Deliberate Indifference: Does the Eighth Amendment Guarantee Access to Gender Confirmation Surgery For Transgender Prisoners?

BACKGROUND

The Eighth Amendment explicitly prohibits cruel and unusual punishment, but what are the parameters of this protection? In Estelle v. Gamble, the Supreme Court expanded the definition to include “deliberate indifference to serious medical needs of prisoners.” This 1976 decision proscribes a form of inhumane treatment that extends beyond physical punishment:

“(D)enial of medical care may result in pain and suffering which no one suggests would serve any penological purpose… The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common law view that “it is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.”

However, it is not the case that every prisoner’s claim for inadequate medical treatment necessarily involves an Eighth Amendment violation. Under Kolisek v. Spencer, to prevail on such a claim, a plaintiff must prove that: (1) a serious medical need exists, and (2) prison administrators’ acted with deliberate indifference to that need.

THE ISSUE

The aforementioned two-prong test comes into play when deciding whether an inmate can receive treatment for gender dysphoria. According to the World Professional Association for Transgender Health, gender dysphoria is defined as “distress that is caused by discrepancy between a person’s gender identity and that person’s sex assigned at birth.” In the recently decided case, Edmo v. Corizon, the Ninth Circuit went on to recognize that, if left untreated, gender dysphoria can lead to “debilitating distress, depression, impairment of function, substance use, self-surgery to alter one’s genitals or secondary sex characteristics, self-injurious behaviors, and even suicide.” Despite this, the question of whether gender dysphoria is a serious medical issue for inmates is not at issue here.

With regard to gender dysphoria, treatment ranges from changes in gender expression to gender confirmation surgery (GCS). The latter is politically controversial, but a growing body of evidence demonstrates that it is an effective treatment for gender dysphoria. The Fifth Circuit, in Gibson v. Collier, expressed concern that transgender prisoners are not guaranteed “the best treatment for gender dysphoria, only that which prevents their medical well-being from dropping below ‘society’s minimum standards of decency.’”

The legal controversy at issue here involves the definition of “adequate treatment,” specifically the standard for “deliberate indifference” to an inmate’s medical need in the context of transgender prisoners. The question becomes whether a transgender inmate’s Eighth Amendment right against cruel and unusual punishment is violated when GCS is denied and substituted with less invasive treatment.

THE SPLIT

The Fifth and Ninth Circuits diverge in their interpretation of the First Circuit’s opinion in Kosilek v. Spencer, which held that Michelle Kosilek, an anatomically male prisoner who identified as female, was not entitled to GCS. The Court reasoned that, although her gender dysphoria was severe, it was unclear whether GCS would provide significantly greater relief than the non-surgical treatment she was already receiving. The prison was found not deliberately indifferent, and the claim was denied.

The Fifth Circuit has interpreted Kosilek as creating a de facto, blanket ban on GCS on the grounds that there exists controversy about whether the procedure is ever medically necessary. In Gibson v. Collier, Vanessa Gibson (who the Fifth Circuit insists on calling Scott Gibson), is a male-to-female transgender inmate who has been presenting as female since the age of fifteen. Despite receiving hormonal therapy from the prison, Vanessa showed signs of depression, attempted to castrate herself, and even attempted suicide three times. The Court, however, held that withholding GCS from her is not “deliberate indifference” because there exists controversy about the efficacy of the procedure, finding that an Eighth Amendment violation did not occur. The Court granted summary judgment against Gibson for failing to provide sufficient evidence of medical indifference, and reaffirmed the prison policy that denied the inmate’s right to be evaluated as a candidate for GCS in the first place.

In contrast, in Edmo v. Corizon, the Ninth Circuit has interpreted the Kosilek decision by holding that the medical necessity of GCS must be determined on a case-by-case basis. In this case, Adree Edmo had received non-invasive treatment for her gender dysphoria as an inmate in Idaho. Despite these efforts, Edmo continued to suffer from suicidal ideations, depression, and attempts to self-castrate. Citing the district court’s lengthy discussion of the latest research on gender dysphoria and the efficacy of GCS, the Court determined that it was medically necessary for Edmo to receive the surgery. Due to the increased social awareness of transgender healthcare and significant advancement in treatment, the Ninth Circuit held: where an inmate’s health record shows medical necessity in treating gender dysphoria, and prison officials deny such treatment, those officials are in violation of the Eighth Amendment.

LOOKING FORWARD

In concluding his opinion in Gibson, Judge Ho argued that “it cannot be deliberately indifferent to deny in Texas what is controversial in every other state.” It is, however, this exact controversy that highlights the need for certiorari. It is clear that the lack of access to ever evolving and effective treatment causes severe medical harm, as was the case with Michelle, Vanessa, Adree, and several other transgender inmates. This predictable and preventable harm falls well below the “minimum standards of decency” the Eighth Amendment aims to preserve.

Joining Forces: Whether § 2 of the VRA Permits Aggregation to Create Majority-Minority Coalition Districts

BACKGROUND

Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in the VRA. In 1982, Congress amended § 2 to allow a plaintiff to establish a violation of the Section if the evidence established by a “totality of the circumstance of the local election process” that the standard, practice or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process and to elect representatives of their choice. In effect, this empowered voters to challenge district lines drawn to either dilute or pack minority voters to decrease their influence on the political process.

In its first case following the passage of the 1982 amendments, the Supreme Court explained in Thornburg v. Gingles that the “essence of the Section 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”

The Court in Gingles held the following:

  • That the use of multimember districts generally will not impede the ability of minority voters to elect representatives unless: (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group is politically cohesive; and (3) the white majority group votes sufficiently as a bloc to enable it to usually defeat the minority’s preferred candidate.
  • That a showing that a significant number of minority group members usually vote for the same candidates is one way of proving the requisite political cohesiveness.
  • A white bloc vote that normally will defeat the combined strength of minority support plus white “crossover” votes rises to the level of legally significant white bloc voting.
  • That the “clearly erroneous test” of Rule 52(a) of the Federal Rules of Civil Procedure is the appropriate standard of appellate review for a finding of vote dilution.

Despite these findings, the Court did not consider whether § 2 permits a claim brought by a minority group that is not sufficiently large and compact enough to constitute a majority in a single-member district.

In Growe v. Emison, Johnson v. DeGrandy, and LULAC v. Perry, the Supreme Court continued to sidestep the question by assuming, without deciding, that it is possible to state a § 2 claim for a racial group that makes up less than 50% of the population.

In Bartlett v. Strickland, the Court considered the “minimum-size” question under the first requirement of Gingles. It made clear that the holding only addressed the issue as it pertains to crossover districts, not coalition districts. In crossover districts, minority voters make up less than a majority of the voting population, but the minority population, at least potentially, is large enough to elect the candidate of its choice with the help of voters who are members of the majority and who cross over to support the minority’s preferred candidate. Coalition-district claims, on the other hand, involve two minority groups that form a coalition to elect the candidate of the coalition’s choice. The Court held that crossover districts are not protected under § 2.

THE ISSUE

Pursuant to § 2 of the Voting Rights Act, is the majority-minority requirement under the first Gingles precondition satisfied when minorities from more than one racial or ethnic group, joined together, constitute a majority of the citizen voting age population?

THE SPLIT

The 5th Circuit has been most explicit in permitting coalition districts. In Campos v. City of Baytown, the court held that minority voters can be aggregated so that “together, they are of such numbers residing geographically so as to constitute a majority in a single member district, they cross the Gingles threshold as potentially disadvantaged voters.” Still, the plaintiffs must prove the minorities actually vote together in a cohesive manner. The court determined that the standard for proving cohesion is whether the minority group together votes in a cohesive manner for the minority candidate.

Following Campos, the 2nd Circuit, 9th Circuit, and 11th Circuit have tacitly permitted coalition districts, though not as explicitly as the 5th Circuit. In both Badillo v. City of Stockton and Concerned Citizens of Hardee County v. Hardee County Board of Commissioners, the courts assumed it was acceptable to aggregate voters of different minority groups, but the plaintiffs in both cases failed to prove the requisite political cohesion necessary to satisfy the second Gingles requirement. In Bridgeport Coalition for Fair Representation v. City of Bridgeport, the 2nd Circuit assumed the coalition districts were covered under § 2 and that requisite political cohesion was proven to satisfy the elements of Gingles.

Deviating from the other circuits, the 6th Circuit refused to extend § 2 coverage to a minority group that includes more than one race or ethnicity. In Nixon v. Kent County, the court held that if Congress wanted to protect a minority group that was composed of more than one race or ethnicity, it would have used more words in the plural form in § 2, such as “protected classes” rather than “protected class.”

LOOKING FORWARD

Recently, the Supreme Court seems more willing to take on cases dealing with issues of independent redistricting commissions and partisan gerrymandering. It also has been willing to take on cases regarding § 5 of the Voting Rights Act, as well as the application of the Gingles factors in § 2 claims. While the Court has not yet signaled a willingness to take on the issue of coalition districts, the number of cases arising from the use of African-American and Hispanic voters to create the majority-minority districts will likely continue to increase as the Hispanic population continues to grow. If the Supreme Court does not take up the issue, there may be an increase in coalition districts drawn following the 2020 Census.

It Seemed like the Reasonable Approach at the Time: A Circuit Split on the Meaning of “Reasonable Belief” in Search and Seizure

How Many Warrants?

Two major Supreme Court decisions are at play here concerning the constitutionality of officers entering residences to execute arrest warrants when residency of the suspect is uncertain.

In the aftermath of the first case, Payton v. New York (S.Ct. 1980), the Courts of Appeals developed a two-prong test to assess the constitutionality of an officer’s entry to execute an arrest warrant: the officer must have a “reasonable belief” that (1) the “arrestee lives in the residence, and that (2) the “arrestee is within the residence.” United States v. Gay (10th Cir. 2001).

One year after Payton, the Supreme Court held that officers may not enter the residence of a third party to execute an arrest warrant unless they first obtain a search warrant based on the belief that the suspect “might be a guest there.” Steagald v. United States (S.Ct. 1981). This created a stricter standard for entering officers if they believe only that the suspect is a common “guest” in the residence rather than a resident or immediately within the residence. Thus, officers would much prefer that the arrestee is a resident and within the residence as opposed to being simply a guest.  The determination of whether officers need only an arrest warrant to enter versus an arrest warrant and a search warrant to enter a residence is entirely dependent on an officer’s “reasonable belief.”

The circuit courts have since been faced with discerning what constitutes a “reasonable belief,” thus determining when both an arrest and a search warrant are necessary for constitutional entry into third party residences as opposed to only an arrest warrant.

Circuit Split

The Third Circuit is the most recent voice to enter the interpretive dispute surrounding the standard of “reasonable belief.” United States v. Vasquez-Algarin (3rd Cir. 2016).

Joining the Fifth, Sixth, Seventh, and Ninth Circuits, the Third Circuit held that reasonable belief should be viewed as the functional equivalent of probable cause, and thus the same standard.  The practical effect of requiring a probable cause standard is that it makes it more difficult to enter only with an arrest warrant. The Third Circuit had two primary reasons for their decision:

  • First, the Supreme Court’s use of the phrase “reason to believe,” when considered in the context of Payton and more generally the Court’s Fourth Amendment jurisprudence, supports a probable cause standard.
  • Second, and more fundamentally, requiring that law enforcement officers have probable cause to believe their suspect resides at and is present within the dwelling before making a forced entry is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.

Some of Vasquez-Algarin’s reasoning echoes that of the Sixth Circuit, both noting that on several occasions the Supreme Court has used the same “reason to believe” language from Payton “as a stand-in for ‘probable cause.’” (3d Cir. 2016).

The DC Circuit, First, Second, and Tenth Circuits have held that the standard for reasonable belief falls short of the standard for probable cause belief. The DC Circuit reasons that it is “more likely . . . that the Supreme Court in Payton used a phrase other than ‘probable cause’ because it meant something other than ‘probable cause.’” (2005). The Tenth Circuit equates probable cause requirements with calls for “actual knowledge of the suspect’s true residence.” (1999). It believes extending probable cause as the standard for a “reasonable basis” for determining that an individual “lived in the residence and . . . could be found within at the time of entry,” would “effectively make Payton a dead letter.” Valdez v. McPheters (10th Cir. 1999).

The Third Circuit claims that the Supreme Court’s choice of stand-in language undermines the DC Circuit’s conclusion that Payton’s ‘reason to believe’ language should be interpreted loosely. The Third Circuit explains that the Supreme Court’s use of “reason to believe” as a stand-in for “probably cause” indicates the Court’s belief that the standard for the two is the same.

Looking Forward

The incongruence in requirements for only arrest warrants versus arrest and search warrants creates such a fundamental constitutional discrepancy that the Supreme Court should address it soon.

For the last 36 years, courts have been left to grapple with the interpretation of the Court’s language in Payton, and the circuits seem to have pretty evenly split on the meaning of a “reasonable belief.” Until the Court addresses the standard for reasonable belief varying degrees of scrutiny will continue to be imposed on officers, and the degree of protection of an individual’s right to be secure in their home will remain grey.