Parents scold their children to distinguish between a want and a need. Underlying this command is the implicit message: They will acquiesce to what you need but not to what you want. It is understandable to draw these lines and to condescend to children about the difference between wanting ice cream and needing dinner. It is not understandable that this same condescension permeates the judicial system’s treatment of gender confirmation surgery.
Courts, to varying degrees, have shown progress when it comes to legitimizing transgender rights and identities.
Judges have acknowledged the medical realities of transgender people and the experience of gender dysphoria as a sufficient basis for judicial relief before, but never easily.
The Ninth Circuit’s 2020 holding in Doe v. Snyder told transgender people that the court would decide between want and need when it came to their expressed medical needs to combat gender dysphoria.
The plaintiffs in Snyder sought male reconstruction surgery, a form of gender confirmation surgery that removes the breasts and makes the torso area more masculine.
They could not afford the surgery without insurance, but Arizona’s Medicaid option did not cover the surgery.
The plaintiffs looked to the court for salvation—they sought injunctive relief in order to receive the surgery that they, and their doctors, felt was necessary.
But the court’s opinion held that the plaintiffs had not shown that surgery was so necessary as to force the court to grant a mandatory injunction.
In other words, the court decided that the plaintiffs’ request for gender confirmation surgery was a want, not a need.
In Edmo v. Corizon Inc., by contrast, the Ninth Circuit granted an injunction allowing a transgender woman to receive gender confirmation surgery while incarcerated, but only after she continually self-harmed to the brink of suicide.
In Edmo, the plaintiff mutilated herself through attempted autocastration.
Her doctors worried that, without the surgery, she would continue escalating her self-harming behavior to the point of suicide.
This Comment argues that the delineation between these cases, with one framing gender confirmation surgery as a want and one as a need, creates an implicit and dangerous standard that to receive a medical procedure, a plaintiff must endure harm. As part of the test for injunctive relief, the plaintiff must show that irreparable harm will occur if not for the relief,
but this Comment argues that judges are raising the bar by creating situations in which plaintiffs must show current harm to receive the injunction.
The goal of injunctive relief is to prevent future wrongs in situations in which damages would be insufficient and court-mandated action is deemed more appropriate.
Injunctive relief’s irreparable harm standard necessitates more than a possibility of harm, but it does not mandate that the harm must occur before relief is granted.
The analyses in Edmo and Snyder seemed to look for a continuation of past harm to establish the necessary degree of urgency. Edmo held that denying the plaintiff gender confirmation surgery would lead to future irreparable harms.
The court cited testimony of Edmo’s doctors, who stated she would continue self-harming with increasing severity to address her dysphoric distress.
This conclusion stemmed from past self-harm attempts.
The Ninth Circuit distinguished Snyder from Edmo by contrasting the district courts’ records and analyses: The factual record and a forty-five-page analysis in Edmo met the threshold for necessary gender confirmation surgery, but the twenty-page analysis in Snyder did not.
The court found a lack of urgency in the Snyder plaintiffs’ pleas, despite evidence of suicide attempts, anxiety, and depression.
The difference is that the Snyder plaintiffs never self-harmed to the degree that Edmo did.
For transgender individuals seeking injunctive relief, the different outcomes in Edmo and Snyder could lead to dangerous inferences about what it takes to receive an Edmo injunction rather than a Snyder denial.
Part I argues that the court’s treatment of gender confirmation surgery incentivizes dangerous and self-harming behavior. This incentive exists because, when conducting the irreparable harm analysis, courts have set a precedent of taking seriously only high-risk scenarios involving severe self-harm, medical issues, and suicide attempts.
Judges continue treating gender confirmation surgery as a want rather than a need until the person is in such danger that no one can deny the need. This high bar endangers transgender people, already a vulnerable population,
and invalidates gender dysphoria as a legitimate medical condition without a showing of physical manifestation of harm.
Part I starts with background showing that gender dysphoria is a legitimate medical condition and that gender confirmation surgery is a legitimate medical treatment. It also articulates transgender individuals’ already vulnerable position within American society. Part II contrasts the holdings in Edmo and Snyder, showing how judges often look for physical harms, beyond mental health concerns, to substantiate the need for gender-affirming care. Part III reaffirms that the standard to show sufficient harm to receive injunctive relief is too high. Part III also offers a solution: Take one interpretation of the Eighth Amendment—that the Amendment’s standards are not meant to test the limits of human beings to bear hardship—and apply it to injunctive relief’s irreparable harm analysis, thus lowering the bar for showing a need for gender confirmation surgery.
I. A Problem With a Solution: Gender Confirmation Surgery for Gender Dysphoria
Medical experts provide context and expertise to lawyers, juries, and judges alike in both criminal and civil cases.
Still, transgender legal discourse and progress trails behind that of medical discourse.
The medical field no longer classifies transgender identity as a disease;
instead, doctors validate the unique physical and mental needs of transgender patients.
The following section briefly outlines the experience of gender dysphoria and situates its treatments as legitimate within the medical field. This Part continues by discussing why the denial of legitimate medical care constitutes irreparable harm. The Part ends by providing background on the systemic discrimination faced by transgender individuals.
A. A Legitimate Medical Condition
Gender identity is the way a person experiences their gender.
This can be different from sex assigned at birth.
When this difference occurs, the person can experience distress, anxiety, and depression that their body’s sex does not align with their gender.
The medical term for this experience is gender dysphoria.
Gender dysphoria is recognized by medical and psychological professionals as a legitimate medical condition.
Medical schools across the country are starting to incorporate gender dysphoria and other transgender health concerns into the medical school curriculum.
The American Psychiatric Association has included gender dysphoria in the fifth edition of its Diagnostic and Statistical Manual of Mental Disorders.
Gender dysphoria can have severe effects on an individual’s health.
It can cause “distress, dysfunction, debilitating depression and, for some people without access to appropriate medical care and treatment, suicidality and death.”
Luckily, the burden of gender dysphoria can be alleviated by transitioning toward living life as one’s true gender.
The affirmation of one’s gender varies by person.
For some, it means using a bathroom that aligns with their gender, wearing different clothes, or going by a new name.
For others, it requires a medical transition.
Medical transition can include hormone therapy, which entails taking hormone supplements of the sort that your body does not naturally produce.
For example, a trans man might take testosterone in order to lower their voice and grow facial hair.
Medical transition is not a one-size-fits-all experience. Each person experiences gender dysphoria in personal and unique ways.
Some may find that hormone therapy feels insufficient to fully express their true gender identity and combat their gender dysphoria.
In these cases, psychiatrists might recommend gender confirmation surgery.
Gender confirmation surgery is a procedure that transforms someone’s external features to match their internal gender identity.
It can involve altering the facial features, jaw, torso, hips, and genitals.
The surgery is not purely cosmetic or elective.
The surgery can help alleviate gender dysphoria and improve one’s overall mental health.
The medical community’s understanding of gender dysphoria as a legitimate medical condition is widespread.
Yet, bias against transgender people persists, and healthcare plans often deny coverage for gender-affirming care.
B. Denying Treatment for a Legitimate Medical Condition Constitutes Irreparable Harm
Americans increasingly support recognizing a right to adequate healthcare.
Adequate healthcare allows someone to fully show up in their life, in their family, in their job, and in their body.
The plaintiffs’ brief in Snyder cited the Ninth Circuit’s own holdings that denial of someone’s necessary medical treatment constitutes an irreparable harm.
The court’s interest is in preserving the well-being of the plaintiff without harming the defendant or the public generally.
In conducting the balancing test for injunctive relief, the Ninth Circuit affirmed that cost-saving is not a sufficiently strong public interest to deny treatment to a vulnerable population.
Delayed access to necessary medical care constitutes irreparable harm, so the tension in cases such as Edmo and Snyder is whether gender confirmation surgery is necessary.
In Snyder, the plaintiffs were prescribed a medical gender transition as a means to treat their gender dysphoria.
During the trial, both sides presented expert witnesses who gave conflicting views on the need for gender confirmation surgery to treat gender dysphoria, especially in adolescents.
But the leading experts on transgender healthcare promote gender confirmation surgery as an effective means to combat gender dysphoria.
Thus, presenting this consensus as an open debate overrepresents the current prevalence of the medical field’s historical anti-trans bias and discrimination.
The back-and-forth places the judge in the role of deciding for someone else what is necessary for their body. Again, this leads to a situation in which people are told their need is a want.
C. The Compounding Circumstances for Transgender Individuals
Transgender individuals face discrimination in every facet of their lives.
Anti-trans bigotry rears its head in state legislatures, in housing, in employment, and in healthcare.
Transgender people not only bear the burden of their internal struggles but must also grapple with external forces placed on them through discrimination. This creates a greater vulnerability for transgender Americans.
Yet, instead of increasing protections, governments at every level have created new barriers for transgender rights.
This reality of discrimination and vulnerability combined with harmful government action creates a cyclical problem. Take medical care as an example: Gender confirmation surgery is expensive.
Transgender individuals often struggle with access to capital and health insurance because of a history of employment discrimination.
This means that many transgender individuals are on Medicaid and therefore receive gender confirmation surgery at the whim of the government’s determination about their medical necessities.
In turn, this structure compounds the vulnerability of transgender individuals like those in Snyder and forces them to seek injunctive relief to get the surgery they need.
Waiting for a cast for a broken leg delays the healing process and causes irreversible damage.
Waiting for a double mastectomy for breast cancer can allow the tumors to grow and cause death.
When a transgender person is prescribed gender confirmation surgery to treat their gender dysphoria, they need the surgery sooner rather than later before the mental anguish associated with gender dysphoria becomes worse and upends their life.
This urgency is why the plaintiffs in the previously mentioned cases sought injunctive relief to get their medical treatment immediately.
Gender dysphoria is a legitimate medical condition and gender confirmation surgery is a legitimate medical solution.
Because denying necessary medical treatment constitutes irreparable harm, whether transgender plaintiffs can get injunctive relief depends on a judge’s willingness to agree that gender confirmation surgery is, in fact, necessary.
II. Court Inconsistency and Harm Irreparability
Gender dysphoria causes severe mental health issues.
A 2022 study found that eighty-two percent of transgender individuals have considered suicide.
Forty percent have attempted suicide.
Transgender mental health is a public health concern and, as indicated in the sections above, there is a medical solution here. A recent study found that gender-affirming care lowered the study cohort’s suicidality by seventy-three percent.
It is hard to craft an argument that something that leads to suicidality does not cause irreparable harm. This Part proceeds by comparing the analyses in Edmo and Snyder, showing that court’s bar for “harm” is too backward looking, resulting in dangerous, self-harming behavior.
A. Edmo’s High Bar
Depressed. Embarrassed. Disgusted. These are the words that Adree Edmo used to describe her relationship with her body.
She became aware of her gender identity at a young age and struggled with gender dysphoria throughout her life.
While incarcerated, she started taking female hormones prescribed to treat her gender dysphoria.
But Edmo’s gender dysphoria continued despite the hormones and the accompanying bodily changes they brought.
Her self-hate evolved into self-harm.
She was denied access to gender confirmation surgery,
so she took matters into her own hands.
She used a razor blade to attempt autocastration.
She preferred to take this risk, to endure this pain, rather than to spend more time in a body that was not hers.
She needed gender confirmation surgery to be her full self, to combat the gender dysphoria she experienced around her genitals.
Her doctors confirmed that her self-harming behavior would only continue without gender confirmation surgery.
The Ninth Circuit affirmed her injunctive relief: “It is no leap to conclude that Edmo’s severe, ongoing psychological distress and the high risk of self-castration and suicide she faces absent surgery constitute irreparable harm.”
Injunctive relief is not a right, nor is it the presumed remedy even when harm is demonstrated
But the court’s opinion in Edmo implies that only when someone is denied necessary medical treatment and subsequently engages in harmful behavior, like suicide or self-mutilation, has that person met the bar for irreparable harm.
The attempted autocastration in Edmo is an incredibly high bar for plaintiffs to reach.
B. Snyder: So Close, But So, So Far
The Ninth Circuit, having decided that the plaintiff’s plea in Edmo warranted injunctive relief, found the plaintiffs’ claim in Snyder insufficient to show irreparable harm.
In Snyder, two teenage boys sought a double mastectomy, also known as top surgery, for gender confirmation purposes.
One of the plaintiffs indicated he had known his gender identity at an early age, just as in Edmo.
He tried living as a boy for several years, including by wearing a binder.
The plaintiffs experienced intense mental health symptoms related to their gender dysphoria, just as in Edmo.
They were prescribed hormones that proved insufficient in quelling their gender dysphoria, just as in Edmo.
The plaintiffs’ psychiatrist recommended top surgery, which is typical for adolescent transgender males.
The court found a less compelling case for irreparable harm in Snyder than it had in Edmo. The Snyder opinion observes that the district court in the Edmo case contained a forty-five-page analysis compared to Snyder’s twenty pages.
It is hard to escape the fact that, in Edmo, the plaintiff’s actions were shocking in their degree of self-mutilation. It was clear that Edmo would not continue living as she was.
She would not, as much as could not, live with her male genitalia.
The undercurrent of the Edmo decision seems to be that without the surgery, the court would be signing her death warrant. In Snyder, the plaintiffs were depressed.
They were anxious.
Their gender dysphoria impacted all aspects of their life.
So, what makes Snyder different from Edmo? What makes Edmo’s request for gender confirmation surgery a need and the boys’ request in Snyder a want? The court is seemingly looking to the harm that had already occurred in order to predict the harm to come. In Edmo, the plaintiff had already attempted the drastic measure of autocastration.
In Snyder, the plaintiffs had not yet gone that far.
This distinction between the plaintiffs sends a subtle message: To prove irreparable harm and win injunctive relief, you must have harmed yourself to an alarming degree. The court’s dismissal of gender confirmation surgery as a want and not a need incentivizes people already in distress and already experiencing mental health issues to harm themselves further in order to get the surgery they are desperately demanding.
III. Mental Health Is Health, and Harm Is Harm
It is hard to imagine a judge willingly incentivizing self-harm, but that is the implicit result of the Ninth Circuit’s harm analysis when it comes to gender dysphoria. The plaintiff’s success in Edmo hinged on the court’s reliance on past instances of harm to determine the likelihood and severity of future harm and to prevent future harm from occurring.
This backward-looking analysis is an ineffective approach to harm-prevention, especially given the suicide epidemic in the transgender community.
Some people complete suicide on the first attempt.
In seeking to prevent these first-try suicides from occurring, there would be no past attempts to cite. Still, the court found the instances of self-harm in Snyder, which fell short of prior suicide attempts, less persuasive.
Instead of looking for alarming signs of past harm, the court should look to doctors’ recommendations, plaintiffs’ experiences of anxiety and depression, and other precursors to more serious forms of self-harm rather than waiting for and incentivizing the extremes as in Edmo. This Part explores how to lower the irreparable harm bar by applying the logic advocated for incarcerated transgender people’s Eighth Amendment rights.
A. Applying the Eighth Amendment’s “Ability to Bear Pain” Analysis to Injunctive Relief
The Eighth Amendment bans cruel and unusual punishment.
In Brock v. Wright, the Second Circuit held that the Eighth Amendment’s standard does not test the ability of an individual to bear pain.
It is not meant to test the limits of human capacity to endure anguish.
In other words, it does not test when someone will break and only permit calling the state’s action cruel and unusual punishment after they break.
In recent years, advocates have used the Eighth Amendment to fight for gender-affirming care for incarcerated transgender people.
In these cases, including a section of Edmo, some courts agreed that denial of necessary medical treatment for incarcerated people is cruel and unusual punishment and that gender confirmation surgery is necessary medical treatment. Therefore, denial of gender confirmation surgery violates these individuals’ Eighth Amendment rights.
Courts have also seemingly accepted that mental health is crucial to one’s overall well-being and that mental anguish, on its own, can constitute an Eighth Amendment violation.
Yet even in Eighth Amendment cases, incarcerated transgender people with greater physical harm stemming from their gender dysphoria are more successful in proving their harm and, thus, their claim to access gender confirmation surgery.
“[I]t is suicidal ideation, depression, and attempts of self-mutilation that become their most effective factual tool in receiving the health care they deserve.”
Courts’ greater willingness to grant relief to those with more severe physical harm is illustrated by the circumstances in Edmo and Snyder articulated above, in which courts lent greater weight to cases with facts of severe self-harm. To analyze mental health concerns, such as mental distress caused by gender dysphoria, courts look to physical manifestations of the health concern in order to determine whether it qualifies as a serious medical need.
Edmo’s case demonstrates this. The opinion frequently invokes the attempted autocastration and future risk of continued castration attempts or suicide, seemingly implying extreme physical self-harm is the most worrisome component.
By using drastic physical self-harm as a proxy for mental anguish to define what we consider cruel and unusual punishment, the courts penalize individuals whose anguish presents without physical injury.
It creates a reward system for those who act drastically and dangerously in response to their pain.
But receipt of necessary medical treatment should not be conditioned on extreme physical harm; as Brock indicates, the Eighth Amendment does not require that the incarcerated person “experiences pain that is at the limit of human ability to bear.”
The refusal to assess suffering based only on the suffering individual’s outward conduct, as discussed in scholarship on the Eighth Amendment for incarcerated transgender people,
should apply to the irreparable harm standard for injunctive relief. Courts should consider plaintiffs’ mental anguish as its own indicia of harm. Without this protection, the court sends an implicit message: Those who self-harm, those who consider or attempt suicide, and those who physically manifest their gender-dysphoria–related depression and anxiety are more likely to meet the standard for injunctive relief than those who suffer internally.
This creates a bizarre incentive structure. It asks plaintiffs to harm themselves in order to show that they truly need gender confirmation surgery. It asks plaintiffs to show future irreparable harm by offering past instances of material physical harm. The scholarship advocating for gender-affirming surgery for incarcerated people on Eighth Amendment grounds reflects how absurd such a perverse incentive structure is.
This absurdity extends to the logic of injunctive relief and the irreparable harm standard, as highlighted above in the distinction between Snyder and Edmo.
Undoubtedly, courts will argue that some line-drawing is necessary, lest they write a blank check for anyone seeking gender-affirmation surgery. This Comment does not extend itself to declare a singular solution but posits that a line can be drawn in a number of ways that lean on medical rather than judicial judgments. This Comment does not presume to know every way to draw the line. Still, a court’s determination should hinge on the diagnosis and treatment options available rather than the severity of past harm or self-inflicted behaviors. Courts’ current means of analysis dangerously suggest that such harmful behaviors are the only path to injunctive salvation.
Suicidality rates in the transgender community are staggering.
Gender-affirming care can be life-changing.
The debate over whether to extend Medicaid coverage to all gender confirmation surgery plays out in state legislatures.
A few states have already changed their laws to provide access under state plans.
Yet, in states like Arizona, transgender people remain without coverage for their life-saving treatments.
Until all states provide this coverage, one of the only hopes for individuals like the plaintiffs in Snyder is injunctive relief. As long as the bar for injunctive relief remains so high that it incentivizes self-harm, however, transgender individuals in these states are endangered and encouraged to endure the level of harm that the court legitimizes. Therefore, judicial evaluations of harm for gender confirmation surgery should not focus on the severity of past and current patterns of self-harm but rather on medical advice and the surrounding circumstances. Judges need to be aware of the implicit messaging their rulings send to vulnerable individuals who are desperate for help. The implicit message made clear by Edmo and Snyder is that drastic measures of self-harm prevail to provide access to deserved treatment. This is an irreparably harmful message.