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9th Circuit Panel Orders Gender Confirmation Surgery for Transgender Inmate in Idaho

Posted on: August 28th, 2019 by Art Leonard No Comments

A three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled on August 23 that the Idaho Department of Corrections violated the 8th Amendment rights of Adree Edmo, a transgender inmate, when it denied her gender confirmation surgery.  The court’s opinion, issued collectively by the three judges as “per curiam,” provides such an extensive discussion of the medical and legal issues that it could serve as a textbook for other courts.

The ruling is a particularly big deal because it is the first such wide-ranging appellate ruling in the nation’s largest circuit by population, as the 9th Circuit includes California, Oregon, Washington, Alaska, Hawaii, Arizona, Nevada, Idaho and Montana.  Other circuit courts are divided over whether transgender inmates may have a right to complete their transition surgically while incarcerated.

The three judges on the panel, Circuit Judges M. Margaret McKeown and Ronald M. Gould, and U.S. District Judge Robert S. Lasnik of the Western District of Washington, were all appointed to the court in the late 1990s by President Bill Clinton.

The court’s ruling affirmed a May 2019 order by U.S. District Judge B. Lynn Winmill, also a Clinton appointee, who issued the ruling after an extensive trial process with several expert witnesses and numerous amicus briefs.

The plaintiff, Adree Edmo, was designated male at birth but has viewed herself as female since age 5 or 6, according to the hearing record.  Edmo pled guilty in 2012 to a charge of sexual abuse of a 15-year-old boy at a house party.  At that time, Edmo was 21.  It was about that time that she resolved an internal struggle about gender identity and began living as a woman.  By the time of the trial court’s evidentiary hearing in this case, Edmo was 30, and due to be released from prison in 2021.

Edmo first learned the term “gender dysphoria” and what was involved in gender transition around the time of her incarceration.  Shortly after coming into the custody of the Idaho Department of Corrections, she was diagnosed with “gender identity disorder,” the term that was used in the prior edition of the Diagnostic and Statistical Manual (DSM), the “Bible” for the psychiatric profession.  The latest edition of DSM changes the terminology to “gender dysphoria,” as being a more accurate characterization in the consensus view of the profession.  The diagnosing doctor was Dr. Scott Eliason, employed by Corizon, Inc., the medical contractor for the Idaho prison system.  A psychologist employed by Corizon, Dr. Claudia Lake, confirmed the diagnosis.

Edmo has changed her legal name and obtained a new birth certificate designating her as “female” to affirm her gender identity.  She has consistently tried to present as female throughout her incarceration, even though this has resulted in disciplinary measures as she continues to be housed in a male prison.  There is no dispute among the parties to this case, which include Corizon and the  Idaho Corrections Department, that Edmo suffers from gender dysphoria, which causes her to feel “depressed,” “disgusting,” “tormented” and “hopeless,” and this has moved her twice to attempt self-castration.

Although hormone therapy has helped to ameliorate the effects of her gender dysphoria, it has not completely alleviated the condition, and much of her distress focuses on her male genitalia, the removal of which is her dedicated goal, as reflected in her castration attempts.   The expert testimony indicated that removal of the male genitalia would make it possible to reduce the level of her hormone therapy, as her body would no longer be producing the male hormone testosterone, and reduced hormone therapy would reduce side effects and be beneficial to her long-term health.

The main cause of dispute is that the Corizon doctors, under direction of the Idaho Corrections Department, have imposed standards going beyond those specified by the World Professional Association for Transgender Health (WPATH) for determining when an individual with gender dysphoria is eligible for surgery.  The state’s case here relies mainly on Dr. Eliason’s testimony and the standards he sought to impose.  Judge Winmill concluded that those standards failed in certain respects to conform to the medical consensus as represented by the WPATH standards and that, as to one of Eliason’s standards, his diagnosis fails to give adequate weight to Edmo’s self-castration attempts.

Experts testifying at the district court hearing included two doctors extremely experienced with treating gender dysphoria, both of whom are active as WPATH members, who offered testimony that convinced Winmill that gender confirmation surgery is necessary for Edmo.  Winmill issued an injunction after the hearing ordering the state to provide the surgical procedure for Edmo, but the injunction was stayed while the state appealed to the 9th Circuit on an expedited schedule.

The appellate panel rejected all of the state’s objections to Judge Winmill’s ruling.  Under the Supreme Court’s 8th Amendment jurisprudence, a prison system will be found to violate the 8th Amendment if it displays deliberate indifference to an inmate’s serious medical condition by failing to provide necessary treatment.  A large amount of judgment based on the facts of the individual case goes into determining whether the prison’s failure to provide a particular procedure to a particular inmate violates the Constitution, and some courts have upheld refusal to provide surgery when medical experts disagree about the appropriate treatment for a prisoner’s particular medical condition, finding that a disagreement among experts bars the conclusion that the prison is being deliberately indifferent to the inmate’s medical needs.  The state, citing its own experts, pushed for this conclusion, but the court identified the state’s experts as underqualified and their views as “outliers” from the professional consensus.

In backing up Judge Winmill’s conclusion, the 9th Circuit panel made clear that they were ruling based on the facts of this individual case, and not endorsing a general rule that transgender inmates are always entitled to surgery.  They found that the evidence shows that not all people who identify as transgender suffer from gender dysphoria, and that the degree of intensity of gender dysphoria can range from mild to severe.  Many transgender people do not desire surgery even though they have a gender dysphoria diagnosis, and sometimes other medical conditions cut against performing the surgery for health and safety reasons.

A major point of contention in this case is the specification in the WPATH standards that surgery should not be performed until the individual has experienced living consistent with their gender identity for at least a year.  Dr. Eliason’s interpretation of this requirement focused on living in a non-institutional setting for at least a year, considering the prison setting as “artificial” and not like the setting the inmate would encounter upon release from prison.  According to this view, the only inmates entitled to surgery would be those who had lived consistent with their gender identity for at least a year before they were incarcerated.  This would categorically rule out surgery for those who were first diagnosed with gender dysphoria after incarceration, such as Edmo, even though identified as female for many years before the crime for which she pled guilty.

The experts who testified on her behalf persuasively argued that it was possible for a transgender inmate to fulfill that requirement in prison, and pointed out that the WPATH standards state that the experiential year can take place while incarcerated.  Also, the court noted that Edmo’s persistent attempts to present as female, even in the face of hostility from corrections personnel, since 2012 would more than fulfill this requirement, since there was medical documentation that she has been presented as female since 2012.

This new ruling may set up the issue for Supreme Court review, because it sharply conflicts with a ruling earlier this year by the U.S. Court of Appeals for the 5th Circuit, Gibson v. Collier, which ruled that gender confirmation surgery is never required under 8th Amendment standards.  The Gibson ruling, in turn, relied heavily on an earlier ruling by the U.S. Court of Appeals for the 1st Circuit, which held that the Massachusetts prison system did not have to provide surgery for Michelle Kosilek, a transgender inmate who had been sentenced to life without parole upon conviction of murdering her wife while presenting as male.  Kosilek went through years of litigation just to get hormone therapy, before then litigating for years for surgery. The 1st Circuit accepted the state’s testimony that hormone therapy was sufficient in her case and that in light of the nature of her offense, there would be enormous security problems in the prison system if she were to have surgery and then be transferred to a female prison.

The 4th Circuit has also ruled that a categorical rule against providing surgery for transgender inmates is unconstitutional, but that case did not involve an actual order that a prison system provide the surgery to a particular inmate.  This new 9th Circuit ruling sharpens the split with the 5th and 1st Circuits, raising the odds that a petition to the Supreme Court might be granted.  So far, the only Supreme Court ruling on the merits in a transgender case dates back several decades, when the Court ruled in a case involving a transgender inmate who was severely assaulted in prison that prison officials might be held to violate the 8th Amendment by failing to protect transgender inmates from serious injury while incarcerated.

In the course of its ruling, the court determined that Corizon, the health care contractor for the Idaho prisons, was not liable under the 8th Amendment.  Liability was focused on the Idaho Corrections Department itself and Dr. Eliason.

The court emphasized the urgency of providing surgery to Edmo, clearly signaling that it would not be receptive to requests for delay pending further appeal by the state.  As a practical matter, if the state cannot obtain an emergency stay, the surgery will go forward unless Idaho decides to do what California did in an earlier case where the 9th Circuit had refused to stay a district court’s order pending appeal: accelerate the inmate’s parole date to avoid having to provide the surgery!  Anticipating that this kind of ruling might come from the 9th Circuit in that earlier case, California revised its rules to drop its categorical ban on providing gender confirmation surgery to inmates, and has already provided the procedure to one inmate, the first known instance in which a state has actually provided the surgery.

Edmo is represented by a team of attorneys from California and Idaho law firms as well as the National Center for Lesbian Rights.  Attorneys from a wide variety of civil rights organizations represented the various amicus parties.  The struggle to obtain this decision and opinion was a very large team effort, resulting in an array of briefs that can be usefully deployed in future litigation in other circuits.

Transgender Woman Wins New Trial on Inheritance From Her Husband

Posted on: February 14th, 2014 by Art Leonard No Comments

A three-judge panel of the Texas Court of Appeals ruled on February 13 that Nikki Araguz, a transgender woman who is the surviving spouse of Texas firefighter Thomas Araguz, is entitled to a trial of the question whether her marriage with Thomas was valid. Thomas died without a will, and his mother and ex-wife (suing on behalf of his children) contend that the marriage was not valid and thus cannot provide the basis for an inheritance for Nikki. Estate of Thomas Trevino Araguz III, 2014 Tex. App. LEIS 1573 (Tex. App., 13th Dist.).

Born Justin Graham Purdue in California in 19775, Nikki Araguz grew up in the Houston area and self-identified as female from a very early age. Indeed, evidence related by Chief Justice Rogelio Valdez in the opinion for the court suggests that Araguz always dressed as female. At eighteen, Araguz was diagnosed as having gender dysphoria, and began treatment, including hormone therapy and living as a woman. When she was 21, she filed a petition in the Texas District Court for a name change to Nikki Paige Purdue, which was granted by the court in 1996. She then filed an application in California to amend her birth certificate to show her new name, which was granted. She used the new birth certificate when she obtained a driver’s license in Kansas identifying her as female, and then used that license to get a Texas driver’s license, also indicating she was female.

On August 19, 2008, Nikki and Thomas Araguz applied for a marriage license in Wharton County, Texas. The license identifies Nikki as “woman.” The wedding was held on August 23. At that time, Nikki had transitioned in all respects except one: she had not yet undergone sex reassignment surgery, a procedure for which she had been saving money all her adult life. In October 2008, a few months after her marriage, she had the procedure, which was performed in Texas by Dr. Marci Bowers.

On April 28, 2010, Thomas gave a deposition in a family court proceeding involving the custody of the children from his first marriage, in which he stated, under oath, that he did not know that Nikki had undergone genital reassignment surgery, or that Nikki was “formerly male” or had undergone any type of “gender surgery.” Thomas testified in the deposition that Nikki always represented herself as female before their marriage. In the current proceeding, Nikki alleges that she and Thomas had agreed to take the position that she was female from birth, but Thomas was fully aware of the facts when they were married.

Thomas died on July 3, 2010, without a will. Less than two weeks later, Nikki filed a petition in San Francisco, California, Superior Court, seeking a new California birth certificate specifically designating her as female, which was evidently a detail she had overlooked when a decade earlier she had applied for a birth certificate showing her new name. This was granted by the court and California issued a new birth certificate designating Nikki as “female” on August 30, 2010, almost two months after her husband died.

Under rules of intestate succession, a surviving wife is the principal heir of a man who does not leave a will. If there are surviving children, the estate is split between the widow and the children. If there is no surviving spouse, a surviving parent may inherit, and surviving children are legal heirs as well. In this case, Thomas’s mother, who otherwise would not inherit, filed a lawsuit seeking appointment as administrator of her son’s estate and asking the court to declare that his marriage to Nikki was a “void” same-sex marriage, barred by Texas law. Thomas’s ex-wife also filed suit on behalf of the two minor children, also arguing that the marriage with Nikki was void.

In response, Nikki sought to vindicate her claim to be a surviving spouse, arguing that she was a woman at the time of her marriage. In support of this claim, she presented an affidavit from Dr. Collier Cole, a gender identity expert, who asserted that Nikki would be recognized as a woman at the time she married.

Another fact that is not part of Nikki’s story is also relevant. In 1999, the Texas Court of Appeals ruled in Littleton v. Prange that a marriage between a transsexual woman and a man was void as a same-sex marriage, regardless whether the woman had fully transitioned before the marriage. The Littleton court insisted that one’s gender as identified at birth was fixed for purposes of the marriage law, because no medical or surgical procedure could alter one’s genetic makeup and somebody born male could not be provided with female reproductive capacity. In 2009, the Texas legislature amended the state’s Family Code to provide that “an original or certified copy of a court order relating to the applicant’s name change or sex change” could be “proof of identity and age” for purposes of getting a marriage license. Thus, an important question in this case is whether the 2009 amendment had overruled Littleton v. Prange, in effect authorizing marriages between transsexual women and men (or vice versa).

The trial judge in Wharton County had granted summary judgment to Thomas’s mother and ex-wife, and denied Nikki’s motion for summary judgment, evidently finding that Littleton was a controlling precedent and that, as she still had male genitals when she was married, this was a void marriage between two men.

The court of appeals disagreed. The court found that the 2009 amendment had actually overruled Littleton, making it possible for a transgender woman to marry a man by using a court order relating to a name change or sex change as “proof of identity.” This overruling took place after the marriage of Nikki and Thomas, but before Thomas’s death. This does not end the case by any means, because the parties hotly contest whether Nikki was a woman at any relevant time from the date of the marriage until the date of Thomas’s death. Nikki had not had gender reassignment surgery until after the marriage, and did not obtain a new birth certificate specifically designating her as female until after Thomas’s death. It seems clear from the facts that Thomas’s affidavit given in the custody proceeding was false, as it is unlikely that a man who married a woman who had male genitals at the time of the marriage and who did not undergo sex reassignment surgery until several months into the marriage could possibly be “unaware” that his spouse had previously been a man or had undergone a gender-related medical procedure.

The Texas legislature’s 2009 amendment does not provide any clarity or guidance by setting specific standards for determining when a court can give an order relating to a sex change, so a determination must be made, probably as part of further litigation in this case, whether a person with male genitals can be considered female for purposes of the marriage law, based on the court order granting a name change with the corroborating evidence of a birth certificate indicating the new name and a driver’s license designating the individual as female. Dr. Cole, the only expert witness in the case so far, testified by affidavit that the determination of gender does not depend on surgical alteration, the most important factors being that the individual had been diagnosed with gender dysphoria and had lived in the preferred sex for at least a year, during which hormone treatment was taking place. The plaintiffs in this case (the mother and the ex-wife) had not presented any expert witness to counter this testimony, but the court said that the undisputed evidence that Nikki still had male genitals at the time of the marriage was sufficient to place in issue what her sex was at that time, at least for purposes of a trial as to the validity of the marriage. Texas recognizes the concept of informal marriage, under which the marriage of Nikki and Thomas could be valid if Nikki was legally female at any time before Thomas’s death, even if she would not have been considered female at the time of the marriage ceremony.

The court stated that the concept of gender dysphoria was not a matter of common knowledge, or generally within the expected knowledge of typical jurors or judges, so it was necessary to consider expert testimony in determining the answers to the factual questions in this case. Consequently, it was error for the trial judge to grant summary judgment, especially when the only expert testimony in the record, from Dr. Cole, supported Nikki’s claim that she was female when she married Thomas. It may be that as this case is litigated the Texas courts will give legal effect to the Standards of Care recognized by the World Professional Association for Transgender Health, under which Nikki would be deemed female as of the date of her wedding. Clearly, this court finds that the 2009 statutory amendment overruled Littleton, so it is possible for somebody who has been through a “sex change” — whatever that involves — to marry consistent with their gender identity.

Other lawsuits are pending in Texas challenging the state’s ban on same-sex marriage. Were the ban to be invalidated, same-sex marriages would not be void in Texas, and it would be clear that transgender people can marry any willing partner, regardless of sex, who is interested in marrying them and not otherwise disqualified by virtue of age, disability, or close legal relationship. But until marriage equality becomes a reality in Texas, this case may serve to provide the basis for transgender people to marry the partner of their choice.