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.
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.
The two remaining treatment options result in permanent and
irreversible*fn4 physical changes, and are administered under
controlled conditions after the mental
health professional has determined that the individual is
eligible and ready for such treatment. The first of these two
options is hormone therapy. Benjamin Standards, Part Three,
Section IX. In order to be eligible, the individual wishing to
undertake hormone therapy must be at least 18 years of age, must
have demonstrable knowledge of what hormones can and cannot do,
as well as their social benefits and risks, and must have either
a documented real-life experience for at least three months prior
to the administration of hormones, or a period of psychotherapy
of a duration specified by the treating mental health
professional (usually at least three months). Benjamin Standards,
Part Three, Section VIII.
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 ...