Two Wins for Gender Confirmation Surgery Access

Two Wins for Gender Confirmation Surgery Access

Two recent federal court rulings mark important advances for access to gender confirmation surgery by transgender people — both under Medicaid regulations and in prison settings.

A year after a federal district court granted a preliminary injunction to transgender plaintiffs challenging the Wisconsin Medicaid statute’s ban on coverage of gender transition expenses, the judge permanently enjoined the state from enforcing that exclusion. Judge William M. Conley’s August 16 final ruling on the merits in the case relied on the Affordable Care Act and the federal Medicaid Act as well as the 14th Amendment’s Equal Protection Clause.

The Chicago-based Seventh Circuit Court of Appeals, which has jurisdiction over the district courts of Wisconsin, has previously ruled that government policies disadvantaging trans people may violate the Equal Protection Clause, and it interpreted the sex discrimination provisions of Title IX of federal education law to extend to cases of gender identity discrimination. That holding, however, could be adversely affected by a Supreme Court ruling in the Harris Funeral Homes Title VII employment discrimination case, which will be argued on October 8.

Conley accepted the plaintiffs’ evidence regarding the professional consensus over the medical standards of care in treating gender dysphoria. Federal courts now nearly unanimously agree that gender dysphoria can be a serious condition and that treatments including hormone therapy and gender confirmation surgery may be medically necessary.

Wisconsin’s Medicaid law, as amended in 1996, however, forbids use of state funds for gender transition, so that hormone therapy is covered for cisgender Medicaid participants with a severe deficiency but not for transgender individuals and a mastectomy is covered in the case of a woman with breast cancer but not for a transgender man for which the procedure is medically necessary. In adopting this ban more than two decades ago, the Legislature did not undertake any serious study of gender transition expenses or of the accepted standards of care.

The plaintiffs’ two expert witnesses were experienced and well-recognized medical specialists who had treated hundreds of trans individuals. The state’s response was pathetic, providing no relevant expertise to contest the plaintiffs’ medical evidence. In fact, officials from the Wisconsin Medicaid program acknowledged the effectiveness of current treatment methods and procedures, and there was little dispute that the plaintiffs were denied coverage solely because of the 1996 prohibition.

The state attempted to rely on decisions from two other circuit courts — the 2014 Boston-based First Circuit ruling in Kosilek v. Spencer, which involved a convicted murderer serving a life sentence in a Massachusetts prison, and this year’s New Orleans-based Fifth Circuit decision in Gibson v. Collier, also involving an inmate, this one from Texas.

In the Kosilek case, the First Circuit, relying on the standards of care in place at the time of the inmate’s original 2006 trial, but since revised, found that hormone therapy was sufficient in her case, but also put emphasis on testimony from prison officials that performing surgery on her and then transferring an inmate convicted of killing her wife (while presenting as a male) to a female prison posed significant security risks — an issue not relevant to the question of Medicaid coverage.

Conley was particularly dismissive of the Gibson case, where the inmate represented herself and was unable to present current expert testimony. As a result, the Fifth Circuit looked to the outdated medical evidence from the Kosilek case and ruled that gender confirmation surgery is never required under Eighth Amendment considerations.

Conley concluded that the Affordable Care Act and the requirement that Medicaid cover medically necessary treatments support the plaintiffs’ claims.

On the equal protection question, he noted that both sides agreed that claim was subject to “some sort of heightened scrutiny,” requiring the state to prove it has an “exceedingly persuasive” justification for its coverage exclusion. The state cited “containing costs and protecting public health in face of uncertainty,” but Conley found that the additional cost to the state’s Medicaid budget amounted to little more than a rounding error and there was no credible evidence that covering these procedures would endanger public health.

Plaintiffs are represented by attorneys from McNally Peterson in Milwaukee and from Relman, Dane & Colfax in Washington, as well as Abigail Koelzer Coursolle and Catherine Anne McKee from the National Health Law Program.

Meanwhile, the San Francisco-based Ninth Circuit Court of Appeals has tackled the question of prisons denying gender confirmation surgery to inmates. In an August 23 ruling, a three-judge circuit panel ruled that the Idaho Department of Corrections violated the Eight Amendment rights of a transgender inmate in denying her access to surgery.

The court opinion’s extensive discussion of the medical and legal issues implicated could serve as a textbook for other courts.

The three members of the panel — Circuit Judges M. Margaret McKeown and Ronald M. Gould and District Judge Robert S. Lasnik of the Western District of Washington — were all appointed by President Bill Clinton, and the ruling affirmed a May order by District Judge B. Lynn Winmill, also a Clinton appointee.

The plaintiff, Adree Edmo, was designated male at birth but has viewed herself as female since at least the age of six. At age 21 in 2012, Edmo pled guilty to the sexual abuse of a 15-year-old boy at a house party. It was about that time that she resolved her internal struggle about her gender identity and began living as a woman. Edmo is due to be released from prison in 2021.

Edmo was first diagnosed with “gender identity disorder” — now termed “gender dysphoria” — shortly after entering prison. Though she has changed her legal name and obtained a new birth certificate designating her as female, Edmo is housed in a male prison. Consistently trying to present as female, she has endured disciplinary measures, even though the Idaho Department of Corrections does not dispute that she has gender dysphoria. Edmo’s condition, not adequately treated, causes her to feel “depressed,” “disgusting,” “tormented,” and “hopeless,” and she twice attempted self-castration.

Although hormone therapy has helped Edmo, it has not completely alleviated her condition, and much of her distress focuses on her male genitalia. Expert testimony on her behalf indicated that removing her male genitalia would allow her to reduce the level of her hormone therapy, reducing side effects and promoting her long-term health.

Judge Winmill concluded that the standards of care that prison officials applied in Edmo’s case failed to conform to the medical consensus about appropriate treatment and did not give adequate weight to her self-castration attempts.

Edmo’s experts convinced Winmill that gender confirmation surgery is necessary for her. The judge ordered the state to provide the surgical procedure to Edmo, but that injunction was stayed while the state appealed to the Ninth Circuit.

The appellate panel rejected all of the state’s objections to Winmill’s ruling. A prison system will be found to violate an inmate’s Eighth Amendment rights if it displays deliberate indifference to a serious medical condition by failing to provide necessary treatment. Disagreement among experts can be a defense for the prison, but the court here identified the state’s experts as underqualified and characterized their views as “outliers” from the professional consensus.

The state had pointed to the standard treatment requirement that gender confirmation surgery not be performed until an individual has lived consistently with their gender identity for at least a year — and argued that experience should take place in a non-institutional setting. That approach, of course, would deny surgery to any inmate first diagnosed with gender dysphoria after they were incarcerated.

The experts who testified on Edmo’s behalf persuasively argued that it was possible for a transgender inmate to fulfill the one-year requirement while in prison — in accordance with current professional care standards.

This new ruling may set up the issue for Supreme Court review, because it sharply conflicts with the Gibson v. Collier decision mentioned above out of the Fifth Circuit, which ruled earlier this year that gender confirmation surgery is never required under Eighth Amendment standards. The Gibson ruling, in turn, relied heavily on the First Circuit ruling in the Kosilek case, where the court found that hormone therapy was sufficient (based on outdated standards of care) and that transferring the inmate to a women’s prison posed an unacceptable security risk.

In Edmo’s case, the Ninth Circuit emphasized the urgency of providing surgery to her, clearly signaling it would not be receptive to requests for delay pending further appeal by the state. If Idaho cannot obtain an emergency stay, the surgery will go forward unless the state decides to do what California did in an earlier case where the Ninth Circuit refused to stay a district court’s order pending appeal: accelerate the inmate’s parole date to avoid having to provide the surgery! California, however, no longer has a categorical ban on providing gender confirmation surgery to inmates and has provided the procedure to one inmate, the first known instance of a state doing so.

Edmo is represented by attorneys from private law firms in California and Idaho as well as the National Center for Lesbian Rights. A wide variety of civil rights organizations filed amicus briefs. The work product from this very large team effort can usefully be deployed in future litigations.