In the last few years, incarcerated trans people have gained significantly more access to gender-affirming medical care. In January 2017, a California woman named Shiloh Quine made history by becoming the first trans person to receive gender confirmation surgery (GCS) in a U.S. prison. Since then, courts in Oregon, Missouri, and Idaho have struck down policies that prevented trans people from accessing hormones or GCS while on the inside.
But not everyone is happy with the development. In November, Michigan state legislator Beau LaFave introduced a bill that would force incarcerated people to pay for the full cost of any transition-related surgery. The proposed legislation, HB 6524, also called for prisoners to pay for any medical care related to acts of self-harm.
HB 6524 wasn’t even passed into committee during the 2018 legislative session and it stands little chance of becoming law in 2019. But the introduction of the bill is still important, because it indicates the continuing reluctance of some Republican legislators to accept that the legal landscape is changing – that in the eyes of the medical establishment, and increasingly in the eyes of the courts, GCS is not elective and therefore must be treated as a medically necessary procedure akin to any other.
Shawn Meerkamper is a staff attorney with the Transgender Law Center, the largest trans-led civil liberties organization in the country. HB 6524 is “pretty clearly an attempt to find a loophole” to the growing legal consensus that blanket-bans on GCS are unconstitutional, Meerkamper told INTO. “This level of really singling out and targeting transgender people, and the kinds of medical care they need, I don’t think would hold up in light of day.”
The road to HB 6524 began in 2016, when a transgender woman named Jami Naturalite wrote to the Southern Poverty Law Center (SPLC) to say she was being denied hormone therapy by the Michigan Department of Corrections (MDOC). The SPLC had just finished litigating a similar case in Georgia, securing a settlement that ensured trans people locked up in the state could access hormones even if they hadn’t been prescribed them before entering prison. The Georgia settlement marked an important shift in policy on the state and national level. In a statement of interest filed in the case, the Department of Justice reminded state officials that “prison officials have the obligation to assess and treat gender dysphoria just as they would any other medical or mental health condition.”
After Naturalite reached out to the SPLC, the organization contacted Michigan prison officials to explain why blanket prohibitions on transition-related care were unconstitutional. Their entreaties were successful. In June 2017, the MDOC released a new policy for the care of transgender prisoners, which facilitated access to hormone treatment and allowed for the provision of GCS on a case-by-case basis.
Naturalite was thrilled with the news, but Republican Representative Beau LaFave, who represents a district on the northern shore of Lake Michigan, was not. With the release of the new transgender care policy, LaFave grew concerned that transition-related care, like all other medical care provided to prisoners, would be paid for by state residents. “When I found out that taxpayers could be on the hook for [GCS] procedures I had the bill drafted and introduced,” he told INTO in an email.
“I have nothing but respect for all individuals regardless of their particular life choices or personal feelings,” Representative LaFave added. “That being said, I do not believe the taxpayers of the State of Michigan should pay for felons to get free gender reassignment surgery while in prison. Law abiding citizens do not get free gender reassignment surgeries. Why should felons at the taxpayers’ expense?”
Asked to respond to LaFave’s comment, Meerkamper explained that there’s now a broad consensus among medical professionals that GCS constitutes a medically necessary treatment for some transgender people. “You cannot ‘respect’ someone while writing legislation to deny them live-saving health care,” said Meerkamper.
Jay Kaplan, the staff attorney for the American Civil Liberties Union of Michigan’s LGBT Project, stressed the constitutional concerns raised by LaFave’s bill. “Singling out a group of people to say, you’re not entitled to health care to the same extent as other inmates might be entitled to medically necessary healthcare, raises equal protection concerns,” he said. As drafted, HB 6524 would arguably also violate protections against cruel and unusual punishment, said Kaplan, since it would amount to a denial of life-saving medical care to prisoners who cannot afford to pay for surgery out of pocket.
It’s unlikely that HB 6524 will ever become law. There appeared to be little support for the legislation in last year’s legislative session, and when asked by INTO, LaFave said he had no plans to introduce the bill again. Even if it somehow did pass through both legislative chambers, HB 6524 would likely to vetoed by the newly sworn-in Democratic Governor, Gretchen Whitmer, according to advocates. LaFave first won his seat in 2016 at the age of 24 and was re-elected last year. According to the Michigan Campaign Finance Network, one of LaFave’s top donors is the DeVos family, who have previously come under criticism for making contributions to anti-LGBT groups.
While it might not pose an immediate threat to the well-being of Michigan’s trans prisoners, HB 6524 does reflect how some Republicans in the socially conservative state think about trans rights.
“This is such a flawed [bill], and obviously it’s an attack on trans people,” said the ACLU’s Kaplan. “What it’s saying is you’re not entitled to healthcare the way everybody else is.”
Michigan has lagged behind many other states when it comes to protecting transgender residents. The ACLU of MI had to sue the state to make it easier for transgender people to change their gender marker. Many residents still struggle to access transition-related care under Medicaid, said Kaplan. In Michigan and 18 other states across the country, there are no statutes in place that specifically protect people who are discriminated against on the basis of their gender identity.
“[We] have a long way to go in making things more supportive and better for trans people in the state,” said Kaplan.
For now, the question may be how to ensure that the MDOC lives up to the policy it put in place in 2017. Kaplan said he was not aware of any prisoner in Michigan who has received GCS – which may indicate that while the transgender care policy looks good on paper, it isn’t actually enabling trans prisoners to receive comprehensive care.
Before Shiloh Quine received her surgery, when she thought the California state prison administration would never approve the procedure, she tried to kill herself. For her and many other trans prisoners across the country, GCS can be lifesaving. “Whenever the state incarcerates someone, the state is taking that person’s life into their hands,” Shawn Meerkamper told INTO. “And then to take care of their needs, and their medical care is chief among them.”