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.