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SCOTUS, Incl. Gorsuch and Kavanaugh, OK's Trans Prisoner's Surgery

Supreme Court

The Supreme Court Thursday refused Idaho’s request to block gender-confirmation surgery for an inmate in one of the state’s prisons while it considers whether to hear the state’s appeal of the case as a whole.

The court issued a very brief order denying the request, without giving a reason, and saying that Justices Clarence Thomas and Samuel Alito would have granted the state’s application. They are both in the court’s conservative wing.

This means that an appeals court’s ruling in favor of the prisoner, transgender woman Adree Edmo, will stand. The U.S. Court of Appeals for the Ninth Circuit, which covers several western states, had ruled last year that denying Edmo the surgery constituted cruel and unusual punishment, which is banned by the Eighth Amendment to the U.S. Constitution, The New York Times reports.

Edmo, who is due to be released next year after serving time for sexually assaulting a 15-year-old boy, has been receiving hormone therapy and counseling while incarcerated. But a prison psychiatrist has decreed that the state could not provide the surgery for her, even though she has attempted self-castration.

A trial court ruled that she was entitled to the surgery, and a three-judge panel of the Ninth Circuit agreed. “It is no leap to conclude that Edmo’s severe, ongoing psychological distress and the high risk of self-castration and suicide she faces absent surgery constitute irreparable harm,” the panel wrote.

The state sought a rehearing by the full Ninth Circuit. A majority of judges denied that, but some dissented. One of them Diarmuid O’Scannlain, “wrote that the panel had put too much weight on standards published by the World Professional Association for Transgender Health, which he called ‘a controversial self-described advocacy group that dresses up ideological commitments as evidence-based conclusions,’” according to the Times.

O’Scannlain also wrote that the Ninth Circuit was “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.”

Eight other judges joined his dissent, including Patrick Bumatay, a gay man appointed to the Ninth Circuit by Donald Trump. Bumatay expressed sympathy for Edmo but said denying her the surgery did not meet the constitutional standard of cruel and unusual punishment.

In addition to asking the Supreme Court to stop Edmo from having the surgery, the state has requested that the high court consider her case as a whole, The Washington Post reports. However, she has been preparing for the surgery for several months, and it is scheduled for July, meaning that the latter request will likely be a moot point.

Edmo’s legal team welcomed the green light for the procedure but said it does not set a national precedent. “This case is a fact-intensive dispute about whether a particular treatment is medically necessary for one individual” and whether the psychiatrist was “deliberately indifferent to her serious medical needs and ongoing risk of harm,” her lawyer Lori Rifkin wrote, according to the Post.

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