Agreement would require access to trans health care in Washington state prisons

SEATTLE – A multiyear investigation into conditions for transgender people in prisons in Washington has led to a proposed settlement agreement with the state that advocates say is among the strongest in the country for gender-affirming medical care in state prisons.

Disability Rights Washington, the advocacy group that conducted the investigation, filed the complaint against the state and the proposed settlement agreement in federal court on Wednesday morning. The state Department of Corrections has signed off on the agreement, which a judge will still need to review and accept.

Disability Rights Washington launched its investigation into Washington state prisons in 2017 because of complaints the group says it received from transgender incarcerated people with disabilities. Based on that investigation, DRW alleges in its complaint that the state has denied transgender people gender-affirming care in prison, discouraged them from transitioning, denied or interrupted hormone therapy and subjected them to strip searches from guards of the opposite gender.

These conditions resulted in harms including stroke, suicidality and attempted self-surgery, according to the DRW complaint.

“Over the years, the suffering folks have experienced has been unimaginable,” Disability Rights Washington staff attorney Ethan Frenchman said in an interview.

The agreement, if accepted, would require that the staff of each major state prison include a mental-health care provider who specializes in gender-affirming care. The deal also mandates that the department provide a gender-affirming medical care specialist chosen from a pool of applicants approved by the state and DRW, which has already happened, according to Frenchman. Medical care inside prisons would follow standards approved by the Washington Health Care Authority’s Transhealth program, which includes the option of gender-affirming surgeries.

The agreement would also limit incidents where trans women in state prisons are searched by male guards by requiring that a sufficient number of women corrections officers trained on strip searches work at any facility housing transgender people. The deal does not cover the federal detention center in SeaTac or local jails.

The state agreed to compensate DRW $1.5 million for the investigation and negotiations, and to pay the organization $300,000 a year moving forward to track data on incarcerated trans people and monitor these changes.

“This is a landmark agreement and we look forward to continuing to work closely with DRW to implement it,” Department of Corrections Secretary Cheryl Strange said in an emailed statement. “We have already made substantial improvements to the gender-affirming care offered to transgender incarcerated individuals in recent years, and this is another step in the right direction.”

Incarcerated people have a constitutional right to be protected from “cruel and unusual punishment” under the Eighth Amendment, and in 1976, the Supreme Court ruled that this right includes protection from the failure to provide adequate medical care through “deliberate indifference.” In recent years, transgender people in prisons across the country have sued prison administrators to receive gender-affirming medical care, arguing that denying such care violates this right.

California became the first state to pay for a transgender incarcerated person’s gender-affirming surgery in 2017 and also created the country’s first state policies on gender-affirming medical care in prisons.

In 2019, a three-judge panel of the Ninth Circuit Court of Appeals ruled that the state of Idaho was required to provide gender-affirming surgery it had previously denied to a transgender person in prison. The following year, after Washington state began negotiating with DRW, a Washington incarcerated person received the state prison system’s first-ever gender-affirmation surgery, according to the Department of Corrections.

Providing the full spectrum of gender-affirming medical care in prisons, including surgical options, is “where the field is heading and ideally clinical care should be,” said Dr. Matthew Murphy, an assistant professor of medicine and behavioral sciences at Brown University who also oversees gender-affirming clinical care at the Rhode Island Department of Corrections.

Rather than following the informed-consent model of care endorsed by the World Professional Association of Transgender Health, prisons have often told trans incarcerated people that they must receive extensive psychological counseling before pursuing medical interventions for their dysphoria, Murphy said, something that might not be available in prison settings.

“It is not logically coherent to say you can make decisions about everything else, including pleading guilty to a major crime, but you can’t make an informed decision about this area of your clinical care,” Murphy said.

Ensuring access to better health care for trans people in prisons could have another important effect, according to Murphy. It will likely “reduce the potential for physical and sexual violence and potential victimization going unreported,” he said.

At least 197 transgender people are incarcerated in Washington’s state prisons, according to the Department of Corrections, or 1.5% of the state’s nearly 13,000-person prison population.

But the true number of transgender people in prisons is likely higher, Frenchman said. People in prison often hide their identity for fear of stress, discrimination and violence, he said.

“The number of people who have disclosed their trans identity has increased over time,” Frenchman said. “And I think in part that is because of efforts like the settlement agreement to affirmatively improve conditions for transgender folks in (the Department of Corrections) and help them from the risks of harm of being transgender in (the Department of Corrections).”