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Jailed Killer to Get Sex Change Treatment
New York Law Journal | Date Received: July 15, 2003 | By John Caher
ALBANY — A convicted killer seeking a sex change is entitled, at taxpayer expense, to medical treatment that could lead to gender reassignment, a federal judge in Albany held yesterday.
U.S. District Judge Lawrence E. Kahn said the state cannot draw a distinction between prisoners who began treatment for a gender identity disorder before incarceration and those who discover their transsexual issues while in prison.
Currently, the state allows prisoners who commenced the process of gender reassignment before they were imprisoned to continue their treatment, but denies that option to inmates who seek to initiate procedures once they are behind bars.
"Surely inmates with diabetes, schizophrenia, or any other serious medical need are not denied treatment simply because their conditions were not diagnosed prior to incarceration," Judge Kahn said.
The judge made clear that he is not ordering a sex change or a specific medical regimen for Mark L. Brooks, a/k/a Jessica M. Lewis. Rather, he is requiring the state to provide medical and psychiatric services to determine the appropriate course of action.
"Prison officials are . . . obliged to determine whether plaintiff has a serious medical need and, if so, to provide him with at least some treatment," Judge Kahn said in Brooks/Lewis v. Berg, 00-CV-1433.
The ruling, which rejects a report-recommendation by U.S. Magistrate Judge Gustave J. DiBianco, arises out of a pro se action initiated by Mr. Brooks.
Mr. Brooks, a 34-year-old prisoner at Clinton Correctional Facility serving a 50-year-to-life term for a Putnam County murder, contends he was aware of his female identity since childhood but became familiar with gender identity disorder (GID) while imprisoned. GID, also known as gender dysphoria and transsexualism, is a medically and judicially recognized psychiatric disorder. Since 1998, the inmate has been seeking the diagnostic psychotherapy he believes will ultimately lead to "electrolysis, vocal chord modulation, breast implant surgery" and other procedures to complete his transformation from Mark Brooks to Jessica Lewis.
However, the state Department of Correctional Services has a policy in which it may continue therapy for prisoners who commenced the procedure before they are sent to prison, but "[d]uring incarceration transsexual surgical operations are not honored." It relied on that policy in denying treatment to Mr. Brooks.
Yesterday, Judge Kahn rejected the state's defense and held for Mr. Brooks on the grounds of due process and the strictures against cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution. He said the state failed to provide "adequate treatment for [Mr. Brooks'] serious medical needs," and did not "explain the puzzling distinction that the policy makes between those inmates who were diagnosed before incarceration and those who were diagnosed after being incarcerated."
Assistant Attorney General Sean M. Seeley appeared for the state. The Department of Correctional Services declined comment.
Paul Larrabee, spokesman for the attorney general, noted that Judge Kahn dismissed almost all of the actions against individual defendants. Mr. Larrabee said the state's conduct was "reasonable and appropriate," and added that the Department of Law is considering an appeal.
New York Law Journal | Date Received: July 15, 2003 | By John Caher
ALBANY — A convicted killer seeking a sex change is entitled, at taxpayer expense, to medical treatment that could lead to gender reassignment, a federal judge in Albany held yesterday.
U.S. District Judge Lawrence E. Kahn said the state cannot draw a distinction between prisoners who began treatment for a gender identity disorder before incarceration and those who discover their transsexual issues while in prison.
Currently, the state allows prisoners who commenced the process of gender reassignment before they were imprisoned to continue their treatment, but denies that option to inmates who seek to initiate procedures once they are behind bars.
"Surely inmates with diabetes, schizophrenia, or any other serious medical need are not denied treatment simply because their conditions were not diagnosed prior to incarceration," Judge Kahn said.
The judge made clear that he is not ordering a sex change or a specific medical regimen for Mark L. Brooks, a/k/a Jessica M. Lewis. Rather, he is requiring the state to provide medical and psychiatric services to determine the appropriate course of action.
"Prison officials are . . . obliged to determine whether plaintiff has a serious medical need and, if so, to provide him with at least some treatment," Judge Kahn said in Brooks/Lewis v. Berg, 00-CV-1433.
The ruling, which rejects a report-recommendation by U.S. Magistrate Judge Gustave J. DiBianco, arises out of a pro se action initiated by Mr. Brooks.
Mr. Brooks, a 34-year-old prisoner at Clinton Correctional Facility serving a 50-year-to-life term for a Putnam County murder, contends he was aware of his female identity since childhood but became familiar with gender identity disorder (GID) while imprisoned. GID, also known as gender dysphoria and transsexualism, is a medically and judicially recognized psychiatric disorder. Since 1998, the inmate has been seeking the diagnostic psychotherapy he believes will ultimately lead to "electrolysis, vocal chord modulation, breast implant surgery" and other procedures to complete his transformation from Mark Brooks to Jessica Lewis.
However, the state Department of Correctional Services has a policy in which it may continue therapy for prisoners who commenced the procedure before they are sent to prison, but "[d]uring incarceration transsexual surgical operations are not honored." It relied on that policy in denying treatment to Mr. Brooks.
Yesterday, Judge Kahn rejected the state's defense and held for Mr. Brooks on the grounds of due process and the strictures against cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution. He said the state failed to provide "adequate treatment for [Mr. Brooks'] serious medical needs," and did not "explain the puzzling distinction that the policy makes between those inmates who were diagnosed before incarceration and those who were diagnosed after being incarcerated."
Assistant Attorney General Sean M. Seeley appeared for the state. The Department of Correctional Services declined comment.
Paul Larrabee, spokesman for the attorney general, noted that Judge Kahn dismissed almost all of the actions against individual defendants. Mr. Larrabee said the state's conduct was "reasonable and appropriate," and added that the Department of Law is considering an appeal.
