Emory International Law Review


The treatment of transgender people while incarcerated is an issue that was catapulted into the national spotlight in 2019 when the Ninth Circuit Court of Appeals ruled in favor of providing a transgender inmate gender confirmation surgery. This decision created a circuit split within the United States regarding the medically necessary treatment a state is legally required to provide an inmate with gender dysphoria. This Comment examines the legal and policy approaches of the United Kingdom and Canada to inform the current circuit split and provide suggestions for improvements that could be made in the United States. Through exploration and comparison, this Comment proposes changes in policy and practice for housing transgender inmates, providing consultation with medical professionals, and treating transgender inmates in daily life. More specifically, this Comment proposes that the United States should employ a more gender-affirming approach when providing healthcare to transgender inmates by adopting policies and regulations in accordance with the medical community’s most recent recommendations. This includes setting up data collection systems able to obtain accurate population statistics for transgender inmates to make sure their needs are met. Additionally, uniform policies should be created to align gender-affirming language and practice, and housing reforms are necessary to ensure transgender inmates avoid solitary confinement placement because they lack alternative housing.