Supreme Court Declines to Delay a Trans Inmate’s Surgery

Adree Edmo, a transgender inmate in Idaho seeking gender confirmation surgery while in prison.
Courtesy: Ferguson Durham, PLLC

The United States Supreme Court, in a brief written order on May 21, denied a petition from the State of Idaho to delay gender confirmation surgery for Adree Edmo, a transgender prison inmate.

The US District Court in Idaho in 2018 had ruled that the Idaho Department of Corrections must provide the treatment for Edmo’s gender dysphoria. That ruling was upheld in August 2019 by a three-judge panel of the Ninth Circuit Court of Appeals. In February of this year, the Ninth Circuit announced it would not grant rehearing of that appellate ruling by an en banc panel of 11 members of the circuit’s bench.

The 2019 three-judge ruling, from two circuit judges and a district judge, all three appointed by President Bill Clinton, had ruled that denying Edmo her surgery constituted “cruel and unusual punishment” prohibited by the Eighth Amendment.

The Supreme Court’s action, in which Justices Clarence Thomas and Samuel Alito were the only two who indicated they would have granted Idaho the stay it sought, clears the way for Edmo to receive treatment.

However, separately, Idaho has a petition before the high court seeking review of the Ninth Circuit ruling, and if the court grants that petition the appellate decision would be automatically stayed pending the Supreme Court’s disposition of the case. There is no indication yet when the high court might decide on the petition for review.

The Ninth Circuit ruling on Edmo contradicts rulings over the past several years by the First, Fifth, and 10th Circuits, all of which the Supreme Court declined to review, so the high court might yet decide to take the Idaho case to address the split on this issue among circuit courts around the country.

That contingency did not keep attorneys for Edmo, including the National Center for Lesbian Rights, from claiming a victory in the case.

“The Court’s denial of the stay clears the way for Adree Edmo to get medically necessary surgery that she has needed for years,” said Amy Whelan, senior staff attorney at NCLR and co-counsel for Edmo, in a written statement. “The lower courts found, based on extensive evidence and proof, that the Idaho Department of Corrections and Corizon Health [the department’s healthcare provider] are violating Ms. Edmo’s constitutional rights by withholding this critical medical care. Today’s decision means that the State can no longer delay in providing care that is essential to Ms. Edmo’s health, safety, and well-being.”

Lori Rifkin, a private attorney with the San Francisco-based Rifkin Law Office who is Edmo’s lead attorney, also in a written statement, said, “The Supreme Court appropriately declined the State’s request for a stay that would have prevented Ms. Edmo from getting the care she needs. Because the lower court decisions applied settled Eighth Amendment precedent to the facts of this case, there is no basis for further review of those careful and detailed decisions.”

Edmo is also represented by the Los Angeles-based Hadsell Stormer and Renick LLP, and the Boise-based Ferguson Durham, PLLC.

It is significant that when the full Ninth Circuit declined to rehear the Edmo case earlier this year, nine of the 29 active judges on the circuit bench dissented in three separate opinions. In essence, the dissenters agreed with other federal circuit judges elsewhere in the country that gender confirmation surgery remains a novel and controversial procedure within the medical community — arguing that the conclusions of the prison doctors treating Edmo should not be second-guessed by judges.

Advocates for transgender people have strenuously disagreed, and have been successful in recent litigation seeking such coverage under state employee health care programs, Medicaid, and private insurance policies challenged under Obamacare’s anti-discrimination provisions. And numerous federal and state judges have accepted the argument that such procedures are now part of accepted medical practice.

Even the US Tax Court has weighed in, finding that trans people can treat the costs of gender confirmation surgery as deductible medical expenses, rejecting the IRS’ argument that it is nondeductible “cosmetic” surgery.

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