The U.S. Supreme Court’s same-sex marriage decision was not the only case of consequence for LGBT rights decided on June 26, 2015. On the opposite coast, a three-judge panel of the U.S. Court of Appeals for the 9th Circui, in San Francisco unanimously revived a California inmate’s lawsuit seeking sex reassignment surgery, which had been dismissed at the screening stage by Chief Judge Ralph R. Beistline of the U.S. District Court for the Eastern District of California. Rosati v. Igbinoso, 2015 WL 3916977.
Philip Walker Rosati (now known, according to the court, as Mia Rosati), is a California prison inmate who identifies as a transgender woman but has not been formally diagnosed with gender dysphoria. Her attempts to secure appropriate medical treatment have gone for naught, as prison officials have refused even to allow her to be examined by a doctor who is qualified to diagnose gender dysphoria, which would be a prerequisite to receiving such treatment. According to her allegations, despite knowing about her symptoms (“including repeated efforts at self-castration”) prison officials “recklessly disregarded an excessive risk to her health by denying [sex reassignment surgery] solely on the recommendation of a physician’s assistant with no experience in transgender medicine.” Furthermore, Rosati alleged and the state acknowledged in response to this appeal, California has never provided such surgery to a state inmate, and as was developed in the recent Norsworthy case before another district court, the state Department of Corrections appears to maintain a blanket policy against providing such surgery for inmates.
Rosati filed her federal complaint pro se (representing herself). Under the Prison Litigation Reform Act, such claims are subjected to a “screening” process by the federal court and routinely dismissed if the court concludes that the claims are not plausible on their face. Judge Beistline reached that conclusion and dismissed the case permanently, not even affording Rosati the opportunity to respond with an amended complaint. She subsequently obtain legal representation from Lambda Legal’s West Coast Office in Los Angeles and the Prison Law Office in Berkeley, who filed this appeal on her behalf.
Federal courts have ruled that prison inmates whose serious medical conditions are met by deliberate indifference from prison officials have a claim under the 8th Amendment, which forbids cruel and unusual punishment. The rationale is that inmates are totally dependent on prison officials for health care, and that at a minimum prison officials should be required to attend to serious medical conditions with at least adequate treatment. The battle for transgender inmates has been to establish that gender dysphoria is a serious medical condition and that, depending upon the degree of dysphoria, various medical treatments, including sex reassignment surgery, may qualify as medically necessary. There is an emerging consensus among most federal courts that have addressed the issue that psychological counseling and hormone therapy, and various modifications of an inmate’s living conditions involving dress and grooming, may qualify as medically necessary, but the courts are still at early stages in accepting the proposition that state prison systems should be required to provide sex reassignment surgery and so far no state inmate has received such surgery as a result of a federal court order.
The 9th Circuit panel found that Judge Beistline erred in screening out and dismissing this complaint. Quoting a prior 9th Circuit decision, the court said, “A district court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'” At the oral argument of this appeal, attorneys from the state conceded that the district judge should have provided Rosati with an opportunity to amend her complaint so reversal was virtually mandated. But the court went further, stating that “even absent the concession, we conclude that the complaint, although not drafted with the skill and brevity expected of counsel, stated an Eighth Amendment claim upon which relief could be granted.”
In evaluating a complaint, the district court is supposed to determine whether the plaintiff has alleged facts that could plausibly support a legal claim. In this case, Rosati alleged that she suffered from severe gender dysphoria for which sex reassignment surgery was necessary treatment. She quoted at length from the Standards of Care that have been published by the World Professional Association for Transgender Health. “Rosati plausibly alleges that prison officials were aware of her medical history and need for treatment, but denied the surgery because of a blanket policy against SRS,” and the state conceded at the oral argument that “no California prisoner has ever received SRS.” In the past, the 9th Circuit has ruled that a “blanket, categorical denial of medically indicated surgery” is “the paradigm of deliberate indifference.”
The court also noted Rosati’s allegation that the treatment was denied on the basis of a recommendation from an unqualified physician’s assistant. “Although Rosati lacks a medical opinion recommending SRS, she plausibly alleges that this is because the state has failed to provide her access to a physician competent to evaluate her.” This, too, could be construed to be deliberate indifference.
Of course, at this point the court is dealing with Rosati’s factual allegations, not a trial record, and the purpose of this appeal was to get Rosati’s complaint past the screening process so she can obtain access to the court to prove her claim. Thus, the appeals court was careful to say, “We express no opinion on whether SRS is medically necessary for Rosati or whether prison officials have other legitimate reasons for denying her that treatment. But, like other courts that have considered similar actions, we hold that the allegations in Rosati’s complaint are sufficient to state a claim.” The court cited decisions from the 1st, 4th and 7th Circuits to support this conclusion, although in none of those cited cases did a court ultimately order prison officials to provide sex reassignment surgery for an inmate. The court cited as well the March 31 ruling in Norsworthy v. Beard by another California federal district court judge, who had ordered sex reassignment surgery to be undertaken immediately, only to have the order stayed by the 9th Circuit in response to an emergency motion by the state. As such, the panel ruling on Rosati’s appeal may foreshadow how another panel of the court may deal with the state’s appeal of the Norsworthy order.
The court also commented, in send the case back to the district court, that the court should also consider Rosati’s claim that the state was violating her right to equal protection of the law guaranteed by the 14th Amendment. The opinion does not describe any of Rosati’s factual allegations in support of that claim. As a result of this decision, Rosati should be able to submit a new complaint — this time drafted by her attorney representatives — for a fresh consideration by the district court, bearing in mind the 9th Circuit’s statement that her original pro se complaint was sufficient to state an 8th Amendment claim.
If the 9th Circuit ultimately rules in favor of Kosilek or Norsworthy, the chances are excellent that the state could obtain review from the Supreme Court. On May 4, 2015, the Supreme Court denied review in Kosilek v. Spencer, in which the full bench of the 1st Circuit rejected a three-judge panel and a trial judge ruling and allowed Massachusetts prison officials to deny sex reassignment surgery to Michelle Kosilek. A 9th Circuit ruling on the merits in favor of Norsworthy or Rosati could create a split of circuit authority, setting up ideal circumstances for Supreme Court consideration of the issue. The Supreme Court has never previously ruled on the questions of whether gender dysphoria is a serious medical condition and whether prison officials may be required to provide for sex reassignment surgery if qualified medical personnel conclude that such treatment is necessary for an inmate.
Mia Rosati is represented on appeal by Jon W. Davidson and Peter C. Renn of Lambda Legal and Alison Hardy of the Prison Law Office. Mr. Renn argued the appeal in the 9th Circuit. The World Professional Association filed an amicus brief in support of the appeal, which was written by pro bono attorneys Cori A. Lable, Daniel V. McCaughey, Michael T. Packard and Kevin P. Budris from Ropes & Gray LLP in Boston.