Former president Donald Trump’s comments during the presidential debate that Kamala Harris supports “transgender operations on illegal aliens that are in prison” have been memed into oblivion. But ACLU attorney Chase Strangio wants us to remember that Trump’s stumbling, erratic ramblings reveal the true depth and breadth of right-wing efforts to deny trans people everywhere our basic civil liberties.
Trump’s comments appear to be based on a 2019 ACLU survey of presidential candidates, resurfaced by CNN the day before the debate and widely reported by the media. The survey asked whether candidates would use their executive authority as president to ensure that trans people who rely on the state for medical treatment, including incarcerated and detained trans people, have access to gender-affirming care, to which Harris answered that she would. The vast majority of the reporting on this survey failed to note one important detail: Incarcerated people are already constitutionally entitled to medical care, including transgender people.
But Trump’s comments at the September 10 debate, which also sought to whip up anti-immigrant sentiment, gave off the impression that gender-affirming care is universally and easily accessible, so much so that it’s being given out willy-nilly, including to people in prison and detention. But we know the opposite is true: Even in states without bans and restrictions on gender-affirming care, trans people face long wait times and other obstacles, while Republicans remain singularly focused on reducing access, successfully banning it for youth in 26 states.
This is particularly true for incarcerated and detained people: accessing gender-affirming care, or even housing that aligns with one’s gender identity, remains a significant challenge for trans and gender nonconforming people in prison and jail. Those barriers to access often come on top of harassment and violence. A recent report that examined the treatment of LGBTQ+ and HIV-positive people in federal immigration jails found that detained trans people not only face the verbal, physical, and sexual abuse that echoes what incarcerated trans people experience, but their hormone therapy is often delayed or outright denied. As the report notes, this denial is especially harmful for people who had already been taking hormones before being detained.
That’s why Chase Strangio, co-director for the ACLU's LGBTQ & HIV Project, argues that supporting the provision of gender-affirming care for detained immigrants is not a “wild” notion, as one New York Times article labeled it after the debate; rather, it’s a constitutional right that we should expect our elected officials to enforce.
Strangio spoke with Them over email about how this latest spate of fear mongering in particular bucks up against decades of legal precedent that supports basic medical care for transgender people in the government’s custody.
What should people know about the current landscape when it comes to gender-affirming care for trans people who are incarcerated or held in immigration detention? Basically, what care are they able to obtain?
I think the first point to make sure people understand is that immigration detainees are civil (not criminal) detainees and so the conditions of their incarceration are governed by one set of constitutional standards, while different constitutional standards govern the conditions that post-conviction individuals incarcerated in local, state, or federal custody are subject to. In all of these detention and incarceration contexts, the U.S. Constitution prohibits individuals from being subjected to conditions that amount to cruel or unusual punishment or that amount to punishment without due process.
Courts have consistently held that blanket denials of medical care, including medical treatment related to gender dysphoria, are unconstitutional. This is a clear constitutional principle that applies in all confinement settings. The government, once it confines someone against their will, cannot deliberately withhold needed medical care.
Of course, in practice, people in all forms of detention face catastrophic denials of healthcare. The fact that the Constitution prohibits something does not mean that government officials comply with those clear commands.
Last week, you said in a post on Instagram that the latest iteration of the anti-trans discourse highlights the fact that the assault on gender-affirming care involves not just trans kids but trans adults, too. Can you explain what you mean?
Since 2021, we have faced an onslaught of legislative attacks on gender-affirming medical care for transgender adolescents. In 2021, Arkansas became the first state to categorically ban medical treatment for trans adolescents over the veto of Republican former Governor Asa Hutchinson. Now, half the country bans this medical care for adolescents.
In defense of these bans, lawmakers, anti-trans advocates, and others claim that the “concern” with the treatment is that minors are too young to understand the effects of treatment (even though it is their parents who consent) and that the data supporting interventions for minors is not well developed. Neither of these claims is accurate but the increasing efforts to ban care for adults betrays the dishonesty animating bans on care for minors. This was never about protecting young people; the efforts to ban our medical care are part of a larger agenda to limit life chances for transgender people.
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Do you want to comment specifically on the way the New York Times characterized the idea of gender-affirming care for incarcerated people (as you discussed in another Instagram post last week)?
In the wake of the most recent debate between former President Trump and Vice President Harris, the New York Times and others have flippantly referred to Trump’s claim about Harris supporting treatment, including surgical treatment, for transgender immigrants in custody as “wild.” The origin of this claim on the debate stage was a CNN “breaking report” about Harris’s responses to a 2019 questionnaire that the ACLU (my employer) submitted to all the 2020 Democratic nominees for President. The questionnaire asked a series of questions about the candidates’ stances on basic constitutional questions, including on the treatment of transgender people in custody. It was a five-year old document that reflected nothing more than Harris’s willingness to follow the Constitution.
That it was reported on by CNN as though it was some scandal reflects the extent to which the discourse around trans people and immigrants has continued to devolve – led in significant part by the media – over the last five years. CNN distorted a basic constitutional principle into a debate night scandal that was then repeated by Trump and reported on by the New York Times as being “wild.” This, of course, is consistent with the way in which the New York Times and other publications have covered health care for transgender people as something to be debated rather than a form of medical treatment that is pursued by patients and families consistent with the recommendations of doctors and medical associations. Again, the implication in this reporting is that it is “preposterous” to suggest that a transgender person in government custody should receive a medical intervention that might save their life. For decades, federal courts have upheld this principle, and yet it has been cast as patently absurd within the lens of our current public discourse.
You point out in that post that the 8th and 14th Amendments of the Constitution require the provision of medical care for people in prison/detention. So, why is it being treated as controversial for Harris to say she would have supported gender-affirming care — including surgery — for incarcerated trans people?
This basic constitutional requirement is being treated as controversial because the media and state and federal lawmakers have so effectively demonized transgender people and immigrants that the idea that the Constitution would protect us is itself seen as something bordering on a joke. I have been a part of lawsuits challenging the denial of health care for transgender people in civil and criminal custody and it is one of the clearest areas of law that I have litigated in and yet we have allowed our medical treatment to become the subject of a media debate and the effect of debating the legitimacy of our health care is that it is being and will continue to be eroded at every level for people of all ages in and out of detention.
Amid the jokes and memes about what Trump said at the debate, what do you want people to know/understand about rights for incarcerated trans people and/or access to gender-affirming care and how either is being used in the election cycle?
I appreciate the memes from and for trans people about our “transgender operations” because amid the absurdity we must ourselves find levity. But it is at the same time important for actual journalists to clarify that there is nothing funny, controversial, or scandalous about affording people in custody their basic constitutional rights to medical treatment. Anything less would be cruel, unusual, and inhumane.
The rhetoric around asylum seekers, all immigrants, and trans people has become so dangerous that we will continue to see the catastrophic material effects of this discourse for years and possibly generations. We collectively have a responsibility to disrupt the election-year efforts to demonize groups of people to deflect from our institutional failures.
Do you want to add anything about the weaponization of anti-immigrant and anti-trans sentiment?
Every day the anti-immigrant and anti-trans sentiment is escalating. Behind all the memes are communities of people – Haitian immigrants, Venezuelan asylum-seekers, trans youth and adults – just trying to survive in a world that has long imperiled their survival opportunities. I look first to the media – especially on the left – to do better.
Our health care isn’t a joke and some of the people claiming to be mocking Trump are really mocking us.
This conversation has been edited and condensed for clarity.
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