Last August 23, a three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit upheld a trial judge’s order that the Idaho Corrections Department provide gender affirmation surgery for a transgender inmate, Adree Edmo. The panel, composed of two circuit judges and a district judge all appointed by President Bill Clinton, found that prison officials’ denial of the procedure constituted “cruel and unusual punishment” in violation of the 8th Amendment of the Bill of Rights. On February 10, the full 29-judge 9th Circuit announced that it had voted to deny Idaho’s petition for rehearing of the case by a larger panel, referred to as “en banc” rehearing. In the 9th Circuit, an en banc panel would have eleven judges. Edmo v. Corizon, Inc., 2020 Westlaw 612834, 2020 U.S. App. LEXIS 4107.
This vote effectively adopted as circuit precedent the panel ruling that a transgender inmate suffering from severe gender dysphoria is entitled to gender confirmation surgery at the state’s expense when credible medical experts have testified that the procedure is necessary treatment for the inmate’s serious medical condition. This contradicts rulings over the past several years by the 1st, 5th, and 10th Circuits, all of which were denied review by the Supreme Court. Idaho will ask the U.S. Supreme Court to resolve this circuit split, and the Court is likely to agree to take the case.
The denial of review was by no means unanimous. It revealed a sharp political split on the huge 9th Circuit, which has 20 senior status (semi-retired) judges as well as 29 actively serving. Judges in senior status ordinarily do not participate in Circuit votes on petitions for en banc review, but they may participate in discussing the petition under Circuit rules, and two of the senior status judges, Diarmuid O’Scannlain (appointed by Ronald Reagan) and Carlos Bea (appointed by George W. Bush), joined with nine of the active duty judges (all appointed by either George W. Bush or Donald J. Trump) in expressing their dissent in three separate dissenting opinions, one written by O’Scannlain. None of the sixteen active duty judges appointed by Bill Clinton or Barack Obama voted to grant the petition. Four of Trump’s appointees refrained from voting for the petition, as did one of Bush’s appointees. (All 9th Circuit judges appointed before Bill Clinton became president are now on senior status, fully retired, or deceased.)
It is noteworthy that with the recent seating of Lawrence Van Dyke, who joined two of the dissenting opinions, Trump has appointed ten of the 29 active judges in the first three years of his term. There are no 9th Circuit vacancies for him to fill at present.
Judge O’Scannlain’s opinion, the lengthiest of the three, was joined by eight other judges. In his introduction, he said that the panel’s decision was “as unjustified as it is unprecedented,” criticizing the panel for substituting “medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, “ as “redefining” the “deliberate indifference standard” adopted by the Supreme Court for determining when a denial of medical treatment violates the 8th Amendment, and “constitutionally enshrining precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.”
The three-judge panel in this case produced a lengthy, detailed opinion, which turned heavily on the panel’s endorsement of trial judge B. Lynn Winmill’s conclusion that guidelines published by the World Professional Association for Transgender Healthcare (WPATH) are the “gold standard” that effectively define the minimally acceptable level of care for transgender inmates under the 8th Amendment. The WPATH standards list six criteria for determining whether gender confirmation surgery is indicated for a particular transgender individual. The prison doctors involved in the decision to deny the procedure to Edmo concluded that two of the six were not fulfilled. Edmo’s expert witnesses, both involved with devising the most recent edition of the WPATH standards based on their extensive experience in treating transgender individuals, testified that all six criteria were met.
Perhaps the most crucial difference between the experts was the standard requiring that the individual have had “12 continuous months of living in a gender role that is congruent with their gender identity,” seen as important because of the irreversible nature of the surgical procedure. The prison doctors took the position that this can only be fulfilled by living in that gender role in civilian society, especially where the inmate’s projected date of release is relatively soon after such a procedure would take place. They argued that the pre-surgical experience is a crucial part of the individual’s gender-role transition, and is not really possible in a prison context. Their view would effectively mean that such a surgical procedure would never be available for a transgender inmate unless they had lived in the gender role consistent with their gender identity for at least 12 months before they were incarcerated.
By contrast, the position of the WPATH experts is that transgender inmates can fulfill this requirement by time spent living that gender role while incarcerated. The WPATH guidelines assert that the same criteria can apply to inmates as apply to civilians.
Judge O’Scannlain heavily criticized the trial court and panel for having disparaged the testimony of the prison doctors and placed their reliance totally on Edmo’s experts. O’Scannlain pointed out that Edmo’s experts lacked relevant experience of dealing with gender dysphoria treatment issues in a prison context. He pointed out that WPATH, self-described as a professional association, also sees itself as an advocacy group, that some of the members of the body that drafted and approved the standards are not doctors, thus reflecting that the standards are not solely based on medical expertise, and he argued that federal courts, while treating the WPATH standards as an important source of information in transgender cases, have not treated WPATH’s guidelines as dispositive or as definitely defining the minimal constitutionally-required standard of treatment.
He also pointed out that, despite the prison doctor’s concern about Edmo’s lack of 12 months real-world experience living as a woman, the doctor had not determined that Edmo should permanently be denied the procedure, but rather that she was not ready for it in light of her other medical and psychological issues but might be in the future.
In support of his position concerning the WPATH standards, O’Scannlain cited decisions by the 1st, 5th and 10th Circuit Courts of Appeals, all of which have refused to find an 8th Amendment violation, and all of which have noted that the WPATH guidelines are “controversial.” Furthermore, in recent years the Supreme Court had denied petitions to review these circuit court decisions.
O’Scannlain seemed most perturbed by the panel’s characterization of the conduct of Edmo’s treating physician and the committee members with whom he had consulted as “deliberate indifference” to Edmo’s serious medical condition. He noted the extensive contact with Edmo, the provision of hormones and psychological therapy, and Edmo’s own testimony that the hormone treatment had relieved her gender dysphoria to some extent.
He also observed that the Supreme Court has never held that the level of prison care is unconstitutional when qualified medical experts disagree about whether the treatment sought by the inmate is necessary.
Another less lengthy but no less pointed dissent was written by Patrick Bumatay, a Trump appointee (and an out gay man) who was seated on the circuit court just last year. Six of the circuit judges joined his dissent, five in whole and Trump-appointee Daniel Collins in part.
Bumatay, an “originalist,” insisted that the court must identify the original meaning of the 8th Amendment – its meaning when it was adopted as part of the Bill of Rights in 1791 – to interpret it today. Although the Supreme Court as a whole has not endorsed such “originalism” as part of constitutional interpretive doctrine, several members of the Court, including Trump’s two appointees, are avowed originalists.
Referring to 18th century sources for the meanings of “cruel” and “unusual,” Bumatay cites opinions by originalist Supreme Court justices quoting 18th century dictionaries, which define “cruel” as “pleased with hurting others; inhuman, hard-hearted, void of pity; wanting compassion; savage; barbarous; unrelenting” and noting more recent sources describing cruel punishments as “inhumane” and involving the “unnecessary and wanton infliction of pain.” “Unusual” was defined in the 18th century as something that ran contrary to longstanding usage or custom, or that had long fallen out of use. He noted continuing controversy over whether “punishment” under the 8th Amendment is limited to the sentence imposed by courts upon conviction, or would also extend to the treatment of incarcerated convicts. The weight of Supreme Court precedent, over vigorous dissents by Justice Clarence Thomas, has fallen on the later view.
In light of these “originalist” meanings, he argued, “Idaho’s actions are far from a constitutional violation based on the clause’s text and original meaning. Idaho’s actions simply do not amount to the ‘barbarous’ and ‘inhuman’ treatment so out of line with longstanding practice as to be forbidden by the Eighth Amendment.” For one thing, with one recent exception in California, no transgender inmate has been given gender confirmation surgery while incarcerated, and the denial of en banc review in this case makes the 9th Circuit the only court of appeals that has approved a final order to provide such treatment, so it can hardly be described as “unusual” for a transgender inmate to have to forego this procedure while incarcerated. Thus, this is not “unusual.” And, as had O’Scannlain, Bumatay argued that the present WPATH guidelines, adopted in 2011, do not represent a consensus of the medical profession. They are, by their own terms, described as “evolving,” and have not been treated as definitive by the federal agency administering Medicare and Medicaid “due to inadequate scientific backing.”
Bumatay and O’Scannlain thus joined with other federal circuit judges who have accepted the arguments of states’ attorneys in inmate cases that gender affirmation surgery remains a novel and controversial procedure within the medical community. Advocates for transgender people have strenuously disagreed, and have been successful in recent litigation seeking coverage for such procedures under state employee health care programs, Medicaid, and private insurance policies challenged under the Obamacare anti-discrimination provision. Numerous federal and state judges have accepted the argument that such procedures are now part of accepted medical practice and reject categorical exclusions from coverage for such procedures. Even the U.S. Tax Court has weighed in, finding that transgender people can treat the costs of gender confirmation surgery as deductible medical expenses, finding that this can be a necessary treatment for a serious medical condition, rejecting the IRS’s argument that it is nondeductible “cosmetic” surgery.
Contrary to the dissenters here, the overwhelming majority of the 9th Circuit judges did not vote to grant en banc review and, while not expressing their views in writing, obviously were willing to let stand the panel’s treatment of the issues, which now becomes binding precedent on all the federal courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
In the second part of his dissenting opinion, Bumatay argues that the panel decision is inconsistent with the standards the Supreme Court has set under the 8th Amendment. He characterizes what the panel has done as effectively reducing the test to one of medical malpractice, even though the Supreme Court has said that medical malpractice does not by itself equate to a constitutional violation. “Deliberate indifference” requires a higher showing by the plaintiff. Bumatay joined O’Scannlain in rejecting the idea that federal judges should be making medical judgments and substituting their judgments about appropriate treatment for those of prison medical personnel.
Judge Daniel Collins joined only the second part of Bumatay’s opinion, abstaining from signing on to the “originalism” analysis. He wrote a brief separate dissent, emphasizing his view that the district court and the 9th Circuit panel “have applied standards that look much more like negligence than deliberate indifference. Whether Dr. Eliason [Edmo’s prison doctor] was negligent or not (a question on which I express no opinion),” he continued, “his treatment decisions do not amount to ‘cruel and unusual punishment,’ and we have thus strayed far from a proper understanding of the 8th Amendment.”
Idaho’s determined defense of this case and its repeated requests to stay the lower court rulings as it appealed each step leaves no doubt that it will ask the Supreme Court to review the ruling. They have several months to file a Petition, which might not be considered by the Court until the beginning of their October 2020 Term, since the Court waits until responses and replies to Petitions have been filed before considering it in conference. Assuming that Idaho’s Attorney General’s Office, like those of most states, would routinely ask the Court to extend time to file the petition, it would not likely be filed before the summer and thus not ready for conferencing before the Court concludes its current term late in June.