CIVIL RIGHTS
Two Wins for Gender Confi rmation Surgery Access
Court strikes down Wisconsin Medicaid ban; Ninth Circuit nixes Idaho prison’s denial
ARTHUR S. LEONARD
Two recent federal court rulings mark
important advances for access to
gender confi rmation surgery by
transgender people — both under
Medicaid regulations and in prison settings.
A year after a federal district court granted a
preliminary injunction to transgender plaintiffs
challenging the Wisconsin Medicaid statute’s
ban on coverage of gender transition expenses,
the judge permanently enjoined the state from
enforcing that exclusion. Judge William M. Conley’s
August 16 fi nal ruling on the merits in the
case relied on the Affordable Care Act and the
federal Medicaid Act as well as the 14th Amendment’s
Equal Protection Clause.
The Chicago-based Seventh Circuit Court of
Appeals, which has jurisdiction over the district
courts of Wisconsin, has previously ruled that
government policies disadvantaging trans people
may violate the Equal Protection Clause, and
it interpreted the sex discrimination provisions
of Title IX of federal education law to extend to
cases of gender identity discrimination. That
holding, however, could be adversely affected by
a Supreme Court ruling in the Harris Funeral
Homes Title VII employment discrimination
case, which will be argued on October 8.
Conley accepted the plaintiffs’ evidence regarding
the professional consensus over the
medical standards of care in treating gender
dysphoria. Federal courts now nearly unanimously
agree that gender dysphoria can be a
serious condition and that treatments including
hormone therapy and gender confi rmation
surgery may be medically necessary.
Wisconsin’s Medicaid law, as amended in
1996, however, forbids use of state funds for
gender transition, so that hormone therapy is
covered for cisgender Medicaid participants
with a severe defi ciency but not for transgender
individuals and a mastectomy is covered in the
case of a woman with breast cancer but not for
a transgender man for which the procedure is
medically necessary. In adopting this ban more
than two decades ago, the Legislature did not
undertake any serious study of gender transition
expenses or of the accepted standards of
care.
The plaintiffs’ two expert witnesses were
experienced and well-recognized medical specialists
who had treated hundreds of trans individuals.
The state’s response was pathetic,
providing no relevant expertise to contest the
plaintiffs’ medical evidence. In fact, offi cials
from the Wisconsin Medicaid program acknowledged
the effectiveness of current treatment
methods and procedures, and there was little
dispute that the plaintiffs were denied coverage
solely because of the 1996 prohibition.
The state attempted to rely on decisions from
two other circuit courts — the 2014 Bostonbased
First Circuit ruling in Kosilek v. Spencer,
which involved a convicted murderer serving a
life sentence in a Massachusetts prison, and
this year’s New Orleans-based Fifth Circuit decision
in Gibson v. Collier, also involving an inmate,
this one from Texas.
In the Kosilek case, the First Circuit, relying
on the standards of care in place at the time
of the inmate’s original 2006 trial, but since
revised, found that hormone therapy was suffi
cient in her case, but also put emphasis on
testimony from prison offi cials that performing
surgery on her and then transferring an inmate
convicted of killing her wife (while presenting
as a male) to a female prison posed signifi cant
security risks — an issue not relevant to the
question of Medicaid coverage.
Conley was particularly dismissive of the
Gibson case, where the inmate represented herself
and was unable to present current expert
testimony. As a result, the Fifth Circuit looked
to the outdated medical evidence from the Kosilek
case and ruled that gender confi rmation
surgery is never required under Eighth Amendment
considerations.
Conley concluded that the Affordable Care
Act and the requirement that Medicaid cover
medically necessary treatments support the
plaintiffs’ claims.
On the equal protection question, he noted
that both sides agreed that claim was subject
to “some sort of heightened scrutiny,” requiring
the state to prove it has an “exceedingly persuasive”
justifi cation for its coverage exclusion.
The state cited “containing costs and protecting
public health in face of uncertainty,” but Conley
found that the additional cost to the state’s
Medicaid budget amounted to little more than
a rounding error and there was no credible evidence
that covering these procedures would endanger
public health.
Meanwhile, the San Francisco-based
Ninth Circuit Court of Appeals has tackled
the question of prisons denying gender confi
rmation surgery to inmates. In an August
23 ruling, a three-judge circuit panel ruled that
the Idaho Department of Corrections violated
the Eight Amendment rights of a transgender
inmate in denying her access to surgery.
The court opinion’s extensive discussion of
the medical and legal issues implicated could
serve as a textbook for other courts.
The three members of the panel — Circuit
Judges M. Margaret McKeown and Ronald M.
Gould and District Judge Robert S. Lasnik of
the Western District of Washington — were all
appointed by President Bill Clinton, and the
ruling affi rmed a May order by District Judge
B. Lynn Winmill, also a Clinton appointee.
The plaintiff, Adree Edmo, was designated
male at birth but has viewed herself as female
since at least the age of six. At age 21 in
2012, Edmo pled guilty to the sexual abuse of a
15-year-old boy at a house party. It was about
that time that she resolved her internal struggle
about her gender identity and began living
as a woman. Edmo is due to be released from
prison in 2021.
Edmo was fi rst diagnosed with “gender identity
disorder” — now termed “gender dysphoria”
— shortly after entering prison. Though
she has changed her legal name and obtained
a new birth certifi cate designating her as female,
Edmo is housed in a male prison. Consistently
trying to present as female, she has
endured disciplinary measures, even though
the Idaho Department of Corrections does not
dispute that she has gender dysphoria. Edmo’s
condition, not adequately treated, causes her to
feel “depressed,” “disgusting,” “tormented,” and
“hopeless,” and she twice attempted self-castration.
Although hormone therapy has helped Edmo,
it has not completely alleviated her condition,
and much of her distress focuses on her male
genitalia. Expert testimony on her behalf indicated
that removing her male genitalia would
allow her to reduce the level of her hormone
therapy, reducing side effects and promoting
her long-term health.
Judge Winmill concluded that the standards
of care that prison offi cials applied in Edmo’s
case failed to conform to the medical consensus
about appropriate treatment and did not
give adequate weight to her self-castration attempts.
Edmo’s experts convinced Winmill that gender
confi rmation surgery is necessary for her.
The judge ordered the state to provide the surgical
procedure to Edmo, but that injunction was
stayed while the state appealed to the Ninth
Circuit.
The appellate panel rejected all of the state’s
objections to Winmill’s ruling. A prison system
will be found to violate an inmate’s Eighth
Amendment rights if it displays deliberate indifference
to a serious medical condition by failing
to provide necessary treatment. Disagreement
among experts can be a defense for the prison,
but the court here identifi ed the state’s experts
as underqualifi ed and characterized their views
as “outliers” from the professional consensus.
➤ GENDER CONFIRMATION, continued on p.29
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