Vanessa Lynn is a pre-operational male-to-female transgender individual residing in a correctional facility in Texas.
Lynn, who has gender dysphoria, has lived openly as female for several decades.
Officials, however, have provided Lynn with only limited treatment, such as hormone therapy, to aid her suffering from gender dysphoria while in prison.
A lack of fuller medical treatment, which would entail gender confirmation surgery (GCS) through modification of one’s primary and/or secondary sex characteristics,
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.
Lynn swears that without GCS, she will castrate herself or commit suicide.
Despite her self-harm and continued mental pain, the Texas Department of Criminal Justice (TDCJ) has categorically refused to evaluate Lynn for GCS.
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.
She argued that TDCJ’s system-wide ban on GCS constituted deliberate indifference to her gender dysphoria.
The district court granted TDCJ’s motion for summary judgment.
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.
In particular, scholars have focused great attention
on the first federal circuit court case to have decided this issue, Kosilek v. Spencer (Kosilek IV).
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.
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.
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.
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.
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.
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.
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.