1
December 19, 2024
OAG 24-13
Subject:
Does the Eighth Amendment require the Kentucky Department
of Corrections to provide and cover the cost of gender
reassignment surgery for a transgender state inmate in a state
prison when a medical professional or panel of medical
professionals has deemed it “medically necessary”?
Requested by:
Commissioner Cookie Crews
Kentucky Department of Corrections
Written by:
Aaron J. Silletto, Executive Director
Office of Civil and Environmental Law
Syllabus:
The Eighth Amendment does not require the Department to
provide and pay for gender reassignment surgeries for its
transgender inmates.
Opinion of the Attorney General
The Kentucky Department of Corrections (“Department”) is currently in the
process of amending its administrative regulations regarding its policies and
procedures for providing medical care to inmates. As part of that process, the
Department, through its Commissioner, has requested this Opinion to determine
whether the Eighth Amendment requires it to provide and pay for gender
reassignment surgeries for its inmates.
For most Kentuckians, the answer to the Department’s question is self-
evident. Common sense dictates that it is not “cruel and unusual” for the
Department to decline to spend taxpayer dollars on such controversial medical
procedures. Fortunately, there is no controlling legal authority that compels the
Department to abandon common sense.1
1
And, as Kentucky’s highest court once famously observed, “When all else is said and done,
common sense must not be a stranger in the house of the law.” Cantrell v. Ky. Unemp’t Ins. Comm’n,
450 S.W.2d 235, 237 (Ky. 1970).Opinion of the Attorney General 24–13
December 19, 2024
Page 2
Kentucky law authorizes the Department to “[p]romulgate administrative
regulations for . . . the preservation of the health of the prisoners[.]” KRS
197.020(1)(b). Pursuant to that authority, the Department has promulgated an
administrative regulation that incorporates by reference CPP2 14.8, concerning
“Lesbian, Gay, Bisexual, Transgender, and Intersex Offenders.”3 The current
version of CPP 14.84 includes provisions related to the initial screening and
placement of transgender inmates, staff training and awareness related to
transgender inmates, showering facilities, and physical searches of transgender
inmates. The proposed new version of CPP 14.8 addresses each of the subjects
addressed by the current policy, but includes new provisions related to bed, housing,
work, and program assignments, requirements for “respectful communication” with
transgender inmates, transportation of transgender inmates, confidentiality, and
the physical and mental health treatment of transgender inmates, including
“hormone affirming treatment” and “transgender specific surgery.” It is this last
provision that is at issue in the Department’s request.5
2
Kentucky Corrections Policies and Procedures.
3
Currently, CPP 14.8 is titled “Lesbian, Gay, Bisexual, Transgender, and Intersex Offenders
(Amended 1/12/18)” and is incorporated by reference into 501 KAR 6:020 § 1. The Department has
proposed to repeal 501 KAR 6:020, see 501 KAR 6:021 (filed with the Legislative Research
Commission on May 15, 2024), and concurrently has proposed a new administrative regulation, see
501 KAR 6:410 (filed with the Legislative Research Commission on May 15, 2024), which would
incorporate by reference a revised CPP 14.8 titled “Lesbian, Gay, Bisexual, Transgender, and
Intersex Inmates (5/15/24).” The Department’s request for an opinion essentially asks whether
Section II(I)(7) of the revised CPP 14.8, applicable to inmate requests for “transgender specific
surgery,” is required by the Eighth Amendment.
4
The current version of CPP 14.8, which is incorporated by reference into the current regulation,
took effect on June 1, 2018. The Department’s policies and procedures must be prescribed by
administrative regulation. KRS 13A.100(1). The Department may not modify an administrative
regulation by any “internal policy [or] memorandum,” or else such internal policy or memorandum is
“null, void, and unenforceable.” KRS 13A.130(1)–(2). When the Department wishes to amend the
material incorporated by reference into an administrative regulation, it generally must amend its
regulation to do so. KRS 13A.2255(1)(a). The Department purported to amend CPP 14.8 via two
internal memoranda issued by its Commissioner, dated August 11, 2021, and June 1, 2023. But
under KRS 13A.130 and KRS 13A.2255, the Commissioner’s memoranda are void, and therefore did
not amend CPP 14.8. For this reason, even though the 2021 and 2023 versions of CPP 14.8 refer to
procedures for inmates requesting a “transgender specific surgery,” those procedures are not
currently in effect. See, e.g., Sholler v. Ky. Parole Bd., No. 21-CI-00889 (Franklin Cir. Ct. Oct. 2,
2024), appeal pending, No. 2024-CA-1312 (Ky. App.) (holding a unilateral directive of the Parole
Board’s Chair violated KRS 13A.130 and KRS 13A.100, and therefore did not amend the Parole
Board’s administrative regulations).
5 The Department’s request emphasizes, “Here, the [D]epartment does not request an opinion on
certain forms of medical treatment, but specifically on whether it must provide and cover the cost of
gender reassignment surgery.” Thus, this Opinion will not discuss any other forms of medical or
psychological treatment for individuals experiencing gender dysphoria.Opinion of the Attorney General 24–13
December 19, 2024
Page 3
The Eighth Amendment to the U.S. Constitution prohibits “cruel and
unusual” punishment, and it applies to the States through the Fourteenth
Amendment. Robinson v. California, 370 U.S. 660, 666 (1962). In the context of
state prisons, the ban on cruel and unusual punishment requires prison officials to
provide medical care for prisoners’ “serious medical needs.” Brooks v. Celeste, 39
F.3d 125, 127 (6th Cir. 1994).
To state a claim under the Eighth Amendment for deprivation of medical
care, an inmate must prove by a preponderance of the evidence both an objective
and a subjective component: (1) a sufficiently grave deprivation; and (2) a
sufficiently culpable state of mind. Id. at 127–28 (citing Wilson v. Seiter, 501 U.S.
294, 298 (1991)). The objective component requires the existence of a “sufficiently
serious” medical need, such that the inmate “is incarcerated under conditions
posing a substantial risk of serious harm.” Blackmore v. Kalamazoo Cnty., 390 F.3d
890, 895 (6th Cir. 2004) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle
v. Gamble, 429 U.S. 97, 104 (1976)). The subjective component, on the other hand,
requires the inmate to show that prison officials acted with “deliberate
indifference,” or “criminal recklessness,” which requires that the defendant acted
with a conscious disregard of a risk of serious harm to the prisoner. Brooks, 39 F.3d
at 128 (citing Farmer, 511 U.S. at 839).
Importantly for this discussion, the Eighth Amendment does not mandate
that an inmate receive every medical treatment he or she desires. An inmate’s
“desire for additional or different treatment does not suffice by itself to support an
Eighth Amendment claim.” Mitchell v. Hininger, 553 F. App’x 602, 605 (6th Cir.
2014); see also Edmonds v. Robbins, 67 F. App’x 872, 873 (6th Cir. 2003) (“[T]he
medical literature which Edmonds filed with the court also establishes that
medication is not always required for the treatment of hepatitis C.”). And a mere
difference of opinion between medical professionals’ diagnoses and prescribed
treatment does not support an Eighth Amendment claim, either. Hix v. Tenn. Dep’t
of Corr., 196 F. App’x 350, 357 (6th Cir. 2006); Durham v. Nu’Man, 97 F.3d 862, 869
(6th Cir. 1996). Further, “a recommendation of elective treatment does not
necessarily indicate a serious medical need.” Alexander v. Fed. Bureau of Prisons,
227 F. Supp. 2d 657, 665 (E.D. Ky. 2002) (citing Boring v. Kozakiewicz, 833 F.2d 468
(3d Cir. 1987)).
Turning from these general principles of Eighth Amendment jurisprudence to
the specific situation framed by the Department’s request, neither the Sixth Circuit
nor the Supreme Court of Kentucky has squarely addressed whether the Eighth
Amendment requires state prison officials to provide and pay for transgender
inmates to receive gender reassignment surgeries. But several other federal courts
of appeals have. A review of those decisions is instructive.Opinion of the Attorney General 24–13
December 19, 2024
Page 4
The first federal court of appeals to address this issue was the First Circuit,
in Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) (en banc). There, an inmate
diagnosed with “gender identity disorder (‘GID’)”—or gender dysphoria—was
receiving antidepressants and psychotherapy to treat his condition. The court
framed the issue raised by the inmate as “not whether antidepressants and
psychotherapy alone are sufficient to treat GID, or whether GID constitutes a
serious medical need. Rather, the question is whether the decision not to provide
[sex reassignment surgery]—in light of the continued provision of all ameliorative
measures currently afforded Kosilek and in addition to antidepressants and
psychotherapy—is sufficiently harmful to Kosilek so as to violate the Eighth
Amendment.” Kosilek, 774 F.3d at 89. In short, the First Circuit held, “[i]t is not.”
Id. Because the plaintiff’s medical providers disagreed as to whether the surgery
was necessary, the state department of corrections was within its right to provide
alternative medical treatments to the plaintiff:
The law is clear that where two alternative courses of medical
treatment exist, and both alleviate negative effects within the
boundaries of modern medicine, it is not the place of our court to
“second guess medical judgments” or to require that the [department of
corrections] adopt the more compassionate of two adequate options. . . .
That the [department] has chosen one of two alternatives—both of
which are reasonably commensurate with the medical standards of
prudent professionals, and both of which provide Kosilek with a
significant measure of relief—is a decision that does not violate the
Eighth Amendment.
Id. at 90 (citations omitted). Thus, because the state department of corrections was
not completely ignoring the plaintiff’s diagnosed gender dysphoria or refusing to
provide any medical treatment at all, its chosen course of medical treatment, which
did not include surgery, did not violate the Eighth Amendment.6
Next, the Fifth Circuit reached this issue in Gibson v. Collier, 920 F.3d 212
(5th Cir. 2019). That court observed, “As the First Circuit concluded in Kosilek,
there is no consensus in the medical community about the necessity and efficacy of
sex reassignment surgery as a treatment for gender dysphoria.” Gibson, 920 F.3d at
221. “[R]espected doctors profoundly disagree about whether sex reassignment
surgery is medically necessary to treat gender dysphoria.” Id. The court therefore
6
Relying on Kosilek, the Eleventh Circuit has held that state prison officials did not violate the
Eighth Amendment by denying an inmate’s requested “social-transitioning-related accommodations,”
i.e., growing longer hair to look more feminine, using makeup, and wearing female undergarments,
when it had made other accommodations such as mental-health counseling, hormone therapy, the
use of female pronouns, safer housing accommodations, and private shower facilities. Keohane v. Fla.
Dep’t of Corr. Sec’y, 952 F.3d 1257, 1276–78 (11th Cir. 2020).Opinion of the Attorney General 24–13
December 19, 2024
Page 5
found “no basis in Eighth Amendment precedent—and certainly none in the text or
original understanding of the Constitution—that would allow us to hold a state
official deliberately (and unconstitutionally) indifferent, for doing nothing more
than refusing to provide medical treatment whose necessity and efficacy is hotly
disputed within the medical community.” Id. at 226. Thus, even a blanket ban on
gender reassignment surgeries would be upheld as not violating the Eighth
Amendment.
Interestingly, the Fifth Circuit did not stop at its determination that, under
existing Eighth Amendment precedent, the state could decline to provide gender
reassignment surgeries to its inmates. It went further, and observed that “[b]efore
[January 2017], no prison in the United States had ever provided sex reassignment
surgery to an inmate.” Id. at 227–28. Thus, it held, such a ban was not “unusual,”
and the inmate “cannot state a claim for cruel and unusual punishment under the
plain text and original meaning of the Eighth Amendment[.]” Id. at 228 (emphasis
in original).
To the contrary is the holding of the Ninth Circuit in Edmo v. Corizon, Inc.,
935 F.3d 757 (9th Cir. 2019), reh’g denied, 949 F.3d 489 (9th Cir. 2020). In that
case, as in Kosilek and Gibson, the district court heard testimony that medical
experts disagreed regarding the necessity and efficacy of gender reassignment
surgeries to treat gender dysphoria. But the district court gave “virtually no weight”
to the opinions of the State’s experts. Edmo, 935 F.3d at 787. The court of appeals
found no error in ignoring the State’s experts, crediting the testimony of the
plaintiff’s experts, id. at 790, and finding the testimony of the State’s experts
“medically unacceptable under the circumstances,” id. at 792. The Ninth Circuit
purported to follow the First Circuit’s analysis in Kosilek but found that differences
in the factual record necessitated a different result. Id. at 794. And the Ninth
Circuit acknowledged its decision was in tension with the Fifth Circuit’s decision in
Gibson. Id. at 794–95. In the end, the Ninth Circuit held, the plaintiff had
established that she suffers from a serious medical need, and that the treatment
provided was “medically unacceptable under the circumstances” and chosen “in
conscious disregard of an excessive risk” to her health. Id. at 797. Thus, it held, the
plaintiff had sufficiently pled an Eighth Amendment deliberate indifference claim.7
7
The Ninth Circuit’s decision in Edmo cited as persuasive the Seventh Circuit’s decision in Fields
v. Smith, 635 F.3d 550 (7th Cir. 2011). See Edmo, 935 F.3d at 796 (citing Fields as being among the
cases holding that “denying surgical treatment for gender dysphoria can pose a cognizable Eighth
Amendment claim”). But the Seventh Circuit itself disagreed with that broad reading of its holding:
“[Fields] clearly established that a total absence of treatment for the serious medical needs created by
gender dysphoria is unconstitutional,” but the “clearly established law did not require [state] prison
officials to provide [an inmate] with gender-dysphoria treatment beyond hormone therapy.”
Campbell v. Kallas, 936 F.3d 536, 549 (7th Cir. 2019) (emphasis added).Opinion of the Attorney General 24–13
December 19, 2024
Page 6
Though there is no controlling legal authority on this issue in the
Commonwealth or the Sixth Circuit, considering the various ways other federal
courts of appeals have addressed this issue, it seems likely that the Sixth Circuit
would take an approach more in line with Gibson than with Edmo. The Sixth
Circuit recently acknowledged—albeit in a different context—that “[t]here is a long
tradition of permitting state governments to regulate medical treatments for adults
and children. So long as a federal statute does not stand in the way and so long as
an enumerated constitutional guarantee does not apply, the States may regulate or
ban medical technologies they deem unsafe.” L.W. ex rel. Williams v. Skrmetti, 83
F.4th 460, 474 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144
S. Ct. 2679 (2024) (emphasis added). Further, it also has acknowledged that gender
dysphoria “is a relatively new diagnosis with ever-shifting approaches to care over
the last decade or two.” L.W., 83 F.4th at 491. As a mental health condition that
recently has seen “ever-shifting approaches to care,” the court seemingly agrees that
medical professionals will have differences of opinion regarding how to treat gender
dysphoria. And, as “a relatively new diagnosis” for which surgery is a recent
phenomenon, the court is likely to agree with the Fifth Circuit that banning gender
reassignment surgeries for transgender inmates is not unconstitutionally “unusual.”
It is therefore likely that the Sixth Circuit would hold that the Eighth Amendment
does not require the Department to provide and pay for state inmates’ gender
reassignment surgeries.
Accordingly, the U.S. Constitution leaves this public policy decision with the
state. The Kentucky Constitution “empowers the legislative branch . . . of
government to articulate public policy regarding health and welfare.” Surrogate
Parenting Assocs., Inc. v. Commonwealth ex rel. Armstrong, 704 S.W.2d 209, 213
(Ky. 1986). Whether to expend public funds on a controversial medical procedure,
“whose necessity and efficacy is hotly disputed within the medical community,”
Gibson, 920 F.3d at 226, is a quintessential public policy determination best left to
the policy-making branch of Kentucky’s state government—the General Assembly.
In sum, it is the opinion of this Office that the Eighth Amendment does not
require the Department to provide and pay for gender reassignment surgeries for
its transgender inmates.
Russell Coleman
Attorney General
Aaron J. Silletto, Executive Director
Office of Civil and Environmental Law