Case 5:15-cv-00050-MTT Document 29 Filed 04/03/15 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA

ASHLEY DIAMOND,
Plaintiff,
v.
Case No. 5:15-cv-50-MTT-CHW
BRIAN OWENS, et al.,
Defendants.

STATEMENT OF INTEREST OF THE UNITED STATES
Failure to provide individualized and appropriate medical care for inmates suffering from
gender dysphoria 1 violates the Eighth Amendment’s prohibition on cruel and unusual
punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Kothmann v. Rosario, 558 F. App’x
907, 910 (11th Cir. 2014); Fields v. Smith, 653 F.3d 550, 554-55 (7th Cir. 2011); Lynch v. Lewis,
No. 7:14-CV-24, 2014 WL 1813725, at *2 (M.D. Ga. May 7, 2014). In her first Motion for
Preliminary Injunction (ECF No. 1), Plaintiff Ashley Diamond alleges that the Georgia
Department of Corrections (“GDOC”) violated the Eighth Amendment by withholding treatment
for Ms. Diamond’s gender dysphoria against the advice and recommendations of her treating
clinicians.
Ms. Diamond alleges that GDOC withheld this care pursuant to an unconstitutional
“freeze-frame” policy. A “freeze-frame” policy impermissibly prohibits individualized
1

The terms “gender dysphoria,” “gender identity disorder,” and “transsexualism” are used interchangeably in the
case law and the record in this case. The United States uses the term “gender dysphoria” in this Statement of
Interest except when quoting case law or other parts of the record.

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assessment and treatment of individuals with gender dysphoria. Instead, prisoners may only
receive the same level of care they received in the community. Under GDOC’s policy, if an
inmate is not identified as transgender and referred for treatment at intake, he or she may receive
no treatment at all. According to Ms. Diamond, because GDOC did not identify her as
transgender at intake and refer her for additional evaluation, GDOC officials continue to deny
Ms. Diamond treatment pursuant to GDOC’s freeze-frame policy.
Without taking a position on the factual accuracy of Plaintiff’s claims, the United States
files this Statement of Interest to assist the Court in evaluating Ms. Diamond’s Motion. In
particular, the United States files this Statement to bring the Court’s attention to the standards
used to evaluate appropriate medical care for gender dysphoria under the Eighth Amendment and
the unconstitutionality of freeze-frame policies that may prevent such treatment. In cases like
Ms. Diamond’s, gender dysphoria constitutes a serious medical need requiring appropriate
treatment. For that reason, proscriptive freeze-frame policies are facially unconstitutional under
the Eighth Amendment because they do not provide for individualized assessment and treatment.
INTEREST OF THE UNITED STATES
The United States has authority to file this Statement of Interest pursuant to 28 U.S.C §
517, which permits the Attorney General to attend to the interests of the United States in any
case pending in a federal court. 2 The United States enforces the rights of incarcerated
individuals pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. §
1997. CRIPA authorizes the Attorney General to investigate conditions of confinement in
2

The full text of 28 U.S.C. § 517 is as follows: “The Solicitor General, or any officer of the Department of Justice,
may be sent by the Attorney General to any State or district in the United States to attend to the interests of the
United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other
interest of the United States.”

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correctional facilities and bring a civil action against a State or local government that, pursuant to
a “pattern or practice” of conduct, “is subjecting persons residing in or confined to an institution
. . . to egregious or flagrant conditions which deprive such persons of any rights, privileges, or
immunities secured or protected by the Constitution or laws of the United States.” 42 U.S.C. §
1997(a).
The United States has a broad interest in ensuring that conditions of confinement in state
and local correctional facilities are consistent with the Constitution and federal law. To that end,
the Department of Justice has previously exercised its CRIPA authority to investigate
jurisdictions for issues similar to those presented in this case, such as access to adequate medical
and mental health care and protection from harm for lesbian, gay, bisexual, transgender, and
intersex prisoners. 3
The United States also has a strong interest in protecting the rights of lesbian, gay,
bisexual, and transgender individuals more broadly. Accordingly, the United States is active in
litigation involving employment discrimination against transgender individuals under Title VII
of the Civil Rights Act; discrimination and harassment of transgender students in schools under

3

See, e.g., Letter from Loretta King, Acting Assistant Att’y Gen. of the United States, U.S. Dep’t of Justice, to
Marlin N. Gusman, Sheriff, Orleans Parish Sheriff’s Office (Sept. 11, 2009), available at
http://www.justice.gov/crt/about/spl/documents/parish_findlet.pdf (finding that the Orleans Parish Sheriff’s Office
failed to provide Orleans Parish Prison detainees with constitutional levels of medical and mental health care);
Letter from Thomas Perez, Assistant Att’y Gen. of the United States, U.S. Dep’t of Justice, to Carlos A. Gimenez,
Mayor, Miami-Dade Cnty. (Aug. 24, 2011), available at http://www.justice.gov/crt/about/spl/documents/MiamiDade_findlet_8-24-11.pdf (finding that the Miami-Dade County Jail failed to provide detainees with appropriate
medical and mental health care, including screening, chronic care, and access to services for acute needs); Letter
from Jocelyn Samuels, Acting Assistant Att’y Gen. of the United States, U.S. Dep’t of Justice, to Robert Bentley,
Governor, State of Ala. (Jan. 17, 2014), available at
http://www.justice.gov/crt/about/spl/documents/tutwiler_findings_1-17-14.pdf (raising concerns regarding the
treatment of lesbian, gay, bisexual, transgender, and intersex prisoners at Julia Tutwiler Prison for Women).

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Title IX of the Education Amendments of 1972; and discrimination against transgender
individuals in violation of the Fair Housing Act. 4
FACTUAL BACKGROUND
Ms. Diamond’s Complaint (ECF No. 3) and the supporting materials for her Motion for
Preliminary Injunction (ECF No. 2) detail the factual background concerning Ms. Diamond’s
medical history and treatment while incarcerated in the GDOC. Rather than repeat these
allegations in full, the United States summarizes the general factual allegations upon which this
Statement of Interest relies. 5
Ms. Diamond suffers from gender dysphoria. Gender dysphoria is listed in the
Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-V) as a major mental
illness and characterized by a marked incongruence between one’s experienced/expressed gender
and assigned gender at birth. Gender dysphoria involves a persistent physical and emotional
discomfort with one’s biological sex. Left untreated, that discomfort can become so painful that
individuals consider or attempt suicide, self-castration, or self-mutilation. The accepted course of
treatment to alleviate these symptoms often involves allowing the individual to live as his or her
chosen gender, through one or more of the following treatments: changes in gender expression
4

See, e.g., Statement of Interest of the United States, Jamal v. SAKS & Co., No. 4:14-CV-2782 (S.D. Tex. 2015),
ECF No. 1, available at http://www.justice.gov/crt/about/emp/documents/jamalsoi.pdff (Title VII’s prohibition of
discrimination on the basis of sex proscribes discrimination because of transgender status); Statement of Interest of
the United States, Tooley v. Van Buren Pub. Sch., et al., No. 2:14-CV-13466 (E.D. Mich. 2015), ECF No. 64-1,
available at http://www.justice.gov/crt/about/edu/documents/tooleysoi.pdf (discrimination based on transgender
status constitutes discrimination based on sex for purposes of Title IX and Equal Protection Clause of the Fourteenth
Amendment, regardless of whether there is evidence of sex stereotyping); see also Mediated Settlement Order,
United States v. Toone, No. 6:13-CV-744 (E.D. Tex. 2014), ECF No. 45, available at
http://www.justice.gov/crt/about/hce/documents/toonesettle.pdf (settling action brought by United States against
owner of a trailer park in Texas for discrimination against renter based on transgender status in violation of the Fair
Housing Act).
5
As noted above, the United States does not take a position on the accuracy of the facts asserted in Ms. Diamond’s
Complaint and Motion for Preliminary Injunction. The United States assumes those facts to be true for the purposes
of this Statement of Interest.

4

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and role; dressing, grooming, and otherwise outwardly presenting in a manner consistent with
one’s gender identity; hormone therapy; and, in some cases, surgery to change primary and/or
secondary sex characteristics. 6
Ms. Diamond states that she was first diagnosed with gender dysphoria when she was a
teenager, nearly twenty years ago. 7 Ms. Diamond also states that she lived as a female in the
community prior to incarceration, and took feminizing hormones for seventeen years, which
caused her to develop female secondary sex characteristics such as breasts and soft skin. 8 When
GDOC processed Ms. Diamond through intake, she presented as female; identified as
transgender; and discussed her medical history, including her diagnosis of gender dysphoria and
hormone therapy. 9 However, for reasons not explained in the current pleadings, GDOC did not
refer Ms. Diamond for additional evaluation or treatment. Instead, GDOC terminated Ms.
Diamond’s hormone therapy and confiscated her female clothing and undergarments before
placing her in a male facility. 10 This had a profound physical and emotional impact on Ms.

6

Compl. ¶¶ 28-31 (discussing the World Professional Association for Transgender Health, Standards of Care for the
Health of Transsexual, Transgender, and Gender Nonconforming People 9-10 (7th ed. 2011), available at
http://admin.associationsonline.com/uploaded_files/140/files/Standards%20of%20Care%20V7%20%202011%20WPATH.pdf).
7
Compl. ¶¶ 38-39.
8
Compl. ¶ 40.
9
Compl. ¶ 44.
10
See Compl. ¶¶ 45, 64. Ms. Diamond’s complaint and recently-filed Emergency Motion for a Temporary
Restraining Order and Preliminary Injunction (ECF No. 25) raise additional allegations concerning her placement in
a maximum security male facility and GDOC’s failure to protect her from sexual abuse and harassment. Because
those issues were not covered in Ms. Diamond’s Motion for Preliminary Injunction (ECF No. 1), the United States
does not address them in this Statement of Interest. The United States may choose to weigh in on the
constitutionality of GDOC’s conduct on those issues at a later date. The United States has previously investigated
jurisdictions pursuant to CRIPA for failure to protect prisoners from sexual abuse. See generally Letter from
Jocelyn Samuels, Acting Assistant Att’y Gen. of the United States, U.S. Dep’t of Justice, to Robert Bentley,
Governor, State of Ala. (Jan. 17, 2014), available at
http://www.justice.gov/crt/about/spl/documents/tutwiler_findings_1-17-14.pdf (concluding that administrators at the
Julia Tutwiler Prison for Women failed to keep women prisoners safe from harm due to sexual abuse and
harassment from correctional staff); Letter from Thomas E. Perez, Assistant Att’y Gen. of the United States, U.S.
Dep’t of Justice, to Samuel Brownback, Governor, State of Kan. (Sept. 6, 2012), available at

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Diamond. Terminating her hormone therapy created painful side effects, including chest pains,
heart palpitations, clinically significant depression, and increased thoughts of suicide,
hopelessness and anxiety. 11 According to Ms. Diamond, her gender dysphoria is so severe that
she has attempted suicide and self-castration on multiple occasions during her incarceration. 12
Multiple GDOC clinicians later confirmed Ms. Diamond’s gender dysphoria. Those
GDOC clinicians recommended treatment, including hormone therapy and allowing Ms.
Diamond to outwardly express her female gender identity through dress and adherence to female
grooming standards. 13 GDOC never provided this recommended treatment. 14 When Ms.
Diamond requested treatment consistent with her clinician’s recommendations, GDOC officials
told her that such treatment was either not available or prohibited by GDOC’s freeze-frame
policy. 15 That policy prohibits initiating new treatments for gender dysphoria for prisoners who
either did not receive such treatments in the community, or who were not identified as
transgender and referred for such treatment during the intake process. 16 Ms. Diamond filed this
suit to combat this policy and obtain the treatment recommended by her GDOC clinicians.
DISCUSSION
Ms. Diamond claims that the GDOC violated her constitutional right to be free from cruel
and unusual punishment under the Eighth Amendment by failing to provide her with adequate
treatment for her gender dysphoria. Ms. Diamond is challenging both the individual treatment

http://www.justice.gov/crt/about/spl/documents/topeka_findings_9-6-12.pdf (concluding that administrators at the
Topeka Correctional Facility fail to protect women prisoners from harm due to sexual abuse and misconduct).
11
See generally Compl. ¶¶ 5, 96, 121, 138-39.
12
See generally Compl. ¶¶ 38-39, 44, 73-76, 90, 96-97, 104, 116-18.
13
See Compl. ¶¶ 75, 96.
14
See Compl. ¶¶ 75-76, 95-97.
15
See Compl. ¶¶ 74-76, 79-91, 95-97, 107-10, 117-18.
16
Compl. ¶¶ 48-50.

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she received, and the constitutionality of the GDOC policy that she believes prevented her
treatment. Accordingly, Ms. Diamond is currently seeking two preliminary injunctions: one
directing Defendants to provide her with medically necessary treatment for her gender dysphoria,
including hormone therapy and allowing her to express her female gender through grooming,
pronouns, and dress, and the second enjoining Defendants from enforcing their freeze-frame
policy, which Ms. Diamond asserts contributes to the on-going violation of her Eighth
Amendment Rights. 17
The Court should grant Ms. Diamond’s request for a preliminary injunction if it finds that
(1) she has a strong likelihood of success on the merits of her underlying claims; (2) she will
suffer irreparable injury unless the injunction issues; (3) the threatened injury outweighs
whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the
injunction would not be adverse to the public interest. Am.’s Health Ins. Plans v. Hudgens, 742
F.3d 1319, 1329 (11th Cir. 2014). Although the United States believes that the facts alleged in
Ms. Diamond’s Motion, if true, would be sufficient to satisfy each of the four elements, 18 it
limits its Statement of Interest to the first prong – whether Ms. Diamond has a substantial
likelihood of success on the merits of her two Eighth Amendment claims. The United States
asserts that, under the facts alleged, Ms. Diamond will be successful in showing that she has thus
far received a constitutionally inadequate level of medical care for her gender dysphoria, and that
the policy preventing her from receiving more appropriate and individualized treatment – the
“freeze-frame” policy – is facially unconstitutional.
17

Pl.’s Mot. for Prelim. Inj. 1, ECF No. 1.
In particular, the facts as alleged indicate that Ms. Diamond will experience irreparable harm if a preliminary
injunction is not granted. Ms. Diamond continues to experience significant distress as a result of being forced to live
as a man, and medical personnel familiar with gender dysphoria who evaluated Ms. Diamond indicated that she is at
an “extremely high risk of continued decompensation and suicide.” Mem. in Supp. of Prelim. Inj. 18, ECF No. 2.
18

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I.

GDOC Violates the Eighth Amendment by Failing to Provide Ms. Diamond with
Adequate Medical Treatment for her Serious Medical Needs
Ms. Diamond must meet two elements to prevail on an Eighth Amendment claim for

inadequate medical care. First, Ms. Diamond must show that she has an objectively serious
medical need. See Estelle, 429 U.S. at 104. Second, Ms. Diamond must show that prison
officials were “deliberately indifferent” to that need, meaning they knew there was a substantial
risk of harm to Ms. Diamond if the need was not met, yet they disregarded that risk by conduct
that amounted to more than mere negligence. See Farmer v. Brennan, 511 U.S. 825, 837 (1970);
Kothmann, 558 F. App’x at 910; Lancaster v. Monroe Cnty., Ala., 116 F.3d 1419, 1425 (11th
Cir. 1997).
a. Ms. Diamond’s gender dysphoria and risk of self-harm constitute serious medical
needs under the Eighth Amendment
The first element is easily met in this case. An “objectively serious medical need” is
considered “one that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s attention.”
Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (quoting Farrow v. West, 320 F.3d
1235, 1243 (11th Cir. 2003)). Courts have routinely held that gender dysphoria is a serious
medical need under the Eighth Amendment. Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011);
Allard v. Gomez, 9 F. App’x 793, 794 (9th Cir. 2001) (citing Meriwether v. Faulkner, 821 F.2d
408, 412-13 (7th Cir. 1987)); White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988); Soneeya v.
Spencer, 851 F. Supp. 2d 228, 243 (D. Mass. 2012); Wolfe v. Horn, 130 F. Supp. 2d 648, 652
(E.D. Pa. 2001). 19 Here, GDOC clinicians diagnosed Ms. Diamond with gender dysphoria
19

These courts’ conclusions are consistent with the views of the preeminent medical and professional associations
that gender dysphoria is a serious medical condition for which treatment is necessary and effective. See, e.g.,

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during her first few years of incarceration. Those with training on gender dysphoria
recommended hormone therapy and allowing Ms. Diamond to express her female gender
identity. Ms. Diamond’s gender dysphoria therefore constitutes a serious medical need
deserving of adequate treatment under the Eighth Amendment.
Further, Ms. Diamond has a documented risk of engaging in self-harm, which may
constitute a serious medical need separate from the underlying gender dysphoria deserving of
treatment under the Eighth Amendment. See De’lonta v. Angelone (De’lonta I), 330 F.3d 630,
634 (4th Cir. 2003) (“De’lonta’s need for protection against continued self-mutilation constitutes
a serious medical need to which prison officials may not be deliberately indifferent.”) (citing Lee
v. Downs, 641 F.2d 1117, 1121 (4th Cir. 1981) (explaining that “prison officials have a duty to
protect prisoners from self-destruction or self-injury”)). Ms. Diamond’s extensive history of
attempting suicide and self-castration demonstrate that she has a second serious medical need,
distinct from her diagnosis of gender dysphoria – the need to be kept safe from self-harm.
b. GDOC knew of Ms. Diamond’s serious medical needs and the risk they posed to
her health and safety, yet unconstitutionally disregarded that risk
The second element of an Eighth Amendment claim is also clear in this case. Ms.
Diamond has shown that GDOC officials’ conduct amounts to deliberate indifference, because
they knew of and disregarded her serious medical needs that created a risk to Ms. Diamond’s
health and safety. Under the facts as alleged, GDOC officials knew of Ms. Diamond’s gender
American Medical Association, Resolution: Removing Financial Barriers to Care for Transgender Patients (2008),
available at http://www.tgender.net/taw/ama_resolutions.pdf; American Psychological Association, Transgender,
Gender Identity & Gender Expression Non-Discrimination (2008), available at
http://www.apa.org/about/policy/transgender.pdf; World Professional Association of Transgender Health, WPATH
Clarification on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage for Transgender and
Transsexual People Worldwide (2008), available at
http://www.wpath.org/uploaded_files/140/files/Med%20Nec%20on%202008%20Letterhead.pdf.

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dysphoria, past suicide attempts, self-mutilation, and attempts at self-castration. The issue then
becomes whether GDOC officials impermissibly disregarded Ms. Diamond’s medical needs and
the risks they posed.
Under any rubric, GDOC did not provide Ms. Diamond with adequate care. Although
prisoners do not have the right to the medical treatment of their choice, the important
consideration under the Eighth Amendment is not whether any care was provided, but rather
whether the level of care provided was constitutionally adequate. See Estelle, 429 U.S. at 10306; Kothmann, 558 F. App’x at 910; De’lonta v. Johnson (De’lonta II), 708 F.3d 520, 526 (4th
Cir. 2013) (holding that “just because [Defendants] have provided [Plaintiff] with some
treatment consistent with the [WPATH Standards of Care], it does not follow that they have
necessarily provided her with constitutionally adequate treatment.”) (emphasis in original);
Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007) (“plaintiff’s receipt of some medical care
does not automatically defeat a claim of deliberate indifference”). Indifference to a serious
medical need can occur in many forms, “whether . . . manifested by prison doctors in response to
the prisoner’s needs” or by officials “intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once proscribed.” Estelle, 429 U.S. at 105-06.
“Delays, poor explanations, missteps, changes in position, and rigidities” which result in the
delay or denial of adequate treatment may be sufficient to prove deliberate indifference. Battista,
645 F.3d at 455.
In assessing Ms. Diamond’s Eighth Amendment claim, the Court should determine
whether the current course of treatment is medically adequate, which may be informed by
current professional standards of care. Estelle, 429 U.S. at 102 (courts should look to the
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“evolving standards of decency that mark the progress of a maturing society.”); United States v.
DeCologero, 821 F.2d 39, 43 (1st Cir. 1987) (the Eighth Amendment requires medical care “at a
level reasonably commensurate with modern medical science and of a quality acceptable within
prudent professional standards.”) (cited with approval in Fernandez v. United States, 941 F.2d
1488, 1493-4 (11th Cir. 1991); see also Kosilek v. Maloney, 221 F. Supp. 2d 156, 180 (D. Mass.
2002); Barrett v. Coplan, 292 F. Supp. 2d 281, 285 (D.N.H. 2003) (“‘Adequate medical care’
requires treatment by qualified medical personnel who provide services that are of a quality
acceptable when measured by prudent professional standards in the community, tailored to an
inmate's particular medical needs, and that are based on medical considerations.”). 20
Two things are clear from the record in this case: one, the generally accepted standards
for treatment of gender dysphoria require treatment decisions be individualized; and two, Ms.
Diamond did not receive individualized care. As other courts have recognized, the World
Professional Association for Transgender Health (WPATH) is “an association of medical,
surgical and mental health professionals specializing in the understanding and treatment of
[gender dysphoria].” See, e.g., O’Donnabhain v. Comm’r, 134 T.C. 34, 36 (2010). Since the
1970s, WPATH has published “Standards of Care,” which set forth WPATH’s recommendations

20

The United States recognizes that in the corrections context additional considerations may weigh against
implementing certain medical recommendations. However, officials must be able to articulate those considerations
with specificity and substantiate that the recommended treatment would give rise to concerns that cannot otherwise
be adequately addressed. General, amorphous security concerns cannot be grounds for refusing to provide
medically recommended treatment. See, e.g., Soneeya, 851 F. Supp. 2d at 250 (finding deliberate indifference
where DOC failed to engage in individualized inquiry into prisoner’s medical needs and security implications of
various treatments, and instead relied on blanket prohibitions and “amorphous security concerns” as grounds to
refuse treatment). Specific security concerns must be balanced against the medical need. And, importantly, officials
cannot deny treatment merely because it is expensive or controversial. See Kosilek, 221 F. Supp. 2d at 192; Barrett,
292 F. Supp. 2d at 286 (“[T]he Eighth Amendment does not permit necessary medical care to be denied to a prisoner
because the care is expensive or because it might be controversial or unpopular.”).

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for the treatment of gender dysphoria and the research supporting those recommendations. 21 The
Standards, which were most recently updated in 2011, make clear that a variety of therapeutic
interventions may be appropriate, and that the necessary course of treatment must be determined
on an individual basis. 22 Importantly, however, the Standards of Care recognize that the
appropriate course of treatment should be decided after evaluation by a qualified medical
professional who has specific knowledge of and training in the diagnosis and treatment of gender
dysphoria. 23 Here, GDOC displayed deliberate indifference by ignoring its clinicians’
individualized treatment recommendations for Ms. Diamond. GDOC clinicians with training on
gender dysphoria reconfirmed Ms. Diamond’s gender dysphoria diagnosis. Based on their
individualized assessments and clinical training, these doctors recommended hormone therapy
and permission to express female gender identity as the appropriate course of treatment for Ms.
Diamond, given the severity of her symptoms and the recommendations contained in the
Standards of Care. Yet, GDOC never provided any part of this treatment. Instead, GDOC
officials told Ms. Diamond that GDOC does not provide treatment for gender dysphoria beyond
antipsychotic medication and/or basic counseling, and that further treatment would be denied
pursuant to GDOC policy. GDOC delayed referrals to appropriate health care providers, denied
the care recommended by Ms. Diamond’s treating clinicians, and otherwise refused to
acknowledge Ms. Diamond’s serious medical needs. These delays and failures to follow medical
determinations amount to deliberate indifference. Battista, 645 F.3d at 455.

21

World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual,
Transgender, and Gender Nonconforming People (7th ed. 2011), available at
http://admin.associationsonline.com/uploaded_files/140/files/Standards%20of%20Care%20V7%20%202011%20WPATH.pdf.
22
Id. at 8.
23
See generally id. at 22-23.

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Indeed, Ms. Diamond’s assertion that she was on feminizing hormones in the community
for seventeen years and that GDOC abruptly discontinued this treatment upon intake is
especially troubling in the Eighth Amendment context. As noted by WPATH, grave
consequences are associated with a sudden withdrawal of hormones, including self-castration
and increased risk of suicide. 24 Ms Diamond’s case was no exception. Abruptly terminating
Ms. Diamond’s medical treatment caused her condition to deteriorate and reversed the years of
therapeutic benefits she experienced by taking hormones in the community. As recognized by
one court, “taking measures which actually reverse the effects of years of healing medical
treatment . . . is measurably worse” than merely failing to provide inmates with care that would
improve their medical state, thereby “making the cruel and unusual determination much easier.”
Phillips v. Mich. Dep’t of Corr., 731 F. Supp. 792, 800 (W.D. Mich. 1990); see also Wolfe, 130
F. Supp. 2d at 653 (“abrupt termination of prescribed hormonal treatments by a prison official
with no understanding of [Plaintiff’s] condition, and failure to treat her severe withdrawal
symptoms or after-effects, could constitute ‘deliberate indifference’”); Fields, 653 F.3d at 554
(“When hormones are withdrawn from a patient who has been receiving hormone treatment,
severe complications may arise. The dysphoria and associated psychological symptoms may
resurface in more acute form.”). Terminating Ms. Diamond’s hormone therapy at intake caused
her great suffering: she has lost breast mass and other female secondary sex characteristics, and
continues to experience physical pain, muscle spasms, heart palpitations, vomiting, dizziness, hot
flashes, and other symptoms of hormone withdrawal. 25

24
25

Id. at 68.
Compl. ¶ 138.

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Based on the facts alleged in the Complaint, GDOC did not provide Ms. Diamond with
constitutionally adequate treatment for her gender dysphoria. Ignoring Ms. Diamond’s need for
such treatment and her history of self-harm and multiple suicide attempts, GDOC made no
efforts to provide Ms. Diamond with anything beyond general counseling and antipsychotic
medication – therapies that were well below the level of treatment that was medically indicated
and recommended by the qualified GDOC medical personnel who evaluated Ms. Diamond. For
these reasons, GDOC was and remains deliberately indifferent to Ms. Diamond’s serious medical
needs.
II.

“Freeze-Frame” policies do not adequately address the individualized medical needs
of inmates and therefore violate the Eighth Amendment
Ms. Diamond’s Motion for Preliminary Injunction not only challenges her individual

treatment – it also addresses the facial constitutionality of GDOC’s policy regarding the
treatment of all individuals with gender dysphoria in GDOC custody. Because GDOC’s policy
amounts to a blanket prohibition of certain treatments for certain inmates, without regard to an
individual’s medical needs or their progression over time, it does not pass constitutional muster,
and must be struck down.
GDOC Standard Operating Procedure VH47-0006, “Management of Transsexuals,”
states that prisoners identified as transgender at intake should be referred for medical
evaluation. 26 However, the policy also states that GDOC will only provide “maintenance” of a
prisoner’s “transgender status,” 27 meaning that GDOC will not begin new treatments or advance
the level of care for transgender prisoners beyond that which they received in the community.
26

GDOC Standard Operating Procedure VH47-0006, “Management of Transsexuals,” Mem. in Supp. of Mot.
Prelim. Inj. 2, Ex. 3, ECF No. 2-3.
27
Id.

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Under this policy, prisoners must be identified as transgender at intake and referred for further
evaluation in order to receive any treatment, and the treatment they may receive is decidedly
limited. 28 As a result, many prisoners – including those not identified at intake, or those whose
gender dysphoria worsens during their incarceration – are denied the medical care necessary to
protect their health and safety.
Such a policy cannot stand under the Eighth Amendment. Courts have continuously
struck down similar policies that place a blanket prohibition on certain kinds of medical care. In
Fields v. Smith, 653 F.3d 550, 557-58 (7th Cir. 2011), the Seventh Circuit considered a
Wisconsin state statute that prohibited the Wisconsin Department of Corrections from providing
hormone therapy or sexual reassignment surgery to prisoners. The district court found the statute
to be facially unconstitutional because “[t]he statute applies irrespective of an inmate’s serious
medical need or the DOC’s clinical judgment.” Id. at 559 (citing Fields v. Smith, 712 F. Supp.
2d 830, 867 (E.D. Wisc. 2010)). In upholding the district court’s determination, the Circuit
noted that “[j]ust as the legislature cannot outlaw all effective cancer treatments for prison
inmates, it cannot outlaw the only effective treatment for a serious condition like [gender
dysphoria.” Id. at 557. Other courts to consider similar blanket prohibitions on treatment for
gender dysphoria have reached the same conclusions. See, e.g., De’lonta I, 330 F.3d at 635
(terminating hormone treatment based on blanket policy may amount to Eighth Amendment
28

As Ms. Diamond points out, this is especially problematic if intake personnel are not trained on gender dysphoria.
See Compl. ¶ 48. Under GDOC policy, intake personnel are the only line of defense for transgender prisoners in
need of treatment for gender dysphoria. If intake personnel are untrained or unaware on the basic of this condition,
prisoners in need of such treatment will not be referred and will subsequently be denied necessary care. For
example, it is unclear why Ms. Diamond herself was not referred for evaluation for gender dysphoria after
presenting as transgender at intake; presumably, Ms. Diamond should have been referred pursuant to GDOC policy
given her self-identification as transgender, her medical history, and her use of hormones in the community. Yet,
because she was not referred and properly diagnosed at the initial intake stage, Ms. Diamond continued to be denied
treatment pursuant to GDOC policy throughout her incarceration.

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violation); Allard, 9 F. App’x at 795 (denial of hormone therapy based on blanket rule rather
than individualized medical evaluation constitutes deliberate indifference).
Blanket prohibitions on all gender dysphoria treatment are identical to freeze-frame
policies for the purposes of the Eighth Amendment; both types of policies strike an arbitrary line
that preclude individualized medical evaluations and proscribe physician’s ability to provide
appropriate care. Soneeya, 851 F. Supp. 2d at 243-44; Kosilek, 221 F. Supp. 2d at 193
(presumptive freeze-frame policies are constitutionally permissible only if exceptions are made
when necessary, as determined by sound medical judgment and adherence to prudent
professional standards); Barrett, 292 F. Supp. at 286 (“A blanket policy that prohibits a prison's
medical staff from making a medical determination of an individual inmate's medical needs and
prescribing and providing adequate care to treat those needs violates the Eighth Amendment.”).
For example, in Brooks v. Berg, a district court considered the constitutionality of the
New York Department of Correctional Services’ (NYDOCS) freeze-frame policy. Brooks v.
Berg, 270 F. Supp. 2d 302, 312 (N.D.N.Y. 2003) vacated in part on other grounds, 289 F. Supp.
2d 286 (N.D.N.Y. 2003). Under that policy, NYDOCS provided treatment for gender dysphoria
only to those prisoners who could prove they received such treatment prior to incarceration. Id.
at 305. There was no dispute that the plaintiff in Brooks was denied treatment for her GID;
rather, defendants claimed qualified immunity on the grounds that they were following
NYDOCS policy. Id. at 312. The district court rejected the defendants’ immunity argument and
held that NYDOCS’ freeze-frame policy was facially unconstitutional. Id. In reaching this
conclusion, the district court noted that the Eighth Amendment requires adequate treatment for
all serious medical needs, and that “[t]here is no exception to this rule for serious medical needs
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that are first diagnosed in prison.” Id. This Court should reach a similar conclusion in the instant
case.
Recognizing the need to treat prisoners according to their needs, rather than blanket rigid
policies, the Federal Bureau of Prisons recently adopted a policy requiring an individualized
assessment of the health needs of transgender prisoners. 29 The current policy, Federal Bureau of
Prisons Program Statement 6031.04 (“Patient Care”), provides that prisoners in Bureau custody
with a possible diagnosis of gender dysphoria “will receive a current individualized assessment
and evaluation” and “[t]reatment options will not be precluded solely due to level of services
received, or lack of services, prior to incarceration.” 30
For the above stated reasons, freeze-frame policies are facially unconstitutional. Ms.
Diamond did not receive the treatment she needed because GDOC administrators purportedly
followed GDOC’s unconstitutional freeze-frame policy to determine the level of care to provide
to Ms. Diamond. The United States therefore urges the Court to find that Ms. Diamond will
have a strong likelihood of success on the merits of her facial challenge to GDOC’s current
policy governing the treatment of gender dysphoria.
CONCLUSION
Failure to provide adequate treatment for transgender inmates with gender dysphoria
constitutes cruel and unusual punishment under the Eighth Amendment. Freeze-frame policies
29

This policy came about as a result of litigation similar to the instant case. In 2009, Vanessa Adams, a Bureau
prisoner, sued the Bureau for the Bureau’s failure to treat her gender dysphoria. At the time, the Bureau followed a
“freeze-frame” policy, similar to GDOC’s policy, which allowed prisoners with gender dysphoria to receive only the
level of treatment they received in the community prior to incarceration. In 2011, Ms. Adams and the Bureau settled
Ms. Adams claims – the Bureau reformed its policy and agreed to provide Ms. Adams with medically necessary
treatment for her gender dysphoria. See generally Adams v. Federal Bureau of Prisons, No. 09-CV-10272 (D.
Mass.).
30
U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program Statement 6031.04 (“Patient Care”) at 42, June 3, 2014,
available at http://www.bop.gov/policy/progstat/6031_004.pdf.

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and other policies that apply blanket prohibitions to such treatment are facially unconstitutional
because they fail to provide individualized assessment and treatment of a serious medical need.
Accordingly, the United States urges the Court to (1) find that Ms. Diamond has a substantial
likelihood of success on the merits of her claims, (2) declare that GDOC’s freeze-frame policy is
facially unconstitutional under the Eighth Amendment, and (3) issue appropriate injunctive
relief.
Respectfully submitted,
MICHAEL J. MOORE
United States Attorney
Middle District of Georgia

VANITA GUPTA
Acting Assistant Attorney General
Civil Rights Division
United States Department of Justice

BERNARD SNELL (GA 665692)
Assistant United States Attorney
Middle District of Georgia
300 Mulberry Street, Suite 400
Macon, GA 31201
(478) 752-3511

MARK KAPPELHOFF
Deputy Assistant Attorney General
Civil Rights Division
JUDY PRESTON
Acting Chief
Civil Rights Division
Special Litigation Section
JULIE ABBATE
Deputy Section Chief
Civil Rights Division
Special Litigation Section

/s
SHARON BRETT (NY 5090279)
Trial Attorney
Civil Rights Division
Special Litigation Section
Telephone: (202) 353-1091
Sharon.Brett@usdoj.gov

Attorneys for the United States of America
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 Case 5:15-cv-00050-MTT Document 29 Filed 04/03/15 Page 19 of 19

CERTIFICATE OF SERVICE
I hereby certify that on April 3, 2015, a copy of the foregoing was filed electronically.
Notice of this filing will be sent by email to all parties by operation of the Court’s electronic
filing system. Parties may access this filing through the Court’s CM/ECF System.

__/s/_________________________
SHARON BRETT (NY 5090279)
Trial Attorney
Civil Rights Division
Special Litigation Section
Telephone: (202) 353-1091
Sharon.Brett@usdoj.gov
Attorney for the United States of America

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