Donald Trump has repeatedly attacked his Democratic opponent, Vice President Kamala Harris, by claiming she supports “tax-payer funded transgender operations on illegal aliens in prison.” His presidential campaign’s most aired and most expensive ad stokes fears about transgender people and zeros in on Harris’ previous comments in which she signaled her support for incarcerated trans people to access gender-affirming surgeries.
Trump’s rhetoric shows no signs of going away ― even though new polling shows even many Republicans find it off-putting ― and the longer it floods the airwaves, the more it obscures the reality of what it’s like for trans people, especially those who are incarcerated, to try to receive gender-affirming care.
“There are hundreds of trans people that I work with every year who are seeking gender-affirming care,” said A.D. Lewis, an attorney at the Prison Law Office, a nonprofit law firm that focuses on constitutional protections for incarcerated people. “I think if people met and knew them, they would see how funny, witty, compassionate and caring these people are ― and that they should not be judged by one of their worst moments.”
“Unlike us, they can’t go out and get that care, can’t get a job or insurance to pay for that care,” added Lewis, who also founded the Trans Beyond Bars Project and has supported thousands of trans, nonbinary and intersex people in prisons and jails. “And some people are locked up for their entire lives, so if the government’s going to take away your liberty, can the government force you to live as a gender and sex that you’re not?”
A 1970s Supreme Court ruling found that states must provide adequate health care to incarcerated people, but it wasn’t until the 2010s that lower courts ruled these protections extended to gender-affirming treatments. Trans people in prisons are often subject to unsafe housing, verbal harassment and sexual assault, and face enormous barriers to accessing trans-inclusive medical care, let alone surgeries. In California, for example, only 20 out of 150 people who were approved for surgeries actually received them as of December 2022, according to a California Department of Corrections budget proposal.
Trump’s attack on Harris seems to refer to her tenure as attorney general of California. She was in office from 2010 to 2017, when incarcerated trans people were fighting primarily for access to gender-affirming hormones. Her office represented the state’s Department of Corrections and Rehabilitation, which blocked a trans woman, Michelle Norsworthy, from receiving surgery. At the time, there weren’t even structures in place for trans people to request surgery. Norsworthy later sued the state, with the help of the Transgender Law Center, and received a settlement in 2015. This suit cleared the way for the first trans woman in California to receive surgery behind bars in 2017, just as Harris was exiting office.
“Unlike us, they can’t go out and get that care, can’t get a job or insurance to pay for that care.”
- A.D. Lewis, Prison Law Office attorney
Both Trump and President Joe Biden have helped influence the Department of Justice’s provisions on the kinds of gender-affirming care offered by the Federal Bureau of Prisons. A small group of incarcerated trans people did receive gender-affirming treatments while Trump was president, but he significantly rolled back the types of care trans people could access inside federal prisons. Biden has worked to expand access to gender-affirming care in federal prisons, but under both administrations, access to that care has been an uphill battle.
HuffPost spoke with Lewis about what we should make of campaign rhetoric, what the experiences are of incarcerated trans people trying to access gender-affirming care and what either presidential candidate could mean for the future of trans health care in prisons.
This interview has been edited for length and clarity.
Trump is saying that Harris is supporting “taxpayer-funded transgender operations for illegal aliens in prison.” Can you unpack this? What does it actually look like when trans people try to access any kind of gender-affirming care ― not just surgery ― while incarcerated?
In general for people who are incarcerated in prisons, jails, detention centers and any other type of locked facility where people can’t leave, federal courts and the Supreme Court have held over and over again that if and when the government takes away your liberty, they actually have a duty of care to you to provide medically necessary care. What that looks like has changed over a number of years, but in general it means that prison officials cannot be deliberately indifferent to your medical needs. If someone has diabetes, prison officials have to ensure you get treatment for your diabetes. They can’t just deny treatment.
Dozens of medical associations have determined that gender-affirming care can be medically “necessary” to treat gender dysphoria. What does that look like for trans folks behind bars? Do prison officials treat gender dysphoria and the need for gender-affirming care the same as they do for other health care needs?
It depends on which prison system or which jail system you’re in and where it is. In California, and more broadly the [U.S. Court of Appeals for the 9th Circuit] that we’re in, prison officials have to provide medically necessary care based on an individualized assessment of that person’s needs. This means that prison systems can’t have blanket bans where they say we don’t do X type of care for trans people.
In California, where Kamala Harris was attorney general, this was won through a couple of different lawsuits. One was called Norsworthy v. Beard and another Quine v. Beard, both in 2015. Both were brought by the Transgender Law Center, and those cases established the right of trans people to get access to not only gender-affirming hormones but also gender-affirming surgeries based on an individualized assessment of that person’s medical needs and the medical necessity of the surgery for that individual.
Other departments of corrections will apply different standards to gender-affirming care than they will to anything else. This is a common trope we see in prisons where they’ll have a group that decides what type of care trans people get, and then trans people are put through this entire other process that no one has to go through to get care. That’s the same in California as well ― approval for gender-affirming surgeries goes through an entirely different committee than anything else. Even when people have access to gender-affirming health care inside of prisons or jails, what’s very common is that there’s a different process by which those requests for medical care are treated and evaluated really differently than any other type of request for health care.
So can you walk me step by step through the process for someone who is trans and incarcerated and wanting to start any kind of gender-affirming care?
Like many things in prison, the first thing that anyone has to do is ask for it. They have to request an appointment, get an appointment and be able to attend that appointment, which sounds simple, but it’s a lot of steps inside and any one of those steps can go wrong and be delayed. Trans people are asking first and foremost for hormones. So trans women are asking for testosterone blockers and estrogen, and trans men are asking for testosterone.
Many departments of corrections have these kinds of snapshot-in-time policies, where if you weren’t on hormones when you came in the door, you couldn’t start hormones. Now, by and large, these policies have been successfully attacked. But even now to get access to hormones if you’ve never been on them is quite a feat.
Many of the people I’ve worked with over the years, and including in California, have reported that the level of hormones they receive is much lower than the presumptive ranges that various professional associations have (i.e., the Endocrine Society, or WPATH or the American Medical Association). We also sometimes see the opposite, where prison officials don’t really understand how to administer hormones.
The type of medical care that Trump is referring to in these ads is gender-affirming surgeries. For trans people, these can look like top surgeries or genital surgeries. But in general, very, very, very few trans people inside prisons and jails are ever accessing these types of surgeries.
Trump’s focus on this incredibly small group of people is extremely concerning to me because of how few people get it. But the underlying rhetoric about surgeries is that it’s so heinous-sounding on its face to people that he doesn’t even have to say it’s bad, it’s just understood as awful and bad and ridiculous.
I think a huge part of the rhetoric is about trans people being undeserving of this right ― they’re imprisoned, so they’re undeserving. Trump’s language around surgeries in particular traffics heavily in a logic of scarcity and austerity. The implied message is so strong… because his audience so clearly already hates all three groups of people: trans people, people who lack documents and people who are inside prisons. So this is really a trifecta for many of his most fervent supporters.
Do we have a sense of how many trans folks have been able to get gender-affirming surgery behind bars?
There are around like 10,000 incarcerated trans and nonbinary people nationally, and even of that number we know that it’s an incredibly small percentage of people who have ever accessed surgical care inside of facilities. We know that Kamala Harris, and many other attorneys general, have released people rather than provide them with gender-affirming surgery. In 2015, the state of California released Michelle Norsworthy on parole rather than giving her access to gender-affirming care on the eve of her 9th Circuit case. We know that prison officials would rather release people than give them this care, so you can imagine how few people are actually getting it.
One of the things that seems to rile up Trump’s base is the “taxpayer-funded” aspect of this all.
The “taxpayer-funded surgery” rhetoric kind of exceptionalizes trans health care out of the other taxpayer-funded things that we’re doing, including incarcerating people, caging them, paying for correctional officers. This is all taxpayer-funded, but you would never say “taxpayer-funded incarceration.”
I think also for Republicans, this language is signaling to them that part of the fight around gender-affirming surgeries should be around taxpayer support, right? We can look at things like the fights around Medicare and Medicaid and all the public funding of trans health care that are going on through the Affordable Care Act. A lot of conservative states have tried to say that state funds cannot and should not be used for this type of health care. In my opinion, it’s really trying to privatize access to gender-affirming care to make sure that fewer people can get it, fewer poor people get it, and create conditions such that trans people, especially poor trans people, cannot get care.
When we peel back the layers of meaning, to me what’s undergirding it is not only this critique about prison spending, but it links up with other types of state-level attacks that we see on trans health care and the broader conservative agenda to privatize any type of social welfare and to get rid of it. At the end of the day, the federal government, as Trump would lead it, would want to minimize any possibility of trans people getting any type of health care because they would rather for trans people to not exist.
One of the groups that we’re talking about, which Trump has repeatedly pushed harmful rhetoric about, is undocumented people and people in immigration detention. Are you able to share what health care looks like for trans asylum seekers or those in detention?
Many people have to fight, just like they do in prisons, to get access to hormones. They have to request it, and submit grievances and appeal those grievances. They have to get outside supporters to help them because the threshold for getting access to gender-affirming care is quite high.
But trans people in detention are typically pending adjudication for usually a shorter amount of time — six months, maybe a year or two. In general, the medical care provided is not as intensive or as long-term as the medical care provided in prisons. In immigrant detention, someone can be removed at any time, so some of those systems are less willing to provide long-term care. What I hear from detention officials about some of these requests for surgery or gender-affirming care, separate from hormones, is that they don’t know if people are going to be here next month or year, so it’s hard to plan around such a major surgery.
What do you anticipate if Trump were to win?
If Trump is elected, he is giving the green light not only to the federal government and federal prison officials to deny any and all types of gender-affirming care to anyone inside custody, but he’s also giving the green light to every state that agrees with him. He’s sending a clear message that his administration will oppose expanding access to gender-affirming care and will also celebrate the minimization of it.
This is exactly what Project 2025 and some of the conservatives are leaning into: that there’s a lot of different ways they can make being trans harder. If you think they’re stopping with prisoners, you’re absolutely wrong. They’re coming for all of us. I think it’s incumbent upon not only all trans people and LGBTQ+ people but anyone who cares about medical self-determination and autonomy to stand arm in arm with advocates fighting to ensure that trans people can maintain access to care whether they’re youth, adults, in prison, poor, rich, that we demand gender-affirming care without apology.