Texas Judge Dismisses Trans Prisoner’s Lawsuit Seeking Gender Confirmation Surgery

A federal judge has dismissed a lawsuit from a transgender prisoner who wants the Texas Department of Criminal Justice (TDCJ) to provide “sex reassignment surgery” (SRS) and allow her to live as a woman behind bars.

Vanessa Lynn Gibson, 38, who’s currently housed in the Alfred Hughes Unit in Gatesville, filed a civil rights complaint against TDCJ Executive Director Brad Livingston in June 2015. Gibson alleges that TDCJ’s refusal to provide her with gender confirmation surgery violates the Eighth Amendment’s prohibition on cruel and unusual punishment, because the procedure has been deemed medically necessary by the World Professional Association for Transgender Health.

On August 31, U.S. District Judge Walter Smith Jr. dismissed the lawsuit, ruling that Livingston has not shown “deliberate indifference” to Gibson’s medical needs, in part because TDCJ has provided her with hormone therapy and counseling.

“Of course, Plaintiff would prefer a policy that provides SRS,” Smith wrote in his 23-page decision. “However, a Plaintiff’s disagreement with the diagnostic decisions of medical professionals does not provide the basis for a civil rights lawsuit.”

Gibson, who’s acting as her own attorney in the case, has filed a notice indicating she’ll take Smith’s decision to the U.S. 5th Circuit Court of Appeals. In court filings, Gibson states that she’s attempted self-harm due to her inability to obtain surgery.

“I have readied myself for this possibility so I’m not completely blown away, but the reality of the situation is emotionally devastating, and I won’t lie, I was so mad I couldn’t stop crying,” Gibson wrote of Smith’s ruling in a letter posted online by Austin Anarchist Black Cross, which has set up a website to track her case.

TDCJ spokesman Jason Clark declined comment because the case is still in litigation. A spokesperson for Texas Attorney General Ken Paxton — a staunch opponent of transgender rights whose office is representing Livingston — didn’t immediately respond to a request for comment.

In his ruling, Smith noted that the 5th Circuit, which covers Texas, Louisiana and Mississippi, has not previously weighed in on the question of whether denying surgery to trans prisoners violates their constitutional rights. Smith cited a 2005 ruling in which the 5th Circuit said TDCJ did not violate the rights of a trans prisoner by refusing to provide hormone therapy.

Earlier this year, the Observer reported that TDCJ recently updated its policy to make it easier for trans prisoners to access hormone therapy. However, the agency has said it does not provide surgery because it considers it to be elective. Clark said Thursday that 333 TDCJ prisoners identify as transgender, but only 32 receive hormone therapy.

Gibson, who’s identified as female since age 15, was denied hormone therapy when she entered prison in 1995, but began receiving it in 2014 in the wake of TDCJ’s policy change.

In addition to surgery, Gibson says she’s been denied the ability to keep her hair long and obtain items such as a sports bra, makeup and earrings.

Smith wrote that TDCJ denied those requests because allowing Gibson to present as female “would be disruptive to her environment,” adding that providing trans prisoners with surgery would create “security issues.”

Nell Gaither, president of Trans Pride Initiative in Dallas, said she was “very disappointed” in Smith’s ruling.

“The security risk actually lies with TDCJ and their failure to provide incarcerated trans persons freedom from violence by TDCJ staff and other inmates,” Gaither said. “Instead of looking at the valid expression of gender as a security problem, the court should have been focusing on how the denial of healthcare and basic respect increases the risk of violence against trans persons.”