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Fifth Circuit Holds Transgender Prisoner Not Entitled to Sex Reassignment Surgery

by Matt Clarke 

In a 23-page opinion issued on March 29, 2019, the Fifth Circuit Court of Appeals held the Texas Department of Criminal Justice (TDCJ) did not violate the Eighth Amendment by refusing to provide an evaluation for sex reassignment surgery, or the surgery itself, to a prisoner diagnosed with gender dysphoria.

Texas state prisoner Scott Lynn Gibson has been living as a woman, using the name Vanessa Lynn Gibson, since she was 15 years old. After she threatened self-castration, Gibson was diagnosed with gender dysphoria and began receiving hormone therapy and mental health counseling. She repeatedly requested and was denied sex reassignment surgery before filing a federal civil rights action against the TDCJ, alleging departmental policy G-51.11, which governs the treatment of transgender prisoners, violated the Eighth Amendment’s prohibition against cruel and unusual punishment by effectively prohibiting sex reassignment surgery. 

The TDCJ filed a motion for summary judgment on the basis of qualified and sovereign immunity, which was denied by the district court. However, the court granted summary judgment on the merits on its own initiative, and Gibson appealed. 

The Fifth Circuit appointed University of Virginia law professor Stephen Baraga to represent Gibson. He requested a ruling on the merits, effectively waiving several procedural errors made by the district court, including the failure to warn Gibson of the potential summary judgment ruling on the merits and giving her a chance to respond and submit evidence. 

Writing for the majority, Circuit Judge James C. Ho noted that whether sex reassignment surgery was necessary for or successful in the treatment of gender dysphoria was “fiercely question[ed]” among medical experts, many of whom believe non-invasive hormone therapy is a better approach. Ho garnered those facts not from the sparse and undeveloped record in Gibson’s case but rather from the First Circuit’s en banc opinion in Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014), cert. denied, which reversed a district court’s judgment ordering Massachusetts prison officials to provide sex reassignment surgery to a transgender prisoner. [See: PLN, Dec. 2014, p.18].

Gibson relied heavily on the standard of care promulgated by the World Professional Association for Transgender Health (WPATH), which recommends sex reassignment surgery. However, testimony in Kosilek indicated that those standards were not universally accepted and may have been driven by political considerations. 

The lack of a near-universal consensus by medical experts doomed Gibson’s claim. “[I]t can be cruel and unusual punishment to deny essential medical care to an inmate,” wrote Ho. “But that does not mean prisons must provide whatever care an inmate wants.” 

The Fifth Circuit noted that only California had ever provided sex reassignment surgery to a prisoner, and that was as part of a settlement in a lawsuit. [See: PLN, April 2017, p.13]. Because the Eighth Amendment does not require a prison to provide surgery that is not widely accepted as being necessary and effective in treating gender dysphoria, it cannot require an evaluation of individual suitability for the not-required surgery. Therefore, the judgment of the district court was affirmed. As an indication of the Court of Appeals’ apparent contempt for Gibson, it referred to her using masculine pronouns throughout its ruling.

One of the three appellate judges filed a strongly worded 27-page dissenting opinion that challenged the use of the findings in Kosilek and criticized the majority for ignoring the procedural errors in the case. See: Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019). 


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Related legal case

Gibson v. Collier