Transgender rights are facing a backlash. Scientific knowledge of the impacts of gender dysphoria (GD) has grown immensely, and medical care for transgender people is increasingly accessible. These developments have not been paralleled in the courts. Recently, in Gibson v. Collier, the Fifth Circuit held that a state policy that does not permit gender affirmation surgery (GAS) for transgender people in prison does not violate the Eighth Amendment. Judge Ho’s opinion relied on Kosilek v. Spencer, an en banc First Circuit opinion that held the same. Both Kosilek and Gibson mischaracterized scientific knowledge of the efficacy of GAS as a treatment for GD, leading to an outcome that does not reflect “society’s minimum standards of decency,” as the Eighth Amendment demands.
Vanessa Lynn Gibson, a transgender woman, was diagnosed with GD while in prison and requested GAS. The Texas Department of Criminal Justice (TDCJ) denied her request because its policy did not designate GAS as part of the treatment protocol for GD. Gibson filed a pro se claim asserting that the policy violated the Eighth Amendment because it amounted to “systematic deliberate indifference” to her medical needs by preventing TDCJ from considering whether GAS is medically necessary. The Director of TDCJ moved for summary judgment on qualified immunity and sovereign immunity grounds. Gibson’s pro se response argued GAS was medically necessary by referring to the World Professional Association for Transgender Health Standards of Care (WPATH) for transgender people. The District Court denied the Director’s immunity defenses but granted summary judgment on the merits of Gibson’s Eighth Amendment claim. Gibson appealed pro se, and the Fifth Circuit appointed counsel. On appeal, Gibson asked to reverse solely on the basis of the merits. Judge Ho “might very well have remanded this case for further proceedings” if the procedural concerns were raised. Instead, reviewing the merits of the summary judgment claim, the majority affirmed the lower court’s dismissal.
The court first noted that under the Eighth Amendment, it can be cruel and unusual punishment to deny essential medical care to an inmate. To establish an Eighth Amendment violation, Gibson had to (1) demonstrate a serious medical need, and (2) show the Director acted with deliberate indifference to that medical need. The Director did not dispute that Gibson had a serious medical need, so the opinion turned on deliberate indifference. The court described deliberate indifference as a “demanding standard” that requires “an inmate to show that officials acted with malicious intent.” The court used the evidence presented in Kosilek from the First Circuit to show an ongoing controversy around GAS, framing WPATH as “merely one side in a sharply contested medical debate” and holding that the Director rightfully chose one of two alternatives. The majority concluded with a doctrinal discussion framing the denial of GAS as neither “cruel” nor “unusual.”
The dissent by Judge Barksdale first asserted that the district court did not follow summary judgment procedure, and the majority exacerbated the problem by not remanding. Judge Barksdale noted the proper summary judgment standard would place the burden on the Director to show an absence of a dispute of material fact, and the Director did not show an absence of a dispute over the medical necessity of GAS. After its discussion of the procedural errors, the dissent criticized the majority for “going far outside the totally lacking summary judgment record at hand” and using the Kosilek case from the First Circuit to “reconstruct the summary-judgment record in this case.”
Second, the dissent took apart the majority’s discussion of the merits piece by piece, down to the majority’s footnote citing Frontiero v. Richardson to state that “sex . . . is an immutable characteristic determined solely by . . . birth.” The dissent said Gibson had not conceded that WPATH is not universally accepted, arguing there is no such “universal-acceptance standard” to begin with. Further, on summary judgment, it was the Director’s burden to present evidence that WPATH does not have a universal consensus. Finally, the dissent called for an individual determination of deliberate indifference. A TDCJ medical professional ordered the evaluation of Gibson’s need for GAS, which never took place.
Gibson shows the federal courts have not kept up with the shifts in societal and scientific understanding of the needs of transgender people. Judge Ho misgendered Gibson by referring to her with “he” pronouns, citing Frontiero out of context to support that choice (which the dissent disputed). Though the district court erred procedurally, the opinion used “she” pronouns for Gibson, indicating a respect for her gender identity that was not exhibited by the majority.
Judge Ho showed a similar disrespect for WPATH. The Fourth Circuit has acknowledged WPATH is the “generally accepted protocol[] for treating [GD].” Similarly, the Seventh Circuit affirmed a district court that cited expert testimony calling WPATH “the worldwide acceptable protocol for treating [GD].” The dissent cited Edmo v. Idaho Department of Correction and Norsworthy v. Beard, which both granted preliminary injunctions for transgender inmates to receive GAS and found the plaintiffs were likely to succeed in their claims that denying GAS was cruel and unusual punishment. Interestingly, both cases critiqued Kosilek’s expert witness, Dr. Stephen Levine, as “an outlier in the field” who was “not credible” and “misrepresent[ed] the Standards of Care.”
In addition to dismissing WPATH, the majority mischaracterized governmental opinions of GAS. As the dissent pointed out, the Food and Drug Administration (FDA) has not prohibited GAS. According to the Centers for Medicare & Medicaid Services (CMS), “surgical procedures per se are not subject to [FDA] approval.” Even so, some surgeries, including breast implants, have been “approved/cleared by the FDA.” The fact that local Medicare Administrative Contractors determine individual GAS coverage shows that GAS can be medically necessary.
To be clear, there is no medical debate regarding the necessity of GAS as a treatment for some transgender people with GD. Gibson ignored the overwhelming scientific support for GAS. The American Psychological Association’s (APA) “Resolution on Transgender and Gender Identity and Gender Expression Non-Discrimination” adopted in 2008 states that the “APA supports access to appropriate treatment in institutional settings for people of all gender identities and expressions; including access to appropriate health care services including gender transition therapies.” Further, the APA’s Guidelines for Psychological Practice with Transgender and Gender Nonconforming People cite studies dating back to 1999 to show that “[r]esearch has primarily shown positive treatment outcomes when [transgender] adults and adolescents receive [gender]-affirmative medical and psychological services (i.e., psychotherapy, hormones, surgery).” The Guidelines say GAS “can be an important part of medically necessary treatment to alleviate gender dysphoria,” and “sufficient evidence exists to support current standards of care,” alluding to WPATH. DSM-V references GAS as a foreseeable option of care for transgender people with GD. Finally, Cornell University’s “What We Know Project” analyzed all peer-reviewed articles regarding gender transition published between 1991 and June 2017, amounting to fifty-two studies that found gender transition (including surgeries) “improves the well-being of transgender people,” four studies with “mixed or null findings,” and no studies indicating “overall harm.”
Gibson was decided on shaky procedural and substantive grounds. Gibson would have strong scientific evidence in her corner if she pursues en banc review. Society has changed its views on the medical necessity of gender-affirming care, and the Eighth Amendment demands that courts follow suit.