by Virginia Su*
An inmate’s right to effective medical treatment remains one of the core protections safeguarded by the Eighth Amendment. The applicability of this Constitutional protection naturally expands over time, as the development and understanding of novel medical science progresses. As stated by Chief Justice Warren in an often-quoted phrase, “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”1 This progressive principle directly conflicts with the blanket denials issued by Departments of Corrections2 across the country prohibiting transgender inmates from receiving Gender Confirmation Surgery (“GCS”), a medical procedure now well-understood and accepted within the medical community as an effective, even necessary, course of treatment to alleviate gender dysphoria.3 Ultimately, this Contribution argues that the Eighth Amendment guarantees the unencumbered right to gender confirmation surgery for incarcerated individuals.
The Eighth Amendment protects against “cruel and unusual punishments.”4 In applying this protection to an inmate’s medical care, the Supreme Court looks to whether there was an “unnecessary and wanton infliction of pain” which is “repugnant to the conscience of mankind.”5 Inmates exist in a particularly vulnerable pocket of society, having to rely exclusively on the government for the satisfaction of their basic needs.6 If the government fails to treat an inmate’s serious medical condition, that condition will simply be left untreated, as inmates do not have other options to pursue medical care.7 This vulnerability is particularly salient with transgender inmates, as they rely on the government for not only the satisfaction of their basic needs, but also their continued safety.8 Thus, the potential cruelty associated with the government’s failure to provide adequate medical care has far-reaching implications, affecting the overall safety of the country’s prisons.9
The framework established by the Supreme Court to find a Constitutional violation requires the inmate to bear the burden of showing both “(1) an objective prong that requires proof of a serious medical need, and (2) a subjective prong that mandates a showing of prison administrators’ deliberate indifference to that need.”10 The wealth of discussion surrounding this topic, however, exists primarily within the second prong.11 Once an inmate has made the threshold showing of a serious medical need—in the case of most transgender inmates, a serious case of gender dysphoria—courts have then analyzed whether the prison administrator’s deliberate indifference regarding the inmate’s serious medical need constitutes an “unnecessary and wanton infliction of pain.”12 This requires a showing of purposeful conduct, a notably stricter requirement than negligence or medical malpractice.13
Circuit courts have split on whether a denial of GCS to transgender inmates who present a serious case of gender dysphoria constitutes deliberately indifferent conduct. In Edmo v. Corizon, Inc., the Ninth Circuit found that deliberate indifference only requires conscious disregard of an excessive risk.14 Thus, when prison officials knew that Edmo’s gender dysphoria had risen to a potentially dangerous level, the affirmative decision to continue to withhold medically necessary surgery ran afoul of the Eighth Amendment.15
The Fifth Circuit, in Gibson v. Collier, reached a contrary result on similar facts.16 In doing so, the Fifth Circuit reached beyond the ‘conscious disregard’ standard applied by the Ninth Circuit and placed additional emphasis on the subjective mental state of the prison officials tending to the inmate, requiring the inmate to show that officials acted “with malicious intent—that is, with knowledge that they were withholding medically necessary care.”17 Examples provided by the Fifth Circuit of malicious intent included how plaintiff must show officials “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.”18 These examples illustrate the demanding nature of the Fifth Circuit’s new, unprecedented standard.19
Perhaps most central to the deliberate indifference analysis is the concept of medical necessity, which has also drawn disagreements between circuits on its proper application.20 Many circuits agree that the requested medical treatment must be considered medically necessary for the inmate to sustain an Eighth Amendment claim.21 The circuits do not, however, agree on who should be able to make that determination of medical necessity. The First and Fifth Circuits have adopted a test which looks to whether “a genuine debate exists within the medical community about the necessity and efficacy of that care.”22 This approach reaches beyond the expert testimony concerning the specific inmate in the case, looking instead for “universal acceptance” by the medical community at large that GCS is medically necessary to treat gender dysphoria.23 While “universal acceptance” does not require unanimity among all experts in the field, it will not be found if there is “robust and substantial good faith disagreement dividing respected members of the expert community[.]”24 Under this method of analysis, a novel treatment without near-universal endorsement by all experts in the medical field will not be constitutionally guaranteed to an inmate, even if all medical experts testifying to the inmate’s condition agree that this is the necessary course of treatment under the factual circumstances.
In contrast, the Ninth Circuit has looked at medical necessity through the narrower lens of what would be considered necessary for the specific inmate at issue.25 Under this approach, broad sweeping statements about GCS are less relevant to the court’s decision. Instead, the focus is on the patient and what would constitute a medically necessary course of treatment for that specific patient. In undertaking this analysis in Edmo, the Ninth Circuit examined the opinion testimony of medical experts in the district court regarding the necessity of GCS for the inmate at issue, and also relied on the medical discourse in the widely-accepted professional guidelines on care for patients with gender dysphoria, the WPATH Standards of Care (“WPATH”).26 The Ninth Circuit then drew an accordingly narrow holding, explicitly stating that their findings on what constitutes medical necessity were limited to the individualized experiences of Adree Edmo herself, and cannot be extrapolated to other individuals seeking GCS.27
There are two reasons why the Ninth Circuit’s approach to finding medical necessity of GCS should be adopted. First, requiring a demanding standard of near-universal endorsement does not comport with the foundational principles in Eighth Amendment jurisprudence set forth by the Supreme Court in Estelle. In Estelle, the Supreme Court laid out simply that, to state a cognizable claim, a prisoner must “allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”28 Requiring that an act be “sufficiently harmful” implies that the analysis concerns only the inmate at issue, and not a larger body of people who are eligible to receive a particular treatment. It would be counter-intuitive for the Supreme Court to require an individualized injury but leave open the possibility that this injury could be completely invalidated due to facts beyond the immediate injury and inmate. What is required, simply, is the individual inmate’s inability to receive medically necessary treatment, and this is provable without consulting a community-wide survey regarding the efficacy of a course of treatment at large.
The second reason the Ninth Circuit’s approach should be adopted is because it comports with our commonly understood approaches to medical treatment. Ailments are individualized, and treatments must reflect that. The transgender community is no exception to this principle. Among transgender individuals, experiences surrounding gender dysphoria vary widely.29 This disparity necessarily requires physicians to tailor a course of medical treatment that is most effective for that specific patient. The WPATH Standards, the preeminent guidelines for physicians treating a patient’s unique transition process, recognize this need for flexibility in treatment.30 A legal analysis that disregards the individualized nature of medical treatment, relying instead on an impossible determination that GCS must be universally required in all circumstances, misses the mark. The Eighth Amendment guarantees adequate medical care to individuals, which is a question that must be addressed on the level of the individual. The Fifth Circuit’s broad-reaching requirement for universal acceptance ignores the necessary nuances of medical care and is ultimately incompatible with existing Eighth Amendment jurisprudence.
It is worth noting that, even if courts elect to adopt the standard for medical necessity set forth by the First and Fifth Circuits, GCS should still be considered a medically necessary course of treatment. Due in large part to the WPATH Standards, there is now widespread acceptance regarding GCS, even if it may have been a novel treatment at one point. The WPATH Standards remain the gold-standard for physicians treating gender dysphoria, and its stance on the necessity of GCS for patients is unambiguous.31 To date, GCS remains a crucial component of treatment for gender dysphoria.32 Further studies have also found that GCS has “an undeniable beneficial effect” by contributing positively to the patient’s subjective well-being, cosmesis, and sexual function. This is further underscored by how multiple major medical and mental health groups in the United States—including the American Medical Association, the American Psychiatric Association, the American College of Surgeons, as well as many others—have recognized the WPATH Standards of Care as representing the consensus of the medical community regarding the appropriate treatment for transgender and gender dysphoric individuals.34 Even if the Fifth Circuit’s test for determining medical necessity were adopted, the Fifth Circuit’s ultimate conclusion that GCS is not medically necessary directly contradicts conventional and widely-endorsed medical practices. This, therefore, provides not only no compelling basis for future courts to follow, but also an open opportunity for the Supreme Court to clarify the law in line with its precedent in Estelle.
When a transgender inmate is denied a well-accepted course of treatment determined by trustworthy experts to be medically necessary for their care, this constitutes a violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment and contravenes the Supreme Court’s emphasis on “evolving standards of decency that mark the progress of a maturing society.”35
* Virginia Su is a J.D. Candidate (2022) at New York University School of Law. This piece is a commentary on a problem produced by the Evan A. Evans Moot Court Competition in Madison, Wisconsin, hosted by the University of Wisconsin School of Law. The issue in the problem dealt with the question of whether a department of corrections’ blanket policy denying gender confirmation surgery constitutes deliberate indifference to a transgender inmate’s serious medical needs in violation of the Eighth Amendment.
1. Trop v. Dulles, 356 U.S. 86, 101 (1958).
2. See Elliot Oberholtzer, The Dismal State of Transgender Incarceration Policies, Prison Pol’y Initiative
(Nov. 8, 2017), https://www.prisonpolicy.org/blog/2017/11/08/transgender/ (“Only one state, Delaware, explicitly outlined care such as surgery, electrolysis and gynecological exams for trans people in their policy.”).
3. See World Professional Ass’n for Transgender Health (“WPATH”), Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, Version 7 (2011) [hereinafter “WPATH”] (finding that GCS is essential and medically necessary for those patients for whom serious symptoms of gender dysphoria persist despite alternative courses of treatment).
4. U.S. Const. amend. VIII.
5. Estelle v. Gamble, 429 U.S. 97, 105–06 (1976).
6. See id. at 103 (finding the elementary principles of the Eighth Amendment “establish the government’s obligation to provide medical care for those whom it is punishing by incarceration”).
7. See id.
8. See Allen J. Beck, Sexual Victimization in Prisons and Jails Reported by Inmates, Bureau of Just. Stats. 9 (2014), http://www.bjs.gov/content/pub/pdf/svpjri1112_st.pdf (tables documenting a recent Department of Justice study of American prisons and jails showing that over one-third of imprisoned transgender people were sexually abused at least once during their term of confinement).
9. Cf. Kosilek v. Spencer, 774 F.3d 63, 73–74 (1st Cir. 2014) (finding “infeasibility” in housing a transgender inmate in either a male or female penological institution).
10. Kosilek, 774 F.3d at 82.
11. See generally Kosilek, 774 F.3d 63 (1st Cir. 2014); Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019); Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019).
12. Estelle, 429 U.S. at 104–05 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).
13. See Kosilek, 774 F.3d at 82 (finding the deliberate indifference standard necessarily means that “not all shortages or failures in care exhibit the intent and harmfulness required to fall within its ambit.”).
14. 935 F.3d 757, 786 (citing Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016).
15. See Edmo, 935 F.3d at 773 (finding deliberate indifference where the Department of Correction’s experts testified that Edmo’s self-castration attempt was a notable escalation of her gender dysphoria yet had continued to suggest no modification or escalation of treatment to match).
16. See Gibson, 920 F.3d at 219 (the Court finding, and the state not contesting, that Gibson’s record of psychological distress, suicidal ideation, and threats of self-harm all presented a serious medical need).
17. Id. (emphasis added).
18. Id. at 220 (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
19. See generally Estelle, 429 U.S. 97. As the seminal case discussing the Eighth Amendment’s application to the medical needs of inmates, Estelle does not mention any distinct requirement for additional malice on the parts of prison officials in order for a constitutional violation to occur. Rather, the Supreme Court has taken the opposite stance. Instead of placing the burden on the inmate to show affirmative malice before being granted relief, Estelle speaks broadly to denial of medical care as “unnecessary suffering [that] is inconsistent with contemporary standards of decency.” Id. at 103. Furthermore, in expressly identifying accidents as an exception to any violation of the Eighth Amendment, Estelle allows the negative inference that intentional conduct, regardless of subjective mental state, would suffice for a violation.
20. See Edmo, 935 F.3d at 786 (finding “[a]ccepted standards of care and practice within the medical community” to be relevant in determining what is medically unacceptable care); see also Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (finding a mere “difference of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference,” but not if the “chosen course of treatment ‘was medically unacceptable under the circumstances’” (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996))).
21. See e.g., Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990) (stating that the objective prong of the Eighth Amendment test requires that one be “diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.”); Edmo, 935 F.3d at 786 (“[U]nder the Eighth Amendment, we must determine . . . whether the treatment decision of responsible prison authorities was medically acceptable.”); Gibson, 935 F.3d at 236 (discussing the requirement of medical necessity to satisfy the subjective prong of deliberate indifference).
22. Gibson, 920 F.3d at 220; see also Kosilek, 774 F.3d at 91–92 (“The choice of a medical option that, although disfavored by some in the field, is presented by competent professionals does not exhibit a level of inattention or callousness to a prisoner’s needs rising to a constitutional violation.”).
23. Gibson, 920 F.3d at 220.
25. See Edmo, 935 F.3d at 787 (looking primarily at the record and the district court’s extensive factual findings to conclude that Edmo’s course of treatment to alleviate her gender dysphoria “was medically unacceptable under the circumstances.” (quoting Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016))).
26. See id. (declaring the WPATH Standards of Care as “the undisputed starting point in determining the appropriate treatment for gender dysphoric individuals”).
27. See id. at 767 (“We also emphasize that the analysis here is individual to Edmo and rests on the record in this case. We do not endeavor to project whether individuals in other cases will meet the threshold to establish an Eighth Amendment violation.”).
28. Estelle, 429 U.S. at 106 (emphasis added).
29. See Dan Schneider, Comment: Decency, Evolved: The Eighth Amendment Right to Transition in Prison, 2016 Wis. L. Rev. 835, 839 (2016) (“Not all transgender individuals necessarily experience gender dysphoria, and those who do may experience it to wildly different degrees. Some experience only minor but persistent discomfort; others will experience such severe psychic pain that it truly qualifies as a mental disorder, one that in its worst instances can lead to self-mutilation and suicide.”).
30. See WPATH at 2 (Due to the wide-ranging experiences of patients with gender dysphoria, it is necessary to adopt “flexible clinical guidelines” for each patient.)
31. See id. at 5 (describing GCS as not only effective treatment for many patients, but also “medically necessary” for some).
32. See id. at 3 (noting that for many patients, relief from gender dysphoria cannot be attained unless the patient undergoes modification of their primary and/or secondary sex characteristics to establish gender congruence with their gender identity.).
33. See id. at 55.
34. See Edmo, 935 F.3d at 769.
35. Estelle, 429 U.S. at 103.