Harris’ support for prisoner access to transgender surgery aligns with federal law and court rulings

Ten minutes into Vice President Kamala Harris’ Oct. 16 interview with Fox News host Bret Baier, Baier played a segment of a Donald Trump campaign ad.

"Kamala supports taxpayer-funded sex changes for prisoners" the ad’s narrator said before it cut to a clip of Harris speaking to someone in front of a backdrop promoting the National Center for Transgender Equality Action Fund.

"Every transgender inmate in the prison system would have access," Harris said in the clip. Later in the ad, which was not shown by Baier, the narrator said, "Even the liberal media was shocked Kamala supports taxpayer funded sex changes for prisoners and illegal aliens." 

The Trump campaign released the ad Sept. 20 — 10 days after Trump made a similar claim during his Sept. 10 debate with Harris, when he said she "wants to do transgender operations on illegal aliens that are in prison." We rated that Mostly True.

The central claim stems from statements Harris made during her 2019 Democratic presidential primary run in support of gender-affirming care access, including for federal detainees.

Harris has not campaigned on this issue in 2024 — and she and her campaign have said little about it in response to reporters’ questions about Trump’s claims.

But when Baier asked her about it on Fox, Harris’ answered.

"I will follow the law," she said. "And it’s a law that Donald Trump actually followed. You’re probably familiar with now. It's a public report that under Donald Trump's administration, these surgeries were available on a medical necessity basis, to people in the federal prison system." 

Federal law requires inmates to receive access to necessary medical care, and courts have found that this can include medically necessary gender-affirming surgery. Legal obligations to provide this care were also acknowledged by the Federal Bureau of Prisons under the Trump administration. Any efforts to categorically eliminate access to gender-affirming surgical care would likely face legal challenges. 

The Bureau of Prisons’ policy under the Biden administration lets prisoners request gender-affirming surgery, but just two federal prisoners have successfully accessed these procedures and only after multiyear legal challenges, the first in 2022. 

PolitiFact could find no record of immigration detainees receiving transgender surgeries. Guidance from Immigration and Customs Enforcement requires people who have started hormone therapy to continue to have access and people who have not to be "assessed and treated." Surgery isn’t mentioned. Stays in immigration detention facilities are typically short. 

When Harris was California’s attorney general, she represented the California Department of Corrections and Rehabilitation as it sought to block a lower court order requiring the agency to provide gender-affirming surgery to a transgender inmate. 

The inmate was ultimately paroled during the appeals process making that case moot. But, as attorney general, Harris reached a 2015 settlement in a similar case, leading California to issue new guidelines and become the first state to provide limited gender-affirming surgical procedures to inmates if deemed medically necessary.

"I had a host of clients that I was obligated to defend and represent and I couldn’t fire my clients," Harris told reporters in 2019, when she was running for president and faced questions about her representing the Department of Corrections in that case. "There were unfortunately situations that occurred where my clients took positions that were contrary to my beliefs. … But the bottom line is the buck stops with me, and I take full responsibility for what my office did." 

Harris said she "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." According to the nonprofit news organization CalMatters, 20 California inmates in state custody received gender-affirming surgeries from 2017 to 2022. 

Harris’ 2020 Democratic primary campaign promoted her role in expanding access to surgeries for California’s trans inmates.

She gave an interview to the National Center for Transgender Equality Action Fund’s founding director, Mara Keisling, on Oct. 4, 2019 — a clip of which Trump’s campaign used in its ad. 

"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 said.

Harris said something similar in response to a 2019 American Civil Liberties Union candidate questionnaire. 

"As President," the questionnaire asked, "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 "yes" and wrote, "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."

Shortly before the Sept. 10 Trump-Harris debate, Fox News hosts asked Harris’ spokesperson Michael Tyler about Harris’ response to the ACLU’s question.

"That questionnaire, this is not what she is proposing, it’s not what she’s running on," Tyler said.

The U.S. Supreme Court since the 1970s has ruled that prisons are legally required to provide necessary medical care to inmates, or risk violating the Constitution’s Eighth Amendment, which prohibits cruel and unusual punishment against people accused or convicted of crimes. State and federal courts have also ruled in favor of inmates who sued for access to gender-affirming care.

The medical community, including major medical organizations such as the American Medical Association consider gender-affirming surgery to be medically necessary health care as a treatment for gender dysphoria or gender incongruence. 

"I had one client describe waiting for surgery as excruciating pain," said Shawn Meerkamper, managing attorney at the Transgender Law Center, a civil-rights advocacy group. "These cases are just full of stories about people self harming, attempting self surgery, attempting to take their own lives… it is very much not cosmetic. It is very much not something that people pursue on a whim."

Featured Fact-check

Elon Musk

stated on November 13, 2024 in an X post

Says Sen. Bob Casey, D-Pa., “is trying to change the outcome of the election by counting NON-CITIZEN votes.”

Still, the number of people affected by these policies are quite small — and the number of people who have sought and received this federally funded care is even smaller. The Federal Bureau of Prisons counts 2,261 transgender inmates in custody — about 1.4% of the total federal prison population. And the two inmates who received gender-affirming surgeries did so after long legal battles.  

Bureau of Prison policies on the treatment of transgender inmates have shifted between administrations. But Harris was right that the Trump administration also recognized the legal obligations to provide gender-affirming care. The New York Times on Oct. 16 highlighted a 2018 Justice Department budget memo that noted the "statutory mandate to provide basic medical and mental health care" to prisoners and noted that "transgender offenders may require… surgery" as part of medical treatment. 

The Bureau of Prisons under Trump issued a Transgender Offender Manual that referred to "hormone or other medical treatment" being provided, but did not specifically mention surgery. 

The Biden administration’s Transgender Offender Manual says the bureau may consider gender-affirming surgery requests from transgender prisoners who have one year of clear conduct. A council and medical experts will consider these requests, but not necessarily approve them, the manual says. 

But experts said that ultimately, a White House administration has little say over this matter — the courts have made the decision for them.

"The president does not control prisoners' access to gender affirming care," said Wanda Bertram, communications strategist for the Prison Policy Initiative, a criminal justice reform nonprofit. "Courts have consistently upheld that people have a right to such care in federal detention (prison and immigration), and anyone who is president would, presumably, be bound by those rulings."

The Trump ad didn’t specify what it meant by "illegal aliens." But when we asked Trump’s campaign about the claim, it pointed us to Harris’ comments about incarcerated immigrants.

U.S. Immigration and Customs Enforcement has detention centers throughout the country where noncitizens are detained. But PolitiFact found no evidence online or in talking with experts of anyone receiving gender-affirming surgery in immigration detention. 

Neither had Bridget Crawford, the director of Law and Policy at Immigration Equality, an LGBTQ+ and migrant focused nonprofit.

"Immigration Equality has been working with LGBTQ immigrants for 30 years and is not aware of any gender affirming surgeries ever being performed for individuals in immigration detention," Crawford said. "Given the very limited provision of healthcare in immigration detention, ICE is not set up to provide surgical care for transgender immigrants."

Stays in immigration detention are typically short — less than 50 days on average, far from enough time for a person to be medically evaluated and approved for a gender-affirming surgical procedure. 

A Transgender Care Memorandum issued by Immigration and Customs Enforcement in 2015 says that "transgender detainees who were already receiving hormone therapy when taken into ICE custody shall be provided continued access, and all transgender detainees must have access … based on medical need." Surgical care isn’t mentioned. 

A Trump ad said Harris "supports taxpayer-funded sex changes for prisoners and illegal aliens."

After representing California in a case that fought a court order to provide such care in prison, Harris made numerous statements during her run for president in the 2019 Democratic primary run clarifying her position: She said she favored access to gender-affirming surgery for people in prisons and immigration detention.

Harris has not campaigned on this issue in 2024, but when asked about it Oct. 16, she said, "I will follow the law." 

Federal law requires that prisons provide necessary medical care to inmates, and several courts have ruled that gender-affirming care, including surgery, is included. Despite these court rulings, access to gender-affirming surgery in prisons is very limited, and the number of transgender prisoners in federal prisons who have received it is minuscule — two. We found no record of gender-affirming surgeries being provided in immigration detention. 

The statement is accurate but needs clarification or additional information. We rate it Mostly True.