Transgender inmate can sue over denial of hormone treatment, U.S. Appeals Court rules

Bruce Vielmetti
Milwaukee Journal Sentinel

The U.S. Court of Appeals has ruled a transgender former Wisconsin inmate can sue Wisconsin Department of Corrections officials for denying her hormone treatment, both in prison and while on supervised release.

Lisa Mitchell

The 7th U.S. Circuit Court of Appeals reinstated most of a lawsuit by Lisa Mitchell against Kevin Kallas, the Department of Corrections' mental health director, and three probation officers. A federal judge in Madison had dismissed Mitchell's complaint filed on her own without an attorney in favor of the various defendants.

"Punishment for Mitchell’s crimes cannot extend to the deprivation of the medical treatment she requires for her serious gender dysphoria," Chief Judge Diane Wood wrote for a three-judge panel.

"The Wisconsin DOC staff must approach Mitchell’s request for treating gender dysphoria with the same urgency and care as it would any other serious medical condition."

According to the decision, Mitchell, 37, has identified as female her entire life. In 2010, she was sentenced to 18 months in prison and 18 months of extended supervision on a conviction for child enticement/sexual contact. 

When she entered Columbia Correctional Institution in the fall of 2011, Mitchell sought hormone treatment for the gender dysphoria with which she'd been diagnosed in 2008. The DOC had implemented a formal new policy on such treatment earlier in 2011.

A clinician did a preliminary assessment and reported in February 2012. A committee reviewed it and referred the request to an outside consultant from Johns Hopkins University in Maryland, who visited Wisconsin about every two months.

Mitchell was told she'd have to wait for the next visit in April, but the interview didn't happen until late May, about six months after Mitchell first requested treatment.

The consultant submitted a draft report in November — finalized in December — that strongly supported Mitchell's year-old request for treatment.

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In January 2013, Kallas denied the request, saying that Mitchell was due for release that month. He claimed DOC policy was to only start hormone treatment if an inmate had six months or more to serve — which the 7th Circuit noted is not mentioned in the department's gender dysphoria plan from 2011. 

Kallas encouraged Mitchell to seek treatment when she was out of prison and gave her a copy of the consultant's report.

According to Mitchell's claim, though, her probation officers forbid her from seeking treatment and even required her to dress and present as a man as a condition of her release. She sued in 2015, representing herself for months before the 7th Circuit appointed a lawyer from a large Chicago law firm to assist on her appeal.

The district court decided that the delay and ultimate denial of treatment did not constitute deliberate indifference by Kallas. And anyway, that court found, there is no clearly established right to hormone treatment, so all the officials were protected by qualified immunity.  

Kallas argued no binding legal precedent requires that inmates' gender dysphoria must be treated promptly. The 7th Circuit said the issue can't be framed specifically for each and every injury or illness, and that prison officials have known for years that leaving serious conditions untreated can amount to deliberate indifference.

Whether the care was denied through deliberate indifference is a question a jury should decide, the court said. While Mitchell had some sessions with psychologists, they are not a substitute for medical treatments.

But on the question of delay, the court agreed Kallas had no notice that 13 months would be considered deliberate indifference, so he is entitled to qualified immunity on that particular claim.

"The serious nature of gender dysphoria is not disputed here. But the ease of evaluating the appropriateness of hormone therapy remains to be considered."

Some of the questions may need to be answered by a jury, the appeals court said.