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9th Circuit Denies En Banc Review in Idaho Transgender Prisoner Case in a Sharp Political Divide That Foreshadows Supreme Court Review

Posted on: February 12th, 2020 by Art Leonard No Comments

Last August 23, a three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit upheld a trial judge’s order that the Idaho Corrections Department provide gender affirmation surgery for a transgender inmate, Adree Edmo.  The panel, composed of two circuit judges and a district judge all appointed by President Bill Clinton, found that prison officials’ denial of the procedure constituted “cruel and unusual punishment” in violation of the 8th Amendment of the Bill of Rights.  On February 10, the full 29-judge 9th Circuit announced that it had voted to deny Idaho’s petition for rehearing of the case by a larger panel, referred to as “en banc” rehearing.  In the 9th Circuit, an en banc panel would have eleven judges.  Edmo v. Corizon, Inc., 2020 Westlaw 612834, 2020 U.S. App. LEXIS 4107.

This vote effectively adopted as circuit precedent the panel ruling that a transgender inmate suffering from severe gender dysphoria is entitled to gender confirmation surgery at the state’s expense when credible medical experts have testified that the procedure is necessary treatment for the inmate’s serious medical condition.  This contradicts rulings over the past several years by the 1st, 5th, and 10th Circuits, all of which were denied review by the Supreme Court.  Idaho will ask the U.S. Supreme Court to resolve this circuit split, and the Court is likely to agree to take the case.

The denial of review was by no means unanimous.  It revealed a sharp political split on the huge 9th Circuit, which has 20 senior status (semi-retired) judges as well as 29 actively serving.  Judges in senior status ordinarily do not participate in Circuit votes on petitions for en banc review, but they may participate in discussing the petition under Circuit rules, and two of the senior status judges, Diarmuid O’Scannlain (appointed by Ronald Reagan) and Carlos Bea (appointed by George W. Bush), joined with nine of the active duty judges (all appointed by either George W. Bush or Donald J. Trump) in expressing their dissent in three separate dissenting opinions, one written by O’Scannlain.  None of the sixteen active duty judges appointed by Bill Clinton or Barack Obama voted to grant the petition.  Four of Trump’s appointees refrained from voting for the petition, as did one of Bush’s appointees.  (All 9th Circuit judges appointed before Bill Clinton became president are now on senior status, fully retired, or deceased.)

It is noteworthy that with the recent seating of Lawrence Van Dyke, who joined two of the dissenting opinions, Trump has appointed ten of the 29 active judges in the first three years of his term.  There are no 9th Circuit vacancies for him to fill at present.

Judge O’Scannlain’s opinion, the lengthiest of the three, was joined by eight other judges.  In his introduction, he said that the panel’s decision was “as unjustified as it is unprecedented,” criticizing the panel for substituting “medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, “ as “redefining” the “deliberate indifference standard” adopted by the Supreme Court for determining when a denial of medical treatment violates the 8th Amendment, and “constitutionally enshrining precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.”

The three-judge panel in this case produced a lengthy, detailed opinion, which turned heavily on the panel’s endorsement of trial judge B. Lynn Winmill’s conclusion that guidelines published by the World Professional Association for Transgender Healthcare (WPATH) are the “gold standard” that effectively define the minimally acceptable level of care for transgender inmates under the 8th Amendment.  The WPATH standards list six criteria for determining whether gender confirmation surgery is indicated for a particular transgender individual.  The prison doctors involved in the decision to deny the procedure to Edmo concluded that two of the six were not fulfilled.  Edmo’s expert witnesses, both involved with devising the most recent edition of the  WPATH standards based on their extensive experience in treating transgender individuals, testified that all six criteria were met.

Perhaps the most crucial difference between the experts was the standard requiring that the individual have had “12 continuous months of living in a gender role that is congruent with their gender identity,” seen as important because of the irreversible nature of the surgical procedure.  The prison doctors took the position that this can only be fulfilled by living in that gender role in civilian society, especially where the inmate’s projected date of release is relatively soon after such a procedure would take place.  They argued that the pre-surgical experience is a crucial part of the individual’s gender-role transition, and is not really possible in a prison context. Their view would effectively mean that such a surgical procedure would never be available for a transgender inmate unless they had lived in the gender role consistent with their gender identity for at least 12 months before they were incarcerated.

By contrast, the position of the WPATH experts is that transgender inmates can fulfill this requirement by time spent living that gender role while incarcerated.  The WPATH guidelines assert that the same criteria can apply to inmates as apply to civilians.

Judge O’Scannlain heavily criticized the trial court and panel for having disparaged the testimony of the prison doctors and placed their reliance totally on Edmo’s experts.  O’Scannlain pointed out that Edmo’s experts lacked relevant experience of dealing with gender dysphoria treatment issues in a prison context.  He pointed out that WPATH, self-described as a professional association, also sees itself as an advocacy group, that some of the members of the body that drafted and approved the standards are not doctors, thus reflecting that the standards are not solely based on medical expertise, and he argued that federal courts, while treating the WPATH standards as an important source of information in transgender cases, have not treated WPATH’s guidelines as dispositive or as definitely defining the minimal constitutionally-required standard of treatment.

He also pointed out that, despite the prison doctor’s concern about Edmo’s lack of 12 months real-world experience living as a woman, the doctor had not determined that Edmo should permanently be denied the procedure, but rather that she was not ready for it in light of her other medical and psychological issues but might be in the future.

In support of his position concerning the WPATH standards, O’Scannlain cited decisions by the 1st, 5th and 10th  Circuit Courts of Appeals, all of which have refused to find an 8th Amendment violation, and all of which have noted that the WPATH guidelines are “controversial.”  Furthermore, in recent years the Supreme Court had denied petitions to review these circuit court decisions.

O’Scannlain seemed most perturbed by the panel’s characterization of the conduct of Edmo’s treating physician and the committee members with whom he had consulted as “deliberate indifference” to Edmo’s serious medical condition.  He noted the extensive contact with Edmo, the provision of hormones and psychological therapy, and Edmo’s own testimony that the hormone treatment had relieved her gender dysphoria to some extent.

He also observed that the Supreme Court has never held that the level of prison care is unconstitutional when qualified medical experts disagree about whether the treatment sought by the inmate is necessary.

Another less lengthy but no less pointed dissent was written by Patrick Bumatay, a Trump appointee (and an out gay man) who was seated on the circuit court just last year.  Six of the circuit judges joined his dissent, five in whole and Trump-appointee Daniel Collins in part.

Bumatay, an “originalist,” insisted that the court must identify the original meaning of the 8th Amendment – its meaning when it was adopted as part of the Bill of Rights in 1791 – to interpret it today.  Although the Supreme Court as a whole has not endorsed such “originalism” as part of constitutional interpretive doctrine, several members of the Court, including Trump’s two appointees, are avowed originalists.

Referring to 18th century sources for the meanings of “cruel” and “unusual,” Bumatay cites opinions by originalist Supreme Court justices quoting 18th century dictionaries, which define “cruel” as “pleased with hurting others; inhuman, hard-hearted, void of pity; wanting compassion; savage; barbarous; unrelenting” and noting more recent sources describing cruel punishments as “inhumane” and involving the “unnecessary and wanton infliction of pain.”  “Unusual” was defined in the 18th century as something that ran contrary to longstanding usage or custom, or that had long fallen out of use.  He noted continuing controversy over whether “punishment” under the 8th Amendment is limited to the sentence imposed by courts upon conviction, or would also extend to the treatment of incarcerated convicts.  The weight of Supreme Court precedent, over vigorous dissents by Justice Clarence Thomas, has fallen on the later view.

In light of these “originalist” meanings, he argued, “Idaho’s actions are far from a constitutional violation based on the clause’s text and original meaning.  Idaho’s actions simply do not amount to the ‘barbarous’ and ‘inhuman’ treatment so out of line with longstanding practice as to be forbidden by the Eighth Amendment.”  For one thing, with one recent exception in California, no transgender inmate has been given gender confirmation surgery while incarcerated, and the denial of en banc review in this case makes the 9th Circuit the only court of appeals that has approved a final order to provide such treatment, so it can hardly be described as “unusual” for a transgender inmate to have to forego this procedure while incarcerated.  Thus, this is not “unusual.”  And, as had O’Scannlain, Bumatay argued that the present WPATH guidelines, adopted in 2011, do not represent a consensus of the medical profession.  They are, by their own terms, described as “evolving,” and have not been treated as definitive by the federal agency administering Medicare and Medicaid “due to inadequate scientific backing.”

Bumatay and O’Scannlain thus joined with other federal circuit judges who have accepted the arguments of states’ attorneys in inmate cases that gender affirmation surgery remains a novel and controversial procedure within the medical community.  Advocates for transgender people have strenuously disagreed, and have been successful in recent litigation seeking coverage for such procedures under state employee health care programs, Medicaid, and private insurance policies challenged under the Obamacare anti-discrimination provision.  Numerous federal and state judges have accepted the argument that such procedures are now part of accepted medical practice and reject categorical exclusions from coverage for such procedures.  Even the U.S. Tax Court has weighed in, finding that transgender people can treat the costs of gender confirmation surgery as deductible medical expenses, finding that this can be a necessary treatment for a serious medical condition, rejecting the IRS’s argument that it is nondeductible “cosmetic” surgery.

Contrary to the dissenters here, the overwhelming majority of the 9th Circuit judges did not vote to grant en banc review and, while not expressing their views in writing, obviously were willing to let stand the panel’s treatment of the issues, which now becomes binding precedent on all the federal courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

In the second part of his dissenting opinion, Bumatay argues that the panel decision is inconsistent with the standards the Supreme Court has set under the 8th Amendment.  He characterizes what the panel has done as effectively reducing the test to one of medical malpractice, even though the Supreme Court has said that medical malpractice does not by itself equate to a constitutional violation.  “Deliberate indifference” requires a higher showing by the plaintiff.  Bumatay joined O’Scannlain in rejecting the idea that federal judges should be making medical judgments and substituting their judgments about appropriate treatment for those of prison medical personnel.

Judge Daniel Collins joined only the second part of Bumatay’s opinion, abstaining from signing on to the “originalism” analysis.  He wrote a brief separate dissent, emphasizing his view that the district court and the 9th Circuit panel “have applied standards that look much more like negligence than deliberate indifference.  Whether Dr. Eliason [Edmo’s prison doctor] was negligent or not (a question on which I express no opinion),” he continued, “his treatment decisions do not amount to ‘cruel and unusual punishment,’ and we have thus strayed far from a proper understanding of the 8th Amendment.”

Idaho’s determined defense of this case and its repeated requests to stay the lower court rulings as it appealed each step leaves no doubt that it will ask the Supreme Court to review the ruling.  They have several months to file a Petition, which might not be considered by the Court until the beginning of their October 2020 Term, since the Court waits until responses and replies to Petitions have been filed before considering it in conference.  Assuming that Idaho’s Attorney General’s Office, like those of most states, would routinely ask the Court to extend time to file the petition, it would not likely be filed before the summer and thus not ready for conferencing before the Court concludes its current term late in June.

 

5th Circuit Panel Rules Denial of Gender Confirmation Surgery for Transgender Inmate Does Not Violate 8th Amendment

Posted on: April 1st, 2019 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit ruled by a vote of 2-1 on March 29 that the state of Texas did not violate the 8th Amendment right against cruel or unusual punishment by denying gender confirmation surgery to transgender inmate Vanessa Lynn Gibson.  Gibson v. Collier, 2019 WL 1417271, 2019 U.S. App. LEXIS 9397.  The dissent argued that the substantive legal question was not properly before the court.  The majority took the position that a state may categorically refuse to provide gender confirmation surgery (or, as they labelled it, “sex reassignment surgery”) as a treatment for gender dysphoria, regardless of the needs of the individual inmate.

The opinion for the panel was written by James C. Ho, who was nominated by President Donald Trump to fill one of the long-standing vacancies on the 5th Circuit that was preserved by Senate Majority Leader Mitch McConnell’s determined effort to block President Obama from filling circuit court vacancies that opened up during his second term.  The retirement of an active judge created this vacancy in 2013.  Upon confirmation by the Senate, James Ho joined the court on January 4, 2018.  He was previously Solicitor General of Texas, and active in the Federalist Society.  Joining Ho’s opinion was Circuit Judge Jerry Edwin Smith, who was appointed to the court by President Ronald Reagan.  The dissenter was Senior Circuit Judge Rhesa Hawkins Barksdale, who was appointed by President George H. W. Bush.  (President Trump has appointed five out of the sixteen current active judges on the circuit court, among whom two were appointed by President Bill Clinton and three by President Barack Obama.  There is on vacancy pending on the 5th Circuit.)

Judge Ho’s opinion rests on two simple propositions.  Under the 8th Amendment’s text and case law concerning the rights of inmates to medical treatment, denying an inmate a treatment that is controversial within the medical profession and which has rarely if ever been provided to inmates cannot be held to violate the Amendment.  For one thing, he argued, denying sex reassignment surgery is not rare.  Indeed, it is a matter of course, since by his account only once in the nation’s history has any state prison system provided sex reassignment surgery to an inmate, when California recently settled a lawsuit by agreeing to provide sex reassignment surgery to the plaintiff.  Thus, denying such a procedure is not “rare,” and the 8th Amendment only prohibits punishments that are cruel and unusual.  On the other point, he wrote, the case law supports the proposition that the state only violates the 8th Amendment if it exhibits deliberate indifference to a serious medical condition, a demanding test that requires that the treatment requested by the inmate be one as to which there is widespread agreement among health care providers about its necessity.  Thus, if there is significant disagreement among medical authorities about whether a particular treatment is necessary, it doesn’t violate the Constitution for the state to refuse to provide it.

The opinion sets out only the bare bones of factual allegations by plaintiff Scott Lynn Gibson (a/k/a Vanessa Lynn Gibson).  The court uses male pronouns to refer to Gibson, claiming that Gibson did not object, although the litigation papers Gibson prepared while pro se use feminine pronouns. Gibson is an inmate at the Gatesville facility of the Texas Department of Criminal Justice (TDCJ).  Gibson was incarcerated on conviction of two counts of aggravated robbery, and committed additional crimes in prison of aggravated assault, possession of a deadly weapon, and murder.  Upon further conviction, Gibson is sentenced to serve through May 2013, eligible for consideration for parole in April 2021.  Identified male at birth, Gibson has identified and lived as female since age 15, but was not diagnosed as having gender dysphoria at the time of incarceration.

The court accepts that Gibson has gender dysphoria as described in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) published by the American Psychiatric Association, is depressed, and has attempted self-castration and suicide, although according to the record is not presently considered suicidal (although learning of this decision may well affect that).  It was not until after a suicide attempt that Gibson obtained a formal diagnosis.  Gibson has been receiving counseling and hormone therapy, but insists that surgery is necessary to ameliorate her condition. Despite living as a woman, Gibson is incarcerated per the state’s policy in a men’s prison. The state’s formal policy provides that transgender inmates be “evaluated by appropriate medical and mental health professionals and have their treatment determined on a case by case basis,” reflecting the “current, accepted standards of care.”  The policy does not mention surgery, but doctors have repeatedly denied Gibson’s request for surgery because the TDCJ formal policy does not “designate [sex reassignment surgery] as part of the treatment protocol for Gender Identity Disorder.”

Gibson represented herself in this lawsuit until it reached the level of the Court of Appeals, at which point the court appointed counsel to represent Gibson on appeal: Stephen Louis Braga, I, of the University of Virginia Law School’s Appellate Litigation Clinic. This appointment is apparently only for the appeal; had the case been remanded, Gibson would presumably be pro se again.  From the court’s account of oral argument, referred to several times in the opinion, it appears that Braga made concessions at oral argument that supported the court’s ultimate conclusion because of how Judge Ho dealt with the facts, but it is clear that the court was most heavily influenced by a decision of the U.S. Court of Appeals for the 1st Circuit, Kosilek v. Spencer, 774 F. 3d 63 (1st Circuit, en banc, 2014), in which the full 1st Circuit bench reversed a three-judge panel’s 2-1 decision and held that a transgender inmate serving a sentence of life without parole was not entitled to receive sex reassignment surgery.  Most importantly, Judge Ho referred repeatedly to the 1st Circuit’s summary of expert medical testimony offered in that case, filling an important gap in this case’s record, where there is no direct expert testimony because the district court rejected Gibson’s claims outright.  Judge Barksdale’s dissent objects to heavy reliance on the Kosilek ruling in this way.

Prison inmates are entirely dependent on the corrections system for their health care, for obvious reasons.  The Supreme Court and lower federal courts have found that prisoners are entitled to “necessary treatment for serious medical conditions.”  There is a consensus among federal courts that gender dysphoria is a “serious medical condition,” but there is no judicial consensus about whether sex reassignment surgery is a necessary treatment for it, and to date there is no final ruling on the merits by any federal appeals court ordering a state to provide sex reassignment surgery to a transgender inmate.  As the courts have interpreted the 8th Amendment’s ban on cruel and unusual punishment, a “necessary” treatment is one that has achieved general acceptance in the relevant medical specialty, and some courts have relied on Standards of Care published by the World Professional Association for Transgender Health (WPATH) as potentially supporting general acceptance – however, Judge Ho asserts, only in denying motions to dismiss cases, not in ultimate rulings on the merits.

The WPATH Standards state that “for many, surgery is essential and medically necessary to alleviate their gender dysphoria.”  But, Judge Ho observes, in the Kosilek decision, the 1st Circuit reported expert testimony sharply divided over whether sex reassignment is necessary treatment, and some testimony suggesting that WPATH is not an objective source but rather an organization devoted to advocacy for transgender rights whose published standards do not necessarily reflect a consensus of the medical profession, or even of individuals specializing in providing treatment to transgender patients.  Be that as it may, to the Gibson panel majority, this was sufficient to suggest that there is “serious dispute” within the medical profession about the necessity for sex reassignment surgery, and so long as that situation prevails, it is not “deliberate indifference” by the Texas corrections system to categorically refuse to provide such treatment.

While many federal courts have made clear that hormone therapy can be considered necessary for cases of severe gender dysphoria, and that counseling by itself is not always sufficient to meet the constitutional standard of care, even that point is not universally accepted, as Judge Ho demonstrated by citing cases on both sides of the question.  Regardless of how the medical necessity point is resolved, however, the judge pointed out that under the 8th Amendment’s language – cruel and unusual – it is not unusual to deny sex reassignment surgery to inmates diagnosed with gender dysphoria – indeed, it is the norm – and thus such denial cannot be found to violate the Constitution as an “unusual punishment.”

Judge Barksdale’s dissent argued that Gibson has never been afforded the opportunity in the lower courts to present any evidence beyond the factual assertions in her complaint. “Accordingly,” she wrote, “as the majority notes correctly, this appeal springs from this very unusual and improper procedure and resulting sparse summary-judgment record, which is insufficient for summary judgment purposes,” so she dissented from “the majority’s reaching the merits of this action, which concerns the Eighth Amendment’s well-established requirements for medical treatment to be provided prisoners.”

Judge Ho specifically responds to Barksdale’s various objections by asserting that it would be a waste of time and judicial resources to remand the case to build a factual record because, as he found, categorical denial of a right to sex reassignment surgery is so well-founded in the existing case law and facts readily available from published sources, including the Kosilek decision, that there is no need to compile a record of the individual facts of Gibson’s case.  The panel majority considers that Gibson’s factual allegations fail to generate material fact issues that would need to be resolved before the court could render a decision on the merits as a matter of law. To the majority, there is no disputing that medical practitioners are divided as to whether sex reassignment surgery is a necessary treatment, so there is no need for inquiry into Gibson’s individual case.

Judge Ho drew an analogy to an attempt by an inmate to obtain a drug that the Food and Drug Administration (FDA) has not approved, pointing out that no court would find that a prisoner’s right to receive necessary treatment would be abridged by refusing to provide a treatment that has not been approved by the FDA.  He also relies on some outdated information concerning practices under Medicaid and Medicare, as the Obama Administration withdrew the formal refusal to fund sex reassignment surgery under those programs, and there actually is a small but growing body of case law finding that these government programs must provide such treatment in appropriate cases, consistent with the Equal Protection Clause.  There is also a U.S. Tax Court decision finding that the costs of sex reassignment surgery are tax deductible, based on its conclusion that it is a medical necessary treatment within the meaning of the Internal Revenue Code’s medical deduction provisions.  (Law Notes reports below a new decision by the Iowa Supreme Court holding that refusing to provide such treatment under the state’s Medicaid program violated the Iowa civil rights law’s ban on gender identity discrimination. EerieAnna Good and Carol Beal v. Iowa Department of Human Services, 2019 WL 1086614, 2019 Iowa Sup. LEXIS 19 (March 8, 2019).)  But what Ho is looking for is a professional medical consensus, not a legal consensus, and that has not yet been achieved, in the court’s view.

Gibson can seek rehearing en banc or petition the Supreme Court for further review.  Failing that, however, the precedent is now set for the states of the 5th Circuit – Texas, Louisiana and Mississippi – as they were previously set for the 1st Circuit – Maine, New Hampshire, Massachusetts, and Rhode Island, and Puerto Rico – that state corrections systems can categorically refuse to provide gender confirmation surgery to transgender inmates.

California Federal Court Orders Sex-Reassignment Surgery “As Promptly As Possible”

Posted on: April 13th, 2015 by Art Leonard No Comments

For only the second time, a federal district judge has ordered state prison officials to provide sex-reassignment surgery (SRS) to a transgender inmate.  On April 2, U.S. District Judge Jon S. Tigar in San Francisco issued a preliminary injunction in Norsworthy v. Beard, 2015 WL 1500971 (N.D. Cal.), ordering state officials to provide the procedure for Michelle-Lael Norsworthy “as promptly as possible” in light of her medical condition and the recommendations of expert witnesses.

The first such order, issued by the federal district court in Boston on behalf of Michelle Kosilek, a Massachusetts life inmate, was reversed by the U.S. Court of Appeals for the 1st Circuit.  Judge Tigar acknowledged that ruling, but pointed out that it was not binding on the federal court in California and that there were many distinctions between the cases.

California Attorney General  Kamala D. Harris filed a motion with Judge Tigar on April 10, requesting that the preliminary injunction be stayed “pending review by the Ninth Circuit Court of Appeals.”  She argued that providing SRS in response to a preliminary injunction was effectively awarding a decision on the merits to Norsworthy before the state had any opportunity to prove at trial that the procedure was not “medically necessary” and thus not required to be performed under the 8th Amendment.  Harris stressed that the 9th Circuit, whose rulings are binding on the federal courts in California, has never ruled on the question whether prison inmates are entitled to have SRS.

Named Jeffrey Norsworthy at birth, the plaintiff was convicted of murder in the second degree with the use of a firearm on April 15, 1987.  Norsworthy was sentenced to seventeen years to life in prison, and has been eligible for parole since March 28, 1998.  According to the complaint, Norsworthy experienced early confusion about her gender identity that continued into adulthood, but did not openly identify as a transgender woman until after her conviction and incarceration, in the mid-1990s.  She was diagnosed with gender dysphoria by a prison physician in January 2000.  She soon began hormone therapy under the supervision of another prison physician, Dr. Lori Kohler, as a result of which she has become a “biological female,” a “pleasant looking woman, slender and coiffed with a pony tail,” who “walks the yard as a woman,” according to deposition testimony.

Unlike transgender inmates in most other states, Norsworthy, who now identifies as Michelle-Lael despite the refusal of prison authorities to allow her to seek a legal change of name, has been allowed to keep her hair long, to shower in private, and to purchase and possess brassieres, and she is housed in a “sensitive needs yard,” albeit in an all-male prison.  However, prison officials often refer to her using her legal male name.

Norsworthy has suffered several rapes in prison, and as a result of one prolonged gang rape, has become infected with hepatitis C, which has damaged her liver and created complications with her hormone therapy.  At one time, the complications were severe enough to require cessation of hormone treatment, although it was resumed at a lower level.  Also, her allergic reaction to certain hormone treatments has exacerbated her health problems, and despite her ability to present as a woman, her gender dysphoria continues strongly.

She despaired of the possibility of obtaining SRS until she heard about Michelle Kosilek’s victory in the federal district court in Boston.  Within weeks of that ruling, Norsworthy had initiated her attempt to obtain SRS, even before obtaining her psychologist’s diagnosis of the treatment as medically necessary for her.  After her psychologist, Dr. Reese, made this diagnosis and persisted in it, prison officials removed Norsworthy from his caseload and assigned another psychologist who was not supportive of Norsworthy’s quest.  Norsworthy acquired endorsements of her need for the procedure from two more medical experts, who offered deposition testimony in her support.  Dr. Reese, unfortunately, seems to have resigned his position, and Harris’s motion claims that Reese has disappeared from view.

In any event, having been turned down at every step by prison officials, Norsworthy exhausted her administrative remedies and filed suit in 2014, following her complaint with a motion for immediate relief, arguing that SRS was medical necessary not just because of her gender dysphoria but also because of the complicated treatment situation due to her hepatitis.  SRS would remove the internal source of testosterone, lessening the need for estrogen treatment and relieving the pressure on her liver.

Norsworthy’s case ran up against the strongly worded deposition testimony of Dr. Stephen Levine, who was an expert witness in the Kosilek trial and who has a long history of involvement with the issue of gender dysphoria, having played a role in the history of development of the standards of care now endorsed by the mainstream medical community.  Dr. Levine affirms that SRS is always an “elective” procedure, that it should not be undertaken until the individual has lived in society in the desired gender for a year – an experience he asserts cannot be obtained in prison – and that asserting a female gender identity may be a male prisoner’s lifestyle adaption to prison that he would come to regret after being released to civilian life with the opportunity for female companionship.

Although California’s written prison policies do not categorically forbid the underlying medical procedures associated with SRS, Judge Tigar found that there is an understanding in the prison system that SRS is not available for purposes of treating gender dysphoria, and the procedure has never been provided to an inmate despite numerous requests.  Thus, in examining the internal appeals process, the judge found that Norsworthy’s attempt to obtain SRS was denied because of this categorical policy, not because of an individualized medical determination.

The court found Norsworthy’s experts convincing and the state’s experts unconvincing in reviewing their deposition testimony in support and opposition to the motion for preliminary injunction.  He was particularly scathing about Dr. Levine’s deposition.   “The Court gives very little weight to the opinions of Dr. Levine, whose report misrepresents the Standards of Care; overwhelmingly relies on generalizations about gender dysphoric prisoners, rather than an individualized assessment of Norsworthy; contains illogical inferences; and admittedly includes references to a fabricated anecdote,” he wrote.  “To the extent that Levine’s apparent opinion that no inmate should ever receive SRS predetermined his conclusion with respect to Norsworthy, his conclusions are unhelpful in assessing whether she has established a serious medical need for SRS.”

The “fabricated anecdote” refers to Levine’s deposition testimony about an inmate who received SRS with poor results.  Since the record shows that no inmate in California has ever received SRS while incarcerated, the anecdote was obviously fictional, and Tigar asserts that Levine had acknowledged as much.

Applying the standards for issuing a preliminary injunction, Judge Tigar found that Norsworthy had demonstrated a high likelihood of success on the merits of her claim that she suffered a serious medical condition and that SRS was a medically necessary treatment for that condition. Furthermore, a de facto policy of denying SRS to all transgender inmates, regardless of their individual need, demonstrated deliberate indifference, which would violate the 8th Amendment right against cruel or unusual punishment.  Tigar concluded that requiring Norsworthy to forego this treatment while the case went through discovery and a trial and the inevitable appeal, which could stretch out over years, would inflict irreparable harm on the plaintiff because of the severe emotional pain and risks to her health shown on the record before the court.

Furthermore, he found that the equities on this motion tip “heavily” in Norsworthy’s favor.  “The Court takes seriously Defendants’ concern that a preliminary injunction providing SRS potentially deprives them of appellate review,” he wrote.  “However, Norsworthy has established that she is likely to succeed on the merits of her claims and that she is suffering from irreparable injury as a result of the deprivation of her Eighth Amendment rights.”   He concluded, as to the last part of the preliminary injunction test, that “there is no public interest in Norsworthy’s continued suffering during the pendency of this litigation.”

Judge Tigar noted that Norsworthy had also asserted an equal protection claim under the 14th Amendment, but in light of his resolution of the preliminary injunction motion on 8th Amendment grounds, there was no need to address the equal protection argument at this point in the case.

Judge Tigar’s opinion aroused immediate media and political controversy in California, with mounting pressure on Attorney General Harris to seek a delay of the SRS while pursuing an appeal.  Procedural rules required her to file her motion for a stay first with Judge Tigar.  He seemed to anticipate the arguments she would make in his decision, and if he denies the stay she would immediately seek relief from the 9th Circuit.

Her motion points out, among other things, that SRS involves an array of surgical and medical procedures that must be tailored to the needs of individual patients.  A generalized order to make SRS available “as promptly as possible” would present significant enforcement issues, not least as to the specific procedures that would be required to comply with the court’s order.  “The Court’s order permits an inmate to obtain any number of these procedures based solely on the assertion that the inmate has gender dysphoria and that the preferred surgery is necessary for the inmate to fully express their identified gender,” she argued.  This vastly oversimplified the argument of the plaintiff and the findings of the court.

The position of the state on this motion may be best summarized by the title of one section of their memorandum in support of the motion: “Sex-Reassignment Surgery Can Wait Because the Constant Care Norsworthy Receives From the Medical Department Minimizes the Risk of Any Substantial Threat to Her Health.”  Harris argues that Norsworthy has been incarcerated and living with gender dysphoria for almost two decades, and has not demonstrated that any recent development has suddenly made it urgent that she receive SRS.  Her lawsuit was filed promptly in reaction to the Kosilek ruling in Massachusetts, not as a result of some sudden medical emergency. Judge Tigar found the contrary, focusing on the deposition testimony of Norsworthy’s experts who opined that she urgently needed the procedures and had delayed seeking them only out of a sense of futility.

Norsworthy is represented by a team of lawyers from the San Francisco office of Morgan Lewis & Bockius LLP – Herman Joseph Hoying, Christopher J. Banks, Ian Thompson Long, and Megan Dy Lin —  as well as Oakland attorneys Ilona Margaret Turner, Jennifer Orthwein, and Shawn Thomas Meerkamper.

4th Circuit Revives Transgender Inmates Suit for Sex Reassignment Surgery

Posted on: January 29th, 2013 by Art Leonard No Comments

A unanimous panel of the United States Court of Appeals for the 4th Circuit, based in Richmond, ruled on January 28 that District Judge James C. Turk (Western District of Virginia) should not have dismissed an 8th Amendment complaint by Ophelia Azriel De’lonta, a Virginia state inmate who has been denied gender reassignment surgery by the Virginia Department of Corrections. The ruling may be the first by a federal appellate court to hold that an inmate may, under certain circumstances, have a right to gender reassignment surgery as a medically necessary procedure.
Named Michael A. Stokes at birth, De’lonta was convicted of bank robbery and sentenced to 73 years in prison. She began serving her sentence in 1983. De’lonta is, according to the opinion for the court of appeals by Circuit Judge Albert Diaz, “a pre-operative transsexual suffering from a diagnosed and severe form of a rare, medically recognized illness known as gender identity disorder (GID). GID is characterized by a feeling of being trapped in a body of the wrong gender. This belief has caused De’lonta to suffer ‘constant mental anguish’ and, on several occasions, has caused her to attempt to castrate herself in efforts to ‘perform [her] own makeshift sex reassignment surgery.’ De’lonta has described these ongoing urges to perform self-surgery as ‘overwhelming.’”

Here initial attempts to obtain any kind of treatment for her gender identity situation were rebuffed by Virginia prison authorities, leading her to file a lawsuit in 1999, claiming a violation of her right under the 8th Amendment to be free of cruel and unusual punishments. The Supreme Court has construed the 8th Amendment to require that prison authorities not be “deliberately indifferent” to the serious medical problem of inmates. That is, if they know of should know about a serious medical problem, they are supposed to provide treatment for it, although an inmate does not necessarily have a right to the treatment the inmate would prefer.
The federal district court dismissed De’lonta’s 1999 suit, saying that she had failed to state a valid 8th Amendment claim. The court of appeals reversed that ruling in 2003, finding that De’lonta’s need for treatment was adequately pled in the complaint. As a result, the Department of Corrections settled the case by agreeing to provide medical treatment. They consulted a GID specialist and provided De’lonta with psychological counseling and hormone treatment, and allowed her to grooms and dress as female. The treatments have continued since 2004, but De’lonta has found them inadequate, continuing to feel the overwhelming urge to castrate herself. Indeed, in a letter to prison officials in 2010, she said that this urge is even worse after her sessions with the psychologist, Lisa Lang, and De’lonta repeatedly requested sex reassignment surgery, as prescribed by the Harry Benjamin Standards of Care, published by the World Professional Association for Transgender Health.
The Department’s Chief Psychologist responded to De’lonta’s request by stating, “in regards to gender reassignment surgery, I would request that you continue to work with Ms. Lang in individual therapy at this time.” Despite her repeated requests, prison authorities did not call in a GID specialist to evaluate De’lonta concerning her request for gender reassignment.
De’lonta filed the present lawsuit in 2011, claiming that in light of prison authorities’ knowledge about her situation, their continued denial to consider sex reassignment surgery for her constitutes “deliberate indifference” to her “serious medical need.” District Judge Turk dismissed her complaint, agreeing with VDOC’s argument that because they were providing counseling and hormone therapy, they could not be said to exhibit deliberate indifference to De’lonta’s medical condition. Judge Turk concluded that because De’lonta had not been “approved” for sex reassignment surgery, she was “not entitled to it,” and that this was just a case of an inmate not getting her preferred treatment, thus insufficient to state a valid 8th Amendment claim.
The court of appeals rejected this analysis. Taking as conceded that De’lonta’s gender identity disordered is a serious medical condition, the court concluded that De’lonta’s allegations were sufficient to ground a claim of deliberate indifference.
“De’lonta alleges that, despite her repeated complaints to Appellees alerting them to the persistence of her symptoms and the inefficacy of her existing treatment, she has never been evaluated concerning her suitability for surgery. Instead, despite their knowledge that De’lonta’s therapy sessions with Psychologist Lang actually provoked her ‘overwhelming’ urges to self-castrate, VDOC’s medical staff’s only response to De’lonta’s requests for surgery was a ‘request that you continue to work with Ms. Lang in individual therapy at this time.’ These factual allegations, taken as true, state a plausible claim that Appellees ‘actually knew of and disregarded’ De’lonta’s serious medical need in contravention of the Eighth Amendment.” The court was actually quoting the earlier court of appeals ruling in favor of De’lonta that led to the earlier settlement.
Judge Diaz rejected VDOC’s argument that they were meeting their 8th Amendment obligations by continuing to provide counseling and hormone therapy, asserting that “just because Appellees have provided De’lonta with some treatment consistent with GID Standards of Care, it does not follow that they have necessarily provided her with constitutionally adequate treatment.” The court drew an analogy to a situation where the prison reacted to an inmate’s serious injury in a fall by prescribing a painkiller instead of considering surgery that would be the medically appropriate response to the injury. “Accordingly,” wrote Diaz, “although Appellees and the district court are correct that a prisoner does not enjoy a constitutional right to the treatment of his or her choice, the treatment a prison facility does provide must nevertheless be adequate to address the prisoner’s serious medical need.”
Similarly, the court rejected VDOC’s argument that De’lonta’s agreement to the settlement of her earlier lawsuit compelled the conclusion that the prison was not deliberately indifferent to her medical need.
The court was not ruling that De’lonta is entitled to sex reassignment surgery, but rather that she is entitled to pursue her 8th Amendment lawsuit, in which she will bear the burden of proving that the prison’s failure to consider her for the next step in treatment under the Standards of Treatment is inappropriate in the circumstances. Implicit in the court’s ruling, however, is that if a GID specialist were to determine that De’lonta needs sex reassignment surgery in light of her gender identity disorder, the prison would have to arrange to provide the procedure, otherwise it would be exhibiting deliberate indifference to her serious medical condition.

Bernadette Francoise Armand, of Victor M. Glasberg & Associates, Alexandria, Virginia, argued the appeal on behalf of De’lonta, with amicus support from the DC Trans Coalition and the national and Virginia ACLU.