In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-2339 & 10-2466
A NDREA F IELDS, et al.,
Plaintiffs-Appellees,
Cross-Appellants,
v.
JUDY P. S MITH, et al.,
Defendants-Appellants,
Cross-Appellees.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 2:06-cv-00112-CNC—Charles N. Clevert, Jr., Chief Judge.
A RGUED F EBRUARY 7, 2011—D ECIDED A UGUST 5, 2011
Before
R OVNER and W OOD , Circuit Judges, and
G OTTSCHALL, District Judge.
G OTTSCHALL , District Judge. In this appeal, we are
asked to review the decision of the district court inval-
idating a Wisconsin state statute which prohibits the
The Honorable Joan B. Gottschall, United States District
Judge for the Northern District of Illinois, sitting by designation.
2 Nos. 10-2339 & 10-2466
Wisconsin Department of Corrections (“DOC”) from
providing transgender inmates with certain medical
treatments.1 The Inmate Sex Change Prevention Act
(“Act 105”) provides in relevant part:
(a) In this subsection:
1. “Hormonal therapy” means the use of hor-
mones to stimulate the development or alteration
of a person’s sexual characteristics in order to
alter the person’s physical appearance so that the
person appears more like the opposite gender.
2. “Sexual reassignment surgery” means surgical
procedures to alter a person’s physical appear-
ance so that the person appears more like the
opposite gender.
(b) The [Wisconsin Department of Corrections]
may not authorize the payment of any funds
or the use of any resources of this state or the
payment of any federal funds passing through
the state treasury to provide or to facilitate the
provision of hormonal therapy or sexual reassign-
ment surgery . . . .
2005 Wis. Act 105, codified at Wis. Stat. § 302.386(5m)
(2010). The district court concluded that this provision
violates the Eighth Amendment’s ban on cruel and
unusual punishment and the Fourteenth Amendment’s
1
A group of medical and mental health professionals sought
leave from the court to submit a brief as amici curiae. The
motion is granted.
Nos. 10-2339 & 10-2466 3
Equal Protection Clause. Defendants, various DOC offi-
cials, now appeal.
I
A number of DOC inmates filed this lawsuit as a
putative class action in the Eastern District of Wisconsin
on behalf of all current and future DOC inmates with
“strong, persistent cross-gender identification.” The
district court denied plaintiffs’ motion for class certifica-
tion, but permitted the case to proceed to trial on the
individual claims of three plaintiffs.
The three plaintiffs—Andrea Fields, Matthew Davison
(also known as Jessica Davison), and Vankemah
Moaton—are male-to-female transsexuals. According to
stipulated facts, each has been diagnosed with Gender
Identity Disorder (“GID”). GID is classified as a
psychiatric disorder in the DSM-IV-TR, the current
edition of the American Psychiatric Association’s Diag-
nostic and Statistical Manual of Mental Disorders. Indi-
viduals with GID identify strongly with a gender that
does not match their physical sex characteristics. The
condition is associated with severe psychological dis-
tress. Prior to the passage of Act 105, each of the plain-
tiffs had been diagnosed by DOC physicians with GID
and had been prescribed hormones.
After a trial in which both sides presented expert testi-
mony about GID, its treatment, and its potential effects
on prison security, the district court ruled in favor of
plaintiffs. The court ruled that Act 105 was unconstitu-
4 Nos. 10-2339 & 10-2466
tional, both as applied and on its face, under the
Eighth and Fourteenth Amendments. The district court
ultimately issued an injunction barring defendants from
enforcing Act 105. We need not recount all the evidence
presented at trial—the district court’s 40-page opinion
thoroughly describes the trial testimony, see Fields v.
Smith, 712 F. Supp. 2d 830 (E.D. Wis. 2010)—but a brief
review of the district court’s critical factual findings
is warranted.
The district court credited much of the testimony
from plaintiffs’ witnesses, including three experts in the
treatment of GID. Plaintiffs’ experts testified that, collec-
tively, they had treated thousands of patients with GID
and published numerous peer-reviewed articles and
books on the subject. One expert had specifically
studied transsexuals in the correctional setting. These
experts explained that GID can cause an acute sense
that a person’s body does not match his or her gender
identity. Even before seeking treatment and from an
early age, patients will experience this dysphoria and
may attempt to conform their appearance and behavior
to the gender with which they identify.
The feelings of dysphoria can vary in intensity. Some
patients are able to manage the discomfort, while others
become unable to function without taking steps to
correct the disorder. A person with GID often ex-
periences severe anxiety, depression, and other psych-
ological disorders. Those with GID may attempt to
commit suicide or to mutilate their own genitals.
Nos. 10-2339 & 10-2466 5
The accepted standards of care dictate a gradual ap-
proach to treatment beginning with psychotherapy and
real life experience living as the opposite gender. For
some number of patients, this treatment will be effective
in controlling feelings of dysphoria. When the condition
is more severe, a doctor can prescribe hormones, which
have the effect of relieving the psychological distress.
Hormones also have physical effects on the body. For
example, males may experience breast development,
relocation of body fat, and softening of the skin. In the
most severe cases, sexual reassignment surgery may
be appropriate. But often the use of hormones will be
sufficient to control the disorder.
When hormones are withdrawn from a patient who
has been receiving hormone treatment, severe complica-
tions may arise. The dysphoria and associated psych-
ological symptoms may resurface in more acute form.
In addition, there may be severe physical effects such
as muscle wasting, high blood pressure, and neuro-
logical complications. All three plaintiffs in this case
experienced some of these effects when DOC doctors
discontinued their treatment following the passage of
Act 105.2
2
Defendants began reducing plaintiffs’ hormone levels on
January 12, 2006; on January 27, 2006, the district court
granted a preliminary injunction barring defendants from
continuing to withdraw plaintiffs’ hormone therapy and
ordering defendants to return plaintiffs to their previous
hormone levels.
6 Nos. 10-2339 & 10-2466
Plaintiffs also called Dr. David Burnett, the DOC’s
Medical Director, and Dr. Kevin Kallas, the DOC
Mental Health Director, to testify at trial. These offi-
cials explained that, prior to the enactment of Act 105,
hormone therapy had been prescribed to some DOC
inmates, including plaintiffs. DOC policies did not
permit inmates to receive sex reassignment surgery.
Drs. Kallas and Burnett served on a committee of DOC
officials that evaluated whether hormone therapy was
medically necessary for any particular inmate. Inmates are
not permitted to seek any medical treatment outside the
prison, regardless of their ability to pay. The doctors
testified that they could think of no other state law or
policy, besides Act 105, that prohibits prison doctors
from providing inmates with medically necessary treat-
ment.
II
We evaluate both the district court’s grant of injunctive
relief and the scope of that relief for abuse of discretion.
Knapp v. Nw. Univ., 101 F.3d 473, 478 (7th Cir. 1996); see
Brown v. Plata, 131 S.Ct. 1910, 1957 (2011) (Scalia, J., dis-
senting) (noting that under the Prison Litigation Reform
Act (“PLRA”), “when a district court enters a new decree
with new benchmarks, the selection of those benchmarks
is . . . reviewed under a deferential, abuse-of-discretion
standard of review”); Russian Media Group, LLC v. Cable
Am., Inc., 598 F.3d 302, 307 (7th Cir. 2010) (“[T]he appropri-
ate scope of the injunction is left to the district court’s
sound discretion.”); Thomas v. Bryant, 614 F.3d 1288, 1321
Nos. 10-2339 & 10-2466 7
(11th Cir. 2010) (applying abuse of discretion standard
to evaluate scope of injunction in conformity with
PLRA); Crawford v. Clarke, 578 F.3d 39, 43 (1st Cir. 2009)
(holding that district court did not abuse its discretion
in awarding system-wide relief under the PLRA). The
court’s factual findings are reviewed for clear error, and
any legal determinations are reviewed de novo. Knapp,
101 F.3d at 478.
“Prison officials violate the Eighth Amendment’s pro-
scription against cruel and unusual punishment when
they display ‘deliberate indifference to serious medical
needs of prisoners.’ ” Greeno v. Daley, 414 F.3d 645, 652-53
(7th Cir. 2005) (quoting Estelle v. Gamble, 429 U.S. 97, 104
(1976)). In this case, the district court held that plain-
tiffs suffered from a serious medical need, namely
GID, and that defendants acted with deliberate indif-
ference in that defendants knew of the serious medical
need but refused to provide hormone therapy because
of Act 105. Defendants do not challenge the district
court’s holding that GID is a serious medical condition.
They contend that Act 105 is constitutional because the
state legislature has the power to prohibit certain
medical treatments when other treatment options are
available. And defendants argue that Act 105 is justified
by a legitimate need to ensure security in state prisons.
Defendants rely primarily on two Seventh Circuit
decisions which addressed constitutional challenges to
refusals to provide treatment for gender dysphoria or
transsexualism. Over twenty-four years ago, in Meriwether
v. Faulkner, 821 F.2d 408 (7th Cir. 1987), this court re-
versed the dismissal of a complaint which alleged that
8 Nos. 10-2339 & 10-2466
the plaintiff, who had previously been taking hormones,
was denied all treatment for her gender dysphoria upon
entering prison. The court held that the plaintiff stated
a claim that transsexualism was a serious medical need
and that prison officials acted with deliberate indif-
ference in refusing all treatment. The court noted in dicta
that “[i]t is important to emphasize, however, that she
does not have a right to any particular type of treatment,
such as estrogen therapy which appears to be the
focus of her complaint.” Id. at 413.
Ten years later, in Maggert v. Hanks, 131 F.3d 670 (7th Cir.
1997), this court, in two brief paragraphs, upheld a
decision granting summary judgment on a similar delib-
erate indifference claim where the plaintiff did not
come forward with any evidence to rebut defendants’
expert witness, who testified that plaintiff did not
suffer from gender dysphoria. The court’s opinion pro-
ceeded to address “a broader issue, having to do with
the significance of gender dysphoria in prisoners’ civil
rights litigation.” Id. at 671. The court commented, again
in dicta, that the Eighth Amendment does not require
the provision of “esoteric” treatments like hormone
therapy and sexual reassignment surgery which are
“protracted and expensive” and not generally available
to those who are not affluent. Id. at 671-72. A prison
would be required to provide some treatment for
gender dysphoria, but not necessarily “curative” treat-
ment because the Eighth Amendment requires only
minimum health care for prison inmates. Id. at 672.
Nos. 10-2339 & 10-2466 9
The court’s discussion of hormone therapy and sex
reassignment surgery in these two cases was based on
certain empirical assumptions—that the cost of these
treatments is high and that adequate alternatives ex-
ist. More than a decade after this court’s decision in
Maggert, the district court in this case held a trial in
which these empirical assumptions were put to the test.
At trial, defendants stipulated that the cost of providing
hormone therapy is between $300 and $1,000 per
inmate per year. The district court compared this cost to
the cost of a common antipsychotic drug used to treat
many DOC inmates. In 2004, DOC paid a total of $2,300
for hormones for two inmates. That same year, DOC
paid $2.5 million to provide inmates with quetiapine,
an antipsychotic drug which costs more than $2,500
per inmate per year. Sex reassignment surgery is signifi-
cantly more expensive, costing approximately $20,000.
However, other significant surgeries may be more ex-
pensive. In 2005, DOC paid $37,244 for one coronary
bypass surgery and $32,897 for one kidney transplant
surgery. The district court concluded that DOC might
actually incur greater costs by refusing to provide hor-
mones, since inmates with GID might require other
expensive treatments or enhanced monitoring by
prison security.3 Fields, 712 F. Supp. 2d at 863. In fact, at
oral argument before this court, counsel for defendants
disclaimed any argument that Act 105 is justified by cost
3
Plaintiff Moaton, for example, experienced suicidal ideation
after DOC officials began withdrawing hormone treatments.
Fields, 712 F. Supp. 2d at 835.
10 Nos. 10-2339 & 10-2466
savings. See Oral Argument at 15:18, Field v. Smith, Nos. 10-
2339 and 10-2466, available at http://www.ca7.uscourts.gov/
fdocs/docs.fwx?dname=arg.
More importantly here, defendants did not produce
any evidence that another treatment could be an
adequate replacement for hormone therapy. Plaintiffs’
witnesses repeatedly made the point that, for certain
patients with GID, hormone therapy is the only treat-
ment that reduces dysphoria and can prevent the
severe emotional and physical harms associated with it.
Although DOC can provide psychotherapy as well as
antipsychotics and antidepressants, defendants failed to
present evidence rebutting the testimony that these
treatments do nothing to treat the underlying disorder.
Defendants called their own expert to speak about
GID: Dr. Daniel Claiborn, a Ph.D. in psychology who
estimated he has treated only about fifty clients with GID
over a period of twenty years in his private practice.
Dr. Claiborn provided no testimony about the appro-
priate treatment for plaintiffs. He offered his opinion
that GID is not properly characterized as a psychological
disorder because a person with GID does not typically
suffer from an impairment in psychological functions.
However, defendants have now conceded that GID is a
serious medical condition. Dr. Claiborn’s testimony does
not support the assertion that plaintiffs can be effectively
treated without hormones.
It is well established that the Constitution’s ban on
cruel and unusual punishment does not permit a state to
deny effective treatment for the serious medical needs of
Nos. 10-2339 & 10-2466 11
prisoners. The Supreme Court articulated this principle
in Estelle v. Gamble:
An inmate must rely on prison authorities to treat his
medical needs; if the authorities fail to do so, those
needs will not be met. In the worst cases, such a
failure may actually produce physical “torture or a
lingering death,” the evils of most immediate
concern to the drafters of the Amendment. In less
serious cases, denial of medical care may result in
pain and suffering which no one suggests would
serve any penological purpose. . . . We therefore
conclude that deliberate indifference to serious
medical needs of prisoners constitutes the “unneces-
sary and wanton infliction of pain,” proscribed by the
Eighth Amendment.
429 U.S. at 103-04 (citations omitted). Surely, had the
Wisconsin legislature passed a law that DOC inmates
with cancer must be treated only with therapy and pain
killers, this court would have no trouble concluding
that the law was unconstitutional. Refusing to provide
effective treatment for a serious medical condition
serves no valid penological purpose and amounts to
torture. Id.; see also Roe v. Elyea, 631 F.3d 843, 861-63
(7th Cir. 2011) (upholding verdict for plaintiff that
prison policy on treatment of Hepatitis C was deliberately
indifferent); Kelley v. McGinnis, 899 F.2d 612, 616 (7th
Cir. 1990) (reversing dismissal of complaint alleging that
prison provided inadequate treatment for inmate’s
chronic foot problems). Although Act 105 permits DOC
to provide plaintiffs with some treatment, the evidence at
12 Nos. 10-2339 & 10-2466
trial indicated that plaintiffs could not be effectively
treated without hormones.
Defendants point to the Supreme Court’s decision in
Gonzales v. Carhart, 550 U.S. 124 (2007), for the proposi-
tion that a legislature may constitutionally limit the
discretion of physicians by outlawing a particular
medical procedure. In Carhart, the Court upheld the
constitutionality of the Partial-Birth Abortion Ban Act
of 2003 which outlawed a particular procedure used to
perform late-term abortions. The Court noted the ex-
istence of “medical uncertainty” regarding whether the
banned procedure was more dangerous than alterna-
tive procedures. Id. at 163-64. Because safe abortion
alternatives to the prohibited procedure appeared to
exist, the court turned away the facial challenge to the
law. Id. at 164.
Carhart is not helpful to defendants in this case
because they did not present any medical evidence that
alternative treatments for GID are effective. As de-
fendants point out, some medical uncertainty remains as
to the causes of GID, but there was no evidence of uncer-
tainty about the efficacy of hormone therapy as a treat-
ment. Just as the legislature cannot outlaw all effective
cancer treatments for prison inmates, it cannot outlaw
the only effective treatment for a serious condition
like GID.
Defendants argue that even if application of Act 105 to
plaintiffs violates the Eighth Amendment, the district
court erred in sustaining a facial challenge to the law.
Act 105 bans treatment to all prisoners, even those for
Nos. 10-2339 & 10-2466 13
whom hormones and surgery are not medically neces-
sary. A facial challenge to the constitutionality of a law
can succeed only where plaintiffs can “ ‘establish that
no set of circumstances exists under which the Act would
be valid.’ ” Doe v. Heck, 327 F.3d 492, 528 (7th Cir.
2003) (quoting United States v. Salerno, 481 U.S. 739, 745
(1987)). Nonetheless, “[t]he proper focus of constitutional
inquiry is the group for whom the law is a restriction,
not the group for whom the law is irrelevant.” Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 894 (1992). The
district court, in this case, found that DOC doctors pre-
scribe hormones only when the treatment is medically
necessary. Fields, 712 F. Supp. 2d at 866. Thus, the court
correctly concluded that Act 105 is irrelevant to
inmates who are not diagnosed with severe GID and
in medical need of hormones, and any application of
Act 105 would necessarily violate the Eighth Amendment.
Defendants have also argued that Act 105 is justified
by the state’s interest in preserving prison security. Defen-
dants’ security expert, Eugene Atherton, testified that
more feminine male inmates become targets for sexual
assault in prisons. Because hormone therapy alters a
person’s secondary sex characteristics such as breast
size and body hair, defendants argue that hormones
feminize inmates and make them more susceptible to
inciting prison violence. But the district court rejected
this argument, noting that the evidence showed
transgender inmates may be targets for violence even
without hormones. Atherton himself, in his deposition,
testified that it would be “an incredible stretch” to con-
clude that banning the use of hormones could prevent
14 Nos. 10-2339 & 10-2466
sexual assaults. Id. at 868. In the Colorado Department of
Corrections, where Atherton worked for many years, the
state had a policy of providing necessary hormones to
inmates with GID. Atherton testified that this policy
was reasonable and had been implemented effectively
in Colorado.
Defendants cite Whitley v. Albers for the proposi-
tion that “ ‘[p]rison administrators . . . should be ac-
corded wide-ranging deference in the adoption and
execution of policies and practices that in their judg-
ment are needed to preserve internal order and discipline
and to maintain institutional security.’ ” 475 U.S. 312, 321-
22 (1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)).
But deference does not extend to “actions taken in bad
faith and for no legitimate purpose.” Id. at 322. The district
court did not abuse its discretion in concluding that
defendants’ evidence failed to establish any security
benefits associated with a ban on hormone therapy. The
legislators who approved Act 105 may have honestly
believed they were improving prison security, but
courts “retain[ ] an independent constitutional duty to
review factual findings where constitutional rights are
at stake.” Carhart, 550 U.S. at 165.
Finally, defendants contend that the district court’s
injunction violates the PLRA, 18 U.S.C. § 3626(a), be-
cause it enjoins Act 105 in its entirety.4 They argue that
4
The PLRA provides, in part:
Prospective relief in any civil action with respect to prison
conditions shall extend no further than necessary to correct
(continued...)
Nos. 10-2339 & 10-2466 15
plaintiffs have never demonstrated a need for sex reassign-
ment surgery, which the law also prohibits. For their
part, plaintiffs argue that defendants waived this argu-
ment by failing to raise it before the district court. In
fact, the record establishes an admission, not a waiver.
On June 9, 2010 plaintiffs requested that the district
court supplement its findings relating to the PLRA’s so-
called “need-narrowness-intrusiveness” standard. At a
subsequent status conference, the court asked defen-
dants’ counsel not once, but twice, “whether or not the
Defense believes the order as tendered . . . is as narrow as
is required”; counsel replied that it was. (See Pls.’ App. 19.)
As a practical matter, then, defendants are precluded
from making this argument now.
Regardless, the district court’s orders establish that
the court evaluated the record as a whole and identified
evidence that fully supports the scope of the injunctive
relief granted. See Armstrong v. Schwarzenegger, 622 F.3d
(...continued)
the violation of the Federal right of a particular plaintiff
or plaintiffs. The court shall not grant or approve any
prospective relief unless the court finds that such relief
is narrowly drawn, extends no further than necessary to
correct the violation of the Federal right, and is the least
intrusive means necessary to correct the violation of the
Federal right. The court shall give substantial weight to
any adverse impact on public safety or the operation of
a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(1)(A).
16 Nos. 10-2339 & 10-2466
1058, 1070 (9th Cir. 2010) (“[T]he language of the PLRA
does not suggest that Congress intended a provision-by-
provision explanation of a district court’s findings . . . .
[T]he statutory language [means] that the courts must do
what they have always done when determining the
appropriateness of the relief ordered: consider the order
as a whole.”); Gomez v. Vernon, 255 F.3d 1118, 1129 (9th
Cir. 2001) (the PLRA “has not substantially changed
the threshold findings and standards required to justify
an injunction”); Smith v. Ark. Dep’t of Corr., 103 F.3d 637,
647 (8th Cir. 1996) (same); Williams v. Edwards, 87 F.3d
126, 133 n. 21 (5th Cir. 1996) (same). In the district court’s
May 13, 2010 memorandum order, the court expressly
addressed both hormone therapy and sex reassign-
ment surgery. There, the court stated that:
The defendants acknowledge that Act 105 removes
even the consideration of hormones or surgery for
inmates with gender issues and that the DOC
halted evaluations of inmates with GID for possible
administration of hormone therapy because of the
Act. However, in determining whether a facial chal-
lenge to Act 105 may succeed here, the defendants
submit that the court must take into account all in-
mates in DOC custody for whom hormone therapy
or sexual reassignment surgery would be considered
as treatment for gender issues. If that is done, they
maintain that there are circumstances where Act 105
may be applied without violating the Constitution,
and that, as a result, the plaintiffs’ facial challenge
Nos. 10-2339 & 10-2466 17
to the law must fail. Unfortunately, the defendants
do not support this point.
....
In certain cases, as with the plaintiffs in this case,
the effect of Act 105 is to withdraw an ongoing
course of treatment, the result of which has nega-
tive medical consequences. In other cases, the effect
of Act 105 is to prevent DOC medical personnel
from evaluating inmates for treatment because such
evaluation would be futile in light of Act 105’s ban
on the treatment they may determine to be medically
necessary for the health of the inmate.
....
In this case, Act 105 bars the use of hormones “to
stimulate the development or alteration of a person’s
sexual characteristics in order to alter the person’s
physical appearance so that the person appears more
like the opposite gender,” as well as sexual reassign-
ment surgery “to alter a person’s physical appearance
so that the person appears more like the opposite
gender.” Wis. Stat. § 302.386(5m)(a). The statute
applies irrespective of an inmate’s serious medical
need or the DOC’s clinical judgment if at the out-
set of treatment, it is possible that the inmate will
develop the sexual characteristics of the opposite
gender. The reach of this statute is sweeping
inasmuch as it is applicable to any inmate who is now
in the custody of the DOC or may at any time be in the
custody of the DOC, as well as any medical profes-
18 Nos. 10-2339 & 10-2466
sional who may consider hormone therapy or gender
reassignment as necessary treatment for an inmate.
Fields, 712 F. Supp. 2d at 865-67. The district court’s
June 22, 2010 “additional findings” further support its
conclusion that the statute is facially invalid. There, the
court found that the injunction was “narrowly tailored
in that enjoining the enforcement of [Act 105] prohibits
only unconstitutional applications of the statute[,]
which this court has found to be unconstitutional any
time it is applied,” and the injunction extended no
further than necessary to correct the Eighth Amendment
violation because “enjoining all applications of [Act 105]
is necessary to prevent constitutional violations.” The
district court also specifically referenced its prior
finding that the constitutional violation stemmed from
“removing ‘even the consideration of hormones or sur-
gery.’ ” (See App. 174-75.) We agree. Evaluating the
record as a whole, the district court did not abuse its
discretion in enjoining the entirety of Act 105.
Having determined that the district court properly
held that Act 105 violates the Eighth Amendment, both
on its face and as applied to plaintiffs, we need not
address the district court’s alternate holding that the
law violates the Equal Protection Clause. Plaintiffs have
asserted a conditional cross-appeal of the district
court’s denial of class certification. But because we
have upheld the district court’s injunction, we also
do not address the cross-appeal.
Nos. 10-2339 & 10-2466 19
III
The judgment of the district court is affirmed.
8-5-11