This week the 9th Circuit Court of Appeals affirmed its decision in the case of Idaho inmate Adree Edmo, the transgender woman who sued the state to be provided sex reassignment surgery.
The order marks the final appellate ruling in the case and means the state’s only option for appeal is to the U.S. Supreme Court.
Edmo sued in 2017, arguing that the prison was not adequately treating her gender dysphoria, which can cause a person severe distress stemming from being born in a body that does not match their gender identity. She said denying her medically necessary treatment constitutes cruel and unusual punishment.
Last August, a panel of appellate court judges ruled in Edmo’s favor, writing that “responsible prison officials were deliberately indifferent to Edmo's gender dysphoria in violation of the Eighth Amendment."
But the state petitioned the full 9th Circuit Court to reconsider. It declined. There was some dissent, with a minority of judges writing that the August decision was “unprecedented” and “unjustified.”
Edmo is now slated to become the first transgender inmate to get the medical procedure through a court order.
“And what defendants and the state of Idaho should do right now is provide the treatment that they have clearly been told is required under the law,” said Lori Rifkin, Edmo’s attorney.
Edmo has been incarcerated since 2012 for the sexual assault of a 15 year old when she was 22. She has twice attempted to castrate herself while in prison, which her attorneys argue is a clear sign that she needs more treatment than the state has provided.
Idaho Governor Brad Little said that he will continue the state’s fight.
“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,” Little said in a statement Tuesday.
Primed For The Supreme Court?
Idaho has 90 days to appeal to the Supreme Court, but state attorneys may need to move faster than that. Judge B. Lynn Winmill, the Idaho district judge who originally ruled in Edmo’s favor, has scheduled a status conference for February 21, and will likely outline next steps and deadlines for Edmo’s treatment at that time. Edmo has already received some pre-surgical treatment. If the state wants a chance at the Supreme Court, it will need to move quickly on the appeal.
But even then, there’s no guarantee that the Supreme Court will agree to hear the case. The high court decides to take just about 1% of all appeals. Earlier this year, the Supreme Court declined to hear an appeal in a case out of Texas, wherein the 5th Circuit Court of Appeals ruled that a prisoner was not entitled to gender confirmation surgery — the opposite of the decision in Edmo’s case. The appeal noted the split in the circuit courts, and the Supreme Court’s denial to hear it could be an indicator that SCOTUS is not ready to weigh in on this issue.
But the justices who dissented in the latest 9th Circuit decision discussed the circuit court split in detail, as if priming the case for the high court.
In his dissent from the majority opinion, Judge Diarmuid F. O’Scannlain highlighted that the decision makes the 9th Circuit the first court to order a state to pay for sex reassignment surgery for a prisoner.
“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,” O’Scannlain wrote in a statement. The judge also disputed the standards of medical care used to treat Edmo and said they were established by a “controversial advocacy group.”
But Lori Rifkin, Edmo’s attorney, said it’s bizarre that dissenting judges would question those standards at this point, given that they weren’t called into question or disputed by the state or Corizon Inc., Idaho’s private health care provider.
“Nobody in our case — neither the defendants nor their experts — were able to point to an alternative standard of care that has gained any acceptance in the medical community,” Rifkin said.
Despite the state’s intention to continue the fight, Rifkin said Adree Edmo is relieved about the final 9th Circuit decision. “She filed this case on her own, and she’s been battling for years to get the life-saving treatment that she needs,” Rifkin said.
Edmo is scheduled to be released in 2021.