Comments on: Good News and Bad News

By: Pilgrim Soul

Pilgrim Soul — Tue, 06 Apr 2010 16:58:49 +0000

@DirtyLaundry: 1) Do you mean the ruling or the law? In either event I believe the answer is yes. The determining factor would seem to be whether or not a doctor has prescribed it; one can't simply go to a pharmacy and request a vial of testosterone, as far as I am aware. 2) This is a tougher question to answer. I mean, I'm not sure what "hauntingly sick" could mean, and in any event I think the answer is: if a person undertakes hormone treatment, one can probably assume that yes, it is essential to them in some way, and that should, to me, be enough. There do appear to be chemical issues associated with suddenly going off your regimen. 3) It seems to be for any inmate seeking hormonal treatment. Trans people are often sent to the wrong prison since the divide is rigidly based on genitalia.

By: DirtyLaundry

DirtyLaundry — Tue, 06 Apr 2010 02:09:55 +0000

1) Would this cover trans people who have not begun their transformation yet?
2) Does going off the hormones interfere with a person biology such as making them hauntingly sick
3) Is this for trans inmates who are in prisons with fellow inmates of their born sex or of their external gender?

By: philosophyerin

philosophyerin — Sun, 04 Apr 2010 21:41:21 +0000

It does, thanks (and thanks for the correction on the actual findings)!

By: Pilgrim Soul

Pilgrim Soul — Sun, 04 Apr 2010 20:43:02 +0000

@philosophyerin: I haven’t read Gratz and Grutter (both v. Bollinger as I recall) in a while, but those are the cases you’re thinking of. It’s actually not elementary schools though, they are law school and undergraduate admissions processes respectively. And in fact, while one of those admissions programs failed under strict scrutiny (the undergraduate one, Gratz I think), the law school one remained in place because it was sufficiently narrowly tailored, per the Court.

In any event, it is certainly true that discrimination law generally can be wielded against programs designed to bring substantive equality – the law tends to prefer formal equality, an irritating feature. But in this case, no, I don’t think a similar thing could happen here. See, equality law doesn’t favour formal distinctions like this one, i.e. where it seems the legislature went out of its way to explicitly single out a population (transgendered people) to deny them services. I think it would be hard to persuade even a very conservative court that (assuming a medical professional prescribed this for an inmate, btw) this provision would be sufficiently narrowly tailored to survive strict scrutiny. It’s only when the exclusion is implicit in a process that courts find legislation that makes distinctions more acceptable.

Hope that made some sense.

By: philosophyerin

philosophyerin — Sun, 04 Apr 2010 20:22:45 +0000

Thanks so much for breaking this all down! Really helpful and interesting. The only (depressing) thing/question I’m wondering about is: would going with the “strict scrutiny” criteria necessarily result in greater protections for trans people? I’m thinking about another famous case where strict scrutiny was applied…I don’t remember the name, but in the last couple of years, didn’t the Supreme Court of the US rule that affirmative action programs and/or diversity-seeking programs for elementary schools that took race into account were unacceptable on the basis of the “strict scrutiny” criteria? In cases like these, the rule is used to suggest that different treatment for a suspect class is necessarily discriminatory, and thus disallowed. I’m wondering whether a similar thing could happen here–where the Courts rule that, say, providing for “special” hormonal treatment for some inmates but not others constitutes a violation. It seems like this would be a more difficult argument to make than the one that supports the anti-affirmative action position (since medical treatment is almost of necessity individually-based), but it seems like it might be worth being concerned about.