A three-judge panel on the U.S. Ninth Circuit Court of Appeals issued the stay on Thursday for the procedure for Michelle-Lael Norsworthy, who’s being denied gender reassignment surgery by the California Department of Corrections & Rehabilitation.
Among the reasons cited by the court for the stay were serious legal questions in the litigation and the fact that it would become moot if Norsworthy receives the surgery before the completion of appeal.
Additionally, the appeals court states the previously established briefing schedule remains in effect and places the case on the calendar for the week of August 10 in San Francisco.
The three-judge panel that issued the stay consists of U.S. Circuit Judge Alfred Goodwin, a Nixon appointee; U.S. Circuit Judge Joseph Jerome Farris, a Carter appointee; and U.S. Circuit Judge Michelle Friedland, an Obama appointee.
Deborah Hoffman, assistant secretary of communications for the California Department of Corrections & Rehabilitation, expressed satisfaction with the decision.
“We are pleased with the stay, which will allow the Ninth Circuit to review the merits of this appeal,” Hoffman said.
Last month, U.S. District Judge Jon Tigar ordered the state to grant Norsworthy gender reassignment surgery on the basis that denying her the procedure constituted cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution.
But California Attorney General Kamala Harris on behalf of the state appealed the decision to the Ninth Circuit. After the district court denied her a stay on the decision, she sought and obtained one from the appeals court.
On Moy 8, Harris filed her opening brief in the case before the Ninth Circuit, arguing gender reassignment surgery isn’t necessary for Norsworthy because she’s receiving other treatment and not every physician believes the treatment is necessary.
“The record shows that Ms. Norsworthy has received extensive medical and mental-health treatment for her gender dysphoria for over 15 years, including hormone therapy, counseling, and access to brassieres and other female clothing — all of which has transformed her physical appearance and helped her to successfully consolidate her gender identity,” Harris writes. “This 15-year treatment history in no way evinces indifference — much less deliberate indifference — to Ms. Norsworthy’s medical and psychological needs.”
But on the same day the stay was issued, a board of parole found that Norsworthy, who’s serving time for second-degree murder, is suitable for parole.
According to the California Department of Corrections & Rehabilitation, the suitability finding is subject to a decision review period that may take up to 120 days. Moreover, if the grant of parole is made final as a result of the review, the governor may conduct an independent review of the decision. Under California law, the governor has up to 30 days to reverse, modify, affirm or decline to review the decision.
Representing Norsworthy in her lawsuit is the San Francisco-based Transgender Law Center and the global law firm Morgan, Lewis & Bockius LLP.
Ilona Turner, legal director of Transgender Law Center, said her organization is “thrilled” Norsworthy’s parole hearing was successful, but expressed disappointment with the stay in the litigation.
“Being housed with men, sexually assaulted, and denied critical health care these past thirty years, Michelle has suffered greatly in prison and continues to suffer every day she is denied the surgery she desperately needs,” Turner added. “Whether you’re transgender or not, everyone should find it troubling that the state is trying to further delay the care that all the evidence showed is critical for Michelle’s health. We are disappointed that the stay was granted, as delays like this cause Michelle serious harm every single day.”
If Norsworthy obtains parole and the state continues to deny her gender reassignment surgery, Turner said her client could find support networks and services upon release, which includes access to the procedure through Medi-Cal.