By William J. Rold.
This article appears in the January 2019 edition of LeGaL's LGBT Law Notes. Read it here!
Chief U.S. District Judge Barry Lynn Winmill ordered the Idaho Department of Corrections to provide transgender inmate Andree Edmo with “adequate medical care, including gender confirmation surgery,” within six months -- in a comprehensive decision reported at Edmo v. Idaho Dep't of Correction, 2018 U.S. Dist. LEXIS 211391, 2018 WL 6571203 (D. Idaho, December 13, 2018). Because Idaho has recently “updated” its policies and provides transgender prisoners with “gender-appropriate underwear, clothing, and commissary items,” Judge Winmill denied injunctive relief on these requests, without prejudice. This is one of a handful of district court decisions -- joining others reported in Law Notes from California (Norsworthy), Florida (Keohane), and Massachusetts (Kosilek) -- that is essential reading for transgender prisoner advocates.
Judge Winmill found that gender confirmation surgery is “medically necessary under generally accepted standards of care.” In so ruling, “the Court notes that its decision is based upon, and limited to, the unique facts and circumstances presented by Ms. Edmo’s case. This decision is not intended, and should not be construed, as a general finding that all inmates suffering from gender dysphoria are entitled to gender confirmation surgery.” Refreshingly, Judge Winmill recognizes that not all transgender people have dysphoria, which is a disorder that occurs when the “incongruity” between birth gender and gender orientation “is so severe that it impairs the individual's ability to function.” Many transgender people “are comfortable living with their gender identity, role, and expression without surgery. For others, however, gender confirmation surgery, also known as gender or sex reassignment surgery ("SRS"), is the only effective treatment.”
Over the last years, Edmo’s hormone therapy has rendered her “hormonally confirmed -- meaning she had the same circulating sex hormones and secondary sex characteristics as a typical adult female.” Edmo has thus “achieved the maximum physical changes associated with hormone treatment.” Nevertheless, Edmo “continued to experience such extreme gender dysphoria that she twice attempted self-castration.” After the second attempt, the prison clinic could not staunch the hemorrhaging, and she was taken to a hospital emergency room.
Edmo sued officials of the Idaho Department of Corrections [“IDOC”] and Corizon, its contractual medical provider. Judge Winmill found that Edmo has a serious medical need and that the defendants, “[w]ith full awareness of [her] circumstances… have ignored generally accepted medical standards for the treatment of gender dysphoria.” The opinion tracks the DSM-V and the World Professional Association of Transgender Health ["WPATH"] Standards at length. Judge Winmill notes that genital surgery is “often the last and the most considered step” in the treatment process – after the maximum physical effects of hormone therapy have been achieved, typically within 2-3 years. For some, surgery is “the only effective treatment and is medically necessary.”
It is an irony of the current development of transgender civil rights law that transgender inmates who are psychologically well-adjusted may not have a “serious medical need” for surgery under the Eighth Amendment, since they do not have the diagnosed “inability to function” – yet, when it comes to the armed forces, the Trump Administration has turned the argument on its head. In its application to the Supreme Court for certiorari before judgment in the appeals of cases enjoining the ban on transgender people serving in the military (see lead articles in the December 2018 and January 2019 issues of Law Notes), the Government argues that “serious medical need” and DSM diagnosis of gender dysphoria render transgender soldiers medically “unfit” for service. So, the argument used to support gender confirmation surgery in prison is used to support a ban on transgender military personnel. This says much about the binary roots of the nascent legal and psychiatric approaches to transgender people, despite their constellation of presentation.
Judge Winmill’s opinion dispels two of the most common objections to confirmation surgery encountered by prisoners: (1) the presence of psychological co-morbidity – or, the existence of other mental health conditions that are not well-managed; and (2) the “inability” in a male prison to experience life as a woman for twelve months prior to surgery. Judge Winmill accepts WPATH standards, which are also adopted by the National Commission on Correctional Health Care, on both points. WPATH Standards make clear that co-existing mental health conditions and their management should not be separately considered if they are a direct result of the patient’s dysphoria – here, the anxiety and self-harm. Edmo’s mental health conditions, apart from the dysphoria, are managed. In addition, WPATH Standards specifically state that living for twelve months in a gender role congruent with gender identity can be satisfied in prison. Edmo has held two jobs while in prison and has presented as feminine at work. Judge Winmill finds that neither exclusion is fatal to Edmo’s establishing a serious medical need for surgery.
Although Judge Winmill held a hearing (4 days) on a preliminary injunction, all recognized it was tantamount to a trial on the merits. At least five experts testified: Drs. Ettner and Gorton for plaintiff; and Drs. Garvey, Andrade, and Campbell for defendants. Others weighed-in by affidavit. Judge Winmill discusses their backgrounds, qualifications, experience, and opinions at length. He also describes the policies of IDOC and Corizon regarding gender confirmation surgery. Neither has ever recommended or provided it. Treating providers at IDOC and Corizon both diagnosed severe gender dysphoria, but they did not recommend surgery, for reasons that Judge Winmill found to be outside the range of generally accepted medical opinion. He called their views “outliers,” but he did not exclude them under Daubert v. Merrell Dow Pharm., 509 U.S. 579, 597 (1993). He gave little weight to their testimony, however, finding that Edmo’s treating providers in IDOC and at Corizon did not evaluate her for surgery until she filed this lawsuit. He also found that some of their reasons for denying surgery were contradicted by their own chart notes. Judge Winmill rejected the argument that irreversible surgery should not be performed in prison or “rushed,” finding no support in the facts for either proposition, and noting that Edmo’s decision is plainly not “rushed” and that studies showed that “regret” for gender confirmation surgery is no higher than 1%.
Judge Winmill noted that Edmo was viewed by some defendants as gay. He found, however, that she “views herself as a woman with a heterosexual attraction to men.” He found that Edmo was eligible for parole but denied same for disciplinary reasons. Upon scrutiny, he found that her “tickets” were for rules violations relating to her orientation: wearing make-up, styling her hair, altering male undergarments, and the like. He wrote: “Ms. Edmo will likely be released from prison sometime in 2021.”
Judge Winmill reviews the standards for a mandatory preliminary injunction, omitted here. On the specific merits, he has little trouble finding that Edmo presents a serious medical need for treatment under the Eighth Amendment, citing Norsworthy v. Beard, 87 F. Supp. 3d 1164 (N.D. Cal. 2015). He wrote: “Defendants’ evidence to the contrary is unconvincing and suggests a decided bias against approving gender confirmation surgery.” Continuing with state of mind analysis, Judge Winmill found that defendants did not exercise individualized medical judgment in Edmo’s case. Rather, they applied a de facto policy or practice of refusing this treatment for gender dysphoria to prisoners – a “blanket policy” found unconstitutional in Norsworthy, 87 F. Supp. 3d at 1191. He found that Edmo was “likely to succeed on the merits of her Eighth Amendment claim.
Edmo would likely suffer irreparable harm if not granted reasonably prompt surgery. Judge Winmill again cites to Norsworthy, 87 F. Supp. 3d at 1192-3; and to the Missouri litigation in Hicklin v. Precynthe, 2018 WL 806764 at *13 (E.D. Mo., 2018), which was the subject of a Law Notes article in March 2018, at pages 108-9. Judge Winmill also found the balance of equities and the public interest to favor the issuance of a preliminary injunction. Although two of defendants’ experts were from Massachusetts, Judge Winmill does not mention the en banc decision in which a sharply divided First Circuit overturned a preliminary injunction directing sex reassignment surgery for a transgender inmate in Koselik v. Spencer, 774 F.3d 63 (1st Cir. 2014). His findings provide ample basis for distinguishing Koselik, however, should the Ninth Circuit be so inclined.
It is unclear whether Idaho will parole Edmo rather than comply with the preliminary injunction. Litigation has continued after releases of transgender inmates -- in California in Norsworthy v. Beard, 802 F.3d 1090, 1091-2 (9th Cir. 2015) – see also, Order in Norsworthy v. Lyn, 18-cv-7136 (N.D. Calif., December 7, 2018) (discussing history after remand) – and in Georgia in Diamond v. Owens, 131 F.Supp.3d 1346, 1353 (M.D. Ga., 2015).
Edmo is represented by National Center for Lesbian Rights, San Francisco; Ferguson Durham, PLLC, Boise; and Hadsell Stormer & Resnick, LLP, Pasadena. Plaintiff’s counsel notified the U.S. Department of Justice of a constitutional challenge to § 12211(b)(1) of the Americans with Disabilities Act (should it be applied to include gender dysphoria under the ADA’s exclusions for “transsexualism… [and] gender identity disorders not resulting from physical impairments”). The Department of Justice, through the Civil Division in Washington, declined to intervene, and Judge Winmill does not address the ADA in his opinion. Counsel also raised claims under the Fourteenth Amendment and the Affordable Care Act, but Judge Winmill did not rely on them in issuing the preliminary injunction.