By Alex Acquisto
Lexington Herald-Leader
LEXINGTON, Ky. — A transgender woman incarcerated in Kentucky is suing the state’s Department of Corrections for revoking her access to hormone replacement therapy under a new law.
The Republican-controlled Kentucky General Assembly passed Senate Bill 2 in March, which blocks the DOC from prescribing or dispensing gender-affirming medication or providing gender-affirming surgeries to trans adults incarcerated in Kentucky’s prisons.
The American Civil Liberties Union of Kentucky filed a class action lawsuit Monday on behalf of Maddilyn Marcum, who is incarcerated at Northpoint Training Center in Boyle County. Both argue in the 19-page filing that the new law is unconstitutional because it violates trans inmates’ 8th Amendment rights by subjecting them to cruel and unusual punishment, as well as their Equal Protection rights under the 14th Amendment.
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The ACLU and Marcum are only challenging the ban on gender-affirming medication, not the portion of the law that outlaws department funding of gender-reassignment surgeries. They’re also suing Appalachian Regional Healthcare for complying with the current law and, by extension, denying individuals like Marcum “medically necessary care for an objectively serious medical need,” according to the lawsuit.
Marcum, 36, was first diagnosed with gender dysphoria in 2009. Gender dysphoria, the clinical name for being transgender, is when a person experiences conflict between the sex they were assigned at birth and the gender they most emotionally and intellectually identify with.
For five years prior to her incarceration, Marcum received hormone therapy from a licensed medical provider. After she was convicted of murder by a jury in 2015 and sentenced to 40 years in prison, the Department of Corrections agreed in 2016 to continue prescribing her hormone therapy, since it was recommended by a health care provider and in keeping with federal guidelines.
Legal counsel with the department testified under oath in January before a Government Contract Review Committee that gender-affirming surgeries have never occurred in jails or prisons in Kentucky . The department does, however, provide gender-affirming medication to its transgender population when it is doctor recommended, just as the department does with other prescription medications.
Passage of Senate Bill 2, which became law in late June, blocks that access in perpetuity.
“While in custody of the DOC, (Marcum) has received HRT (hormone replacement therapy) for several years under care of licensed medical providers to treat her diagnosis of gender dysphoria,” the filing reads. Marcum “will now be denied that medical treatment” because of the new law.
The lawsuit names two providers within the Appalachian Regional Healthcare system that have prescribed Marcum hormone replacement therapy since she’s been in prison. Her prescription will be reduced by half starting in August and fully ended in November.
“People who are incarcerated are already serving the sentence they received, but that sentence does not include, nor does the Constitution permit, that they also be denied adequate healthcare simply because politicians disagree with the treatment that the medical community recognizes as appropriate and that medical providers have prescribed,” said ACLU Senior Staff Attorney William Sharp .
Senate Majority Whip Mike Wilson of Bowling Green , lead sponsor of the bill, said repeatedly during the legislative session that this type of health care is “elective,” meaning not medically necessary. Similarly, the wording of the new law refers to gender-affirming care as a “cosmetic service or elective procedure.”
But major medical associations, including the American Medical Association and the American Psychological Association , have said it’s “medically necessary” and have warned that increasing barriers for trans people to access that type of care is harmful.
“The standard of care in treating gender dysphoria aims to resolve the distress associated with the incongruence between a transgender person’s designated sex at birth and their gender identity by enabling the individual to live consistently with their gender identity,” the lawsuit said.
Marcum, along with “66 other current (trans) prisoners, are being or will soon be denied access to that gender-affirming care as a result of Senate Bill 2,” the ACLU said in a statement Monday afternoon.
Though there are currently 67 trans adults incarcerated across Kentucky , the class-action suit applies to “all current and future individuals in custody of the Kentucky Department of Corrections ... who are either diagnosed with gender dysphoria or who meet the criteria for a gender dysphoria diagnosis,” according the suit, which was filed in the U.S. District Court for the Eastern District of Kentucky .
“Untreated Gender Dysphoria creates a substantial risk of severe physical and psychological harm to the individual, which I have personally suffered from in my life,” Marcum said in a statement. “This case is not about a lifestyle choice, it is about ensuring that I and others receive medically accepted, appropriate healthcare for a diagnosed condition.”
Republican Attorney General Russell Coleman said late last year the Department of Corrections was not obligated to pay for trans inmates’ gender-reassignment surgeries, after DOC Commissioner Cookie Crews asked for clarification about how the state should proceed under new federal guidelines.
After the lawsuit was filed Monday, Coleman said, “Our General Assembly has said Kentucky taxpayers don’t need to pay for sex changes for convicted murderers. We’ll go to court to defend the law.”
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