9th Circuit confronts gender conformity surgery in prisons

A three judge panel of the 9th U.S. Circuit Court of Appeals confronted the issue Thursday of whether a prison could be forced to provide sex reassignment surgery to an inmate suffering from gender dysphoria.

The federal appeals court has never before weighed in on whether the U.S. Constitution requires prisons to provide such surgery, and the judges appeared eager to find alternative routes to settling the case without creating a circuit-wide precedent.

The appeal came from the District of Idaho, where a federal judge in December granted Adree Edmo an injunction requiring the state prison provide her with "adequate medical care including gender conformity surgery," for her gender dysphoria.

Idaho argued Thursday that guards and medical professionals involved did not act with deliberate indifference, as the district court found. The state's lawyers also said the order was procedurally flawed because of the ambiguity of whether it was a final or preliminary injunction.

The circuit judges sought to dispose of the matter outside a court opinion.

U.S. District Judge Robert S. Lasnik, a visiting judge from the Western District of Washington, wondered aloud whether the prison should reassess the plaintiff to see if she did in fact require sex reassignment surgery. Lasnik also asked whether the state should take another look at Edmo's parole status, which was revoked because of disciplinary infractions that arguably stemmed from her gender identity issues.

Similarly, Judge M. Margaret McKeown asked Idaho's lawyer if the state had considered this case appropriate for mediation. The lawyer said the state had not considered it, and McKeown suggested it do that.

But the crux of the arguments and the judges' questions centered on an obscure issue that results from the ambiguity of granting an injunction in sex reassignment surgeries. Because a sex reassignment surgery is by its nature final and irreversible, it is unclear whether an injunction requiring that surgery could ever be preliminary. McKeown likened a sex reassignment mandatory injunction to an injunction requiring that someone blow up a building: once either is completed, there is no going back.

Overall, both parties agreed this case should be narrowed to the specific facts of the plaintiff, and not be used as a precedent setting decision.