Does the failure to provide inmates diagnosed with gender dysphoria sex-reassignment surgery amount to “cruel and unusual punishment”? The Supreme Court had an opportunity to weigh in on that question thanks to an appeal from a Texas convict. The court ended up taking a pass on the case, which tacitly endorses the 2-1 ruling of the Fifth Circuit that the Eighth Amendment does not guarantee sex changes for inmates:

The U.S. Supreme Court on Monday refused to hear an appeal by a convicted murderer who filed a civil rights lawsuit because Texas prison officials denied her request to be considered for gender reassignment surgery.

The justices let stand a lower court’s decision to reject the claim by inmate Vanessa Lynn Gibson that denying the surgery request violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. …

Court papers said Gibson was diagnosed in 2014 with gender dysphoria, which medical experts define as distress from the internal conflict between physical gender and gender identity. She has suffered from severe depression, engaged in self-mutilation and attempted suicide several times, court papers said.

Gibson was provided with hormone therapy, but Texas has no policy allowing for “irreversible surgical intervention,” according to the state.

The denial itself is interesting for what it says. It takes four justices to grant cert, and there are certainly four liberal jurists on the court right now. When the court orders deny cert to cases that a smaller number of jurists want heard, the denial will occasionally prompt a response from one or more of the justices in arguing why the court has erred in refusing to pick up the case. There’s none of that with Gibson v Collier et al, which suggests that there wasn’t a whole lot of sympathy for the argument on either wing of the court.

It’s not difficult to see why, either. The complaint is presumably based on the 1976 precedent set in Estelle v Gamble, in which the Supreme Court ruled that “deliberate indifference by prison personnel to a prisoner’s serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment.” However, the same 8-1 decision took pains to distinguish that “deliberate indifference” had to clear a very high bar. Even an “inadvertent failure to provide adequate medical care” doesn’t clear that bar, and Gamble in fact lost his appeal because he could only prove that the care didn’t solve the problem rather than not receiving care at all. In order for Gibson to succeed, he would have to prove that the only adequate and non-indifferent care for his dysphoria is sex-reassignment surgery.

Needless to say, the Fifth Circuit opinion wholly rejected that argument on its merits, producing what is for the moment now the controlling precedent across the country. (NBC News uses Gibson’s feminine name and pronouns, but the Fifth Circuit opinion identifies him as Scott Lynn Gibson and uses male pronouns.) Gibson and his appointed legal team chose to stick to the core constitutional argument rather than ask for a remand to correct procedural deficiencies, and the court ruled that it wouldn’t have made any difference anyway. The 2-1 majority ruled that district court got it right that the requirement to provide medical care does not encompass a requirement for elective surgery, especially with medical authorities conflicted about sex-reassignment surgery:

The district court concluded that Gibson failed to present a genuine dispute of material fact concerning deliberate indifference. To quote: “Plaintiff would prefer a policy that provides [sex reassignment surgery]. However, a Plaintiff’s disagreement with the diagnostic decisions of medical professionals does not provide the basis for a civil rights lawsuit.” Op. at 20. “Plaintiff provides . . . no witness testimony or evidence from professionals in the field demonstrating that the WPATH-suggested treatment option of [sex reassignment surgery] is so universally accepted, that to provide some but not all of the WPATH-recommended treatment amounts to deliberate indifference.” Id. at 19. “Accordingly, Plaintiff fails to establish there is a genuine issue of material fact as to whether the policy is unconstitutional on its face or as applied to Plaintiff.” Id. at 20.

We agree. What’s more, the conclusion of the district court is further bolstered by a recent ruling by one of our sister circuits. As the First Circuit concluded in Kosilek, there is no consensus in the medical community about the necessity and efficacy of sex reassignment surgery as a treatment for gender dysphoria. At oral argument, Gibson’s counsel did not dispute that the medical controversy identified in Kosilek continues to this day. This on-going medical debate dooms Gibson’s claim. …

To support its decision, the First Circuit exhaustively detailed the underlying expert testimony in the case. That testimony is crucial because it provides objective evidence that the medical community is deeply divided about the necessity and efficacy of sex reassignment surgery. As the First Circuit explained, respected doctors profoundly disagree about whether sex reassignment surgery is medically necessary to treat gender dysphoria.

The Fifth Circuit also noted that WPATH is an advocate for its position, not a medical consensus or an independent arbiter. Furthermore, as the court points out in a footnote, the Obama-era Center for Medicare and Medicaid Services specifically rejected the need for covering such surgeries in August 2016:

Nor is the Kosilek testimony alone in questioning the efficacy of sex reassignment surgery. In August 2016, for example, the Center for Medicare & Medicaid Services at the U.S. Department of Health and Human Services issued a “Decision Memo for Gender Dysphoria and Gender Reassignment Surgery.” The memo surveyed the available medical literature and found that there was insufficient expert medical evidence to support sex reassignment surgery with respect to Medicare and Medicaid patients. See generally CMS, Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (Aug. 30, 2016), https://www.cms.gov/medicare-coverage-database/details/nca-decisionmemo.aspx?NCAId=282.

Under these circumstances, the court ruled, there is no demonstrable indifference in refusing to fund such surgeries, even if the inmate argues that he or she has a specific need for it. The precedent under the Eighth Amendment applies to truly necessary, approved, and consensus treatments for medical conditions, a point the court makes more strongly later:

Moreover, putting Kosilek to one side, there is a more fundamental problem with the dissent’s contention that the Eighth Amendment requires individualized assessments, and thus forbids categorical judgments about the necessity and efficacy of certain medical treatments. To illustrate: An entire agency of the federal government—the Food and Drug Administration—is devoted to making categorical judgments about what medical treatments may and may not be made available to the American people. So imagine an inmate seeks a form of medical treatment that happens to be favored by some doctors, but has not (at least not yet) been approved by the FDA. Could the inmate challenge this deprivation on the ground that it is a categorical prohibition on medical treatment, rather than an individualized assessment? Surely not. There is no basis in the text or original understanding of the Constitution— nor in Supreme Court or Fifth Circuit precedent—to conclude that a medical treatment may be categorically prohibited by the FDA, yet require individualized assessment under the Eighth Amendment. The dissent seems to acknowledge this, stating only that “[o]ther circuits have time and again held that . . . a blanket policy . . . could constitute deliberate indifference.”

If this seems like a long way around the bend to get to a common-sense result, you’re correct. If Gibson wants sex-reassignment surgery, he should wait until his release date in 2021 and then pursue it on his own. The state of Texas and its taxpayers should not have to pay for his elective surgery as a consequence of the murder he committed. The prison owes him normal medical care to keep him alive and reasonably healthy until release date, and that’s it.

It might have been better for the Supreme Court to take this up and craft a more emphatic precedent, as there’s yet another such case coming out of Idaho where the district court ordered the surgery (Edmo v Idaho Dep’t of Corr, mentioned in the opinion). As it is, though, this Fifth Circuit opinion should suffice as a national precedent.