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Death of Justice Ruth Bader Ginsburg Removes a Staunch Advocate of LGBTQ Rights from the Supreme Court

Posted on: September 27th, 2020 by Art Leonard No Comments

Justice Ruth Bader Ginsburg died on September 18, 2020, age 87, having served on the Supreme Court of the United States since August 10, 1993.  Throughout her tenure on the Court she had been a staunch supporter of LGBTQ rights, joining all of the pro-LGBTQ rights majorities and dissenting from all of the adverse decisions except for two in which the Court was unanimous.

In 1993, she joined Justice David Souter’s opinion for the Court in Farmer v. Brennan, 511 U.S. 825 (1994), in which the Court ruled that a transgender inmate who was repeatedly subjected to sexual assault in prison could hold prison officials liable for damages under the 8th Amendment by showing that they knew the inmate faced “a substantial risk of serious harm” and the officials “disregard[ed] that risk by failing to take reasonable measures to abate it.”  Although three members of the Court wrote concurring opinions, Justice Ginsburg did not write in this case, then a new member of the Court.

In 1995, Justice Ginsburg joined the unanimous Court in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), holding that the Boston St. Patrick’s Day Parade was an expressive association whose organizers had a right to exclude from their parade an organization whose message they did not want to include.  While holding that Massachusetts could not enforce its public accommodations law banning sexual orientation discrimination against the parade organizers, the Court affirmed that it was within the legislative and constitutional authority of the state to generally ban public accommodations from discrimination based on sexual orientation.  Justice Souter wrote for the Court.

In 1996, Justice Ginsburg joined the Court’s opinion by Justice Anthony M. Kennedy, Jr., in Romer v. Evans, 517 U.S. 620 (1996), holding that Colorado violated the Equal Protection Clause of the 14th Amendment by enacting a state constitutional amendment that prohibited the state or any of its subdivisions from protecting “homosexuals” from discrimination.  Justice Kennedy wrote that the state could not treat gay people as “strangers from the law” or categorically single gay people out for exclusion based on animus against homosexuality. The Court’s vote was 6-3, with Chief Justice William Rehnquist and Justice Clarence Thomas joining Justice Antonin Scalia’s dissenting opinion.

Justice Ginsburg joined Justice Scalia’s opinion for the unanimous Court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), which embraced a textualist interpretation of Title VII of the Civil Rights Act of 1964, reversing a decision by the 5th Circuit Court of Appeals that a man who was subjected to severe and pervasive harassment of a sexual nature by male co-workers in an all-male workplace could not bring a hostile work environment sex discrimination claim under that statute.  To the contrary, ruled the Court, nothing in the language of the statute suggested that so-called “same-sex harassment” was not actionable, so long as the plaintiff showed that he was harassed because of his sex.  Justice Scalia memorably wrote that even though “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII, … statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”  This mode of interpretation provided a foundation for the Court’s ruling in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the last LGBTQ rights victory in which Justice Ginsburg participated.

In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court ruled 5-4 that the Boy Scouts of America enjoyed a 1st Amendment right to exclude gay men from serving as adult leaders of their Boy Scout troops.  Chief Justice Rehnquist wrote for the Court in an opinion that drew upon Hurley as precedent.  Justice Ginsburg joined two dissenting opinions, one by Justice John Paul Stevens and the other by Justice David Souter.

Justice Ginsburg was part of the 6-3 majority that voted to hold that a Texas law penalizing “homosexual conduct” was unconstitutional as applied to private, consensual adult sexual activity.  Lawrence v. Texas, 539 U.S. 558 (2003).  Ginsburg joined the opinion for the Court by Justice Kennedy, which based its ruling on the Due Process Clause of the 14th Amendment, and overruled Bowers v. Hardwick, 478 U.S. 186 (1986), which had rejected a Due Process challenge to Georgia’s sodomy law.  Justice Sandra Day O’Connor concurred in the judgement but would not vote to overrule Bowers (a case in which she had joined the Court’s opinion), rather premising her vote on Equal Protection.  Scalia dissented, in any opinion joined by Rehnquist and Thomas.

In 2006, Justice Ginsburg joined the unanimous opinion by Chief Justice John Roberts in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), rejecting a 1st Amendment claim by a group of law schools and law faculty members that their institutions should have a right to exclude military recruiters because of the Defense Department’s policy excluding gay people, among others, from the service.  Roberts premised the Court’s ruling on Congress’s power under Article I of the Constitution to “raise and support armies,” holding that Congress could constitutionally support this function by denying federal financial assistance to educational institutions that denied military recruiters the same access that they accorded to other recruiters under the so-called Solomon Amendment that Congress regularly attached to Defense appropriations bills.

Justice Ginsburg wrote for the Court in 2010 in Christian Legal Society v.  Martinez, 561 U.S. 661 (2010), rejecting a claim by students of the Christian Legal Society chapter at Hastings Law School that the school’s denial of official status to CLS because of its exclusionary membership policy violated the 1st Amendment.  The Court divided 5-4, with Justices Kennedy and Stevens issuing concurring opinions, from which it was reasonable to infer that Justice Ginsburg assembled her majority by seizing upon a factual stipulation entered at the district court that the school’s policy required that recognized student organizations allow all students to join, even though the wording of the policy prohibited discrimination based on enumerated characteristics, including sexual orientation, which was the “sticking point” with CLS.  Writing in dissent, Justice Samuel Alito angrily charged the court with failing to address the explicit policy that the school had adopted and then relied upon to withdraw recognition from CLS.  He argued that the Court was enabling viewpoint discrimination by the public law school.  Roberts, Scalia and Thomas joined the dissent.

In Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014), dissenting, Justice Ginsburg rejected the Court’s holding that commercial businesses could assert claims to being exempt from coverage requirements of contraceptives under the Affordable Care Act as an interpretation of the Religious Freedom Restoration Act.  In his opinion for the 5-4 majority, Justice Alito observed (in dicta) that an employer could not rely on religious freedom claims to defend against a race discrimination claim under Title VII.  In her dissent, Justice Ginsburg noted religious objections to homosexuality by some employers and questioned whether the Court would find that employers would have a right under RFRA statutes (patterned on the federal RFRA) to discriminate on that basis.  She specifically noted the case of Elane Photography v. Willock, in which the New Mexico Supreme Court had rejected a state RFRA defense by a wedding photographer being sued under the state’s public accommodations law, and in which the Supreme Court had recently denied a petition for certiorari, as well as a state law case from Minnesota involving a health club owned by “born-again” Christians who denied membership to gay people in violation of a local anti-discrimination law.

Justice Ginsburg joined opinions for the Court by Justice Kennedy in United States v. Windsor, 570 U.S. 744 (2013) and Obergefell v. Hodges, 576 U.S. 644 (2015), both 5-4 rulings, in which the Court invoked concepts of Due Process and Equal Protection to invalidate Section 3 of the federal Defense of Marriage Act (which prohibited federal recognition of same-sex marriages recognized by some states at that time), and to strike down state constitutional and statutory provisions denying same-sex couples the right to marry or recognition of same-sex marriages performed in other states.  (As senior justice in the majority in both cases, Justice Kennedy assigned himself the opinions for the Court.)  As they were 5-4 decisions, Justice Ginsburg’s vote was necessary to the outcome in both cases.  Between the decision in Windsor and the decision in Obergefell, Justice Ginsburg became the first sitting member of the Court to officiate at a same-sex wedding ceremony, an action that led some to call for her recusal in Obergefell.

In Hollingsworth v. Perry, 570 U.S. 693 (2013), Justice Ginsburg joined Chief Justice Roberts’ opinion holding that the proponents of California Proposition 8, which had amended the state’s constitution to define marriage solely as the union of a man and a woman, lacked Article III standing to appeal the district court’s decision holding that measure unconstitutional, where the state had declined to appeal that ruling.  The Court’s opinion expressed no view as to the constitutionality of Proposition 8, focusing entirely on the question of standing, but its effect was to allow same-sex couples to resume marrying in California, which they had not been able to do from the effective date of Prop 8’s passage in November 2008.  Of course, Californian same-sex couples who subsequently married, as well as those who had married in the five-month period prior to the passage of Prop 8, benefited from federal recognition of their marriages under U.S. v. Windsor, which was issued by the Court on the same day as Hollingsworth.  Justice Kennedy dissented, in an opinion joined by Thomas, Alito and Justice Sonia Sotomayor.

In two subsequent per curiam rulings, Justice Ginsburg, who did not dissent, presumably joined in the Court’s disposition of the cases:

In 2016, the Court ruled per curiam in V.L. v. E.L., 136 S. Ct. 1017 (2016), that the courts of one state must accord full faith and credit to an adoption approved by the courts of another state where the court that approved the adoption had general jurisdiction over the subject of adoptions.  The case involved a second-parent adoption by the same-sex partner of the child’s birth mother in Georgia, where they were temporarily residing.  They moved back to Alabama and in a subsequent split-up, the birth mother urged Alabama courts to refuse to recognize the adoption, arguing that had it been appealed, the appellate courts in Georgia would have found it invalid.  There was no dissent from the U.S. Supreme Court per curiam, which asserted the Full Faith and Credit Clause requires state courts to recognize decisions by courts of other states who had jurisdiction to render those decisions under the laws of their states.

In 2017, the Court ruled per curiam in Pavan v. Smith, 137 S. Ct. 2075 (2017), that the state of Arkansas’s refusal to apply the spousal presumption to name the wife of a woman who gave birth to a child as a parent of the child on its birth certificate violated the 14th Amendment as construed by the Supreme Court in Obergefell v. Hodges.  In a dissenting opinion joined by Justices Alito and Thomas, Justice Neil Gorsuch argued that the decision in Obergefell did not necessarily decide this case so the Court should have called for merits briefing and oral argument rather than deciding the case based on the cert documents.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), Justice Ginsburg wrote a dissent, joined by Justice Sotomayor, rejecting the Court’s decision to reverse the Colorado Court of Appeals and the state’s Civil Rights Commission in their ruling that a bakery violated the state’s civil rights law by refusing to make a wedding cake for a same-sex couple.  Justice Kennedy’s opinion for the Court in the 7-2 ruling was premised on the majority’s conclusion that the baker, who was relying on 1st Amendment free exercise and free speech arguments, had been denied a “neutral forum” for the decision of his case due to hostility to his religious views arguably expressed by two members of the Commission during the hearing process.  Justice Ginsburg observed in dissent that there was no evidence of a lack of neutrality on the part of the Colorado Court of Appeals, and she agreed with that court’s conclusion that application of the public accommodations law to the bakery did not violate the 1st Amendment.  In his opinion for the Court, Justice Kennedy noted Supreme Court precedent that generally private actors, such as businesses, do not have a 1st Amendment Free Exercise right to fail to comply with the requirements of state laws of general application that do not specifically target religious practices or beliefs.

Finally, in Bostock v. Clayton County, Georgia,140 S. Ct. 1731 (2020), noted above, Justice Ginsburg joined Justice Gorsuch’s opinion for the Court holding that discrimination in employment because of sexual orientation or transgender status is, at least in part, discrimination because of sex and thus actionable under Title VII of the Civil Rights Act of 1964.  The vote in this case was 6-3, with dissenting opinions by Justice Alito, joined by Thomas, and by Justice Brett Kavanaugh.  In his dissent, Justice Alito asserted that the reasoning of the Court’s opinion would affect the interpretation of more than 100 provisions of federal law, which he listed in an appendix to his opinion.  The immediate effect of the opinion was to ratify the position of the Equal Employment Opportunity Commission, which had earlier recognized its jurisdiction over such claims, and to extend protection against discrimination on these grounds to employees in the majority of states where state or local laws did not provide such protection, although private sector protection under Title VII is limited to employers with at least 15 employees, thus missing the majority of private sector employers.  This decision, which consolidated appeals from three circuits, presented the Court’s first merits ruling on a transgender rights case since Farmer v. Brennan (1993), noted above, although of course the marriage equality rulings, sub silentio, effectively overruled decisions by several state courts refusing to recognize marriages involving a transgender spouse that were challenged is being invalid “same-sex” marriages.

In her career prior to her Supreme Court and D.C. Circuit Court of Appeals service, Justice Ginsburg taught at Rutgers and Columbia Law Schools and was the founder and first director of the American Civil Liberties Union’s Women’s Rights Project.  Litigation by that Project under her direction persuaded the Supreme Court in a series of important rulings beginning with Reed v. Reed in 1971 to recognize sex discrimination claims under the Equal Protection Clause, laying the doctrinal foundation for equal protection claims by LGBT litigants in later years.  Although she was seen as a moderate on many issues at the time of her appointment to the Court by President Bill Clinton, she went on to become a leader of the Court’s progressive wing and in the 21st century a frequent and very pointed dissenter as the center of gravity of the Court moved in a more conservative direction with the appointment of justices by George W. Bush and Donald J. Trump.

Justice Ginsburg’s death left a Supreme Court vacancy less than two months before national elections for President and Congress.  Senate Republicans, who had blocked consideration of President Barack Obama’s nomination of D.C. Circuit Chief Judge Merrick Garland after Justice Scalia died in February 2016, arguing that a Supreme Court appointment should not be made in a presidential election year, now claimed that this was no bar to approving a replacement because the President and the incumbent Senate majority were of the same party.  President Trump announced his nomination of Judge Amy Coney Barrett of the 7th Circuit Court of Appeals on September 26.  Based on her record, if she is confirmed Judge Barrett would likely move the Court sharply to the right, with a 6-3 Republican-appointed conservative majority for the first time in generations, leading to discussion among Democrats about the possibility of expanding the Court if former Vice-President Joseph R. Biden is elected president and Democrats win a majority in the Senate.  Such a plan would require abolishing the filibuster rule by which a minority in the Senate can block a floor vote on legislation, unless the Republicans retained fewer than 40 seats as a result of the election and thus would be unable to block legislation under the filibuster rule without successfully recruiting some Democrats to join them.  Since the filibuster rule was repealed by a bare majority of the Senate in 2017 in order to confirm Justice Gorsuch in the face of a potential Democratic filibuster, it appeared likely at the time Trump announced his nomination that Judge Barrett will be confirmed, but the timing of a floor vote had not been announced by the end of September.

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.