gender identity disorder. One approach is psychotherapy. Although it is not a requirement for further treatment, psychotherapy plays an important role in helping an individual with gender identity disorder develop realistic expectations about his or her work and relationships, create a long-term stable lifestyle, find a comfortable way to live with his or her disorder, and prepare him or her for further treatment. Benjamin Standards, Part Three, Section VI (1998). Another treatment option is called the "real-life experience," which consists of living in the desired gender as a step toward further treatment. Benjamin Standards, Part Three, Section VII (1998). This includes cross-dressing in the desired gender, removal of facial or body hair for males desiring to become females, and living as a member of the opposite sex part-time, progressing to full-time. This treatment option, if successful, gives confidence and reassurance to both the mental health professional and the patient that further treatment can or should be attempted. If unsuccessful, this treatment option allows the individual to reassess his or her desires without the permanent, irreversible physical changes brought about by further treatment.

An individual's readiness for hormone therapy is determined by three additional criteria: further consolidation of gender identity, either through real-life experience or psychotherapy; progress in mastering identified problems leading to improving or continuing stable mental health; and indication that the individual will take the hormones in a responsible manner. Once an individual is determined eligible and ready for hormone therapy, hormones are administered. Id.

Biological males undergoing hormone therapy can realistically expect breast growth and increase in nipple size, redistribution of body fat to approximate female proportions, decrease in upper body strength, softening of skin, decrease in body hair, slowing or stopping of scalp hair loss, decrease in fertility and testicular size, and less frequent and less firm erections.

The final and most drastic treatment option is sex reassignment surgery. Benjamin Standards, Part Three, Section XI (1998). To be eligible for such surgery, the individual must meet the following criteria: be of legal age of majority in that individual's nation of residence; have had twelve months of hormonal therapy without a medical contraindication; have had twelve months of successful continuous full-time real-life experience; have had regular responsible participation in psychotherapy throughout the real-life experience, if required by the mental health professional; have demonstrable knowledge of the cost, hospitalization time, likely complications, and rehabilitation requirements; and have awareness of different competent surgeons. Benjamin Standards, Part Three, Section X (1998). To be determined ready for surgery, the individual must additionally demonstrate progress in consolidating the evolving gender identity, as well as progress dealing with various interpersonal relationships in a significantly better state of mental health. Id.

In the instant case, these treatment options must be considered in light of the fact that Plaintiff is incarcerated, and her treatment will thus differ from the treatment of an individual who is not incarcerated. The most obvious difference is that because prison is very unlike "real-life", an incarcerated patient will not have "real-life experience" as a treatment option. Though real-life experience is not currently ...

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