Taxpayers Left In The Dust On Policy For Trans Inmates In Minnesota

Earlier this month, we took a deep dive into Minnesota’s state checkbook. Unlike the state budget, a broad plan to allocate funds, the checkbook contains every line-by-line expenditure the state makes in a given year. By comparing the paid vendors with those who donated to Governor Tim Walz’s reelection campaign, we found interesting examples of overlap but not enough information to identify confirmed conflicts of interest.

One particular headline-making case, though, begged a closer look. It demonstrates how policy can change without the taxpayers having much say in the matter.

By suing the state, a constellation of interests was able to negotiate a deal behind closed doors on the controversial topic of treating and housing transgender inmates. While taxpayers foot the bill, as always, their representatives in St. Paul were sidestepped in the policymaking process.

The bill came to $495,000, but updated policies mean Minnesotans can expect more costs in perpetuity.

THE PLAINTIFF

Christina Lusk was an inmate at the Minnesota Correctional Facility-Moose Lake and identified as a transgender woman. Lusk had been working for several years to get access to what advocates call “gender-affirming” care. She wanted Gender Affirming Hormone Therapy (GAHT), assessment for and access to gender reassignment surgery, and a transfer to a women’s prison.

She was also seeking damages, bringing a suit under the Minnesota Human Rights Act, provisions of which have already been the subject of media controversy this year.

HELP FROM A CONNECTED NONPROFIT

Gender Justice is a nonprofit headquartered in St. Paul, Minn., focused on so-called "gender equity.” With policy education, advocacy and legal services arms, the organization lists among its mission “dismantling” legal structures that prevent equity. The group seeks to “create a world where everyone can thrive no matter their gender identity, expression, or sexual orientation. Central to this work is dismantling the legal, political and structural barriers to gender equity.”

The group is led by a Board of Directors that includes a member of the Walz administration. Gender Justice Board Treasurer EJ Dean, according to the website, also serves as Manager of Adult Mental Health Programs & Services at the MN Department of Human Services. In other words, Dean works as part of Governor Walz’s administration.

They have also served on the City of Minneapolis Transgender Equity Council. Per their own bio, Dean has “held multiple leadership roles at the intersections of mental health, human services and queer equity.” (Dean uses they/them pronouns according to the website).

Gender Justice collected $448,904 from the state in 2023 alone, much of it pursuant to Lusk’s suit. An additional $5,000 came from the Office of Higher Education for an unrelated matter.

SIDENOTE: Gender Justice is also favored by the Biden-Harris administration, having accepted an invitation to the 2024 Pride Month Celebration on the South Lawn of the White House.

Gender Justice extended their legal services to Lusk, part of work they call “impact litigation.”

BACKGROUND: Harvard Law School defines impact litigation as “planning, preparing, or filing and defending laws suits focused on changing laws or on the rights of specific groups of people. Impact litigation is brought or defended typically when the case affects more than one individual even if there is one individual involved. Many impact litigation organizations are also deeply involved in policy work.”

A FIRM OF MANY WALZ DONORS

Lusk sued the Minnesota Department of Corrections, and Gender Justice partnered on the litigation with Robins Kaplan LLP. The firm is headquartered in Minneapolis but has offices across the country including in New York, Los Angeles, Silicon Valley, Boston and Bismarck.

Robins Kaplan employees donated $24,807 to the Walz gubernatorial re-election campaign (donations from 2019-2022), including a donation from chair emeritus Elliot S. Kaplan.

CLOSED-DOOR NEGOTIATIONS

After entering arbitration, the Department of Corrections settled with Lusk for a total of $495,000 in damages, split among the three parties.

Settlement By the Numbers

Christina Lusk: $245,903.72 in damages
Gender Justice: $198,000 in legal fees and costs
Robins Kaplan LLP: $51,096.28 in legal fees and costs

Beyond just financial damages, the Department of Corrections agreed to give Lusk what she was demanding. She received access to hormone therapy and would have a professional evaluate the need for gender reassignment surgery.

Under the arrangement, Lusk would be moved to women’s-only Shakopee prison. The deadline to do so would be a week after completing a chemical dependency program, but finishing wasn’t a requirement: Lusk could send a written request to move sooner.

THE FINE PRINT: You can read the full settlement agreement stemming from Christina Lusk v. Minnesota Department of Corrections, obtained by OpenTheBooks, here.

Equally concerning for taxpayers, the World Professional Association for Transgender Health (WPATH) Standards of Care are referred to as a North Star for Lusk’s regimen and state policy going forward. WPATH has received intense scrutiny after independent journalist Michael Shellenberger released leaked internal files detailing private discussions among doctors, and Environmental Progress’ Mia Long released a long-from follow-up report. The documents and meetings depict WPATH members acknowledging the difficulty of minors giving informed consent to surgical and hormonal interventions, and brainstorming fixes to complications. (Take a look at the Further Reading section for more).

Plus, if Lusk’s surgeries and the related treatments were not completed by her release date from prison (which happened last January), DOC would continue to reimburse her out-of-pocket expenses provided she gets health insurance.

POLICY AFTERMATH

Explicitly written into the legal settlement, the Minnesota DOC agreed to revise its policies as they apply to all transgender-identifying inmates.

First, they updated their policy called “Management and Placement of Incarcerated People Who Are Transgender, Gender Diverse, Intersex, or Nonbinary.” It now “expressly” states that DOC “provides medical care in accordance with WPATH” recommendations, and it explains the agency will give prompt responses to prisoner requests related to transgender care, using its “facility gender identity committees.”

Second, inmates who receive a legal name change at any time can request their prison records be updated to match it, “irrespective of the names under which they are committed to DOC custody.”

In a statement reported by NPR, Gender Justice Legal Director Jess Braverman said, “Thanks to Christina Lusk’s willingness to speak out, transgender people in custody will now have expanded access to the housing and health care they need, and the legal protections they deserve.”

Sister organization Gender Justice Action seeks to have a more direct impact shifting politics in Minnesota and surrounding states. According to its website:

“By mobilizing the majority of Minnesotans who support gender equity, we are building a grassroots movement to elect gender equity champions through targeted electoral strategies and pass policies to expand reproductive freedom and LGBTQ rights.”

They say they’re “advancing the boldest gender equity agenda in Minnesota history by pushing transformative legislation.”

CONCLUSION

It seems everybody did mighty well here — except for the taxpayers of Minnesota, who paid for the legal proceedings, underwrote the Gender Justice nonprofit and will ultimately fund controversial treatments for Lusk and many others.

The case study is reminiscent of a practice known at the federal level as “sue and settle,” which attracted scrutiny of the Environmental Protection Agency. The EPA would routinely settle claims from environmentalist nonprofits seeking stronger regulations. By making those deals in private, it cuts the taxpayer out of the conversation – including state governments and local business owners who have a stake in the outcome.

Likewise, in the Lusk case, taxpayers got off with only $495,000 – for now -- but the policy change never had to survive a legislative debate. Those new practices and costs will continue unless lawmakers take new action.