The Struggle to Be Trans in Minnesota’s Sex Offender Program
Four transgender women say clinicians and staff deny them gender-affirming care and see their identity as in conflict with sex offender treatment.
On July 7, 2018, Kendra Michelle Lovejoy did to herself what no one else would: surgery. Wielding a disposable razor, she made incisions into her testicles. She was rushed to the hospital where physicians performed reparative surgery.
Since 2015, Lovejoy has lived in the Minnesota Sex Offender Program (MSOP) facility at Moose Lake, where she is confined indefinitely on a civil commitment order. (The program operates a second facility in St. Peter.) Civil commitment is a form of post-incarceration confinement for people with sex offense records who have been determined by a district court judge to have a “sexual psychopathic personality” or be a “sexually dangerous person” in need of psychiatric treatment.
While committed, Lovejoy has attempted gender-affirming self-surgery, as she calls it, eight separate times, she told The Appeal in a letter. After her latest attempt, Lovejoy told the staff that she intended to continue performing the surgery until she receives the medical care appropriate for someone who is experiencing gender dysphoria, like she is as a transgender woman.
Instead of providing her with the treatment considered medically necessary by the World Professional Association of Transgender Health (WPATH), an organization that promotes evidence-based transgender healthcare, two MSOP clinicians issued Lovejoy an individualized program plan aimed at “address[ing] client’s treatment-interfering behavior.” Although the plan advises Lovejoy to “work on the deeper issues behind the behaviors,” it makes no mention of gender dysphoria or any other issues related to Lovejoy’s transgender identity. Instead, the plan places her surgery attempts in the context of her “pattern of disruptive behaviors.”
Lovejoy has attempted gender-affirming self-surgery, as she calls it, eight separate times.
Lovejoy is not the only transgender woman in the program facing issues accessing care. The Appeal spoke with and reviewed the supporting documents of four transgender women who say that clinicians and staff regard transgender identity and expression as being in conflict with the purpose and function of the civil commitment facility.
The Minnesota Department of Human Services (DHS), which oversees the MSOP, responded to these claims saying, “MSOP clinical staff are dedicated to providing appropriate treatment that is tailored to client needs, and clients are always free to raise any concerns with their treatment teams.”
In its policies and clinical recommendations, the MSOP has maintained that transgender clients’ desired gender expression is a threat to their own safety. The program has also allegedly delayed access to medical care for a client diagnosed with gender dysphoria on the grounds that they must first participate in sex offender treatment. Lawyers and scholars believe such policies and practices could violate a person’s right to refuse medical treatment and their constitutional right to due process.
The Appeal has confirmed that there are at least eight trans women in the program of 731 people, mostly comprising older white men with high school as their highest level of education. DHS says the program does not keep aggregate data on the number of clients who identify as transgender.
Roadblocks to care
In the last decade, the American medical community has recognized that gender-affirming care, like hormone therapy and sex reassignment surgery, sought by transgender people is medically necessary. But some MSOP clients who identify as transgender women have faced hurdles obtaining it. All four clients with whom The Appeal spoke have been unable to begin medically transitioning.
DHS says the MSOP “provides treatment” to clients with gender dysphoria and gender identity concerns, “consistent with its policy ‘Treatment of Gender Identity Concerns and Gender Dysphoria.’” The policy states that clients are provided “with psychotherapeutic and psychiatric treatment to address concerns, ambivalence and/or discomfort regarding gender identity,” but it also notes that hormone replacement therapy must not be “contraindicated/counter-therapeutic.” The policy does not outline a process for accessing sex reassignment surgery, even though it describes the basic requirements for initiating hormone therapy while in the program.
But in an April 27 letter to The Appeal, Lovejoy says the program has “consistently denied” her requests for hormone replacement therapy and “does not work with me on gender related issues.”
Jason Hayzlett, an MSOP client also committed to the Moose Lake facility, has sought gender-affirming care in the program for more than 20 years. A 2018 Sexual Violence Risk Assessment found Hayzlett’s repeated requests for “accomodations” for “his gender identity concerns” to be “not feasible or appropriate,” even though that same assessment recognizes that Hayzlett expresses “significant distress regarding his gender identity.”
DHS would not comment on Lovejoy’s and other clients’ cases or claims for this story, citing patient privacy laws.
According to George Brown, a psychiatrist and professor at East Tennessee State University, gender-affirming care will most likely not inhibit sex offender treatment. Although he acknowledges that there is always an “exception to the general rule,” Brown says that gender dysphoria is unlikely to be connected to a transgender person’s sex offense history. There is also not a higher prevalence of sex offense among gender dysphoric people, according to Brown.
All four clients with whom The Appeal spoke have been unable to begin medically transitioning.
“The Department [of Human Services] has zero interest in providing hormones to anybody,” says Phil Duran, the director of advocacy at Minnesota-based JustUs Health, a nonprofit that focuses on HIV health services and advocacy. Duran has worked with Lovejoy and other trans women who are MSOP clients. Even those who have secured the gender dysphoria diagnosis are still getting the “runaround,” Duran says.
DHS suggests the WPATH Standards of Care, which advise health professionals on how to help transgender people find “comfort with their gendered selves” and “maximize their overall health,” do not apply to MSOP clients. The standards, the agency says, do “not specifically address care for individuals expressing gender identity concerns and/or who have a diagnosis of gender dysphoria and are living in a secure residential sex offender treatment facility.”
But Brown, who has been a member of WPATH since 1987 and wrote the first section in the standards regarding incarcerated people, says that this is simply not the case. “There was no intent on my part to limit it in any way, shape, or form to the type of of incarceration,” Brown explains. “We are not going to list every possible institutional setting that exists in the world.”
Stefan Vogler, a sociologist at University of California, Irvine, who is studying sex offender risk evaluations, finds the MSOP’s interpretation of transition—not transition itself—potentially countertherapeutic.
“If [the MSOP’s] true intention was to provide a therapeutic environment, they would want to make every effort to care for the mental health of their patients in all ways,” says Vogler, “which for trans people means offering gender-affirming care, acknowledging trans people with their correct pronouns and names, etcetera.”
Brown believes it is possible that gender transition could be countertherapeutic for a particular person who is working to, or required to be, managing thought patterns and compulsions that lead to sex offenses. But he also notes that “it’s potentially very therapeutic and medically necessary for certain individuals.”
Gender expression consistent with one’s sense of self as a transgender woman has been equated with “offending” behavior by MSOP clinicians, according to clients and documents reviewed by The Appeal.
Jason Hayzlett has seen this firsthand. In January 2017, clinicians reviewed a journal Hayzlett completed for therapy, writing in a progress note: “The contents of these journals lacked any emotional awareness and acknowledgment of cognitive distortions, while sexualizing specific female staff under the premise of him identifying as transgender. I informed Mr. Hayzlett of the team’s perspectives that shades of his offending were being observed.”
“I believe that they think it is all part of my sex offending cycle,” writes Hayzlett in a June 1 letter, “and that they don’t realize that they are two different things for me.”
A February 2012 progress note says Hayzlett “identified the cause of his offenses as related to issues of his gender identity and not to issues about sexual deviance or preference,” but Vogler, the sociologist, is not convinced that expressing gender identity, in and of itself, “is violent or would harm anybody.”
Tammi-Jo Fritz, an MSOP client committed to the St. Peter facility, says clinicians have misconstrued her desire for feminine expression as a sexual perversity. Clients are required to wear clothing that is “consistent with the client’s anatomical gender,” according to the program’s “Gender Dysphoria Treatment” policy. All of the “prohibited ” clothing is feminine, including dresses, skirts, nylons, and yoga pants, among other items.
They have the right to dress how they want to dress.Eric Janus, Mitchell Hamline School of Law
“I was told that woman clothes are not allowed for men to masturbate to,” Fritz writes in a May 10 letter. “That is deviant sexual thinking,” which sex offender treatment aims to eliminate, she adds. “I told them I am not talking about masturbating … I just want to be the woman I should have been years ago.”
Interpreting gender identity as a sexual perversion comes as no surprise to Duran, the JustUs Health advocate. From what Duran has seen and heard, he says, “[MSOP staff] can’t figure out what to do with trans women in the context of a sex offender program. If everything is about sex and so-called deviance, they can’t make sense of it if one of these people is a transgender woman.”
In 2014, MSOP client Mackenzie Boone decided to begin pursuing the ability to wear feminine clothing. But “it has been a nightmare ever since,” she writes in a June 8 letter. “MSOP has fought me every step of the way and every time that they do give something that helps with the anxiety and dysphoric feelings they quickly take it away.”
“They have the right to dress how they want to dress,” says professor Eric Janus, founder and director of the Sex Offense Litigation and Policy Resource Center at the Mitchell Hamline School of Law. “The fact that the institution wants to regulate that goes to show how ridiculous an enterprise it is.”
Transition as a security threat
According to DHS, “Clients who alter their appearance, particularly if they were to outwardly appear female, risk exploitation, harassment and possibly abuse,” from other clients who are classified by the department as sexually dangerous persons and/or a sexual psychopathic personalities and have “demonstrated patterns of exploitation.”
The MSOP does not track harassment or abuse of clients “based on outwardly female appearance.” If such instances have occurred, it says, they would exist in private client records. According to the program’s annual reports, two clients were assaulted by peers in 2018, a drop compared to previous years: There were three such assaults in 2017 and nine in 2016.
“This is just BS,” writes Lovejoy, in response to DHS’s position; she has heard the department’s justification before. For one, she reports that she has experienced “little harassment from other clients.” Additionally, she questions why the program hires “so many natal females” if staff worry a client may attack her because her “appearance is ‘female.’” She adds, “Why don’t they prohibit female staff from wearing wigs, make-up, skirts, dresses, perfume, etc.?”
Even Lovejoy’s preferred name has been perceived as a risk. According to a 2016 legal complaint filed by Lovejoy, an MSOP security counselor considered her to be “promot[ing] a ‘safety concern’ for signing her name as Kendra Michelle Lovejoy” and issued her ‘multiple’ write-ups related to her gender expression, including one for ‘lying and misrepresentation.'” At the time, her name had not been legally changed.
Sex offender civil commitment programs in other states have also framed transgender expression as a security threat. The Massachusetts Department of Correction, which operates the state’s facility for “sexually dangerous persons,” justified its denial of access to hormone replacement therapy for client Sandy Battista, a transgender woman, on the grounds that “sexual contacts or assaults by other detainees would be made more likely by female clothing and accessories and the enhancement of breasts due to hormone therapy.” But the circuit court judges hearing the appealed case disagreed, writing that “such therapy is feasible despite safety concerns.”
Janus, the Mitchell Hamline professor, recognizes that institutions will make policies to protect their interests. “The state has a right to make rules that are necessary to maintain the safety of the environment and of the people confined. But those rules need to take into account the fact that they are not being punished; it’s supposed to be a therapeutic environment,” Janus says of MSOP clients.
MSOP staff does not use transgender clients’ preferred pronouns, say some clients. Lovejoy says that staff members “refuse to respect my female gender identity,” citing a pastor who she says once called her an “abomination and unclean.” Beyond verbal pejoratives, Lovejoy says that she is “treated as a male in every respect,” and that, “many of the staff here have very transphobic/trans-misogynistic views, and are not afraid to express these views.”
DHS says staff members are “encouraged to use gender neutral forms of address when requested by a client and we otherwise do not regulate or restrict how clients are addressed by staff members or other clients.” But Lovejoy says she has “been told by some staff members that they were verbally instructed to not use female pronouns, or refer to me as a female.”
Program plans and other documents related to Lovejoy’s and Hayzlett’s detainment reviewed by The Appeal consider them both to be “male,” and they are referred to using “he” pronouns. MSOP policy requires that staff members use a client’s legal gender identifier on all medical/treatment documents. Lovejoy says she thinks this is unfair, since she has seen the MSOP “do nothing to help me change my gender on my California birth certificate.”
Lovejoy says that she is “treated as a male in every respect."
The MSOP’s policy on preferred pronouns and its staff’s inconsistent use of them do not adhere to professional guidelines that advise otherwise. In an internal email between clinical staff members at the program’s Moose Lake facility that concerned the use of gender pronouns for Lovejoy, the assistant clinical director at the facility at the time interpreted the American Psychological Association’s guidelines for working with transgender patients to “mean we should generally respect the individual’s preference when choosing pronouns.” (The guidelines actually state that “not using a person’s preferred name or pronoun” is considered discrimination.) Yet an administrative worker at Moose Lake referred to Lovejoy using masculine pronouns, just an hour after the assistant clinical director sent the email.
“Only a couple of staff members respect and use my pronouns,” Lovejoy says. “These are the same staff members who told me that they were instructed not to refer to me as a female.” She has filed “several” complaints about the way the staff regards her gender identity to no avail, but she has “learned to just try to deal with it, and my feeling on my own.”
Questions of constitutionality
The MSOP’s treatment of people with gender dysphoria not only ignores medical best practice but also risks violating people’s due process rights, according to clients and advocates.
Duran, of JustUs Health, notes a concerning pattern in the way the program responds to people interested in transitioning. “Look, if you want hormones, then open up about your offense history. Let’s make a deal,” he recounts.
This is the experience Hayzlett recounts. Between 1997, when first committed to an MSOP facility, and 2002, Hayzlett made multiple requests to begin the process of “gender reassignment,” as clinician Thomas Lundquist described it in a 2003 psychological assessment. For Hayzlett, the process included accessing hormone replacement therapy and being allowed to “dress as a woman in public, not just in the privacy of my room.”
Each request was denied by Anita Schlank, the clinical director at that time. The justification, as recounted by Hayzlett in a June 1 letter, was that Hayzlett “would have to complete sex offender treatment, before I was to start addressing my gender issues.” Lundquist verifies this in the 2003 assessment: “He received the same response each time, that the procedure is not therapeutically indicated until he has addressed his sex offending issues.”
Schlank declined to comment on Hayzlett’s claims but denied she had “ever prevented anyone from obtaining materials related to gender dysphoria and transgender identity.” She also “believe[s] prioritization of treatment needs should be done on an individualized basis.”
Although unable to comment on specific claims, DHS told The Appeal, “Gender-affirming care is not contingent on a client’s participation in sex offender treatment” at MSOP facilities.
Program clinicians told Hayzlett that "you will be given an opportunity to focus on your gender identity diagnosis" as “you progress further in your [sex offender] treatment."
Requiring a client to complete treatment before accessing hormone therapy could amount to a refusal of care, as almost no one has successfully completed the sex offender program. Since the MSOP’s founding in 1994, only six people have been fully discharged, most of them in the last few years.
In 2015, a district court ruled in Karsjens v. Jesson that the MSOP’s system violated the Fourteenth Amendment because it “has the effect of confinement to the MSOP facilities for life,” leaving the program with no “delineated end point.” The state appealed the case to the Eighth Circuit, which agreed the plaintiffs had standing but reversed the lower court’s finding on constitutionality. The court found that MSOP’s actions, as detailed by the plaintiffs, did not meet the “conscience-shocking standard” needed to demonstrate a due process violation.
Sex offender treatment at MSOP is divided into three parts, Phases I through III. The first addresses “treatment-interfering behaviors and attitude,” the second focuses “on [clients’] patterns of abuse [and] underlying issues in their offenses,” and third concerns “deinstitutionalization and reintegration.” By the end of 2018, slightly more than half of the people committed to MSOP facilities were in Phase II, while around one-fifth, or 162 out of 740, were still in Phase I, according to an annual report.
In response to Hayzlett’s 2010 request for gender-affirming care, program clinicians told Hayzlett that “you will be given an opportunity to focus on your gender identity diagnosis” as “you progress further in your [sex offender] treatment,” according to evidence submitted in the Karsjens case. But for transgender people, like Hayzlett and Lovejoy, their very identity can prevent them from moving through the phases.
To progress from Phase I to Phase II, a client, among other things, must have “two consecutive quarters of no [M]ajor Behavioral Expectation Reports,” according to the Karsjens findings. Hayzlett received three “Major BERs” between October 2017 and February 2018, which, according to the documents reviewed by The Appeal, are not explicitly related to being transgender. But Lovejoy has received “multiple” reports for using a name aligned with her gender identity. “If I am being forced to be someone that I am not, then how can they expect I can become any less risk to the public?” Lovejoy writes in a June 6 letter.
You can’t condition people with legitimate medical treatment on participation in sex offender treatment.Phil Duran, JustUs Health
Hayzlett has declined to participate in treatment for the majority of time in the sex offender program. “[I] do not feel it is beneficial or successful,” Hayzlett wrote in 2015, noting that, at the time, no one had been fully discharged—more than 20 years into the program. That same year, 106 people refused to partake in sex offender treatment—a fact that Judge Donovan W. Frank, who ruled in the Karsjens case, recognized in his judgment to be potentially symptomatic of the widely reported “hopelessness” of the system.
“A person at the sex offender program has a full constitutional right to simply refuse [sex offender] treatment,” says Duran. “Now the consequence of that may be they never get out. But that’s their choice.” But using the promise of gender-affirming treatment as a carrot is just plain wrong, he adds. “You can’t condition people with legitimate medical treatment on participation in sex offender treatment that they constitutionally refuse to take part in. But that seems to be what their approach has historically been.”
Teresa Nelson, the legal director of the ACLU of Minnesota, agrees. “MSOP couldn’t say, ‘We’re not going to give you your insulin because you are not compliant with treatment,” Nelson explains. “When somebody has gender dysphoria, that is a serious medical need that [MSOP] can’t refuse to treat just because it is inconvenient for other treatment goals.” If so, Nelson argues, it could potentially violate due process rights upheld by the Fourteenth Amendment. Still, Nelson is skeptical a judge would defer to clients over a facility.
Brown, the psychiatrist, is more hopeful. He has served as an expert witness on many cases brought by incarcerated trans people seeking access to care, and most of them have won. But litigation remains state by state, as the Supreme Court has not ruled on this issue. “Sadly,” he says, “I look to the future and the current composition of the judiciary and I don’t see any end in sight to litigation.”
‘Marginalized within the marginalized’
The number of people in civil commitment in Minnesota is projected to reach more than 1,200 by 2022. The client population continues to grow in part because those who qualified for transfer to Community Preparation Services, the last stop before someone is discharged, “had to wait” due to a scarcity of beds at the least-restrictive facility, according to the testimony of Elizabeth Barbo, the MSOP’s reintegration director, in the Karsjens case.
But an executive order issued by former Governor Tim Pawlenty suggests indefinite detainment may not be a bug but a feature. In 2003, Pawlenty ordered the DHS commissioner, to “ensure that no person who has been civilly committed under Minnesota law as a sexually dangerous person or as a person with a sexual psychopathic personality is discharged into the community unless required by law or ordered by a court.”
“It was hard to know exactly what the legal meaning was, but the practical effect was crystal clear: no one was released subsequent to the order,” says Janus, the Mitchelle Hamline professor. “The staff and other officials at MSOP and DHS certainly understood the order to mean that no one was to be released.”
Governor Tim Walz, on the other hand, is recommending a $19.5 million budget increase for the MSOP over the next two years, most of which will go toward Community Preparation Services, the less-restrictive MSOP setting.
While some changes are happening in prisons and jails, civil commitment facilities largely elude the agenda of the criminal justice reform movement. Fritz, one of the MSOP clients, is well aware of this. “I have been told by ladies in prison that prisons are letting Transgenders go on the hormones therapy and also have other woman privileges,” writes Fritz, “but we can’t have the same treatment.”
Transgender women with sex offense records have “been marginalized within the marginalized community,” says Brown. They are “hidden away from view, because they are social pariahs for what they have done or allegedly done, and they make all trans people look bad, in the view of some people in the community.”
In 2018, Hayzlett filed a petition for discharge. It was denied, and the justification given framed the desire to transition as a distraction: “It will be important for Mr. Hayzlett to gain an understanding of his reason for being at MSOP, which is not because he has a diagnosis of gender dysphoria but because he sexually offended.”
The situation remains nothing short of hopeless for Lovejoy. “Every day it is a struggle to just accept myself for another 24 hours,” she writes in an April 27 letter. “Even sharing this with my therapist, no help comes. I am left to cope on my own.”