Full opinion text
MEMORANDUM DECISION C.N. CLEVERT, JR., Chief Judge. Following a court trial, in March 31, 2010, 2010 WL 1325165, this court entered an order declaring Wis. Stat. § 302.386(5m) unconstitutional and enjoining the enforcement of the statute. The following memorandum constitutes the court’s findings of fact and conclusions of law underlying that order in accordance with Federal Rule of Civil Procedure 52. BACKGROUND Plaintiffs, who are Wisconsin prison inmates, bring this action under 42 U.S.C. § 1983 for declaratory and injunctive relief claiming that the defendants violated the United States Constitution by enforcing 2005 Wisconsin Act 105, codified as Wis. Stat. § 302.386(5m) (Act 105), and abruptly terminating and depriving them of medical treatment for their serious health condition, Gender Identity Disorder (GID). Further, plaintiffs assert that the defendants acted without exercising individualized medical judgment and in contrast to the treatment the defendants provide to similarly situated inmates in Wisconsin Department of Corrections (DOC) facilities. Consequently, plaintiffs ask this court to find that the defendants have violated their Fourteenth Amendment right to equal protection and their Eighth Amendment right to be free from cruel and unusual punishment. Moreover, they ask that Wis. Stat. § 302.386(5m) be dedared unconstitutional on its face. During the pendency of this case, the DOC has provided hormone therapy to plaintiffs under the terms of a preliminary injunction. STIPULATED FACTS Plaintiff Andrea Fields is a male-to-female transsexual in DOC custody at Green Bay Correctional Institution (GBCI). The DOC has diagnosed Fields with GID. Fields has received feminizing hormone therapy continuously since 1996. In 2003, Fields underwent breast augmentation as a component of gender transition. After becoming incarcerated in 2005, the DOC confirmed Fields’s GID diagnosis and continued hormone therapy. In 2006, because of the passage of Act 105, the DOC began to taper Fields’s hormone therapy by halving the dosage. As a result of the reduction, Fields experienced nausea, muscle weakness, loss of appetite, increased hair growth, skin bumps, and depression. The reinstatement of Fields’s hormone therapy following the preliminary injunction in this action abated the withdrawal symptoms. Plaintiff Matthew Davison, also known as Jessica Davison, is a male-to-female transsexual in DOC custody at Oshkosh Correctional Institution (“OSCI”). The DOC has diagnosed Davison with GID. Prior to receiving hormone therapy, Davison attempted suicide by jumping off a roof. Davison was diagnosed with GID in 2005 and began hormone therapy as treatment for that condition shortly thereafter. The DOC has provided Davison with hormone therapy during incarceration. After arriving at Dodge Correctional Institution, the DOC began to withdraw Davison’s hormone therapy because of Act 105. As a result of that withdrawal, Davison experienced increased and darker hair growth, voice deepening, breast reduction and leaking, mood swings, mental and emotional instability, hot flashes, and body aches. The reinstatement of Davison’s hormone therapy because of the preliminary injunction in this action led to an abatement of withdrawal symptoms. Plaintiff Vankemah Moaton is a male-to-female transsexual in DOC custody at Jackson Correctional Institution (JCI). The DOC has diagnosed Moaton with GID. Moaton has experienced suicidal ideation in the past, including after being removed from hormone therapy. Moaton began taking feminizing hormones in the late 1990s, took medically prescribed hormone therapy beginning in 2000, and has continued to receive that treatment during DOC incarceration. After entering DOC custody, the DOC began to withdraw Moaton’s hormone therapy because of Act 105. As a result of that withdrawal, Moaton started growing chest and facial hair, developing tenderness in the chest and groin areas, and experiencing skin breakouts, hot flashes, and depression. The reinstatement of Moaton’s hormone therapy because of the preliminary injunction in this action led to an abatement of withdrawal symptoms. All of plaintiffs have, to varying degrees, feminine physical characteristics as a result of their hormone usage. Matthew J. Frank was, at the time this action was filed, the Secretary of the DOC. The current Secretary of the DOC is defendant Richard Raemisch. Defendant James Greer is the Director of the DOC Bureau of Health Services. Defendant Judy P. Smith is the Warden at OSCI. Defendant Thomas Edwards was the Health Services Unit Manager of the OSCI Health Services Unit until May 11, 2007. That position is currently vacant. GID is classified as a psychiatric disorder in the DSM-IV-TR, the current edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). GID has been included in the DSM since the third edition of that manual, which was published in 1980. In prior editions, the DSM classified “transsexualism” as a psychiatric disorder. The following diagnostic criteria are listed in the DSM for GID: 1) a strong and persistent cross-gender identification; 2) a persistent discomfort with one’s sex or a sense of inappropriateness in the gender role of that sex; 3) the disturbance is not concurrent with a physical intersex condition; and 4) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Matthew Davison, a/k/a Jessica Davison, has used a female name since childhood. Andrea Fields acted like a girl at school, talked like a girl, walked like a girl, wore makeup, and had a feminine hairstyle. Vankemah Moaton started behaving in a feminine manner prior to age eight. Kenneth Krebs, a/k/a Karen Krebs, a male-to-female transsexual in DOC custody, cross-dressed as a child and adolescent. Erik Huelsbeck, a/k/a Erika Huelsbeck, another male-to-female transsexual held by the DOC, dressed as a girl for “dressed-up” day at school and other times, sometimes publicly. DOC administrative personnel generally agree that deference on health care matters should be given to DOC health care staff. Sometimes the DOC prescribes hormone therapy for reasons that do not have to do with GID, such as estrogen replacement therapy in post-menopausal years, or for inmates with a congenital or hormonal disorder that requires the administration of hormone therapy. The legislative sponsors of Act 105 labeled it the “Inmate Sex Change Prevention Act.” Act 105 provides: Section 1. 302.386(5m) of the statutes is created to read: 302.386(5m)(a) In this subsection: 1. “Hormonal therapy” means the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender. 2. “Sexual reassignment surgery” means surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender. (b) The department may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery for a resident or patient specified in sub. (1). Section 2. Initial applicability. (1) Provision of Hormonal Therapy or Sexual Reassignment Therapy. This act first applies to hormonal therapy, as defined in section 302.386(5m)(a) 1. of the statutes, as created by this act, or sexual reassignment surgery, as defined in section 302.386(5m)(a) 2. of the statutes, as created by this act, provided on the effective date of this subsection. (Ex. 24.) The legislative sponsors issued multiple press releases prior to its passage stating that it was intended to prevent “bizarre taxpayer-funded sex change procedures” and to stop the DOC policy of “[allowing] pharmacists within the correction system to give hormones to an inmate diagnosed with gender identity disorder.” The only correctional or medical expertise offered during the legislative hearings regarding Act 105 was that of defendants’ correctional medical personnel, Dr. Kevin Kallas and Dr. David Burnett. No other DOC representative testified before the legislature regarding Act 105. No one other than legislators spoke in support of the bill that became Act 105. An earlier draft of Act 105 made explicit reference to GID, banning the use of DOC funds “to provide or facilitate the provision of hormonal therapy or sexual reassignment surgery for the treatment of gender identity disorder.” Several of the press releases issued by the sponsors of Act 105 noted specifically that the issue of sex reassignment treatment for inmates came to light when they learned that a Wisconsin transgender inmate was receiving treatment that led her to develop “female characteristics, such as breasts.” While sex reassignment surgery is more expensive than hormone therapy, DOC provides surgeries of equal or greater cost, such as organ transplant and open heart surgical procedures, when medically necessary. Genital sex reassignment surgery costs approximately $20,000. The most expensive surgical procedures provided to inmates by defendants include organ transplants, such as liver, kidney and pancreas transplants, and open heart surgical procedures. In 2005, the defendants paid $37,244.09 for one coronary bypass surgery and $32,897.00 for one kidney transplant surgery. The Fiscal Estimate prepared for AB-184, the bill that became Act 105, noted that the defendants paid a total of $2,300 for cross-gender hormone therapy for two inmates with GID in 2004. Such hormone therapy for inmates with GID costs defendants approximately $300 to $1,000 per inmate per year. A second-generation antipsychotic, Quetiapine, costs approximately $2,555 to $2,920 per inmate per year on average, and, in 2004, the defendants paid approximately $2.5 million for inmates to have Quetiapine. Another second-generation antipsychotic, Risperidone, costs approximately $2,555 per inmate per year on average. Act 105 has prevented the DOC from undertaking thorough evaluations of at least two inmates to determine whether hormone therapy is medically necessary and appropriate for them. Erik Huelsbeck, a/k/a Erika Huelsbeck, was continuously in facilities administered by the DOC from December 2004 until July 2007, when Huelsbeck was transferred to the Wisconsin Resource Center. Huelsbeck was first diagnosed with GID by the DOC in 2006. Huelsbeck has not been evaluated to determine whether hormone therapy will be prescribed, nor could such treatment be prescribed, because of Act 105. Similarly, Krebs has been diagnosed with GID by the DOC. However, Krebs has not been evaluated to determine whether hormone therapy will be prescribed, nor could Krebs receive such treatment, because of Act 105. Plaintiffs have been in DOC general population for most of their sentences. When OSCI identifies inmates who are more likely to be victims of violence by other prisoners', or more likely to perpetrate violence, it takes steps to address that through closer monitoring or placing the inmate in a different housing unit. OSCI has eleven different housing units. One is a dormitory setting and houses 148 inmates. Two are wet cell units — they have toilet and shower facilities in the cell. The remaining nine have group bathrooms. The non-dormitory units have between 160-200 inmates each. The majority of the inmates in those units are double-celled. The DOC does not permit inmates to pay for their own health care or to seek insurance coverage, as non-inmates could, so Act 105 bars the only avenue for inmates with GID to receive hormone therapy and/or sex reassignment surgery. Neither the DOC as a whole nor any of the defendants have had any involvement in the drafting of, or the introduction of, any of the bills that became Act 105. EVIDENCE PRESENTED AT TRIAL 1. Witnesses Plaintiffs’ witness Dr. Randi Ettner is a clinical psychologist who received a Ph.D. in psychology in 1979. (Trial Tr. vol. 1, 13-14, Oct. 22, 2007; see also Ex. 525.) She has evaluated or treated between 2,500 and 3,000 clients with GID since 1976. (Trial Tr. vol. 1, 15, Oct. 22, 2007.) Dr. R. Ettner conducts independent research in the area of GID; has written three books, two of which are peer-reviewed; provides consultation to other mental health professionals; provides in-service or education to physicians, attorneys, and other groups; and collaborates with colleagues in organizations that treat individuals with GID. (Id. at 14, 16.) She is the editor of the International Journal of Transgenderism, which is published by Haworth Medical Press. (Id. at 17.) Dr. R. Ettner is a member of the scientific committee of the World Professional Association for Transgender Health (“WPATH”), known previously as the Harry Benjamin International Gender Dysphoria Association (“HBIGDA”). (Id. at 18.) Approximately 70% of her work time is spent seeing clients. (Id.) As part of her role as clinician for clients with GID, Dr. R. Ettner examines clients and recommends necessary medical treatments. (Id. at 22.) Her role is to collaborate with medical caregivers, endocrinologists, and surgeons who implement the treatments. (Id.) Dr. R. Ettner assesses the intensity of the GID in a given individual, and determines whether or not a particular treatment would be medically necessary. (Id.) Plaintiffs’ witness Dr. Frederic Ettner has been a family medicine physician for the past thirty years. (Id. at 83.) In approximately 1994, he started seeing patients with GID in his private practice. Since that time he has seen over 500 GID patients. (Id. at 88.) Dr. F. Ettner is a member of WPATH. (Id. at 91.) In 2007, Dr. F. Ettner presented a medical education seminar on family medicine and transgender at the WPATH international conference, which was held in Chicago. (Id. at 91-92.) Dr. F. Ettner addresses GID in his teaching as a clinical instructor for Northwestern University and the University of Southern California Medical Schools. (Id. at 92.) He considers himself an expert in transgender medicine. (Id. at 93.) Vankemah Moaton, incarcerated at JCI, is one of the plaintiffs in this case. Moaton is a 29-year-old biological male who recalls feeling or acting in a feminine way as early as age four. (Trial Tr. vol. 2, 140, Oct. 23, 2007.) As Moaton got older, the feeling intensified, along with feelings of hatred for having a male body. (Id. at 140-41.) Moaton felt better when able to act like a girl, dress up in girl clothes, and play with dolls. (Id. at 142.) Moaton experienced anger and “lots of depression” as Moaton’s body began developing as a man and self-hatred feelings intensified. (Id. at 142-43.) Moaton started taking female hormones around age seventeen or eighteen and as a result started seeing less facial hair growth and a skin “glow” and developed breasts. (Id. at 144.) These changes made Moaton feel happier than ever before because steps were being taken toward becoming a woman. (Id. at 144-45.) A year or two after starting hormones, Moaton began dressing as a woman and living life as a female, including in a couple of jobs. (Id. at 146.) In addition, Moaton has had electrolysis on the face, as well as silicone injections in cheeks, chin, breasts, and hips. (Id. at 147.) Moaton considers Moaton to be a woman and is “completely detached” from the male part or male characteristics. (Id. at 148.) Moaton is currently taking feminizing hormones. (Id. at 154.) Plaintiffs’ witness Dr. Kevin Kallas is the Mental Health Director for the DOC. (Id. at 168.) He is board certified in general psychiatry and forensic psychiatry. (Id.) Dr. Kallas is responsible for informing the psychologists and psychiatrists within the DOC about the care of inmates with GID. (Id. at 173.) Dr. Kallas’s responsibilities include clinical oversight of approximately thirty-five psychiatrists and approximately 100 psychology staff; development of policy for achieving consensus within the department as to what policies ought to be; clinical consultation to the psychologists and psychiatrists; formulating policy for psychotropic medications; and acting as a liaison to outside groups such as advocacy groups. (Id. at 196.) He sits on the DOC gender identity committee. (Id. at 170.) Dr. Kallas’s prior experience in working with persons with GID includes five years at the San Francisco psychiatric emergency room where he saw about a dozen transgender patients, some on a recurring basis. (Id. at 171-72.) He also had at least one transgender patient while in private practice and, while working as a psychiatrist at Dodge Correctional Institution, evaluated and treated at least one patient with GID. (Id. at 172.) Defendants’ witness Dr. David Burnett is the Medical Director of the DOC. (Id. at 210.) He has been licensed to practice medicine in Wisconsin since 1980 and is board certified in family medicine. (Id. at 211.) Dr. Burnett also has a degree in Masters of Medical Management. (Id.) His duties and responsibilities as DOC Medical Director include oversight for care within the Wisconsin prison system, including the primary care physicians; oversight to the mental health director; oversight to the dental area and the pharmacy; and review of medical policy. (Id. at 212.) Dr. Burnett is a member of the DOC gender identity disorder committee. (Id. at 223.) Plaintiffs’ witness Dr. George Brown is chief of psychiatry at the Mountain Home VA Medical Care Center in Johnson City, Tennessee, and Professor of Psychiatry at East Tennessee State University. (Trial Tr. vol. 3, 245, Oct. 24, 2007.) He is board certified in psychiatry and licensed to practice psychiatry in Tennessee, Texas, and Ohio. (Id. at 246.) Dr. Brown’s specialized training in the field of GID includes pursuing such training with experts at the University of Rochester, Case Western Reserve University, and the Institute of Living in Hartford, Connecticut. (Id.) He has published articles on GID and transgender issues in approximately twenty-six journals and has had about forty abstracts published from scientific meetings. (Id. at 246-47.) Dr. Brown has published one scientific abstract on the issue of prison inmates with GID and currently has one paper being considered for publication. (Id. at 248.) He has conducted research on “gender phenomenon” since the mid-1980s, some of which has been specific to GID and transsexualism, some on prison issues with GID, as well as a variety of other transgender phenomenon including transvestism. (Id. at 248-49.) Dr. Brown has been involved in the clinical evaluation of patients with GID for about twenty-six years and evaluated or treated more than 500 patients with gender identity concerns. (Id. at 249.) He is a member of WPATH and holds the position of secretary/treasurer for that organization. (Id.) Dr. Brown’s correctional experience consists of working for one month as a staff psychiatrist in two maximum security prisons in Ohio and working for six months part-time in a forensic psychiatric facility for criminally insane inmates. (Id. at 250.) He has evaluated five prison inmates with GID. (Id. at 251.) Defendants’ witness Dr. Daniel Claiborn is a psychologist who has been licensed in Missouri and Kansas since 1980. (Id. at 335.) He holds a Ph.D. in counseling psychology. (Id. at 336.) He is a member of the American Psychological Association and is the chair of the ethics committee of the Kansas Psychological Association. (Id. at 339.) Dr. Claiborn has a psychotherapy practice which covers “all the dimensions of psychopathology, basically[,] including depression, anxiety, marital problems, relationship issues, and some unique categories like eating disorders.” (Id. at 346.) He has a special niche working with gay and lesbian clients in his community and for the past twenty years has had a steady flow of those clients. (Id.) Since the early 1980’s, Dr. Claiborn has had one to three transgender clients per year. (Id.) In his private practice he has had approximately fifty clients who suffer from GID or have transgender issues. (Id. at 347.) Dr. Claiborn is trained to treat mental disorders such as anxiety and depression. (Id. at 353-54.) Dr. Claiborn has been an expert witness in approximately sixty-six cases between 2004 and October 2006. (Id. at 378.) About 20% of his work consists of seeing patients and 80% is consulting or expert witness work. (Id. at 379.) Dr. Claiborn has not done any research on GID and has not published any articles or books on GID. (Id. at 379-80.) Eugene E. Atherton is the defendants’ security expert. He is a retiree of the Colorado Department of Corrections, and also acts as a private consultant in criminal areas of criminal justice. (Id. at 406.) He has worked in corrections since 1975. (Id.) A good portion of Atherton’s employment with the correctional system has focused on security issues, including as warden at medium and maximum security institutions, and assistant director of prison operations for the western region of the Colorado Department of Corrections. (Id. at 408.) Since 2004, Atherton has worked as an expert witness in various cases. He also published the only book on use of force in corrections. Id. at 409. He does technology work for the National Law Enforcement and National Technology Center out of Denver, on a national level, which requires him to communicate with a number of states and agencies on security and safety issues as they relate to technology. (Id. at 410.) Atherton works approximately thirty hours per week, visits jails and prisons and interacts with staff, and is currently building an organization in the Rocky Mountain states for viewing and assessing technology among agencies, all related to safety and security. (Id. at 410-11.) Approximately once or twice a year, he gets called to the National Institute of Corrections as a subject matter expert on issues of security and safety. (Id. at 411.) 2. Plaintiffs According to Dr. R. Ettner, all three plaintiffs have severe GID. (Trial Tr. vol. 1, 43, Oct. 22, 2007.) Dr. R. Ettner testified that, at a minimum, plaintiffs require hormone therapy to treat their severe GID. (Id.) Hormone therapy is medically necessary for the plaintiffs because nothing short of that treatment will provide an attenuation or relief from the severe distress caused by GID at that level. (Id. at 55.) According to Dr. R. Ettner, plaintiff Fields looks like a woman, has large breasts, and is “very feminine in appearance.” (Id. at 51.) The prison guards refer to Fields as “she, I mean he.” (Id.) Fields “is fully feminine in her presentation and in her appearance.” (Id.) Dr. R. Ettner testified: Andrea Fields is one of those individuals who thought she was a girl when she was growing up, and always behaved and lived as a girl. She never even tried to live as a boy. Even though, for instance, she was punished for playing with nail polish, she never ever attempted to be anything other than what she thought she was. (Id.) Dr. R. Ettner says Plaintiff Davison looked “fairly feminine” in appearance. (Id. at 52.) Davison had some breast growth and a female hairstyle, and attempted to present with female mannerisms. (Id.) As a result of using hormones for a period of time, Davison had some of the physical manifestations of female secondary sex characteristics, which come on with hormone usage. (Id.) Davison appeared to have other psychiatric disorders as well as GID. (Id.) Davison had previously sought treatment for depression, and Dr. R. Ettner believes that Davison had a personality disorder. (Id. at 53.) Davison sought treatment for GID at the Pathways Clinic in Milwaukee. (Id.) Davison made several suicide attempts in the past. (Id.) Davison is married to a woman and has two children. (Id. at 71.) According to Dr. R. Ettner, plaintiff Vankemah Moaton is “a bona fide transsexual.” (Id. at 54.) Prior to incarceration, Moaton was living and working as female and everyone, including family, regarded Moaton as a female. (Id.) Moaton looks like a female in that Moaton has female bone structure, a female hairstyle, a voice that is entirely female, a waist to hip ratio that appeared female, breast development, no facial or body hair, and a lack of the muscle mass that is characteristic of genetic males. (Id. at 58.) Moaton served in the Army Reserves from 1995 to 2003. (Id. at 71.) 3. Gender Identity Disorder a) Dr. R. Ettner Dr. R. Ettner testified that GID is: a rare condition in which an individual has the persistent idea that they are or wish to be a member of the opposite sex, and the persistent feeling that their own body is inappropriate or wrong, and they desire to rid themselves of the characteristics of the sex they were born with and attain the characteristics of the other sex. (Trial Tr. vol. 1, 23, Oct. 22, 2007.) The criteria for the diagnosis is set out in two places, the International Classification of Disease (“ICD”), and the DSM. (Id. at 24-25.) The ICD and the DSM “are nomenclature, in one case of all medical and psychiatric disorders, and the other psychiatric disorders that mental health professionals need to familiarize themselves with and treat.” (Id. at 25.) GID affects one in 11,900 genetic males. (Id.) The best way to diagnose it is “that they come in and tell us.” (Id. at 24.) An individual will seek out a professional and relate a history of gender dysphoria or history of feeling trapped in the wrong body. (Id.) “And that’s usually causing them distress, at least enough to bring them to a mental health professional.” (Id.) The intensity of the distress varies depending on the severity of the disorder. (Id.) “For some people the disorder is so intense and so severe, that they simply cannot function unless they do something to correct this disorder. For other people the discomfort is less intense, and they are able to manage the condition over a lifetime.” (Id.) Taking a history of a client is important in diagnosing GID because the diagnosis is partially based on the duration of the symptoms and the feelings. (Id. at 26.) Dr. R. Ettner’s GID clients have some common characteristics: People who have severe Gender Identity Disorder, what we refer to as transsexualism, will give a lifelong history, often beginning as early as three or four. Sometimes they say that they thought they were a girl until they realized at a later age they weren’t. They will describe a period of dressing or what we would call cross-dressing, dressing in the desired gender, often taking a mother or sister’s clothes when they’re young and wearing those. Typically they have a dislike of their genitals. Puberty is a very difficult time for these individuals. And they will track along their lifeline various stigmata of gender confusion or gender disorder. They try to rid themselves of the secondary sex characteristics. So a male will shave their body hair, oftentimes even before they know the name of this disorder or what it is that they’re experiencing. They’ll tuck their genitals. They will, you know, try to appear and be perceived as a member of the other sex, if not publicly for fear of being punished or shamed, at least privately when they feel safe they’ll try to restore some sense that when they look in the mirror what they’re seeing feels like who they really are. Even children, often very young, will show Gender Identity Disorder. They know nothing about hormones, they know nothing about surgery, but they believe that they are or they very much want to be a member of the other sex. So, for instance, a young boy will put on a dress or nail polish. And oftentimes they’re punished or shamed for doing that. They’ll continue. They’ll play mostly with girls when they have the opportunity. They won’t like rough and tumble play. (Id. at 26-27.) According to Dr. R. Ettner, there is no definitive test to say whether someone has GID. (Id. at 28.) However, there is no controversy over the existence of the disorder. (Id. at 42.) b) Dr. F. Ettner Dr. F. Ettner testified that, based on his medical knowledge and experience treating transgender patients, GID is a serious health condition. (Id. at 98.) He stated: Those individuals, with Gender Identity Disorder who express dysphoria, not being in the right body, where the brain is not in concert with their physical appearance, will have a lot of dysfunction. Initially it may present as depression, lethargy, and they will then come to my attention. If not treated, whether it be by talk therapy and/or hormones, they can develop serious medical problems. (Id. at 94.) The medical problems include further depression, morbid depression, and suicidal ideation. (Id.) A family physician may diagnose GID. (Id.) In practice, Dr. F. Ettner will consult with other experts, namely, gender therapists, psychologists, psychiatrists, or social workers to confirm his suspicions of GID. (Id. at 94-95.) GID varies in its severity and is a generally accepted medical condition. (Id. at 128.) c) Dr. Burnett Dr. Burnett acknowledges GID as a serious health condition that requires evaluation and treatment. (Trial Tr. vol. 2, 227-28, Oct. 23, 2007.) d) Dr. Brown Dr. Brown testified that once a person has reached the clinical significance threshold, by definition it becomes a clinical diagnosis that warrants medical attention. (Trial Tr. vol. 3, 259, Oct. 24, 2007.) Once the clinical threshold is reached, a person will have “significant symptomatology that in most cases warrants some type of individualized treatment.” (Id.) There is no controversy among professionals who work in the GID field that it is a serious health condition. (Id. at 260.) On the other hand, there is the following controversy among professionals working in the field of GID: There are a lot of things that are in the DSM, a lot of diagnoses in the DSM that have substantial medical components. And again, there’s no bright line in medicine between what’s so-called medical and so-called psychiatric. And the DSM is very clear on that in the preamble, because there is substantial overlap in most of our conditions. So, there are some people who believe that because it’s likely that there are biological underpinnings to Gender Identity Disorder that that’s predominantly a medical disorder and, therefore, should be in the list of medical conditions or neurological conditions as opposed to a psychiatric condition. But whether it exists at all and whether it’s serious, those things are not controversial. It’s a matter of placement. (Id.) The mental state of a person presenting with GID who is not receiving treatment varies: Usually the people that make it to me through referral sources from all over the country, have at least moderate to severe form of the disorder. And prior to receiving treatment they are very preoccupied with their condition, spend considerable amount of their time, effort, energy and resources trying to obtain treatment in the form of psychotherapy hormones, and in some cases ultimately sex reassignment surgery. They uniformly have gender dysphoria which is not a diagnosis but an amalgam of symptoms that includes depression, anxiety and irritability mixed together. Frequently they have suicidal ideation and have had suicide attempts in the past. They often harbor thoughts of wanting to engage in what I would call surgical self-treatment. In the literature it’s sometimes described as genital self-mutilation or autocastration as a way to rid themselves of the hormones associated with the testicles. They’re often very desperate, frantic impaired people who are looking for treatment from someone who knows what they’re doing in this area, and unfortunately that’s limited to very few people. (Id. at 262.) Generally, Dr. Brown diagnoses GID based on a two- to three-hour face-to-face clinical interview, his experience, apd all of the records that he can find. (Id. at 263.) e)Dr. Claiborn Dr. Claiborn testified that, in his opinion, GID is not a mental disease or disorder. (Id. at 357.) He believes that a person who has GID does not typically suffer from an impairment in psychological functions. (Id. at 364.) According to Dr. Claiborn, people with GID can have mental disorders such as depression and anxiety, but those disorders are not directly a result of being transgendered. (Id. at 367.) Dr. Claiborn uses the DSM in two main ways, for filling out insurance forms and in some cases for forensic evaluations. (Id. at 361.) He testified that the DSM is not constructed to be helpful to therapists because it does not address the causes of disorders. (Id. at 361-62.) 4. Treatment for Gender Identity Disorder a) Dr. R. Ettner Dr. R. Ettner testified about the treatments for the distress that accompanies severe GID. The treatments are referred to as “triadic treatment,” which consists of, 1) a real life experience which helps the person socially take on the role and life that they want in the preferred gender; 2) hormones; and 3) surgical treatments involving genital alteration. (Trial Tr. vol. 1, 29, Oct. 22, 2007.) These treatments are set out in the Standards of Care, which is published by WPATH. (Id. at 30.) The treatments are also found in the DSM-IV treatment manual, a book that accompanies the diagnostic manual, as well as in other handbooks for clinicians and for professionals in the medical and mental health fields. (Id.) The Standards of Care “are a document that articulates professional consensus about the treatment of gender identity disorders, and it’s produced by the WPATH organization and distributed throughout the world to organizations such as World He[alth] Organization and other providers of health care worldwide.” (Id. at 30-31.) As a treatment, hormone therapy helps those with GID by providing them with a level of well-being because the effect on the brain is one that restores them to a non-distressed, non-dysphoric level of well-being. (Id. at 31.) Dr. R. Ettner’s clients who started taking hormones while under her care have experienced remarkable changes in their level of well-being, in their overall mental health, and in the way that they conduct their lives. (Id. at 32.) For many people, hormonal treatment is sufficient to manage and reduce the gender dysphoria. (Id. at 33-34.) Whether a client should have hormone therapy depends on the intensity of the disorder and the distress that the disorder causes him or her. (Id. at 35.) If it impairs the person’s functioning, occupationally, socially, or in another major arena, and it cannot be managed without medical treatment, at that point one would recommend medical intervention. (Id.) Hormone therapy is not required for all persons with GID. (Id. at 39.) Dr. R. Ettner has refused to recommend hormone therapy for a client. (Id. at 36.) One common reason for such a decision is that the person does not have the intensity of the disorder to meet the criteria for that treatment. (Id.) There is a role for psychotherapy in treating GID, which consists of four components: 1) educating the patient about the disorder; 2) helping the patient understand and navigate some of the social consequences that accompany GID; 3) following up with the patient after some treatments; and 4) offering support, helping the person find reputable physicians and support groups or other venues for assistance. (Id. at 37.) However, psychotherapy cannot talk someone out of GID; it is not a cure. (Id. at 38.) If hormone therapy is medically necessary but not provided, the person is at risk for autocastration, suicide, substance abuse, and depression. (Id. at 39.) The psychological risks of being taken off of hormone therapy are depression, autocastration, and suicide. (Id. at 41.) b) Dr. F. Ettner The nature of the treatments that Dr. F. Ettner prescribes depends upon the level of severity of the GID. (Trial Tr. vol. 1, 101, Oct. 22, 2007.) The symptoms of someone that he considers severe enough to need hormone therapy are: These are individuals that will present to me and describe a history of depression, anxiety, sleeplessness, inability to concentrate, inability to maintain their job, family conflict. And no matter what they’ve done, whether they have cross-dressed secretively, it’s not sufficient. They’ll then be referred for therapy and maybe the therapy is not gonna be sufficient and the therapist will then refer those clients to me, and those patients will then receive hormonal therapy. (Id. at 101-02.) Hormone therapy is not medically necessary for every GID patient that has come to Dr. F. Ettner; approximately five to ten percent of his GID patients have been able to go without hormone therapy. (Id. at 102.) For those patients with severe GID for whom he prescribes hormone therapy — and in some cases surgery — psychotherapy on its own is not effective as a treatment. (Id. at 103.) The therapeutic effects of hormones on the body of a patient with GID are: Patients who have GID and qualify for hormones will experience initially — the organ system that will experience the most benefit initially will be the brain. The dysphoria will tamp down, dysthymia, the depression, anxiety will all tamp down initially. Other organ systems that eventually will respond, and it will take a good couple months of therapy, include secondary sexual characteristics, in the case of the male to female, breast development, fat deposition on the hips, decrease in muscle mass on the chest, softening of the skin. (Id. at 107-08.) The birth gender hormones begin to be suppressed, “almost to the point of suppression that is sufficient to represent the gender that that individual is transitioning into.” (Id. at 108.) When hormone therapy is withdrawn from a GID patient, the following occurs: So after being on hormonal therapy for a significant period of time, couple of years, even a year, there could be enough suppression that that testosterone now approaches female levels or the same as female levels withdrawing that hormone, withdrawing estrogens create this cascade of events, the systemic events of stress. And so stress is monitored in our bodies by the amount of hormone that will secrete or prehormone that will secrete in our pituitary glands. And this will stimulate our adrenal glands that create lots of cortisol. And cortisol then affects all these target systems. For example, in muscles we’ll see some muscle wasting, in nerves we’ll see neuroexcitability. We’ll see fatty deposition. There’ll be more of a tendency for blood pressure to increase because of water and salt imbalances. And all of these things can lead to diseases — heart disease, hypertension, diabetes. (Id. at 110-11.) Termination of hormone therapy does not reverse all of the change that occurred to secondary sexual characteristics. (Id. at 111.) In a male-to-female person, gynecomastia or increase in breast size will remain, a lot of the fatty deposition will stay, and some of the muscle wasting will stay. (Id.) On the other hand, hair growth can come back if there are enough hair follicles still present and the natal hormones may begin to increase and create dysphoria again. (Id.) Termination can affect the neurological system and with neuroexcitability, seizure disorder can be seen, and sleeplessness, anxiety, and further depression can occur. (Id.) Suicidal ideation, if it was present, would be accelerated. (Id.) The effect to the metabolic muscle system, besides muscle wasting, creates higher glucose levels and can lead to diabetes, more water loss, and higher hypertension. (Id. at 112.) Termination can soften the bones. (Id.) Termination of hormone therapy also affects the cardiovascular system by way of water retention, which increases plasma volume and increases the pressure within the system, and the release of epinephrine and norepinephrine which stimulates the body and can constrict the blood vessels that convey blood to the organs and make the heart beat faster which increases blood pressure. (Id. at 113.) Finally, withdrawal of hormone therapy affects the immune system due to decreased protein. (Id.) Lymphocytes made in the lymph system that protect people from infection are suppressed. (Id.) Every patient who is taken off hormones will experience these risks chemically. (Id. at 114.) Some patients will experience the effects clinically, others subclinically. (Id.) All patients taken off hormone therapy need to be followed, and all of these organ systems need to be monitored. (Id.) Based on these risks, it is not medically acceptable to take someone off of hormone therapy if they do not have to come off for some other medical reason. (Id.) Based on a review of plaintiff Fields’ medical records, Dr. F. Ettner formed an opinion to a reasonable degree of medical certainty about the likely effects of withdrawing Fields from hormones. (Id.) He opines that withdrawal could have serious adverse effects on Fields’ health and well-being: I think, you know, based on the records and looking at her as a transgendered woman, she’s diminutive, she had had breast implants, she had been on hormones for a period of time. All commentary about her in the records declared her as very effeminate. She was on significant amounts of hormone. She also in her laboratory tests had an elevated cholesterol. Taking her off would certainly upset her lipid balance, her cholesterol balance. It could increase her cholesterol levels to even higher levels than these are, and these are pretty high to begin with, 261. Being that 130 is normal and 261 is abnormal, it would put her at risk for heart disease. I think also in taking her off of hormones due to her presentation for such a long period of time as a female, the neuroexcitability issues would be very prominent for her, be an increased risk of seizure, increased suicidal ideation. (Id. at 116.) c) Dr. Kallas Dr. Kallas testified about the diagnosis of and treatment for GID. He considers the DSM to be an authoritative manual for diagnosing mental health disorders. (Trial Tr. vol. 2, 173, Oct. 23, 2007.) The primary goal of hormone therapy is to reduce gender dysphoria and to improve the psychological adjustment of an individual receiving the hormone therapy. (Id. at 174.) Hormones are medically necessary for some individuals. (Id.) Hormone therapy is “probably the most common and accepted treatment for those with severe gender dysphoria” although “it’s not the answer for everybody.” (Id. at 175.) The most widely referenced set of standards for the treatment of severe gender dysphoria is the Standards of Care. (Id.) When asked whether there may be individuals for whom hormones are the only satisfactory route to alleviate their gender dysphoria, Dr. Kallas responded: I’m hesitant to agree with that statement exactly as worded. The Harry Benjamin standards speak to a number of routes for treatment, and those include real life experience, hormonal treatment, surgical reassignment, and — I wouldn’t say necessarily that for every single individual with severe gender dysphoria that hormonal treatment is — would be required, but, again, it’s a mainstay of treatment, it’s one of the primary ways, easily the most common ways that severe gender dysphoria is treated. I would be hesitant to say that there are individuals where hormones would be the only way that the dysphoria could be — could be alleviated, but there are certainly individuals where it may be difficult to envision that other routes would be as satisfactory. (Id. at 176.) He went on to state: I do believe there are individuals where hormonal treatment is medically necessary for the gender dysphoria. Although I would be hesitant to say that it could be the only route in which they could accommodate the gender dysphoria. There may be individuals — it’s difficult to imagine that they could successfully accommodate the gender dysphoria without hormones. I think what I’m saying is very close to what you’re saying. (Id. at 177.) By “medically necessary,” Dr. Kallas means that there are adverse consequences to psychological well-being if the hormones are not provided. (Id.) To the extent that hormone therapy assists in alleviating gender dysphoria, withdrawal may bring about reemergence of that dysphoria. (Id. at 178.) Thus, the person may experience depression, anxiety, difficulty with social or occupational functioning, and suicidal ideation. (Id. at 178-79.) d) Dr. Brown Dr. Brown testified that some form of treatment is indicated for anyone who reaches the clinical threshold of severity to be diagnosed with GID. (Trial Tr. vol. 3, 269, Oct. 24, 2007.) Severe GID causes distress that can be relieved by following the treatment set forth in the Standards of Care. (Id. at 269-70.) As to whether GID is curable, Dr. Brown stated: I’ll use my personal experience in answering that question. I’ve had patients that I started treatment, went through the [Standards of [C]are sequential treatments that are described, and in individuals that I’m thinking of in this experience these individuals did have sex reassignment surgery, and I’ve been able to follow them for as long as 15 years after the surgery, and by any definition of the word “cure” from any dictionary or any medical text, they no longer have the diagnosis of GID. Meaning that the symptoms for which they were treated no longer exist for a significant period of follow-up time after-wards. And cancer examples are usually five years. If a person doesn’t have any evidence of that cancer after treatment five years later they’re considered cured. Prior to that they’d be called in remission. And certainly if you follow someone who has had all of these treatments for five to 15 years afterwards with no recurrence of any symptoms of GID at all, I think that that would meet the definition of a cure. (Id. at 271-72.) For some patients, GID can be adequately treated with a combination of psychotherapy and hormones. (Id. at 272.) For individuals with severe GID, psychotherapy alone has never been adequate treatment, “not just in my experience but also in the literature over decades.” (Id. at 272-73.) With regard to the efficacy of hormone therapy in treating GID, Dr. Brown testified: In my clinical practice the patients who are properly diagnosed and followed and following [sic] the [Standards of [C]are, again, hormonal treatment really has some fairly striking positive results in reversing or ameliorating a lot of the symptomatology that the patient is presented with. And these are in the domains of their psychiatric functioning as well as in changes in the body. And there’s some interrelationship between the two, but there are emotional and psychiatric responses to hormonal medications that actually precede any changes in the body of the person. (Id. at 273.) There is no other equally effective treatment for these patients. (Id.) Inmates whose hormone therapy has been interrupted and have been seen by Dr. Brown have been evaluated as follows: It’s uniformly a very bad thing to do medically and psychiatrically. The patients who had gender dysphoria that may have been largely ameliorated or at least partially controlled, that gender dysphoria comes back fairly rapidly, and often it comes back in a more severe and potentially more dangerous form than it was prior to when they received hormones in the first place. They may develop suicidality for the first time if they didn’t have it before. They may again harbor thoughts of surgical self-treatment, which would mean thinking about removing the testicles as a way to self-treat by removing the testosterone from the body. They certainly would get depression symptoms, anxiety symptoms, irritability symptoms, crying, having difficulty functioning, all of these things would be likely in patients who were previously stabilized on cross-sex hormones. (Id. at 274.) As to whether treatment for GID was optional, Dr. Brown testified: Again, once a person reaches the clinical threshold and they have the diagnosis, I don’t consider treatment optional. It’s individualized to a given patient, but the treatment itself is not optional. Just as in a patient who has prostate cancer, the urologist will present, well, here are your treatment options. You can get radiation, you can get surgery, you can get a combination of the two, you can get chemotherapy. Here are the probabilities in your given case of the likelihood of success with each individual treatment, but the effects are this, this, and this. It’s really something that you need to work out with me what treatment you want to choose, but the treatment itself is not optional unless the person decides that they don’t want to continue to live. (Id. at 278.) Dr. Brown has conducted extensive research in the area of genital self-harm and described his findings as follows: [T]hese are tentative eonclusion[s] based on my research which is still ongoing, but the first conclusion was that genital self-harm is in fact surgical self-treatment in prison settings or in other institutional settings where a person with GID, usually moderate to severe, is denied or blocked access to cross-sex hormonal treatment and then they take matters into their own hands as it were and surgical self-treat [sic], and that that’s much more common in incarcerated institutionalized settings than it is for people who are in the free world. (Id. at 281-82.) In Dr. Brown’s experience, anti-depressants cannot adequately treat GID because they “don’t at all treat the underlying condition.” (Id. at 284.) Also, GID cannot be adequately managed through psychotropic medications: No, I don’t believe so at all. You may be able to take the edge off of some symptoms by using a variety of medications, but it’s like putting a Band-Aid on a burst appendix or giving somebody with a burst appendix pain medication. You know, you might make them feel a little bit better but the underlying condition is what needs to be treated. (Id.) Brown says that under the Standards of Care, a patient is ready for hormone therapy under the following circumstances: In terms of being ready for hormones you have to first be eligible. So eligibility would involve having a prior real-life experience or, in the alternative, having a minimum of three months of psychotherapy. Being in the age of majority, so we’re not treating children in this setting. And in addition to that, some consolidation of their cross-gender identity and satisfactory control of other psychiatric eomorbidities that may be present at the same time because there are often other diagnoses present in people who have GID. (Id. at 286-87.) Gender identity cannot be changed: Since gender identity is a subjective construct, it’s in the brain, it’s not in the body, I think people’s gender identity is what it is. Now, their body may not match what their gender identity is in their brain. But there’s nothing that I or anyone else can do medically, psychiatrically, or surgically to change someone’s gender identity in their brain. And that’s why we seek to change the body, because we don’t know of any way to change the brain to match the body. (Id. at 297.) Psychotherapy is not an acceptable means of treating GID: Well, for example, if you have a marital problem and you’re in therapy for the marital problem, the psychotherapy, the intent of the psychotherapy is to help work through and resolve the marital problem. So it’s primary treatment for that problem. In patients who have GID the psychotherapy is not intended to nor designed to cure or eliminate the symptoms that they have; it’s to help them understand more about themselves, it’s educational, it’s to help them understand the implications of the treatment alternatives that they’re being presented with potentially by other physicians or surgeons, and to help them adjust to who it is that they are because that’s never gonna change. So, and similar to homosexuality, you don’t change a person’s sexual orientation by working with them psychotherapeutically. You help them to understand that this is who they are and that that’s not gonna change no matter how much psychotherapy they get. (Id. at 330-31.) A treatment approach whereby only psychological treatments are available to help GID patients accept their biological sex would be “absolutely inconsistent” with the triadic approach to addressing GID. (Id. at 332.) 5. DOC Policy Prior to Act 105; DOC Reaction to Act 105; DOC Medical and Mental Health Treatment a) Dr. Kallas Dr. Kallas testified that in approximately 2002 the DOC established the gender identity committee, which consists of Dr. Kallas, Dr. Burnett, Bureau of Health Services Director James Greer, the warden of an institution, and a psychologist of an institution. (Trial Tr. vol. 2, 170, Oct. 23, 2007.) The role of the gender identity committee “is to consult on policy with respect to gender identity disorder, to review individual cases, to make determinations about hormonal treatment, especially starting new treatment, and then to consult in a clinical fashion to the psychologists and psychiatrists who are within the institutions about gender identity disorder matters.” (Id.) Prior to Act 105, a person who came into the prison system on hormone therapy would continue such therapy unless the prison doctor had a reason to believe that the hormones were inappropriate. (Id. at 171.) When an individual came and requested to be put on new hormone therapy, that request would go to the GID committee, “and there’s a process that’s described in our policies about how that would play out.” (Id.) The DOC’s policy prior to Act 105 was set forth in Executive Directive 68. (Id.) Act 105 takes away the ability of DOC medical personnel to provide hormone therapy to individuals with GID. (Id. at 182.) Also, because of Act 105, the DOC has not evaluated two inmates who may suffer from GID to determine whether hormone therapy is medically necessary for them. (Id.) Dr. Kallas had concerns about Act 105 because it takes the medical decision out of the hands of health care practitioners with respect to the provision of hormones. (Id. at 183.) He expressed those concerns to his boss, Dr. Burnett, and also to Mr. Margolis, the legislative liaison in the DOC Secretary’s office. (Id.) In an email in which Dr. Kallas was responding to a request for information about legislation that takes away the ability to provide hormone therapy (which ultimately became Act 105), Dr. Kallas stated in relevant part: The cost of discontinuing treatments would vary from inmate to inmate. Overall hormones tend to improve psychological well-being for those with gender identity disorder, thus some inmates may stop hormones with relatively little impact, however, others may experience depression, anxiety, disruptive behavior or suicidality. Additional resources may be needed for time in segregation, clinical observation, or the Wisconsin Resource Center. Additional suicides or suicide attempts may occur based on such a policy. (Id. at 183-85, Ex. 11.) The email also stated: “It would be contrary to the medical judgment of the Wisconsin Department of Corrections medical director and mental health director.” (Id. at 185, Ex. 11.) When asked why taking away medical decision-making was a concern for him, Dr. Kallas stated: “It’s difficult to articulate because it seems so obvious to me, that it’s important that doctors are ably [sic] to use their clinical judgment with respect to conditions that are significant, especially when it pertains to medically necessary treatment.” (Id. at 186.) Dr. Kallas testified that Act 105 takes away the ability to provide medically necessary treatment in some cases. (Id. at 187.) He is unaware of any other mental health treatments for medically necessary conditions in individuals or inmates that are barred by law or regulation with the DOC. (Id.) In March 2005, Dr. Kallas testified before the legislature with respect to the bill that became Act 105. (Id. at 187-88, Ex. 17.) He informed the legislature that the Standards of Care are considered to be the most authoritative guidelines for the treatment of GID. (Id. at 189.) Dr. Kallas emphasized that hormone therapy was a valid treatment on it own, because there were some in the legislature who had the belief, or maybe the sponsors of the bill had the belief that starting an individual on hormonal treatment would commit the department to provide surgery. In other words, that it would start an inmate down the road where there was more of an argument for surgery later on. And this was my effort to try to dispel that notion. In other words, the individuals, many individuals find successful accommodations just with hormonal treatment and do not desire to go on or need to go on to surgical reassignment. (Id. at 189-90.) He also testified before the legislature that the DOC policy as outlined in Executive Directive 68 was similar to those of many other states and the Federal Bureau of Prisons. (Id. at 190.) As for the effect of withdrawing hormones from an individual, Dr. Kallas added: [I]f the department were to take away hormones from individuals with gender identity disorder, those individuals may become distressed and despondent, may go to the point of clinical depression or an anxiety disorder or suicidality. It may result in an increase in staff time for mental health care or placement in WRC, which is the Wisconsin Resource Center, which is our facility for acute care. It also may lead to disruptive behavior and segregation time, or an increase in psychotropic medications particularly antidepressants, which would offset any cost savings that would be directly attributable to not prescribing hormones. (Id. at 190-91.) DOC prisons have mental health resources consisting of psychiatric and psychological care. (Id. at 197.) A typical institution with approximately 1000 inmates has a couple of days per week of psychiatric coverage. (Id.) It has four or five full-time psychologists who work Monday through Friday and provide on-call coverage over the weekend. (Id.) In terms of mental health services available to inmates, psychiatrists perform evaluations for psychotropic medications and follow inmates who are on psychotropic medication. (Id.) Psychologists provide evaluations for a number of different purposes and provide treatment which may consist of crisis intervention, counseling, psychotherapy, or monitoring inmates for mental health symptoms. (Id.) It is not uncommon for DOC inmates to have thoughts of suicide. (Id. at 198.) Correctional officers and front line staff are trained in suicide prevention annually. (Id.) Psychology staff intervenes from a mental health perspective if someone is having suicidal thinking, and staff would be available for counseling or for placing someone on suicide watch. (Id.) Psychology staff participates in the decision whether to send an inmate to the Wisconsin Resource Center, which is more like a hospital setting. (Id.) These services are available for any inmate who is at risk for harming himself or herself. (Id. at 198-99.) The DOC system is also equipped to deal with inmates who have depression, anxiety, psychosis, mood disorders, and adjustment disorders. (Id. at 199-200.) These services would be available to an inmate coming into the system on hormone therapy and had hormone therapy withdrawn under Act 105. (Id. at 200.) b) Dr. Burnett Dr. Burnett testified about the health services that are available for DOC inmates. (Id. at 212.) Most DOC facilities have a health services unit centered around primary care, which includes mental health care. (Id. at 213.) Most of these units have nursing staff, a physician, and psychiatry and psychology staff. (Id.) The medical portion is similar to an outpatient clinic in the community. (Id.) To obtain care, an inmate puts in a health service reque