by: Aaliya Mithwani
The New Bureau of Prisons Policy
In January of 2025, The White House released Executive Order 14,168: Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. This order refuses the usage of federal funding for any medical treatments “for the purpose of conforming an inmate’s appearance to that of the opposite sex”.
Following the Executive Order, the Federal Bureau of Prisons (BOP) released its own with said order and independently adopted the Management of Inmates with Gender Dysphoria policy. Under this policy, prisons across the United States are ordered to perform a complete clinical evaluation of inmates with gender dysphoria to diagnose all medical and psychiatric concerns other than gender dysphoria. These diagnoses are then supposed to be treated before addressing the inmate’s gender dysphoria, in an attempt to cure the symptoms of dysphoria without truly treating the cause. If the symptoms of gender dysphoria are still present, prison officials are instructed to treat it with psychotropic medication. The BOP explicitly bans the usage of hormone replacement therapy and gender affirming surgery to treat gender dysphoria in inmates. The goal of this policy is essentially to discontinue the diagnosis and treatment of gender dysphoria in prisons.
In addition to a blanket ban on the usage of hormone replacement therapy and gender affirming surgery, the BOP has required that trans inmates who are receiving hormones to address their gender dysphoria be put on a “tapering” plan, with the end goal of completely discontinuing the hormone treatment.
The access to gender affirming treatment being linked to a psychiatric diagnosis of gender dysphoria is problematic in itself, especially due to difficulty receiving a diagnosis in carceral settings, making the rollback of gender dysphoria diagnosis and rollback of gender affirming care for trans inmates with diagnosed gender dysphoria even more threatening.
At current, trans inmates already face barriers to accessing gender dysphoria diagnoses, and are thus denied adequate gender affirming care, or even placed on psychotropic medications that do not truly address the patient’s problems and can even exacerbate existing issues.
This sweeping ban on gender affirming healthcare for trans inmates is materially dangerous, as well as illegal under the United States Constitution.
Why is the Policy Unconstitutional?
The Management of Inmates with Gender Dysphoria policy is in violation of the Eighth Amendment protection against cruel and unusual punishment, following Supreme Court precedent and several cases across U.S. jurisdictions.
The landmark Supreme Court case Estelle v. Gamble established that the Eighth Amendment protections for inmates’ healthcare should be based in evolving standards of decency as societal standards for what is “cruel” and “unusal” are not static.
The concept of evolving standards of decency has been used in lower courts across jurisdictions to support protections for gender affirming care for trans inmates, such as the protection for hormone therapy established in Fields v. Smith in the Seventh Circuit and the protection for gender affirming surgery established in Edmo v. Corizon in the Ninth Circuit.
Additionally, courts have continuously established that when a person is incarcerated they no longer have the means to address their own medical needs, and so, as seen in the case Disability Rights Montana, Inc. v Batista, the threshold for Eighth Amendment claims can be met when an inmate with serious mental illness is at substantial risk for serious harm. Trans healthcare falls in the intersection of mental health support and physical healthcare, and it must be treated with the same amount of protection as any other healthcare and mental health support afforded to prisoners. Protecting gender affirming care in prisons isn’t special treatment, it’s equality.
These cases demonstrate that as it is medically necessary for some inmates to access gender affirming care, sweeping bans such as those seen in the new BOP policy would be considered a cruel and unusual withholding of medical care, violating the Eighth Amendment.
Why Be Concerned?
Trans people already face particular struggles in prison on the basis of identity. Transgender individuals represent one of the most marginalized groups inside of prisons, suffering high rates of harassment by peers and correctional officers, denied access to gender-appropriate housing, and denied access to both medical healthcare and mental healthcare.
Transgender people have been deemed acceptable targets by these systems. The restricted access to hormone replacement therapy and gender affirming surgery as well as the tapering off of existing hormone treatment serves to detransition and erase the identities of trans inmates. Allowing these injustices to go unchecked will undo years of progress for both the rights of all inmates and the queer community at large.
When a person’s liberties are already so restricted by the prison system and on the basis of identity, it is the duty of the government to protect essential rights, including access to healthcare provided under the Eighth Amendment.
Withholding necessary medical care within prisons goes beyond the punitive scope and enters the realm of cruel and unusual punishment, and the law must address this before more undue suffering is caused.
