Wisconsin DOC Ordered to Provide the Surgery, Too

by Matt Clarke and Chuck Sharman

In a federal court filing on January 31, 2022, the U.S. Bureau of Prisons (BOP) indicated that a transgender prisoner in Texas could be cleared for gender conforming surgery (GCS) as early as March 2022. If that happens, the prisoner, Cristian Noel “Cristina” Iglesis, 47, will become the third prisoner in the U.S. ever to undergo the procedure—unless she is beaten by another prisoner also diagnosed with severe gender dysphoria in Wisconsin, whose Department of Corrections (DOC) was ordered to provide GCS by another federal court on December 8, 2020.

That DOC prisoner, Mark A. “Nichole Rose” Campbell, now 50, won a bench trial held in March 2020 in U.S. District Court for the Western District of Wisconsin to determine whether she had a serious medical need for the surgery and, if so, whether the defendant DOC officials were deliberately indifferent to that need by repeatedly denying her requests for the procedure.

According to the testimony of DOC’s gender dysphoria consultant, Cynthia Osborne, Campbell suffers from the most severe form of gender dysphoria, anatomic gender dysphoria, which means the presence of male genitalia causes severe mental anguish that puts her at substantial risk of self-mutilation or suicide.

Based on Osborne’s recommendations after a 2012 examination, Campbell began receiving mental health treatment and hormone therapy. Osborne conducted another examination in 2014, reporting that Campbell was a good candidate for GCS, but that optimizing hormone therapy should be attempted first. This was done, yet two years later, Campbell was still being denied surgery because it was against DOC policy.

The defendants contested whether the Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People published by the World Professional Association of Transgender Health (WPATH) should be used to determine the medical necessity of GCS.

But the Court noted that Osborne uses the standards and DOC itself purports to follow them. It further found that those standards “represented the consensus of qualified medical professionals regarding the appropriateness of various treatments for gender dysphoria, including sex reassignment surgery.”

The central issue raised by DOC was whether it was possible for a person to live one year in the gender role of a female—a WPATH standard requirement—while incarcerated in a male prison. But prison officials also had concerns that prevented Campbell from being transferred to a female prison before the operation.

Swatting away that Catch-22, the Court noted Osborne’s testimony that the requirement of a year of “real-life experience was a common-sense practice based more on tradition than any science.” In a scholarly article she published, Osborne contended it was possible for a trans-woman to live in a woman’s gender role within a male prison. The Court then determined that neither issue precluded the surgery.

It also found that, for the severe unremitting anatomical gender dysphoria from which Campbell suffers, GCS is the only effective treatment. There was no question that, at least since Osborne’s 2014 report, defendants were aware of this. Nonetheless, they continued to deny Campbell’s requests because “DOC policy flatly prohibited sex reassignment surgery.” Therefore, the Court found that defendants were deliberately indifferent to Campbell’s serious medical needs in violation of her Eighth Amendment rights.

A previous appellate court decision in the case had already granted defendants qualified immunity, so damages were not at issue. The court said it would issue an injunction, ordering defendants to have Campbell assessed for and provided GCS, though not breast augmentation, voice therapy or electrolysis, since Campbell presented no expert testimony as to those procedures. Campbell was represented by Madison attorneys Iana Vladimirova, Joseph S. Dedrich, Natalia S. Kruse, and Thomas Patrick Heneghan of Hush Blackwell. See: Campbell v. Kallas, 2020 U.S. Dist. LEXIS 230117 (W.D. Wis.).

“Self-castration or Suicide
Is Always There”

Iglesias, the BOP prisoner, had an even older diagnosis of gender dysphoria, dating back to 1994. After filing her suit pro se in U.S. District Court for the Southern District of Illinois, the state where she was then incarcerated, her complaint survived a preliminary screening in 2019. See: Iglesias v. True, 403 F. Supp. 3d 680 (S.D. Ill. 2019).

Iglesias was then appointed counsel, who filed an amended complaint that also survived the Court’s preliminary screening review. See: Iglesias v. Fed. Bureau of Prisons, 2020 U.S. Dist. LEXIS 201281 (S.D. Ill.).

Iglesias next filed for a preliminary injunction (PI) on April 19, 2021, seeking to force BOP to provide GCS and reassign her to a women’s prison, where she would be safe from the repeated attacks she had endured during two decades of intermittent incarceration in BOP facilities for men. Thirteen days later, on May 2, 2021, BOP transferred her to the Federal Medical Center at Carswell, Texas, which is a female facility.

Taking up the PI motion, the Court noted that BOP relied heavily on Campbell v. Kallas, 936 F.3d 536 (7th Cir. 2019), which held there was no deliberate indifference to a prisoner’s medical needs so long as some treatment was provided, such as hormone therapy in Iglesias’ case. Yet in that same ruling, the Court noted, the Seventh Circuit also held that “[d]enying a specific therapy in a particular case might amount to a constitutional violation.”

Moreover, the Court said, BOP had stonewalled Iglesias’ requests for surgery, hormone therapy and even reassignment to a women’s prison for years, during which time the prisoner made 12 suicide attempts. Iglesias herself testified that should GCS not happen, “self-castration or suicide is always there.” Testimony was also taken from an expert witness for Iglesias, Dr. Randi Ettner, immediate past president of WPATH, who said that Iglesias had met the organization’s criteria for recommending surgery by:

• having a well-documented diagnosis of gender dysphoria;

• being on hormones for years;

• living in her role for more than 12 months and being above the age of majority; and

• having any medical or mental health issues well controlled.

As a result, the Court said Iglesias’ complaint was likely to succeed on its merits, clearing the hurdle to obtain a PI. It ordered BOP to show cause by January 24, 2022, why it should not grant Iglesias’ request for surgery. See: Iglesias v. Fed. Bureau of Prisons, 2021 U.S. Dist. LEXIS 245517 (S.D. Ill.).

The deadline came and went, with no word from BOP, leading Iglesias and her attorneys— Josh Blecher-Cohen with the ACLU of Illinois, Angela M. Povolish of the Carbondale firm of Feirich Mager Green Ryan, Taylor Brown of the ACLU, as well as Katherine D. Hundt, Courtney Block, Frank Battaglia and Kevin Warner of the Chicago firm of Winston & Strawn LLP—to conclude that the agency was going to deny it.

That’s when BOP abruptly shared the recommendation of its Transgender Executive Council (TEC) that Iglesias receive GCS before her scheduled release at the end of 2022. U.S. Attorneys defending the agency said that “assuming [Iglesias] does not engage in behavior that would prevent her from continued placement in a female facility and assuming further that no other reasons develop that would make gender confirmation surgery inappropriate, the TEC does expect plaintiff to be referred to a surgeon at the appropriate time.”

Unsurprisingly, perhaps, the use of public funds to provide sex reassignment surgery has provided red meat to some conservative news sites, especially in the case of Campbell, who is serving a 34-year sentence earned in 2007 for a conviction on a First Degree Sexual Assault charge involving her 10-year-old daughter. It could reportedly take up to a year for her to be assessed for surgery because Wisconsin has only one surgeon performing the procedure.

Two other prisoners have already received GCS: Shiloh Heavenly Quine in California in 2017 and Adree Edmo in Idaho in July 2020.  

Additional sources: Christian Post, The Hill, Idaho State Journal, Los Angeles Times, Cannon Falls Republican Eagle

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