Justice Department sues Utah, saying it discriminated against incarcerated transgender woman

The lawsuit comes after the Utah Legislature passed two laws limiting transgender people from being assigned to housing units that align with their gender identity.

(Leah Hogsten | The Salt Lake Tribune) The entrance to the Dell women's housing unit at the Utah State Correctional Facility, April 7, 2023.

The U.S. Department of Justice is suing Utah over how it treated an incarcerated transgender woman, whose mental health crisis worsened to the point of self-harm as she endured delays and inadequacies in medical care.

In a letter sent to state officials less than a month ago, the Justice Department detailed instances in which a Utah prison repeatedly refused to allow the woman to purchase female clothing and cosmetics, how corrections officials treated gender dysphoria differently from other medical conditions and how those actions caused her gender dysphoria to worsen to the point “she performed dangerous self-surgery and removed her own testicles” nearly two years after entering custody.

The correspondence also warned that the federal government would take legal action unless the state, among other things, agreed to stop what it characterized as discriminatory practices against incarcerated people with gender dysphoria. Filed Tuesday, the lawsuit names the state, the Utah Department of Corrections and the Utah Department of Health and Human Services.

Corrections, which works with DHHS to provide health care to people in its prisons, declined to provide comment on the lawsuit. Instead, it directed The Salt Lake Tribune to its response to the March letter, in which Executive Director Brian Redd said the state was “blindsided” by the report, and that “we fundamentally disagree with the DOJ on key issues, and are disappointed with their approach.”

Gender dysphoria is a condition that is covered under the Americans with Disabilities Act. While being transgender is not considered a disability, some trans people experience the medical condition, which causes severe mental and emotional distress when a person’s assigned sex at birth and their gender identity don’t align. Managing the condition includes both medical care and living consistently with one’s gender identity.

While the Department of Corrections’ policy surrounding medical care is generally to “prescribe the appropriate treatment and/or therapy,” and to document denials of care while providing “sufficient medical rationale to ensure medical findings are adequate to support the denied request,” according to the complaint, it follows another policy entirely in treating gender dysphoria. That policy, AG37, is not listed among publicly available policies on the department’s website.

Incarcerated people with gender dysphoria must request a mental health evaluation, which will then be presented to a committee organized to evaluate whether to grant gender-affirming care.

Justice Department attorneys are asking that the court take several actions in response to the alleged discrimination, including that it enjoin the state and “its agencies, agents, employees, instrumentalities, successors, contractors, and all persons in active concert or participation with it” from discriminating against the inmate and others with gender dysphoria.

A ruling in the case could impact how Utah enforces two laws passed during the most recent legislative session that guide the state’s care of transgender people in its custody.

Measures in “Sex-based Designations for Privacy, Anti-bullying, and Women’s Opportunities,” more widely known as HB257, extend to correctional facilities. That law changed the legal definitions of “female” and “male” to categorize Utahns by the reproductive organs of their birth, and keep people who don’t meet those definitions — primarily transgender people — from using sex-designated spaces in government-owned or controlled buildings.

Another law, “Inmate Assignment Amendments,” has a more narrow focus on incarcerated transgender Utahns. It generally prohibits the Department of Corrections from assigning trans people to housing areas that align with their gender identity.

While transgender people can request to be assigned to a different living area, they are required to undergo an “individualized security analysis” to assess a number of factors — including their physical characteristics, whether they are sincere in expressing their identity, their social behavior and “any other factor determined to be relevant.”

Timeline of requested care

The complaint filed in Utah’s federal district court lays out a timeline of the incarcerated woman’s requests for gender-affirming care and how the state responded to those requests.

September 2021: “Shortly after” entering custody, the incarcerated woman’s medical records indicate she has “gender identity disorder issues” and say that she is seeking gender-affirming treatment, including hormone therapy. In the months after that, the complaint said she made multiple requests for treatment to address her gender dysphoria.

June 2022: The Department of Corrections provides a contracted psychologist to evaluate the woman for gender dysphoria. The psychologist diagnoses her with the condition and finds that she meets the criteria to receive hormone therapy. She subsequently continues her requests for that treatment.

January 2023: Corrections officials begin providing hormone therapy, but “did not do so safely or effectively,” according to the complaint.

May 2023: The incarcerated woman performs “dangerous self-surgery,” resulting in hospitalization and additional surgery.