“Gender Neutral & Accessible Canada Day” by Mike Gifford is licensed under CC BY-NC 2.0.
Nicolette Crouch, Associate Member, University of Cincinnati Law Review
I. Adree Edmo’s Journey
Adree Edmo is serving ten years in prison for sexually abusing a 15-year-old boy.[1] When she was incarcerated in 2012, her name was Mason Edmo.[2] Edmo had identified as female since about age 6.[3] After entering prison, Edmo’s treating psychiatrist diagnosed her gender dysphoria,[4] which the American Psychiatric Association defines as a “marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 months’ duration . . . .”[5] Shortly thereafter, Edmo changed her legal name to Adree Edmo and the sex on her birth certificate to “female.”[6] Throughout her incarceration, Edmo presented as female, wearing makeup and feminine hairstyles.[7] Since 2012, prison officials of the Idaho Department of Correction (“IDOC”) had provided hormone therapy to treat Edmo’s gender dysphoria.[8] Additionally, Edmo received treatment for mental health issues such as a major depressive disorder, anxiety, and drug and alcohol addiction.[9]
After Edmo tried to castrate herself, she brought suit against IDOC prison officials, Corizon, Inc. (the health care provider for IDOC) and others, alleging that the denial of gender confirmation surgery (“GCS”) violated the Eighth Amendment of the Constitution.[10]
This article proposes guidelines that courts should follow when deciding if prisons are constitutionally required to provide GCS to inmates for gender dysphoria. Part II of this article discusses the landmark case Estelle v. Gamble, which established the rule that deliberate indifference to serious medical needs could be an Eight Amendment violation.[11] Part III focuses on the Ninth Circuit’s recent ruling in Edmo v. Corizon, Inc.[12] that found prison officials had violated the Eighth Amendment for not providing Edmo with GCS. Part IV describes the Fifth Circuit ruling in Gibson v. Collier[13] that held prison officials’ decision to deny an inmate GCS was not deliberate indifference. Finally, Part V discusses how courts should analyze prison medical care claims under the deliberate indifference standard.
II. Prisons Must Provide Adequate Medical Care to Inmates
The Eighth Amendment prohibits cruel and unusual punishment of inmates.[14] In Estelle v. Gamble, the Supreme Court interpreted this prohibition to include “deliberate indifference to serious medical needs of prisoners.”[15] Accordingly, constitutional protection is granted only when an inmate can show that prison officials (1) acted with deliberate indifference (2) to the inmate’s serious medical need.[16] For purposes of this article, gender dysphoria is presumed to be a serious medical need.[17]
In Estelle, the inmate claimed that the prison violated the Eighth Amendment when it provided allegedly inadequate treatment for a back injury the inmate had sustained during prison work.[18] Although the Supreme Court ruled that failing to provide an inmate with proper medical care could constitute cruel and unusual punishment, the Court found that the inmate’s specific medical treatment did not meet that threshold.[19] In its reasoning, the Court provided several examples of deliberate indifference to medical needs, including intentional poor responses to inmates’ medical needs, intentional delays or denials of treatment, and intentional interference with treatment.[20] But the Court explained that the standard was not so broad as to encompass negligent treatment.[21] For example, there is no Eighth Amendment violation where an inmate merely disagrees with a physician’s treatment choices.[22] The Court did not elaborate on other types of conduct that constitute deliberate indifference,[23] leaving lower courts to more precisely define deliberate indifference.[24]
III. The Argument for Providing GCS: Edmo v. Corizon, Inc.
This year, the Ninth Circuit addressed the deliberate indifference standard in Adree Edmo’s case.[25] Here, the Ninth Circuit ruled that “responsible prison officials were deliberately indifferent to Edmo’s gender dysphoria, in violation of the Eighth Amendment” for not providing GCS to Edmo.[26] The court’s remedy was to order the state of Idaho to provide Edmo with the surgery.[27]
Edmo sought GCS despite already receiving hormone therapy and other treatment for gender dysphoria.[28] After attempting to castrate herself, Edmo was evaluated by the psychiatrist for GCS.[29] However, the psychiatrist did not recommend GCS, finding that Edmo did not satisfy criteria published by the World Professional Association for Transgender Health (“WPATH Standards”) or additional criteria required by the psychiatrist.[30] Although the psychiatrist recognized that Edmo’s gender dysphoria had worsened, the psychiatrist reported that Edmo failed to meet two of the six criteria required under the WPATH Standards for recommending GCS: the fourth prong, which required that “significant medical or mental health concerns . . . be well controlled,” (the “Mental Health Prong”) and the sixth prong, which required “12 continuous months of living in a gender role that is congruent with [the patient’s] gender identity.” (the “Gender Role Prong”).[31] With respect to the Mental Health Prong, the psychiatrist reasoned that Edmo experienced mental health issues separate from gender dysphoria that were not under adequate control.[32] Regarding the Gender Role Prong, the psychiatrist opined that Edmo needed to experience living as a woman outside of prison.[33] For those reasons, the psychiatrist concluded that GCS was not medically necessary for Edmo.[34]
The Ninth Circuit disagreed and held that Edmo established that GCS was medically necessary and, therefore, refusing to provide GCS constituted deliberate indifference by IDOC.[35] The Ninth Circuit explained that prison officials are deliberately indifferent when they provide treatment that is “medically unacceptable under the circumstances. . . .”[36] The court concluded that failing to provide GCS to Edmo was medically unacceptable.[37] The Ninth Circuit relied on the district court’s determination that the testimony of the psychiatrist and the State’s medical experts (collectively, the “State’s Experts”) was unsound, while the testimony of Edmo’s medical experts was credible.[38] First, the Ninth Circuit declared that the district court did not err in giving greater weight to the opinions of Edmo’s experts over those of the State’s Experts because the State’s Experts lacked “requisite experience.”[39] Second, the court asserted that the opinions of the State’s Experts “directly contradicted” the WPATH Standards of Care.[40] The court pointed to the Psychiatrist’s opinion regarding the Gender Role Prong.[41] This opinion, the court explained, ran “head-on” into the WPATH Standards of Care that provide that “[a]ccess to medically necessary treatment should not be denied on the basis of institutionalization . . . .”[42] Finally, the court found opinions of the State Experts “illogical and unpersuasive” because aspects of the opinions differed from those Edmo’s experts.[43] For example, Edmo’s experts found that Edmo exhibited symptoms of gender dysphoria for a sufficient length of time to receive the surgery.[44] However, the State’s Experts disagreed and cautioned that GCS was not yet appropriate because Edmo failed to present pre-incarceration medical records that documented symptoms of gender dysphoria.[45]
Accordingly, the Ninth Circuit upheld the district court’s determination that testimony from Edmo’s experts proved that GCS was medically necessary for Edmo.[46] The court affirmed the district court’s determination that IDOC acted with deliberate indifference in declining to provide Edmo with GCS, in violation of Eighth Amendment.[47]
IV. The Argument Against Providing GCS: Gibson v Collier
In contrast, the majority opinion in Gibson v. Collier relied heavily on evidence of an ongoing debate within the medical community about the necessity of GCS to hold that prison officials did not act with deliberate indifference in denying GCS to the inmate.[48]
Like Edmo, the inmate in Gibson was diagnosed with gender dysphoria during her incarceration.[49]Prior to claiming an Eighth Amendment violation, the inmate attempted castration and suicide.[50] The inmate acknowledged that mental health counseling and hormone therapy helped alleviate gender dysphoria to an extent.[51] However, after requesting and not receiving an individualized assessment for GSC, the inmate filed suit and challenged the refusal as deliberate indifference to her medical needs.[52] The majority disagreed with the inmate and concluded that prison officials are deliberately indifferent only when officials act “with malicious intent – that is, with knowledge that they were withholding medically necessary care.”[53] The majority found no malicious intent when prison officials deny a treatment that is debated and lacks consensus within the medical community.[54] The majority explained that a “single dissenting expert” does not “automatically defeat[] medical consensus about whether a particular treatment is necessary . . . But where, as here, there is robust and substantial good faith disagreement dividing respected members of the expert medical community, there can be no claim under the Eighth Amendment.”[55]
The majority reviewed evidence of the medical controversy from Kosilek v. Spencer[56] and the Center for Medicare & Medicaid Services under the U.S. Department of Health and Human Services (“CMS HHS”).[57] The majority acknowledged that the WPATH Standards provide that, “for many [transgender people], [GCS] is essential and medically necessary to alleviate their gender dysphoria.”[58] However, the majority described testimony from medical experts in Kosilek that (1) expressed hesitation to rely on the WPATH Standards; (2) emphasized the availability of other noninvasive treatment options; (3) expressed concerns that WPATH Standards were driven by political considerations rather than medical judgement; and (4) emphasized gaps in the medical community regarding the long-term effects of GCS.[59] Additionally, the majority cited a CMS HHS memorandum that declined to mandate coverage for GCS with respect to Medicare and Medicaid patients, finding that “there is not enough high quality evidence to determine whether [GCS] improves health outcomes . . . .”[60] The majority found that this evidence demonstrated that the WPATH Standards of Care reflected only one side in a “sharply contested medical debate” over whether GCS is necessary to treat gender dysphoria.[61]
The majority concluded that prison officials were not deliberately indifferent in denying GCS to the inmate because the medical community was “deeply divided about the necessity and efficacy of [GCS].”[62]
V. A Comprehensive Analysis of Medical Care for Inmates
Both the Ninth Circuit and Fifth Circuit erred by leaving out important factors in their analyses of the deliberate indifference standard. The Ninth Circuit erred in suggesting that if an illness has a medically recognized treatment, the Eighth Amendment requires prisons provide it to inmates. The Fifth Circuit erred in allowing a prison to deny a medically recognized treatment without conducting an individualized assessment of the inmate’s particular medical needs. When determining whether a prison is constitutionally obligated to provide a treatment to an inmate, courts should consider both the inmate’s particular needs and other factors like security risks within a prison.[63]
The Supreme Court has suggested that a refusal to individually evaluate inmates for medical treatment could violate the Eighth Amendment.[64] In Estelle, the Supreme Court explained that deliberate indifference could occur through intentional denial or interference with an inmate’s medical care.[65] If “intentionally interfering”[66] with treatment could violate the Eighth Amendment, it follows that a blanket refusal to evaluate an inmate for treatment could violate the Eighth Amendment. Moreover, the policy followed by the prison in Gibson even instructed that inmates with gender dysphoria be “evaluated by appropriate medical and mental health professionals and [have their] treatment determined on a case by case basis. . . .” (emphasis added).[67] Therefore, the Fifth Circuit erred in allowing prison officials to deny GCS without evaluating whether the treatment was medically necessary for the inmate.
However, prison medical care analysis should not end after reviewing the inmate’s particular medical needs. Courts should consider other factors that alter the scope of medical treatment provided to inmates.
First, cost considerations are notably absent from deliberate indifference jurisprudence.[68] By ignoring costs, courts drain judicial resources on cases that affect a limited percentage of inmates.[69] Additionally, courts might award prisoners treatment that is out of reach for average, non-incarcerated members of society. Although cost estimates vary, the Philadelphia Center for Transgender Surgery, for example, estimates $21,400 to transition from male to female, and $24,900 to transition from female to male.[70] Therefore, when deciding whether prisons should provide particular treatment to inmates, courts should examine Medicaid coverage decisions and private insurance decisions about the same treatment. These coverage decisions signal whether states and private entities have chosen to fund particular treatment. By analyzing Medicaid and private insurance coverage decisions about a particular treatment, courts can weigh the cost of the particular treatment in their Eighth Amendment analyses. This is because states and private insurers have likely already considered cost in deciding whether to fund a particular treatment.[71]
Next, courts should give deference to prison officials regarding security and safety concerns surrounding an inmate’s circumstances. The Supreme Court has ruled that prison officials must protect inmates from harm.[72] Such deference is crucial because the Supreme Court explained that “courts cannot assume that state legislatures and prison officials are insensitiveto the requirements of the Constitution or to the perplexing sociological problems of how best to achieve the goals of the penal function of the criminal justice system.” (emphasis added).[73]
Finally, courts should consider expert testimony of medical professionals about particular treatments. Because cost and security concerns, alone, could block many treatment options for inmates, medical opinions and recommendations help courts examine the necessity and efficacy and, alternatives to, particular treatments. Both theCorizon court and Gibson majority relied heavily on expert medical testimony in reaching their conclusions.[74]
When determining whether a prison must constitutionally provide a particular treatment to an inmate, courts should first examine the inmate’s medical needs. But, the analysis should not end there. Courts should balance the inmate’s medical needs against cost, prison security concerns, and medical expert testimony.
VI. Conclusion
The Corizon decision will likely spur more Eighth Amendment Claims from criminals suffering from gender dysphoria who seek GCS after being denied the surgery. By expanding medical care analysis for prisoner to include factors like cost, security, and medical testimony, courts can better understand how such treatment decisions are made outside of prison – by the average American, by states, and by medical professionals.
[1]Amanda Peacher & James Dawson, State Must Provide Gender Confirmation Surgery To Idaho Inmate Adree Edmo, Boise State Public Radio, (Sept. 13, 2019) https://www.boisestatepublicradio.org/post/state-must-provide-gender-confirmation-surgery-idaho-inmate-adree-edmo#stream/0.
[2]Edmo v. Corizon, Inc., No. 19-35017, No. 19-35019, 19-35017, 2019 WL 3978329 at *7 (9th Cir. Aug. 23, 2019).
[3]Id.
[4]Id.
[5]Id. at *4.
[6]Id. at *7.
[7]Id.
[8]Id.
[9]Id. at *8.
[10]Id. at *10.
[11]Estelle v. Gamble, 429 U.S. 97, 106 (1976).
[12]2019 WL 3978329, at *1.
[13]Gibson v. Collier, 920 F.3d 212, 220-21 (5th Cir. 2019).
[14]The Eighth Amendment of the Constitution states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” U.S. Const., amend. VIII.
[15]429 U.S. at 106.
[16]Id.
[17]Corizon, 2019 WL 3978329, at *19 (declaring that the parties agree that gender dysphoria is a “sufficiently serious medical need to trigger the State’s obligations under the Eighth Amendment.”).
[18]429 U.S. at 98-101.
[19]Id. at 97.
[20]Id.
[21]Id. at 105-06.
[22]Id. at 107.
[23]See id. at 102-06.
[24]See, e.g., Edmo v. Corizon, Inc., No. 19-35017, No. 19-35019, 19-35017, 2019 WL 3978329 (9th Cir. Aug. 23, 2019).
[25]Corizon, 2019 WL 3978329, at *1.
[26]Id. at *3.
[27]Id.
[28]Id. at *23-24.
[29]Id. at *24.
[30]Id. at *27-29.
[31]Id. at *27 (quoting The World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, 60 (7th ed. 2011)).
[32]Id. at *27.
[33]Id.
[34]Id.
[35]Id. at *1.
[36]Id. at *57 (quoting Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016)).
[37]Id. at *59-60.
[38]Id.
[39]Id. at *61-63.
[40]Id. at *66.
[41]Id. at *27, 64.
[42]Id. at *65 (quoting Standards of Care at 67).
[43]See id. at *66-74.
[44]Id. at *66.
[45]Id. at *23.
[46]Id. at *69.
[47]Id. at *3.
[48]Gibson v. Collier, 920 F.3d 212, 220-24 (5th Cir. 2019).
[49]Id. at 216-17.
[50]Id. at 217.
[51]Id.
[52]Id. at 218.
[53]Id. at 220.
[54]Id.
[55]Id.
[56]Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) (en banc).
[57]Gibson, F.3d 212at 221-23.
[58]Id. at 218-21 (quotingStandards of Careat 54).
[59]Id. 221-22.
[60]Id. 223; Centers for Medicare & Medicaid Services, Decision Memo for Gender Dysphoria and Gender Reassignment Surgery48 (Aug. 30, 2016), https://www.cms.gov/medicare-coverage-database/details/nca-decision-memo.aspx?NCAId=282.
[61]F.3d 212at 221.
[62]Id. at 220-21.
[63]See, e.g., Edmo v. Corizon, Inc., No. 19-35017, No. 19-35019, 19-35017, 2019 WL 3978329 (9th Cir. Aug. 23, 2019); see also Farmer v. Brennan, 511 U.S. 825 (1994).
[64]See, e.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976).
[65]Id. at 104-05.
[66]Id.
[67]Gibson, F.3d 212at 217-18.
[68]See, e.g., Corizon, 2019 WL 3978329 (9th Cir. Aug. 23, 2019); Gibson, F.3d 212at 221-23.
[69]Marek Mędraś & Paweł Jóźków, Transsexualism — diagnostic and therapeutic aspects, 61 Polish J. Endocrinology412, 412-13 (2010) (reviewing a 2010 study reported that gender dysphoria affects less than 0.01% of the population).
[70]The Philadelphia Center For Transgender Surgery, Male To Female Price List, http://www.thetransgendercenter.com/index.php/maletofemale1/mtf-price-list.html (last visited Sept. 20, 2019); Female to Male Price List, http://www.thetransgendercenter.com/index.php/femaletomale1/ftm-price-list.html (last visited Sept. 20, 2019).
[71]National Conference of State Legislatures, Understanding Medicaid: A Primer for State Legislators(Aug. 30, 2019) http://www.ncsl.org/research/health/understanding-medicaid-a-primer-for-state-legislators.aspx (explaining why the Medicaid program is costly for states).
[72]Farmer v. Brennan, 511 U.S. 825 (1994). In this case, the prisoner-petitioner presented as female and was sexually assaulted by other inmates.
[73]Rhodes v. Chapman, 452 U.S. 337, 352 (1981).
[74]See Edmo v. Corizon, Inc., No. 19-35017, No. 19-35019, 19-35017, 2019 WL 3978329 at *59-60 (9th Cir. Aug. 23, 2019); Gibson v. Collier, 920 F.3d 212, 221-23 (5th Cir. 2019).
