Update, Oct. 18: Vice President Kamala Harris expanded on her position on gender-affirming care for prisoners during an Oct. 16 Fox News interview, following a question prompted by a Trump television ad on the topic. “I will follow the law, and it’s a law that Donald Trump actually followed,” Harris said, likely referring to legal requirements that the government provide medical care to prisoners, including necessary gender-affirming care. “You’re probably familiar with — now it’s a public report — that under Donald Trump’s administration, these surgeries were available to, on a medical necessity basis, to people in the federal prison system. And I think frankly that ad from the Trump campaign is a little bit of like throwing, you know, stones when you’re living in a glass house.”

The New York Times reported earlier that day that federal prisoners received some gender-affirming care, including hormone therapy, during the Trump administration. The first gender-affirming surgery for a transgender federal inmate, however, occurred after Trump had left office and after a long legal battle. In a bulleted list of health care “challenges” facing the Federal Bureau of Prisons, a 2018 budget memo says that medical care for transgender inmates “may include … surgery (if individualized assessment indicates surgical intervention is applicable).”

Q: Does Kamala Harris support government-paid gender-affirming surgery for prison inmates and immigrant detainees?

A: The government must provide medical care to prisoners and immigrant detainees. Vice President Kamala Harris expressed support in a 2019 questionnaire for “medically necessary” gender-affirming care, including surgical care, for federal prisoners and detainees. She has not detailed her position in the current campaign.

FULL QUESTIONS

Does Kamala Harris support government paid transgender surgery for prison inmates and illegal immigrants?

TV shows an ad in which Kamala Harris says all transgender inmates should have access to medical care. Did she really say this? Does that mean treatment and/or surgery ?

FULL ANSWER

We’ve recently received a number of reader questions about Vice President Kamala Harris’ stance on providing gender-affirming surgeries for transgender prisoners and immigrants, often sparked by a campaign advertisement from her opponent, former President Donald Trump. A transgender person’s gender identity does not match their sex assigned at birth.

The U.S. Constitution requires that the government provide needed medical care for prisoners, according to a 1976 Supreme Court ruling. Transgender inmates in federal and state prisons have argued in court that this includes providing medically necessary gender-affirming care. Some federal and state prisoners have received gender-affirming surgeries following legal victories. So far, this has included two federal prisoners in the custody of the Federal Bureau of Prisons, according to an email from an agency spokesperson.

There are also government policies supporting necessary gender-affirming care for immigrant detainees, including hormone therapy, although we were unable to find any policy specifically recommending gender-affirming surgery or any records of such surgeries having occurred.

When she was running to be the Democratic presidential nominee in 2019, Harris went on record in an American Civil Liberties Union candidate questionnaire as supporting medically necessary gender-affirming care for federal prisoners and immigrant detainees, including surgical care. She also expressed support for gender-affirming surgery for California state inmates on other occasions during her 2019 presidential run, taking some credit for working “behind the scenes” to get access to these surgeries for prisoners.

However, Harris has not clarified her exact position on gender-affirming care for prisoners and detainees during her current campaign, and Trump and his campaign have sometimes left out information on when and in what context Harris spoke about these topics. Trump’s statements also lack context on the small number of gender-affirming surgeries that prisoners have received and the legal basis for providing such care. Attempts by a presidential administration to roll back access to gender-affirming care for prisoners would likely meet legal challenges.

“It’s hard to believe, but it’s true. Even the liberal media was shocked Kamala supports taxpayer-funded sex changes for prisoners and illegal aliens,” a narrator says in the Trump campaign advertisement. “Kamala’s for they/them. President Trump is for you.” The ad stitches together two different sections of a 2019 interview to show Harris saying: “Surgery for prisoners … every transgender inmate in the prison system would have access.”

In that interview, Harris was specifically referring to her past efforts in California to secure access to gender-affirming surgery for inmates in state prison, although, as we’ve said, she did express support for access to medically necessary gender-affirming care for federal prisoners in her ACLU questionnaire response.

The Trump campaign has spent more than $11 million to run the ad on broadcast television in all 50 states and Washington, D.C., according to AdImpact, an advertising tracking service, as well as around $361,000 to run it on digital platforms.

Trump also alluded to Harris’ questionnaire response during the presidential debate on Sept. 10, a day after CNN published a story about her 2019 answers.

“Now she wants to do transgender operations on illegal aliens that are in prison,” Trump said. “This is a radical left liberal that would do this.”

He has since referenced the topic repeatedly. “Why does Kamala want to give transgender operations to convicted illegal migrants coming in and staying in detention cells?” Trump asked during a Sept. 27 campaign event in Walker, Michigan. “She said we will give them sex change operations. Now somebody would look at me and say that’s crazy. I’m sure that’s not true. No, no it’s 100% true. She wants to, wanted to, wants to give them.”

“She even endorsed free sex changes … and this was recently, she endorsed free sex changes for illegal aliens in detention centers all over our country at taxpayer expense,” Trump said at a Sept. 23 rally in Indiana, Pennsylvania.

In both of these two recent appearances, Trump also cited inflated costs for gender-affirming surgery, which we will discuss later.

But as we said previously, Harris has not expressed her current views, and her comments on gender-affirming care for detainees are five years old.

In the Sept. 9 CNN article that brought the ACLU questionnaire back into the news, a Harris campaign spokesperson declined to specify what her current position is on the issue.

The next day, when responding to a question about the ACLU questionnaire on Fox News the morning of the debate, the Harris campaign’s communications director, Michael Tyler, said, “That questionnaire — this is not what she is proposing, it’s not what she’s running on.”

The campaign did not provide further comment in response to our questions.

Harris’ History on Gender-Affirming Surgery for Prisoners in California

As a former California attorney general, Harris has been involved in legal cases on gender-affirming surgery for state prisoners.

Her office represented the California Department of Corrections and Rehabilitation as it attempted to block gender-affirming surgery for a state inmate in 2015. The department ultimately came to an agreement to revise its policy on providing medically necessary gender-affirming surgery to prison inmates that same year, following a legal loss. In 2017, a transgender inmate in California became the first prisoner in the U.S. to be provided gender-affirming surgery.

As of December 2022, 20 California inmates had received gender-affirming surgery, according to the nonprofit news organization CalMatters. Inmates in state prisons seeking gender-affirming surgeries have since succeeded in court cases in other states, leading to some gender-affirming surgeries.

During a January 2019 news conference at the outset of Harris’ first presidential run, the Washington Blade asked Harris about her record of “seeking to deny surgery for trans inmates” in California. Harris responded that as attorney general, “there are unfortunately situations that occurred where my clients took positions that were contrary to my beliefs.”

However, she took “full responsibility” for her office’s actions, before further indicating her support for gender-affirming care for inmates. “But on that issue I will tell you I vehemently disagree and in fact worked behind the scenes to ensure that the Department of Corrections would allow transitioning inmates to receive the medical attention that they required, they needed and deserved,” Harris said.

Harris or her representatives during the 2019 campaign continued to reiterate her work “behind the scenes” on the eventual California policy to provide gender-affirming surgery to some inmates.

This included an interview posted in October 2019 between Harris and Mara Kiesling, then executive director of the National Center for Transgender Equality Action Fund. Snippets of the interview are quoted in the Trump advertisement that is currently airing.

In the interview, Kiesling asked why transgender people should vote for Harris. As part of a much longer answer, Harris recalled learning that the California Department of Corrections was “standing in the way of surgery for prisoners.”

After learning about the case, Harris said, “I worked behind the scenes to not only make sure that that transgender woman got the services she was deserving. So it wasn’t only about that case. I made sure that they changed the policy in the state of California so that every transgender inmate in the prison system would have access to the medical care that they desired and need.”

Harris’ Record on Gender-Affirming Care for Federal Prisoners

Although Trump’s advertisement takes Harris’ 2019 comments on transgender inmates out of context, she did give broader support for gender-affirming care for prisoners in response to the 2019 ACLU questionnaire.

The ACLU questionnaire asked, “As President will you use your executive authority to ensure that transgender and nonbinary people who rely on the state for medical care — including those in prison and immigration detention — will have access to comprehensive treatment associated with gender transition, including all necessary surgical care? If yes, how will you do so?”

Harris checked a box answering “Yes,” before elaborating:

Harris, 2019 ACLU questionnaire: It is important that transgender individuals who rely on the state for care receive the treatment they need, which includes access to treatment associated with gender transition. That’s why, as Attorney General, I pushed the California Department of Corrections and Rehabilitation to provide gender transition surgery to state inmates. I support policies ensuring that federal prisoners and detainees are able to obtain medically necessary care for gender transition, including surgical care, while incarcerated or detained. Transition treatment is a medical necessity, and I will direct all federal agencies responsible for providing essential medical care to deliver transition treatment.

At the time, no federal prisoner had received gender-affirming surgery. The first gender-affirming surgery was provided to a U.S. federal prisoner in 2022, after a federal court ruling stated that the government was required to provide this care. A second surgery took place in 2023.

Actions taken during the Biden-Harris administration have indicated some support for necessary medical care for transgender inmates. The Department of Justice has provided statements of interest in cases in which state prisoners have sought gender-affirming care. These statements note that, among other legal bases, the Eighth Amendment’s prohibition of cruel and unusual punishment requires adequate care for prisoners, including those with gender dysphoria. Gender dysphoria is a diagnosis that some but not all transgender people have, and refers to intense distress over the mismatch between a person’s sex assigned at birth and their gender identity.

In 2022, the BOP reissued a Transgender Offender Manual for how to treat federal prisoners, following Trump-era changes made to the document. In response to questions about gender-affirming care, a BOP spokesperson sent us a link to this document. Among other policies, the document now addresses gender-affirming surgery.

“For transgender inmates in Bureau custody, surgery may be the final stage in the transition process and is generally considered only after one year of clear conduct and compliance with mental health, medical, and programming services at the gender affirming facility,” the document reads, while acknowledging that not all transgender inmates even want these surgeries.

Nor is asking for gender-affirming surgery a guarantee that a federal prisoner will get it. The manual simply says that the requests will be considered. The BOP spokesperson confirmed to us that two federal inmates have gotten these surgeries to date. There are 1,461 transgender female prisoners and 770 transgender male prisoners currently in the custody of BOP, according to the agency.

Context on Gender-Affirming Care for Immigrant Detainees

In his recent comments on free “sex change” surgeries, Trump has often focused on the idea that Harris wants to give these surgeries to immigrant detainees.

However, as we’ve said, we weren’t able to find a record of immigrant detainees having gotten these surgeries.

Immigrants who are detained while trying to enter the U.S. may be held by Customs and Border Patrol. These detainees should “generally not be held for longer than 72 hours in CBP hold rooms or holding facilities,” according to the agency. A report found that people were in custody for an average of 62 to 74 hours between October 2022 and June 2023, depending on the type of CBP facility.

People may be in U.S. Immigration and Customs Enforcement custody for longer, but stays are still supposed to be relatively short. The average length of stay for a person detained by ICE in 2024 so far is 47 days. As of Sept. 8, there have been 231 transgender detainees booked into ICE custody in 2024, and there are currently 47 transgender people in custody, according to ICE statistics, although groups that advocate for transgender people in detention have said the ICE statistics are probably an undercount.

In a statement to FactCheck.org, an ICE spokesperson mentioned emergent care needs, a phrase typically used to refer to health care that is needed immediately to stave off significant harm. “The agency recognizes that detained transgender noncitizens have unique needs while in ICE custody,” the spokesperson said in an email. “In response to those needs, we have developed structures within our operation to safeguard their rights and ensure their emergent care needs are met from the moment they arrive and throughout the entirety of their stay.”

Gender-affirming surgery is not usually a quick process. As we’ve said, there is a waiting period of one year before federal inmates can even seek gender-affirming surgery. Experts also told The 19th, a nonprofit news site that writes about gender issues, that a waiting period for gender-affirming surgery is common whether someone is in a prison or not.

A 2015 ICE memorandum outlines policies for transgender detainees, including some recommendations on gender-affirming care, Dr. Elizabeth Kvach, a Colorado family physician with experience providing medical care to transgender individuals in immigration detention, told us. This includes recommendations that detainees be given access to “mental health care and other transgender-related health care and medication (such as hormone therapy) based on medical need.”

Kvach said that in her experience in Colorado, transgender detainees are given access, if desired, to “evaluation for initiation and/or continuation of hormone therapy for affirmation of their gender identity while detained.” However, she was not aware of instances of care extending to gender-affirming surgery.

“To the best of my knowledge, in the decade I have been doing this work in Colorado there have been no transgender detainees who have sought or received gender affirming surgeries while in immigration detention,” Kvach said, while acknowledging that she “cannot speak to practices in other detention facilities or states.”

Elana Redfield, federal policy director at the Williams Institute at the UCLA School of Law, also shared a recent report indicating that some transgender and other detainees had trouble getting hormone therapy or other medical care, “let alone surgical treatments,” she said, although she noted that only a small number of people were interviewed.

For the report, representatives of nonprofit organizations interviewed 41 LGBTQ+ and HIV-positive immigrants pursuing asylum and held by CBP and ICE, including 14 people identifying as transgender. Four transgender detainees reported trouble getting hormone therapy, while a transgender woman who had previously gotten breast implants told a story of receiving delayed and inadequate medical care after one of her implants burst while in ICE custody.

“What we’re seeing there is an enormous unmet need for even basic health care,” Kellan Baker, a health services researcher with expertise in cost-related issues and transgender health, told us of the experience of immigrants in detention. Baker is executive director of Whitman-Walker Institute, a research and policy institute affiliated with a Washington, D.C., community health center. The institute’s mission is “advancing the health and wellbeing of LGBTQ+ people, people living with HIV, and other groups facing barriers to quality care.”

“No one is taking advantage of being in a prison system or in immigration detention to try to get care that they don’t need,” he said.

Trump Exaggerates Cost of Gender-Affirming Surgery

In recent appearances, Trump has mentioned the cost of providing “sex change” surgery. But Baker said that his estimates are too high.

“They’re in a detention cell and a man wants to transition into womanhood, and [Harris] is willing to do that and give very expensive operations, by the way, hundreds of thousands of dollars,” Trump said during his Sept. 27 appearance in Walker, Michigan.

Trump was even more specific in his Sept. 23 Indiana, Pennsylvania, speech. “You’re being held in a detention center, and you say, ‘I want to change. I want to become a woman.’ And they have to give you the operation. Which is an immensely expensive operation on top of everything else — $250,000 at least, and then all the drugs involved and everything else,” Trump said.

As we’ve said, we didn’t find reports of anyone getting gender-affirming surgery in CBP or ICE detention, although a limited number of these surgeries have been done in state and federal prisons.

Baker said that there is “very little data” on prices paid for medical care within prison systems. But his own research on amounts paid by private insurers for these surgeries found that the average cost for vaginoplasty in the U.S. is around $50,000.

Given that private insurance “tends to reimburse better” than a public program would, $50,000 “is probably significantly above what the cost of a similar procedure in the prison system would be,” Baker said.

Baker also pointed out that there aren’t that many transgender people in prison to begin with and that not every person is going to need gender-affirming surgery. “Typically what folks need in incarceration settings are just basic supplies and supports, like the right kind of clothing … and medications – so hormone therapy, for example, as well as mental health support, if they need it,” he said. Further, especially compared with some other drugs a prisoner might need for medical care in general, he said, hormone therapy is “unbelievably cheap.”

Correction, Oct. 18: A previous version of this article referred incorrectly to a “hiatus” for a Transgender Offender Manual on care for federal prisoners under the Trump administration. The document, first issued just prior to Trump taking office in 2017, was edited during the Trump administration and then reissued with other changes in 2022 under Biden.