990 F.2d 319 (7th Cir. 1993), 91-2484, Farmer v. Haas

Docket Nº:91-2484.
Citation:990 F.2d 319
Party Name:Dee FARMER, Plaintiff-Appellant, v. Richard HAAS, Edward J. Brennan, and L.E. Dubois, Defendants-Appellees.
Case Date:April 02, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 319

990 F.2d 319 (7th Cir. 1993)

Dee FARMER, Plaintiff-Appellant,

v.

Richard HAAS, Edward J. Brennan, and L.E. Dubois,

Defendants-Appellees.

No. 91-2484.

United States Court of Appeals, Seventh Circuit

April 2, 1993

Argued March 3, 1993.

Page 320

Darcy J. Bogenrief (argued), Winston & Strawn, Chicago, IL, for plaintiff-appellant.

Mark A. Cameli, Asst. U.S. Atty., Madison, WI (argued), for defendants-appellees.

Before POSNER and EASTERBROOK, Circuit Judges, and PELL, Senior Circuit Judge.

POSNER, Circuit Judge.

Dee Farmer, a federal prison inmate, brought this suit for damages against three members of the prison staff, charging deliberate indifference (in violation of the cruel and unusual punishments clause of the Eighth Amendment) to her need for medical and psychiatric treatment for the condition known as transsexualism (gender dysphoria). After this court in an unpublished order reversed the grant of summary judgment for the defendants, the case was tried for two days before a jury, which brought in a verdict for the defendants, precipitating this appeal.

Farmer, who is now 27 years old, is serving a long sentence for participation in an elaborate credit card fraud. She (the defendants say "he," but Farmer prefers the female pronoun and we shall respect her preference) is a transsexual. A transsexual is a person who considers himself to be of the male gender although he has the female sexual organs, or, more commonly, as in Farmer's case, considers herself to be of the female gender but has the male sexual organs. The disjunction between sexual identity and sexual organs is a source of acute psychological suffering that can, in some cases anyway, be cured or at least alleviated by sex reassignment--the complex of procedures loosely referred to as "a sex-change operation." Anne Bolin, In Search of Eve: Transsexual Rites of Passage (1988); Erwin K. Koranyi, Transsexuality in the Male: The Spectrum of Gender Dysphoria (1980); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders § 302.50 (3d ed. 1987); "Transsexualism," in American Medical Association, Encyclopedia of Medicine 1006 (Charles B. Clayman ed. 1989). There is a nascent jurisprudence of transsexualism, illustrated by Americans With Disabilities Act, 42 U.S.C. § 12211(b)(1); Meriwether v. Faulkner, 821 F.2d 408 (7th Cir.1987); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir.1984); White v. Farrier, 849 F.2d 322 (8th Cir.1988); Supre v. Ricketts, 792 F.2d 958 (10th Cir.1986); Phillips v. Michigan Dept. of Corrections, 731 F.Supp. 792 (W.D.Mich.1990), aff'd without opinion, 932 F.2d 969 (6th Cir.1991); Crosby v. Reynolds, 763 F.Supp. 666 (D.Me.1991), and Doe v. McConn, 489 F.Supp. 76 (S.D.Tex.1980).

Beginning at the age of 14, Farmer underwent estrogen therapy. Silicone breast implants followed. The usual next step would have been an operation to remove the male sexual organs and create, from penile tissue, a simulacrum of a vagina. However, for reasons that are unclear Farmer did not have the operation--at least not one performed by a surgeon. Farmer did have what the briefs call a "black market" operation to remove her testicles, but, odd as it may seem, the operation was unsuccessful. Yet, while retaining the male sexual organs, Farmer lived as a woman for five years before being imprisoned. The practice of the federal prison authorities, we were told...

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