Prison healthcare litigation has been on the rise throughout the country. Private healthcare providers for state prison systems are often caught up in class actions or complex injunctive-relief litigation targeting both the provider and the state for alleged shortcomings in the types and adequacy of care provided, matters which are often a function of state funding and policy decisions. In recent years, an increasing number of cases have raised this question: Does the Eighth Amendment of the United States Constitution require prison officials to provide transgender inmates with sex-reassignment (or gender confirmation) surgery?
This constitutional and correctional healthcare issue has divided courts and prison systems. In 2017, after years of litigating the issue, the California Department of Corrections became the first state prison system to provide sex-reassignment surgery to an inmate: Shiloh Heavenly Quine, a convicted killer serving a life sentence. While there is a consensus among correctional healthcare professionals that gender dysphoria constitutes a serious medical need that requires appropriate treatment, most state prison systems continue to resist requests for sex-reassignment surgery.
Federal courts are also split on this issue, and the divide could soon deepen. The U.S. Court of Appeals for the Ninth Circuit is poised to consider the issue in Edmo v. Idaho Department of Correction, an appeal from a federal district court decision requiring prison officials to provide a transgender inmate with gender-confirmation surgery no later than June 13, 2019. Oral argument in Edmo is set for May 16 at the Ninth Circuit courthouse in San Francisco, California.
The Ninth Circuit will take up the issue just after the U.S. Court of Appeals for the Fifth Circuit rejected a transgender inmate’s claim that prison officials must provide sex reassignment surgery or else face liability under the Eighth Amendment for ignoring his serious medical needs (Gibson v. Collier, 2019). In Gibson, Judge James Ho, writing for the majority and relying on the First Circuit’s decision in Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014), adopted at blanket rule that “[a] state does not inflict cruel and unusual punishment by declining to provide sex reassignment surgery to a transgender inmate.” In dissent, Judge Rhesa Barksdale criticized the majority for announcing a legal rule that was detached from the proof in the case, and argued that the inmate was entitled to an individualized analysis of his particular medical needs. The Harvard Law Review Blog posted a thorough summary of the Gibson decision.
If the Ninth Circuit affirms the decision that Edmo must receive sex-reassignment surgery, creating a circuit split, the issue could be ripe for review by the Supreme Court. The Supreme Court has not considered a significant Eighth Amendment adequate care case since Brown v. Plata, 563 U.S. 493 (2011), which involved mental healthcare and overcrowding in California’s prison system. As reported by Amy Howe at SCOTUSblog, the court has just agreed to take up the issue of LGBT rights in the workplace under Title VII of the Civil Rights Act. Perhaps high court consideration of transgender rights in prison is not far behind.
