Edmo v. Corizon Incorporated et al
Filing
149
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - IT IS ORDERED: 1. Plaintiffs Motion for Preliminary Injunction (Dkt. 62 ) is GRANTED IN PART. Defendants are ordered to provide Plaintiff with adequate medical care, including gender confirmation sur gery. Defendants shall take all actions reasonably necessary to provide Ms. Edmo gender confirmation surgery as promptly as possible and no later than six months from the date of this order. However, given IDOCs implementation of an updated gender dy sphoria policy on October 5, 2018 that appears to provide Plaintiffs requested injunctive relief related to accessing gender-appropriate underwear, clothing, and commissary items, the Court will not address that relief at this time. This is without p rejudice to the plaintiffs right to raise the issue in the future, should IDOC revoke the new policy or if the implementation of the policy results in ongoing violations. 2. The Courts Deputy, Jamie Bracke, is directed to set a telephonic status conference in this case no later than two weeks after this decision issues. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 1 of 45
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ADREE EDMO,
Plaintiff,
v.
Case No. 1:17-cv-00151-BLW
FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND
ORDER
IDAHO DEPARTMENT OF
CORRECTION, et al.,
Defendants.
INTRODUCTION
For more than forty years, the Supreme Court has consistently held that
consciously ignoring a prisoner’s serious medical needs amounts to cruel and unusual
punishment in violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97,
103 (1976). After all, inmates have no choice but to rely on prison authorities to treat
their medical needs, and “if the authorities fail to do so, those needs will not be met.” Id.
Prison authorities thus treat inmates with all manner of routine medical conditions –
broken bones are set; diabetic inmates receive insulin; inmates with cancer receive
chemotherapy; and so on. This constitutional duty also applies to far less routine, and
even controversial, procedures – if necessary to address a serious medical need. And so it
is here. Plaintiff Adree Edmo alleges that prison authorities violated her Eighth
Amendment rights by refusing to provide her with gender confirmation surgery. For the
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 1
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 2 of 45
reasons explained below, the Court agrees and will order defendants to provide her with
this procedure, a surgery which is considered medically necessary under generally
accepted standards of care.
The Court will explain its reasoning below but will first pause to place this
decision in a broader context. The Rule of Law, which is the bedrock of our legal system,
promises that all individuals will be afforded the full protection of our legal system and
the rights guaranteed by our Constitution. This is so whether the individual seeking that
protection is black, white, male, female, gay, straight, or, as in this case, transgender.
This decision requires the Court to confront the full breadth and meaning of that promise.
Adree Edmo is a male-to-female transgender prisoner in the custody of the Idaho
Department of Correction (“IDOC”). She has been incarcerated since April 2012. In June
2012, soon after being incarcerated, an IDOC psychiatrist diagnosed Ms. Edmo with
gender dysphoria. An IDOC psychologist confirmed that diagnosis a month later.
Gender dysphoria is a medical condition experienced by transgender individuals in
which the incongruity between their assigned gender and their actual gender identity is so
severe that it impairs the individual’s ability to function. The treatment for gender
dysphoria depends upon the severity of the condition. Many transgender individuals are
comfortable living with their gender identity, role, and expression without surgery. For
others, however, gender confirmation surgery, also known as gender or sex reassignment
surgery (“SRS”), is the only effective treatment.
To treat Ms. Edmo’s gender dysphoria, medical staff at the prison appropriately
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 2
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 3 of 45
began by providing Ms. Edmo with hormone therapy. This continued until she was
hormonally confirmed – meaning she had the same circulating sex hormones and
secondary sex characteristics as a typical adult female. Ms. Edmo thus achieved the
maximum physical changes associated with hormone treatment. But, Ms. Edmo
continued to experience such extreme gender dysphoria that she twice attempted selfcastration. For her second attempt, Ms. Edmo prepared for weeks by studying the
anatomy of the scrotum and took steps to diminish the chance of infection by boiling a
razor blade and scrubbing her hands with soap. She was successful in opening the
scrotum and exposing a testicle. But because there was too much blood, Ms. Edmo
abandoned her second self-castration attempt and sought medical assistance. She was
transported to a hospital where her testicle was repaired.
As already noted, an inmate has no choice but to rely on prison authorities to treat
their medical needs. For this reason, the United States Supreme Court has held that
deliberate indifference to a prisoner’s serious medical needs constitutes cruel and unusual
punishment in violation of the Eighth Amendment to the United States Constitution. See,
e.g., Estelle v. Gamble, 429 U.S. 97, 103 (1976). To show such deliberate indifference,
Ms. Edmo must establish two things. First, she must show a “serious medical need” by
demonstrating that failure to treat a medical condition could result in significant further
injury or the “unnecessary and wanton infliction of pain.” Second, she must show that
the prison officials were aware of and failed to respond to her pain and medical needs,
and that she suffered some harm because of that failure.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 3
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 4 of 45
Ms. Edmo’s case satisfies both elements of the deliberate indifference test. She has
presented extensive evidence that, despite years of hormone therapy, she continues to
experience gender dysphoria so significant that she cuts herself to relieve emotional pain.
She also continues to experience thoughts of self-castration and is at serious risk of acting
on that impulse. With full awareness of Ms. Edmo’s circumstances, IDOC and its
medical provider Corizon refuse to provide Ms. Edmo with gender confirmation surgery.
In refusing to provide that surgery, IDOC and Corizon have ignored generally accepted
medical standards for the treatment of gender dysphoria. This constitutes deliberate
indifference to Ms. Edmo’s serious medical needs and violates her rights under the
Eighth Amendment to the United States Constitution. Accordingly, for the reasons
explained in detail below, IDOC and Corizon will be ordered to provide Ms. Edmo with
gender confirmation surgery. Thus, the Court will grant in part Plaintiff’s Motion for
Preliminary Injunction (Dkt. 62).
In so ruling, the Court notes that its decision is based upon, and limited to, the
unique facts and circumstances presented by Ms. Edmo’s case. This decision is not
intended, and should not be construed, as a general finding that all inmates suffering from
gender dysphoria are entitled to gender confirmation surgery.
FINDINGS OF FACT
I.
1.
Transgender and Gender Dysphoria
Transgender is an umbrella term for a person whose gender identity is not
congruent with their assigned gender. Tr. 50:5-11. A transgender person suffers
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 4
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 5 of 45
from gender dysphoria when that incongruity is so severe that it impairs the
individual’s ability to function. Tr. 50:12-14.
2.
The American Psychiatric Association’s Diagnostic and Statistical Manual of
Mental Disorders (“DSM-5”) sets forth specific criteria which must exist before a
diagnosis of gender dysphoria is appropriate. Specifically, two conditions are
required:
a. First, there must be marked incongruence between one’s
experienced/expressed gender and assigned gender, of at least six month’s
duration, as manifested by at least two of the following:
i. A marked incongruence between one’s experienced/expressed
gender and primary and/or secondary sex characteristics.
ii. A strong desire to be rid of one’s primary and/or secondary sex
characteristics because of a marked incongruence with one’s
experienced/expressed gender.
iii. A strong desire for the primary and/or secondary sex characteristics
of the other gender.
iv. A strong desire to be of the other gender.
v. A strong desire to be treated as the other gender.
vi. A strong conviction that one has the typical feelings and reactions of
the other gender.
b. Second, the individual’s condition must be associated with clinically
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 5
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 6 of 45
significant distress or impairment in social, occupational, or other important
areas of functioning. Exh. 1001 at 3-4.
3.
“Clinically significant distress” means that the distress impairs or severely limits
the person’s ability to function in a meaningful way and has reached a threshold
that requires either medical or surgical interventions, or both. Tr. 51:3-8.
4.
Not every person who identifies as transgender has gender dysphoria. Tr. 50:5-11.
II.
5.
WPATH
The World Professional Association of Transgender Health (“WPATH”)
Standards of Care for the Health of Transsexual, Transgender, and Gender
Nonconforming People were first promulgated in 1979 and are the internationally
recognized guidelines for the treatment of individuals with gender dysphoria. Tr.
42:6-20; Exh. 15. WPATH Standards of Care are “flexible clinical guidelines.” Tr.
118:16-24, 119:1-7, 8-25, 288:7-23, and “are intended to be flexible in order to
meet the diverse health care needs of transsexual, transgender, and gender
nonconforming people.” Exh. 15 at 8.
6.
The WPATH Standards of Care have provided treatment guidelines for
incarcerated individuals since 1998. Tr. 54:11-21; Exh. 15 at 73. The current
WPATH Standards of Care apply equally to all individuals “irrespective of their
housing situation” and explicitly state that health care for transgender people
“living in an institutional environment should mirror that which would be
available to them if they were living in a non-institutional setting within the same
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 6
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 7 of 45
community.” Tr. 54:11-21; Exh. 15 at 73. The next update to the WPATH
Standards of Care will also apply to an individual regardless of where that person
is housed, including in a prison setting. Tr. 54:25-55:12.
7.
The WPATH Standards of Care indicate that options for psychological and
medical treatment of gender dysphoria include:
a. changes in gender expression and role,
b. hormone therapy to feminize or masculinize the body,
c. surgical changes of primary or secondary sex characteristics, and
d. psychotherapy. Exh. 15 at 15-16.
8.
The WPATH Standards of Care suggest options for social support and changes in
gender expression, including:
a. offline and online peer support resources, groups, or community
organizations that provide avenues for social support and advocacy;
b. offline and online support resources for families and friends;
c. voice and communication therapy to help individuals develop verbal and
non-verbal communication skills that facilitate comfort with their gender
identity;
d. hair removal through electrolysis, laser treatment, or waxing;
e. breast binding or padding, genital tucking or penile prostheses, padding of
hips or buttocks; and
f. changes in name and gender marker on identity documents. Exh. 15 at 16.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 7
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 8 of 45
9.
The WPATH Standards of Care provide that the purposes of psychotherapy
include “exploring gender identity, role, and expression; addressing the negative
impact of gender dysphoria and stigma on mental health; alleviating internalized
transphobia; enhancing social and peer support; improving body image; or
promoting resilience.” Exh. 15 at 16.
10.
Cross-sex hormone therapy results in development of secondary sex
characteristics of the other sex and provides an increase in the overall level of
well-being of a person with gender dysphoria. Tr. 60:8-22. For a transgender
woman, hormone treatment has physical effects such as breast growth, thinning of
facial hair, redistribution of fat and muscle, and shrinkage of the testicles. Tr.
246:7-20. The maximum physical effects of hormone therapy will typically be
achieved within two to three years. Exh. 15 at 42; Tr. 60:23-61:5, 246:7-247:1.
11.
Surgery – particularly genital surgery – is often the last and the most considered
step in the treatment process for gender dysphoria. Exh. 15 at 60.
12.
Many transgender individuals find comfort with their gender identity, role, and
expression without surgery. Exh. 15 at 60. For many others, however, surgery is
essential and medically necessary to alleviate their gender dysphoria. Exh. 15 at
60. For the latter group, relief from gender dysphoria cannot be achieved without
modification of their primary or secondary sex characteristics to establish greater
congruence with their gender identity. Exh. 15 at 60.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 8
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 9 of 45
13.
For individuals with severe gender dysphoria, where hormone therapy is
insufficient, gender confirmation surgery is the only effective treatment and is
medically necessary. Tr. 168:23-169:15; see also Ettner Decl. ¶ 51.
14.
The WPATH criteria for genital reconstruction surgery in male-to-female patients
include the following:
a. Persistent, well documented gender dysphoria;
b. Capacity to make a fully informed decision and to consent for treatment;
c. Age of majority in a given country;
d. If significant medical or mental health concerns are present, they must be
well controlled;
e. 12 continuous months of hormone therapy as appropriate to the patient’s
gender goals; and
f. 12 continuous months of living in a gender role that is congruent with their
gender identity. Exh. 15 at 66.
15.
Regarding the first criterion, “persistent, well documented gender dysphoria” is
deemed to exist when the person has a well-established diagnosis of gender
dysphoria that has persisted beyond six months. Tr. 55:21-56:3.
16.
Regarding the fourth criterion, the WPATH Standards of Care make clear that the
presence of co-existing mental health concerns does not necessarily preclude
possible changes in gender role or access to feminizing/masculinizing hormones or
surgery. Exh. 15 at 31. But these concerns need to be optimally managed prior to,
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 9
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 10 of 45
or concurrent with, treatment of gender dysphoria. Exh. 15 at 31.
a. It is often difficult to determine whether coexisting mental health concerns
are a result of gender dysphoria or are unrelated to that medical condition.
Tr. 171:1-14, 24-25, 172:1-5; 387:20-25, 388:1, 398:2-18, 601: 11- 602: 2;
Campbell Decl., Dkt. 101-4, ¶¶ 30-33. Co-existing mental health issues
directly tied to an individual’s gender dysphoria should not be considered
in assessing whether an individual meets the fourth WPATH criterion that
significant medical or mental health concerns must be well controlled. Tr.
387:6 to 388:6.
17.
Regarding the sixth criterion – a twelve-month experience of living in an identitycongruent role – the WPATH Standards of Care provide that this is intended to
ensure that the individual has had the opportunity to experience the full range of
different life experiences and events that may occur throughout the year (e.g.,
family events, holidays, vacations, season-specific work or school experiences).
During this time, patients should present consistently, on a day-to-day basis and
across all settings of life, in their desired gender role. This includes coming out to
partners, family, friends, and community members (e.g., at school, work, and in
other settings). Exh. 15 at 67.
18.
An individual in prison can satisfy the criterion of living in a gender role
congruent with their gender identity. Tr. 62:16-63:4, 584:16-25.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 10
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 11 of 45
III.
Expert Testimony
A. Plaintiff’s Experts
19.
Dr. Ettner is one of the authors of the WPATH Standards of Care, version 7. Tr.
42:21-24. Dr. Ettner has been a WPATH member since 1993 and chairs its
Committee for Institutionalized Persons. Tr. 43:2-16; Exh. 1003.
a. Dr. Ettner has treated approximately 3,000 individuals with gender
dysphoria, including evaluating whether gender confirmation surgery is
necessary for certain patients. She has referred approximately 300 patients
for gender confirmation surgery and assessed approximately 30
incarcerated individuals with gender dysphoria. Tr. 43:17-44:1, 44:9-13.
b. Dr. Ettner has extensive experience treating patients who have undergone
gender confirmation surgery. Tr. 44:2-8.
c. Dr. Ettner is an author or editor of numerous peer-reviewed publications on
treatment of gender dysphoria and transgender healthcare. Dr. Ettner is an
editor for the textbook, “Principles of Transgender Medicine and Surgery,”
which was revised in 2017 and is the textbook used in medical schools. Tr.
44:14-45:1; Exh. 1003.
d. Dr. Ettner also trains medical and mental health providers on treating
people with gender dysphoria, including assessing whether gender
confirmation surgery is appropriate, through the global education initiative
of WPATH and other presentations. Tr. 41:8-16, 45:17-46:18.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 11
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 12 of 45
e. Dr. Ettner has been appointed by a federal court as an independent expert
related to evaluation of an incarcerated patient for gender confirmation
surgery. Tr. 46:19-22.
f. However, Dr. Ettner is not a Certified Correctional Healthcare Professional,
and she has not treated inmates with gender dysphoria. Tr. 106:21-24,
107:11-18.
20.
Dr. Gorton is an emergency medicine physician who practices at a federally
qualified healthcare center that primarily services uninsured patients or those with
Medicare or Medicaid. Exh. 1004; Tr. 234:24-235:2. Dr. Gorton also works with
Project Health, which has provided training for numerous clinics regarding the
provision of transgender health care in California. Tr. 233:5-21. Dr. Gorton is a
member of WPATH and is on WPATH’s Transgender Medicine and Research
Committee and its Institutionalized Persons Committee. Tr. 238:4-6; Exh. 1004.
a. Dr. Gorton has been the primary care physician for approximately 400
patients with gender dysphoria and is currently the primary care physician
for approximately 100 patients with gender dysphoria. Exh. 1004; Tr.
237:4-12. Dr. Gorton currently provides follow-up care for about thirty
patients who have had vaginoplasty. Exh. 1004; Tr. 249:20-250:3.
b. Dr. Gorton has published peer-reviewed articles regarding treatment of
gender dysphoria. Tr. 239:16-18, Exh. 1004.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 12
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 13 of 45
c. Dr. Gorton has been qualified as an expert in multiple cases involving
transgender healthcare. Tr. 239:19-240:19; Exh. 1004.
d. However, Dr. Gorton has no experience treating inmates with gender
dysphoria. Tr. 269:17-23. Dr. Gorton is not a Certified Correctional
Healthcare Professional. Tr. 270:9-16.
B. Defendants’ Experts
21.
Dr. Garvey is a psychiatrist and Certified Correctional Healthcare Professional
under the National Commission on Correctional Health Care. Tr. 525:15-23. As
the Chief Psychiatrist in the Massachusetts Department of Corrections, Dr. Garvey
served as the chair of the Gender Dysphoria Treatment Committee. Tr. 508:10-11.
Dr. Garvey directly treated patients in the Massachusetts Department of
Correction who had gender dysphoria. Tr. 508:13-509:1.
a. Prior to evaluating Ms. Edmo, Dr. Garvey had never conducted an inperson evaluation to determine whether a patient needed gender
confirmation surgery. Tr. 558:10-14.
b. Dr. Garvey has never recommended that a patient with gender dysphoria
receive gender confirmation surgery or done long-term follow-up care with
a patient who has had gender confirmation surgery. Tr. 556:20-557:9.
22.
Dr. Andrade is a licensed independent clinical social worker and is a Certified
Correctional Healthcare Professional with an emphasis in mental health. Tr. 626:121. Dr. Andrade has over a decade of experience providing and supervising the
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 13
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 14 of 45
provision of correctional mental health care, including directing and overseeing
the treatment of all inmates diagnosed with gender dysphoria in the custody of the
Massachusetts Department of Corrections in his role as clinical director, chair of
the Gender Dysphoria Supervision Group, and member of the Gender Dysphoria
Treatment Committee. Tr. 627:22-23.
a. Over the last decade, Dr. Andrade has provided treatment to gender
dysphoria inmates in his role on the treatment committee and has evaluated
and confirmed diagnoses of gender dysphoria for over 100 inmates. Tr.
627:2-14. But Dr. Andrade has never provided direct treatment for patients
with gender dysphoria and has never been a treating clinician for a patient
who has had gender confirmation surgery. Tr. 647:8-14, 651:10-12.
b. As part of a committee, Dr. Andrade has recommended gender confirming
surgery for incarcerated inmates on two occasions. Tr. 627-629:1-10. But
the recommendation was contingent upon the requirement that the inmates
first live in a women’s prison for approximately twelve months. Tr. 647:19648:25. The Massachusetts Department of Corrections houses prisoners
according to their genitals, so the inmates were not allowed to move to a
women’s prison. Tr. 649:1-650:11. To Dr. Andrade’s knowledge, the
inmates had not been moved to a women’s prison at least seven months
after his recommendation. Tr. 649:1-650:11. Thus, the twelve-month period
of living in a women’s prison could not have started. Tr. 650:6-11.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 14
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 15 of 45
c. As a licensed independent clinical social worker, Dr. Andrade does not
qualify under IDOC’s former gender dysphoria policy as a “gender identity
disorder evaluator” who could assess someone for surgery. Tr. 660:11-17;
Exh. 8 at 3.
23.
Dr. Campbell is IDOC’s Chief Psychologist. He has provided mental health
services to incarcerated inmates since 2012. Campbell Decl., Dkt. 101-4, ¶¶ 2-7.
Dr. Campbell is a member of WPATH and is familiar with the WPATH Standards
of Care regarding gender dysphoria offenders and transgender inmates as provided
by the National Commission on Correctional Healthcare (“NCCHC”), the National
Institute of Corrections, and the Federal Bureau of Prisons. Campbell Decl., Dkt.
101-4, ¶¶ 8-10.
a. Dr. Campbell serves as chair of the Management and Treatment Committee
(“MTC”), a multidisciplinary committee that meets monthly to discuss and
evaluate the needs of inmates who have been diagnosed with gender
dysphoria. Campbell Decl., Dkt. 101-4, ¶¶ 13-14.
b. Dr. Campbell has directly conducted six gender dysphoria assessments and
has overseen the treatment and assessment of approximately fifty inmates
who have requested gender dysphoria evaluations, through his role as chair
of the Management and Treatment Committee and as the Chief
Psychologist. Campbell Decl., Dkt. 101-4, ¶¶ 13-14.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 15
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 16 of 45
c. There is no evidence that Dr. Campbell has ever recommended gender
confirmation surgery for an inmate.
IV.
24.
NCCHC
The NCCHC endorses the WPATH Standards of Care as the accepted standards
for the treatment of transgender prisoners. Exh. 1041 at 2, 4, n.1; Tr. 477:14478:22.
V.
Defendants’ Policies and Practices Regarding Gender Dysphoria
A. Corizon’s Policies and Practices
25.
Corizon is a private corporation that contracts to provide health care to prisons and
jails throughout the country. Corizon providers have never recommended gender
confirmation surgery to a patient at any of the prisons where it provides medical
services. Tr. 489:20-23.
26.
Corizon’s only written policy regarding gender dysphoria treatment does not
include gender confirmation surgery as a form of treatment. Tr. 482:25-483:9;
Exh. 14.
B. IDOC’s Policies and Practices
27.
The IDOC MTC is a multiple-disciplinary team that addresses treatment, planning,
and security issues associated with IDOC inmates who have gender dysphoria. Tr.
322:12-20. The Management and Treatment Committee reviews the treatment of
all inmates with gender dysphoria but does not make medical decisions. Tr. 323:413, 324:9-14.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 16
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 17 of 45
28.
There are currently 30 prisoners with gender dysphoria in IDOC custody. Tr.
322:21-323:3. No individual in IDOC custody has ever been recommended for, or
received, gender confirmation surgery. Tr. 376:23-377:4.
29.
IDOC’s operative gender dysphoria policy when Ms. Edmo was assessed for
surgery defined a “qualified gender identity disorder (GID) evaluator as ‘[a]
Doctor of philosophy (PhD) level practitioner licensed by an appropriate state
licensing authority as a psychologist, or a physician licensed by a state Board of
Medicine, who has demonstrated an indicia of basic competence related to the
diagnosis and treatment of GID and related mental or emotional disorders through
their licensure, training, continuing education, and clinical experience.’” Exh. 8 at
3; Tr. 388:16-389:1.
30.
This policy stated that gender confirmation surgery “will not be considered for
individuals within the Idaho Department of Correction (IDOC), unless determined
medically necessary by the treating physician.” Exh. 8 at 8.
31.
On October 5, 2018, shortly before the hearing in this matter, IDOC implemented
a new gender dysphoria policy that would allow prisoners at Idaho State
Correctional Institute (“ISCI”) diagnosed with gender dysphoria to order and
possess female commissary items and present in a manner consistent with their
gender identity. Tr. 347:18-348:23; Exh. 9.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 17
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 18 of 45
a. The new policy also states that “to avoid a sexually charged atmosphere in
IDOC facilities . . .. [n]o provocative or sexually charged clothing or
behavior will be permitted.” Exh. 9 at 6.
b. IDOC’s new gender dysphoria policy continues to state that gender
confirmation surgery “will not be considered for individuals within the
Idaho Department of Correction (IDOC), unless determined medically
necessary by the treating physician.” Exh. 9 at 8-9.
c. The policy further states that prisoners will be housed “based upon the
inmate’s primary physical sexual characteristics.” Exh. 9 at 4.
V.
32.
Adree Edmo’s Gender Dysphoria
Adree Edmo is a male-to-female transgender prisoner in the custody of IDOC. Ms.
Edmo has been incarcerated at ISCI since April 2012. Tr. 192:19-20; see also
Edmo Decl. ¶ 12. She is 30 years of age. Tr. 192:17-18.
33. From the age of 5 or 6, Ms. Edmo has viewed herself as female. In her words,
“my brain typically operates female, even though my body hasn't corresponded
with my brain.” Tr. 193:7-8.
34. While others viewed her as being gay, that is not how she perceived herself. Tr.
193:18-23. While, she struggled with her gender identity as a child and teenager,
she began living as a woman at age 20 or 21. Tr. 211:1-11. She views herself as a
woman with a heterosexual attraction to men. Tr. 193:15-17.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 18
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 19 of 45
35.
Prior to being incarcerated, and learning about gender identity and transgender,
Ms. Edmo struggled with her own identity and sexual orientation. On two
occasions in 2010 and 2011, she attempted suicide. Tr. 206:12-15.
36.
In June 2012, soon after being incarcerated, Ms. Edmo was diagnosed with gender
identity disorder by Corizon psychiatrist Dr. Eliason. Exh. 1 at 321. In July 2012,
Corizon psychologist Claudia Lake confirmed Ms. Edmo’s diagnosis of gender
identity disorder. Exh. 1 at 323-27. There is no dispute that Ms. Edmo suffers from
gender dysphoria. Tr. 69:20-70:3, 251:23-252:3, 518:16-18, 635:1-7.
37.
Ms. Edmo legally changed her name to Adree Edmo in September 2013. Tr.
192:6-9. Ms. Edmo has also changed her sex to “female” on her birth certificate to
further affirm her gender identity. Tr. 203:13-22; Exh. 1002.
38.
Ms. Edmo has consistently presented as feminine throughout her incarceration by
wearing her hair in traditionally feminine hairstyles when able to do so, wearing
makeup when able to do so, and acting in a feminine demeanor. Tr. 194:24-195:5,
411:1-7, 463:11-464:21. Ms. Edmo’s feminine presentation has been documented
by Defendants’ medical providers since 2012. See, e.g., Exh. 1 at 321, 347, 425,
452, 538. Ms. Edmo has also held two jobs while in prison and has presented as
feminine at her places of employment. Tr. 201:24-202:10.
39.
Ms. Edmo has continually sought to present herself as feminine despite receiving
multiple disciplinary offense reports related to wearing makeup, styling her hair in
a feminine manner, and altering her male-issued undergarments into female
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 19
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 20 of 45
panties. Tr. 195:11-20; Exh. 5 at 8, 9, 21-22, 25, 27-28, 33-34, 41-43, 48-57, 6265; Yordy Dep. 47:4-49:15, 85:22-87:11; Edmo Decl. ¶ 19.
40.
Ms. Edmo testified that hormone therapy helped treat her gender dysphoria to
some extent. Tr. 223:9-14. The hormones “cleared her mind,” and resulted in
breast growth, body fat redistribution, and changes in her skin consistency. Tr.
196:15-25. As a result of hormone therapy, Ms. Edmo is hormonally confirmed,
which means she has the same circulating sex hormones and secondary sex
characteristics as a typical adult female. Tr. 72:14-21; Ettner Decl. ¶ 59.
41.
Ms. Edmo has achieved the maximum physical changes associated with hormone
treatment. Tr. 602:1-603:4. However, Ms. Edmo continues to experience distress
related to gender incongruence, which is mostly focused on her male genitalia. She
testified she feels “depressed, embarrassed, and disgusted” by her male genitalia
and that this is an “everyday reoccurring thought.” Tr. 197:7-24.
42.
Ms. Edmo first attempted self-castration to remove her testicles in September 2015
using a disposable razor blade. She wrote a note to let the officers know she was
not trying to commit suicide and was only trying to help herself. She attempted to
cut her testicle sac open but was unsuccessful. Edmo Decl. ¶ 31; Tr. 197:25-198:8.
43.
In January 2016, Ms. Edmo reported to Dr. Eliason that she was having difficulty
sleeping due to thoughts of self-castration. In response, Dr. Eliason prescribed Ms.
Edmo sleeping medication. Tr. 458:5-10, 461:18-24.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 20
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 21 of 45
44.
Ms. Edmo also reported her frequent thoughts of self-castration to her assigned
clinician, Krina Stewart, in November 2016. Ms. Stewart testified that none of the
interventions she identified for Ms. Edmo at that visit would alleviate her gender
dysphoria or desire to self-castrate. Stewart Dep. 58:15-59:16; Exh. 1 at 584-85.
45.
Ms. Edmo attempted self-castration a second time in December 2016. She
prepared for weeks by studying the anatomy of the scrotum and took steps to
diminish the chance of infection by boiling the razor blade and scrubbing her
hands with soap. Ms. Edmo made more surgical headway on this attempt and was
able to cut open the testicle sac and remove the testicle. Gorton Decl. ¶ 74.
Because there was too much blood, Ms. Edmo abandoned her attempt and sought
medical assistance. Tr. 198:9-16. She was transported to a hospital where her
testicle was repaired. Tr. 198:25-199:13.
46.
Ms. Edmo was receiving hormone therapy both times she attempted to selfcastrate. Tr. 228:20-25.
47.
After the procedure, Ms. Edmo felt disappointed in herself because she felt she
had come so close to removing her testicle but had not succeeded. Tr. 199:17-23.
Ms. Edmo continues to actively experience thoughts of self-castration. Tr.
197: 21-24. In an effort to avoid acting on them, when she has experienced
extreme episodes of gender dysphoria in the past year, Ms. Edmo “selfmedicat[es]” by using a razor to cut her arm. The physical pain she feels from
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 21
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 22 of 45
cutting helps her release the emotional torment and mental anguish she feels at the
time. Tr. 199:24-200:15.
48.
Ms. Edmo will likely be released from prison sometime in 2021. Tr. 201:14-15,
230:3-10.
VI.
49.
Defendants’ Treatment of Ms. Edmo for Gender Dysphoria
On April 20, 2016, Dr. Eliason evaluated Ms. Edmo for sex reassignment surgery.
Jt. Exh. 1 at 538. Dr. Eliason noted that Ms. Edmo reported she was “doing
alright,” that she was eligible for parole, but it had not been granted because of
multiple Disciplinary Offense Reports (“DORs”). Jt. Exh. 1 at 538. The DORS
were related to her use of makeup and feminine appearance. Jt. Exh. 1 at 538.
50.
Dr. Eliason noted that Ms. Edmo had been on hormone replacement for the last
year and a half, but that she felt she needed more. Jt. Exh. 1 at 538. Dr. Eliason
specifically noted that Ms. Edmo stated an improvement in gender dysphoria on
hormone replacement but had ongoing frustrations stemming from her current
anatomy. Jt. Exh. 1 at 538. He also recognized Ms. Edmo’s multiple attempts to
“mutilate her genitalia” because of the severity of her distress. Jt. Exh. 1 at 538.
He also noted that he spoke to prison staff about Ms. Edmo’s behavior, “which is
notable for animated affect and no observed distress.” Jt. Exh. 1 at 538. Dr.
Eliason then stated that he also personally observed Ms. Edmo in these settings
and did not observe significant dysphoria. Jt. Exh. 1 at 538.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 22
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 23 of 45
51.
Nevertheless, Dr. Eliason noted that Ms. Edmo appeared feminine in demeanor
and interaction style. Jt. Exh. 1 at 538. He concluded that Ms. Edmo had Gender
Dysphoria, Alcohol Use disorder, and Depression, Jt. Exh. 1 at 538, but his
ultimate conclusion was that Ms. Edmo “[d]oes not meet criteria for medical
necessity for sex reassignment surgery.” Jt. Exh. 1 at 538.
52.
In assessing Ms. Edmo’s need for gender confirmation surgery, Dr. Eliason
indicated that he staffed her case with Dr. Jeremy Stoddart, Dr. Murray Young,
and Jeremy Clark LCPC (clinical supervisor and WPATH member). Each of these
individuals agreed with his assessment. Jt. Exh. 1 at 538.
53.
Dr. Eliason indicated he would continue to monitor and assess Ms. Edmo for the
medical necessity of gender confirmation surgery. Jt. Exh. 1 at 538. He further
determined that the combination of hormonal treatment and supportive counseling
is sufficient for Ms. Edmo’s gender dysphoria for the time being.
54.
To justify his conclusion, Dr. Eliason noted that while medical necessity for
gender confirmation surgery is not very well defined and is constantly shifting, the
following situations could constitute medical necessity for the surgery:
a. Congenital malformations or ambiguous genitalia;
b. Severe and devastating dysphoria that is primarily due to genitals; and
c. Some type of medical problem in which endogenous sexual hormones were
causing severe physiological damage. Jt. Exh. 1 at 538.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 23
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 24 of 45
55.
He also explained that there may also be other situations where gender
confirmation surgery is medically necessary as more information becomes
available. Jt. Exh. 1 at 538.
56.
Although not noted in his April 20, 2016 progress notes, Dr. Eliason testified that
Ms. Edmo’s mental health concerns were not “fully in adequate control.” Tr.
430:22-431:2. He testified that not all of Ms. Edmo’s mental health issues, such as
her major depression and alcohol use disorders, stemmed from her gender
dysphoria. His testimony, however, is contradicted by his April 20, 2016 clinician
notes. Tr. 451:1-12.
57.
Ms. Edmo has received mental health treatment from a psychiatrist and mental
health nurse practitioner since she began her incarceration in 2012. Tr. 225:8227:2. However, she has not consistently attended therapy to help her work
through serious underlying mental health issues and a pre-incarceration history of
trauma, abuse, and suicide attempts. Tr. 134:8-25, 135:1-23, 218:21-25, 219:1-14,
220:17-20; 221:16-19; Campbell Decl. Dkt., 101-4, ¶¶24, 29; Stewart Decl., Dkt.
101-1, ¶12; Watson Decl., Dkt. 101-3, ¶18; Clark Decl., Dkt. 101-7, ¶14).
58.
Dr. Eliason testified that there were two primary reasons why sex reassignment
surgery was not medically necessary at the time:
a. Ms. Edmo had not satisfied the 12-month period of living in her identified
gender role under WPATH standards. Tr. 430: 25-431:2; and
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 24
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 25 of 45
b. “[I]t was not doing Ms. Edmo any service to rush through getting gender
reassignment surgery in that current social situation.” Tr. 431:3-6.
59.
Dr. Eliason’s evaluation was the only time IDOC and Corizon evaluated Ms.
Edmo for gender confirmation surgery prior to this lawsuit. Exh. 1 at 538; Tr.
419:1-10.
60.
In concluding that surgery was not medically necessary for Ms. Edmo, Dr. Eliason
did not review her prior criminal record, disciplinary history, or her presentence
investigation reports. Tr. 468:4-18. The only information Dr. Eliason relied upon
was Ms. Edmo’s medical record, staff observations, and her therapist’s notes. Tr.
469:16-25. Dr. Eliason testified that when he assessed her for surgery, he was
aware of Ms. Edmo’s prior self-surgery attempt. He believed Ms. Edmo’s gender
dysphoria had risen to another level, but he made no change to her treatment plan.
Tr. 471:7-22.
VII.
61.
Ms. Edmo’s Medical Necessity for Gender Confirmation Surgery
Plaintiff’s and Defendants’ experts disagree on whether Ms. Edmo meets all the
WPATH standards criteria for gender confirmation surgery. Specifically,
Defendants’ experts believe that Ms. Edmo does not meet the fourth and sixth
criteria – that any significant mental health concerns be well controlled and that
she live twelve months in a fully gender-congruent role. Tr. 75:9-78:3; 252:13254:11; 607:2-10, 639:14-640:25.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 25
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 26 of 45
62.
Notably, however, Dr. Eliason did not rely upon any finding that Ms. Edmo did
not meet the WPATH criteria in concluding in his April 2016 assessment that she
did not meet the criteria for gender confirmation surgery. Tr. 462:3-463:10.
63.
With regard to the fourth criterion, Ms. Edmo has been diagnosed with Major
Depressive Disorder, Alcohol Use Disorder, and Gender Dysphoria. See, e.g., Exh.
1 at 538. These diagnoses were generally confirmed by each of the experts, with
observation that any substance use disorder has been in remission while Ms. Edmo
has been incarcerated. Tr. 67:16-18, 253:3-9, 518:16-219:6, 603:22-604:5.
a. Plaintiff’s experts testified that Ms. Edmo’s depression and anxiety are as
controlled as they can be and do not impair her ability to undergo surgery.
Tr. 76:13-25, 123:14-124:11, 253:3-9; Exh. 15 at 30. In their view, the
clinical significance of Ms. Edmo’s self-surgery attempts and recent cutting
of her arm is that she has severe genital-focused gender dysphoria and is
not getting medically necessary treatment to alleviate it. Tr. 254:15-19,
98:11-22. Ms. Edmo’s self-surgery attempts are not acts of mutilation or
self-harm, but are instead attempts to remove her target organ that produces
testosterone, which is the cure for gender dysphoria. Tr. 80:3-13. Ms.
Edmo’s gender dysphoria, not her depression and anxiety, is the driving
force behind her self-surgery attempts. Tr. 254:20-255:8.
b. Thus, Ms. Edmo’s self-surgery attempts and cutting do not indicate she has
mental health concerns that are not well controlled. Tr. 98:11-22. Rather,
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 26
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 27 of 45
Ms. Edmo’s recent cutting is attention-reduction behavior that she uses to
prevent herself from cutting her genitals. Tr. 98:16-22. Her self-surgery
attempts indicate a need for treatment for gender dysphoria. Tr. 98:11-15.
c. In the more than six years she has spent in IDOC custody, no Corizon or
IDOC provider has ever diagnosed Ms. Edmo with borderline personality
disorder. Tr. 361:18-362:3, 470:4-6. Defense expert Dr. Andrade is the first
person to ever diagnose Ms. Edmo with borderline personality disorder, and
he was unable to identify his criteria for this diagnosis of Ms. Edmo during
his testimony. Tr. 652:21-24, 638:16-22. None of the other experts,
including Defense expert Dr. Garvey, diagnosed Ms. Edmo with borderline
personality disorder. Tr. 131:24-132:3, 139:19-24.
d. One of the primary concerns underlying the fourth criterion is that the
individual be able to properly participate in postsurgical care. Ms. Edmo
has demonstrated the capacity to follow through with the postsurgical care
she would require. Tr. 99:3-8, 169:23-170:25.
e. Although it is troubling that Ms. Edmo has declined to fully participate in
the mental health treatment and counseling sessions recommended by Dr.
Eliason and others, Dr. Ettner made clear that, “Psychotherapy is neither a
precondition for treatment or a condition -- a precondition for surgery.” Tr.
98:23-99:2.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 27
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 28 of 45
f. Dr. Ettner concludes that Ms. Edmo meets the fourth criterion, since she
has no unresolved mental health issues that would prevent her from
receiving gender confirmation surgery. Tr. 98:3-10.
64.
With respect to the sixth criterion, both Plaintiff’s experts testified that Ms. Edmo
meets and exceeds the condition of social role transition by living as a woman to
the best of her ability in a male prison.
a. For the six-plus years she has lived in prison, Ms. Edmo has consistently
sought to present as feminine, despite living in an environment hostile to
her efforts, and despite the disciplinary consequences she faces. Tr. 77:978:3, 254:4-11.
65.
Dr. Ettner testified that gender confirmation surgery would eliminate Ms. Edmo’s
gender dysphoria and significantly attenuate much of the attendant depression and
symptoms she is experiencing. Tr. 104:24-105:9. She testified that gender
confirmation surgery is the cure for gender dysphoria and will therefore result in
therapeutic and beneficial effects for Ms. Edmo. Tr. 81:13-19.
66.
Dr. Gorton testified that it is highly unlikely that Ms. Edmo’s severe gender
dysphoria will improve without gender confirmation surgery. Tr. 267:19-22.
67.
The risks of not providing gender confirmation surgery to Ms. Edmo include
surgical self-treatment, emotional decompensation, and risk of suicide given her
high degree of suicide ideation. Tr. 80:24:81:8, 264:13-22. If she is not provided
with surgery, Ms. Edmo has indicated that she will try self-surgery again to deal
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 28
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 29 of 45
with her extreme episodes of gender dysphoria. Tr. 199:24-200:5. Given that Ms.
Edmo made increasing progress on her first two self-surgery attempts, it is likely
that Ms. Edmo will be successful if she attempts self-surgery again. Tr. 264:13-22.
68.
Scientific studies indicate that the regret rate for individuals who have had gender
confirmation surgery is very low and generally in the range of one percent of
patients. Tr. 103:25-12, 165:16-166:4. Ms. Edmo does not have any of the risk
factors that make her likely to regret undergoing gender confirmation surgery. Tr.
266:1-267:1.
CONCLUSIONS OF LAW
I.
1.
Injunction Standard
Ms. Edmo asks for a preliminary injunction. A preliminary injunction is only
awarded upon a clear showing that the plaintiff is entitled to the requested relief.
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008).
2.
To make this showing, the plaintiff must establish: (1) a likelihood of success on
the merits; (2) a likelihood of irreparable harm to the moving party in the absence
of preliminary relief; (3) that the balance of equities tips in favor of the moving
party; and (4) that an injunction is in the public interest. Id.
3.
The requirements are stated in the conjunctive so that all four elements must be
established to justify injunctive relief. The court may apply a sliding scale test,
under which “the elements of the preliminary injunction test are balanced, so that a
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 29
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 30 of 45
stronger showing of one element may offset a weaker showing of another.”
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
4.
A more stringent standard is applied where mandatory, as opposed to prohibitory,
injunctive relief is sought. Prohibitory injunctions restrain a party from taking
action and effectively “freeze[ ] the positions of the parties until the court can hear
the case on the merits.” Heckler v. Lopez, 463 U.S. 1328, 1333 (1983). Mandatory
injunctions go well beyond preserving the status quo, as they order a party to take
some action. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,
571 F.3d 873, 879 (9th Cir. 2009).
5.
Although the same general principles inform the court’s analysis in deciding
whether to issue mandatory or prohibitory relief, courts should be “extremely
cautious” about ordering mandatory relief. Martin v. Intl Olympic Comm., 740
F.2d 670, 675 (9th Cir. 1984). Mandatory preliminary relief should not issue
unless both the facts and the law clearly favor the moving party and extreme or
very serious damage will result. See Marlyn Nutraceuticals, 571 F.3d at 879.
Mandatory injunctions are not issued in doubtful cases, or where the party seeking
an injunction could be made whole by an award of damages. Id.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 30
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 31 of 45
6.
The Court agrees with defendants that Edmo seeks mandatory relief. Thus, the
Court will apply the more stringent standard. 1
7.
The Prison Litigation Reform Act (“PLRA”) requires any preliminary injunction
to be “narrowly drawn, extend no further than necessary to correct the harm the
court finds requires preliminary relief, and be the least intrusive means necessary
to correct the harm. The court shall give substantial weight to any adverse impact
on public safety or the operation of a criminal justice system.” 18 U.S.C. §
3626(a)(2).
II.
Eighth Amendment Claim
A. Likelihood of Success on the Merits
8.
The Eighth Amendment to the United States Constitution protects prisoners
against cruel and unusual punishment. To state a claim under the Eighth
In discussions with counsel before the evidentiary hearing, the Court expressed
the concern that the nature of the relief requested in this case, coupled with the extensive
evidence presented by the parties over a 3-day evidentiary hearing, effectively converted
these proceedings into a final trial on the merits of the plaintiff’s request for permanent
injunctive relief. Neither party addressed the Court’s concern, and both parties appear to
have treated the evidentiary hearing as a final trial of Ms. Edmo’s claims.
In an abundance of caution, the Court has considered the standard for the issuance
of a permanent injunction, which would have required the plaintiff to show (1) she has
suffered an irreparable injury, (2) monetary damages would not compensate her for that
injury, (3) after balancing the hardships between the parties, a remedy of equity is
warranted, and (4) the public interest would not be disserved by a permanent injunction.
See, eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). That standard appears
to be no more rigorous than that applicable to a claim for preliminary mandatory relief.
The Court concludes that under either standard Ms. Edmo is entitled to relief.
1
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 31
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 32 of 45
Amendment, Ms. Edmo must show that she is “incarcerated under conditions
posing a substantial risk of serious harm,” or that she has been deprived of “the
minimal civilized measure of life’s necessities” as a result of Defendants’ actions.
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted).
9.
An Eighth Amendment claim requires a plaintiff to satisfy “both an objective
standard – that the deprivation was serious enough to constitute cruel and unusual
punishment – and a subjective standard – deliberate indifference.” Snow v.
McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).
10.
The Eighth Amendment includes the right to adequate medical care in prison, and
prison officials or prison medical providers can be held liable if their “acts or
omissions [were] sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
11.
Regarding the objective standard for prisoners’ medical care claims, the Supreme
Court of the United States has explained that “[b]ecause society does not expect
that prisoners will have unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if those needs are
‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Estelle v.
Gamble, 429 U.S., 97, 103 (1976)).
12.
The Ninth Circuit has defined a “serious medical need” in the following ways:
failure to treat a prisoner’s condition [that] could result in further significant injury
or the unnecessary and wanton infliction of pain [;] ... [t]he existence of an injury
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 32
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 33 of 45
that a reasonable doctor or patient would find important and worthy of comment
or treatment; the presence of a medical condition that significantly affects an
individual’s daily activities; or the existence of chronic and substantial pain . . . .”
McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992) (internal citations
omitted), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133
(9th Cir. 1997) (en banc).
13.
As to the subjective standard, a prison official or prison medical provider acts with
“deliberate indifference . . . only if the [prison official] knows of and disregards an
excessive risk to inmate health and safety.” Gibson v. Cnty. of Washoe, Nev., 290
F.3d 1175, 1187 (9th Cir. 2002) (citation and internal quotation marks omitted).
“Under this standard, the prison official must not only ‘be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists,’
but that person ‘must also draw the inference.’” Toguchi v. Chung, 391 F.3d 1051,
1057 (9th Cir. 2004) (quoting Farmer, 511 U.S. at 837).
14.
“If a [prison official] should have been aware of the risk, but was not, then the
[official] has not violated the Eighth Amendment, no matter how severe the risk.”
Gibson, 290 F.3d at 1188 (citation omitted). However, “whether a prison official
had the requisite knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from circumstantial
evidence, . . . and a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 33
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 34 of 45
842; see also Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003)
(deliberate indifference to medical needs may be shown by circumstantial
evidence when the facts are sufficient to demonstrate that defendant actually knew
of a risk of harm).
15.
In the medical context, a conclusion that a defendant acted with deliberate
indifference requires that the plaintiff show both “a purposeful act or failure to
respond to a prisoner’s pain or possible medical need and . . . harm caused by the
indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
16.
Deliberate indifference can be “manifested by prison doctors in their response to
the prisoner’s needs or by prison guards in intentionally denying or delaying
access to medical care or intentionally interfering with the treatment once
prescribed.” Estelle, 429 U.S. at 104–05 (footnotes omitted).
17.
Non-medical prison personnel are generally entitled to rely on the opinions of
medical professionals with respect to the medical treatment of an inmate.
However, if “a reasonable person would likely determine [the medical treatment]
to be inferior,” the fact that an official is not medically trained will not shield that
official from liability for deliberate indifference. Snow, 681 F.3d at 986; see also
McGee v. Adams, 721 F.3d 474, 483 (7th Cir. 2013) (stating that non-medical
personnel may rely on medical opinions of health care professionals unless “they
have a reason to believe (or actual knowledge) that prison doctors or their
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 34
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 35 of 45
assistants are mistreating (or not treating) a prisoner”) (internal quotation marks
omitted).
18.
Differences in judgment between an inmate and prison medical personnel
regarding appropriate medical diagnosis and treatment are not enough to establish
a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989).
“[T]o prevail on a claim involving choices between alternative courses of
treatment, a prisoner must show that the chosen course of treatment ‘was
medically unacceptable under the circumstances,’ and was chosen ‘in conscious
disregard of an excessive risk’ to the prisoner's health.” Toguchi, 391 F.3d at 1058,
(alteration omitted) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.
1996)).
19.
Mere indifference, medical malpractice, or negligence will not support a cause of
action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458,
460 (9th Cir.1980) (per curiam). Likewise, a delay in treatment does not
constitute a violation of the Eighth Amendment unless the delay causes further
harm. McGuckin, 974 F.2d at 1060.
1. Serious Medical Need
20.
There is no dispute that Ms. Edmo suffers from gender dysphoria. And there is no
dispute that gender dysphoria is a serious medical condition recognized by the
DSM-5.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 35
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 36 of 45
21.
WPATH Standards of Care are the accepted standards of care for treatment of
transgender patients. These standards have been endorsed by the NCCHC as
applying to incarcerated persons.
22.
There are no other competing, evidence-based standards that are accepted by any
nationally or internationally recognized medical professional groups.
23.
The Court finds credible the testimony of Plaintiff’s experts Drs. Ettner and
Gorton, who have extensive personal experience treating individuals with gender
dysphoria both before and after receiving gender confirmation surgery. Plaintiff’s
experts found that Ms. Edmo satisfied all six WPATH medical necessity criteria
for surgery.
24.
Defendants’ experts, by contrast, have opined that surgery is not medically
necessary for Ms. Edmo. However, neither Dr. Garvey nor Dr. Andrade has any
direct experience with patients receiving gender confirmation surgery or assessing
patients for the medical necessity of gender confirmation surgery. Defendants’
experts also have very little experience treating patients with gender dysphoria
other than assessing them for the existence of the condition.
25.
Defendants’ experts appear to misrepresent the WPATH Standards of Care by
concluding that Ms. Edmo, despite presenting as female since her incarceration in
2012, cannot satisfy the WPATH criteria because she has not presented as female
outside of the prison setting. But there is no requirement in the WPATH Standards
of Care that a “patient live for twelve months in his or her gender role outside of
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 36
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 37 of 45
prison before becoming eligible for SRS.” Norsworthy v. Beard, 87 F. Supp. 3d
1164 (N.D. Cal. 2015),
26.
Indeed, Plaintiff’s experts opine that Ms. Edmo exceeds this criterion because she
has not only presented as female for far longer than twelve months, but has done
so in an environment arguably more hostile to these efforts than the non-custodial
community, and despite the disciplinary consequences of doing so. The WPATH
Standards of Care explicitly provide that they apply “in their entirety . . . to all
transsexual, transgender, and gender-nonconforming people, irrespective of their
housing situation,” and “including institutional environments such as prisons.”
Exh. 15 at 73. The Standards of Care make clear that “[d]enial of needed changes
in gender role or access to treatments, including sex reassignment surgery, on the
basis of residence in an institution are not reasonable accommodations.” Exh. 15 at
74.
27.
Defendants’ evidence to the contrary is unconvincing and suggests a decided bias
against approving gender confirmation surgery.
28.
In 2016, Dr. Eliason contacted Dr. Steven Levine to lead a training for IDOC and
Corizon providers on medical necessity for gender confirmation surgery. Tr.
433:23-434:24. Dr. Levine’s training presentation was titled “Medical Necessity
of Transgender Inmates: In Search of Clarity When Paradox, Complexity, and
Uncertainty Abound.” Exh. 17 at 1. Dr. Levine trained Corizon and IDOC staff
that gender confirmation surgery is “not conceived as lifesaving as is repairing a
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 37
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 38 of 45
potentially leaking aortic aneurysm but as life enhancing as is providing
augmentation for women distressed about their small breasts.” Exh. 17 at 43; Exh.
16.
29.
Dr. Levine is considered an outlier in the field of gender dysphoria and does not
ascribe to the WPATH Standards of Care. Tr. 176:14-21. His training materials do
not reflect opinions that are generally accepted in the field of gender dysphoria.
Tr. 176:22-179:1.
30.
Dr. Levine’s training includes additional criteria proposed by Cynthia Osborne
and Anne Lawrence that incarcerated individuals must meet in order to receive
gender confirmation surgery. Exh. 17 at 39-41, 51; Exh. 19. These requirements
are not part of the WPATH criteria and are in opposition to the WPATH Standards
of Care. Tr. 101:15-22, 103:14-20. There are no scientific studies that support
these additional requirements, and no professional associations or organizations
have endorsed Osborne and Lawrence’s proposed requirements for prisoners. Tr.
103:4-13. The NCCHC has not adopted Osborne and Lawrence’s additional
requirements. Tr. 480:12-16. Like Dr. Levine, Osborne and Lawrence are
considered outliers in the field of gender dysphoria treatment, are not WPATH
members, and do not ascribe to the WPATH Standards of Care. Tr. 101:2-14.
31.
A decision of the U.S. District Court in the Northern District of California,
Norsworthy v. Beard, 87 F. Supp. 3d 1164 (N.D. Cal. 2015), is noteworthy here.
Dr. Levine was retained as a defense expert by the California Department of
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 38
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 39 of 45
Corrections and Rehabilitation in a suit filed by a transgender plaintiff in that case.
In ordering the prison to provide the plaintiff gender confirmation surgery, the
Norsworthy court afforded Dr. Levine’s opinions “very little weight,” stating: “To
the extent that Levine’s apparent opinion that no inmate should ever receive SRS
predetermined his conclusion with respect to Norsworthy, his conclusions are
unhelpful in assessing whether she has established a serious medical need for
SRS.” Norsworthy, 87 F. Supp. 3d at 1188. The court also determined that Dr.
Levine’s opinion was not credible because of illogical inferences, inconsistencies,
and inaccuracies,” including misrepresentations of the WPATH Standards of Care,
overwhelming “generalizations about gender dysphoric prisoners” and Dr.
Levine’s fabrication of a prisoner anecdote. Id.
32.
Under these circumstances, the Court gives virtually no weight to the opinions of
Defendants’ experts that Ms. Edmo does not meet the fourth and sixth WPATH
criteria for gender confirmation surgery.
2. Deliberate Indifference
33.
Defendants misapplied the recognized standards of care for treating Ms. Edmo’s
gender dysphoria.
34.
Defendants insufficiently trained their staff with materials that discourage referrals
for surgery and represent the opinions of a single person who rejects the WPATH
Standards of Care.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 39
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 40 of 45
35.
Defendants’ sole evaluation of Ms. Edmo for surgery prior to this lawsuit failed to
accurately apply the WPATH Standards of Care. Specifically, Dr. Eliason’s
assessment that Ms. Edmo did not meet medical necessity for surgery did not
apply the WPATH criteria.
36.
Defendants have been deliberately indifferent to Ms. Edmo’s medical needs by
failing to provide her with available treatment that is generally accepted in the
field as safe and effective, despite her actual harm and ongoing risk of future harm
including self-castration attempts, cutting, and suicidal ideation.
37.
Evidence also suggests that Ms. Edmo has not been provided gender confirmation
surgery because Corizon and IDOC have a de facto policy or practice of refusing
this treatment for gender dysphoria to prisoners.
38.
In Norsworthy, the court found that the prison had a blanket policy barring surgery
in light of evidence that the prison’s “guidelines for treating transgender inmates,
which do not mention SRS as a treatment option, and the 2012 training provided
to CDCR staff by Levine, which indicated that SRS should never be provided to
incarcerated patients.” Norsworthy, 87 F. Supp. 3d at 1191.
39.
Here, the only guidelines Corizon issued to assist its providers in treating gender
dysphoria likewise do not include surgery as a treatment option. Moreover, Dr.
Levine’s training provided to Corizon and IDOC staff, and incorporated into
further Corizon and IDOC training, discourages providing surgery to incarcerated
persons with gender dysphoria.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 40
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 41 of 45
40.
Significantly, no Corizon or IDOC provider has ever recommended that gender
confirmation surgery is medically necessary for a patient in IDOC custody. In fact,
Corizon has never provided this surgery at any of its facilities in the United States.
41.
As was the case in Norsworthy, “[t]he weight of the evidence demonstrates that for
[Ms. Edmo], the only adequate medical treatment for her gender dysphoria is
[gender confirmation surgery], that the decision not to address her persistent
symptoms was medically unacceptable under the circumstances, and that
[Defendants] denied her the necessary treatment for reasons unrelated to her
medical need.” Norsworthy, 87 F. Supp. 3d at 1192.
42.
Accordingly, Ms. Edmo is likely to succeed on the merits of her Eighth
Amendment claim.
B. Likelihood of Irreparable Harm
43.
The Ninth Circuit has repeatedly held that serious psychological harm, in addition
to physical harm and suffering, constitutes irreparable injury. See, e.g., Chalk v.
U.S. Dist. Ct. Cent. Dist. of California, 840 F. 2d 701, 709 (9th Cir. 1988)
(plaintiff’s “emotional stress, depression and reduced sense of well-being”
constituted irreparable harm); Thomas v. Cnty. of Los Angeles, 978 F. 2d 504, 512
(9th Cir. 1992) (“Plaintiffs have also established irreparable harm, based on this
Court’s finding that the deputies’ actions have resulted in irreparable physical and
emotional injuries to plaintiffs and the violation of plaintiffs’ civil rights.”).
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 41
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 42 of 45
44.
Ms. Edmo’s gender dysphoria results in clinically significant distress or
impairment of functioning.
45.
Both Plaintiff’s and Defendants’ experts agree that Ms. Edmo is properly
diagnosed with gender dysphoria and continues to experience serious distress from
this condition.
46.
Ms. Edmo has received hormone treatment and achieved the maximum feminizing
effects years ago.
47.
Other district courts have recognized that the significant emotional pain, suffering,
anxiety, and depression caused by prison officials’ failure to provide adequate
treatment for gender dysphoria constitute irreparable harm warranting a
preliminary injunction. See, e.g., Hicklin v. Precynthe, 2018 WL 806764, at *9
(E.D. Missouri 2018); Norsworthy, 87 F. Supp. 3d at 1192.
48.
Ms. Edmo has twice attempted self-castration resulting in significant pain and
suffering.
49.
The Court is persuaded by Plaintiff’s experts that, without surgery, Ms. Edmo is at
serious risk of life-threatening self-harm.
50.
Thus, Ms. Edmo has satisfied the irreparable harm prong by showing that she will
suffer serious psychological harm and will be at high risk of self-castration and
suicide in the absence of gender confirmation surgery.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 42
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 43 of 45
C. Balance of Equities
51.
“Courts ‘must balance the competing claims of injury and must consider the effect
on each party of the granting or withholding of the requested relief.’” Winter, 555
U.S. at 24 (quoting Amoco Production Co., 480 U.S. 531, 542 (1987)).
52.
The balance of equities tips in a plaintiff’s favor where the plaintiff has established
irreparable harm in the form of unnecessary physical and emotional suffering and
denial of her constitutional rights. See, e. g., Hicklin, 2018 WL 806764, at *13;
Norsworthy, 87 F. Supp. 3d at 1193.
53.
Ms. Edmo has established that Defendants’ refusal to provide her with gender
confirmation surgery causes her ongoing irreparable harm.
54.
Defendants have made no showing that an order requiring them to provide
treatment that accords with the recognized WPATH Standard of Care causes them
injury.
D. The Public Interest
55.
The Court finds that a mandatory preliminary injunction is in the public interest.
“[I]t is always in the public interest to prevent the violation of a party’s
constitutional rights.” See Melendres v. Arpaio, 695 F. 3d 990, 1002 (9th Cir.
2012).
56.
“In addition, ‘the public has a strong interest in the provision of constitutionally
adequate health care to prisoners.’” McNearney v. Wash. Dep’t of Corr., 2012 WL
3545267, at *16 (W.D. Wash. 2012).
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 43
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 44 of 45
57.
Accordingly, a mandatory preliminary injunction should issue because both the
facts and the law clearly favor Ms. Edmo and extreme or very serious damage will
result if it is not issued. See Marlyn Nutraceuticals, 571 F.3d at 879.
III.
58.
FOURTEENTH AMENDMENT AND ACA CLAIMS
Plaintiff has not met her burden for a preliminary injunction on her Fourteenth
Amendment and Affordable Care Act claims at this time.
59.
As explained above, to make this showing for preliminary injunction, the plaintiff
must establish: (1) a likelihood of success on the merits; (2) a likelihood of
irreparable harm to the moving party in the absence of preliminary relief; (3) that
the balance of equities tips in favor of the moving party; and (4) that an injunction
is in the public interest. Winter, 555 U.S. at 22.
60.
While Ms. Edmo may ultimately prevail on her Fourteenth Amendment and
Affordable Care Act claims, she is unable to show that she is entitled to injunctive
relief at this time. Given the Court’s ruling on her Eighth Amendment claim, there
is no likelihood of irreparable harm to Ms. Edmo in the absence of injunctive
relief on these two claims.
61.
Moreover, the balance of equities tips in favor of Defendants because a more
developed record on Defendants’ treatment of transgender inmates is necessary
before making a broader ruling based upon the Fourteenth Amendment or the
Affordable Care Act.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 44
Case 1:17-cv-00151-BLW Document 149 Filed 12/13/18 Page 45 of 45
62.
Likewise, a more developed record is necessary to assess the public’s interest in
granting such injunctive relief. Id.
ORDER
IT IS ORDERED:
1.
Plaintiff’s Motion for Preliminary Injunction (Dkt. 62) is GRANTED IN
PART. Defendants are ordered to provide Plaintiff with adequate medical care, including
gender confirmation surgery. Defendants shall take all actions reasonably necessary to
provide Ms. Edmo gender confirmation surgery as promptly as possible and no later than
six months from the date of this order. However, given IDOC’s implementation of an
updated gender dysphoria policy on October 5, 2018 that appears to provide Plaintiff’s
requested injunctive relief related to accessing gender-appropriate underwear, clothing,
and commissary items, the Court will not address that relief at this time. This is without
prejudice to the plaintiff’s right to raise the issue in the future, should IDOC revoke the
new policy or if the implementation of the policy results in ongoing violations.
2.
The Court’s Deputy, Jamie Bracke, is directed to set a telephonic status
conference in this case no later than two weeks after this decision issues.
DATED: December 13, 2018
_________________________
B. Lynn Winmill
Chief U.S. District Court Judge
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - 45
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?