April 24, 2012
A Virginia inmate is getting some help in her fight to have the state pay for a sex change operation — the only thing she says will prevent her from performing the surgery herself.
Alexandria Attorney Victor Glasberg argues in a brief filed Friday that a federal court was wrong to toss out inmate Ophelia De'Lonta's self-filed lawsuit in October. Glasberg, who helped De'Lonta win the right to female hormones nearly a decade ago, will represent her in an appeal before the 4th Circuit U.S. Court of Appeals.
U.S. District Judge James Turk dismissed the lawsuit because he said the Virginia Department of Corrections was adequately treating De'Lonta's gender identity disorder, a mental diagnosis in which people believe they were born the wrong sex. Turk said courts have ruled that inmates are guaranteed only minimum care, not preferred therapies.
De'Lonta was born a man but claims her disorder is so severe that it causes her to attempt castration and that the surgery is the only thing that will make her stop.
Glasberg argues a medical professional with experience treating gender identity disorder — not a judge or a prison official — should decide whether the surgery is appropriate. He says the appeal is not asking for the surgery, only that De'Lonta be evaluated to determine if the surgery is necessary.
The attorney argues the "pain, anguish and suffering" caused by De'Lonta's gender identity disorder constitutes a serious medical need, reflected by records that show she has tried to mutilate her genitalia more than 20 times while in prison.
"She has engaged in this behavior not because she delights in hurting herself, but because her repulsion is so overwhelming that it is uncontrollable," he wrote in the brief.
Since 2004, De'Lonta has been given hormone treatments, psychotherapy and other allowances, such as requiring prison officials to address her as a woman and allow her to wear some female clothing, because of a settlement with the state negotiated by Glasberg. The hormones have caused De'Lonta to develop noticeable breasts and other feminine features.
In that case, Turk also had dismissed De'Lonta's claims, but the 4th Circuit sent the case back to the district court for further review. The state agreed in the settlement to provide the treatment.
De'Lonta says the therapy no longer works and that she can't control the urge to mutilate her genitals. She and Glasberg point to established treatment guidelines that say the roughly $20,000 surgery is needed in severe cases of gender identity disorder.
"The persistent and serious — indeed, potentially life-threatening — manifestations of Ms. De'Lonta's GID despite years of hormone therapy and cross-living, compel the conclusion that her current GID treatment is inadequate," Glasberg wrote, arguing that the surgery is needed in rare, very severe cases.
In his October opinion, Turk cited federal court rulings that say there is nothing cruel and unusual about denying inmates treatments "that only the wealthy can afford." He wrote that De'Lonta was not being denied medical care, only her preferred treatment — surgery.
In interviews with the AP, De'Lonta has said she fears she will someday die from trying to perform the surgery on herself.
A Department of Corrections spokesman declined to comment because the case was pending.
De'Lonta has been in prison since 1983, serving a 73-year sentence for bank robbery and other charges.
She filed the lawsuit against Department of Corrections officials, prison doctors and mental health directors last year, claiming that she had not received adequate medical treatment for her disorder, that the failure to do so had caused her to attempt to castrate herself and that she had been punished for doing so.
She was hoping to become the first inmate in the nation to receive a state-funded sex change operation. Similar lawsuits have failed in a handful of other states, and lawmakers in some states are trying to ban the use of taxpayer money for the operations. Meanwhile, inmates in several states have sued and won the right to hormone treatments.
De'Lonta's case is similar to the Massachusetts case of convicted murderer Michelle Kosilek — born Robert — who argues her surgery is a medical necessity. She says state officials have violated her constitutional rights by refusing to provide the operation. Kosilek has received hormone treatments and lives as a woman in an all-male state prison. Her case has been ongoing for more than 20 years, and a judge in August apologized for the delay in issuing a ruling.