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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.

9th Circuit Holds Sexual Orientation Requires Heightened Scrutiny in Gay Juror Case

Posted on: January 21st, 2014 by Art Leonard No Comments

A unanimous three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled today in Smithkline Beecham Corp. v. Abbott Laboratories that a new trial has to be held because Abbott, the defendant in a civil suit involving claims about the pricing of HIV medications, used one of its “peremptory challenges” to exclude a gay man from the jury. The court found that excluding people from a jury because they are gay violates the Equal Protection Clause of the 14th Amendment, under the 1986 Supreme Court ruling in Batson v. Kentucky. As a necessary part of its ruling, the 9th Circuit panel concluded that sexual orientation discrimination claims are subject to “heightened scrutiny,” a doctrine that makes them more likely to succeed and that may have a significant impact on pending marriage equality cases in Nevada, Arizona and Oregon.

In Batson, the Supreme Court held that excluding a potential juror because of his race violated the 14th Amendment. The court explained that such discrimination in jury selection would “touch the entire community” because it would “undermine public confidence in the fairness of our system of justice,” and that proof of such discrimination was grounds for reversing a trial verdict and ordering a new trial. In a subsequent case, the Supreme Court extend Batson to discrimination based on sex, but indicated that “parties may exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review.” Race is subject to “strict scrutiny,” and sex is subject to “heightened scrutiny.” In order to decide whether the jury strike in this case came within the Batson precedent, the 9th Circuit had to decide whether sexual orientation discrimination is subject to “heightened scrutiny.”

In past decisions, the 9th Circuit has rejected “heightened scrutiny” for sexual orientation discrimination claims, and normally a 9th Circuit panel would follow those precedents. But, in an opinion by Judge Stephen Reinhardt, the panel noted that the Supreme Court’s decision last June in United States v. Windsor has rendered the past 9th Circuit decisions obsolete. Even though the opinion for the Supreme Court by Justice Anthony M. Kennedy did not state explicitly what standard of review the Court was using in striking down Section 3 of DOMA, Judge Reinhardt asserted that the Windsor court was applying some form of heightened scrutiny in that case.

Reinhardt reached this result by a probing reading of Kennedy’s opinion, showing that what the Supreme Court actually did bore the hallmarks of a heightened scrutiny case. Under rational basis review, a statute would be presumed to be constitutional and would be upheld, despite its discriminatory effects, if the Court could hypothesize any rational justification for it. But the Supreme Court did not presume Section 3 to be constitutional, and paid no attention to the post-hoc justifications argued by former Solicitor General Paul Clement on behalf of a House of Representatives Committee. Instead, the Supreme Court focused on the legislative history of DOMA, which showed that it was enacted specifically to discriminate against gay people on grounds of moral disapproval. Justice Kennedy focused on Congress’s “avowed purpose” for enacting DOMA. “The principal purpose,” he wrote, “is to impose inequality, not for other reasons like governmental efficiency.” “The result of this more fundamental inquiry,” wrote Judge Reinhardt, “was the Supreme Court’s conclusion that DOMA’s ‘demonstrated purpose raised a most serious question under the Constitution’s Fifth Amendment.’ Windsor thus requires not that we conceive of hypothetical purposes, but that we scrutinize Congress’s actual purposes. Windsor’s ‘careful consideration’ of DOMA’s actual purpose and its failure to consider other unsupported bases is antithetical to the very concept of rational basis review.”

Reinhardt also noted that the Windsor court put the burden on Congress to “justify disparate treatment of the group,” and under rational basis review, the burden is placed on the challenger to prove that there is no rational justification, not on the government to justify its discrimination. And Reinhardt pointed out that in rational basis cases, the court is “ordinarily unconcerned with the inequality that results from the challenged state action,” but that in Windsor, the Court expressed great concern about the inequality imposed on married same-sex couples by DOMA.

“Windsor refuses to tolerate the imposition of a second-class status on gays and lesbians,” wrote Reinhardt. “Section 3 of DOMA violates the equal protection component of the due process clause, Windsor tells us, because ‘it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.’ Windsor was thus concerned with the public message sent by DOMA about the status occupied by gays and lesbians in our society. This government-sponsored message was in itself a harm of great constitutional significance.” From this, Reinhardt concluded, “Windsor requires that classifications based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose.” This, of course, is the hallmark of heightened scrutiny in equal protection cases. “Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny.”

In this case, Abbott had an interest in avoiding seating jurors that might be biased against it because it was being charged with improperly inflating the price of HIV medications whose patents it controlled. During the voir dire questioning of potential jurors, it became clear that one man was gay due to his references to his partner. The attorney for Abbott questioned him briefly, but elicited no answers that indicated any particular bias against his client. However, he asked to strike the juror. When the attorney for the other party objected, raising the Batson principle, the trial judge questioned whether Batson applied to the case or the circumstances, but asked the attorney whether he had any particular reason for seeking to exclude the juror. The attorney did not specify a reason, and was allowed to use a peremptory (unexplained) challenge to eliminate him from the jury. The 9th Circuit held that this was error. Since sexual orientation discrimination merits heightened scrutiny, the Batson rule applies and because it was clear that the juror was a gay man and, under the circumstances, Abbott’s counsel might entertain the view that gay men would be biased against his client, some valid justification was necessary to sustain the challenge to his jury service.

The California Supreme Court extended the Batson rule to gay jury challenges long ago for purposes of trials in the state courts, but this ruling by the 9th Circuit is the first to extend Batson to such challenges in federal courts. But the ruling is potentially much more consequential–first, because it applies broadly to all sexual orientation discrimination claims, not just juror challenges, and second, because of another case pending before the 9th Circuit and shortly to be argued, Sevcik v. Sandoval, a challenge to Nevada’s ban on same-sex marriage. In Sevcik, the district court, ruling before last year’s Windsor decision, rejected a challenge to the Nevada marriage ban, holding that the court was bound under the 1972 Supreme Court affirmance in Baker v. Nelson to hold that Sevcik had not presented a “substantial federal constitutional question” and that the state’s ban survived rational basis review. Windsor was decided after Sevcik’s appeal to the 9th Circuit was filed. Now the 9th Circuit has ruled that Windsor requires heightened scrutiny of sexual orientation claims. That surely forecasts a reversal in Sevcik, although it is not clear whether the 9th Circuit would remand the case to the trial court for reconsideration under the heightened scrutiny standard or whether the court of appeals would rule as a matter of law under that standard that the Nevada ban is unconstitutional. Either way, the 9th Circuit’s ruling should have immediate consequences for recently filed marriage equality lawsuits in Arizona, Idaho and Oregon, states which are also in the 9th Circuit, as those district courts will be bound to apply heightened scrutiny in deciding those cases.

Lambda Legal had an amicus brief in the case, co-authored by Shelbi D. Day, Tara L. Borelli, and Jon W. Davidson, working from the organization’s Western Regional Office in Los Angeles.

9th Circuit Orders Withholding of Removal for Gay Man from Philippines

Posted on: July 25th, 2013 by Art Leonard No Comments

A unanimous panel of the U.S. 9th Circuit Court of Appeals, based in San Francisco, ruled on July 24 in Vitug v. Holder, 2013 Westlaw 3814772, that the Board of Immigration Appeals (BIA) should not have reversed a ruling by an Immigration Judge (IJ) that Dennis Vitug, a gay man from the Philippines, was entitled to remain in the United States under U.S. laws providing refuge for people subjected to persecution in their home countries.  The court backed up the Immigration Judge’s conclusion that Vitug had shown that he was subjected to persecution, and that the government failed to meet its burden to show that conditions in the Philippines had changed sufficiently to rebut the presumption that Vitug would suffer persecution if required to return.

Writing for the appellate panel, Judge Harry Pregerson pointed out that the IJ had found Vitug to be a credible witness and had concluded that Vitug had been beaten and robbed five times in Manila “after being targeted as a homosexual,” had been harassed by police officers based on his “perceived sexual orientation,” and had been unable to find a job “on account of his sexual orientation.”  The IJ had also found, based on the evidence Vitug presented, that (1) “The police will not do anything to help gay men who report abuse but will rather ridicule them and tell them they deserve it,” and (2) “The government has failed or refused to protect gay men from persecution.”

The IJ concluded that Vitug had been persecuted “because of his membership in the social group of homosexual Filipino men,” and that the government had not presented any contrary evidence.   The IJ also concluded that Vitug might be subjected to torture if deported back to the Philippines, finding him eligible for protection under the Convention Against Torture, an international treaty to which the U.S. is a party, which requires our country to give refuge to people who might be subjected to torture in their home country.

Under the rules governing administrative review, these IJ findings should not generally be reversible by the Board of Immigration Appeals, yet the government persuaded the BIA to reverse, based on the Board’s own view of the evidence.  (The BIA decision was issued on November 6, 2007, and is fairly representative of the kind of anti-gay bias exhibited by the BIA during the Bush Administration.)   “In reaching its decision,” wrote Judge Pregerson, “the BIA did not expressly find any of the IJ’s factual findings to be clearly erroneous.”  Instead, it predicated its reversal on its own review of the record, opining that Vitug had failed to prove that the attacks against him “rose to the level of past persecution,” that a particular attack against him by a man he met in a bar was merely a “crime of opportunity”, and that “the record does not support the conclusion that the [Philippine] government would be unable or unwilling to protect him,” because Vitug had actually returned to the Philippines after his first US visitor visa expired, then returned to the U.S. on a  new visitor visa, which he overstayed, finding work in the U.S.  Finally, the BIA found a lack of evidence in the record that Vitug would face torture in the Philippines.

Vitug filed a motion for reconsideration, but it was rejected by the BIA because it arrived one day after the filing deadline, due to a snowstorm and the grounding of FedEx planes, according to Pregerson’s opinion.  The BIA issued an amended order in February 2008 to correct a misstatement in its prior decision, and Vitug again filed for reconsideration, this time meeting the deadline, but the BIA denied his motion in a confused statement that the appeals court found to be internally contradictory.

The Court of Appeals found that the BIA had overstepped its role regarding the finding on persecution, pointing out that “DHS regulations prohibit the BIA from ‘engaging in de novo review of findings of fact determined by an immigration judge.'”  Wrote Pregerson, “We conclude that in its original November 6, 2007 decision, the BIA engaged in its own factfinding.  Such factfinding was improper.”  The court went through various aspects of the BIA opinion, pointing out places where it had obviously engaged in factfinding contrary to the facts found by the IJ, and had ignored “factual findings of the IJ that were key to the IJ’s holding,” which the court found to be an abuse of discretion.

Having found that the BIA “failed to apply the clear error standard of review to the IJ’s factual findings, and also abused its discretion by ignoring the factual findings of the IJ,” the court would normally remand the case so that BIA could apply the correct standard, but it found no need to do so here, “because substantial evidence does not support the BIA’s denial of withholding of removal.”

Pregerson pointed out that under immigration law, once a petitioner has established that he is a victim of past persecution based on one of the grounds recognized by the courts — which include, for this case, sexual orientation — there is a presumption of entitlement to the remedy of withholding of removal, which would allow the petitioner to remain in the United States.  The government can only prevail in such a case if it can “show by a preponderance of the evidence that there has been a fundamental change in circumstances such that the petitioner’s life or freedom would not be threatened or that the petitioner could relocate internally within his home country to avoid persecution.” 

In this case, wrote Pregerson, the government had failed to meet this burden.  The IJ found Vitug to be a credible witness, and accepted his testimony about the persecution he had suffered.  The government did not challenge this finding, and did not introduce any contradictory evidence.  Wrote Pregerson, “No reasonable factfinder could conclude that the harm Vitug suffered did not rise to the level of persecution in light of the cumulative effect of multiple instances of physical harm and victimization,” so he is presumptively entitled to stay in the U.S.  The only basis for the government’s argument to the contrary was some references in Vitug’s documentary evidence that there was some gay activism going on in the Philippines and that one municipality had passed a local ordinance to protect gays from discrimination.  “Such evidence, however, does not indicate that there is any less violence against gay men or that police have become more responsive to reports of antigay hate crimes,” wrote Pregerson.  “The government therefore failed to meet its burden of proof to show by a preponderance of the evidence that the circumstances within the Philippines have changed such that Vitug no longer faces a threat to his life or freedom in the Philippines.”

While the court agreed with the BIA that the IJ’s conclusion as to torture was not supported by the IJ’s factual findings and refused to upset the BIA’s reversal on the issue of Convention Against Torture relief, the court ordered the BIA to grant withholding of removal status to Vitug, ending any effort to deport him from the United States.

There is a certain irony about the case having taken so long to be considered by the 9th Circuit.  The IJ’s decision was issued in 2007, based on a hearing held in June of that year, which basically froze the factual record as of that date.  The BIA decisions came later in 2007 and early in 2008, and then Vitug appealed.  The sheer volume of asylum/withholding/CAT appeals is so great in many circuits — and especially in the 9th, which covers the entire west coast — that it may take many years until a panel of the court actually takes up the case for decision.  In this case, the court unusually scheduled a hearing, which was held on February 7, 2013, and was limited, of course, to Vitug’s argument that the BIA had improperly reversed the IJ based on the record compiled at the 2007 hearing.   It may be that conditions for gay people in the Philippines have improved since then — after all, six years have gone by and there have been some court rulings in the Philippines that have advanced gay rights — but that would be irrelevant, since the case must be decided based on the record made at the 2007 hearing.  Welcome to the surreal world of American administrative law, where time stands still!