Va. inmate appeals dismissal of sex change lawsuit

December 5, 2011 - 2:10 PM
Inmate Sex Change

FILE - In this March 9, 2011 photo Ophelia De'lonta speaks during an interview at the Buckingham Correctional Center in Dillwyn, Va. DeLonta is appealing the dismissal of her lawsuit seeking a sex change operation, saying a jury should decide whether hormones and other therapies she receives are adequate or whether she should get the surgery. (AP Photo/Steve Helber)

RICHMOND, Va. (AP) — A transgender Virginia inmate has appealed the dismissal of her lawsuit asking the state to pay for her to have a sex change operation, saying a jury should decide if hormones and other therapies she receives are adequate.

U.S. District Judge James Turk tossed out Ophelia De'Lonta's lawsuit in October, saying the state was adequately treating her gender identity disorder, a mental diagnosis in which people believe they were born the wrong sex. Turk said courts have ruled that inmates are guaranteed only minimum care, not preferred therapies.

De'Lonta, who was born a man, claims her disorder causes her to attempt castration and that the surgery is the only thing that will make her stop. In an appeal to the U.S. 4th Circuit Court of Appeals filed last week, she cites established treatment guidelines that say the surgery is needed in severe cases.

"Whether treatment is adequate is a question properly left to a jury," De'Lonta argues. "... The court seems to be saying that the fact that a prisoner is receiving any treatment at all precludes her demanding adequate treatment and forecloses altogether any argument on the level of care required."

In 2004, De'Lonta won the right to hormone treatment, psychotherapy and other allowances, such as requiring prison officials to address her as a woman and allow her to wear some female clothing. The hormones have caused her to develop noticeable breasts and other feminine features.

But De'Lonta says the therapy no longer works and that she can't control the urge to mutilate her genitals. In interviews with the AP, De'Lonta has said she will continue to cut herself unless she gets the $20,000 surgery.

Turk, however, cited federal court rulings that say there is nothing cruel and unusual about denying inmates treatments "that only the wealthy can afford." He wrote that De'Lonta was not being denied medical care, only her preferred treatment — surgery.

The Attorney General's Office does not comment on pending litigation, spokeswoman Caroline Gibson said.

De'Lonta is serving more than 70 years for robbery, drugs and other charges. She was hoping to become the first inmate in the nation to receive a state-funded sex change operation. Similar lawsuits have failed in a handful of other states, and lawmakers in some states are trying to ban the use of taxpayer money for the operations. Inmates in several other states have sued and won the right to hormone treatments.

The lawsuit's dismissal is unlikely to affect the ongoing case in Massachusetts of convicted murderer Michelle Kosilek — born Robert — who argues her surgery is a medical necessity. She says state officials have violated her constitutional rights by refusing to provide the operation.

Kosilek has received hormone treatments and lives as a woman in an all-male state prison.

De'Lonta also is housed in a men's prison but demanded in her lawsuit to be moved to a female facility. Turk, however, said the state is right to treat her as it does any other inmate with male genitalia.

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Associated Press Writer Dena Potter can be reached at www.twitter.com/DenaPotterAP