Ninth Circuit Affirms Injunction Ordering Gender Confirmation Surgery for Idaho Transgender Inmate

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By William J. Rold for LeGaL’s LGBT Law Notes.

Law Notes has been following the litigation involving transgender Idaho prisoner Adree Edmo for three years. In 2018, U.S. District Judge B. Lynn Winmill granted a preliminary injunction for her to have gender confirmation surgery (GCS) within six months. Edmo v. Idaho Dep’t of Corr., 358 F. Supp. 3d 1103, 1111 (D. Idaho 2018). The Ninth Circuit now affirms, Edmo v. Corizon, 2019 WL 3978329 (9th Cir., Aug. 23, 2019), in a unanimous panel. per curiam opinion by Circuit Judges M. Margaret McKeown and Ronald M. Gould and, by designation, U.S. District Judge Robert S. Lasnik (W.D. Wash.). All four judges have been serving on the bench for many years, having been appointed by President Bill Clinton during the 1990s.

The opinion, at nearly 22,000 words, is enormous. The 9th Circuit granted a stay of Judge Winmill’s decision pending the appeal, but it expedited the appeals due to the nature of the case. There were two appeals: one by state officials and one by the contractual health care vendor, Corizon. The scope of the unauthored decision suggests that more than one judge’s chambers was responsible for its composition. The court found that denying gender confirmation surgery to Adree Edmo violates her 8th Amendment right to be free of cruel and unusual punishment, but emphasized that the case turns on its particular facts, and the court was not adopting a general rule that all inmates suffering from gender dysphoria are automatically entitled to such treatment.

The opinion begins with a general discussion about transgender people and gender dysphoria suffered by some of them, when the tension between birth gender and gender identity causes severe psychological and life disruption. No one disputed in this case that Edmo has a serious medical condition or that she requires hormones and other gender-affirming treatments. All experts also agreed that the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders [DSM-V] sets forth conditions for diagnosis of gender dysphoria and that the World Professional Association of Transgender Health [WPATH] Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People (7th ed. 2011), is an appropriate “benchmark” for assessing treatment decisions. The court’s extensive discussion provides a virtual textbook in lawymen’s terms explaining the subject matter of the case.

The dispute arose on whether, having received the maximum benefit attainable from hormone therapy, counseling and being allowed to groom and dress consistent with her gender identity, Edmo could compel the state under the Eighth Amendment to perform GCS; that is, that denial of GCS under these circumstances would be “cruel and unusual punishment.” Affirming the district court’s order requiring GCS, the Circuit emphasized that it was respecting the findings of fact by Judge Winmill and the need (constitutional requirement) for individual professional judgment for each patient suffering from gender dysphoria. By its own terms, the affirmance is limited to the trial record in the District Court in Edmo.

Edmo has been on hormones since 2012, and she is hormonally confirmed (meaning she has achieved the maximum benefit from what hormones can offer). She attempted self-castration in 2015, after which Corizon’s psychiatrist (defendant Dr. Eliason) nevertheless wrote that she was not a candidate for GCS because she: (1) did not have congenital malformations; (2) did not have “devastating dysphoria”; and (3) did not have “some type of medical problem in which endogenous sexual hormones were causing severe physiological damage.”

Edmo’s experts, including Dr. Randi Ettner (who co-authored the current WPATH Standards), testified that Edmo was not only a proper patient for GCS but that GCS was the only treatment that would remove her severe dysphoria. Dr. Ryan Gordon also testified for Edmo. They both testified that Dr, Eliason’s categories made no sense, because the first does not generally apply to transgender people, the second is met by Edmo, and the third is “bizarre” and not medically understandable. Eliason could not cite any authority in support of his third category formulation. Edmo successfully removed one testicle in 2016, while under defendant Eliason’s “care.”

Defense experts (Dr. Keelin Garney, a psychiatrist, and Dr. Joel Andrade, a PhD social worker) said that Edmo had not lived as a woman for 12 months in prison and that her psychiatric co-morbidity precluded GCS. Defendant Eliason adopted these reasons as well, and he said that his opinions were confirmed by the Idaho DOC transgender “Committee.” Judge Winmill found that a female experience sufficient to satisfy WPATH Standards could occur in a prison setting (based on Edmo’s experts and the standards themselves, which include institutionalized people) and that Edmo’s psychiatric problems were under control, except those that were directly related to her dysphoria. He found that the Committee’s concurrence added little support to the defense. The Circuit affirmed these findings.

These defenses are “old chestnuts,” if such a phrase can be used for the rapidly-evolving transgender prisoner world. For many inmates serving life or very long sentences, the prison “experience” is the only one there will be, so requiring another type of “real life” experience is tantamount to outright denial, a categorical denial of GCS for inmates transition during incarceration. Co-morbidity is baked into the diagnosis: if a transgender person is not having severe stress and dysfunction, the DSM-V criteria for dysphoria are not met. The question is whether Edmo’s depression and self-harm were separate from dysphoria or caused by the failure to treat it. Judge Winmill found the latter, and he ruled that Edmo was competent to make medical decisions. Again, the Circuit affirmed.

During the appeal, the Circuit issued a limited remand to the District Court to clarify a few issues, including whether Judge Winmill’s injunction was preliminary or permanent. He said it was permanent. Edmo v. Idaho Dep’t of Corr., 2019 WL 2319527, at *2 (D. Idaho May 31, 2019). The Circuit also found that Judge Winmill had made the findings necessary under the Prison Litigation Reform Act: that the injunction was as narrow as possible with minimum intrusion into prison operations, while still curing the constitutional violation, relying on Armstrong v. Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir. 2010).

The Circuit found that the injunction was required by a line of Eighth Amendment cases extending back three decades. It also surveyed other circuits on transgender prisoner treatment. Two decisions warrant separate discussion: Kosilek and Gibson.

In Kosilek v. Spencer, 774 F.3d 63 (1st Cir., en banc, 2014), the First Circuit found that confirmation surgery was not constitutionally required for the transgender plaintiff because the experts disagreed about the necessity for the treatment in her case. Id. at 88. Here, on a record five years later for another patient, the experts did not so widely disagree; and the defense experts were more roundly impeached. Moreover, in Kosilek, the record showed that both alternatives were “adequate,” a finding with which Judge Winmill disagreed here, and such finding was not error.

In Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019), there was no record for the transgender patient, who was pro se before the district court and not in a position to provide expert witnesses; the court had adopted the expert testimony in Kosilek. Here, the 9th Circuit panel found this to be irreconcilable with the fact-intensive requirement of analysis of the subjective prong of deliberate indifference intent as required by the Ninth Circuit’s 8th Amendment precedents. It likewise rejected the notions that a sinister motive had to be shown in the denial of a particular treatment, or that provision of “some care” defeated an Eighth Amendment claim. Edmo, 2019 WL 3978329 at *26-*27. Referring to the numerous amici, the court rejected Gibson’s reliance on a lack of consensus regarding GCS, saying it was “incorrect, or at best outdated.” Id. at *28.

The Ninth Circuit found that denying GCS to Edmo was “medically unacceptable” under the circumstances. Id. at *30. Thus, it did not merely present a non-actionable difference of medical opinion. The district court did “what the First Circuit did”: it applied deliberate indifference standards to the plaintiff’s gender dysphoria to enforce the Eighth Amendment. Id. *28.

The defendants next argued that Edmo has not shown irreparable injury necessary for an injunction because: (1) she has waited so long already; (2) there is not an “emergency”: and (3) Edmo has not attempted self-castration in years. The Circuit swatted each argument. The defendants delayed producing Edmo’s medical records for more than six months after counsel was appointed to represent her by the district court, then sought to use the delay to its benefit in opposing an injunction. Courts have authority under the Eighth Amendment to order non-emergent care. The third argument overlooks the evidence of “profound, persistent distress.”

The Court was careful not to write a decision that constitutionalizes prison medical care just because there is agreement in health care communities that certain treatment is medically necessary. The Circuit found that the District Court used a “flexible,” not a “strict,” adherence to WPATH standards in applying them to the facts. “But when medical consensus is that a treatment is effective and medically necessary under the circumstances, prison officials render unacceptable care by following the views of outliers without offering a credible medical basis for deviating from the accepted view,” wrote the panel, citing Kosilek, 774 F.3d at 90 n.12. Edmo, 2019 WL 3978329 at *29.

Judge Winmill found that Idaho had a de facto ban on GCS, despite their policy purporting to allow it where “necessary.” Edmo, 358 F. Supp. 3d at 1127. The Circuit found its disposition made it unnecessary to reach the de facto issue.

The state further argued that the injunction was overbroad because it ordered them to provide surgery when they are not themselves surgeons. [They actually argued that, believe it or not.] The Court found this point to be “obtuse.” Of course, their obligation would be to get a qualified surgeon to perform the procedure and qualified medical personnel to handle the follow-up to surgery.

On the scope of the injunction, defendants had some success. Idaho DOC officials are dismissed in their individual capacities, where they were not shown to have been personally involved in the denial of Edmo’s Eighth Amendment rights. They remain defendants in their official capacities (including the department head), since they are needed to effectuate injunctive relief. Colwell v. Bannister, 763 F.3d 1060, 1070–1 (9th Cir. 2014).

The private contractual health care provider (Corizon) is to be dismissed as a defendant. The corporation does not have a transgender “policy,” it argues, so it cannot be found liable under Monell. [v. Department of Social Services, 436 U.S. 658 (1978)] theory. The court left this issue about liability of contractual vendors “for another day” in Oyenik v. Corizon Health Inc., 696 F. App’x 792, 794 n.1 (9th Cir. 2017); and it does so here again. Defendant Dr. Eliason, a Corizon psychiatrist, remains a defendant, however. Judge Winmill found him personally liable for violating Edmo’s Eighth Amendment rights, and the Circuit affirmed.

The court concluded: “We apply the dictates of the Eighth Amendment today in an area of increased social awareness: transgender health care…. [T]he medical community’s understanding of what treatments are safe and medically necessary to treat gender dysphoria has changed as more information becomes available, research is undertaken, and experience is gained. The Eighth-Amendment inquiry takes account of that developing understanding. See Estelle v. Gamble, 429 U.S.99, 102 — 03 (1976)…. We hold that where, as here, the record shows that the medically necessary treatment for a prisoner’s gender dysphoria is gender confirmation surgery, and responsible prison officials deny such treatment with full awareness of the prisoner’s suffering, those officials violate the Eighth Amendment’s prohibition on cruel and unusual punishment.”

Edmo is to be released in 2021. It is unclear if defendants can drag this out that long or will decide to release her early. They could also seek a stay from the Supreme Court pending a petition for certiorari. That would take five justices. The court urges remaining defendants “to move forward,” indicating it will not continue the stay after mandate or grant an extension of time to petition for rehearing. Indeed, it commented that “the facts of this case call for expeditious effectuation of the injunction.

The case was argued on appeal for Edmo by Lori Rifkin of Hadsell Stormer & Resnik, LLP (Emeryville and Pasadena, CA); Edmo was also represented by Ferguson Durham PLLC (Boise) and National Center for Lesbian Rights (San Francisco). Numerous amici also appeared on behalf of appellee, including MacArthur Justice Center, ACLU of Idaho Foundation, ACLU National Prison Project, ACLU LGBT and HIV Project, Lambda Legal Defense & Education Fund, Center for Constitutional Rights, medical and mental health organizations, former correctional officials, and other interested non-profit organizations and individuals. See Appearances included with the court’s opinion for a complete list of amici, counsel, and locations.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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