Bench Memos

“The Crumbling Gender Binary”

Earlier this week, I passed along news of the First Circuit’s en banc ruling holding that the Eighth Amendment does not require the Massachusetts prison system to provide sex-reassignment surgery to a prisoner. I hadn’t noticed at the time how histrionic Judge O. Rogeriee Thompson’s dissent—especially her closing paragraph—is.

Thompson states that she is “confident that this decision will not stand the test of time, ultimately being shelved with the likes of Plessy v. Ferguson … and Korematsu v. United States. Her litany of how “damaging” the ruling is culminates in the charge that it will—hold on to your seats!—“enable[] correctional systems to further postpone their adjustment to the crumbling gender binary.”

Yes, both Thompson and William Kayatta, who joined her dissent, were appointed by President Obama. 

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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