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Cristina Nichole Iglesias was supposed to be the first. Last June, the American Civil Liberties Union of Illinois announced that the federal government would finally make good on something it had been legally required to do for years: provide gender-affirming surgery to a transgender person in federal prison.
Iglesias won what advocates hailed as a landmark settlement against the Bureau of Prisons after decades of being denied health care for her gender dysphoria.
“We hope this victory will pave the way for other transgender people in federal custody to get the care they need,” Joshua Blecher-Cohen, an ACLU of Illinois staff attorney who represented Iglesias, said in a statement at the time.
But nine months later, Iglesias is still waiting for her surgery, scheduled for this spring. In the meantime, another transgender woman in federal prison has received that care. President Joe Biden’s administration won’t say if the two cases mark a change in policy for the federal government, which has long denied transition-related surgeries to detainees even after publicly announcing broader accessibility. State prisons and jails are also required to follow federal guidelines for detaining transgender people, but many states have neglected to enforce the policies.
Donna Langan, a transgender woman incarcerated in a federal prison in Texas, became the first federal prisoner to receive gender-affirming surgery in December 2022, according to her lawyer Moira Meltzer-Cohen.
“Ms. Langan is not alone in enduring decades of anguish resulting from the Federal Bureau of Prisons’ functionally blanket denial of this medically necessary, life-saving care,” Meltzer-Cohen said in a statement.
According to Meltzer-Cohen, it took 16 years of requests before the Bureau of Prisons allowed Langan to have hormone replacement therapy in 2012. In 2016, she was transferred to a women’s prison and spent four years petitioning for gender-affirming surgery.
Federal law requires that state and federal prisons place transgender people on a case-by-case basis, taking into account where each detainee feels they will be safest.
LGBTQ+ legal scholars, backed by major medical associations, have argued denying treatment for gender dysphoria amounts to cruel and unusual punishment.
However, prisons have largely denied transgender people affirming housing and medical care.
“Implementation of these good, well-intended efforts is abysmal at best,” said Julie Abbate, who worked for 15 years in the civil rights division of the Department of Justice and who is now the national advocacy director for Just Detention International, an organization that seeks to end sexual abuse for people in detention. “There are really amazing professionals in the BOP who are dedicated to providing the services that are required by the population that they lock up. And chaos ensues nonetheless in the implementation.”
Before taking office, Biden promised reform. His campaign website promised to “ensure all transgender inmates in federal correctional facilities have access to appropriate doctors and medical care —including OBGYNs and hormone therapy.”
Biden noted that when he was vice president, the Obama administration had “issued a Transgender Offender Manual, requiring gender identity be considered when making housing assignments.”
That manual was rolled back during Donald Trump’s presidency, but Biden reinstated it last year. The latest version of the manual says that surgery for incarcerated transgender people is “generally considered only after one year of clear conduct and compliance with mental health, medical, and programming services at the gender-affirming facility.”
Requiring a minimum one-year waiting period before providing gender-affirming care is common both in and out of correctional facilities, Olivia Hunt, the policy director for the National Center for Transgender Equality, told The 19th.
“It’s unfortunate, but it’s a common kind of requirement that you hear in almost every circumstance, whether it be a surgeon who will not consider transition-related care until a person has ‘lived in their affirmed gender for a year,’ or an insurance company that won’t cover transition-related surgery unless a patient has been receiving hormone therapy for a year,” Hunt said.
Mandating a waiting period can make the transition process more difficult from an emotional and safety standpoint, particularly in prison, where a transgender woman might be transferred to a woman’s facility before she has obtained her necessary medical care.
According to the BOP manual, after one year a person interested in surgery can submit a request to their warden for surgical consideration.
The request is then supposed to be passed on to the bureau’s Transgender Executive Council, which assesses whether the criteria for surgical consideration have been met. After TEC, the case is then given to the agency’s medical director to determine “whether surgery is medically appropriate for referral to a gender-affirming surgeon.” But the timeline of this process and the specific reasoning behind why a surgery request might be denied remains unclear.
The Biden administration has signaled support for gender-affirming care behind bars outside of the manual. In 2021, the Department of Justice filed a statement of interest in support of Ashley Diamond, a transgender woman incarcerated in a Georgia state prison at the time, who sued twice for access to gender-affirming care.
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But the administration will not confirm that BOP has provided the first gender-affirming surgery, nor whether it will shift to providing broader access to surgery in the future.
Randilee Giamusso, a spokesperson for the Bureau of Prisons, declined an interview and cited the Transgender Offender Manual when asked to confirm that Langan was the first transgender person in BOP custody to receive surgery. Tom Shea, a spokesperson for the Department of Justice, likewise declined to comment.
When asked whether the administration has moved to make gender-affirming care more accessible, Kevin Munoz, assistant White House press secretary, sent The 19th its own article about the Transgender Offender Manual being reinstated last year. Munoz did not respond after reporters pointed out that the manual dated back to the Obama administration but had not previously prompted the federal government to grant gender-affirming surgeries.
Advocacy groups told The 19th that Langan’s surgery is a big moment in the years-long effort to secure medical care for transgender people in prisons. However, her case highlights how major action from the BOP in providing surgical procedures has come only after lawsuits, said Amy Whelan, a senior staff attorney at the National Center for Lesbian Rights.
“I wish that the BOP didn’t have to be sued to make this progress, but you’ll notice that Donna Langan and Cristina Iglesias both had active lawsuits. And the BOP hasn’t provided surgery, as far as I know, to somebody who doesn’t have a lawsuit,” Whelan said.
Major medical groups and researchers deem gender-affirming care, which includes surgery, to be medically necessary, and the BOP’s readoption of the Transgender Offender Manual last year signals the Biden administration’s recognition of this.
But gender-affirming care is “absolutely not” being treated on the same level as other medical needs, Abbate said. “Because if [Donna Langan] is the first time a transgender person in BOP custody has received the gender-affirming surgery that they need, then they’re not being treated the same as other folks.”