CIRCUIT COURT DYSPHORIA: THE STATUS OF GENDER CONFIRMATION SURGERY REQUESTS BY INCARCERATED TRANSGENDER INDIVIDUALS

Incarcerated transgender individuals with gender dysphoria have increasingly turned to the courts to seek medical relief in the form of gender confirmation surgery (GCS). These claims generally allege that prison officials’ denials of GCS amount to deliberate indifference, which is forbidden under the cruel and unusual punishment provision of the Eighth Amendment. To date, the First, Fifth, and Ninth Circuits have been the primary federal appellate courts to address whether to grant requests for GCS under the Eighth Amendment. The Fifth Circuit’s legal reasoning enables prisons to institute categorical bans on GCS without considering an incarcerated individual’s factual circumstances and the evolution of medical knowledge on gender dysphoria. This Note suggests that instead, courts should adopt the legal approach of the First Circuit and Ninth Circuit, or the “Kosilek–Edmo framework,” to better vindicate the constitutional right to medical care of incarcerated transgender individuals and adhere to Eighth Amendment precedent. The framework urges courts to examine the subjective prong of deliberate indifference on a case-by-case basis of medical need, rely on experts familiar with the World Professional Association for Transgender Health Standards of Care, and apply increased scrutiny when considering the security concerns prison officials may have in granting GCS requests or other accommodation requests by incarcerated transgender individuals.

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* J.D. Candidate 2021, Columbia Law School. The author would like to thank Professor Brett Dignam for her guidance and the staff of the Columbia Law Review for their diligent, insightful, and gracious edits. The author would also like to thank former Columbia Law Review editor Justice Ruth Bader Ginsburg for her pioneering work on gender discrimination in the law.

Introduction

Vanessa Lynn is a pre-operational male-to-female transgender individual residing in a correctional facility in Texas. 1 This Note refers to Vanessa Lynn by her preferred name and pronouns, although the Fifth Circuit refers to her by her assigned name, Scott Gibson, and by male pronouns. See Gibson v. Collier, 920 F.3d 212, 216 (5th Cir. 2019), cert. denied, 140 S. Ct. 653 (2019) (mem.). Lynn, who has gender dysphoria, has lived openly as female for several decades. 2 Id. at 217–18. Officials, however, have provided Lynn with only limited treatment, such as hormone therapy, to aid her suffering from gender dysphoria while in prison. 3 Id. A lack of fuller medical treatment, which would entail gender confirmation surgery (GCS) through modification of one’s primary and/or secondary sex characteristics, 4 See infra section I.A.1. This Note refers to “sex reassignment surgery” by its newer classification and identification, “gender confirmation surgery (GCS).” See Loren S. Schechter, ‘Gender Confirmation Surgery’: What’s in a Name?, Huffington Post (Apr. 20, 2012), https://www.huffpost.com/entry/gender-confirmation-surgery_b_1442262 [https://perma.cc/28PG-JJ8G] (last updated Feb. 2, 2016) (explaining how “gender confirmation surgery” is the most accurate label for the plastic surgery that takes place); see also Gender Confirmation Surgeries, Am. Soc’y of Plastic Surgeons, https://www.plasticsurgery.org/reconstructive-procedures/gender-confirmation-surgeries [https://perma.cc/3LMM-WWXQ] (last visited Sept. 1, 2020) (describing the surgical options available for transgender patients). has caused Lynn to experience immense anguish. In an attempt to accommodate her own medical needs, Lynn has inflicted severe harm upon herself, including tying a tight string around her testicles, repeatedly cutting herself, and attempting suicide three times while incarcerated. 5 Petition for Writ of Certiorari at 4, Gibson, 140 S. Ct. 653 (No. 18-1586), 2019 WL 2711440. Lynn swears that without GCS, she will castrate herself or commit suicide. 6 Gibson, 920 F.3d at 217. Despite her self-harm and continued mental pain, the Texas Department of Criminal Justice (TDCJ) has categorically refused to evaluate Lynn for GCS. 7 Id. at 217–18. Believing this denial violated her Eighth Amendment right to be free from cruel and unusual punishment, Lynn filed a pro se complaint in 2016 in the U.S. District Court for the Western District of Texas, alleging violations of her rights under 42 U.S.C. § 1983. 8 Gibson v. Livingston, No. W-15-CA-190, 2016 U.S. Dist. LEXIS 195724, at *19–20 (W.D. Tex. Aug. 31, 2016). She argued that TDCJ’s system-wide ban on GCS constituted deliberate indifference to her gender dysphoria. 9 Id. at *22–23. The district court granted TDCJ’s motion for summary judgment. 10 Id. at *34.

Much scholarship has been written in the past about the difficulties of obtaining relief for incarcerated transgender individuals with gender dysphoria under the Eighth Amendment’s cruel and unusual punishment framework. 11 See, e.g., Susan S. Bendlin, Gender Dysphoria in the Jailhouse: A Constitutional Right to Hormone Therapy?, 61 Clev. St. L. Rev. 957, 974 (2013) (describing how “bias against transgender individuals and misunderstandings about [g]ender [d]ysphoria may influence the outcome”); Lindsey V. Gilbert, Comment, Crossing the Line: Examining Sex Reassignment Surgery for Transsexual Prisoners in the Wake of Kosilek v. Spencer, 23 S. Cal. Rev. L. & Soc. Just. 29, 55–56 (2013) (explaining how some are opposed to GCS as a treatment option because they view it as medically controversial, costly, and unnecessary for individuals who are supposed to face punishment for committing crime); Lindsey Ruff, Note, Trans-Cending the Medicalization of Gender: Improving Legal Protections for People Who Are Transgender and Incarcerated, 28 Cornell J.L. & Pub. Pol’y 127, 144–45 (2018) (“For many plaintiffs, satisfying both parts of the ‘deliberate indifference’ inquiry proves to be an insurmountable hurdle.”). In particular, scholars have focused great attention 12 See, e.g., Bethany L. Edmondson, Note, Trans-lating the Eighth Amendment Standard: The First Circuit’s Denial of a Transgender Prisoner’s Constitutional Right to Medical Treatment, 51 Ga. L. Rev. 585, 594–96 (2017). on the first federal circuit court case to have decided this issue, Kosilek v. Spencer (Kosilek IV). 13 This final decision, Kosilek v. Spencer (Kosilek IV), 774 F.3d 63 (1st Cir. 2014), was composed of an en banc court that ultimately reversed the initial appellate decision. See Kosilek v. Spencer (Kosilek III), 740 F.3d 733, 736 (1st Cir. 2014). In Kosilek IV, the First Circuit ruled that the incarcerated individual’s particular factual circumstances did not support a finding of deliberate indifference for a prison’s failure to provide GCS. 14 774 F.3d at 96. No other circuit court tested or contested this outcome for years.

In March 2019, the Fifth Circuit ruled on a similar Eighth Amendment claim by an incarcerated transgender individual. 15 Gibson v. Collier, 920 F.3d 212, 218 (5th Cir. 2019), cert. denied, 140 S. Ct. 653 (2019) (mem.). In Gibson v. Collier, the Fifth Circuit agreed with the First Circuit in its holding, affirming the district court’s decision that the denial of GCS to Lynn did not violate the Eighth Amendment’s deliberate-indifference standard. 16 Id. at 228. Mere months after Gibson, the Ninth Circuit disagreed with the Fifth Circuit’s ruling and the First Circuit’s outcome, holding in Edmo v. Corizon that when officials deny medically necessary GCS to an incarcerated transgender individual, the responsible officials are indeed deliberately indifferent. 17 935 F.3d 757, 797 (9th Cir. 2019). “Medically necessary” under the Eighth Amendment generally means a medical need so obvious that an ordinary person would recognize that it warrants treatment by a doctor. See Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990); Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977); infra section I.B.1 (discussing how courts determine what treatment is medically necessary). In coming to their decisions, the First and Ninth Circuits relied on a fact-specific approach to determine the plaintiff’s medical need for GCS, in contrast to the Fifth Circuit’s categorical ban on GCS. 18 See infra section II.C. The proper standard for determining what amounts to deliberate indifference by prison officials now remains in question for incarcerated transgender individuals seeking surgical relief for gender dysphoria.

This Note argues that despite the outcome-determinative split between the First and Fifth Circuits in opposition to that of the Ninth Circuit, the real circuit split exists between the First and Ninth Circuits’ similar interpretations of deliberate indifference in Kosilek IV and Edmo and the Fifth Circuit’s unprecedented interpretation of deliberate indifference in Gibson. Of these approaches, the Note ultimately proposes that courts should follow the Kosilek–Edmo framework, which aligns most soundly with how other courts have interpreted deliberate indifference in the past for incarcerated individuals (transgender and others alike) and best upholds their constitutional right to medical care under the Eighth Amendment. 19 See infra Part III. Part I of this Note provides medical background information on gender dysphoria and an overview of Eighth Amendment jurisprudence on claims by incarcerated transgender individuals. Part II considers the competing legal applications of deliberate indifference among the Kosilek IV, Gibson, and Edmo courts and describes how the Kosilek–Edmo framework lies in contrast to the Gibson court’s approach. Part III recommends that courts adopt the Kosilek–Edmo framework and offers jurisprudential recommendations for how courts can standardize their deliberate-indifference analyses on these types of claims in the future.