In a move that could be viewed as surprising, the US Supreme Court on October 13 denied a petition by the State of Idaho to review a 2019 decision by the San Francisco-based Ninth Circuit Court of Appeals affirming a federal district court ruling that ordered the Idaho Corrections Department to provide gender confirmation surgery for a transgender inmate, Adree Edmo.
That Ninth Circuit decision created a circuit precedent that a transgender inmate suffering from severe gender dysphoria is entitled to gender confirmation surgery at the state’s expense when credible medical experts testify that it is necessary treatment for their serious medical condition.
Three months after Adree Edmo’s gender confirmation surgery, high court lets Eighth Amendment decision stand
Earlier this year, the full circuit had denied a rehearing of the August 2019 ruling from a three-judge panel, and in May the high court declined to issue a temporary stay of the order while Idaho proceeded with its appeal. According to the Idaho State Journal, Edmo underwent the surgery she sought at state expense in July, but Idaho continued its challenge to the order handed down.
The Supreme Court’s refusal to hear Idaho’s appeal is significant in than three other circuit courts of appeals — the Boston-based First, the New Orleans-based Fifth, and the Denver-based 10th — have in recent years ruled against the right of transgender inmates to receive gender confirmation surgery. The high court often concludes that such a split among circuit courts calls for resolution by the nation’s highest bench.
While the Ninth Circuit decision was based on the specifics of Edmo’s case, the Fifth Circuit, for example, in a decision authored by Judge James Ho, an appointee of President Donald Trump, ruled that the Texas’ prison system’s categorical ban on gender confirmation surgery for inmates is justified.
The Supreme Court did not indicate why it declined to hear the Idaho appeal, but it is possible that because Edmo received her surgery the underlying dispute was viewed as moot.
Last year’s Ninth Circuit ruling, from a panel that consisted of three appointees of President Bill Clinton, found that the prison officials’ denial of Edmo’s surgery constituted “cruel and unusual punishment” in violation of the Eighth Amendment.
The full circuit’s decision to refuse rehearing of the case this past February occasioned three dissenting opinions which had the support of 11 judges out of the 29 actively serving and 20 senior status judges. Senior Judge Diarmuid O’Scannlain, an appointee of President Ronald Reagan, wrote that the 2019 panel decision was “constitutionally enshrining precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.”
In fact, the three-judge panel produced a lengthy, detailed opinion, which turned heavily on the conclusion of the trial judge, B. Lynn Winmill, that guidelines published by the World Professional Association for Transgender Healthcare (WPATH) are the “gold standard” effectively defining the minimally acceptable level of care for trans inmates under the Eighth Amendment. Even though Edmo’s prison doctors concluded that two of WPATH’s six criteria for determining whether gender confirmation surgery is indicated were not met, the inmate’s expert witnesses, both involved with devising the most recent edition of the WPATH standards, testified that all six were met.
The most crucial difference between the experts was on the standard requiring that an individual live for 12 months continuously in their gender identity. The prison doctors maintained this could only be done in civilian society — essentially foreclosing the opportunity for a trans inmate to receive gender-affirming surgery.
Curiously, another dissent was written by out gay Trump appointee Patrick Bumatay and joined by six other judges. That opinion took the “originalist” posture that the court must identify the original meaning of the Eighth Amendment when adopted in 1791. Looking to the dictionary definitions of “cruel” and “unusual” from that time, Bumatay wrote, “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.”
Prior to Edmo’s surgery, only one inmate in the nation — in California — had ever been approved for gender confirmation surgery, leading Bumatay to conclude that Idaho’s resistance to paying for surgery was not “unusual.”
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