A Marion County Circuit Court judge this month ordered the Oregon Department of Corrections to immediately provide gender-affirming care to an incarcerated transgender woman who alleged she had been denied such care while in custody at Snake River Correctional Institution.
The ruling represents the second time a state court judge in Oregon has directed the prison system to deliver gender-affirming care to a transgender or gender-nonconforming prisoner, said Tara Herivel, a Portland lawyer who represented Nova Gaia, 38.
The other case involved a transgender woman, Toni Reign Roberts, 54, who was also represented by Herivel. A Multnomah County Circuit Court judge ordered the Department of Corrections to provide the woman with electrolysis and an orchiectomy.
In the latest case, Senior Judge Cheryl Pellegrini found the state violated a clause of the Oregon Constitution that prohibits officials from treating people in custody with “unnecessary rigor.” Oregon is one of five states with such a constitutional guarantee prohibiting prisons and jails from making their environments more dangerous through their own practices or policies.
Pellegrini’s ruling came during Gaia’s habeas corpus case; such cases seek sentence reductions, release or changes to prison conditions. Gaia is serving up to 24 years for two sex-crime convictions out of Clackamas County. She is serving her sentence at the state prison near the Idaho border.
Herivel said in a statement that Pellegrini “got right what many don’t about being transgender or gender nonconforming: that failure to address gender-affirming care and treatment can result in a lethal condition” because of high rates of suicidal thoughts and self-harm for those denied such care.
Betty Bernt, a spokesperson for the Department of Corrections, declined to comment, saying the ruling had not yet been formally filed with the court. The judge’s order is expected to be finalized this week.
The state prison system houses 140 transgender prisoners, according to corrections officials. Overall, 12,300 men and women are currently incarcerated.
Herivel argued that the Department of Corrections refused to follow the medical establishment’s standards of care and created its own “hodgepodge” standards “devised primarily by a crew with no transgender experience or training.”
Pellegrini’s order directs the Department of Corrections to arrange for a range of treatments — including facial feminization surgery, tracheal shave, breast augmentation and electrolysis — and transfer Gaia if the procedures can’t be carried out in Malheur County.
Pellegrini also found Gaia had been subjected to overly harsh discipline and had been denied suppressive therapy for herpes, the draft opinion says.
Herivel, who specializes in habeas corpus cases, called Pellegrini’s orders in the case “uniquely extensive.”
Pellegrini’s ruling comes six years after a significant settlement brought by Michale Wright, an incarcerated woman who alleged she was subjected to cruel and unusual punishment because she had been denied hormone treatment despite an official diagnosis of gender dysphoria.
That lawsuit also accused state officials of placing her in segregation or solitary confinement for weeks and sometimes months at a time.
Under a settlement, the state agreed to additional training for prison counselors and pledged to develop rules for providing hormone therapy and surgical intervention for prisoners with gender dysphoria.
Herivel said she had not reviewed the settlement terms in the Wright case but said it appears the state has failed to follow them.
“We wouldn’t have the orders in Gaia if they had been meaningfully implemented,” she said.
