Kentucky Attorney General Finds No Requirement to Use Tax Dollars to Pay for Inmate Gender Surgeries

Kentucky is under no legal requirement to use taxpayer money to cover the costs of gender-affirming surgeries for people incarcerated in state prisons, Attorney General Russell Coleman said Thursday.

The Kentucky Department of Corrections requested the opinion from the state's Republican attorney general as the agency amends its administrative regulations regarding medical care for people in prison.

Coleman was asked whether the constitutional prohibition against cruel and unusual punishment means the department is required to pay for gender-affirming surgeries for transgender people in prison when the procedure is deemed "medically necessary" by medical professionals.

"Common sense dictates that it is not 'cruel and unusual' for the department to decline to spend taxpayer dollars on such controversial medical procedures," Coleman's opinion said. "Fortunately, there is no controlling legal authority that compels the department to abandon common sense."

Coleman said the opinion should settle the question "once and for all."

"The idea that Kentucky taxpayers should be forced to pay for gender surgeries for convicted criminals was simply absurd," he said.

Chris Hartman, executive director of the Fairness Campaign, a Kentucky-based LGBTQ+ advocacy group, said the attorney general's opinion was "disappointing but predictable."

"All inmates get medically necessary care – whether it's for cancer, diabetes or any other condition," Hartman said in a statement. "Transgender inmates should be treated no differently. When in the custody and care of the state, it is federal law for inmates to be given health care when it is medically necessary, which gender-affirming surgery sometimes is for transgender inmates."

The issue surfaced at a recent legislative committee meeting as the corrections department attempts to update rules to broaden accommodations for transgender people in prison to comply with federal standards. The department's efforts drew a backlash from some Republicans in the GOP-supermajority Legislature.

The department's proposed new rules would expand protections for transgender people in prison by ensuring they have access to appropriate medical and mental health services and are housed in facilities that align with their gender identity, the Lexington Herald-Leader reported. If gender-affirming care is requested, the changes set out a protocol that includes extensive mental health evaluations and, potentially, medical interventions.

Kentucky Gov. Andy Beshear said Thursday that he appreciated the attorney general's response and said the proposed regulation would be redrafted to reflect the opinion from Coleman's office.

Beshear, a Democrat who is seen as a potential presidential candidate in 2028, said LGBTQ+ people in prison can face greater risks of violence while incarcerated and can have different health care needs.

Earlier this year, a transgender woman who was assaulted by an incarcerated man while housed in a men's unit at an Arizona penitentiary won a $10,000 judgment in a federal civil rights lawsuit.

Federal law requires safety procedures as well as medical coverage for LGBTQ+ people in prison, Beshear said.

"But like medical coverage for any inmate, it has its limits," Beshear told reporters. "In the end, we look at what's reasonable. And I think what is reasonable is, in any circumstance, an inmate regardless of their gender identity should not have better access to health care than a law-abiding private citizen."

Kentucky has to balance providing health care for people in prison while respecting taxpayers, Beshear said.

"It does appear that federal law requires some level of care, just not those surgeries," he said. "So I believe you will see in the regulation certain care that is provided to various populations including the transgender population. It would be unconstitutional and it would be wrong to provide no specialized care at all. So we're going to try to find that right balance."

The Kentucky Republican Party criticized Beshear on Thursday for his administration's handling of the issue.

"As governor, he is responsible for policies and regulations that are put in place by his administration. He's either leading this administration or he's not," state GOP communications director Andy Westberry said in a statement.

Republican state Sen. Steve West thanked the attorney general for bringing "clarity" to the issue and said the opinion reflected both "legal precedent and the practical expectations of Kentuckians."

"Moving forward, I urge the department to engage more openly with lawmakers and the public as we work to ensure that policies are implemented responsibly and in a manner consistent with the law," he said in a statement.

Kentucky is among many states that have taken steps to restrict or ban transgender care. In 2023, Kentucky lawmakers banned access to gender-affirming health care for transgender young people. In 2022, the state Legislature voted to bar transgender girls and women from participating in school sports matching their gender identity from sixth grade through college.