Transgender Inmates’ Right to Gender Confirmation Surgery

By Marissa Luchs

The Eighth Amendment prohibits cruel and unusual punishment. It ensures that the state’s power to punish is exercised within the bounds of evolving standards of human decency. At the time of its enactment in 1791, the Eighth Amendment merely protected against torture and other physically barbarous treatments. However, as society’s standards of decency changed, so too did the scope of the Eighth Amendment. Today, among other protections, the Eighth Amendment mandates that prisons provide inmates with adequate conditions of confinement. This includes an obligation on the part of the prison to provide adequate medical care. But a great deal of controversy exists as to what exactly adequate medical care requires. In the context of transgender inmates, circuit courts are split over the necessity of providing gender confirmation surgery. While some courts believe that blanket bans on such surgery are constitutional, others prescribe a case-bycase analysis to determine the constitutionality of a prison’s denial of gender confirmation surgery. This Note explores the divergence between these two approaches and argues that a case-by-case approach better comports with both the historical confines of the Constitution and contemporary societal values.