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8th Circuit Greenlights Anti-Trans Discrimination by Catholic Health Care Providers and Employers

Posted on: December 14th, 2022 by Art Leonard No Comments

A three-judge panel of the 8th Circuit Court of Appeals issued a decision on December 9 upholding an injunction barring the U.S. Department of Health and Human Services (HHS) and the Equal Employment Opportunity Commission (EEOC) from enforcing against Catholic institutions a rule that forbids health care providers from denying gender-affirming care to transgender individuals and that requires employers to cover gender-affirming care in their employee benefit plans.


The ruling upheld an injunction issued on January 19, 2021, by Chief U.S. District Judge Peter D. Welte of the District of North Dakota.  Judge Welte was ruling in a lawsuit brought by The Religious Sisters of Mercy (RSM), RSM’s health care center, and various other North Dakota plaintiffs, and by Catholic Charities of North Dakota, the Catholic Medical Association, and the State of North Dakota.  The injunction protects the plaintiffs and their members from any enforcement action by HHS or the EEOC, but does not directly affect individuals who bring lawsuits for denial of care or coverage against the plaintiffs.  The court’s ruling is based on its interpretation of the Religious Freedom Restoration Act (RFRA), which provides a defense against the government’s enforcement of federal laws that substantially burden free exercise of religion.


Although the injunctive relief appears to be focused primarily on North Dakota, the co-plaintiff Catholic Medical Association’s members include Catholic hospitals and health-care providers in thousands of places around the country, so the practical effect may be to allow all of them to deny provision of gender-affirming care or its financing.


The litigation dates back to the final years of the Obama Administration, when HHS issued a Rule interpreting the anti-discrimination provision of the Affordable Care Act (ACA), Section 1557, to forbid discrimination by health care entities receiving federal money from discrimination on the basis of sexual stereotypes or gender identity, after the EEOC had interpreted Title VII of the Civil Rights Act of 1964 to ban employment discrimination based on sexual stereotyping or gender identity.  Courts have generally follow interpretations of Title VII when they are interpreting Title IX of the Education Amendments of 1972, which forbids educational institutions from discrimination because of sex, and which is incorporated by reference into Section 1557 of the ACA.


The Obama Administration Rule was issued in 2016, shortly before Donald Trump was elected.  The Trump Administration advised courts where litigation was then pending challenging the 2016 rule that it would not enforce the contested provisions while it considered replacing them.  Litigation in other parts of the country resulted in injunctions being issued by some courts against the Obama Administration Rule, but when the Trump Administration issued its new rule in June 2020, deleting protection against gender identity discrimination, some other federal courts issued injunctions against that rule.  In the meantime, individuals suing for discrimination by employers (including states that provide health insurance for their employees) won significant victories under Section 1557, which the Supreme Court has interpreted to provide a “private right of action.” The overall situation regarding these rules and their application is thus quite messy.


What is at stake for the plaintiffs in this and several similar cases brought  by religious plaintiffs pending in other parts of the country is the possibility of being disqualified from participating in the Medicaid and Medicare programs, being fined, or being subjected to court orders in lawsuits by the government, if a court finds that they have violated the ACA’s antidiscrimination requirements.


The government argued that the lawsuit in North Dakota, which was aimed at attacking enforcement of the 2016 Rule, should be dismissed as moot, because the 2020 Trump Administration Rule revoked the 2016 rule.  But the plaintiffs prevailed on their argument that they were attacking the interpretation of Section 1557 and Title VII – as to which the EEOC during the Trump Administration did not back away from its interpretation of Title VII to ban gender identity discrimination.  The EEOC’s position was vindicated around the time the Trump Administration issued its 2020 Rule when the Supreme Court ruled in Bostock v. Clayton County that Title VII encompasses discrimination because of “transgender status.”


The Supreme Court ruling was followed five months later by the election of Joe Biden, who then took office in January 2021 and directed his administration to follow the Bostock decision in enforcing federal sex discrimination laws.  HHS sent notifications to health care entities covered by the ACA later in 2021, announcing that it was interpreting Section 1557 to cover gender identity claims, and that refusals to perform gender affirming care to transgender individuals could result in liability under that statute.


The Obama, Trump, and Biden Administration interpretations of Section 1557 also differed over whether the exemption of religious educational institutions from compliance with Title IX should be considered as part of Title IX’s inclusion by reference in Section 1557.  As one would expect, during the Obama Administration HHS said that the religious educational institution exemption did not apply to Section 1557, but the Trump Administration took the contrary view, and some courts ruling on challenges to the gender identity rule have sided with the Trump Administration on this.


In the Bostock decision, Justice Neil Gorsuch wrote for the Court that it was ruling only on the question whether discrimination because of sexual orientation or transgender status violates Title VII, and not on how to interpret other federal statutes. The three cases joined in appeal in Bostock v. Clayton County all involved plaintiffs who claimed that they were discharged because of their sexual orientation or gender identity, and the Court ruled that they could sue under Title VII, reversing contrary rulings by the 11th Circuit (sexual orientation) and affirming rulings by the 2nd Circuit (sexual orientation) and the 6th Circuit (gender identity).  The Trump Administration sought to give Bostock a narrow interpretation and argued that it did not affect their new Rule interpreting Section 1557 of the ACA.  Justice Gorsuch also referred to the Religious Freedom Restoration Act (RFRA) as a “super statute” that could be relevant to religious freedom claims asserted by employers in Title VII cases.


This past summer, HHS published new proposed regulations that would basically restore and extend the Obama Administration’s 2016 regulations and make clear that gender identity discrimination is forbidden under the ACA and that refusal of health care providers and insurers to provide and cover such care violates Section 1557.


The case of Religious Sisters of Mercy v. Xavier Becerra (Secretary of HHS), now focuses on whether the plaintiffs are protected by RFRA from any enforcement action by HHS or the EEOC.  The district judge answered that question affirmatively in 2021, based on the guidelines and notifications sent out by HHS stating that they would enforce the prohibition on gender identity discrimination relying on the reasoning of the Bostock case.  Although HHS and EEOC have not yet actively pursued Catholic hospitals or other Catholic institutions, the plaintiffs persuaded the district court, and ultimately the court of appeals, that the threat of enforcement was sufficient to give the plaintiffs standing to bring this lawsuit and seek injunctive relief.


Most of the December 9 opinion by Chief Judge Lavenski Smith of the 8th Circuit is focused on the issue of standing.  The court accepts that the plaintiffs have a good defense against any enforcement action by virtue of RFRA, which places the burden on the government to show that it has a compelling interest in enforcing a challenged law that substantially burdens free exercise of religion, and that enforcing the law is the least restrictive alternative to achieving that interest.  Smith’s opinion supports Judge Welte’s contention that if the government has a compelling interest in making sure that transgender people can get gender-affirming care, it can achieve that without forcing Catholic institutions to violate their religious beliefs by compelling them to perform the procedures or finance them.


Chief Judge Welte was appointed by President Donald J. Trump.  Chief Judge Smith was appointed by President George W. Bush.  The other judges on the three judge panel are Judge Raymond Grueder, also appointed by Bush, and Judge Jonathan Kobes, a Trump appointee.  The 8th Circuit Court of Appeals is dominated by Republican appointees – ten of the eleven active judges on the court.

Trump Alumni Group Engineers Challenge to Bostock Application Outside of Title VII

Posted on: May 2nd, 2022 by Art Leonard No Comments

Shortly after the end of Donald Trump’s Administration, a group of his top officials formed a new organization intended to challenge attempts by the Biden Administration to change Trump’s policies.  With Stephen Miller, White House counselor and the evil genius behind many of Trump’s policies, as its president and board chair, America First Legal Foundation boasts as board members former Chief of Staff Mark Meadows, former Acting Attorney General Matthew Whitaker, and former Director of the Office of Management and Budget Russ Vought.  Co-founder with Miller is Gene Hamilton, former senior counselor to the Secretary of Homeland Security and former counselor to the Attorneys General in the Trump Administration.  Not surprisingly, finding ways to limit the impact of the Supreme Court’s ruling in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), is high on their list of priorities.  In Bostock, the Supreme Court held that sexual orientation and gender identity discrimination claims came within the sphere of prohibited sex discrimination under Title VII of the Civil Rights Act of 1964.  Justice Neil Gorsuch, writing for a 6-3 majority, purported to use “textual” analysis to reach this result based on the “original meaning” of the language used by Congress in 1964, which, according to Gorsuch, would be “biological sex.”

America First’s litigation vehicle for this project is Neese v. Becerra, 2022 WL 1265925, 2022 U.S. Dist. LEXIS 75847 (N.D. Tex., April 26, 2022).  U.S. District Judge Matthew J. Kacsmaryk denied the government’s motion to dismiss this case on April 26.  The suit targets the extension of Bostock’s reasoning to Title IX of the Education Amendments of 1972 and Section 1557 of the Affordable Care Act.

This case is an audacious example of overt forum-shopping.  The suit was filed in the U.S. District Court in Amarillo, Texas, a courthouse within the Northern District of Texas.  There is only one district judge assigned to that courthouse — Judge Kacsmaryk – so any case filed there goes directly to him.  They could not have picked a better judge for their case.  Kacsmaryk was among the early Trump judicial nominees, a Federalist Society member and former deputy general counsel of First Liberty Institute, a litigation group that pushes for the broadest possible interpretation of religious freedom as against government regulations.  LGBT groups protested his nomination, pointing to his statements that homosexuality as “disordered,” and that transgender people are delusional and suffering a mental disorder.  (As a member of the Red Mass Committee of the Roman Catholic Diocese of Fort Worth, his use of the term “disordered” is not surprising, given the use of this term by the Catholic Church to describe homosexuality.)  Despite the iron grip on judicial nominations by then-Majority Leader Mitch McConnell and then-Judiciary Committee Chair Chuck Grassley in the Senate, it took three tries for Trump to get this one through.  The 2017 nomination died at the end of session; Trump renominated in 2018, but that died at the end of session; Trump renominated in 2019.  This time, Kacsmaryk passed the Judiciary Committee and the Senate floor on party-line votes.  He’s the judge who enjoined the Biden Administration’s attempt to modify southern border control policies without going through a complete Administrative Procedure Act cycle.

The lawsuit was filed last year on behalf of three doctors, said to practice in Texas and California, but the judge’s opinion does not specify whether any of them practices within the geographical scope of the district court in Amarillo.  No matter, as jurisdiction to sue the federal government lies in every federal district court.  They claim fear of being sued or prosecuted for discrimination under Section 1557 because of their approach to dealing with transgender patients as the basis of their standing to sue.

Although one would expect a judge with Kacsmaryk’s background to be challenged with a recusal motion, or even to voluntarily recuse in an LGBT case given the controversy surrounding his appointment, there is not a whiff of that in the opinion.  The Justice Department moved to dismiss on two grounds: standing of the plaintiffs, and failure to state a claim in light of Bostock.  The essence of plaintiffs’ case is arguing that Bostock does not apply to Title IX and Section 1557, so the Biden Administration’s view (expressed in the President’s first executive order issued in January 2017 and a subsequent Notification sent to health care providers and insurers by HHS) is contrary to law.

As to standing, the plaintiffs allege that they have all had transgender plaintiffs, including minors (the main focus of their discussion), and that they have provided gender-affirming care to some when they felt it justified, but that they believe gender-affirming care is not appropriate for all minors who identify as transgender, that surgical alteration is never justified for minors, and that they should be free to treat their patients consistent with their patients’ “biological sex” and the doctors’ ethical views.  The Notification that HHS sent to health care providers early in the Biden Administration advised that the agency would apply Bostock’s reasoning to hold that Section 1557 of the Affordable Care Act, whose prohibited grounds of discrimination are cross-referenced from other federal laws including Title IX, applies to claims of discrimination because of sexual orientation or gender identity, and that HHS would enforce the statute accordingly.  This was directly contrary to the interpretation published by the Trump Administration as recently as January 2021, shortly before the transfer of office to Biden. The plaintiffs described various scenarios in which they believe that the treatments they were bound to provide or to deny based on their professional ethics would place them in danger of lawsuits by patients and enforcement by HHS under Section 1557.  Judge Kacsmaryk decided this was sufficient to give them standing to challenge the interpretation.  They are seeking declaratory and injunctive relief at this point.  None of them have been sued or investigated by HHS on this issue.

As to failure to state a claim, plaintiffs disputed that Bostock’s reasoning was applicable to Title IX and Section 1557 (although several other federal courts since June 2020 have found the reasoning applicable).  They note that the 5th Circuit has yet to issue a controlling precedent on this, and the Supreme Court has not taken up the question.  The judge decided that as a “pure question of law” this was an open issue, and that plaintiffs’ allegations were sufficient to put it in play.

In particular, the judge zeroed in on differences in language and structure between Title VII and Title IX.  Title VII, an employment discrimination statute, was construed in Bostock to impose a “but-for” test of intent for disparate treatment employment discrimination claims.  Judge Neil Gorsuch’s opinion for the Court reasoned that it was impossible for an employer to discriminate against an applicant or employee “because of” their sexual orientation or gender identity without discrimination “because of” their sex, using the language of the statute.  Furthermore, Title VII has been construed – a construction bolstered by Congress in the Civil Rights Restoration Act of 1991 – to apply so long as a forbidden ground of discrimination, such as sex, was a factor in a personnel decision, albeit just a contributing one.

By contrast, Title IX, adopted a few years after Title VII, prohibits discrimination by educational institutions that receive federal money “on the basis of sex.”  Plaintiffs argue that this is a different standard from that imposed by Title VII, and point to various provisions of Title IX that at least by implication would suggest a biological definition of sex and a binary treatment of sex, including a provision of the Title IX regulations (which is frequently invoked by defendant school districts in cases involving restroom and locker room access by transgender students) that authorize separate facilities for boys and girls.  Their argument is that Gorsuch’s reasoning in Title VII is peculiar to Title VII and the workplace issues to which it applies, and is not transferable to other contexts, such as schools or health care providers.  This argument, found the judge, puts the interpretive issue in play, so he denies the motion to dismiss for failure to state a claim.

As noted above, this case is clearly a set-up, filed in Amarillo specifically to present it to Judge Kacsmaryk, noting the strong rightward tilt of the 5th Circuit, where Republican appointees among active judges outnumber Democratic appointees by 12-5 (including 6 Trump appointees), and the plaintiffs’ clear aim is to get this up to the Supreme Court’s 6-3 conservative majority to get a “definitive” ruling that Bostock does not apply to Title IX (and by extension to the ACA Section 1557).  Civil rights enforcers in the Department of Education and the Department of Health and Human Services are already involved in investigating and pursuing claims in several courts.  The Supreme Court has already declined opportunities to address the question, but a 5th Circuit ruling along the lines proposed by America First in this lawsuit would create a circuit split that would prove most enticing to at least four and possibly more members of the court.

Counsel for plaintiffs from America First Legal Foundation is Gene Hamilton, with local counsel in Amarillo from Sprouse Shrader Smith PLLC, and Jonathan F. Mitchell of Austin.  Lead attorney from the Civil Division of the Justice Department is Jeremy S. B. Newman, with Brian Walters Stoltz from the U.S. Attorney’s Office in Dallas and Jordan Landum Von Bokern from the Justice Department in Washington.

This case bears close watching. A “nationwide” injunction from Judge Kacsmaryk would seem likely, if his analysis on the motion to dismiss is any indication, and could throw a wrench into ongoing enforcement activity, not only by HHS and DOE, but by other federal agencies with sex discrimination jurisdiction.

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.

Federal Judge Refuses to Dismiss Michigan Transgender ID Case

Posted on: November 17th, 2015 by Art Leonard No Comments

A federal judge has refused to dismiss a claim by six transgender Michiganders that a state policy governing changes of sex designation on driver’s licenses and personal identification cards violates their constitutional privacy rights.  The November 16 ruling in Love v. Johnson, 2015 U.S. Dist. LEXIS 154338, 2015 WL 7180471 (E.D. Mich), by Senior U.S. District Judge Nancy G. Edmunds, finds that transgender people have a fundamental right of privacy under the Due Process Clause of the 14th Amendment regarding their gender identity, which right appears to be heavily burdened by the state policy.

In 2011, Michigan Secretary of State Ruth Johnson adopted the following policy:  “An applicant may request to change the sex on their driver license or personal ID card.  The individual must provide a certified birth certificate showing the sex of the applicant.  A birth certificate is the only document accepted as proof to change an individual’s sex.  A U.S. passport cannot be accepted as proof of a sex change.”

According to the plaintiffs, this policy makes it very difficult for many transgender people to obtain such a change.  For one thing, people born in a state that refuses to issue replacement birth certificates for transgender individuals are stuck; they can never get an appropriate state government ID in Michigan.  (Such an ID is required, among other things, for voting.)  For another, people born in states that require gender reassignment surgery as a prerequisite may be stuck as well, since such surgery may not be available to them for financial or other reasons.  Indeed, that is the case in Michigan, which requires people to undergo sex-reassignment surgery to get a new birth certificate.

By contrast, the State Department does not require sex-reassignment surgery as a prerequisite to get an appropriate passport.  The Department will accept a doctor’s letter certifying that the individual “has had appropriate clinical treatment for gender transition,” without any specification of particular treatment.  Many  other states now have similarly permissive requirements to issue driver licenses or non-driver ID cards.

The consequences of carrying a driver’s license or state ID that does not correctly identify the bearer’s gender are many.  Encounters with police officers and security officers are only the most obvious.  In their affidavits opposing the state’s dismissal motion, the plaintiffs recount a wide range of circumstances in which they have encountered demeaning or antagonistic responses when complying with requests to show ID, including when voting or attempting to cash a check.  Every such occasion is an “outing” with respect to information they prefer to keep confidential, and they cite the incidence of violence against transgender people as a looming threat when their status is thus revealed involuntarily.

Judge Edmunds rejected the state’s argument that plaintiffs had not presented a claim of constitutional dimensions.  She found a wide range of precedents, including decisions from the 6th Circuit that would be controlling in a federal case in Michigan, recognizing privacy interests in medical information and sexually-related information.  In addition, she relied on a decision by the 2nd Circuit in a case involving a transgender prison inmate, Powell v. Schriver, where the court recognized in 1999 that the “hostility and intolerance” against transgender people bolstered its conclusion that “the Constitution does indeed protect the right to maintain the confidentiality of one’s transsexualism.”  That court based its ruling on the “bedrock principle” that “there exists in the Constitution a right to privacy protecting the individual interest in avoiding disclosure of personal matters,” and a recognition that a transgender person “potentially exposes herself to discrimination and intolerance” when forced to reveal this information.

Edmunds, appropriating language from the prior 6th Circuit case, found “no reason to doubt that where disclosure of this highly intimate information may fall into the hands of persons harboring such negative feelings, the Policy creates a very real threat to Plaintiffs’ personal security and bodily integrity.”

Since a fundamental right is involved, Edmunds observed that the state could only win this case if it could show a compelling interest, and that the policy was “narrowly drawn to further that interest.,” which requires that it be the least restrictive way to achieve the state’s goal.  In this case, she wrote, the state “vaguely identifies two purported interests — albeit not in the context of a fundamental right — in support of the Policy: (1) ‘maintaining accurate state identification documents’ to ‘promote effective law enforcement’ and, (2) ensuring ‘that the information on the license is consistent with other state records describing the individual.”

The judge found that the challenged policy “bears little, if any, connection to Defendant’s purported interests, and even assuming it did, there is no question that requiring an amended birth certificate to change sex on one’s license is far from the least restrictive means of accomplishing the state’s goal.  Indeed, as Plaintiffs point out, ‘because of the Policy, the sex listed on their licenses fails to match their appearance and the sex associated with their names.’  In this way, the Policy undermines Defendant’s interest in accurately identifying Plaintiffs to ‘promote law enforcement.'”  She pointed to a 2012 decision by an Alaska trial court criticizing a similar policy adopted in that state, which observed that the policy produces licenses that are inaccurate for identification purposes, causing inconvenience and worse in the everyday lives of transgender people.

As to the rejection of a passport as documentation of gender, Judge Edmunds wrote, “Defendant fails to articulate how this two-tiered system promotes the state’s purported interest in ensuring ‘that the information on the license is consistent with other state records describing the individual.'”  Why should a person be required to carry a driver’s license that contradicts her passport as to her gender?

The plaintiffs alleged that at least 25 states allow changes of sex designation on driver licenses without proof of sex reassignment surgery.  “The Court seriously doubts that these states have any less interest in ensuring an accurate record-keeping system,” wrote Edmunds.  Thus, at this point in the case, the court was unwilling to conclude as a matter of law that the policy “narrowly serves the state’s interest in maintaining ‘accurate’ identification documents or promoting effective law enforcement.”

The plaintiffs had made other constitutional claims, but Judge Edmunds decided that it was unnecessary to rule on them at this point.  So long as she had identified one claim on which the plaintiffs were entitled to maintain their legal challenge to the policy, the state’s motion to dismiss should be denied.  “Should future developments require the Court to rule on the viability of Plaintiffs’ remaining claims,” she wrote, “Defendant may seek leave to renew her motion at that time.”

Judge Edmunds’ refusal to dismiss the case puts the plaintiffs in a strong position to negotiate a change to the policy.  If negotiations fail, they can probably count on winning this case through a motion for summary judgment unless the state can come up with something better than its pathetic arguments in support of its motion to dismiss.

The plaintiffs are Ermani Love, Tina Seitz, Codie Stone, E.B., A.M., and K.S.  Their attorneys include Daniel S. Korobkin, Michael J. Steinberg and Jay Kaplan of the ACLU Foundation of Michigan in Detroit, John A. Knight of the ACLU Foundation in Chicago, Illinois, and cooperating attorneys Jacki Lynn Anderson, Michael Frederick Derksen and Steven R. Gilford of the Proskauer Rose law firm’s Chicago office.

Federal Court Allows Transgender Challenge to NY Medicaid Regulations to Continue

Posted on: July 7th, 2015 by Art Leonard No Comments

U.S. District Judge Jed Rakoff in Manhattan  denied most of New York State’s motion to dismiss a lawsuit challenging various limitations in the state’s Medicaid program relating to treatment for gender dysphoria.   Judge Rakoff did not immediately issue a written opinion supporting his June 26 ruling, indicating that one would be issued later.  The case is Cruz v. Zucker, No. 14-CV-4456 (JSR)(GWG) (S.D.N.Y., June 26, 2015).

Medicaid is a joint federal-state program to provide health care coverage for medically needy people who lack the financial resources to pay for adequate health care.  States are not required to have a Medicaid program, but if they do they must comply with federal standards in order to be eligible for federal money to help pay for the program.  In general, the federal program requires coverage for medically necessary care.

The lawsuit was brought on behalf of a class of transgender Medicaid-eligible New Yorkers seeking various medical procedures as a part of their gender transition.  It was originally filed in June 2014 to challenge a New York State Medicaid regulation banning all coverage for sex reassignment treatments and procedures, which had been adopted during the Pataki Administration in 1998.  The lawsuit arose from frustration about lack of response by the Cuomo Administration to continuing demands to change the policy, in an environment where federal Medicaid and Medicare programs had been evolving towards greater coverage in this area.  Indeed, the U.S. Tax Court ruled just a few years ago that costs for gender transition treatment could be tax deductible as medically necessary, reversing a long-time policy, and just weeks ago the federal Office of Personnel Management notified insurance companies covering federal employees that they were required to cover such expenses.  This New York lawsuit soon triggered a response from the state, which adopted a new regulation effective on March 11, 2015.

However, the new regulation only went part way towards the plaintiffs’ goal of achieving complete coverage for sex-reassignment procedures under Medicaid.  They quickly filed an amended complaint, attacking the failure of the new regulation to provide complete coverage.

The old regulation was a blanket prohibition, stating: “Payment is not available for care, services, drugs, or supplies rendered for the purpose of gender reassignment (also known as transsexual surgery) or any care, services, drugs, or supplies intended to promote such treatment.”

The new regulation states that “payment is available for medically necessary hormone therapy and/or gender reassignment surgery for the treatment of gender dysphoria.”  Payment for hormone therapy is available even if the individual is not seeking surgical reassignment.  Two qualified New York State licensed health care professionals must certify that the individual suffers from gender dysphoria  and that surgery is medically necessary.  The regulation excludes coverage for people under age 18, and will not cover gender reassignment surgery that would render somebody sterile unless they are at least 21.  This is most significant for transgender women, since the removal of male genitalia and reproductive system organs incident to transition always produces sterility.  The regulation explicitly excludes a long list of procedures that are deemed “cosmetic” and thus not “medically necessary,” but that transgender individuals may need in order to accomplish a complete transition consistent with their gender identity.

The lawsuit challenges the exclusions of coverage for younger transgender people, and sharply disputes the contention that the various procedures labeled as “cosmetic” should be excluded.  The mindset of those who drafted the regulation is exemplified by its explanation that “cosmetic surgery, services, and procedures refers to anything solely directed at improving an individual’s appearance.”  Of course, Medicaid would cover these procedures in other contexts, such as reparative and cosmetic surgery for somebody who has suffered disfiguring injuries in a fire, auto crash or similar catastrophe, even though in such circumstance “improving an individual’s appearance” may be the primary goal of a particular procedure.  The point is that these procedures are not sought by transgender individuals solely to improve their appearance, but rather to bring their appearance into more full accord with their gender identity.

The plaintiffs argue that these additional procedures can be centrally important for a successful gender transition process.  The goal is not just to eliminate or modify unwanted genitalia and internal organs.  It is rather to assist the individual in achieving a physical form that is consistent with their gender identity and how it is expressed to the world.  The Complaint filed in this case spells out the problems encountered by some of the plaintiffs who were unable to access these procedures, which, they argue, are necessary for them to be able to present themselves in their desired gender.  An incomplete transition makes their transgender status obvious, “outing” them and leaving them vulnerable to harassment or worse.

The legal theory behind the lawsuit is that denial of these services to those under 18, and the blanket denial of a range of procedures that are necessary to effectuate a successful gender transition, violates the state’s obligations under the federal Medicaid statute to cover medically necessary care and also raises constitutional issues of unequal treatment, as transgender people are being excluded from access to treatments and procedures that are covered in other contexts.  The Complaint also alleges a violation of the non-discrimination requirements of the Affordable Care Act (ACA).

The Attorney General’s office quickly responded to the Amended Complaint by filing a motion to dismiss the case.  The office’s brief, submitted in the name of Attorney General Eric Schneiderman by Assistant Attorneys General John Gasior and Zoey S. Chenitz, argued that the 11th Amendment bars the plaintiffs’ constitutional claims, and that the Medicaid statute’s requirements are not enforceable by individuals in a federal lawsuit.  Furthermore, they argued, the exclusion of those under age 18 would not violate any provisions of the statutes that the plaintiffs rely upon, the denial of coverage for cosmetic procedures was not “ripe” for review based on the factual allegations in the Complaint, and, they argued, the Complaint did not even raise a plausible claim for violation of the specific Medicaid regulation upon which the plaintiffs are relying.

Judge Rakoff rejected most of the Attorney General’s arguments, at least at this early stage of the lawsuit for purposes of determining whether the case should be thrown out or allowed to continue.

According to a summary of his ruling published by the New York Law Journal on June 30, he refused to dismiss the claims based on “refusal to fully fund the treatment of gender identity disorder or gender dysphoria” including “refusing surgery for those under 18.”  He also refused to dismiss a sex-based discrimination claim under the ACA, but granted the state’s motion to dismiss an ACA claim for youth hormone therapy for those under 18.  He also dismissed a claim under a section of the Medicaid law requiring the state to have reasonable standards for determining eligibility for the extent of medical assistance.  Rakoff noted that the parties had agreed to dismiss the constitutional claim.  An explanation for his rejection of the arguments made by the Attorney General’s office in its brief awaits publication of an opinion.

The plaintiffs are represented by the Sylvia Rivera Law Project and the Legal Aid Society, with pro bono assistance from lawyers at the firm of Willkie Farr & Gallagher LLP.   Sumani Lanka, a Legal Aid Society attorney, told the Law Journal, “The state doesn’t really understand what gender identity is.  Gender identity isn’t just reassignment surgery – it has to do with how a person perceives themselves and identifies themselves.  It shouldn’t be that the state arbitrarily limits treatment that is medically necessary for gender dysphoria.”

9th Circuit Revives Transgender Inmate’s Suit for Sex Reassignment Surgery

Posted on: June 29th, 2015 by Art Leonard No Comments

The U.S. Supreme Court’s same-sex marriage decision was not the only case of consequence for LGBT rights decided on June 26, 2015.  On the opposite coast, a three-judge panel of the U.S. Court of Appeals for the 9th Circui, in San Francisco unanimously revived a California inmate’s lawsuit seeking sex reassignment surgery, which had been dismissed at the screening stage by Chief Judge Ralph R. Beistline of the U.S. District Court for the Eastern District of California.  Rosati v. Igbinoso, 2015 WL 3916977.

Philip Walker Rosati (now known, according to the court, as Mia Rosati), is a California prison inmate who identifies as a transgender woman but has not been formally diagnosed with gender dysphoria.  Her attempts to secure appropriate medical treatment have gone for naught, as prison officials have refused even to allow her to be examined by a doctor who is qualified to diagnose gender dysphoria, which would be a prerequisite to receiving such treatment.  According to her allegations, despite knowing about her symptoms (“including repeated efforts at self-castration”) prison officials “recklessly disregarded an excessive risk to her health by denying [sex reassignment surgery] solely on the recommendation of a physician’s assistant with no experience in transgender medicine.”  Furthermore, Rosati alleged and the state acknowledged in response to this appeal, California has never provided such surgery to a state inmate, and as was developed in the recent Norsworthy case before another district court, the state Department of Corrections appears to maintain a blanket policy against providing such surgery for inmates.

Rosati filed her federal complaint pro se (representing herself).  Under the Prison Litigation Reform Act, such claims are subjected to a “screening” process by the federal court and routinely dismissed if the court concludes that the claims are not plausible on their face.  Judge Beistline reached that conclusion and dismissed the case permanently, not even affording Rosati the opportunity to respond with an amended complaint.  She subsequently obtain legal representation from Lambda Legal’s West Coast Office in Los Angeles and the Prison Law Office in Berkeley, who filed this appeal on her behalf.

Federal courts have ruled that prison inmates whose serious medical conditions are met by deliberate indifference from prison officials have a claim under the 8th Amendment, which forbids cruel and unusual punishment.  The rationale is that inmates are totally dependent on prison officials for health care, and that at a minimum prison officials should be required to attend to serious medical conditions with at least adequate treatment.   The battle for transgender inmates has been to establish that gender dysphoria is a serious medical condition and that, depending upon the degree of dysphoria, various medical treatments, including sex reassignment surgery, may qualify as medically necessary.  There is an emerging consensus among most federal courts that have addressed the issue that psychological counseling and hormone therapy, and various modifications of an inmate’s living conditions involving dress and grooming, may qualify as medically necessary, but the courts are still at early stages in accepting the proposition that state prison systems should be required to provide sex reassignment surgery and so far no state inmate has received such surgery as a result of a federal court order.

The 9th Circuit panel found that Judge Beistline erred in screening out and dismissing this complaint.  Quoting a prior 9th Circuit decision, the court said, “A district court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'”  At the oral argument of this appeal, attorneys from the state conceded that the district judge should have provided Rosati with an opportunity to amend her complaint so reversal was virtually mandated.  But the court went further, stating that “even absent the concession, we conclude that the complaint, although not drafted with the skill and brevity expected of counsel, stated an Eighth Amendment claim upon which relief could be granted.”

In evaluating a complaint, the district court is supposed to determine whether the plaintiff has alleged facts that could plausibly support a legal claim.  In this case, Rosati alleged that she suffered from severe gender dysphoria for which sex reassignment surgery was necessary treatment.  She quoted at length from the Standards of Care that have been published by the World Professional Association for Transgender Health.  “Rosati plausibly alleges that prison officials were aware of her medical history and need for treatment, but denied the surgery because of a blanket policy against SRS,” and the state conceded at the oral argument that “no California prisoner has ever received SRS.”  In the past, the 9th Circuit has ruled that a “blanket, categorical denial of medically indicated surgery” is “the paradigm of deliberate indifference.”

The court also noted Rosati’s allegation that the treatment was denied on the basis of a recommendation from an unqualified physician’s assistant.  “Although Rosati lacks a medical opinion recommending SRS, she plausibly alleges that this is because the state has failed to provide her access to a physician competent to evaluate her.”  This, too, could be construed to be deliberate indifference.

Of course, at this point the court is dealing with Rosati’s factual allegations, not a trial record, and the purpose of this appeal was to get Rosati’s complaint past the screening process so she can obtain access to the court to prove her claim.  Thus, the appeals court was careful to say, “We express no opinion on whether SRS is medically necessary for Rosati or whether prison officials have other legitimate reasons for denying her that treatment.  But, like other courts that have considered similar actions, we hold that the allegations in Rosati’s complaint are sufficient to state a claim.”  The court cited decisions from the 1st, 4th and 7th Circuits to support this conclusion, although in none of those cited cases did a court ultimately order prison officials to provide sex reassignment surgery for an inmate.  The court cited as well the March 31 ruling in Norsworthy v. Beard by another California federal district court judge, who had ordered sex reassignment surgery to be undertaken immediately, only to have the order stayed by the 9th Circuit in response to an emergency motion by the state.  As such, the panel ruling on Rosati’s appeal may foreshadow how another panel of the court may deal with the state’s appeal of the Norsworthy order.

The court also commented, in send the case back to the district court, that the court should also consider Rosati’s claim that the state was violating her right to equal protection of the law guaranteed by the 14th Amendment.  The opinion does not describe any of Rosati’s factual allegations in support of that claim.  As a result of this decision, Rosati should be able to submit a new complaint — this time drafted by her attorney representatives — for a fresh consideration by the district court, bearing in mind the 9th Circuit’s statement that her original pro se complaint was sufficient to state an 8th Amendment claim.

If the 9th Circuit ultimately rules in favor of Kosilek or Norsworthy, the chances are excellent that the state could obtain review from the Supreme Court.  On May 4, 2015, the Supreme Court denied review in Kosilek v. Spencer, in which the full bench of the 1st Circuit rejected a three-judge panel and a trial judge ruling and allowed Massachusetts prison officials to deny sex reassignment surgery to Michelle Kosilek.  A 9th Circuit ruling on the merits in favor of Norsworthy or Rosati could create a split of circuit authority, setting up ideal circumstances for Supreme Court consideration of the issue.  The Supreme Court has never previously ruled on the questions of whether gender dysphoria is a serious medical condition and whether prison officials may be required to provide  for sex reassignment surgery if qualified medical personnel conclude that such treatment is necessary for an inmate.

Mia Rosati is represented on appeal by Jon W. Davidson and Peter C. Renn of Lambda Legal and Alison Hardy of the Prison Law Office.  Mr. Renn argued the appeal in the 9th Circuit.  The World Professional Association filed an amicus brief in support of the appeal, which was written by pro bono attorneys Cori A. Lable, Daniel V. McCaughey, Michael T. Packard and Kevin P. Budris from Ropes & Gray LLP in Boston.

1st Circuit Affirms Order for Sex Reassignment Surgery for Life Inmate

Posted on: January 18th, 2014 by Art Leonard 1 Comment

A three-judge panel of the Boston-based U.S. Court of Appeals for the 1st Circuit voted 2-1 to affirm the district court’s decision that the Massachusetts Department of Corrections (DOC) violated the 8th Amendment when it refused to provide sex-reassignment surgery for Michelle Kosilek, who is serving a life-sentence without the possibility of parole for the murder of her wife. The ruling may not conclude the action, since the state’s staunch opposition to providing the surgery will likely lead it to seek further review from the Supreme Court, especially in light of the dissenting opinion in the court of appeals. Kosilek v. Spencer, 2013 U.S. App. LEXIS 951, 2014 WL 185512 (1st Cir., Jan. 17, 2014). The court’s opinion made no mention of staying the trial court’s injunction pending an appeal to the Supreme Court. U.S. District Judge Mark Wolf had directed the Department of Corrections (DOC) to identify a suitable doctor and make arrangements to be prepared to provide the surgery if his order was upheld by the court of appeals, but Kosilek’s counsel have criticized the state for dragging its feet in making these contingent arrangements.

Kosilek, now 64 years old, has been incarcerated at MCI-Norfolk since 1994. According to the opinion for the court by Circuit Judge O. Rogeriee Thompson, Kosilek, who “was born and still is anatomically male,” experienced a turbulent childhood and “suffered regular abuse as a child, in part because of her expressed desire to live as a girl.” Kosilek married Cheryl McCaul, a volunteer counselor at a drug rehabilitation facility where Kosilek was receiving treatment. “McCaul thought she could cure Kosilek’s gender identity disorder,” wrote Judge Thompson, but that did not turn out well, as Kosilek murdered McCaul and fled the area in 1990. She was apprehended in New York and brought back to the Bristol County Jail to await trial. While there, she took female hormones in the form of birth control pills she “illicitly obtained from a guard.” She attempted suicide twice while awaiting trial, and also attempted to castrate herself.

After she was convicted and sent to MCI-Norfolk, she sought treatment for her gender dysphoria. Although DOC’s medical staff agreed that she genuinely suffered from gender identity disorder, the Commissioner of Corrections took the position that no inmate should receive hormone treatment if they were not already on such a regimen prior to their conviction. Kosilek sued, as a result of which she ended up obtaining hormone treatment and eventually other accommodations to her desire to live as a woman while in prison, includng electrolysis to remove unwanted body hair, cosmetics and some feminine garments. Although she was housed in general population in an all-male prison, there were no untoward incidents and she had an excellent disciplinary record. However, DOC absolutely refused her request for surgery to make her gender transition complete, or to consider moving her to a women’s prison, resulting in this second lawsuit.

The case consumed several years in the district court, with at least three rounds of testimony from various medical experts, some presented by Kosilek, some by DOC, and a “neutral” expert appointed by the Judge Wolf. On September 4, 2012, Judge Wolf issued his decision, finding that DOC’s continued denial of sex reassignment surgery to Kosilek violated her rights under the 8th Amendment of the U.S. Constitution. Wolf ordered DOC to provide the surgery for Kosilek, but stayed his ruling pending appeal. At the time, no federal court had ever ordered a state prison system to provide sex reassignment surgery to an inmate. Since then, the 7th Circuit has ruled that a state law banning the prison system from providing such treatment is unconstitutional, and the 4th Circuit has ruled that prisoner authorities must evaluate an inmate for potential sex reassignment surgery and provide the procedure if medical experts agree that it is necessary for the inmate’s health.

The 8th Amendment bans “cruel and unusual punishment.” The Supreme Court has interpreted this to mean that if an inmate has a serious medical need, prison authorities are required to provide minimally adequate treatment to prevent serious harm to the inmate. Many courts have ruled on situations where transgender inmates sought treatment in prison, and a consensus has emerged that such inmates are entitled to hormone therapy at the state’s expense if qualified medical personnel diagnose gender dysphoria and agree that hormone therapy is necessary to meet the inmate’s medical needs. However, there is not yet a consensus that the 8th Amendment requires prison systems to provide sex reassignment surgery.

In this case, Judge Wolf concluded that the expert testimony supported Kosilek’s claim, and a majority of the court of appeals agreed. One point of contention between the majority and the dissenter, Circuit Judge Juan R. Torruella, concerned the appropriate standard for reviewing the district court’s decision. Generally, the court of appeals will give great deference to fact finding by a trial judge, and the majority felt that most of the key findings in this case were factual findings that should be upheld unless they were clearly erroneous. Judge Torruella argued that many of these findings concerned mixed questions of fact and law as to which less deferential review was warranted.

But Judge Torruella’s more serious objection was to the majority’s conception of what the 8th Amendment requires. He noted that the trial record indicated that Kosilek is receiving substantial treatment, both psychological and medical, for her gender dysphoria, and argued that it could not be said that DOC is being “deliberately indifferent” to Kosilek’s medical needs, in light of the security and logistical challenges posed by sex reassignment surgery, which would necessarily have to take place outside of facilities under DOC’s control, and by the need to properly house Kosilek after the surgery.

All the judges agree that DOC’s objection to providing the surgery is not based on expense, which, according to newspaper reports, can range from $7,000 to $50,000, depending on the extent of necessary cosmetic work. DOC offered various non-expense related reasons for denying Kosilek’s demands, but Wolf found none of them convincing. He found that DOC had unduly inflated the security concerns, and he concluded that DOC’s objections were raised in bad faith, influenced inappropriately by the political controversy that Kosilek’s case had inspired after Boston media ran feature stories about the case early on. Groups of state legislators sent letters to the Corrections Commissioner strongly objecting to spending state funds on sex reassignment surgery for a convicted murderer who would be spending the rest of her life in prison. Although the Commissioner testified that the department’s opposition to surgery for Kosilek was not due to political pressure, Wolf did not believe it.

The majority also endorsed Judge Wolf’s finding that some of the expert testimony was based on inadequate information, as some of the experts who testified about the security issues were not informed about Kosilek’s age and exemplary disciplinary record in prison. Wolf had totally discounted the testimony of one of the state’s experts, concluding that he was specifically sought out by the state because he was known to be opposed to sex reassignment surgery. Judge Torruella, the dissenter, was critical of this, noting that another of the experts had testified that the state’s expert’s testimony was within the bounds of professional opinion on the subject. Professional views range across a wide spectrum as to the appropriate treatment for gender dysphoria, both outside and inside prisons, but Judge Wolf, and the majority of the court, took as reasonably established the Harry Benjamin Standards of Career that have been accepted by many courts as the baseline for evaluating the adequacy of treatment in a prison setting. These standards provide for sex reassignment surgery if hormone therapy proves insufficient to deal with the individual’s strong gender dysphoria. One expert had testified that Kosilek suffered from the strongest case of gender dysphoria the expert had ever seen.

Although she initiated litigation on her own, Kosilek now is represented by a substantial legal team, led by Frances S. Cohen, and her case has received support through amicus briefs from civil liberties, prisoners’ rights, and LGBT organizations.

Historic Intersex/DSD Lawsuit Survives Dismissal Motion

Posted on: September 18th, 2013 by Art Leonard No Comments

What may turn into the first major United States legal precedent on the constitutional due process rights of persons born with “disorder of sexual development” (DSD) has survived an initial hurdle of a motion to dismiss.  In an as-yet unpublished written opinion issued on August 29 (and brought to my attention by an op-ed by Riki Wilchins posted on the website today, September 18), U.S. District Judge David C. Norton (D. South Carolina) denied motions to dismiss filed by several state employees who allegedly played a role in having sex reassignment surgery performed on M.C., then 17 months old, rejecting at this point their argument that they were entitled to qualified immunity against liability under 42 U.S.C. sec. 1983.   Qualified immunity against liability for the performance of discretionary functions is extended to public employees when their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” according to the Supreme Court’s ruling in Harlow v. Fitzgerald, 457 U.S. 800 (1982).

A copy of the court’s opinion can be found on the website of Advocates for Informed Choice (formerly known as the Intersex Society of North America),

According to Judge Norton’s brief summary of the factual allegations (which are taken to be true in deciding a pretrial motion to dismiss a complaint), M.C. was born on November 20, 2004, in Greenville, SC, with the medical condition “ovotesticular difference/disorder of sex development,” which in this case manifested itself by the presence of both ovarian and testicular tissues.  In other words, doctors could not easily determine whether this newborn infant would identify as male or female later in life, but there was some ambiguity about the child’s sex.  “Physicians who evaluated M.C. in the first months and years of his life determined that, with surgery, the child could be ‘raised, surgically reconstructed, and treated to be male or female.'”  M.C. was a premature baby and remained in the hospital until February 2005.  A week after he was sent home, his parents decided they did not want him, and notified the Department of Social Services of their wish to relinquish parental rights.  M.C. then became a ward of the state, living in various foster settings until he was placed with the couple who eventually adopted him, Pamela and John Mark Crawford, who brought this lawsuit on his behalf.

While he was in state custody, M.C. was further evaluated by some of the named defendants, all medical specialists, and they recommended to DSS officials “that M.C. undergo sex reassignment surgery in order to make his body appear female.”  In other words, this child, who might ultimately identify as male once he became old enough to develop a gender identity, would be surgically rendered female — including terminating his physical capacity to function sexually and reproductively as male by removing the phallus and testes.  DSS officials accepted the recommendation and instructed M.C.’s then-foster family to deliver him to the hospital where surgery was performed.  When the Crawfords subsequently received and adopted him, state officials instructed them to raise him as female.  But M.C. refused to be female.  According to the complaint, M.C.’s “interests, manner and play, and refusal to be identified as a girl indicate that his gender has developed as male,” and now he is living as a boy “with the support of his family, friends, school, religious leaders, and pediatrician.”  But, due to the surgery performed when he was an infant, he will never be able to function sexually as a male due to the missing penis and will not be able to procreate, due to the missing testes.

The essential claim in this lawsuit is that the state officials – medical personnel and social service personnel – who collaborated on this case violated M.C.’s constitutional rights by making this decision for him.  This goes to the most essential claim of the movement for constitutional rights for people born with the DSD condition: that they should be entitled to be raised without surgical interference until they have identified their gender identity, whatever that may be, and are old enough and mature enough to decide for themselves whether they desire surgical alteration, being sufficiently informed about the consequences of such surgery.

In the complaint, M.C. asserts that he suffered a deprivation of liberty without due process of law.  The court does not go into any detail about how M.C.’s procedural due process rights could have been protected, since that issue was not presented in ruling on this motion, but it seems clear, in light of the substantive liberty interests at stake, that the DSS officials should have petitioned a court for authorization to perform this operation, and the judge should have appointed a guardian ad litem with authority to research the medical and legal issues and present a well-informed argument to the court bolstered by qualified expert testimony.  The movement for DSD rights, currently advanced by an organization called Advocates for Informed Choice (, argues that such surgery on infants is not medically necessary and should not be performed without the informed consent of the individual once the individual has become capable of identifying his or her gender identity and weighing the consequences of surgical change.  A court weighing this evidence would have to take into account that the Supreme Court has identified procreation as an important aspect of the liberty protected by the Due Process Clause, so public officials could not take an action that would terminate an individual’s procreative capacity without a strong justification.  According to Judge Norton, the 4th Circuit Court of Appeals, whose rulings would be binding in his court, “have determined that forced sterilization, while not categorically unconstitutional, implicates significant due process concerns.”  Exactly what level of judicial review would apply to such a case is not totally clear, but certainly some showing of medical necessity would be required to justify a surgical intervention with these consequences.  And it is the position of the DSD rights movement that there is no medical necessity in most cases to perform sex reassignment procedures on infants, if there is no indication of an immediate harm to the health and well-being of the child.  A court would have to weigh the evidence and consider the arguments and then make a decision that would be in the best interest of the child.

In moving to dismiss, the various defendants claimed qualified immunity in that there are no reported cases, much less definitive appellate decisions, that would support the claim that an established federal statutory or constitutional right was violated in this case, so they could not be held to have exceeded their discretion in having the procedures performed.  But Judge Norton found that there is a substantial body of cases from the Supreme Court on down concerning procreative rights and personal autonomy (i.e., bodily integrity).  We clearly require informed consent from individuals or their legal representatives before elective surgical procedures that can have life-altering impact, such as sex reassignment surgery performed in this case.  The defendants claimed that M.C.’s birth parents had consented, but Judge Norton dismissed that for the nonsense that it is – there is no record that the birth parents actually consented, and they actually agreed to termination of their parental rights long before the doctors made their recommendation for this procedure.

Judge Norton found that “M.C. has articulated that defendants violated his clearly established constitutional right to procreation.  As a result, defendants’ assertion of qualified immunity must fail at this stage in the litigation.”  The judge wrote that because of this ruling, it was not necessary, at this stage of the proceedings, to determine whether M.C. had also stated a claim for violation of the rights of privacy and bodily integrity.  He also found that M.C.’s procedural due process claim was plausible as pleaded in the Complaint, which asserts that the medical defendants chose “to perform the surgery and potential sterilization without requesting, initiating, or inquiring as to a pre-deprivation hearing,” and charges that the DSS officials “knowingly permitted and authorized the medically unnecessary sex reassignment surgery in violation of M.C.’s procedural due process rights.”

In addition to dismissing the qualified immunity motions by the defendants, Judge Norton granted an expedited discovery motion by M.C., aimed at determining the identity of several as-of-yet unidentified potential defendants who played a role in the medical procedures.  The clock is ticking on serving them with complaints, and Judge Norton readily granted the motion.

This motion was an important preliminary hurdle, and the judge’s opinion makes clear that he believes significant constitutional rights are in play in this lawsuit.  However, to prevail on the merits, M.C. will have to be able to prove by a preponderance of the evidence that performance of these procedures on him at 17 months was medically unnecessary, and so far no U.S. court has passed on this hotly-disputed question.  Since plastic surgery became possible in the mid-20th century, many doctors have treated the birth of an infant with DSD as a medical emergency and urged parents to consent to surgical procedures which, in the case of children born with the capacity to develop male sexual function, almost invariably means making that impossible for them.  In addition, as intersexuals have argued, the resulting scar tissue and loss of sensation from these procedures limits or prevents their ability to have a satisfactory sexual life whether as female or male, and they urge that the decision should be left to the individual when they come of age to be able to make it.

The court never mentions Lawrence v. Texas, the U.S. Supreme Court’s 2003 sodomy decision, in its ruling, probably because it focused solely on the procreation argument and never got to the liberty/autonomy argument, but surely it would be inconsistent with the Supreme Court’s reasoning in Lawrence to fail to accord substantial protection to an individual’s ability to make such a personal decision as this without interference by the state, and even to hold that a parent should not be able to consent to such procedures unilaterally without an appropriate hearing process when a child is too young to weigh in with his or her desires.  The rapidly developing case law on the right of transgender prison inmates to receive appropriate medical treatment for their gender dysphoria under the 8th Amendment would also contribute to this argument about personal autonomy.

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.