Ban on gender-affirming care in Georgia prisons is on hold, for now 

Transgender people incarcerated in Georgia prisons can once again receive some gender-affirming care, at least temporarily, following a judge’s order. A federal judge ruled Thursday that a ban on using public funds for gender-affirming care in state prisons likely violates constitutional protections against cruel and unusual punishment. According to court documents, there are about 340 […]

Transgender people incarcerated in Georgia prisons can once again receive gender-affirming care, at least temporarily, following a judge's order. Getty Images

Transgender people incarcerated in Georgia prisons can once again receive some gender-affirming care, at least temporarily, following a judge’s order.

A federal judge ruled Thursday that a ban on using public funds for gender-affirming care in state prisons likely violates constitutional protections against cruel and unusual punishment.

According to court documents, there are about 340 people in the custody of the Georgia Department of Corrections who have been diagnosed with gender dysphoria, of whom 107 were receiving hormone replacement therapy as of the end of June. The system’s inmate population is more than 50,000.

Gov. Brian Kemp, who is a Republican, signed Senate Bill 185 into law in May, putting the ban into place. Attorneys for the state argued that Georgians’ tax dollars should not be spent on the controversial procedures.

“But ‘controversy’ does not take a medical question and turn it into a policy question,” U.S. District Court Judge Victoria Calvert wrote in her opinion pausing enforcement of the law while a legal challenge against it moves forward.

“An Eighth Amendment exception for political controversy could end up swallowing the rule that inmates are entitled to a baseline of medical care bearing some relationship to the standard of care provided to the public at large. If it were otherwise, prison officials could deny inmates the COVID-19 vaccine or treat a measles outbreak with chicken soup.”

Also on Thursday, the Georgia Board of Corrections voted to approve a rule change to comply with the law, specifying that no state funds may be used for surgical, hormone or cosmetic procedures to treat gender dysphoria. It allows for people already receiving treatment to have their dosage tapered to transition off the medication.

Calvert’s ruling directs the agency to stop tapering hormone medication and resume treatments for people who were previously receiving care and to consider new requests for gender-affirming treatments without taking the new state law  into account.

Emily Early, an attorney with the Center for Constitutional Rights, which challenged the state law on behalf of five transgender people incarcerated in Georgia prisons, said the judge’s decision is in line with rulings from other states and established precedent.

“We’re not carving out any sort of new standard,” she said. “The Eighth Amendment standard is that you cannot take away care from an individual when that care has been deemed medically necessary without any sort of medical judgment. And that’s exactly what the state of Georgia has done here, in violation of the Eighth Amendment and the court at the district court level has agreed with our clients’ position.”

A Department of Corrections spokesperson declined to comment citing pending litigation.

The defendants, who include Georgia Department of Corrections Commissioner Tyrone Oliver, have filed an appeal with the 11th U.S. Circuit Court of Appeals in Atlanta.

The bill’s author, Cataula Republican state Sen. Randy Robertson, expressed confidence that the law will eventually be upheld.

“I’m very comfortable with this,” he said in a phone call. “We knew that things like this were going to happen. Anytime you pass a controversial piece of legislation, you’re going to have individuals come out and challenge it, and that’s exactly what’s supposed to happen. Every piece of legislation that we pass out of the Capitol is subject to scrutiny by men and women who wear black robes, and that’s what we pay them for, and that’s their job. So this is just part of the process. I’m very confident that once everything is hashed out in the courtrooms, that the law will go into effect and will accomplish exactly what we need to accomplish for Georgia taxpayers.”

The bill was among the most controversial of the session as it worked its way through the Capitol this year. Four Senate Democrats broke ranks with their party to support it in that chamber, and four more did not vote. In the House, nearly the entire Democratic caucus walked out when it came up for a vote, a protest of a series of bills targeting the rights of transgender Georgians.

Transgender advocates worry that policies like Georgia’s are part of a cultural backlash against increased acceptance of transgender rights.

SUPPORT: YOU MAKE OUR WORK POSSIBLE