Monday, February 10, 2020: Denial Of Sex Reassignment Surgery to a Federal Prisoner Found to be Cruel and Unusual Punishment Violative Of the 8th Amendment
The Ninth Circuit becomes the first Federal Appellate Court to find the denial of sex reassignment surgery to a federal prisoner to be cruel and unusual punishment violative of the 8th amendment. The decision is in the case of ADREE EDMO, AKA Mason Edmo, Plaintiff-Appellee, v. CORIZON, INC.; and IDAHO DEPARTMENT OF CORRECTIONS; ET AL (means “and others”), Defendants
The United States Court of Appeals for the Ninth Circuit (San Francisco) hearing a criminal case on appeal from a three-Judge appellate panel of the full Ninth Circuit Court of Appeals has now made new law by refusing, en banc, to hear the appeal (meaning all 29 Judges of the Ninth Circuit appeals bench convened to determine whether even to hear the appeal). By refusing to hear the appeal, the Ninth Circuit has thus refused to overturn the appeals panel’s decision which had affirmed a federal Idaho District Court Judge’s earlier decision to require the State of Idaho prison system to BOTH (a) permit a biological male who identifies as a woman, and who was diagnosed with gender dysphoria, to obtain sex reassignment surgery and (b) to have the state of Idaho pay for it. Accordingly, the transgender prisoner, Ms. Edmo, wins. (By the way, the Ninth Circuit panel decision is a detailed primer on gender dysphoria and is well worth reading if your company employs a gender dysphoric employee).
The trial court had held that it would be cruel and unusual punishment violative of the Eighth Amendment to the Constitution to deny Ms. Edmo sex reassignment surgery to help remediate her gender dysphoria. (The Eighth Amendment very simply states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”)
But not so fast. Idaho Governor Bradley (“Brad”) Little has already in the last week vowed an appeal to the Supreme Court of the United States (“SCOTUS”), especially given the very vigorous and lengthy dissents among the 29-Judge Ninth Circuit en banc court. Judge O’Scannlain, joined by eight other Judges, wrote a 29-page “Statement” decrying the decision on numerous legal and medical grounds. Six of the Judges joining Judge O’Scannlain’s lengthy Statement also separately dissented, in addition to another Judge who separately dissented. These seven dissenters then collectively wrote another 14 pages of opinions stressing their dissatisfaction at the majority’s decision not to hear the appeal of the three-Judge appellate panel decision.
Those dissents argued that the Court’s Order thus causes the Ninth Circuit three-Judge panel decision to depart from the decisions of other federal circuit courts and thus sets up a “split in the circuits,” a primary reason the SCOTUS hears cases (i.e., to resolve unsettled issues of law and create one homogenous body of federal law).
Insider Tip
This case could be going up. Wait and watch.
Case Summary
Here is a small portion of how Judge O’Scannlain summarized the case:
“With its decision today, our court becomes the first federal court of appeals to mandate that a State pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment. 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. To reach such a conclusion, the court creates a circuit split, substitutes the medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, redefines the familiar “deliberate indifference” standard, and, in the end, constitutionally enshrines precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice. Respectfully, I believe our court’s unprecedented decision deserved reconsideration en banc.”
In 2012, Adree Edmo (then known as Mason Dean Edmo) was incarcerated for sexually assaulting a sleeping 15-year-old boy. By all accounts, Edmo is afflicted with profound and complex mental illness. She (Fn 1) suffers from major depressive disorder, anxiety, alcohol addiction, and drug addiction. At least two clinicians have concluded that she shares the traits of borderline personality disorder. She abused alcohol and methamphetamines every day for many years, stopping only upon her incarceration. A victim of sexual abuse at an early age, she attempted suicide three times before her arrest for sexual assault—twice by overdose and once by cutting. A new diagnosis was added in 2012: gender dysphoria. Two months after being transferred to the Idaho State Correctional Institution (a men’s prison), Edmo sought to speak about hormone therapy with Dr. Scott Eliason, the Board-certified director of psychiatry for Corizon, Inc. (the prison’s medical care provider). In Dr. Eliason’s view, Edmo met the criteria for gender dysphoria. (Fn 2). After the diagnosis was confirmed by another forensic psychiatrist and the prison’s Management and Treatment Committee, Edmo was prescribed hormone therapy. She soon changed her legal name and the sex listed on her birth certificate. As a result of four years of hormone therapy, Edmo experienced physical changes, including breast development, redistribution of body fat, and a change in body odor. She now has the same circulating hormones as a typical adult female.”
Fn 1: “Though Edmo was born a male, Edmo has legally changed the sex listed on her birth certificate to female. I therefore use feminine pronouns throughout, just as the panel does.”
Fn 2: “Gender dysphoria is a diagnosis introduced in the latest, fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. It replaces the now-obsolete “gender identity disorder” used in the previous edition. The gender dysphoric patient experiences “clinically significant distress or impairment in social, occupational, or other important areas of functioning” that is associated with the feeling of incongruence between perceived gender identity and phenotypic sex. See Am. Psychiatric Ass’n, Diagnostic, and Statistical Manual of Mental Disorders 453 (5th ed. 2013).”
Editorial Note: It will take many months for the SCOTUS to receive, review, and decide the State of Idaho’s Petition for Certiorari (i.e., request for right to appeal) to the SCOTUS, and another 6-10 months, at least, after that for the SCOTUS to docket, hear, and decide the case (in likely mid-year 2021) were the SCOTUS to agree to hear the Petition.