Taxpayers may avoid paying for sex change

Like the hapless character in the 2005 "South Park" episode, "Mr. Garrison's Fancy New Vagina," 51-year-old Jeffrey Norsworthy wants a vagina instead of male genitals. Standing alone, this is not remarkable; since George Jorgensen pioneered "sex reassignment surgery" in the early 1950s (transforming himself into "Christine" Jorgensen), men in the U.S. wishing to alter their genitalia to resemble a female have been able to do so. The procedure is expensive, and gruesome, but fairly common as far as exotic surgeries are concerned. There is even a clinical term for the condition (gender dysphoria) and the surgical procedure (penile inversion and vaginoplasty). What makes Jeffrey Norsworthy's case controversial is that he is a convicted murderer currently serving a life sentence in a California state prison, and a federal judge in San Francisco (Jon Tigar) has ordered the procedure - estimated to cost up to $100,000 - at taxpayer expense.

On April 2, Judge Tigar issued his novel and widely ridiculed decision, which was based on a finding that the Eighth Amendment entitles a prisoner to "adequate medical care." Tigar reasoned that "gender dysphoria" is a serious medical condition, and that "sex reassignment surgery" (SRS) is essential and medically necessary, rejecting the state's contention that the surgery be deferred until the inmate is released from prison. The state's position is primarily based on security concerns (since Norsworthy is incarcerated in a men's prison) and because treatment protocols generally require the patient to live in society as a woman for one year before undergoing the drastic surgery. Such "real life" experience is obviously impossible behind bars.

Tigar ordered SRS for Norsworthy even though no California inmate has ever received SRS while in custody, and no appellate court in the U.S. has ever ruled that SRS for prisoners is required by the Eighth Amendment. Prior to Tigar's April 2 decision, the only other court to reach that conclusion - a federal district judge in Boston - was reversed by the 1st U.S. Circuit Court of Appeals in December 2014 (Kosilek v. O'Brien). As expected, on May 4, 2015, the U.S. Supreme Court denied Kosilek's petition for certiorari. Tigar, a UC Berkeley-educated, 2013 appointee of President Barack Obama, was not deterred by the novelty of Norsworthy's claims or the lack of precedent for his decision. His April 2 decision was strident and dismissive of the state's arguments (for example, assigning "very little weight" to the state's psychiatric expert witness, discounting the prison's security considerations, and disregarding the only relevant appellate precedent). Incredibly, he subsequently denied the state's request for a stay of his decision pending appeal, even though Norsworthy has been a male all his life and was diagnosed with "gender dysphoria" 15 years ago. What's the urgency for SRS that it couldn't await an appeal?

But judicial activism is commonplace - even de rigeur - in the 9th Circuit. What was it about Tigar's decision that prompted widespread national ridicule? Perhaps it was Tigar's jarring reference to Norsworthy throughout as "Michelle-Lael Norsworthy," even though his legal name - and the one used by prison officials - is Jeffrey. Perhaps it was Tigar's consistent use of female pronouns to refer to Norsworthy, even though he is genetically and anatomically a man. Perhaps it was Tigar's statement that Norsworthy has become a "pleasant looking woman, slender and coiffed in a ponytail," as a result of hormone treatments (a dubious judgment based on photos I have seen). Tigar's decision reads like an advocate's brief rather than an impartial decree.

The basis for derision is deeper, extending to Tigar's far-fetched interpretation of the term "cruel and unusual punishment" to include forcing Norsworthy to retain the perfectly functional genitals he was born with. Outside the insular community of LGBT activists, the notion that taxpayers are required to provide costly sex change operations to convicted murderers serving life sentences didn't pass the straight face test. Even assuming that wanting to be the opposite sex is a mental illness, why is an expensive surgery to remove a healthy penis the only viable treatment option? (Hundreds of California prisoners, Norsworthy included, are receiving hormone treatment for "gender dysphoria."). I thought treating mental illness with surgery went out with the prefrontal lobotomy.

Remarkably, Tigar's unbridled activism exceeded even the 9th Circuit's capacious bounds of tolerance. On May 21, a three judge panel granted Attorney General Kamala Harris' motion to stay Tigar's decision. The state contends that SRS is medically unnecessary. Thus, Norsworthy's imminent vaginoplasty will wait until the 9th Circuit hears the case during the week of August 10. Almost simultaneously, the state parole board found that Norsworthy, who had previously been denied parole five times, was finally eligible for parole after serving 28 years in prison. The parole decision, which is subject to further review by the Board of Parole Hearings, and may be modified or reversed by Gov. Jerry Brown, could lead to Norsworthy's release by October.

Norsworthy's release would render Tigar's ruling moot and obviate the state's appeal. This would be a favorable outcome for California taxpayers, who would not have to foot the $100,000 cost of Norsworthy's sex change operation. Ironically, however, his lawyer from the Oakland-based Transgender Law Center indicates that if the state doesn't provide Norsworthy with SRS while in prison, he will seek access to the procedure under Medi-Cal after his release. The taxpayers may be on the hook after all.