Bench Memos

Law & the Courts

Judicial-Identity Disorder

“Judicial-identity disorder,” or “judicial dysphoria,” is my proposed label to describe judges who experience significant discontent with the role they were assigned when they took office. JID typically manifests itself in judicial decisions that are inconsistent with the judicial role and in behavior that reflects a severe and pervasive discomfort with neutrally applying the law. Unfortunately, no effective treatment for the condition is currently available.

Federal district judge Jon S. Tigar, appointed by President Obama in 2013 to the Northern District of California, has quickly joined the ranks of those manifesting symptoms of JID. One month ago, Tigar issued an order ruling that a California prisoner, Jeffrey Norsworthy, was likely to succeed on the merits of his claim that prison officials have violated his Eighth Amendment rights by not providing him sex-reassignment surgery. Tigar ordered the state to “take all of the actions reasonably necessary to provide Norsworthy sex reassignment surgery as promptly as possible.” (Regular readers might recall that the en banc First Circuit rejected such a claim in December 2014, after a panel had initially ruled in favor of the claim.)

Tigar didn’t stop there. Just last Monday, he denied the state’s request for a stay of the preliminary injunction pending appeal. Despite agreeing that the state’s appeal raised a sufficiently serious legal question to satisfy the merits prong of the stay analysis, Tigar concluded that the state couldn’t show irreparable injury from denial of the stay. But if the surgery goes forward, the state will never be able to recover the various costs associated with it, so that injury will be irreparable. Further, denial of the stay threatens to deprive the state of its right of appellate review. Tigar says in his stay order that the state will still have “the opportunity to present [its] arguments concerning constitutionally adequate care for patients with gender dysphoria to the Ninth Circuit, because Norsworthy is not the only [state] inmate seeking [sex-reassignment surgery.]” But no other inmate is a party to this case, so the Ninth Circuit would be likely to dismiss the appeal as moot.

Tigar’s own rulings in the case seem to have undergone their own gender dysphoria. In his first order in March 2014, his caption identifies the plaintiff as “Jeffrey B. Norsworthy, aka, Michelle-Lael B. Norsworthy.” But even though his order last month states that the plaintiff’s legal name remains Jeffrey Norsworthy, Tigar identifies the plaintiff in the caption simply as “Michelle-Lael Norsworthy.”  In March 2014, Tigar had referred to Norsworthy as a “transgender individual” (emphasis added) and as a “transsexual,” but he now calls Norsworthy a “transsexual woman” (emphasis added). And while he has used feminine pronouns for Norsworthy from the beginning, he originally felt obligated to justify his denial of biological reality by saying that he was simply following Norsworthy’s own usage in the complaint. His disdain for biological reality is now manifested in his definition of a “transsexual woman” as “a person whose female gender identity is different from the male gender assigned to her at birth.” (Emphasis added.) Ah, yes, that arbitrary “assign[ment]” of “gender” at birth.

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