Edmo v. Corizon, Inc.

949 F.3d 489 (Mem)

Adree EDMO, aka Mason Edmo, Plaintiff-Appellee,

v.CORIZON, INC.; Scott Eliason ; Murray Young; Catherine Whinnery, Defendants-Appellants,andIdaho Department of Corrections; Henry Atencio; Jeff Zumda; Howard Keith Yordy; Al Ramirez, Warden; Richard Craig; Rona Siegert, Defendants.

Adree Edmo, aka Mason Edmo, Plaintiff-Appellee,

v.Idaho Department of Corrections; Henry Atencio; Jeff Zumda; Howard Keith Yordy; Al Ramirez, Warden; Richard Craig; Rona Siegert, Defendants-Appellants,andCorizon, Inc.; Scott Eliason ; Murray Young; Catherine Whinnery, Defendants.

No. 19-35017

No. 19-35019

United States Court of Appeals, Ninth Circuit.

Filed February 10, 2020

ORDER

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of nonrecused active judges in favor of en banc consideration. Fed R. App. P. 35.

The petition for rehearing en banc is DENIED . An opinion respecting denial of rehearing en banc, prepared by Judge O’Scannlain, and dissents from denial of rehearing en banc prepared by Judge Collins and Judge Bumatay are filed concurrently with this order.

O’SCANNLAIN, Circuit Judge,^* with whom CALLAHAN, BEA, IKUTA, R. NELSON, BADE, BRESS, BUMATAY, and VANDYKE, Circuit Judges, join, respecting the denial of rehearing en banc:

With its decision today, our court becomes the first federal court of appeals to mandate that a State pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment. The three-judge panel’s conclusion—that any alternative course of treatment would be "cruel and unusual punishment"—is as unjustified as it is unprecedented. To reach such a conclusion, the court creates a circuit split, substitutes the medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, redefines the familiar "deliberate indifference" standard, and, in the end, constitutionally enshrines precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.

Respectfully, I believe our court’s unprecedented decision deserved reconsideration en banc.

I

A

In 2012, Adree Edmo (then known as Mason Dean Edmo) was incarcerated for sexually assaulting a sleeping 15-year-old boy. By all accounts, Edmo is afflicted with profound and complex mental illness. She¹ suffers from major depressive disorder, anxiety, alcohol addiction, and drug addiction. At least two clinicians have concluded that she shares the traits of borderline personality disorder. She abused alcohol and methamphetamines every day for many years, stopping only upon her incarceration. A victim of sexual abuse at an early age, she attempted suicide three times before her arrest for sexual assault—twice by overdose and once by cutting.

A new diagnosis was added in 2012: gender dysphoria. Two months after being transferred to the Idaho State Correctional Institution (a men’s prison), Edmo sought to speak about hormone therapy with Dr. Scott Eliason, the Board-certified director of psychiatry for Corizon, Inc. (the prison’s medical care provider). In Dr. Eliason’s view, Edmo met the criteria for gender dysphoria.² After the diagnosis was confirmed by another forensic psychiatrist and the prison’s Management and Treatment Committee, Edmo was prescribed hormone therapy. She soon changed her legal name and the sex listed on her birth certificate. As a result of four years of hormone therapy, Edmo experienced physical changes, including breast development, redistribution of body fat, and a change in body odor. She now has the same circulating hormones as a typical adult female.

In April 2016, at Edmo’s request, Dr. Eliason evaluated her for sex-reassignment surgery.³ Ultimately, Dr. Eliason decided to maintain the current course of hormones and supportive counseling instead of prescribing surgery. He staffed Edmo’s case with Dr. Jeremy Stoddart (a psychiatrist) and Dr. Murray Young (a physician who served as the Regional Medical Director for Corizon), as well as Jeremy Clark, a clinical supervisor and member of the World Professional Association for Transgender Health ("WPATH"). He also presented the evaluation and vetted it before the regular meeting of the multidisciplinary Management Treatment Committee.

Dr. Eliason, supported by Dr. Stoddart, Dr. Young, and Clark, opted not to recommend sex-reassignment surgery for several reasons, some of which are described in his chart notes and others of which were elaborated in their testimony. First, Dr. Eliason noted that Edmo reported that the hormone therapy had improved her dysphoria and Eliason "did not observe significant dysphoria." In the absence of more severe distress, Dr. Eliason could not justify the risks of pursuing the most aggressive—and permanent—treatment through surgery. Second, Dr. Eliason observed that Edmo’s comorbid conditions—major depressive disorder and alcohol use disorder, among others—were not adequately controlled.

Edmo had refused to attend therapy consistently in prison. She also engaged in self harm (including cutting and attempted castration ) and exhibited co-dependency and persistently poor sexual boundaries with other prisoners. In Dr. Eliason’s view, Edmo’s other mental health disorders were not sufficiently stabilized to handle the stressful process of surgery and transition. Finally, Dr. Eliason observed that Edmo—who was parole-eligible and due to be released in 2021—had not lived among her out-of-prison social network as a woman. He noted the high suicide rates for postoperative patients and was concerned that Edmo might be at greater risk of suicide given the potential lack of support from family, friends, coworkers, and neighbors during her transition. Dr. Eliason did not rule out the possibility of Edmo receiving sex-reassignment surgery at some later point. As Dr. Eliason put it in his notes on his consultation with Edmo, "Medical Necessity for Sexual Reassignment Surgery is not very well defined and is constantly shifting." Citing the changing nature of the science and the contingent nature of his evaluation of Edmo, his recommendations were merely "for the time being."

B

About a year after her evaluation, Edmo filed this § 1983 lawsuit against Dr. Eliason, the Idaho Department of Corrections, Corizon, and several other individuals, alleging that the prison doctors’ treatment choice violated her right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments. She then moved for a preliminary injunction to require the prison to provide her with sex-reassignment surgery.

The district court held an evidentiary hearing on the motion. At the outset of the hearing, the court commented that it was hard "to envision" how a request to mandate sex-reassignment surgery could be granted through anything other than a permanent injunction. Nonetheless, the district court evaluated Edmo’s motion under the preliminary injunction standard and, only out of "an abundance of caution," provided a footnote evaluating whether an injunction was merited under the more demanding standard for a permanent injunction (which the court erroneously described as "no more rigorous than that applicable to a claim for preliminary mandatory relief"). Edmo v. Idaho Dep’t of Corr. , 358 F. Supp. 3d 1103, 1122 n.1 (D. Idaho 2018) ; see Edmo v. Corizon, Inc. , 935 F.3d 757, 784 n.13 (9th Cir. 2019) ("[T]he standard for granting permanent injunctive relief is higher (in that it requires actual success on the merits) ....").

In addition to testimony from Edmo, Dr. Eliason, and Jeremy Clark, the evidentiary hearing featured testimony from four expert witnesses. Edmo presented Dr. Randi Ettner, a psychologist, and Dr. Ryan Gorton, an emergency room physician. Dr. Ettner is one of the authors of the World Professional Association of Transgender Health’s Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People and chairs WPATH’s Committee for Institutionalized Persons. Dr. Gorton serves on that committee too. WPATH—formerly the Harry Benjamin International Gender Dysphoria Association—describes itself as a "professional association" devoted "to developing best practices and supportive policies worldwide that promote health, research, education, respect, dignity, and equality for transsexual, transgender, and gender nonconforming people in all cultural settings." World Prof’l Ass’n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People 1 (7th ed. 2011) ("WPATH Standards"). One of WPATH’s central functions is to promulgate Standards of Care, which offer minimalist treatment criteria for several possible approaches to gender dysphoria, from puberty-blocking hormones to sex-reassignment surgery.

In addition to Dr. Eliason and Mr. Clark, the State presented Dr. Keelin Garvey, the Chief Psychiatrist of the Massachusetts Department of Corrections and chair of its Gender Dysphoria Treatment Committee, and Dr. Joel Andrade, a clinical social worker who served as clinical director for the Massachusetts Department of Corrections and served on its Gender Dysphoria Treatment Committee. Each set of experts had gaps in their relevant experience. Edmo’s experts had never treated inmates with gender dysphoria, while the State’s experts had never conducted long-term follow-up care with a patient who had undergone sex-reassignment surgery.

Edmo’s experts testified that, in their opinion, Edmo needs sex-reassignment surgery. They based their conclusion on the latest edition of WPATH Standards of Care, which contain six criteria for sex-reassignment surgery:

(1) "persistent, well documented gender dysphoria,"

(2) "capacity to make a fully informed decision and to consent for treatment,"

(3) "age of majority,"

(4) "if significant medical or mental health concerns are present, they must

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