AG Ford: Transgender inmate case could force changes in Nevada prisons

Tue, Nov 26, 2019 (2 a.m.)

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Nevada Attorney General-elect Aaron Ford speaks to the press regarding the upcoming transition of office from Adam Laxalt, Monday Dec. 17, 2018.

Nevada must comply with a recent federal appeals court ruling that mandates that the Idaho Department of Corrections pay for a transgender inmate’s gender confirmation surgery, so long as the ruling isn’t overturned by a higher court, Attorney General Aaron Ford said at the Nevada Board of Prison Commissioners meeting Monday.

The 9th U.S. Circuit Court of Appeals upheld in August an earlier ruling requiring Idaho to provide inmate Adree Edmo with gender confirmation surgery, a procedure that alters an individual’s sexual characteristics to reflect their gender identity. Edmo, a transgender woman who suffers from gender dysphoria, had requested the surgery and attempted self-castration twice while in prison. Denying her surgery constitutes cruel and unusual punishment, the court determined.

Although the ruling only concerned Edmo’s particular case, it could set a precedent for similar cases in Idaho and other states under the jurisdiction of the 9th Circuit, such as Nevada. Even if the Nevada Department of Corrections does not agree with the ruling, officials will need to respect it, Ford said.

“On controversial issues where reasonable minds may disagree, agencies such as myself at the Attorney General’s Office don’t get to make the final decision on whether something is constitutional or not. The courts get to decide that,” Ford said. “At this point, it sounds as though the 9th Circuit has made the determination for this circuit.”

Ford’s statement came in response to a presentation from Holly Wellborn, policy director of the ACLU of Nevada, about the organization’s policy priorities for the Nevada Department of Corrections. The ACLU has lobbied for years to change the department’s transgender inmate policy, particularly because the policy only grants inmates hormonal therapy if they had been prescribed it prior to incarceration.

The 9th Circuit ruling affirms the ACLU’s view that Nevada’s current transgender inmate policy is unconstitutional, Wellborn said. Idaho had a similar policy in place to the one in Nevada, only granting transgender inmates hormonal therapy and related care if they had previously been receiving that care, she said.

Not only do these policies violate inmates’ rights to health care, but they also pose risks to their health and well-being, Wellborn said.

“By denying a person access to medication and to visitation with doctors to reassess their hormonal levels, that can dramatically affect their health,” Wellborn said.

In addition to outlining circumstances under which inmates can receive hormonal treatment, Nevada’s policy for treatment of transgender inmates includes a process for determining where to house transgender inmates and says that inmates are entitled to clothing that reflects their gender identity. It does not reference gender confirmation surgery for inmates.

Department of Corrections spokesperson Scott Kelley said in October that the policy has not been changed since it was written in 2017. However, on Monday, Ford said that “substantial developments” have been made to the policy. He did not elaborate on any particular changes and said they might not be codified in regulations yet.

In the coming months, Nevada will keep a close eye on whether Idaho’s planned appeal of the ruling is taken up by the Supreme Court, which could influence whether Nevada makes further changes to its transgender inmate policy, Ford added.

“We will take a look at the timing on this for statutory purposes to see if this is going to be a settled issue in our jurisdiction for an extended period of time, or potentially be overturned by June of next year,” he said.

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