In addition to appealing to the U.S. Ninth Circuit Court of Appeals, Harris seeks a stay from U.S. District Judge Jon Tigar on his preliminary injunction requiring the Department of Corrections & Rehabilitation to offer the procedure to Michelle-Lael Norsworthy, who’s incarcerated at Mule Creek State Prison in Ione, Calif., for second-degree murder.
“Norsworthy has been treated for gender dysphoria for over 20 years, and there is no indication that her condition has somehow worsened to the point where she must obtain sex-reassignment surgery now rather than waiting until this case produces a final judgment on the merits,” Harris writes.
As she calls for a stay on the preliminary injunction, Harris also asks the court to decide the motion on shortened time given the Court’s order that the gender reassignment surgery be carried out “as promptly as possible.” Under her request, attorneys for Norsworthy would file a response by Wednesday and the court would make a decision by April 17.
On April 2, Tiger ordered the Department of Corrections & Rehabilitation to provide gender reassignment surgery to Norsworthy on the basis that denying her the treatment constitutes cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution.
Harris argues a stay is appropriate because she says Norsworthy has received sufficient medical treatment for gender dysphoria, she’s failed to demonstrate she faces immediate injury, the state will be irreparably harmed if a stay isn’t granted and gender reassignment surgery is a procedure that can wait.
“There is no evidence that Norsworthy is in serious, immediate physical or emotional danger,” Harris writes. “Norsworthy has been receiving hormone therapy for her gender dysphoria since 2000, and continues to receive hormone therapy and other forms of treatment.”
Harris, who’s the top lawyer for California, is listed on the motion for a stay along with Supervising Deputy Attorney General Jay Russell, Supervising Jose Zelidon-Zepeda and other state attorneys.
It remains to be seen whether the action will be politically harmful for Harris, who has a reputation for being a champion of LGBT rights, as she seeks the Democratic nomination to become the next U.S. senator for California in the 2016 election.
A state spokesperson has reportedly said the operation would be the first in California prison history and could cost as much as $100,000. But the San Fransisco-based Transgender Law Center maintains the actual cost for Norsworthy’s needs range from $15,000 to $30,000, which the organization is far less than what the state has already spent on attorney fees in the lawsuit.
The attorney general’s office and the Department of Corrections & Rehabilitation declined further comment on appeal and the request for a stay.
Representing Norsworthy in her lawsuit is the Transgender Law Center and the global law firm Morgan, Lewis & Bockius LLP.
Ilona Turner, legal director for the Transgender Law Center, expressed disappointment in the decision to seek to delay of care “that Michelle desperately needs.”
“The state’s efforts will result in further waste of taxpayer money on needless attorney costs,” Turner said. “Nevertheless, we remain confident that Judge Tigar’s decision will stand. The Department of Justice brief filed last week in another case further reinforced that blanket policies against providing healthcare needed by transgender inmates violate the most fundamental principles of our Constitution. The state provides essential medical care to all people being held in prison, and Michelle should not be an exception just because of who she is.”