Prisoners not entitled to gender reassignment surgery: U.S. appeals court

[March 30, 2019]  By Jonathan Stempel

(Reuters) - A federal appeals court on Friday said Texas prison officials do not violate transgender inmates' constitutional right against cruel and unusual punishment by refusing to provide them with gender reassignment surgery.

In a 2-1 decision, the 5th U.S. Circuit Court of Appeals in New Orleans ruled against Scott Lynn Gibson, who was born male, but has lived as a female since age 15 and goes by Vanessa.

Writing for the majority, Circuit Judge James Ho said only California had ever provided gender reassignment surgery to a prisoner, and that was part of a settlement of a lawsuit.

He said this meant the Texas Department of Criminal Justice's refusal to consider the surgery as a possible means to treat Gibson's diagnosed gender dysphoria, sometimes known as gender identity disorder, did not violate the Eighth Amendment.

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

Stephen Braga, a University of Virginia law professor who argued Gibson's appeal, did not immediately respond to requests for comment.

The office of Texas Attorney General Ken Paxton, representing prison officials, did not immediately respond to similar requests.

Gibson was originally imprisoned after being convicted of aggravated robbery, and while in prison, committed murder and assault. His sentence runs through May 2031 and he becomes eligible for parole in April 2021.

According to Braga's brief, Gibson was asking the court to hold that gender dysphoria was a serious medical need justifying treatment that could lead to gender reassignment surgery, not that the Constitution required Texas to pay for the surgery.

Ho, however, said medical experts "fiercely question" whether the surgery, rather than counseling or hormone therapy, was the best treatment for gender dysphoria.

He said the decision was consistent with the 2014 refusal by the federal appeals court in Boston to require Massachusetts to provide the surgery to inmate Michelle Kosilek.

Circuit Judge Rhesa Barksdale dissented, saying the record was too sparse to justify a lower court judge's dismissal of Gibson's case, which the appeals court upheld.

Barksdale was appointed by President George H.W. Bush. Circuit Judge Jerry Smith, who joined the majority, was appointed by President Ronald Reagan.

The case is Gibson v Collier, 5th U.S. Circuit Court of Appeals, No. 16-51148.

(Reporting by Jonathan Stempel in New York, editing by G Crosse)

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