Bench Memos

Law & the Courts

Ninth Circuit Denies Rehearing En Banc on Prisoner Sex-Reassignment Order

In August 2019, a Ninth Circuit panel ruled (in Edmo v. Corizon, Inc.) that the Eighth Amendment requires that the state of Idaho provide “gender confirmation surgery”—that’s quite a euphemism—to a “male-to-female transgender prisoner” suffering from gender dysphoria. Over the objections of ten judges (eight in active service and two in senior status), the Ninth Circuit today denied en banc rehearing in the case.

Here are excerpts from Judge Diarmuid O’Scannlain’s opinion (pp. 5-34, some citations and quotation marks omitted), joined by eight other judges:

With its decision today, our court becomes the first federal court of appeals to mandate that a State pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment. The three-judge panel’s conclusion— that any alternative course of treatment would be “cruel and unusual punishment”—is as unjustified as it is unprecedented. To reach such a conclusion, the court creates a circuit split, substitutes the medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, redefines the familiar “deliberate indifference” standard, and, in the end, constitutionally enshrines precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice….

Deliberate indifference is a high legal standard. It is, after all, under governing precedent one form of the “unnecessary and wanton infliction of pain” that is the sine qua non of an Eighth Amendment violation. Simply put, Edmo must prove that Dr. Eliason’s chosen course of treatment was the doing of a criminally reckless—or worse—state of mind….

[T]he panel concludes that the decision to continue hormone treatment and counseling instead of sex-reassignment surgery for Edmo was “medically unacceptable under the circumstances” because, in short, Dr. Eliason failed to “follow” or “reasonably deviate from” the WPATH Standards of Care. Yet such an approach to the Eighth Amendment suffers from three essential errors. First, contrary to the panel’s suggestion, constitutionally acceptable medical care is not defined by the standards of one organization. Second, the panel relies on standards that were promulgated by a controversial self-described advocacy group that dresses ideological commitments as evidence-based conclusions. Third, once the WPATH Standards are put in proper perspective, we are left with a “case of dueling experts,” compelling the conclusion that Dr. Eliason’s treatment choice was indeed medically acceptable….

Even were the panel correct that the only medically acceptable way to approach a gender dysphoric patient’s request for sex-reassignment surgery is to apply the WPATH Standards of Care, we still could not infer a constitutional violation from these facts. As the Supreme Court has explained, the Eighth Amendment simply proscribes categories of punishment, and punishment is “a deliberate act intended to chastise or deter.” “[O]nly the ‘unnecessary and wanton infliction of pain’ implicates the Eighth Amendment.” …

Even in a legal universe in which the WPATH Standards define adequate care, Dr. Eliason’s deviations were not deliberately indifferent. He selected a course of treatment that, in light of the complex of diagnoses, the grave risks, and the rapidly evolving nature of the medical research, was not obviously inadequate….

The panel’s novel approach to Eighth Amendment claims for sex-reassignment surgery conflicts with every other circuit to consider the issue….

We have applied the traditional deliberate-indifference standard to requests for back surgery, kidney transplant, hip replacement, antipsychotic medication, and hernia surgery. Yet suddenly the request for sex-reassignment surgery—and the panel’s closing appeal to what it calls the “increased social awareness” of the needs and wants of transgender citizens—effects a revolution in our law! The temptation to stand at what we are told is society’s next frontier and to invent a constitutional right to state-funded sex-reassignment surgery does not justify the revision of previously universal principles of Eighth Amendment jurisprudence.

Judge Patrick Bumatay issued his own dissent (pp. 36-48), joined in whole by five other active judges and in its Part II by a sixth. In Part I of his dissent, Bumatay explores the history and original understanding of the Eighth Amendment. In Part II, he explain how the panel’s decision departs from the Supreme Court’s precedent.

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