➤ GENDER CONFIRMATION, from p.28
The state had pointed to the standard treatment
requirement that gender confi rmation
surgery not be performed until an individual
has lived consistently with their gender identity
for at least a year — and argued that experience
should take place in a non-institutional setting.
That approach, of course, would deny surgery
to any inmate fi rst diagnosed with gender dysphoria
after they were incarcerated.
The experts who testifi ed on Edmo’s behalf
persuasively argued that it was possible for a
transgender inmate to fulfi ll the one-year requirement
while in prison — in accordance with
current professional care standards.
This new ruling may set up the issue for Supreme
Court review, because it sharply confl icts
with the Gibson v. Collier decision mentioned
above out of the Fifth Circuit, which ruled earlier
this year that gender confi rmation surgery is
never required under Eighth Amendment standards.
The Gibson ruling, in turn, relied heavily
on the First Circuit ruling in the Kosilek case,
where the court found that hormone therapy
was suffi cient (based on outdated standards
of care) and that transferring the inmate to a
women’s prison posed an unacceptable security
risk.
In Edmo’s case, the Ninth Circuit emphasized
the urgency of providing surgery to her,
clearly signaling it would not be receptive to requests
for delay pending further appeal by the
state. If Idaho cannot obtain an emergency stay,
the surgery will go forward unless the state decides
to do what California did in an earlier
case where the Ninth Circuit refused to stay a
district court’s order pending appeal: accelerate
the inmate’s parole date to avoid having to provide
the surgery! California, however, no longer
has a categorical ban on providing gender confi
rmation surgery to inmates and has provided
the procedure to one inmate, the fi rst known
instance of a state doing so.
Edmo is represented by attorneys from private
law fi rms in California and Idaho as well as
the National Center for Lesbian Rights. A wide
variety of civil rights organizations fi led amicus
briefs. The work product from this very large
team effort can usefully be deployed in future
litigations.
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