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Virginia Inmate Granted Hearing for Sex Change

January 29, 2013

By Amber Shiflett
Capital News Service

RICHMOND – A Virginia prison inmate seeking a sex-change operation won a legal victory Monday when a federal appeals panel ordered a lower court to hear the case.

Born as Michael Stokes, Ophelia De’lonta has been diagnosed with gender identity disorder, a psychological condition that causes people to feel like they’re trapped in the body of the opposite sex.

De’lonta is serving a 73-year sentence for bank robbery. Since her incarceration in 1983, De’lonta has filed several lawsuits against the Virginia Department of Corrections, claiming that denial of sex-reassignment surgery for her is a violation of her Eighth Amendment rights against cruel and unusual punishment.

De’lonta’s pursuit of a sex change has been unsuccessful. Most recently, in 2011, a federal judge dismissed her self-filed lawsuit against the Department of Corrections.

Following a settlement in 2004, the department provided De’lonta with special medical treatment for her disorder. Her treatments are based on the Benjamin Standards of Care, the accepted medical practices for individuals with gender identity disorder.

As part of her treatment program, De’lonta is permitted to dress and live as a woman while incarcerated in an all-male correctional facility. She has also attended psychological counseling sessions from a gender identity disorder specialist and undergone hormone therapy.

According to the Benjamin Standards of Care, treatment is a three-step process that consists of hormone therapy, real-life experience living as a member of the opposite sex and, in severe cases, sex-reassignment surgery.

Despite her treatments, De’lonta’s symptoms have continued. In 2010, she was hospitalized after trying to castrate herself. She has since quit therapy and has been persistently requesting a sex-change operation, with no luck.

On Monday, three judges of the 4th U.S. Circuit Court of Appeals unanimously ruled that De’lonta has a “sufficiently plausible” claim under the Eighth Amendment. The panel sent her case back to U.S. District Court for a hearing.

The ruling said the lower court had erred in dismissing the case. “We first resolve that De’lonta has alleged an objectively serious medical need for protection against continued self-mutilation,” the 4th Circuit panel said.

The appellate judges did not rule on De’lonta’s request for a sex-change operation.

The ruling acknowledged that prison officials have provided De’lonta with “some measure of treatment to alleviate her GID symptoms.” But “it does not follow that they have necessarily provided her with constitutionally adequate treatment,” the appellate judges wrote.

They offered this analogy: “Imagine that prison officials prescribe a painkiller to an inmate who has suffered a serious injury from a fall, but that the inmate’s symptoms, despite the medication, persist to the point that he now, by all objective measure, requires evaluation for surgery. Would prison officials then be free to deny him consideration for surgery, immunized from constitutional suit by the fact they were giving him a painkiller? We think not.”