The US Supreme Court announced December 9 that it would not review a Fifth Circuit Court of Appeals ruling that Texas had no obligation to provide gender confirmation surgery to a transgender prisoner.
Circuit Judge James Ho, an appointee of President Donald J. Trump, had written the majority opinion in a 2-1 decision in Gibson a/k/a Lynn v. Collier on March 29. Circuit Judge Rhesa Hawkins Barksdale, an appointee of President George W. Bush, dissented.
The Fifth Circuit found that transgender inmate Vanessa Lynn “offered no evidence” that there was “universal acceptance” in the medical community that gender confirmation surgery was either necessary or effective as a treatment for gender dysphoria. Given what it characterized as a difference of opinion among medical experts, the court found Lynn had not proved that denying the treatment was either cruel or unusual.
The court rejected Lynn’s contention that the Eighth Amendment requires prison authorities to make an individualized assessment of each inmate’s medical claims. An established generalized policy based on the conclusion that a treatment does not enjoy universal acceptance in the medical community is defensible, the Fifth Circuit found.
Finally, the court held that denying gender confirmation to inmates is certainly not “unusual” given that claims for such treatment have almost away been rejected.
Judge Barksdale’s dissent focused on the fundamental unfairness of the entire proceeding. The district court granted summary judgment in favor of Texas authorities with Lynn representing herself and prevented from presenting evidence.
The Fifth Circuit’s ruling relied heavily on a 2014 ruling by the full bench of the First Circuit in Kosilek v. Spencer, where the court premised its holding on “expert testimony” that Judge Ho cited to support the conclusion that gender confirmation lacks universal medical acceptance. But a requirement of “universal acceptance” sets a virtually impregnable barrier to the right to access such treatment through litigation, since in an area as contentious as this there will always be disagreements.
By contrast, the Ninth Circuit, in pending litigation in Edmo v. Corizon, Inc., ruled on August 23 that denying the surgery violated the constitutional rights of a transgender inmate due to the severity of her gender dysphoria. That decision approved an individualized approach to the plaintiff’s needs, while finding it was not necessary to determine if such surgery is always necessary. The decision upheld a district court’s decision to accept the testimony of the plaintiff’s experts and discount testimony by the state’s experts, who the court concluded were not well qualified to weigh in on the case. The defendant in Edmo, the Idaho Department of Corrections, is seeking rehearing by the full Ninth Circuit bench, and if it fails there is likely to seek Supreme Court review, which would likely be granted.
In the Fifth Circuit case, though Vanessa Lynn represented herself in the district court, her appeal was handled pro bono by Stephen Louis Braga of the Appellate Litigation Clinic at the University of Virginia Law School. Braga also filed the petition for Supreme Court review.
In responding to Braga’s petition, the Texas Attorney General’s Office said of the Ninth Circuit’s decision in Edmo, “But that outlier opinion does not make this issue” worthy of review. The AG’s office also argued that “any disagreement between the courts of appeals is shallow and lopsided,” contending that “the Ninth Circuit’s poor reasoning is not likely to be adopted elsewhere, and if this Court is concerned about inconsistent circuit authority, the solution is to summarily reverse the Ninth Circuit.”
Chutzpah, indeed, given the detailed analysis both at the district and circuit court level in the Edmo case versus Judge Ho’s brief, dismissive opinion for the Fifth Circuit in a case where the plaintiff was never given the chance to argue the merits at the district court level.