Several recent court cases have upheld transgender prisoners’ right to gender affirming care while incarcerated, and the right not to be held in segregation. Tara Herivel has represented a number of transgender prisoners, and joins us to discuss the legal options available to these adults in custody. We are also joined by Nova Gaia, an inmate at Snake River Correctional Institution, who recently won the right to gender affirming care and treatment.
The following transcript was created by a computer and edited by a volunteer:
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Several recent court cases in Oregon have upheld transgender inmates’ rights to gender-affirming care while behind bars. Tara Herivel is the lawyer who secured these legal wins. Nova Gaia is one of her clients. She’s incarcerated at Snake River Correctional Institution. I talked to both of them last week. I Started with Nova, who is a transgender woman in a men’s prison. I asked what her daily life is like.
Nova Gaia: Well, I have to wake up early and it behooves me to do yoga and meditate, and I do my makeup and my hair and then we get called for our breakfast and I have to endure lots of stares and comments from both the other inmates here and the staff here.
Miller: What do staff or inmates say?
Gaia: They’ll say such things as, “You are not a female.” They will call me terms such as the British term for a pile of sticks.
Miller: The “F” word slang in English.
Gaia: Yeah.
Miller: From staff as well as fellow inmates?
Gaia: The staff will be a little more subtle about it, particularly since I filed and had a successful judgment against DOC, specifically Jamie Miller, the superintendent of this institution. They are much more subtle about it, but I will get dirty looks.
Miller: Do you feel safe as you walk through the prison?
Gaia: I do not.
Miller: Can you give us a sense for what specifically led you to file suit against the Department of Corrections? The suit that Tara represented?
Gaia: Yes. I was made aware through my own experiences and some hearsay, that transgenders were not treated for their gender dysphoria more than just being put on a couple of estradiol pills and forgotten. I realized due to another transgender female AIC, that is “adult in custody,” that I could advocate for both myself and the entire community of imprisoned transgenders by having a successful case. And I specifically was hoping for treatment for myself because of the failures of DOC in general.
Miller: So if I understand correctly, you requested various kinds of healthcare for gender reassignment surgery or other medical care, and they said “no.”
Gaia: Correct.
Miller: Tara, the judge in Nova’s case focused largely on federal constitutional issues in her ruling, in your and her favor, as opposed to, if I read this correctly, Oregon statutes. Are there Oregon laws that guarantee appropriate healthcare and treatment for adults in custody in Oregon prisons who are transgender?
Tara Herivel: Well, just to clarify, the judge actually relied on Oregon law because this is a state case. And so there are very specific Oregon laws that are useful and unique in Oregon, for all people who are incarcerated to be able to advocate for their right to adequate conditions in prison, to health care, to be protected from predictable, obvious, preventable harm. And the right to adequate medical care is within both our state constitution and the federal constitution, under the 8th Amendment, the prohibition against cruel and unusual punishment…
Miller: That may have been, actually, where I got confused, because there was a lot of talk of the 8th Amendment in the ruling.
Herivel: Yes. That is the same. The federal 8th Amendment is the same, really, as the state complement in our constitution. But there’s another law that is really particular to Oregon and only four other states in our constitution that the judge relied on heavily which is called the right not to be subjected, when you’re incarcerated, to “unnecessary rigor.” And that means increased danger as a result of an unjustified policy or practice by the prison. And the judge found that the Oregon Department of Corrections and the Snake River Correctional Institution had violated that constitutional Oregonian right in several of the claims for Nova.
Miller: You also secured legal wins for two other transgender inmates in recent months. Can you tell us about Tara Zyst’s?
Herivel: Yes. And it’s actually three other trans clients in the last few months, just since Nova’s case. So Tara Zyst, she has a very severe set of circumstances that we are waiting for the orders to be finalized by the court. But following her trial, the judge made orders from the bench, which is not typical and happens when the judge recognizes that there are urgent and absolutely immediate unconstitutional conditions that must be addressed or further harm - even waiting for the judgment to be written - could occur or would occur.
And in this case, Ms. Zyst also was being deprived, for 20 years, of gender-affirming care, and she also is being illegitimately held - and this happened for Nova as well - in segregation, on no basis that was apparent, and for Nova, the judge found that that was ‘deliberate indifference,’ and based on her gender characteristics. She had undue discipline that was unfounded and there was no basis for it in any of the records and that the source of that discipline was specifically discrimination, based on her gender characteristics out at SRCI.
Miller: Can I ask you, Nova, did you understand that as an acknowledgment on the part of prison officials, of the challenge of ensuring your safety, that instead of changing the culture of the prison or having you be in a different prison, it was just easiest for them to segregate you? Or did you actually experience this as punishment in and of itself?
Gaia: I would say that both would be accurate, the latter becoming apparent after the punishment, the former abundantly obvious.
Miller: And, Tara, it seems like you’re saying that this has been a pattern and practice on the part of the Department of Corrections?
Herivel: It has. And I’ll say, just to clarify, the Department of Corrections never argued they were holding trans clients in segregation to protect them. They never made that argument. What they argued is there was legitimate discipline, which the court found there was not. So, the idea of protection is not relevant and was not even argued. And it is absolutely these cases all have the same themes of, as Nova just said, like, we’ll give you some hormone pills, and go away, and you’ll have to knock down our door to try to get anything additional. But we’re going to make it incredibly hard for you and hope you go away. And the clients I’ve had, have had for whatever reason, the ability to go further and advocate for themselves further. For whatever reason, it doesn’t mean there’s other people who are trans, who aren’t similarly situated and also brave and bold. But when Nova brings a case or Tara Zyst brings a case, there’s many, many people behind them who are experiencing the exact same thing.
Miller: Tara, how does the Oregon Department of Corrections decide where to house trans inmates in general? I mean, does it go with the gender people were assigned at birth or with their gender identities?
Herivel: Well, the regulations allow [them] to consider whether somebody is trans in where their placement will be. And then there is an internal and secret committee called the Gender Non-Conforming Committee within [the] DOC. It’s an administrative committee where they make decisions as to where folks are going to go, in combination with another kind of internal secret committee called the Transgender and Gender Non-Conforming Committee. And they make decisions about housing. And it seems not to have clear criteria.
There are trans people who are male-to-female who are at Coffee Creek. There are more people who are trans male-to-female in these large prisons where there is a great cultural antipathy like at Snake River. There’s a big transgender population there, and it is culturally…you know, most of the people who work there [are] from Idaho and there is a very different perspective than if you’re in the valley, say. But now, because of winning these cases, we’re winning the requirement that people be moved closer, at least, to the Valley, to services where they can receive gender-affirming treatment because those don’t exist for the most part out in Malheur, near Ontario. So moving people at least closer to the Valley affords more progressive viewpoints and that leads into the staff treatment of people who are gender non-conforming.
But there is no right to be transferred to a particular prison, that a person can be required, as the courts have required in these cases, to make people accessible to the services the court orders.
Miller: Nova, as Tara just mentioned, she said there’s a sizable transgender group of fellow adults in custody at your prison, at Snake River Correctional Institution. Do you feel like you have a community there? And also, I’m curious if you can give us a ballpark figure for how many people we’re talking about?
Gaia: Oh, yeah. So, it’s important to understand that in this institution, there are three sections where you will be afforded different treatment based on criteria that is not abundantly clear, such as propensity for violence, litigiousness, and time remaining on your sentence. And there is a large community in one section of the prison that I haven’t been denied access to. We have, in my particular unit, a community of three.
Miller: Do you think that there are, let me put it this way…What do you think it would take for you to feel safe, if you were to remain at Snake River?
Gaia: I believe it would take me being moved to the aforementioned section of the prison where there is a community and there is the availability of solidarity.
Miller: Tara, this gets to something that you were mentioning earlier, but I’m just curious what the specifics are. Given the legal wins you’ve had for your clients, how big a change have you seen in Oregon Department of Corrections practices?
Herivel: None. And unfortunately, I’ve seen cynical posturing, like aligning with the Oregon OHSU transgender clinic as a kind of cover to make it look like ODOC is changing its practices. But I had a trial two weeks ago and all the practices of denial were all the same, and there is a laundry list of specific gender-affirming care that the DOC currently categorizes as “cosmetic,” and refuses to provide, when it is in fact known in the community, there are known therapies in the community to treat gender dysphoria specifically. And have been in fact acknowledged as such by our particular government in passing, I think it’s House Bill 2002, over the summer, which was effectuated by the governor that expands the categories of treatment from being “cosmetic” to being “medical needs,” as we change in that as a community and especially the medical community and how to treat gender dysphoria.
So the DOC is quite behind, and it is my experience it hasn’t changed its practices at all, but it’s gotten some better coverage, a promotional coverage through alliances with OHSU’s Transgender Clinic.
Miller: Nova, before we go, just speaking of care, the judge ordered that the state provide gender-affirming care for you. That was back in May - six months ago. Have you received any of that care?
Gaia: I have received some electrolysis hair removal and promises of surgery consult. I can’t really say there’s been more than that.
Miller: So some hair removal and promises for other services in the future?
Gaia: Yeah.
Miller: Nova Gaia, thank you very much.
Gaia: Yes, thank you very much.
Miller: Tara Herivel, thanks for talking with us again.
Herivel: Thank you so much.
Miller: Nova Gaia is an inmate at Snake River Correctional Institution. Tara Herivel is a prisoner’s rights attorney. We spoke last week.
We also reached out to the Oregon Department of Corrections, DOC, which provided this statement:
“For many years the Oregon Department of Corrections has been a national leader in gender-affirming care for incarcerated people. DOC takes an individualized approach to gender-affirming care and houses over 100 transgender and non-binary people across the state. Housing placement is extremely important and those decisions are made by a multidisciplinary team looking at several factors. These factors include medical and mental health needs, their current housing situation, institution behavior, custody level, criminal history, etc. Our priority is the safety and security of all involved. We disagree with many of the positions that Ms. Herivel has taken in court and we are considering all of our appellate options in recent cases. For example, no one is punished or placed in segregation solely on the basis of their gender status or identity. Housing and care decisions are complex and we must be incredibly thoughtful in making them. Gender-affirming care has evolved rapidly, and DOC works with external partners to stay at the forefront of care and housing.”
Again, that was a statement given to us by Oregon’s Department of Corrections.
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