Harris’ Record on Gender-Affirming Care for Federal Prisoners
Although Trump’s advertisement takes Harris’ 2019 comments on transgender inmates out of context, she did give broader support for gender-affirming care for prisoners in response to the 2019 ACLU questionnaire.
The ACLU questionnaire asked, “As President will you use your executive authority to ensure that transgender and nonbinary people who rely on the state for medical care — including those in prison and immigration detention — will have access to comprehensive treatment associated with gender transition, including all necessary surgical care? If yes, how will you do so?”
Harris checked a box answering “Yes,” before elaborating:
Harris, 2019 ACLU questionnaire: It is important that transgender individuals who rely on the state for care receive the treatment they need, which includes access to treatment associated with gender transition. That’s why, as Attorney General, I pushed the California Department of Corrections and Rehabilitation to provide gender transition surgery to state inmates. I support policies ensuring that federal prisoners and detainees are able to obtain medically necessary care for gender transition, including surgical care, while incarcerated or detained. Transition treatment is a medical necessity, and I will direct all federal agencies responsible for providing essential medical care to deliver transition treatment.
At the time, no federal prisoner had received gender-affirming surgery. The first gender-affirming surgery was provided to a U.S. federal prisoner in 2022, after a federal court ruling stated that the government was required to provide this care. A second surgery took place in 2023.
Actions taken during the Biden-Harris administration have indicated some support for necessary medical care for transgender inmates. The Department of Justice has provided statements of interest in cases in which state prisoners have sought gender-affirming care. These statements note that, among other legal bases, the Eighth Amendment’s prohibition of cruel and unusual punishment requires adequate care for prisoners, including those with gender dysphoria. Gender dysphoria is a diagnosis that some but not all transgender people have, and refers to intense distress over the mismatch between a person’s sex assigned at birth and their gender identity.
In 2022, the BOP reissued a Transgender Offender Manual for how to treat federal prisoners, following Trump-era changes made to the document. In response to questions about gender-affirming care, a BOP spokesperson sent us a link to this document. Among other policies, the document now addresses gender-affirming surgery.
“For transgender inmates in Bureau custody, surgery may be the final stage in the transition process and is generally considered only after one year of clear conduct and compliance with mental health, medical, and programming services at the gender affirming facility,” the document reads, while acknowledging that not all transgender inmates even want these surgeries.
Nor is asking for gender-affirming surgery a guarantee that a federal prisoner will get it. The manual simply says that the requests will be considered. The BOP spokesperson confirmed to us that two federal inmates have gotten these surgeries to date. There are 1,461 transgender female prisoners and 770 transgender male prisoners currently in the custody of BOP, according to the agency.
Context on Gender-Affirming Care for Immigrant Detainees
In his recent comments on free “sex change” surgeries, Trump has often focused on the idea that Harris wants to give these surgeries to immigrant detainees.
However, as we’ve said, we weren’t able to find a record of immigrant detainees having gotten these surgeries.
Immigrants who are detained while trying to enter the U.S. may be held by Customs and Border Patrol. These detainees should “generally not be held for longer than 72 hours in CBP hold rooms or holding facilities,” according to the agency. A report found that people were in custody for an average of 62 to 74 hours between October 2022 and June 2023, depending on the type of CBP facility.
People may be in U.S. Immigration and Customs Enforcement custody for longer, but stays are still supposed to be relatively short. The average length of stay for a person detained by ICE in 2024 so far is 47 days. As of Sept. 8, there have been 231 transgender detainees booked into ICE custody in 2024, and there are currently 47 transgender people in custody, according to ICE statistics, although groups that advocate for transgender people in detention have said the ICE statistics are probably an undercount.
In a statement to FactCheck.org, an ICE spokesperson mentioned emergent care needs, a phrase typically used to refer to health care that is needed immediately to stave off significant harm. “The agency recognizes that detained transgender noncitizens have unique needs while in ICE custody,” the spokesperson said in an email. “In response to those needs, we have developed structures within our operation to safeguard their rights and ensure their emergent care needs are met from the moment they arrive and throughout the entirety of their stay.”
Gender-affirming surgery is not usually a quick process. As we’ve said, there is a waiting period of one year before federal inmates can even seek gender-affirming surgery. Experts also told The 19th, a nonprofit news site that writes about gender issues, that a waiting period for gender-affirming surgery is common whether someone is in a prison or not.
A 2015 ICE memorandum outlines policies for transgender detainees, including some recommendations on gender-affirming care, Dr. Elizabeth Kvach, a Colorado family physician with experience providing medical care to transgender individuals in immigration detention, told us. This includes recommendations that detainees be given access to “mental health care and other transgender-related health care and medication (such as hormone therapy) based on medical need.”
Kvach said that in her experience in Colorado, transgender detainees are given access, if desired, to “evaluation for initiation and/or continuation of hormone therapy for affirmation of their gender identity while detained.” However, she was not aware of instances of care extending to gender-affirming surgery.
“To the best of my knowledge, in the decade I have been doing this work in Colorado there have been no transgender detainees who have sought or received gender affirming surgeries while in immigration detention,” Kvach said, while acknowledging that she “cannot speak to practices in other detention facilities or states.”
Elana Redfield, federal policy director at the Williams Institute at the UCLA School of Law, also shared a recent report indicating that some transgender and other detainees had trouble getting hormone therapy or other medical care, “let alone surgical treatments,” she said, although she noted that only a small number of people were interviewed.
For the report, representatives of nonprofit organizations interviewed 41 LGBTQ+ and HIV-positive immigrants pursuing asylum and held by CBP and ICE, including 14 people identifying as transgender. Four transgender detainees reported trouble getting hormone therapy, while a transgender woman who had previously gotten breast implants told a story of receiving delayed and inadequate medical care after one of her implants burst while in ICE custody.
“What we’re seeing there is an enormous unmet need for even basic health care,” Kellan Baker, a health services researcher with expertise in cost-related issues and transgender health, told us of the experience of immigrants in detention. Baker is executive director of Whitman-Walker Institute, a research and policy institute affiliated with a Washington, D.C., community health center. The institute’s mission is “advancing the health and wellbeing of LGBTQ+ people, people living with HIV, and other groups facing barriers to quality care.”
“No one is taking advantage of being in a prison system or in immigration detention to try to get care that they don’t need,” he said.
https://www.factcheck.org/2024/10/harri ... detainees/