Republicans decry proposed transgender-inclusive Kentucky Department of Corrections rules
Changes to Kentucky Department of Corrections rules that clarify and broaden accommodations for transgender inmates have rankled some Republicans, who claimed this week the state is using taxpayer dollars to pay for “gender reassignment surgeries for incarcerated criminals.”
That’s not currently true, Commissioner Cookie Crews told a legislative committee Monday.
But protocol changes could lead to that, depending on a legal opinion from the state’s Republican attorney general about whether the state is required to foot the bill for surgeries for trans people in state custody.
The changes would expand protections for transgender inmates by, for example, ensuring they have access to appropriate medical and mental health services and are housed in facilities that align with their gender identity. And if a trans inmate requests gender-affirming care, the changes lay out the protocol for staff to meet that request, including extensive mental health evaluations and potentially medical interventions.
Democratic Gov. Andy Beshear, widely seen as a potential presidential contender in 2028, was quick to distance himself from some of the proposals as Republicans look to link him to what they call the “extreme” measures. Beshear and the department told the Herald-Leader the administrative regulations were drafted to align with federal guidelines.
Though this demographic accounts for roughly 1% of adults nationwide — roughly 5% of people under the age of 30 identify as trans or non-binary, according to the Pew Research Center — policies restricting the rights of trans individuals have proliferated in recent years.
Kentucky in 2022 barred trans girls from competing on middle- and high-school girls’ sports teams, and in 2023, the GOP-controlled legislature restricted how gender and sexuality are taught in school and banned access to gender-affirming health care for trans individuals under age 18, contradicting consensus advice from major medical associations.
Republicans on the social media platform X, and in an Administrative Regulation Review Subcommittee meeting where the proposed regulations were discussed, were quick to criticize the Kentucky DOC — and Beshear — for proposing to offer “taxpayer-funded transgender medical madness to inmates in Kentucky,” as incoming state Rep. TJ Roberts put it. Roberts will represent Northern Kentucky’s House District 66.
Rep. Josh Calloway, R-Irvington, on X called a trans inmate who wants gender-affirming care “a delusional pervert” and said the department allowing it is “beyond absurd.”
The Republican Party of Kentucky echoed Roberts’ point on X, saying Beshear’s administration “supports” using taxpayer funds in this way.
“It doesn’t get much more radical left and extreme than this,” the party said.
But a spokesperson for Beshear told the Herald-Leader the governor doesn’t agree with that aspect of the proposed regulations.
“The governor does not support the inclusion of gender-reassignment surgeries for incarcerated felons in the regulation,” Crystal Staley told the Herald-Leader Wednesday.
“Federal law requires many of the practices contained in the draft regulation, and the governor recognizes that LGBTQ inmates may be at heightened risk for violence,” Staley said. “However, convicted felons do not have the right to have any and all medical surgeries paid for by state taxpayers, especially when the coverage would exceed what is available to law-abiding citizens.”
Staley added, “As the state is required to follow the law, the DOC is seeking a legal opinion (from Attorney General Russell Coleman) on whether that specific coverage in the proposed regulation is required under federal law.”
Aspects of the administrative regulations in question, which will act as official policy and procedural guidelines for corrections staff in Kentucky’s jails and prisons, took effect in 2023. Other parts were proposed as recently as May of this year. They define what it means to be intersex and transgender and advise staff on how to respond to the unique needs of this marginalized population when they are incarcerated.
Accommodating those needs does not always but may involve connecting those inmates with health care providers to receive gender-affirming medical care. Kentucky’s proposed rules are in line with federal standards under the Biden administration. Even during the first term of President-elect Donald Trump, the Bureau of Prisons provided gender-affirming care to trans prisoners.
Outgoing Senate Majority Floor Leader Damon Thayer of Georgetown, who sits on the committee that met Monday, told Crews, the corrections leader, he didn’t think Kentuckians were “interested in paying for the hormone replacement therapy or transgender surgeries for people who have been found guilty of committing crimes against the commonwealth.”
“You’re wasting your time (and) our time, and frankly this administration’s pursuit of this out-of-the-mainstream taxpayer-funded procedure is an insult, and you ought to just stop,” Thayer told Crews. “Because if you don’t, it’s going to blow up into a much bigger issue than just this subcommittee today.”
The actual proposed rules, however, characterize gender-affirming surgery as an almost last resort. Mostly what the 10 pages of regulations on this subject describe are protocols for staff to ensure the safety of this minority group, which is often at “particularly high risk for physical or sexual abuse or harassment,” the regulations say.
Under the new guidelines, DOC staff are required to attend training on how to “communicate effectively and professionally” with “lesbian, gay, bisexual, transgender, intersex or gender non-conforming inmates.”
Stuff shall “be sensitive to the unique needs of individuals who are LGBTI” by providing medical, mental health and risk screenings, and in determining which correctional to house an trans inmate, “staff shall give serious determination to the inmate’s own views concerning (their) safety.”
Factors for staff to also consider in deciding which facility to assign include: the inmate’s “physical characteristics,” their gender identity, and if they have a prior violent or sexual crime history. The rules make clear that “a determination shall not be made on genital status alone,” but on a “case-by-case basis” that relies on an “individualized” approach, with consultation from medical and mental health providers.
The proposed regulations also require DOC staff to “refer to transgender inmates by their committed name (and) use the pronoun the inmate prefers”; requires staff be trained on how to frisk or search a trans inmate in a “professional and respectful manner”; and pointedly prohibits staff from making “verbal comments, gestures or actions of a derogatory or offensive nature” about an inmate’s gender identity.
“Any question relating to an inmate’s anatomy or surgical status shall only be asked by authorized medical staff as necessary for proper medical treatment,” the regulations say, and “staff shall not attempt to change any inmate’s understanding of his or her gender identity or sexual orientation.”
Not all members of this population will have received gender-affirming health care. But if a trans inmate requests “hormone affirming treatment” or “transgender specific surgery,” that inmate shall be assessed by a team of medical and psychiatric providers, psychologists and nurses to decide if they should be diagnosed with gender dysphoria.
If so, an inmate will be referred to a more specialized doctor. Only in cases of persistent gender dysphoria, after the “least invasive treatment options” have been exhausted, would a separate DOC team, in consultation with an endocrinologist, then make a determination on whether gender-affirming surgery is necessary.
At Monday’s meeting, Crews said the department was waiting on an opinion from Coleman on whether the department is required to pay for surgical interventions for trans inmates.
Sen. Stephen West, R-Paris, committee co-chair, asked if the DOC wanted to know “whether or not the department is required to cover the cost of the gender-affirming surgeries?”
“That’s correct,” Crews said.
“I think it’s pretty clear, then, that the department intends to do that,” West responded.
“It depends on what the attorney general says,” Crews said.
The DOC provided the Herald-Leader with a copy of the Dec. 6 request submitted to Coleman. The three-page letter asks if the department is “required to provide and cover the cost of gender-reassignment surgery for a transgender state inmate in a state prison when a medical professional or panel of medical professionals has deemed it ‘medically necessary.’”
Sen. David Yates, D-Louisville, said Monday it made sense why the department would want Coleman’s input.
“The federal government has found, sometimes in civil suits under the 8th Amendment, that prisons are liable for failure to comply why what a doctor says is reasonable and necessary,” he said. “It sounds like, to avoid litigation and cost, you’ve sought an opinion from our attorney general to say whether or not the department is required or not required to provide these services.”
Crews said Yates was correct.
This concern is also mentioned in the department’s letter to Coleman, which says, “the case law suggests blanket bans on providing treatment deemed medically necessary to inmates with gender dysphoria, or refusing to provide such treatment, give rise to claims for violation of the 8th Amendment’s prohibition on cruel and unusual punishment.”
Because of this reality, “the department does not request an opinion on certain forms of medical treatment, but specifically on whether it must provide and cover the cost of gender-reassignment surgery.”
Three Republican committee members asked which gender-affirming procedures the DOC currently provides. Crews said no gender-affirming surgeries are offered but declined to say whether the DOC offers hormone therapy.
Under Kentucky statute, Corrections drafts its own administrative regulations, which are then vetted in committee hearings like the one on Monday and in separate public hearings. According to the department’s website, a public hearing was held on these drafted regulations on July 23 at the Justice and Public Safety Cabinet. Written comments were accepted through July 31.
A few Republicans appeared to signal recourse against the department once the GOP-controlled legislature convenes Jan. 7 for its regular session.
Co-chair Rep. Derek Lewis, R-London, told Crews that included in the information the DOC provided about its administrative regulations, “I do not see any information as far as if hormone therapy has been provided.”
Crews did not give more information, saying instead, “For today, I’m asking for an opinion” from the attorney general.
“And in January, we’re back in session,” Lewis quipped.
Roberts said as much on X, too.
“Beshear’s Department of Corrections thinks they can write the law and fund these lawless, disgusting practices . . . 2025 MUST be the year of accountability in Kentucky.”
This story was originally published December 11, 2024 at 12:21 PM.
