By Howard Mintz San Jose Mercury News
SAN JOSE, Calif. — From inside California’s Mule Creek State Prison, convicted murderer Michelle-Lael Norsworthy is one of a growing number of transgender inmates around the country pushing a new civil rights fight.
The 51-year-old Norsworthy, serving a 17-years-to-life term for shooting a drug dealer to death in a Fullerton bar in 1987, has turned to the federal courts to force the California prison system to provide sex reassignment surgery to complete her decadeslong transformation into a woman.
Norsworthy’s effort has now put a federal appeals court at the center of what has become an emerging legal issue confronting prison systems nationwide: whether transgender inmates in certain circumstances are entitled to such surgery as part of a prison’s constitutional obligation to provide adequate medical care.
“I know that I am a woman trapped in a man’s body,” Norsworthy said in a deposition last December. “I know that I need (the surgery). I can never achieve any kind of normalcy without it.”
California prison leaders, backed by Attorney General Kamala Harris, are contesting Norsworthy’s bid for the surgery, as well as opposing attempts by other transgender inmates who are seeking similar court orders.
Prison officials earlier this month asked the 9th U.S. Circuit Court of Appeals to immediately block a San Francisco judge’s April ruling ordering the state to provide the surgery to Norsworthy, arguing that it is not medically necessary or required to meet a prison’s legal obligations. The appeals court has given both sides until mid-June to submit their arguments.
Meanwhile, such legal showdowns are continuing to spread. In a key case out of Massachusetts, a federal appeals court in December reversed a decision that would have forced prison officials to provide sex reassignment surgery to a transgender inmate. And the U.S. Justice Department intervened in a Georgia case earlier this year, arguing the state must treat an inmate’s gender identity like any medical or mental health condition.
In addition, the 9th Circuit in June is set to hear another key California case involving transgender inmate Philip (Mia) Rosati, a convicted murderer serving an 80-years-to-life term in a San Diego prison. Rosati tried to castrate himself because the prison refused sex reassignment surgery.
“The end game here should be that this is assessed and treated on an individualized basis, like any other medical condition,” said Daniel McCaughey, a Boston lawyer who represents a transgender health association involved in some of the cases. “I think the results are relatively predictable in the cases where the prison system imposes a blanket ban. I would not expect those to be upheld.”
Transgender advocates stress that transgender inmates are not automatically entitled to the surgery — they must prove it is medically and psychologically necessary, usually based on medical assessments and years of treatment, particularly lengthy hormone therapy that typically precedes sex reassignment procedures.
While there are no firm numbers on California inmates who would seek the surgery, there are currently 385 transgender inmates receiving hormone therapy, according to the court-ordered receiver overseeing California’s medical care facilities. The same office estimates sex reassignment surgery and related care would cost about $100,000 each.
Such cases have provided talk show fodder around the country from critics who say the government should not pay for prisoners to get what they consider a costly cosmetic procedure. California prison officials have taken a narrower approach, arguing that inmates such as Norsworthy have already received extensive medical and mental treatment for gender identity conditions, calling an order to provide surgery “remarkable.”
But transgender advocates say opposition from the prisons is simply a byproduct of a lack of understanding.
“This is a new issue for a lot of people,” said Ilona Turner, legal director of the Oakland-based Transgender Law Center. “People may not realize that this type of treatment may be lifesaving for those who need it.”
Norsworthy, court records show, has sought the surgery for years, although she had hoped by now she would have been paroled and would be able to seek it outside prison walls. The parole board has denied her six times.
At this point, it may up to judges to determine if inmates like Norsworthy can get the surgery behind bars. The judge who ordered Norsworthy’s surgery found she had provided clear evidence of medical need, including the fact her high-level hormone therapy is aggravating a serious liver condition.
The inmate once known as Jeffrey Norsworthy believes the wait for the surgery is almost as bad as the wait for parole.
“It’s like being in a prison, but the prison is a box,” she said in her deposition. “And it’s not like you have a yard. It’s just you have to stand there in a box and you have no room to move. That’s what it feels like.”
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