BOISE, Idaho — The 9th U.S. Circuit Court of Appeals has become the first circuit in the nation to order a state to pay for an inmate’s gender confirmation surgery, ruling Monday that a three-judge panel decision will stand.
Idaho Gov. Brad Little says he will ask the U.S. Supreme Court to hear the case.
A three-judge panel of the appellate court first ruled in August that the state must give 32-year-old inmate Adree Edmo gender confirmation surgery, agreeing with a federal judge in Idaho that denying the surgery amounted to cruel and unusual punishment, a violation of the Eighth Amendment of the U.S. Constitution.
The state then asked the full appeals court to reconsider the case — but the court voted against the move this week.
However, several judges expressed their concern Monday with the underlying ruling directing the state to pay for gender reassignment surgery for Edmo. Several others dissented completely with the ruling not to reconsider the case.
Edmo has been housed in a men’s prison since she first began serving time on a charge of sexually abusing a child younger than 16 in 2012. She is scheduled for release in July of 2021.
She sued in 2017, contending that the state’s refusal to provide her with gender confirmation surgery causes her severe distress because she has gender dysphoria, a condition that occurs when the incongruity between a person’s assigned gender and their gender identity is so severe that it impairs their ability to function.
Edmo’s attorney, Lori Rifkin, said Edmo’s suffering was so great that she twice tried to cut off her own testicles in her prison cell. But attorneys for the Idaho Department of Correction and the state’s contracted medical provider, Corizon, have contended that several physicians who have examined Edmo have determined that gender confirmation surgery could do more harm than good, in part because it could exacerbate her other mental health conditions and because she hasn’t lived in a non-prison setting as a woman for at least a year.
Judge Diarmuid O’Scannlain, joined by eight others, said Monday the three-judge panel’s conclusion that any alternative course of treatment would be “cruel and unusual punishment” is “as unjustified as it is unprecedented.”
Generally, a finding of cruel and unusual punishment requires that a court find doctors acted with deliberate indifference to the inmate’s serious medical needs. That standard has been applied to inmate requests for back surgery, kidney transplants, joint replacements and other medical procedures, O’Scannlain noted.
“Yet suddenly the request for sex-reassignment surgery — and the panel’s closing appeal to what it calls the ‘increased social awareness’ of the needs and wants of transgender citizens — effects a revolution in our law!” O’Scannlain wrote.
The ruling substituted the medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians and “constitutionally enshrined precise and partisan treatment criteria in a rapidly changing and controversial area of medical practice,” the judge wrote.
O’Scannlain also noted that the prison’s medical treatment decision for Edmo was reviewed and supported by several physicians. The prison doctor believed Edmo’s other mental health disorders weren’t sufficiently stabilized, and worried that the stressful process of surgery and transition could cause those mental health disorders to worsen or even cause new mental disorders.
“I do not know whether sex-reassignment surgery will ameliorate or exacerbate Adree Edmo’s suffering. Fortunately, the Constitution does not ask federal judges to put on white coats and decide vexed questions of psychiatric medicine,” he wrote.
If the Supreme Court decides to hear the case, Edmo could be released from prison around the same time the court issues its decision.
“I remain committed to appealing this case to the U.S. Supreme Court — that effort is already under way — and to ensuring that Idaho taxpayers do not have to pay for a procedure that is not medically necessary,” the Idaho governor wrote in a prepared statement on Tuesday.