BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 1079
AUTHOR: Rubio
AMENDED: March 20, 2012
HEARING DATE: March 28, 2012
CONSULTANT: Marchand
SUBJECT : Inmates: medical treatment.
SUMMARY : Codifies existing regulations limiting medical
services for inmates of the California Department of Corrections
and Rehabilitation (CDCR) to only those services which are
medically necessary, and excludes treatment for sexual
dysfunction or infertility, gender reassignment surgery, and
weight reduction surgery.
Existing statutory law:
1.Prohibits the use in prisons of any cruel, corporal or unusual
punishment or to inflict any treatment or allow any lack of
care that would injure or impair the health of the prisoner,
inmate or person confined.
2.Prohibits an order for a particular medical treatment by a
physician employed by CDCR from being modified or canceled by
any employee of CDCR without the approval of the chief medical
officer of the institution or the physician in attendance,
except to protect the safety and security of the institution,
as specified.
Existing regulations:
1.Limit the provision of medical services for inmates of CDCR to
only those services that are medically necessary.
2.Define "medically necessary," for purposes of medical care
provided to incarcerated persons, as health care services that
are determined by the attending physician to be reasonable and
necessary to protect life, prevent significant illness or
disability, or alleviate severe pain, and are supported by
health outcome data as being effective medical care.
3.Define "significant illness or disability," for purposes of
medical care provided to incarcerated persons, as any medical
condition that causes or may cause if left untreated a severe
limitation of function or ability to perform the daily
Continued---
SB 1079 | Page 2
activities of life or that may cause premature death.
4.Exclude certain medical treatment for incarcerated persons,
including surgery that is not medically necessary, which
specifically includes, but is not limited to, castration,
vaginoplasty, vasectomy, and tubal ligation.
5.Permit treatment of excluded conditions in cases where the
incarcerated person's attending physician prescribes the
treatment, and the service is approved by the medical
authorization review committee.
6.Require the decision of the medical authorization review
committee, when determining whether to allow treatment of an
excluded condition, to base the decision on both of the
following:
a. Available health and dental care outcome data
supporting the effectiveness of the services and
b. Other factors, including, but not limited to,
coexisting medical problems, acuity, length of the
incarcerated person's sentence, availability of the
service, and cost.
This bill:
1.Codifies existing regulations that limit the provision of
medical services for incarcerated persons.
2.Excludes the following types of surgeries, in addition to
those already excluded by regulation:
a. Treatment for sexual dysfunction, fertility,
or infertility;
b. Gender reassignment surgery; and
c. Weight reduction surgery.
FISCAL EFFECT : This bill is keyed non-fiscal.
COMMENTS :
1.Author's statement. According to the author, while CDCR has
existing regulations on medical care, there are no statutes to
hold CDCR accountable for unnecessary treatment. This bill
would clarify in law the medically appropriate treatments for
inmates. This bill would also ensure the efficient and prudent
use of taxpayer's dollars by eliminating medically unnecessary
procedures and services for prison inmates including gender
reassignment surgery, weight reduction surgery and treatment
for sexual dysfunction, fertility, or infertility. Finally,
SB 1079 | Page 3
this bill would eliminate costly, unnecessary litigation
between the state and inmates regarding acceptable medical
procedures. The author points to the case of inmate Lyralisa
Stevens, who is currently serving a 50 year sentence for
murder, who sued the state for failing to provide a gender
reassignment surgery, an operation that can cost up to
$50,000. The author states that while the 1st District Court
of Appeal in San Francisco denied her request last year, it
was only after two years of expensive litigation.
2.Medical Receivership for CDCR. On June 30, 2005, in a class
action lawsuit filed four years earlier, the United States
District Court for the Northern District of California
established a Receivership to take control of the delivery of
medical services to all California state prisoners confined by
CDCR. The court order establishing the Receivership provides
that the Receivership "shall cease as soon as the Court is
satisfied, and so finds in consultation with the Receiver,
that Defendants have the will, capacity, and leadership to
maintain a system of providing constitutionally adequate
medical health care services to class members."
The judge in the case issued an order in January of 2012 stating
that because of the progress to date, "the end of the
Receivership appears to be in sight, and the Court seeks to
get the parties' and the Receiver's views on when the
Receivership should be terminated and how this case should
progress after the Receivership has ended." The judge ordered
that the parties meet and confer on post-Receivership planning
as soon as possible, and file a joint report on their
meet-and-confer on or before April 30, 2012.
3.Gender Identity Disorder. The Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, Text Revision
(DSM-IV-TR) classifies Gender Identity Disorder (GID) as a
mental disorder. Individuals with GID are defined as being
uncomfortable with their apparent or assigned gender and
demonstrate persistent identification with the opposite sex.
According to the DSM-IV-TR, "the disturbance is manifested by
symptoms such as preoccupation with getting rid of primary and
secondary sex characteristics (e.g., request for hormones,
surgery, or other procedures to physically alter sexual
characteristics to simulate the other sex) or belief that he
or she was born the wrong sex." The DSM-IV-TR goes on to state
that the disturbance causes clinically significant distress or
impairment in social, occupational, or other important areas
SB 1079 | Page 4
of functioning.
4. Lawsuit by California inmate against CDCR seeking
reassignment surgery. The author points to a lawsuit filed
by Lyralisa Stevens, an inmate serving a 50-year prison
sentence for murder who sued CDCR seeking gender
reassignment surgery. According to a Los Angeles Times
article published on April 20, 2011, Stevens was born male
but lives as a female, and is one of 300 inmates in the
state prison system diagnosed with GID. The article stated
that CDCR has provided female hormones for Stevens since
her incarceration in 2003, though she has been housed in a
prison for men. The article stated that Stevens reported to
prison with silicon implants in her breasts and hips to
feminize her physique. Stevens sought gender reassignment
surgery and a transfer to a women's prison, in part to
protect her from rape and abuse by male inmates. Stevens
was unsuccessful in the district court, and in September of
2011, the California 1st District Court of Appeal denied
her appeal.
According to the Los Angeles Times, CDCR assigns inmates to
men's or women's institutions solely on the basis of a
prisoner's genitals, and points to the case of Richard
Masbruch. The Los Angeles Times article stated that
Masbruch tried multiple times to castrate himself while in
a Texas prison and eventually succeeded. Masbruch, who
goes by the name Sherri, was transferred to CDCR because of
a 1991 rape in Fresno, and is currently in the California
Institution for Women in Chino.
5.Wisconsin law overturned by federal appellate court. In 2005,
Wisconsin passed the Inmate Sex Change Prevention Act (Act).
The Act prohibited the Wisconsin Department of Corrections
from using any state funds or resources to provide hormonal
therapy or sexual reassignment surgery. The Act defined
"hormonal therapy" as 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.
Three Wisconsin inmates, each diagnosed with GID, filed a
lawsuit against the Wisconsin Department of Corrections, known
as Fields vs. Smith. The Act was invalidated by the United
States District Court for the Eastern District of Wisconsin,
which held that its provisions violated the Eighth Amendment's
SB 1079 | Page 5
ban on cruel and unusual punishment and the Fourteenth
Amendment's Equal Protection Clause. The Wisconsin Department
of Corrections appealed to the United States Court of Appeals
for the Seventh Circuit (Court). In August of 2011, the Court
issued a decision affirming the district court decision.
The defendants ultimately conceded that GID was a serious
medical condition, but argued that there were alternatives to
hormonal therapy and sexual reassignment surgery. However,
according to the Court:
"?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 treatment that reduces dysphoria and can prevent the
severe emotional and physical harms associated with it."
The Court went on to state:
"Surely, had the Wisconsin legislature passed a law that
�Wisconsin Department of Corrections] 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."
However, it is important to note the distinction between the
Wisconsin Act and this proposed bill. The Wisconsin Act
specifically prohibited hormonal therapy in addition to sexual
reassignment surgery, while this bill only proposes to
specifically exclude the reassignment surgery. Much of the
written decision focused on the Act's prohibition of hormonal
therapy, rather than on the sexual reassignment surgery.
In the case of CDCR, the provision of hormone therapy is
permitted, but only for inmates who began hormone therapy
prior to incarceration. This is mandated by a federal court
case, which found in 1999 that failing to continue treatments
for inmates who were on hormone therapy before coming to
prison amounted to cruel and unusual punishment.
6.Double referral. This bill is double referred. Should it pass
out of this committee, it will be referred to the Senate
Committee on Public Safety.
7.Opposition. Equality California (EQCA) opposes this bill,
SB 1079 | Page 6
stating that to deny them medically necessary care would
unfairly target transgender prisoners in California. EQCA
states that this bill would bar California state prisoners
from receiving specific types of medical care by deeming them
"not medically necessary," including treatment regularly
prescribed by medical doctors as essential to effectuate
gender transition as a treatment for transgender individuals
diagnosed with gender dysphoria or GID. According to EQCA, all
of the leading medical associations, including the American
Medical Association, the American Psychological Association,
the American Academy of Family Physicians, and the American
Congress of Obstetricians and Gynecologists, have recognized
that gender transition can be a crucial element of treatment
for gender dysphoria. EQCA points to a position statement
issued by the National Commission on Correctional Health Care
stating that "the health risks of overlooking the particular
needs of transgender inmates are so severe that acknowledgment
of the problem and policies that assure appropriate and
responsible provision of health care are needed."
EQCA states that decisions about a patient's care must be made
based on the recommendation of the treating physician, not
predetermined by statute. By denying inmates such individual
determination of medical necessity, EQCA states that this bill
violates the Eighth Amendment prohibition of cruel and unusual
punishment.
SUPPORT AND OPPOSITION :
Support: None received.
Oppose: Equality California
Transgender Law Center
-- END --