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State and federal dollars could not be used for gender-affirming sexual reassignment surgery for offenders imprisoned in Indiana, under a bill passed by a Senate panel Tuesday.
House Bill 1569, authored by Rep. Peggy Mayfield, R-Martinsville, restricts the Indiana Department of Correction (DOC) from paying for an inmate’s reassignment surgery — even if recommended by a medical provider.
The latest version of the bill does allow access to hormone therapies that are intended to make one appear or function as the opposite sex, however.
Currently, those incarcerated within DOC facilities, such as state prisons, are able to undergo the transition procedure. A DOC spokesperson said Tuesday that no inmates have done so yet, though.
Indiana’s Medicaid policy does not explicitly prohibit — nor allow — reimbursement for transition therapies or surgeries. Federal Medicaid guidelines additionally do not mandate states to cover sex reassignment surgeries.
Republican lawmakers who support the bill say they want to protect taxpayers from paying for an “unnecessary” procedure.
“There are no generally accepted professional medical standards for using sex reassignment surgery as a treatment. So, the medical community is divided,” Mayfield said Tuesday before the Senate corrections committee. “I think this is more of a policy of using taxpayer money for procedures that are not medically proven yet. … This bill would provide clear and consistent policy on this treatment.”
Democrats and LGBTQ advocates pushed back, holding that the bill is not about saving state resources, but rather part of a “hateful” GOP-backed agenda to enact anti-transgender legislation.
“There are people who believe that gender reassignment surgery is bad. That’s okay to have that public policy mindset. But it can’t be bad just because you think it’s bad, and it shouldn’t be subjected to everybody in the state of Indiana because not everybody believes that,” said Sen. Greg Taylor, D-Indianapolis. “If we pass legislation, it’s making a public policy statement … that we believe that gender reassignment surgery is inherently bad.”
The measure advanced 5-2 from the committee and now heads to the full chamber.
Mayfield said that “about” 36 people in Indiana’s jails and prisons are receiving hormone therapy for gender dysphoria ― a clinical diagnosis describing the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics.
Another two dozen individuals are being assessed “as to whether accommodations need to be made,” she said.
“There’s a significant number of patients in the pipeline,” Mayfield continued, pointing to an “increase in diagnoses for gender dysphoria in Indiana.”
She maintained, too, that Indiana “is likely” to see more requests for sex reassignment surgery, meaning “there would be more litigation, more expense to the state.”
The DOC hasn’t yet provided “sexual reassignment surgery to offenders who are confined in DOC facilities,” according to a fiscal analysis of the bill.
Margaux Auxier, DOC’s legislative services director, said other surgical procedures like vasectomies and hysterectomies are — when medically necessary — provided by the state at no cost.
Still, Auxier noted that the state has not yet paid for any sexual reassignment surgeries. DOC’s third-party medical providers have not covered costs, either.
But that’s about to change, following two court cases filed by incarcerated people who requested the surgery but were originally denied.
As the result of one federal case which was settled in 2022, DOC will provide surgical care to Tonie Loveday, who is now undergoing pre-operative care. Loveday’s case would be exempted from the bill — the provisions only apply to patients approved by the DOC for sexual reassignment surgery prior to July 1.
Another federal case, Stillwell v. Dwenger, is still being litigated and remains undecided.
Auxier maintained the state agency did not request the legislation and remains neutral on the bill.
Committee chairman Sen. Aaron Freeman, R-Indianapolis, said “this is about the state paying for it” — not a determination over whether the procedure should be allowed to happen.
The American Civil Liberties Union (ACLU) of Indiana, on the other hand, calls the bill “wildly unconstitutional” and argues that DOC “cannot deny necessary treatment to incarcerated people simply on the basis that they are transgender.”
The advocacy group also said a denial of necessary medical care is a violation of the 8th Amendment’s prohibition on cruel and unusual punishment.
“Medical care related to transgender patients has been found by every reputable medical organization to be necessary and even lifesaving,” according to the ACLU of Indiana. “The courts agree and have consistently found that people who experience gender dysphoria cannot simply be denied care.”
Adrienne Pope, representing the Indiana Attorney General’s Office, said Tuesday 8th Amendment challenges are likely but the office is confident in defending the case.
“The view of the attorney general is that disagreement in the medical community over the need of sex reassignment surgery, combined with the continued availability of hormonal and non-surgical treatments for gender dysphoria prisoners, this is a defensible bill,” Pope said.
The measure is now under consideration by the full Senate. An amendment to the bill that was not heard in committee but could be debated on the chamber floor would require DOC to assign an inmate “to a facility or program” that is based on the offender’s biological sex, not their gender identity.
Current DOC policy stipulates that, on a case-by-case basis, incarcerated individuals should be allowed to use preferred pronouns and receive housing and programming assignments that affirm their gender identity.
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