Filed Date: Jan. 24, 2006
Closed Date: May 23, 2012
Clearinghouse coding complete
On January 24, 2006, two transgender state prisoners in various Wisconsin prisons filed a complaint in the U.S. District Court for the Eastern District of Wisconsin, Milwaukee Division. Represented by the Lambda Legal Defense and Education Fund, Inc., the ACLU Foundation, Inc., the ACLU of Wisconsin Foundation, Inc., and private counsel, Plaintiffs brought this lawsuit against various officials from the Wisconsin Department of Corrections (WDC) and staff from the various state prisons. Plaintiffs claimed the enforcement of Wis. Stat. § 302.386(5m) (“Statute”), a 2005 Wisconsin statute that barred use of state tax money for hormone therapy or sex reassignment surgery for prison inmates and others in state custody, violated their constitutional rights. Plaintiffs stated that Defendants' enforcement of the statute abruptly terminated and deprived them of medical treatment for their serious health conditions related to Gender Identity Disorder (GID), with no exercise whatsoever of individualized medical judgment and in contrast to the treatment Defendants provided to other similarly situated inmates at WDC facilities. Plaintiffs sought injunctive relief to end the violation of their Equal Protection rights and to be free from cruel and unusual punishment, pursuant to the Fourteenth and Eighth Amendments of the U.S. Constitution, and a declaration that the Statute is unconstitutional on its face. This case was assigned to District Judge Charles N. Clevert, Jr.
Contemporaneously with their complaint, Plaintiffs filed a motion for temporary restraining order (TRO) and preliminary injunction. Following emergency proceedings held by telephone, the court granted a temporary injunction on January 27, 2006. The court reasoned that Plaintiffs had already suffered injuries to their health since the Defendants had reduced the dosage of their hormonal therapy in anticipation of full compliance with the Statute, and Plaintiffs would suffer irreparable further injury should their dosages be reduced to nothing. Accordingly, the court directed Defendants to immediately resume hormone therapy to Plaintiffs at the level provided prior to the reduced dosages. Because defendants needed more time to prepare for a full hearing, the court indicated that the full hearing on the motion for preliminary injunction would take place at a later date, but issued the temporary injunction in the meantime.
Also on January 27, 2006, Plaintiffs filed an amended complaint to add an additional transgender inmate who would be harmed by the enforcement of the Statute. The court extended the preliminary injunction to cover the new Plaintiff on February 3. Similarly, Plaintiffs filed another amended complaint to join an additional transgender Plaintiff on June 28, 2006, and the court extended the temporary injunction to the new Plaintiff on June 30. Then on December 21, 2006, Plaintiffs filed a third amended complaint, joining an additional plaintiff, to whom the court extended the preliminary injunction. The parties also agreed to consolidate the hearing on Plaintiffs’ motion for preliminary injunction with the trial on the merits, and accordingly agreed to extend the temporary injunction to that point.
On April 27, 2006, Plaintiffs moved to certify a class of similarly situated plaintiffs, defined as: “All current or future prisoners as specified in Wis. Stat. § 302.386(5m) who are transgender, including those who have been diagnosed with Gender Identity Disorder and those who have a strong persistent cross-gender identification and either a persistent discomfort with their sex or a sense of inappropriateness in the gender role of that sex.” The court denied Plaintiffs’ motion on February 16, 2007. The court found that the proposed class definition was too broad and would extend the scope of this lawsuit significantly, as the principal allegation of the five named plaintiffs was that they had been diagnosed with GID and were taking hormone therapy that was in danger of being withdrawn. The court also found that there were not enough similarly situated persons to form a class, as only six prisoners had been identified in the WDC who were in danger of losing access to hormone therapy, including the five Plaintiffs already named in the lawsuit.
Plaintiffs were successful on July 12, 2007, when their motion for a refund of filing fees was granted. 2006 WL 2038204. Their counsel had earlier paid filing fees on behalf of each plaintiff as they were added to the case via amended complaints, but counsel later concluded that the Prison Litigation Reform Act's provision for payment of filing fees per litigant did not govern this case. Judge Clevert agreed in an unpublished order stating that, under the plain language of the statute, only prisoners seeking to proceed in forma pauperis are required to pay filing fees individually. These plaintiffs never moved for such status, so the standard rule of one fee per lawsuit applied, according to the judge.
On March 5, 2007, Plaintiffs moved to file a fourth amended complaint and for the court to reconsider class certification. The proposed fourth amended complaint sought to join two new Plaintiffs, both diagnosed with GID, who sought to start hormone treatments while in the custody of WDC. Also in this motion, Plaintiffs’ modified class definition included “all current or future residents housed in prisons identified in Wis. Stat. § 302.01 who have been, or will in the future be, denied hormone therapy or sex reassignment surgery to treat a serious medical need because of the Inmate Sex Change Prevention Act, 2005 Wisconsin Act 105, codified at Wis. Stat. § 302.386(5m).” The court denied Plaintiffs’ motion to amend their complaint and reconsider class certification on August 7, 2007. 2007 WL 2303657. Regarding the motion to amend their complaint, the court found that the two new Plaintiffs were substantially different from the five Plaintiffs already in the case, because the five Plaintiffs had already been prescribed and were receiving hormone therapy, while the proposed Plaintiffs had never received hormone therapy in the first place. The court found that joining these new Plaintiffs would significantly expand the nature of the lawsuit and would therefore prejudice the Defendants at this stage in litigation. The court also denied Plaintiffs’ motion for reconsideration of class certification because their revised class definition suffered from the same flaws as those laid out by the court in its February 16, 2007 order denying Plaintiffs’ initial motion for class certification.
Defendants then filed a motion for partial summary judgment on July 31, 2007. Their motion principally contended that (1) summary judgment was proper on the Plaintiffs’ Eighth Amendment facial challenge to the Statute because it was not unconstitutional in all its applications, (2) two of the five Plaintiffs should be dismissed because the only relief requested was injunctive and declaratory relief, and those two plaintiffs were no longer in prison, and (3) summary judgment is proper on Plaintiffs’ Equal Protection claim because the Statute is rationally related to WDC’s legitimate goals of maintaining safe and secure prisons.
On October 15, 2007, Judge Clevert granted in part and denied in part Defendants' motion for partial summary judgment. 2007 WL 3046240. As to Plaintiffs’ facial challenge to the Statute, the court denied Defendants’ motion for summary judgment, finding that the evidence indicated that WDC doctors had determined that hormone therapy was medically necessary to treat Plaintiffs’ GID. Although parties agreed that there were a variety of therapeutic options for persons with GID, the court found that interfering with a doctor’s determination of what was medically necessary may qualify as treatment “so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate [one’s medical] condition.” Therefore, the court found that Plaintiffs’ facial challenge should proceed to trial. As to the two Plaintiffs no longer in WDC’s custody, the court found that the mere possibility that they may again be incarcerated in a WDC institution was too speculative and did not establish standing. Therefore, the court dismissed both plaintiffs, and dismissed two Defendants employed at a prison at which none of the remaining three Plaintiffs were incarcerated. Finally, as to Plaintiffs’ Equal Protection claim, the court denied Defendants’ motion for summary judgment. The court found that although Defendants clearly had a legitimate penological interest in prison safety and security, there was a genuine dispute as to whether the Statute is rationally related to this legitimate interest. Defendants argued that transgender women incarcerated in male prisons are at risk of assault at the hands of male prisoners. However, the court was persuaded by Plaintiffs’ argument that transgender women typically seek to present as feminine in appearance even in the absence of hormone treatment, and thereby still be at risk of assault regardless of whether they were allowed hormone therapy or not. Because of this factual dispute, the court determined that Plaintiffs’ Equal Protection claim should be resolved at trial.
A bench trial on the merits was held from October 22, 2007 through October 25, 2007.
On March 31, 2010, Judge Clevert issued an order declaring Wis. Stat. § 302.386(5m) unconstitutional and enjoined the enforcement of the statute. 2010 WL 1325165. The court concluded that Defendants' application of Wis. Stat. § 302.386(5m) constituted deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment inasmuch as enforcement of the statute results in the denial of hormone therapy without regard for the individual medical needs of inmates and the medical judgment of their health care providers. The court further found Wis. Stat. § 302.386(5m) unconstitutional on its face under the Eighth Amendment because it bans the use of any Wisconsin State resources or federal funds passing through the government to provide hormone therapy and, thereby, requires the withdrawal of any such ongoing hormone therapy for inmates in DOC facilities without regard for the medical need for that treatment. The court further found that the Statute prevents WDC medical personnel from evaluating inmates for treatment because such evaluation would be futile in light of the statute's ban on such hormone therapy. Furthermore, the application of Wis. Stat. § 302.386(5m) violates Plaintiffs' constitutional right to equal protection because there is no rational basis for treating Plaintiffs differently than similarly situated inmates.
The court then issued a Memorandum Decision on May 13, 2010, reiterating and expanding on its March 31, 2010 order. 712 F.Supp.2d 830. The Memorandum Decision also laid out the facts and conclusions of law underlying the court’s ruling, including a summary of the testimony by Plaintiffs, Defendants, and medical experts that the court relied on. Notably, the Memorandum decision specified that: (1) GID or transsexualism was “serious medical need” for purposes of the Eighth Amendment; (2) any application of the Statute would violated the Eighth and Equal Protection and enjoining all applications of the Statute is necessary to prevent constitutional violations; (3) an injunction against enforcement of the Statute is the least intrusive means possible to correct Eighth Amendment and Equal Protection violations that would be caused in the future through any application of the facially invalid statute; and (4) the injunctive relief will have no significant adverse impact on public safety or the operation of a criminal justice system.
Defendants appealed the district court’s ruling to the United States Court of Appeals for the Seventh Circuit on June 2, 2010 (10-2339). On June 16, 2010, Plaintiffs filed a cross appeal with the Sevent Circuit as to several of the district court’s previous decisions, including the district court’s denial of class certification (10-2466). Parties also jointly moved to hold in abeyance all proceedings in the district court regarding attorneys’ fees and costs pending the resolution of parties’ appeals in the Seventh Circuit, and court entered an order granting this joint motion on June 22, 2010.
In the Seventh Circuit, parties argued the appeals on February 07, 2011, before a panel of Judges Rovner, Wood, and Gottschall. On August 5, 2011, the Seventh Circuit, in a unanimous decision, affirmed the judgment of the district court, ruling that Wis. Stat. § 302.386(5m) violated the Eighth Amendment as applied to plaintiffs and on its face, and striking it down in its entirety. 653 F.3d 550. Because the Seventh Circuit found the Statute to be facially unconstitutional under the Eighth Amendment, it did not address the district court’s alternate holding that the Statute also violated the Equal Protection clause. Furthermore, because the Seventh Circuit upheld the district court’s injunction, it did not address Plaintiffs’ cross appeal regarding the district court’s denial of class certification.
Defendants appealed the Seventh Circuit’s decision to the United States Supreme Court (11-561). Without issuing an opinion, the Supreme Court declined to take the case on March 26, 2012, leaving the Seventh Circuit’s decision standing. 566 U.S. 904.
Back in the district court, in a May 23, 2012 order, Judge Clevert awarded Plaintiffs $735,000 in attorneys’ fees and costs. This case is now closed.
Summary Authors
Xin Chen (5/22/2011)
Sarah Portwood (4/7/2024)
Konitzer v. Bartow, Eastern District of Wisconsin (2003)
Gotti v. Raemisch, Eastern District of Wisconsin (2007)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4412461/parties/sundstrom-v-frank/
Alber, Christopher Wayne (Wisconsin)
Bove, Emil J. (Wisconsin)
Brist, Monica A (Wisconsin)
Bruce, Benjamin A. (Wisconsin)
Burkert Brist, Monica A. (Wisconsin)
Clevert, Charles N. Jr. (Wisconsin)
Gottschall, Joan B. (Illinois)
Rovner, Ilana Kara Diamond (Illinois)
Wood, Diane Pamela (Illinois)
Alber, Christopher Wayne (Wisconsin)
Bruce, Benjamin A. (Wisconsin)
Burkert Brist, Monica A. (Wisconsin)
Finkelmeyer, Corey F. (Wisconsin)
Gunter, Matthew Ryan (Wisconsin)
Kemp, Jennifer Fawn (Wisconsin)
Mullaney, Marybeth E (Wisconsin)
Schmelzer, Jody J. (Wisconsin)
See docket on RECAP: https://www.courtlistener.com/docket/4412461/sundstrom-v-frank/
Last updated April 7, 2024, 9:52 a.m.
State / Territory: Wisconsin
Case Type(s):
Special Collection(s):
Transgender Healthcare Access Cases
Key Dates
Filing Date: Jan. 24, 2006
Closing Date: May 23, 2012
Case Ongoing: No
Plaintiffs
Plaintiff Description:
Five transgender women incarcerated in state prisons in Wisconsin.
Plaintiff Type(s):
Attorney Organizations:
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Denied
Defendants
Wisconsin Department of Corrections, State
Oshkosh Correctional Institution (Oshkosh), State
Defendant Type(s):
Case Details
Causes of Action:
Constitutional Clause(s):
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Injunction / Injunctive-like Settlement
Preliminary injunction / Temp. restraining order
Source of Relief:
Amount Defendant Pays: $735,000
Order Duration: 2006 - None
Content of Injunction:
Issues
LGBTQ+:
Discrimination-basis:
Affected Sex or Gender:
Medical/Mental Health:
Type of Facility: