In a ruling on Monday (in Clark v. Valletta), a divided panel of the Second Circuit ruled that prison officials were entitled to qualified immunity on a prisoner’s claim that they violated the Eighth Amendment by failing to provide him stronger hormone therapy and a vaginoplasty as treatment for his gender dysphoria.
Judge Michael Park wrote the impressive majority opinion, which Judge Richard Sullivan joined. Judge Beth Robinson dissented. (Park and Sullivan were appointed by Donald Trump, Robinson by Joe Biden.)
1. Here’s a sketch of Park’s reasoning:
It is undisputed that Clark suffered from severe gender dysphoria. But how to treat that disorder is not settled.
Qualified immunity shields an official from money damages unless a plaintiff pleads facts showing that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. What qualifies as “clearly established” law should not be defined at a high level of generality.
Defendants provided Clark with psychotherapy, antidepressants, lifestyle accommodations, and hormone therapy—all of which are reasonable treatments for gender dysphoria. Clark did not have a clearly established right to a specific course of gender-dysphoria treatment beyond those.
The Supreme Court has never addressed the medical care owed to transgender inmates under the Eighth Amendment. The Second Circuit has not recognized any right to gender-dysphoria treatment. And most other circuits that have addressed the issue (First, Fifth, Seventh, Eighth, Tenth, Eleventh) have rejected deliberate-indifference claims for denial of specific gender-dysphoria treatments.
Even if Clark had a clearly established right to gender-dysphoria treatment, defendants would still have immunity because it was objectively reasonable for them to believe that Clark was not entitled to treatment beyond what he received.
2. I’ll note that Judge Park broadly avoids transgender rhetoric. He deftly does not use any pronouns to refer to Clark. He does not himself identify Clark as a “transgender woman”; he says only that prison clinicians (seven years into Clark’s sentence) “learned that Clark identified as a transgender woman.”
In sharp contrast, Judge Robinson pervasively uses female pronouns to refer to Clark, including in this absurd passage (emphasis added):
In July 2016, Clark attempted to castrate herself by tying a shoelace around her penis and scrotum and cutting her scrotum with a pair of nail clippers.