Connect with us

National

9th Circuit: Gender reassignment surgery must be granted to trans inmates

Court rules denying procedure violates 8th Amendment

Published

on

transgender health, gay news, Washington Blade
The Ninth Circuit affirmed an order granting gender reassignment surgery to trans inmate.

Denying gender reassignment surgery to transgender prison inmates is prohibited under the U.S. Constitution, a federal appeals court ruled Friday.

A three-judge panel on the U.S. Ninth Circuit Court of Appeals issued the per curiam decision on the basis that gender reassignment surgery is medically necessary, so denying the procedure to prison inmates violates the Eighth Amendment.

“We hold that where, as here, the record shows that the medically necessary treatment for a prisoner’s gender dysphoria is gender confirmation surgery, and responsible prison officials deny such treatment with full awareness of the prisoner’s suffering, those officials violate the Eighth Amendment’s prohibition on cruel and unusual punishment,” the decision says.

The three-judge panel that issued the ruling consists of U.S. Circuit Judge Mary Margaret McKeown, a Clinton appointee; U.S. Circuit Judge Ronald Gould, another Clinton appointee; and U.S. District Judge Robert Lasnik, another Clinton appointee sitting by designation on the Ninth Circuit.

The ruling affirms taxpayer funds will be used to provide gender reassignment surgery to Adree Edmo, who’s transgender and has been an inmate in the Idaho State Correctional Institution since 2012. Edmo has been ever since she pleaded guilty to sexual abuse of a 15-year-old male at a house party.

Edmo doesn’t have access to her personal funds while she’s incarcerated. The estimated cost of male-to-female gender reassignment surgery can be more than $100,000.

Medical providers have documented Edmo’s feminine presentation since 2012 and she has testified she “continues to actively think about self-castration” in prison, according to the Ninth Circuit decision.

“I am relieved and grateful the court recognized my right to necessary medical treatment, and that I will get the surgery I need,” Edmo said in a statement. “I hope my case helps the State of Idaho understand that they can’t deny medical care to transgender people.”

The case came to the Ninth Circuit upon appeal after U.S. Chief District Judge B. Lynn Winmil in Idaho issued a decision ordering the state to grant gender reassignment surgery to Edmo, who sued the state in 2017 after the Idaho Department of Corrections refused to great her the procedure.

“Although we addressed this appeal on an expedited basis, it has been more than a year since doctors concluded that GCS is medically necessary for Edmo,” the Ninth Circuit decision says. “We urge the state to move forward. We emphatically do not speak to other cases, but the facts of this case call for expeditious effectuation of the injunction.”

The Ninth Circuit affirmed Winmill’s order with respect to granting gender reassignment surgery to Edmo, but remanded to the trial court a separate with respect to whether Corizon, Inc., a private for-profit corporation that provides health care to inmates in Idaho prisons, should be included in the injunction.

The Ninth Circuit is now the only federal appeals court with a standing ruling ordering gender reassignment surgery. Although a three-judge panel on the U.S. First Circuit Court of Appeals ordered the procedure in 2014, the full court later reversed that decision.

Representing Edmo in the case was the National Center for Lesbian Rights, which noted the significance of the decision after it was handed down.

“One of the foundational principles of our Constitution is that the State cannot subject people in its custody to cruel and unusual punishment, including by failing to treat serious medical conditions,” NCLR Senior Staff Attorney Amy Whelan said in a statement. “This ruling is in line not only with long-standing medical evidence, but also with legal rulings across the country that it is dangerous and unconstitutional to deny transgender people access to medically necessary care in prison.”

The Washington Blade has placed a request in with the Boise-based law firm Moore Elia Kraft & Hall, LLP, which is representing the Idaho Department of Corrections, to seek comment on whether the state will seek an “en banc” rehearing before the Ninth Circuit or take up the matter before the U.S. Supreme Court.

The issue of whether transgender inmates are entitled to gender reassignment surgery has been percolating for some time and has dogged Democratic presidential candidate Kamala Harris, who as attorney general represented the California Department of Corrections in seeking to deny the procedure to two inmates.

As media scrutiny of the cases grew, Harris helped the California Department of Corrections reach an agreement in which to set up a process where transgender inmates could obtain transition-related care, including gender reassignment surgery. Both of the transgender inmates in those cases were able to obtain gender reassignment surgery, one through the state health care system after obtaining parole.

It should be noted Harris didn’t seek to the agreement to grant transgender inmates gender reassignment surgery until after a court already ordered one the transgender inmates be granted the procedure. At least one transgender advocate in California has also said the California Department of Correction has built a reputation for not fulfilling the agreement reached on behalf of transgender inmates.

Harris, in a statement provided to the Washington Blade from her presidential campaign, said she supports the Ninth Circuit decision in the Edmo case.

“This ruling rightly reaffirms the right to adequate and comprehensive health care, including transition-related care for those at correctional facilities,” Harris said. “Everyone deserves access to compassionate and comprehensive care.”

Continue Reading
Advertisement

homepage news

Biden names civil rights veteran to U.S. Education Dept.

Catherine Lhamon’s portfolio will include LGBTQ rights, sexual misconduct, racial discrimination

Published

on

Nominee for Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education Catherine Lhamon. (Photo public domain))

The White House announced Thursday that President Joe Biden has nominated Catherine Lhamon to serve as the Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education.

Lhamon currently serves as a Deputy Assistant to the President and Deputy Director of the Domestic Policy Council for Racial Justice and Equity at the White House, where she manages the President’s equity policy portfolio. She is a former attorney for the American Civil Liberties Union, (ACLU) and served as chair of the U.S. Commission on Civil Rights from 2017 to 2021.

She has also served as Legal Affairs Secretary to California Governor Gavin Newsom.

Her portfolio at Education, where she previously served in the same position under former President Barack Obama, will include LGBTQ rights, sexual misconduct and racial discrimination in the nation’s K-12 schools, universities and colleges. Lhamon was Assistant Secretary for Civil Rights at the Department of Education, to which President Obama nominated her and the Senate confirmed her in 2013.

“I am thrilled that President Biden is nominating Catherine Lhamon to serve as Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education. Catherine has devoted her career to ensuring equity is at the core of all her work,” U.S. Secretary of Education Miguel Cardona said in a statement released by his office Thursday.

“She has a strong record of fighting for communities of color and underserved communities, whether as the current Deputy Director of the Domestic Policy Council, the former chair of the U.S. Commission on Civil Rights, or as a civil rights educator at Georgetown University. We are thrilled to have Catherine serving as Assistant Secretary for Civil Rights and know she will continue to fight for fairness, equity, and justice for all of America’s students.”

Lhamon has also litigated civil rights cases at National Center for Youth Law, Public Counsel Law Center, and the ACLU Foundation of Southern California.  Lhamon taught federal civil rights appeals at Georgetown University Law Center in the Appellate Litigation Program and clerked for the Honorable William A. Norris on the United States Court of Appeals for the Ninth Circuit.

“Catherine Lhamon is the right choice to lead the Department of Education’s civil rights division at such a critical time for the country and the agency. There is much work to do in order to roll back the harmful policies and legacies of Betsy DeVos, from her attacks on transgender students to her unconscionable revocation of discriminatory discipline guidance and rewrite of Title IX rules,” Adele Kimmel, Director of the Students’ Civil Rights Project at Public Justice told the Blade in an email.

“During her previous tenure in the same job, Catherine embraced equality, enforced Title IX and ensured students had an ally inside the federal government. She will do so again, and the Senate should move to quickly confirm her so she can begin the work of restoring the Department’s commitment to protecting the civil rights and dignity of students and implementing the Biden Administration’s pledge to undo the damage that DeVos has done,” Kimmel added.

Born in Virginia and raised in California, Lhamon graduated from Amherst College and Yale Law School. Lhamon and her husband and two daughters are transitioning between California and Maryland.

Continue Reading

National

Family of transgender woman who died in ICE custody sues federal government

Roxsana Hernández passed away in N.M. in 2018

Published

on

A picture of Roxsana Hernández, a transgender Honduran woman with HIV who died in U.S. Immigration and Customs Enforcement custody in 2018, hangs on a wall inside the offices of Colectivo Unidad Color Rosa, an LGBTQ advocacy group in San Pedro Sula, Honduras. (Washington Blade photo by Michael K. Lavers)

 

The family of a transgender woman with HIV who died in U.S. Immigration and Customs Enforcement custody in 2018 has sued the federal government.

The Transgender Law Center and two immigration lawyers — Daniel Yohalem and R. Andrew Free — in 2020 filed a lawsuit in U.S. District for the District of New Mexico against five private companies who were responsible for Roxsana Hernández’s care.

The lawsuit named Management and Training Corporation, LaSalle Corrections, Global Precision Systems, TransCor America and CoreCivic as defendants. The Transgender Law Center, Yohalem and Grant and Eisenhofer Law on Wednesday petitioned the court to add the federal government to the lawsuit.

“This amended complaint adds the United States, including U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and the United States Department of Homeland Security (DHS) to the list of entities who had a direct role in Roxsana’s death,” said the Transgender Law Center in a press release.

Hernández, who was from Honduras, entered CBP custody on May 9, 2018, when she asked for asylum at the San Ysidro Port of Entry in San Diego. She arrived at the Cibola County Correctional Center, a facility in Milan N.M., that CoreCivic operates, a week later.

Hernández was admitted to Cibola General Hospital in Grants, N.M., shortly after she arrived at the privately-run detention center. Hernández died at Lovelace Medical Center in Albuquerque, N.M., on May 25, 2018.

The lawsuit, among other things, alleges Management and Training Corporation personnel “denied Roxsana and her fellow detainees food, water and restroom access throughout their transfer” from California to a facility in San Luis, Ariz., that LaSalle Corporations operates. The lawsuit also states Hernández did not receive necessary medical care from LaSalle Corporations, Global Precision Systems and TransCor personnel as they transported her to the Cibola County Correctional Center.

CoreCivic officers, according to the lawsuit, delayed Hernández’s medical care once she was hospitalized.

An autopsy the New Mexico Office of the Medical Investigator performed concluded Hernández died from Castleman disease associated with AIDS.

A second autopsy that former Georgia Chief Medical Examiner Kris Sperry performed at the Transgender Law Center’s request concluded the cause of death was “most probably severe complications of dehydration superimposed upon HIV infection, with the probable presence of one or more opportunistic infections.” The second autopsy also found “evidence of physical abuse” that included bruising on Hernández’s rib cage and contusions on her body.

“Defendants’ discriminatory, negligent, and reckless acts and omissions: (a) caused Roxsana to suffer severe emotional and physical distress; (b) created an unreasonable risk that Roxsana’s condition would deteriorate, especially in light of her known HIV-positive status; (c) caused Roxsana’s condition to deteriorate; (d) diminished the opportunity for Roxsana’s condition to improve; (e) caused her to lose her chance to survive and participate in the federal immigration process; and (f) ultimately, caused her death,” reads the motion the Transgender Law Center filed on Wednesday.

“My sister came to the U.S. in search of safety and protection from the horrific violence she experienced as a trans woman in Honduras, and what she found instead was abuse, discrimination and neglect,” said Hernández’s sister, Jenny Hernández Rodríquez, in the Transgender Law Center press release. “The tragic fact that she is no longer with us is a direct result of that discrimination and neglect.”

A spokesperson for the Department of Homeland Security — which oversees ICE and CBP — with whom the Washington Blade spoke on Thursday declined to comment.

The Cibola County Correctional Center in Milan, N.M. (Photo courtesy of U.S. Immigration and Customs Enforcement)

Hernández’s death sparked widespread outrage among immigration advocates. Her case also intensified calls for ICE to release all trans women in their custody.

The Transgender Law Center, the Rapid Defense Network and the Ballard Spahr law firm in April 2020 filed a class action lawsuit that demanded the release of all trans people in ICE custody.

More than 40 Democratic members of the U.S. House of Representatives in January 2020 called for ICE to release all trans people in their custody. Illinois Congressman Mike Quigley on Thursday during a House Appropriations Committee hearing asked Acting ICE Director Tae Johnson about the treatment of trans people in his agency’s custody.

“We have made some efforts on sort of improving our training and identifying specific facilities which would focus on housing these individuals in a less restrictive environment but there’s always more work we can do,” said Johnson. “We’re looking at all aspects of our vulnerable population to include transgender, and this is going to continue to be a priority for us as we move forward in assessing our detention framework.”

A unit for trans women in ICE custody opened at the Cibola County Correctional Center in 2017. It closed in 2020.

Continue Reading

National

Biden administration to ban discrimination against LGBTQ patients

Published

on

The Biden administration announced on Monday it would enforce civil rights protections under Obamacare to prohibit discrimination in health care against patients for being LGBTQ, reversing policy during the Trump years excluding transgender status as a protected characteristic under the law.

The Department of Health & Human Services declared it would enforce Section 1557 of the Affordable Care Act, which prohibits discrimination in health care on the basis of sex, and begin to take up cases of discrimination based on sexual orientation and gender identity.

HHS Secretary Xavier Becerra said in a statement the Supreme Court has “made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation.”

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” Becerra said. “It is the position of the Department of Health and Human Services that everyone — including LGBTQ people — should be able to access health care, free from discrimination or interference, period.”

The move is consistent with the executive order President Biden signed on his first day in office directing federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the furthest extent possible. Federal agencies were directed to comply within 100 days of the executive order, which is about now and a short time after Biden’s first 100 days in office.

The announcement with respect to Section 1557 comes on the same day as the hearing took place this morning in Bagly v. HHS, a case before a federal court in Massachusetts challenging Trump’s undoing of transgender protections under the law. An attorney with the U.S. Justice Department announced a new notice of proposed rule-making is coming with respect to Section 1557.

Sharita Gruberg, vice president for the LGBTQ Research and Communications Project at the Center for American Progress, said in a statement the change “assures LGBTQ people that their rights will be upheld at the doctor’s office, vaccine sites, and everywhere else they seek health care and coverage.”

“The administration’s announcement that it will enforce these protections are a critical step toward addressing vaccine hesitancy among LGBTQ people, a population that has been disproportionately impacted by the pandemic and seriously harmed by the previous administration’s attempts to permit discrimination against LGBTQ patients, Gruberg added.

The past three administrations have instituted policy on LGBTQ protections based on their interpretation of Section 1557. Each move had varying implications and directions for LGBTQ patients.

The Obama administration issued a rule in 2016 interpreting Section 1557 to apply to cases of anti-transgender discrimination and discrimination against women who have had abortions, which was consistent with court rulings at the time. However, that move was enjoined by a nationwide court order in Texas as a result of litigation filed by Texas Attorney General Ken Paxton.

The Trump administration, shortly after the Supreme Court’s ruling in Bostock, made final a regulation proposed last year rescinding the Obama administration’s transgender protections under Section 1557. Faced with criticism, the Trump administration defended itself by saying its move was consistent with the court order in Texas, although it seemed to ignore the decision from the higher court.

The new rule from HHS goes above and the beyond the Obama administration by instituting protections based on both sexual orientation and gender identity. It wasn’t immediately clear whether the proposed rule would be a new regulation entirely, or seek to modify the changes that were made in the two previous administrations. The Blade has placed a request seeking comment with HHS.

Susan Bailey, president of the American Medical Association, said in a statement the new HHS rule is a welcome change after the Trump administration rescinded protections for transgender patients.

“It’s unfortunate that such an obvious step had to be taken; the AMA welcomes this common-sense understanding of the law,” Bailey said. “This move is a victory for health equity and ends a dismal chapter in which a federal agency sought to remove civil rights protections.”

Discrimination in health care is an experience transgender people commonly report. The U.S. Transgender Survey in 2015 found one-third of responders said they had at least one negative experience in health care related to being transgender. Further, 23 percent of responders said they didn’t seek health care because they feared being mistreated and one-third said they didn’t go to a provider because they couldn’t afford it.

A Center for American Progress survey from 2018 had similar findings with respect to transgender people and patients with being gay, lesbian and bisexual or queer. Eight percent of responders said a doctor refused to see them because of their perceived or actual sexual orientation, while 28 percent of providers said a doctor refused to see them because of their actual or perceived sexual orientation.

Hospitals, especially religiously affiliated providers, refusing to provide transition-related care, including gender assignment surgery, is another frequently reported incident for transgender patients. The American Civil Liberties Union, for example, has filed litigation against hospitals under Section 1557 for refusing to perform the procedure.

Rachel Levine, assistant secretary of health and the first openly transgender presidential appointee to obtain Senate confirmation, hailed the HHS rule change in a statement.

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” Levine said. “No one should be discriminated against when seeking medical services because of who they are.”

Although the Biden administration’s announcement is a welcome move for LGBTQ advocacy groups, the change is not without critics.

John Banzhaf, a law professor at George Washington University who declares himself a supporter of transgender rights, said the policy could have unintended consequences, which he said has become evident in the British health system.

“[Transgender] individuals with a penis but no vagina are being asked to have medical tests on their non-existent cervices, while [transgender] persons with a vagina and cervix will not be asked, under new guidelines which appear to place lives at risk and encourage a physically impossible medical exam on organs which simply do not exist,” Banzhaf said. “And, carrying this absurdity to its totally illogical conclusion, a patient with a penis and a full beard was offered a cervical test because, despite his clearly masculine appearance and style of dress, he registered himself as being gender neutral.”

Continue Reading
Advertisement
Advertisement

Follow Us @washblade

Sign Up for Blade eBlasts

Trending