Judge denies preliminary injunction request in Kentucky transgender health care case

A federal judge has declined to temporarily block a Kentucky law that bans gender-affirming health care access for transgender people who are incarcerated in the commonwealth.

Maddilyn Marcum, a trans woman currently imprisoned at Northpoint Training Center in Boyle County, filed a lawsuit in federal court in July arguing that the Department of Corrections had revoked her access to hormone replacement therapy.

It’s a denial she and her lawyers said amounted to a violation of her and other trans inmates’ rights under the 8th and 14th amendment, because it subjected them to cruel and unusual punishment and violated their Equal Protection rights.

But U.S. District for the Eastern District of Kentucky Judge Gregory Tatenhove disagreed and denied Marcum’s motion Sept. 12, writing, “Apart from disagreeing with the statute, (Marcum) has not shown at this preliminary stage a constitutional violation that warrants enjoining the enforcement (of the law).”

Tatenhove said the evidence accompanying Marcum’s request “glaringly” lacked “any indication that (Marcum) was formally diagnosed with gender dysphoria.”

As he put it, Marcum “asserts that the initial diagnosis with Gender Dysphoria was ‘by a healthcare provider in 2009,’ but Marcum does not name the healthcare provider or provide any documentation of said diagnosis,” Tatenhove said.

“Put another way, the Plaintiff is resting on inference, rather than proof,” Tatenhove added. “Thus, apart from there being no binding case law finding gender dysphoria to be a serious medical need, the Plaintiff has failed to provide sufficient proof of a formal diagnosis with gender dysphoria, such that there cannot be a serious medical need.“

Not only did he deny the request for a preliminary injunction in his 21-page ruling, Tatenhove denied the request for class-action status, which would’ve made it easier for other plaintiffs to join.

Tatenhove’s ruling is a blow to trans individuals incarcerated in Kentucky, whose gender-affirming medication was cut off, or soon will be, as the result of a law passed earlier this year.

The state’s GOP supermajority legislature has restricted trans Kentuckians’ right to affirming health care in the past three years with a handful of laws, including by outlawing trans teenagers’ access to gender-affirming medication and surgery; blocking Kentucky’s Medicaid program from funding gender-affirming health care for adults; and prohibiting the state correctional system from paying for that form of health care for trans inmates.

The law Marcum and her attorneys are challenging, Senate Bill 2, took effect in late June. A priority bill for the Republican-controlled General Assembly in its 2025 regular session, the law blocks the Department of Corrections from prescribing or dispensing gender-affirming medication or surgeries to trans adults incarcerated in Kentucky’s prisons.

At the time the bill passed, Kentucky had 67 trans inmates, making up less than 1% of Kentucky’s total incarcerated population.

“This decision is disappointing, but we will continue to litigate our case on behalf of Ms. Marcum and all transgender people who are incarcerated in Kentucky,” Corey Shapiro, legal director for the ACLU of Kentucky, said in a Friday statement.

“We will continue to demonstrate to the court how this cruel policy violates our clients’ right to receive medically necessary healthcare.”

‘Risk of severe physical and psychological harm’

Tatenhove drew the reasons for his ruling, in part, because Marcum’s attorneys with the American Civil Liberties Union of Kentucky, failed to demonstrate that hormone replacement therapy was “medically necessary” in this case, based on the medical records provided to the court.

“The burden is on the Plaintiff to show a medical necessity and, as detailed below, Marcum simply has not. Because the Court finds that the statute is applied constitutionally to the Plaintiff, it logically follows that there exist constitutional applications, such that a facial challenge cannot succeed,” Tatenhove wrote.

Marcum, 36, who is only challenging the law’s prohibition on medication, not surgeries, had argued that because she was receiving hormone replacement therapy prior to being incarcerated, that medication should continue, since it was deemed “medically necessary care for an objectively serious medical need.”

The loss of that medication will create a “substantial risk of severe physical and psychological harm,” Marcum said.

Marcum was first diagnosed with gender dysphoria in 2009, and began receiving hormone replacement therapy five years before she was incarcerated in 2015. Gender dysphoria, the clinical name for being transgender, is when a person experiences conflict between the sex they were assigned at birth and the gender they most emotionally and intellectually identify with.

After she was convicted in 2015 of murder and sentenced to 40 years in prison, the DOC agreed in 2016 to continue prescribing hormone therapy, Marcum’s lawyers said, because it was recommended by a health care provider.

In addition to suing state corrections, Marcum is also suing two providers within the Appalachian Regional Healthcare system, which is contracted by the state to provide medical services to inmates. Marcum’s prescription was reduced by half starting in August and will fully end in November, according to her attorneys.

But Tatenhove in his decision said there was some “disagreement between parties over this fact: no such diagnosis letter has been entered into the record, nor do the declarations of the (Appalachian Regional Healthcare) providers unequivocally state that Marcum has been diagnosed with gender dysphoria by a certified mental health professional.”

He references in his ruling the state’s definition in the new law of a “cosmetic service or elective procedure,” which is how supporters and drafters of Senate Bill 2 characterized this type of health care.

It contradicts the conclusions of major medical associations, including the American Medical Association and the American Psychological Association, who deem it “medically necessary,” and who have warned that increasing barriers for trans people to access that type of care is harmful.

Senate Majority Whip Mike Wilson of Bowling Green, lead sponsor of Senate Bill 2, said repeatedly during the legislative session that this type of health care is “elective,” meaning not medically necessary, which is also how it was written in the law.

Marcum assumes that hormone replacement therapy is a “well-settled area of medicine. When, in fact, the record indicates that there remains significant disagreement about whether the side effects and the negative consequences of hormone replacement therapy outweigh the positive benefits,” Tatenhove wrote.

Citing a lack of evidence to show that Marcum would be irreparably harmed under the law, and the lack of documentation showing she was formally diagnosed with gender dysphoria and that hormone replacement therapy was the unequivocal best course of action, Tatenhove said there is not consensus in courts that gender dysphoria is even a serious medical need.

“Some circuits have classified gender dysphoria as a serious medical need, but many circuits, including the Sixth Circuit, have not provided guidance,” he wrote.

There may not be consensus, but lawsuits like Marcum’s are mounting across the country, and finding success.

A judge in Georgia earlier this month ruled in favor of trans inmates, finding that Georgia’s version of Kentucky’s law blocking the use of public funds for gender-affirming health care likely violates constitutional protections and amounts to cruel and unusual punishment.

A federal judge in Indiana issued a preliminary injunction in a challenge to a near-identical Hoosier State law in 2024.

A federal judge issued a temporary injunction in a lawsuit in Idaho, whose legislature enacted a similar ban.

In August, attorneys general in 16 states and the District of Columbia sued the Trump Administration for “relentlessly, cruelly, and unlawfully” targeting trans individuals. Kentucky’s Russell Coleman did not join the suit.

Their suit challenges a Trump executive order aimed at restricting access to gender-affirming health care and rescinding Biden Administration-era policies that instituted protections for LGBTQ people.

That order, and the subsequent intimidation of providers under the issue of offering ‘guidance’ via threatening letters and requests for sensitive patient information, has created “an environment of fear,” they said.