10:48, April 01 57 0 abajournal.com

2019-04-01 10:48:03
Denying sex reassignment surgery to inmate isn’t cruel and unusual, 5th Circuit rules

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Image from Julia Sanders/Shutterstock.com.

A blanket ban on sex reassignment surgery for prison inmates isn’t cruel and unusual punishment under the Eighth Amendment, a federal appeals court has ruled.

The 5th U.S. Circuit Court of Appeals at New Orleans ruled Friday against Texas inmate Vanessa Lynn Gibson in a 2-1 decision. Reuters has coverage. Gibson was born male but has lived as a woman since age 15.

Circuit Judge James Ho, an appointee of President Donald Trump, wrote the majority decision. “Under established precedent, it can be cruel and unusual punishment to deny essential medical care to an inmate,” Ho wrote. “But that does not mean prisons must provide whatever care an inmate wants.”

Medical care for inmates violates the Eighth Amendment only when it is “so unconscionable as to fall below society’s minimum standards of decency,” Ho said, citing another case, Estelle v. Gamble, which was decided in 1976.

Ho said medical experts “fiercely question” whether sex reassignment surgery is preferable to counseling and hormone therapy for gender dysphoria.

He also said no prisons provide such surgery, although California agreed to provide sex reassignment surgery to a prison inmate to settle a lawsuit. And the only other federal appeals court to consider the issue—the en banc 1st Circuit at Boston—has ruled for the prison system.

Circuit Judge Rhesa Hawkings Barksdale wrote in dissent that Gibson’s individual medical needs should have been considered. Barksdale also said there have been many medical developments regarding gender dysphoria since the 1st Circuit ruled more than four years ago.

Gibson had represented herself in the lower court. She was represented on appeal by Stephen Braga, a law professor at the University of Virginia, according to Reuters.

The case is Gibson v. Collier. Hat tip to How Appealing, which noted the case.

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