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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.

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.