9th Circuit To Rule On Sex Reassignment Surgery For Idaho Inmate
On a late afternoon in September 2015, a 27-year-old transgender inmate named Adree Edmo wrote a note in her cinder block prison cell in Idaho. She wanted to be clear that what she was about to do was not an attempt at suicide.
The note read, “I do not want to die, but I am a woman, and women do not have these.” She then scrubbed her hands with hot water and soap, broke open a disposable razor blade and boiled it to disinfect it. Edmo then sliced into her right testicle with the blade.
Edmo didn’t succeed at this first attempt at self-castration. But she would try again.
Edmo’s attempts to remove her own genitals are central to her suit against the state of Idaho and Corizon Inc., the prison’s private health care contractor. Her attorneys argue that these are desperate acts that prove Edmo is not getting the medical care she needs.
Federal district Judge B. Lynn Winmill ruled in Edmo’s favor last December and ordered the prison to provide the surgery within six months. But the state appealed, and this Thursday, the case is being heard by the 9th Circuit Court of Appeals.
READ OUR UPDATE ON 9TH CIRCUIT HEARING
If Edmo prevails she’d become the first inmate to get sex reassignment surgery through court order, and it could open doors for others with similar medical conditions.
The legal arguments in the case are on the surface, simple: Edmo’s lawyers contend that gender confirmation surgery is vital, life-saving treatment and denying her that care constitutes cruel and unusual punishment. The state contends that the surgery is not medically necessary and that Edmo does not meet criteria for the procedure.
But those arguments are one strand in a web of complicated issues that this case touches: conceptions of gender, transgender rights and the rights of prisoners — and public distaste for sex offenders.
At the center of that web is plaintiff Adree Edmo, a 31-year-old with strong convictions and a troubled backstory. She’s serving a three-to-ten-year sentence for sexually abusing a 15-year-old boy when she was 22.
Edmo is a member of the Shoshone-Bannock Tribes and grew up on the Fort Hall Indian Reservation in rural Eastern Idaho. She was born male, but in a court declaration, she described feeling like a girl around the age of five and being bonded closely with her sisters. She played with Barbies and had crushes on boys in grade school.
Chris Osborne is a family friend who remembers Edmo as a little boy named “Mason,” Edmo’s prior name. “He had the tendencies of females," says Osborne. He recalls Edmo as a nine year old, lip synching and dancing to a song by Selena, the Latina singer. “He just had the way a female would get when they get sassy,” Osborne says.
Court documents and records from Edmo’s 2012 sentencing hearing paint a picture of a challenging childhood environment, including domestic abuse and alcoholism.
“I wasn’t a good mother,” said Michaeline Edmo, testifying about her then-son before a county judge. “When he was six, seven, he would get himself up and get ready for school and get on the bus ... he’s always had to do things himself. So he’s just had a really hard time.”
In the court records, Edmo states she struggled with identity as a young adult and abused alcohol. She was convicted of driving under the influence and felony fraud, for writing checks on a bank account that she’d closed. And in June 2011, according to police reports, at an alcohol-infused house party Edmo performed oral sex on a 15-year-old boy who was asleep on a couch. The victim woke up and pushed Edmo off. She pleaded guilty to sexual abuse of a minor under 16.
A Prison Sentence And Gender Dysphoria Diagnosis
Shortly after Edmo went to prison, she was diagnosed with gender dysphoria, which describes the discontent someone experiences when their outward gender appearance conflicts with their mental and emotional state.
Not every transgender person experiences gender dysphoria, but for those who do, there’s a range of treatment options for those who transition genders. For some people, it’s enough to change their name and dress in their desired gender. Hormone therapy allows transgender women to grow breasts and curves and allows transgender men to grow facial hair. Some people get voice coaching. And for some, gender dysphoria might be so severe that sex reassignment surgery might be medically necessary.
Edmo started on hormone treatment in prison after her diagnosis. Over the next several years, she requested other treatment including electrolysis hair removal, female underwear and access to commissary items like makeup. Most of her requests for care were denied. When Edmo altered male undergarments to feminize them and allow her to tuck her male genitalia, she was disciplined by the prison and had to reimburse the state for the cost the underwear.
In February 2014, she submitted a health services request form to Corizon, writing, “Need sex reassignment surgery ASAP.”
“It is extremely depressing and frustrating to be consistently denied access to the medical treatments that I need,” Edmo wrote in a court declaration.
Edmo attempted suicide in 2014. And a year after her first castration attempt she tried again. But this time her preparation was more extensive. Edmo studied the anatomy of the scrotum to determine the best incision point. She succeed in removing, but not severing her right testicle. The prison took her to a hospital where her testicle was stitched back in.
Wrinkles Of Complexity
There are between 60 and 70 transgender inmates currently incarcerated by the Idaho Department of Corrections, and 40 are diagnosed with gender dysphoria.
Gender in prison is a complicated construct in an environment where your freedom is restricted. Idaho houses prisoners according to their genitalia, which means trans women like Adree Edmo live in all-male facilities.
Wally Campbell, chief psychologist for IDOC, couldn’t speak about Edmo’s case, citing state policy not to comment on pending litigation. But speaking more generally about treating gender dysphoria, he says there are “wrinkles of complexity” in how inmates perceive gender, masculinity and femininity when they’re behind bars.
“Those are things I feel like we really need to kind of untangle before we start doing medical interventions,” Campbell says.
IDOC's policy on treating inmates with gender dysphoria states that sex reassignment surgery will not be considered, unless determined medically necessary by the treating physician.
Gender dysphoria is often present alongside mental illness like depression and anxiety, and Campbell says one of his challenges is untangling the source of an inmate’s dysphoria. Gender confirmation surgery would only be something he’d consider after he could be sure other treatments were insufficient.
“If we're talking about a really medically significant and irreversible intervention, I want to feel very confident we are going to treat what we're setting out to treat,” Campbell said. “And when we have all these other complicating factors, I feel very reluctant to endorse or encourage gender-confirming surgery.”
Cruel And Unusual Punishment?
IDOC says it follows standard of care laid out by the World Professional Association for Transgender Health, but argues Edmo doesn’t meet all of the criteria for gender confirmation surgery, including that a patient must live full-time in their desired gender for a full year before surgery and that their mental health concerns must be well-controlled. The state points to the fact that Edmo struggles with depression, and suicidal ideation.
Edmo’s Boise-based attorney Deborah Ferguson counters, “Those other mental health conditions of depression and anxiety are intertwined very much with their failure to adequately treat her gender dysphoria.”
Brady Hall is the attorney for the state of Idaho on this case. During the October 2018 evidentiary hearing in Boise he said, “What we're saying is that the evidence that we have, the concerns we have, do weigh against providing SRS gender confirmation surgery at this time.” (IDOC and Corizon Inc. declined to comment for this story, citing pending litigation).
Walter Olson, senior fellow with the libertarian think tank the Cato Institute, called the case a “battle of the experts.”
“It may seem like an objective thing to figure out, 'What are someone's medical needs?'” Olson says. “And then you try to put that into effect, and as you know if you ask five different health insurance plans what is medically necessary care, you'll get five different answers.”
In the lower ruling, the judge indicated that the state’s witnesses lacked credibility and said their opinions that Edmo does not meet criteria for surgery held “virtually no weight.” Judge Winmill pointed to their lack of experience directly treating people with gender dysphoria.
But aside from proving that Edmo’s surgery is medically necessary, the plaintiff must also demonstrate that prison officials were being “deliberately indifferent” to her medical needs. The Supreme Court has ruled that that’s a violation of the Eighth Amendment that protects against cruel and unusual punishment.
If Edmo wins in the 9th Circuit, not only would she become the first transgender inmate in the nation to get gender confirmation surgery through court order, it could make it easier for other transgender inmates to access the procedure.
“It would be binding on all the District Courts in the 9th Circuit,” says Courtney Joslin, a law professor at University of California-Davis who specializes in constitutional law and LGBTQ issues.
That doesn't mean that Idaho would be required to provide gender confirmation surgery to every transgender inmate, it would just mean that they would have to provide it for every transgender inmate for whom gender confirmation surgery is medically necessary.-Courtney Joslin
And the issue could be ripe for the Supreme Court. In two similar cases in the 5th and the 1st Circuits, courts ruled against inmates requesting gender confirmation surgery. In a split 5th Circuit decision , Judge James Ho wrote, “...not only do respected medical experts disagree with sex reassignment surgery — so do prisons across the country… it cannot be cruel and unusual to deny treatment that no other prison has ever provided.”
Since court proceedings in that case, at least one prisoner has received sex reassignment surgery. California reformed its policy for such surgeries after an inmate won her case in U.S. District Court in California. Like Adree Edmo, Michelle Norsworthy’s case was set to be heard on appeal before the 9th Circuit, but Norsworthy was released on parole one day prior to oral arguments. After that, California settled another lawsuit brought by inmate Shiloh Heavenly Quine, provided Quine with the surgery and established criteria and a review panel to evaluate requests for the surgery.
Law professor Courtney Joslin believes Adree Edmo’s case is quite straightforward and says she wouldn’t be surprised if the 9th Circuit agrees with the lower ruling.
“The trial court found that Ms. Edmo is suffering greatly as a result of the prison’s failure to provide her with care that the experts have found is medically necessary for her, and that is indeed exactly what the Constitution prohibits," Joslin says.
Walter Olson says if the judges do rule in Edmo’s favor, that opinion may be ahead of public views about sex reassignment surgery.
“The standard of cruel and unusual punishment is kind of hitched inherently to public opinion,” says Olson. “If the courts allow themselves to get too far astray from where public opinion is on these things, the public winds up one way or another discontented with the the outcome.”
Edmo’s attorney Lori Rifkin disagrees.
“Gender dysphoria is a medical condition just like cancer,” says Rifkin. She says the 8th Amendment makes it clear that prisons must provide medical care. “If somebody requires surgery or chemotherapy or radiation to shrink their tumor, that is what we give them.”
The federal district judge in Edmo’s case agreed. If Edmo doesn’t get the surgery, he wrote in his order, she’s at risk for another self-castration attempt, or suicide.
Ahead Of Public Opinion?
But the legal arguments in some ways seem far divorced from the vehement public reaction to Edmo’s case in Idaho, one of the most Republican states in the nation. An online petition opposing providing Edmo’s case has attracted nearly 5,000 signatures.
“It effects [sic] the entire country sends the message go to prison for a free sex change surgery,” the petition website reads. “Idaho tax payers do Not [sic] need to foot the bill for this. This does Not [sic] need to happen.”
And appealing the case was one of Idaho Governor Brad Little’s first official acts of office in early January.
“The hard working taxpayers of Idaho should not be forced to pay for a prisoner’s gender reassignment surgery when individual insurance plans won’t even cover it,” Governor Little said. “We cannot divert critical public dollars away from our focus on keeping the public safe and rehabilitating offenders.”
Technically, the state would not be “diverting” dollars to cover Edmo’s surgery — it would be paid for under the state’s umbrella contract with Corizon. Under the arrangement, the state pays Corizon a set fee per inmate, per day, and then the for-profit health provider is responsible for covering the costs of things like surgeries or emergency room visits, and would also be responsible for covering the cost of medically necessary gender confirmation surgery for any inmate. Corizon can request to amend its contract to exclude such surgeries, but it hasn’t done so.
And the health insurance coverage for transgender care has changed rapidly in recent years. For example, Medicare will pay for these types of surgeries. 18 states cover them under their Medicaid plans, although Idaho is not among those. The LGBTQ advocacy group the Human Rights Campaign has counted more than 750 major U.S. companies that offer at least one insurance plan to cover trans employees.
But Governor Little’s appeal of the case was not about the price tag for a single gender confirmation surgery, which can range from about $20,000 to $30,000. Court costs for the state will far outweigh that — for instance, the state paid a single expert witness more than $60,000 to assess Edmo before the U.S. District Court hearings in Idaho.
"Allowing this case to sit there, I was afraid that it would lower the bar for what the state of Idaho had to pay for,” says Little. In a press conference, Governor Little also suggested that he views the surgery as elective.
Judge Winmill’s order for the surgery was specific to Edmo and her medical need, but if she prevails her case could have a ripple effect. Prison officials may be less likely to deny the surgery, if an inmate has a strong case that it’s medically necessary.
Judge Winmill ordered the surgery to take place by mid June, but the 9th Circuit stayed that order until it makes its decision. The case has been expedited, which may mean that the judges will try to rule before that deadline.
Meanwhile, through her attorneys, Edmo says she’s anxious.
“I know that gender confirmation surgery is not a fix-all. It's not a magic operation,” she said during the lower court hearing. “I’m still going to face the same stressors that we all face in everyday life, you know, medical, family, relationship issues. I just know that after having gotten the surgery, it's going to put me at a level a lot better to handle those types of situations than I am now."
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Copyright 2019 Boise State Public Radio
James Dawson contributed to this report.
Find reporter Amanda Peacher on Twitter @amandapeacher.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUER in Salt Lake City and KRCC and KUNC in Colorado.