A federal appeals court in New Orleans upheld an incarcerated trans woman’s surgery denial on Friday, Reuters reports, ruling that doing so “does not inflict cruel and unusual punishment” under the Eighth Amendment.
In a 2-1 decision for the U.S Court of Appeals for the Fifth Circuit, Judge James C. Ho writes that a Texas prison did not violate Vanessa Lynn Gibson’s constitutional rights by refusing to provide her with gender reassignment surgery.
“A state does not inflict cruel and unusual punishment by declining to provide sex reassignment surgery to a transgender inmate,” Ho writes. “Under established precedent, it can be cruel and unusual punishment to deny essential medical care to an inmate. But that does not mean prisons must provide whatever care an inmate wants.”
Ho, a Trump-appointed judge who took office in 2018, misgenders and deadnames Gibson, who is currently incarcerated in a men’s prison, throughout the decision. He also casts doubt on the medical necessity of trans-affirming surgeries, claiming that it is “a matter of significant disagreement within the medical community.”
The World Professional Association of Transgender Health — backed by the American Medical Association, the Endocrine Society, the American Psychiatric Association, the World Health Organization, and many other groups — would disagree with his assertion. “Gender affirming/confirming surgery, also known as sex reassignment surgery, plays an undisputed role in contributing toward favorable outcomes” in treating gender dysphoria, the organization said in a 2016 statement on the medical necessity of sex reassignment surgery.
Trans prisoners’ access to gender-affirming surgery has entered mainstream news coverage in recent months thanks to some of the candidates seeking the Democratic nomination for president in the 2020 election.
Sen. Kamala Harris has come under scrutiny for denying two trans prisoners’ gender-affirming surgeries when she was California’s attorney general. She has since said that she takes “full responsibility” for doing so but has not yet clarified where she stands on the issue. Sen. Elizabeth Warren recently came out in favor of state-funded surgeries for trans prisoners, though in the past she has said that it’s not “a good use of taxpayer dollars.” Pete Buttigieg also said that he supported such treatment in a recent interview with Out.
“I consider it to be a medical necessity,” the South Bend mayor said. “There is nothing unreasonable about it.”