Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 1 of 27
APPEAL,IRDONE,LC16,PROTO,RFSETL,STAYED
U.S. District Court District of Idaho (LIVE Database)Version 6.3 (Boise − Southern)
CIVIL DOCKET FOR CASE #: 1:17−cv−00151−BLW

Edmo v. Corizon Incorporated et al Assigned to: Judge B. Lynn Winmill

Case in other court:

USCA for the 9th Circuit, 19−35017

USCA for the 9th Circuit, 19−35019

9CCA, 19−35552

US Court of Appeals for the Ninth Circuit, 19−35917

Cause: 42:1983 Prisoner Civil Rights

Plaintiff

Date Filed: 04/06/2017 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Adree Edmo also known as Mason Edmo

represented by Alexander Chen National Center for Lesbian Rights 870 Market St, Suite 370 San Francisco, CA 94102 415−392−6257 Email: achen@nclrights.org LEAD ATTORNEY PRO HAC VICE

Amy Whelan National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 415−365−1338 Email: awhelan@nclrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Craig Durham Ferguson Durham, PLLC 223 N. 6th Street, Suite 325 Boise, ID 83702 208−724−2617 Fax: 208−906−8663 Email: chd@fergusondurham.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer Hadsell Stormer & Renick LLP 128 N Fair Oaks Avenue Pasadena, CA 91103 626−585−9600 Email: dstormer@hadsellstormer.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lori E Rifkin Rifkin Law Office 2855 Telegraph Ave Suite 517 Berkeley, CA 94705 5104144132 Email: lrifkin@rifkinlawoffice.com LEAD ATTORNEY

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 2 of 27
PRO HAC VICE ATTORNEY TO BE NOTICED
Shaleen Shanbhag Hadsell Stormer & Renick LLP 128 N Fair Oaks Avenue Pasadena, CA 91103 626−585−9600 Email: sshanbhag@hadsellstormer.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Deborah A Ferguson Ferguson Durham, PLLC 223 N. 6th Street Suite 325 Boise, ID 83702 208−484−2253 Fax: 208−906−8663 Email: daf@fergusondurham.com ATTORNEY TO BE NOTICED
Julie Wilensky National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 415−365−6257 Email: jwilensky@nclrights.org PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Idaho State Board of Corrections TERMINATED: 04/14/2017 Defendant Idaho Department of Correction
Defendant Corizon Incorporated

represented by Brady James Hall Moore Elia Kraft & Hall, LLP PO Box 6756 Boise, ID 83702 208−336−6900 Email: brady@melawfirm.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Swank Crecelius Moore Elia Kraft & Hall, LLP 702 W Idaho Street #800 Boise, ID 83702 208−336−6900 Email: marisa@melawfirm.net TERMINATED: 10/25/2019
represented by Dylan Alexander Eaton Parson Behle & Latimer 800 W. Main Street Suite 1300 Boise, ID 83702

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 3 of 27

Defendant Kevin Kempf TERMINATED: 09/01/2017
Defendant Richard Craig
Defendant Rona Siegert
Defendant Aaron Hofer TERMINATED: 04/14/2017 Defendant Howard Keith Yordy

208−562−4900 Fax: 208−562−4901 Email: deaton@parsonsbehle.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
J Kevin West PARSONS BEHLE & LATIMER 800 W. Main St., Ste. 1300 Boise, ID 83702 208−562−4900 Fax: 208−562−4901 Email: kwest@parsonsbehle.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brady James Hall (See above for address) ATTORNEY TO BE NOTICED
Bryce C Jensen Parsons Behle & Latimer 201 South Main Street Suite 1800 Salt Lake City, UT 84111 801−536−1234 Email: bjensen@parsonsbehle.com ATTORNEY TO BE NOTICED
represented by Brady James Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brady James Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Swank Crecelius (See above for address) TERMINATED: 10/25/2019
represented by Brady James Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Swank Crecelius (See above for address) TERMINATED: 10/25/2019
represented by Brady James Hall (See above for address)

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 4 of 27

Defendant Scott Eliason
Defendant Murray Young
Defendant Catherine Whinnery

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Swank Crecelius (See above for address) TERMINATED: 10/25/2019
represented by Dylan Alexander Eaton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J Kevin West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brady James Hall (See above for address) ATTORNEY TO BE NOTICED
Bryce C Jensen (See above for address) ATTORNEY TO BE NOTICED
represented by Dylan Alexander Eaton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J Kevin West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brady James Hall (See above for address) ATTORNEY TO BE NOTICED
Bryce C Jensen (See above for address) ATTORNEY TO BE NOTICED
represented by Dylan Alexander Eaton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J Kevin West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brady James Hall (See above for address) ATTORNEY TO BE NOTICED
Bryce C Jensen (See above for address) ATTORNEY TO BE NOTICED

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 5 of 27

Defendant Robin Sandy TERMINATED: 09/01/2017 Defendant David McClusky TERMINATED: 09/01/2017 Defendant Cindy Wiison TERMINATED: 09/01/2017 Defendant Henry Atencio
Defendant Jeff Zumda
Defendant − Does 1−15

represented by Brady James Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Swank Crecelius (See above for address) TERMINATED: 10/25/2019
represented by Brady James Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Swank Crecelius (See above for address) TERMINATED: 10/25/2019

Date Filed 04/06/2017 04/06/2017
04/06/2017
04/06/2017 04/06/2017
04/06/2017 04/06/2017

# Docket Text
1 APPLICATION for Leave to Proceed in forma pauperis by Plaintiff Adree Edmo. Responses due by 4/27/2017 (jp) (Entered: 04/07/2017)
2 Statement of Prisoner Trust Fund Account, This is a sealed document. re 1 APPLICATION for Leave to Proceed in forma pauperis by Adree Edmo. (jp) (Entered: 04/07/2017)
3 COMPLAINT against All Defendants, filed by Adree Edmo. (Attachments: # 1 complaint continued, # 2 complaint continued, # 3 complaint continued)(jp) (Entered: 04/07/2017)
4 EXHIBITS TO COMPLAINT by Plaintiff Adree Edmo re 3 Complaint. (Attachments: # 1 Exhibits continued, # 2 Exhibits continued)(jp) (Entered: 04/07/2017)
5 MOTION to Appoint Counsel by Plaintiff Adree Edmo. Responses due by 4/28/2017 (Attachments: # 1 Memorandum in Support, # 2 Affidavit in support, # 3 Exhibits)(jp) (Entered: 04/07/2017)
6 MOTION for Service by a US Marshalby Plaintiff Adree Edmo. Responses due by 4/27/2017 (jp) (Entered: 04/07/2017)
7 MOTION for Temporary Restraining Order and Preliminary Injunction ( Responses due by 4/27/2017)by Plaintiff Adree Edmo. (Attachments: # 1 Affidavit in support, # 2 proposed order)(jp) (Entered: 04/07/2017)

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 6 of 27

04/07/2017 04/07/2017 04/13/2017 04/14/2017
04/14/2017
04/17/2017
04/17/2017
05/12/2017 05/12/2017 05/17/2017 05/17/2017

8 ORDER of Conditional Filing − (jp)
9 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to Adree Edmo re 3 Complaint (jp)
10 MEMORANDUM of Law in Support of 7 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Adree Edmo.(cjs)
11 ORDER FOR IN FORMA PAUPERIS STATUS AND WITHDRAWAL OF INMATE FILING FEE FROM PRISON TRUST ACCOUNT. NOW THEREFORE IT IS HEREBY ORDERED: Plaintiff's Application for Leave to Proceed in Forma Pauperis 1 is GRANTED. The Director of the Idaho Department of Correction or his designee shallcollect from Plaintiff's prison trust account the $350.00 balance of thefiling fee and shall forward payments to the Clerk of Court. (Notice sent to Finance). Signed by Judge Ronald E. Bush. (A copy of this order has been mailed to the Director of the Idaho Dept. of Correction.)(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
12 INITIAL REVIEW ORDER. IT IS ORDERED: Plaintiff may proceed on (1) her Eighth Amendment medical treatment claims, her related negligence or medical malpractice claims, and her equal protection claims, against Defendants Corizon, Kempf, Craig, Siegert, Yordy, Eliason, Young, and Whinnery. Defendants Corizon, Kempf, Craig, Siegert, Yordy, Eliason, Young, and Whinnery shall be allowed to waive service of summons by executing, or having their counsel execute, the Waiver of Service of Summons and returning it to the Court within 30 days. Plaintiff's Motion for Appointment of Counsel 5 is GRANTED IN PART, to the extent that court staff shall begin a search for pro bono counsel for Plaintiff. Because the Court will allow Defendants an opportunity to waive service of process, Plaintiff's Motion for Service by a U.S. Marshal 6 is MOOT. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) Modified on 4/14/2017 − Due to time of order being docketed, mailings will go out on Monday 4/17/2017 (st).
13 COURT'S CERTIFICATE of Service. I certify that I caused a copy of the following documents to be mailed to the following named persons: copies of Complaint (dkt #3), Motion for Temporary Restraining Order and Preliminary Injunction (dkt #7), Order (dkt #12), and attached Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver of Service of Summons: Mark Kubinski, Idaho Department of Corrections, 1299 North, Orchard, Ste. 110, Boise, ID 83706 and a copy of Order (dkt #12) and a copy of the attached Notice of Lawsuit and Request for Waiver of Service of Summons to: Adree Edmo #94691, ISCI, PO Box 14, Boise, ID 83707(st)
14 COURT'S CERTIFICATE of Service. I certify that I caused a copy of the following documents to be mailed to the following named persons: copies of Complaint (dkt #3), Motion for Temporary Restraining Order and Preliminary Injunction (dkt #7), Order (dkt #12), and attached Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver of Service of Summons: Kevin West and Dylan Eaton, Parsons Behle & Latimer, 800 W. Main Street,, Suite 1300, Boise, ID 83702 and Order (dkt #12) and a copy of the attached Notice of Lawsuit and Request for Waiver of Service of Summons to: Adree Edmo #94691, ISCI, PO Box 14, Boise, ID 83707(st)
15 NOTICE of Appearance by Brady James Hall on behalf of Richard Craig, Kevin Kempf, Rona Siegert, Howard Keith Yordy (Hall, Brady)
16 WAIVER OF SERVICE Returned Executed by Richard Craig, Rona Siegert, Howard Keith Yordy, Kevin Kempf. Richard Craig waiver sent on 4/19/2017, answer due 6/19/2017; Rona Siegert waiver sent on 4/19/2017, answer due 6/19/2017; Howard Keith Yordy waiver sent on 4/19/2017, answer due 6/19/2017; Kevin Kempf waiver sent on 4/19/2017, answer due 6/19/2017. (Hall, Brady)
17 NOTICE of Appearance by Dylan Alexander Eaton on behalf of Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young (Eaton, Dylan)
18 WAIVER OF SERVICE Returned Executed by Murray Young, Catherine Whinnery, Corizon Incorporated, Scott Eliason. Murray Young waiver sent on 4/17/2017, answer due 6/16/2017; Catherine Whinnery waiver sent on 4/17/2017, answer due 6/16/2017; Corizon Incorporated waiver sent on 4/17/2017, answer due 6/16/2017; Scott Eliason waiver sent on 4/17/2017, answer due 6/16/2017. (Eaton, Dylan)

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 7 of 27

05/17/2017
05/19/2017
06/07/2017 06/07/2017 06/07/2017 06/08/2017
06/08/2017
06/09/2017 06/19/2017 06/19/2017 06/19/2017 06/22/2017 06/23/2017
07/19/2017 08/30/2017

20 MOTION for Leave to Amend 3 Complaint by Plaintiff Adree Edmo. Responses due by 6/7/2017. (cjs) (Additional attachment(s) added on 5/19/2017: # 1 Proposed Amended Complaint part 1 of 4, # 2 Proposed Amended Complaint part 2 of 4, # 3 Proposed Amended Complaint part 3 of 4, # 4 Proposed Amended Complaint part 4 of 4) (cjs). (Entered: 05/19/2017)
19 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel for Corizon Incorporated, Richard Craig, Scott Eliason, Kevin Kempf, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, and Murray Young re 17 Notice of Appearance and 15 Notice of Appearance Consent/Objection to Magistrate due by 7/18/2017. (km) Modified on 5/19/2017 (km). Modified on 5/22/2017 to remove pdf docs that were attached in error (jp).
21 Corporate Disclosure Statement by Corizon Incorporated identifying Corporate Parent Corizon Health, Inc. for Corizon Incorporated.. (Eaton, Dylan)
22 RESPONSE to Motion re 20 MOTION to Amend/Correct 3 Complaint filed by Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young. Replies due by 6/21/2017.(Eaton, Dylan)
23 RESPONSE to Motion re 20 MOTION to Amend/Correct 3 Complaint filed by Richard Craig, Kevin Kempf, Rona Siegert, Howard Keith Yordy. Replies due by 6/21/2017.(Hall, Brady)
24 ORDER GRANTING MOTION TO AMEND AND ORDER OF REASSIGNMENT. Plaintiff's Motion for Leave to Amend 20 is GRANTED. The Clerk of Court shall file the Amended Complaint (currently Dkt. 20−1 through Dkt. 20−4) as a separate docket entry in this case. Defendants shall respond to Plaintiff's Amended Complaint, as well as to Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction Order, within 21 days after entry of this Order. This case is REASSIGNED to the Hon. B. Lynn Winmill, Chief United States District Judge. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 06/09/2017)
25 AMENDED COMPLAINT against Corizon Incorporated, Richard Craig, Scott Eliason, Idaho State Board of Corrections, Kevin Kempf, David McClusky, Robin Sandy, Rona Siegert, Catherine Whinnery, Cindy Wiison, Howard Keith Yordy, and Murray Young, filed by Adree Edmo. (Attachments: # 1 amended complaint continued, # 2 amended complaint continued, # 3 amended complaint continued)(st) (Entered: 06/09/2017)
DOCKET ENTRY NOTICE of Case Number Change. Per Order (docket #24), this case has been reassigned to Judge B. Lynn Winmill. Please use case number 1:17−cv−00151−BLW on all future pleadings. (st)
26 NOTICE of Appearance by Craig Durham on behalf of Adree Edmo (Durham, Craig)
27 NOTICE of Appearance by Deborah A Ferguson on behalf of Adree Edmo (Ferguson, Deborah)
28 Docket entry only − CONSENT to Magistrate Judge filed. (cjs)
29 STIPULATION and joint motion to vacate and reset filing deadlines by Adree Edmo. (Durham, Craig)
30 ORDER. IT IS ORDERED: The parties' Joint Motion and Stipulation to Vacate and Reset Deadlines (Dkt. 29 ) is GRANTED. The parties shall follow the deadlines set forth in the Stipulation. Pursuant to the Stipulation, Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. 7 ) is DENIED without prejudice. Signed by Judge B. Lynn Winmill. Motions terminated: 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Adree Edmo. (km)
The 60 day deadline has expired. Case will remain with District Judge. No more notice of availability will be sent out. Consent deadline(s) termed. (cjs)
31 MOTION FOR PRO HAC VICE APPEARANCE by Amy Whelan. ( Filing fee $ 225 receipt number 0976−1629026.)Craig Durham appearing for Plaintiff Adree Edmo. Responses due by 9/20/2017 (Durham, Craig)

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 8 of 27

08/30/2017 08/30/2017
08/31/2017 08/31/2017 09/01/2017 09/22/2017 10/02/2017 11/01/2017 11/01/2017 11/01/2017 11/01/2017 11/01/2017 11/03/2017

32 MOTION FOR PRO HAC VICE APPEARANCE by Lori E. Rifkin. ( Filing fee $ 225 receipt number 0976−1629035.)Craig Durham appearing for Plaintiff Adree Edmo. Responses due by 9/20/2017 (Durham, Craig)
33 DOCKET ENTRY ORDER approving 31 Motion for Pro Hac Vice Appearance of attorney Amy Whelan for Adree Edmo; approving 32 Motion for Pro Hac Vice Appearance of attorney Lori E Rifkin for Adree Edmo. Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
34 MOTION FOR PRO HAC VICE APPEARANCE by Dan Stormer. ( Filing fee $ 225 receipt number 0976−1629433.)Craig Durham appearing for Plaintiff Adree Edmo. Responses due by 9/21/2017 (Durham, Craig)
35 DOCKET ENTRY ORDER approving 34 Motion for Pro Hac Vice Appearance of attorney Dan Stormer for Adree Edmo. Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
36 AMENDED COMPLAINT (Second) and Exhibits A & B in Support against All Defendants, filed by Adree Edmo. (Attachments: # 1 Summons re Defendant Jeff Zmuda)(Rifkin, Lori)
37 MOTION for Extension of Time to File Answer Responsive Pleading Brady James Hall appearing for Defendants Richard Craig, Kevin Kempf, Rona Siegert, Howard Keith Yordy. Responses due by 10/13/2017 (Hall, Brady)
38 WAIVER OF SERVICE Returned Executed by Adree Edmo. Idaho Department of Corrections waiver sent on 9/13/2017, answer due 11/13/2017; Henry Atencio waiver sent on 9/13/2017, answer due 11/13/2017; Jeff Zumda waiver sent on 9/13/2017, answer due 11/13/2017. (Rifkin, Lori)
39 First MOTION for Partial Summary Judgment IDOC Defendants' First Motion for Dispositive Relief Brady James Hall appearing for Defendants Henry Atencio, Richard Craig, Rona Siegert, Howard Keith Yordy, Jeff Zumda. Responses due by 11/22/2017 (Attachments: # 1 Appendix Statement of Material Facts)(Hall, Brady)
40 JOINDER by Defendants Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young joining 39 First MOTION for Partial Summary Judgment IDOC Defendants' First Motion for Dispositive Relief . (Eaton, Dylan)
41 DECLARATION of Dana Maybon re 39 First MOTION for Partial Summary Judgment IDOC Defendants' First Motion for Dispositive Relief filed by Henry Atencio, Richard Craig, Idaho Department of Corrections, Rona Siegert, Howard Keith Yordy, Jeff Zumda . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit Exhibit D)(Hall, Brady) Modified on 11/3/2017 (cjs).
42 DECLARATION of Lisa Mason re 39 First MOTION for Partial Summary Judgment IDOC Defendants' First Motion for Dispositive Relief filed by Henry Atencio, Richard Craig, Idaho Department of Corrections, Rona Siegert, Howard Keith Yordy, Jeff Zumda . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Hall, Brady) Modified on 11/3/2017 (cjs).
43 MEMORANDUM in Support of Motion re 39 First MOTION for Partial Summary Judgment IDOC Defendants' First Motion for Dispositive Relief filed by Henry Atencio, Richard Craig, Idaho Department of Corrections, Rona Siegert, Howard Keith Yordy, Jeff Zumda . (Hall, Brady) Modified on 11/3/2017 pursuant to Corrective Entry (cjs).
CORRECTIVE ENTRY − The entry docket number 43 Memorandum/Brief (generic), filed by Rona Siegert, Idaho Department of Corrections, Richard Craig, Howard Keith Yordy, Henry Atencio, Jeff Zumda was filed incorrectly in this case as the wrong event was used. The Court prefers the memorandum in support to be filed as an attachment to the motion it supports. But when filed separately the correct event is "Memorandum in Support of Motion" located under Responses and Replies. No action is needed by the filing party as the Clerk's Office will edit the entry.(cjs)

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 9 of 27

11/22/2017
11/22/2017 12/06/2017 12/06/2017
12/15/2017 01/24/2018 01/29/2018 01/31/2018
02/01/2018 02/01/2018 02/05/2018 02/12/2018 02/12/2018
03/20/2018 03/23/2018 03/26/2018 04/04/2018

44 RESPONSE to Motion re 39 First MOTION for Partial Summary Judgment IDOC Defendants' First Motion for Dispositive Relief filed by Adree Edmo. Replies due by 12/6/2017. (Attachments: # 1 Plaintiff's Statement of Material Facts in Dispute)(Rifkin, Lori)
45 NOTICE by Adree Edmo OF CONSTITUTIONAL QUESTION (Attachments: # 1 Exhibit A − Memorandum in Opposition to Defendants' Motion to Dismiss)(Rifkin, Lori)
46 JOINDER by Defendants Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young joining 44 Response to Motion, 39 First MOTION for Partial Summary Judgment IDOC Defendants' First Motion for Dispositive Relief . (Eaton, Dylan)
47 REPLY to Response to Motion re 39 First MOTION for Partial Summary Judgment IDOC Defendants' First Motion for Dispositive Relief filed by Henry Atencio, Richard Craig, Idaho Department of Corrections, Rona Siegert, Howard Keith Yordy, Jeff Zumda.(Hall, Brady)
RECEIPT: CIVIL FILING FEE Received, receipt #IDX21348 PAID IN FULL. (jld)
48 MOTION for Extension of Time to File Motion to Intervene Christine Gealy England appearing for Interested Party UNITED STATES OF AMERICA. Responses due by 2/14/2018 (England, Christine)
49 DOCKET ENTRY ORDER granting 37 Motion for Extension of Time to Answer All Parties. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (js)
50 RESPONSE to Motion re 48 MOTION for Extension of Time to File Motion to Intervene filed by Henry Atencio, Richard Craig, Idaho Department of Corrections, Kevin Kempf, Rona Siegert, Howard Keith Yordy, Jeff Zumda. Replies due by 2/14/2018.(Hall, Brady)
51 RESPONSE to Motion re 48 MOTION for Extension of Time to File Motion to Intervene filed by Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young. Replies due by 2/15/2018.(Eaton, Dylan)
52 CERTIFICATE OF SERVICE by Henry Atencio, Richard Craig, Idaho Department of Corrections, Kevin Kempf, Rona Siegert, Howard Keith Yordy, Jeff Zumda re 50 Response to Motion, (Hall, Brady)
53 RESPONSE to Motion re 48 MOTION for Extension of Time to File Motion to Intervene filed by Adree Edmo. Replies due by 2/19/2018.(Durham, Craig)
54 MOTION FOR PRO HAC VICE APPEARANCE by Shaleen Shanbhag. ( Filing fee $ 225 receipt number 0976−1697326.)Craig Durham appearing for Plaintiff Adree Edmo. Responses due by 3/5/2018 (Durham, Craig)
55 DOCKET ENTRY ORDER approving 54 Motion for Pro Hac Vice Appearance of attorney Shaleen Shanbhag for Adree Edmo. Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
56 DOCKET ENTRY NOTICE OF HEARING regarding 39 IDOC Defendants' First Motion for Dispositive Relief: A Motion Hearing is set for 4/4/2018 at 2:00 PM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (jlb)
57 NOTICE by United States of America re 45 Notice (Other) of Decision Not to Intervene (Bryce, Peter)
58 NOTICE by Adree Edmo of Supplemental Authority (Rifkin, Lori)
59 Minute Entry for proceedings held before Judge B. Lynn Winmill: Motion Hearing held on 4/4/2018 re 39 IDOC Defendants' First Motion for Dispositive Relief. The matter was taken under advisement. A written decision is forthcoming. (Court Reporter Tammy Hohenleitner.) (jlb)

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05/21/2018 05/22/2018 06/01/2018 06/04/2018 06/05/2018
06/06/2018 06/07/2018 06/08/2018 06/08/2018
06/12/2018 06/12/2018
06/15/2018 06/15/2018

60 MOTION FOR PRO HAC VICE APPEARANCE by Julie Wilensky. ( Filing fee $ 225 receipt number 0976−1738964.)Deborah A Ferguson appearing for Plaintiff Adree Edmo. Responses due by 6/11/2018 (Ferguson, Deborah)
61 DOCKET ENTRY ORDER approving 60 Motion for Pro Hac Vice Appearance of attorney Julie Wilensky for Adree Edmo. Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
62 MOTION for Preliminary Injunction Lori E Rifkin appearing for Plaintiff Adree Edmo. Responses due by 6/22/2018 (Attachments: # 1 Declaration of Lori Rifkin and Exhibits in Support, # 2 Declaration of Adree Edmo in Support)(Rifkin, Lori)
63 MOTION for Extension of Time to File Response/Reply and Request for Status Conference ( Responses due by 6/25/2018), 62 MOTION for Preliminary Injunction Brady James Hall appearing for Defendants Henry Atencio, Richard Craig, Rona Siegert, Howard Keith Yordy, Jeff Zumda. (Attachments: # 1 Memorandum in Support)(Hall, Brady) Modified on 6/5/2018 (cjs).
64 JOINDER by Defendants Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young joining 63 MOTION for Extension of Time to File Response/Reply MOTION for Preliminary Injunction Defendants Corizon Inc., Scott Eliasen, Murray Young, and Catherine Whinnery's Joinder in IDOC Defendants' Motion for Extension of Time to Respond to Plaintiff's Motion for Preliminary Injunction and Request for Status Conference. (Eaton, Dylan)
65 MEMORANDUM in Opposition re 63 MOTION for Extension of Time to File Response/Reply MOTION for Preliminary Injunction filed by Adree Edmo. Replies due by 6/20/2018.(Rifkin, Lori)
66 MEMORANDUM DECISION AND ORDER − IT IS ORDERED: 1. Defendants First Motion for Dispositive Relief (Dkt. 39 ) is GRANTED IN PART and DENIED IN PART. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
67 DOCKET ENTRY NOTICE OF HEARING: A Telephonic Status Conference is set for 6/12/2018 at 11:30 AM (Mountain Time) before Judge B. Lynn Winmill. The call in information is as follows: dial in number 1−877−336−1828, access code 4685496, and security code 9466. (jlb)
68 REPLY to Response to Motion re 63 MOTION for Extension of Time to File Response/Reply MOTION for Preliminary Injunction , 62 MOTION for Preliminary Injunction filed by Henry Atencio, Richard Craig, Idaho Department of Corrections, Rona Siegert, Howard Keith Yordy, Jeff Zumda. (Attachments: # 1 Declaration of Brady Hall, # 2 Declaration of Krina Stewart)(Hall, Brady) Modified on 10/9/2018 to reflect Attachment #2 under seal by Order Dkt. 129 (cjs).
69 Minute Entry for proceedings held before Judge B. Lynn Winmill: Telephonic Status Conference held on 6/12/2018. (ESR J. Bracke.) Audio File Location Boise − Courtroom 3. (jlb)
70 DOCKET ENTRY ORDER granting in part and denying in part 63 Motion for Extension of Time to File Response. The parties shall meet and confer, and provide the Court with a stipulation of deadlines for discovery and briefing on the pending motion for preliminary injunction consistent with the Court's statements at the status conference on June 12, 2018, and in preparation for the October 10−12 evidentiary hearing. The stipulation shall be filed on or before June 15, 2018. Signed by B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (js)
71 DOCKET ENTRY NOTICE OF HEARING regarding 62 MOTION for Preliminary Injunction: A 3−day Evidentiary Hearing is scheduled to begin on 10/10/2018 at 8:30 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (jlb)
72 STIPULATION regarding Discovery and Briefing Schedule by Henry Atencio, Richard Craig, Idaho Department of Corrections, Rona Siegert, Howard Keith Yordy, Jeff Zumda. (Crecelius, Marisa)

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07/03/2018
07/03/2018 07/12/2018 07/12/2018 07/17/2018 07/17/2018 07/24/2018 07/25/2018 07/26/2018 07/26/2018 07/26/2018 07/26/2018 07/26/2018 07/27/2018

73 SCHEDULING ORDER approving 72 Stipulation. Fact Discovery due by 8/31/2018. If the Defendants wish to file a brief with the Court in response to Plaintiffs 62 Motion for Preliminary Injunction, then Defendants shall file their response(s) on or before September 14, 2018. If the Plaintiff elects to file a reply brief, the reply shall be filed on or before September 28, 2018. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
Reset Deadlines as to 62 MOTION for Preliminary Injunction. Responses due by 9/14/2018. Replies due by 9/28/2018. Pursuant to Order Dkt. 73 . (cjs)
74 MOTION for Discovery for Leave to Depose Inmate Adree Edmo Marisa Swank Crecelius appearing for Defendants Henry Atencio, Richard Craig, Rona Siegert, Howard Keith Yordy, Jeff Zumda, Idaho Department of Correction. Responses due by 8/2/2018 (Crecelius, Marisa)
75 RESPONSE to Motion re 74 MOTION for Discovery for Leave to Depose Inmate Adree Edmo filed by Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young. Replies due by 7/26/2018.(Eaton, Dylan)
76 DOCKET ENTRY ORDER granting 74 MOTION FOR LEAVE TO DEPOSE INMATE ADREE EDMO. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (js)
77 DOCKET ENTRY ORDER denying as moot 48 Motion for Extension of Time. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (js)
78 MOTION for Discovery for Rule 35 Examination Marisa Swank Crecelius appearing for Defendants Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda. Responses due by 8/14/2018 (Attachments: # 1 Affidavit Declaration of Dr. Andrade)(Crecelius, Marisa)
79 STIPULATION for Entry of Order Allowing Rule 35 Examination by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda. (Hall, Brady)
80 DOCKET ENTRY ORDER deeming moot 78 Motion for Discovery. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (js)
81 MOTION to Seal Document Ex. B to the Declaration of Lori Rifkin iso Motion to Strike and for Protective Order Lori E Rifkin appearing for Plaintiff Adree Edmo. Responses due by 8/16/2018 (Attachments: # 1 Memorandum in Support of Motion to Seal Ex. B, # 2 Proposed Order)(Rifkin, Lori)
82 Sealed Document Re: 81 MOTION to Seal Document Ex. B to the Declaration of Lori Rifkin in support of 83 Motion to Strike and for Protective Order . (Rifkin, Lori) Modified on 7/27/2018 to edit text & create link (cjs). Modified on 9/10/2018 to reflect under Seal by Order Dkt. 96 (cjs).
83 MOTION to Strike Decl. of Krina L. Stewart and for Protective Order Lori E Rifkin appearing for Plaintiff Adree Edmo. Responses due by 8/16/2018 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Lori Rifkin, # 3 Exhibit A−C, # 4 Proposed Order)(Rifkin, Lori)
84 ORDER FOR RULE 35 EXAMINATION OF PLAINTIFF re 79 Stipulation. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs) (Entered: 07/27/2018)
CORRECTIVE ENTRY − The entry document number 81 MOTION to Seal Document Ex. B to the Declaration of Lori Rifkin iso Motion to Strike and for Protective Order filed by Adree Edmo in regards to the proposed order, was filed incorrectly in this case. Pursuant to the ECF Procedures, section 12B, all proposed orders are to be submitted by email to the appropriate Judges proposed order email box. The filing party shall re−submit their proposed order.(cjs)

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07/27/2018
07/27/2018 07/31/2018
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CORRECTIVE ENTRY − The entry document number 83 MOTION to Strike Decl. of Krina L. Stewart and for Protective Order filed by Adree Edmo in regards to the proposed order, was filed incorrectly in this case. Pursuant to the ECF Procedures, section 12B, all proposed orders are to be submitted by email to the appropriate Judges proposed order email box. The filing party shall re−submit their proposed order.(cjs)
85 CERTIFICATE OF SERVICE by Adree Edmo re 82 Sealed Document (Rifkin, Lori)
86 RESPONSE to Motion re 83 MOTION to Strike Decl. of Krina L. Stewart and for Protective Order filed by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda. Replies due by 8/14/2018. (Attachments: # 1 Declaration of Marisa S. Crecelius, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L)(Crecelius, Marisa) Modified on 8/1/2018 (cjs).
87 MOTION for Protective Order Stipulated Marisa Swank Crecelius appearing for Defendants Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda. Responses due by 8/24/2018 (Crecelius, Marisa)
88 PROTECTIVE ORDER granting 87 Stipulated Motion for Entry of Protective Order. Signed by Judge B. Lynn Winmill. (Attachments: # 1 Appendix A − Acknowledgement and Assent)(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
89 Emergency MOTION for Rule 35 Examination Dylan Alexander Eaton appearing for Defendants Corizon Incorporated, Catherine Whinnery, Murray Young. Responses due by 8/27/2018 (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Dylan A. Eaton)(Eaton, Dylan)
90 Emergency MOTION to Shorten Time re 89 Emergency MOTION for Rule 35 Examination Dylan Alexander Eaton appearing for Defendants Corizon Incorporated, Catherine Whinnery, Murray Young. Responses due by 8/27/2018 (Attachments: # 1 Memorandum in Support)(Eaton, Dylan)
91 RESPONSE to Motion re 89 Emergency MOTION for Rule 35 Examination filed by Adree Edmo. Replies due by 8/22/2018. (Attachments: # 1 Declaration of Shaleen Shanbhag and Exhibit in Support)(Shanbhag, Shaleen)
92 REPLY to Response to Motion re 83 MOTION to Strike Decl. of Krina L. Stewart and for Protective Order filed by Adree Edmo.(Shanbhag, Shaleen)
93 ORDER granting 89 Motion for Rule 35 Examination. The Court rejects plaintiff's attempt to limit the examination. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dm)
94 STIPULATION for Protective Order by Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young. (Eaton, Dylan)
95 ORDER ADOPTING STIPULATION FOR PROTECTIVE ORDER re 94 Stipulation. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
96 DOCKET ENTRY ORDER granting 81 Motion to Seal Document. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (js)
97 DOCKET ENTRY ORDER denying as moot without prejudice 83 Motion to Strike. The parties have resolved the bulk of the issues raised in the motion, and they are in the process of trying to resolve the final issue through the Court's informal mediation process. If the final issue is not informally resolved, the Court may allow supplemental briefs addressing only that remaining issue. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (js)

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 13 of 27

09/10/2018 09/14/2018
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98 MOTION for Transport Order Craig Durham appearing for Plaintiff Adree Edmo. Responses due by 10/1/2018 (Durham, Craig)
99 RESPONSE to Motion re 62 MOTION for Preliminary Injunction filed by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda. Replies due by 9/28/2018. (Attachments: # 1 Second Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Declaration, # 7 Declaration, # 8 Declaration, # 9 Declaration Exs B & C to #8, # 10 Declaration Exs D & E to #8, # 11 Declaration Ex F to #8, # 12 Declaration, # 13 Declaration Ex 5, part 1 to #12, # 14 Declaration Ex 5, part 2 to #12, # 15 Declaration Ex 5, part 3 to #12, # 16 Declaration Ex 5, part 4 to #12, # 17 Declaration Ex 6 to #12)(Hall, Brady) Modified on 9/18/2018 to refer to Errata Dkt. 101 for all Attachments (cjs).
100 RESPONSE to Motion re 62 MOTION for Preliminary Injunction filed by Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young. Replies due by 9/28/2018. (Attachments: # 1 Affidavit of Dylan A. Eaton, # 2 Exhibit A to Declaration of Dylan A. Eaton)(Eaton, Dylan)
101 ERRATA by Defendants Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda re 99 Response to Motion,,, . (Attachments: # 1 Second Decl. Krina Stewart, # 2 Decl. Siegert, # 3 Decl. Watson, # 4 Decl. Campbell, # 5 Decl. Cummings, # 6 Decl. Jones, # 7 Decl. Clark, # 8 Decl. Crecelius & Ex. A, # 9 Decl. Crecelius Ex. B & C, # 10 Decl. Crecelius Ex. D & E, # 11 Decl. Crecelius Exh. F, # 12 Decl. Yordy & Ex 1−4, # 13 Decl. Yordy Ex 5 pt 1, # 14 Decl. Yordy Ex 5 pt 2, # 15 Decl. Yordy Ex 5 pt 3, # 16 Decl. Yordy Ex 5 pt 4, # 17 Decl. Yordy Ex 6)(Hall, Brady)
102 STIPULATION to Seal the Declaration of Krina L. Stewart (Dkt. 68−2) by Adree Edmo. (Rifkin, Lori)
103 ORDER TO TRANSPORT. IT IS ORDERED that the Idaho Department of Correction shall take appropriate steps to transport inmate Mason Dean (Adree) Edmo to the James A. McClure Federal Building and United States Courthouse, 550 W Fort Street, Boise, Idaho, 83724, on October 10, 11, and 12, 2018, and continuing thereafter until the business for the Court is concluded. Court begins at 8:30 a.m. each day, and the Idaho Department of Correction shall ensure Edmo 7:30 a.m., approximately one hour before court commences. IT IS FURTHER ORDERED that the Idaho Department of Correction shall provide Edmo with a sack lunch each day, any medications Edmo is taking, and access to her legal files. (Notice sent to USMS). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 09/24/2018)
104 AMENDED ORDER TO TRANSPORT re 103 Order to Transport − IDOC to take appropriate measures to transport Mason Dean (Adree) Edmo, #94691 to Courtroom #3 in Boise on October 10, 11, 12, 2018 beginning at 8:30 a.m. IT IS FURTHER ORDERED that the Court amends its earlier Order to require that the Marshal Service and IDOC work together to ensure Edmo is at the courthouse and ready for all hearings. The requirement that Edmo be at the courthouse at 7:30 a.m. is withdrawn, but the Marshal Service and IDOC should take steps necessary to have Edmo at the courthouse withsufficient time to be prepared for the hearings. IT IS FURTHER ORDERED that the Idaho Department of Correction shall provide Edmo with a sack lunch each day, any medications Edmo is taking, and access to her legal files.(Notice sent to USMS) Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
105 DOCKET ENTRY NOTICE OF HEARING: A Telephonic Status Conference is set for 9/27/2018 at 2:30 PM before Judge B. Lynn Winmill, to discuss procedures for the upcoming evidentiary hearing. The call in information is as follows: Dial in number 1−877−336−1828, access code 4685496, and security code 9466.(jlb)
106 MOTION for Leave to File Excess Pages / Consolidated Reply Brief Shaleen Shanbhag appearing for Plaintiff Adree Edmo. Responses due by 10/15/2018 (Shanbhag, Shaleen)

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09/26/2018 09/27/2018 09/28/2018 09/28/2018
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10/05/2018
10/05/2018 10/05/2018 10/05/2018

107 DOCKET ENTRY ORDER granting 106 Motion for Leave to File Excess Pages. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (js)
108 STIPULATION to Extend the Expert Deposition Deadline from September 28, 2018 to October 2, 2018 by Adree Edmo. (Rifkin, Lori)
109 MOTION FOR PRO HAC VICE APPEARANCE by Alexander Chen. ( Filing fee $ 250 receipt number 0976−1792081.)Craig Durham appearing for Plaintiff Adree Edmo. Responses due by 10/19/2018 (Durham, Craig)
110 ORDER − Final Witness Lists due by 10/3/2018. Final Exhibit Lists due by 10/5/2018. A final transcript of the hearing will be provided to counsel on or before 10/19/2018. Proposed findings of fact and conclusions of law due by 10/26/2018. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
111 REPLY to Response to Motion re 62 MOTION for Preliminary Injunction filed by Adree Edmo. (Attachments: # 1 Declaration of Lori Rifkin, # 2 Exhibits 1−10, # 3 Exhibits 11−13, # 4 Exhibits 14−16, # 5 Deposition Excerpts)(Rifkin, Lori)
112 MOTION to Seal Exhibit 12 to the Declaration of Lori Rifkin iso Plaintiff's Reply to Motion for Preliminary Injunction Lori E Rifkin appearing for Plaintiff Adree Edmo. Responses due by 10/19/2018 (Attachments: # 1 Memorandum in Support)(Rifkin, Lori)
113 Sealed Document Re: 112 MOTION to Seal Exhibit 12 to the Declaration of Lori Rifkin iso Plaintiff's Reply to Motion for Preliminary Injunction . (Rifkin, Lori) Modified on 10/9/2018 to reflect under seal by Order Dkt. 129 (cjs).
114 CERTIFICATE OF SERVICE by Adree Edmo re 113 Sealed Document Exhibit 12 to the Declaration of Lori Rifkin iso Plaintiff's Reply to Motion for Preliminary Injunction (Rifkin, Lori)
115 NOTICE by Adree Edmo of Plaintiff's Final Witness List re Evidentiary Hearing (Rifkin, Lori)
116 Witness List (sealed) by Corizon Incorporated, Catherine Whinnery, Murray Young. (Eaton, Dylan)
117 Witness List (sealed) by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda. (Crecelius, Marisa)
118 DOCKET ENTRY ORDER approving 109 Motion for Pro Hac Vice Appearance of attorney Alexander Chen for Adree Edmo. Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
119 MOTION to Seal Dylan Alexander Eaton appearing for Defendants Corizon Incorporated, Catherine Whinnery, Murray Young. Responses due by 10/26/2018 (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Dylan A. Eaton, # 3 Affidavit of Joseph M. Pastor, M.D., # 4 Exhibit A to Declaration of Joseph M. Pastor, M.D.)(Eaton, Dylan) Modified on 10/9/2018 to reflect sealed per attorney request by km on 10/8/2018 (cjs).
120 Joint MOTION to Seal Document 88 Protective Order, Marisa Swank Crecelius appearing for Defendants Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda. Responses due by 10/26/2018 (Attachments: # 1 Memorandum in Support)(Crecelius, Marisa)
121 Sealed Document Re: 62 MOTION for Preliminary Injunction , 88 Protective Order, 120 Joint MOTION to Seal Document 88 Protective Order, . (Attachments: # 1 Exhibit Part 2 of Document, # 2 Exhibit Part 3 of Document)(Crecelius, Marisa) Modified on 10/9/2018 to reflect under seal by Order Dkt. 129 (cjs).
122 MEMORANDUM in Opposition re 119 MOTION to Seal filed by Adree Edmo. Replies due by 10/19/2018.(Rifkin, Lori)

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10/19/2018

123 Exhibit List (JOINT) by Adree Edmo.. (Rifkin, Lori)
124 Exhibit List (Plaintiff) by Adree Edmo.. (Rifkin, Lori)
125 Exhibit List Defendants' Joint Exhibit List by Henry Atencio, Corizon Incorporated, Richard Craig, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda.. (Hall, Brady)
126 Exhibit List Amended (Plaintiff) by Adree Edmo.. (Rifkin, Lori)
127 Exhibit List Amended (JOINT) by Adree Edmo.. (Rifkin, Lori)
128 Exhibit List Amended by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda.. (Crecelius, Marisa)
129 MEMORANDUM DECISION AND ORDER − IT IS ORDERED: 1. Stipulation to Seal Declaration of Krina L. Stewart (Dkt. 102 ) is GRANTED. 2. Motion to Seal Ex 12 (Dkt. 112 ) & Motion to Seal Clinical Pathway: Gender Dysphoria Document (Dkt. 119) are GRANTED. 3. Motion to Seal Confidential PSI Documents (Dkt. 120 ) is GRANTED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
130 STIPULATION Governing Evidentiary Hearing Testimony and Exhibits by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda. (Hall, Brady)
131 Minute Entry for proceedings held before Judge B. Lynn Winmill: Motion Hearing held on 10/10/2018 re 62 MOTION for Preliminary Injunction. The Motion Hearing is scheduled to continue on 10/11/2018 at 8:30 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (Court Reporter Tammy Hohenleitner.) (jlb)
132 Minute Entry for proceedings held before Judge B. Lynn Winmill: Motion Hearing held on 10/11/2018 re 62 MOTION for Preliminary Injunction (Day 2). The Motion Hearing shall resume on 10/12/2018 at 8:30 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (Court Reporter Tammy Hohenleitner.) (jlb)
133 Minute Entry for proceedings held before Judge B. Lynn Winmill: Motion Hearing (Day 3) held on 10/12/2018 re 62 MOTION for Preliminary Injunction filed by Adree Edmo. (Court Reporter Tammy Hohenleitner.) (jlb) (Entered: 10/15/2018)
134 JOINT AMENDED Exhibit List (Admitted)] by Henry Atencio, Corizon Incorporated, Richard Craig, Adree Edmo, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda.. (cjs) (Entered: 10/15/2018)
135 AMENDED Exhibit List (Admitted) by Adree Edmo. (cjs) (Entered: 10/15/2018)
136 AMENDED Exhibit List (Admitted) by Henry Atencio, Corizon Incorporated, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda. (cjs) (Entered: 10/15/2018)
137 Transcript of Proceedings held on 10/10/18 (Evidentiary Hearing Day 1) before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 11/9/2018. Redacted Transcript Deadline set for 11/19/2018. Release of Transcript Restriction set for 1/17/2019. (jp)
138 Transcript of Proceedings held on 10/11/18 (Evidentiary Hearing Day 2) before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 11/9/2018. Redacted Transcript Deadline set for 11/19/2018. Release of Transcript Restriction set for 1/17/2019. (jp)

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10/19/2018
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139 Transcript of Proceedings held on 10/12/18 (Evidentiary Hearing Day 3) before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 11/9/2018. Redacted Transcript Deadline set for 11/19/2018. Release of Transcript Restriction set for 1/17/2019. (jp)
140 Notice of Filing of Official Transcript (jp)
141 SUPPLEMENT by Plaintiff Adree Edmo − Submission of Impeachment or Contradictory Evidence for the Second Declaration of Krina Stewart. (Attachments: # 1 Deposition Excerpts & Exhibits)(Rifkin, Lori)
142 SUPPLEMENT by Plaintiff Adree Edmo − Submission of Impeachment or Contradictory Evidence for the Declaration of Keith Yordy. (Attachments: # 1 Deposition Excerpts & Exhibits)(Rifkin, Lori)
143 TRIAL BRIEF Plaintiff's Post−Hearing Brief by Adree Edmo. (Rifkin, Lori)
144 Proposed Findings of Fact by Adree Edmo. (Shanbhag, Shaleen)
145 TRIAL BRIEF IDOC Defendants' Written Closing Statement by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda. (Hall, Brady)
146 Proposed Findings of Fact by Henry Atencio, Corizon Incorporated, Richard Craig, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda. (Crecelius, Marisa)
147 SUPPLEMENT by Defendants Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda re 141 Supplement, 142 Supplement IDOC Defendants' Response to Plaintiff's Submission of Deposition Testimony. (Crecelius, Marisa)
148 TRIAL BRIEF Closing Statement in Opposition to Plaintiff's Motion for Preliminary Injunctive Relief by Corizon Incorporated, Catherine Whinnery, Murray Young. (Eaton, Dylan)
149 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER − IT IS ORDERED: 1. Plaintiffs Motion for Preliminary Injunction (Dkt. 62 ) is GRANTED IN PART. Defendants are ordered to provide Plaintiff with adequate medical care, including gender confirmation surgery. Defendants shall take all actions reasonably necessary to provide Ms. Edmo gender confirmation surgery as promptly as possible and no later than six months from the date of this order. However, given IDOCs implementation of an updated gender dysphoria policy on October 5, 2018 that appears to provide Plaintiffs requested injunctive relief related to accessing gender−appropriate underwear, clothing, and commissary items, the Court will not address that relief at this time. This is without prejudice to the plaintiffs right to raise the issue in the future, should IDOC revoke the new policy or if the implementation of the policy results in ongoing violations. 2. The Courts Deputy, Jamie Bracke, is directed to set a telephonic status conference in this case no later than two weeks after this decision issues. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
150 DOCKET ENTRY NOTICE OF HEARING: A Telephonic Status Conference is set for 12/21/2018 at 10:00 AM (Mountain Time) before Judge B. Lynn Winmill. A call in number will be provided by the Court to counsel. (jlb)
151 Sealed Document (Letter) Re 149 . (cjs)
152 Sealed Document (Letter) Re 149 . (Attachments: # 1 Envelope)(cjs)
153 LITIGATION ORDER AND NOTICE OF TELEPHONIC SCHEDULING CONFERENCE − Case Management deadline set for 1/15/2019 for the joint litigation plan, joint discovery plan, and status reports. Telephonic Scheduling Conference set for 1/22/2019 03:00 PM in Boise Chambers before Judge B. Lynn Winmill. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 17 of 27

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addresses listed on the Notice of Electronic Filing (NEF) by (cjs) (Entered: 01/03/2019)
154 NOTICE OF APPEAL by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda. Filing fee $ 505, receipt number 0976−1831924. (Notice sent to Court Reporter & 9th Cir) (Attachments: # 1 Representation Statement)(Hall, Brady)(19−35017)
155 NOTICE OF APPEAL as to 149 Order on Motion for Preliminary Injunction,,,, by Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young. Filing fee $ 505, receipt number 0976−1831994. (Notice sent to Court Reporter & 9th Cir) (Attachments: # 1 Service Information Sheet Representation Statement)(Eaton, Dylan)(19−35019)
156 Joint MOTION to Stay re 149 Order on Motion for Preliminary Injunction,,,, Dylan Alexander Eaton appearing for Defendants Corizon Incorporated, Catherine Whinnery, Murray Young. Responses due by 1/30/2019 (Attachments: # 1 Memorandum in Support)(Eaton, Dylan)
163 USCA Case Number 19−35017 for 154 Notice of Appeal, filed by Rona Siegert, Richard Craig, Howard Keith Yordy, Henry Atencio, Jeff Zumda, Idaho Department of Correction. (cjs) (Entered: 01/22/2019)
164 USCA Case Number 19−35019 for 155 Notice of Appeal, filed by Corizon Incorporated, Murray Young, Scott Eliason, Catherine Whinnery. (cjs) (Entered: 01/22/2019)
165 ORDER of USCA as to 154 Notice of Appeal, filed by Rona Siegert, Richard Craig, Howard Keith Yordy, Henry Atencio, Jeff Zumda, Idaho Department of Correction. Briefing set. (cjs) (Entered: 01/22/2019)
157 STATUS REPORT of All Defendants by Corizon Incorporated, Catherine Whinnery, Murray Young. (Eaton, Dylan)
158 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Adree Edmo. (Shanbhag, Shaleen)
159 DISCOVERY PLAN by Adree Edmo re 153 Litigation Order, . (Shanbhag, Shaleen)
160 TRANSCRIPT REQUEST by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda for proceedings held on 10/10/2018, 10/11/2018, 10/12/2018 before Judge B. Lynn Winmill, (Notice sent by e−mail to Court Reporter) (Hall, Brady)
161 TRANSCRIPT REQUEST by Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young for proceedings held on 10/10/2018, 10/11/2018, 10/12/18 before Judge B. Lynn Winmill, (Notice sent by e−mail to Court Reporter) (Eaton, Dylan)
162 AMENDED DOCKET ENTRY NOTICE OF HEARING: Due to the Court's calendar, the Telephonic Scheduling Conference set for 1/22/2019 is RESCHEDULED for 1/30/2019 at 3:30 PM (mountain time) before Judge B. Lynn Winmill. The call in information is as follows: dial in number 1−877−336−1828, access code 4685496, and security code 9466. (jlb)
166 Transcript filed for dates of 6/12/2018 (Telephonic Status Conference) before Judge B. Lynn Winmill, re 154 Notice of Appeal, 155 Notice of Appeal, Court Reporter/Transcriber Tamara Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/8/2019. Redacted Transcript Deadline set for 2/19/2019. Release of Transcript Restriction set for 4/18/2019. (cjs) (Entered: 01/22/2019)
167 Notice of Filing of Official Transcript (cjs)
168 MEMORANDUM in Opposition re 156 Joint MOTION to Stay re 149 Order on Motion for Preliminary Injunction,,,, filed by Adree Edmo. Replies due by 2/13/2019.(Shanbhag, Shaleen)

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 18 of 27

01/30/2019 01/31/2019 01/31/2019
01/31/2019 02/01/2019 02/13/2019 03/04/2019 03/05/2019 03/05/2019
03/15/2019 03/15/2019 03/19/2019 03/19/2019 03/20/2019

169 Minute Entry for proceedings held before Judge B. Lynn Winmill: Telephonic Scheduling Conference was held on 1/30/2019. A Telephonic Status Conference is set for 3/5/2019 at 4:00 PM (Mountain Time) before Judge B. Lynn Winmill. (Court Reporter Tammy Hohenleitner.) (jlb) (Entered: 01/31/2019)
170 DOCKET ENTRY NOTICE OF HEARING − A Telephonic Status Conference is set for 3/5/2019 at 4:00 PM (Mountain Time) before Judge B. Lynn Winmill. The call in information is as follows: dial in number 1−877−336−1828, access code 4685496, and security code 9466. (jlb)
171 SCHEDULING ORDER (Standard) − Amended Pleadings/Joinder of Parties due by 1/31/2019. Defendants shall provide Answers to the Third AmendedComplaint on or before 3/15/2019. Completion of Discovery due by 8/15/2019. Dispositive Motions due by 1/31/2020. The parties have chosen to participate in a judicially supervised settlement conference. ADR must be held by within one month after the United States Court of Appeals for the Ninth Circuit issues an opinion on this Courts decision to grant a preliminary injunction. Within 7 days of this Order, the parties are directed to contact the ADR Administrator, so that she may assign a settlement conference judge and schedule a date for the settlement conference. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
172 AMENDED COMPLAINT (Third) and Exhibits A & B in Support against All Defendants, filed by Adree Edmo.(Rifkin, Lori)
173 NOTICE of Appearance by Bryce C Jensen on behalf of Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young (Jensen, Bryce)
174 REPLY to Response to Motion re 156 Joint MOTION to Stay re 149 Order on Motion for Preliminary Injunction,,,, filed by Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young.Motion Ripe Deadline set for 2/14/2019.(Eaton, Dylan)
175 MEMORANDUM DECISION AND ORDER − IT IS ORDERED: 1. Defendants Joint Motion to Stay Order [Dkt. 149 ] Pending Appeal (Dkt. 156 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
CORRECTIVE ENTRY − The entry docket number 172 Amended Complaint filed by Adree Edmo was filed incorrectly in this case. Please remember that exhibits should be separate attachments and not combined with the main document. No action is needed by the filing party at this time. (cjs)
176 Minute Entry for proceedings held before Judge B. Lynn Winmill: Telephonic Status Conference held on 3/5/2019. A Joint Status Report is due by 3/19/2019. The next Telephonic Status Conference is set for 3/21/2019 at 10:00 AM (Mountain Time) before Judge B. Lynn Winmill. The call in information is as follows: dial in number 1−877−336−1828, access code 4685496, and security code 9466. (ESR Jamie Bracke.) Audio File Location CDA − District Courtroom. (jlb)THESE MINUTES SHALL STAND AS THE ORDER OF THE COURT (Entered: 03/06/2019)
177 ANSWER to 172 Amended Complaint by Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young.(Eaton, Dylan)
178 ANSWER to 172 Amended Complaint by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda.(Hall, Brady)
179 STATUS REPORT by Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda. (Attachments: # 1 Exhibit, # 2 Exhibit)(Hall, Brady)
180 STATUS REPORT by Plaintiff by Adree Edmo. (Rifkin, Lori)
182 ORDER of USCA as to 154 Notice of Appeal, filed by Rona Siegert, Richard Craig, Howard Keith Yordy, Henry Atencio, Jeff Zumda, Idaho Department of Correction, 155 Notice of Appeal, filed by Corizon Incorporated, Murray Young, Scott Eliason, Catherine Whinnery. (jp) (Entered: 03/22/2019)

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 19 of 27

03/21/2019 03/26/2019
03/26/2019 03/28/2019 03/29/2019
03/29/2019 04/03/2019 04/04/2019 04/05/2019 04/07/2019
04/09/2019 04/09/2019 05/15/2019

181 Minute Entry for proceedings held before Judge B. Lynn Winmill: Telephonic Status Conference held on 3/21/2019. (Court Reporter Tammy Hohenleitner.) (jlb)
183 Transcript of Telephonic Status Conference held on 3/21/19 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 4/16/2019. Redacted Transcript Deadline set for 4/26/2019. Release of Transcript Restriction set for 6/24/2019. (th)
184 Notice of Filing of Official Transcript (th)
185 MOTION for Indicative Ruling Under F.R.C.P. 62.1 & 60(a) and Request for Expedited Consideration Under LR 6.1 Lori E Rifkin appearing for Plaintiff Adree Edmo. Responses due by 4/18/2019 (Attachments: # 1 Memorandum in Support)(Rifkin, Lori)
186 DOCKET ENTRY ORDER: The Court is in receipt of Plaintiff's expedited motion for indicative ruling (Dkt. 185). Good cause appearing, pursuant to District of Idaho Local Civil Rule 6.1, the Court hereby ORDERS expedited briefing on this issue. Defendants will file their response no later than April 3, 2019. Plaintiff will file her reply no later than April 5, 2019. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jc)
187 ORDER of USCA as to 154 Notice of Appeal, filed by Rona Siegert, Richard Craig, Howard Keith Yordy, Henry Atencio, Jeff Zumda, Idaho Department of Correction, 155 Notice of Appeal, filed by Corizon Incorporated, Murray Young, Scott Eliason, Catherine Whinnery (cjs) (Entered: 04/01/2019)
188 RESPONSE to Motion re 185 MOTION for Indicative Ruling Under F.R.C.P. 62.1 & 60(a) and Request for Expedited Consideration Under LR 6.1 filed by Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda. Replies due by 4/17/2019.(Hall, Brady)
189 DOCKET ENTRY NOTICE OF HEARING: A Telephonic Status Conference is set for 4/8/2019 at 4:00 PM (mountain time) before Judge B. Lynn Winmill. The call in information is as follows: dial in number 1−877−336−1828, access code 4685496, and security code 9466. (jlb)
190 REPLY to Response to Motion re 185 MOTION for Indicative Ruling Under F.R.C.P. 62.1 & 60(a) and Request for Expedited Consideration Under LR 6.1 filed by Adree Edmo.Motion Ripe Deadline set for 4/8/2019.(Rifkin, Lori)
191 AMENDED DOCKET ENTRY NOTICE OF HEARING: A Telephonic Status Conference and Telephonic Motion Hearing regarding 185 MOTION for Indicative Ruling Under F.R.C.P. 62.1 & 60(a), is set for 4/9/2019 at 2:00 PM (Mountain Time) before Judge B. Lynn Winmill. The call in information is as follows: dial in number 1−877−336−1828, access code 4685496, and security code 9466. The Telephonic Status Conference previously set for 4/8/2019 is vacated. (jlb)
192 Minute Entry for proceedings held before Judge B. Lynn Winmill: Telephonic Status Conference and Telephonic Motion Hearing held on 4/9/2019 re 185 MOTION for Indicative Ruling Under F.R.C.P. 62.1 & 60(a) filed by Adree Edmo. An Order is forthcoming. (Court Reporter Tammy Hohenleitner.) (jlb)
193 MEMORANDUM DECISION AND ORDER − IT IS HEREBY ORDERED: 1. Plaintiffs Motion for Indicative Ruling Under Federal Rules of Civil Procedure 62.1 and 60(a) (Dkt. 185 ) is DENIED as unnecessary. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
194 ORDER of USCA as to 154 Notice of Appeal & 155 Notice of Appeal. (jp) (Entered: 05/17/2019)

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 20 of 27

05/30/2019 05/31/2019
06/03/2019
06/03/2019 06/03/2019
06/03/2019 06/03/2019
06/03/2019 06/28/2019 07/01/2019 07/05/2019 07/09/2019 07/17/2019

195 ORDER of USCA as to 154 Notice of Appeal & 155 Notice of Appeal. REMANDED. (jp) (Entered: 05/31/2019)
196 ORDER It is hereby ORDERED: The preliminary mandatory relief set forth in the Court's decision at Docket No. 149 is RENEWED. The Court clarifies that as part of its ruling on the motion for preliminary injunction, it also granted permanent injunctive relief. The Court further clarifies that it concluded, and expressly incorporated into its final decision, that Plaintiff succeeded on the merits of her Eighth Amendment claim for permanent injunctive relief. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
197 Transcript of Proceedings held on 1/30/19 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 6/24/2019. Redacted Transcript Deadline set for 7/5/2019. Release of Transcript Restriction set for 9/3/2019. (th)
198 Notice of Filing of Official Transcript of Status Conference held 1/30/19. (th)
199 Transcript of Proceedings held on 4/9/19 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 6/24/2019. Redacted Transcript Deadline set for 7/5/2019. Release of Transcript Restriction set for 9/3/2019. (th)
200 Notice of Filing of Official Transcript of Status Conference held 4/9/19. (th)
201 Transcript of Proceedings held on 3/5/19 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 6/24/2019. Redacted Transcript Deadline set for 7/5/2019. Release of Transcript Restriction set for 9/3/2019. (th)
202 Notice of Filing of Official Transcript of Status Conference held 3/5/19 (th)
203 NOTICE OF APPEAL (19−35552) as to 196 Order,, by Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young. Filing fee $ 505, receipt number 0976−1906873. (Notice sent to Court Reporter & 9th Cir) (Attachments: # 1 Supplement Representation Statement)(Eaton, Dylan) Modified on 7/3/2019 to add 9CCA case no. (jd).
204 USCA Case Number 19−35552 for 203 Notice of Appeal, filed by Corizon Incorporated, Murray Young, Scott Eliason, Catherine Whinnery. (Attachments: # 1 Mediation program)(jd) (Entered: 07/03/2019)
205 NOTICE of Change of Address by Lori E Rifkin (Rifkin, Lori)
206 ORDER of USCA (19−35017 and 19−35019) as to 154 and 155 Notice of Appeal. Defendant−Appellants Joint Motion to Supplement the Record on Appeal (Dkt. 92) is GRANTED IN PART AND DENIED IN PART. Plaintiff−Appellees Request to Strike and Impose Sanctions (Dkt. 93) is DENIED. (jd) (Entered: 07/10/2019)
207 STIPULATION and Request to Stay Discovery Pending Decision from the Ninth Circuit Court of Appeals by Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda. (Hall, Brady)

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 21 of 27

07/19/2019
08/23/2019 08/23/2019 09/09/2019 09/16/2019
09/20/2019 09/30/2019 10/03/2019 10/04/2019 10/07/2019 10/07/2019 10/10/2019

208 ORDER APPROVING JOINT STIPULATION AND REQUEST TO STAY DISCOVERY PENDING DECISION FRO THE NINTH CIRCUIT COURT OF APPEALS. On July 17, 2019, the parties filed a Joint Stipulation and request to Stay Discovery Pending Decision from the Ninth Circuit Court of Appeals in case number 19−35017. (Dkt. 207.) In consideration thereof, and finding good cause therefor, the Court will approve the stipulation and request to stay discovery. After the Ninth Circuit issues a decision, the parties must meet and confer and attempt to resolve any remaining discovery disputes and then must contact the Court to request a new scheduling conference. IT IS SO ORDERED. Signed by Judge B. Lynn Winmill. (km)
209 OPINION of USCA as to 154 Notice of Appeal, filed by Rona Siegert, Richard Craig, Howard Keith Yordy, Henry Atencio, Jeff Zumda, Idaho Department of Correction, 155 Notice of Appeal, filed by Corizon Incorporated, Murray Young, Scott Eliason, Catherine Whinnery (Attachments: # 1 Webcites) AFFIRMED IN PART, VACATED IN PART, AND REMANDED. (ckh)
210 ORDER LIFTING STAY OF DISCOVERY re 208 Order Approving Joint Stipulation and Request to Stay Discovery Pending Decision from the Ninth Circuit Court of Appeals. (Telephonic Scheduling Conference set for 9/16/2019 11:00 AM in Telephonic Hearing − Boise Chambers before Judge B. Lynn Winmill.) Signed by Judge B. Lynn Winmill. (ckh)
211 ORDER of USCA (19−35017) as to 154 Notice of Appeal, filed by Rona Siegert, Richard Craig, Howard Keith Yordy, Henry Atencio, Jeff Zumda, Idaho Department of Correction. Appellee Adree Edmo is ordered to file a response to Appellants' Petition for Rehearing En Banc. The response must be filed no later than twenty−one (21) days from the date of this order. (ckh) (Entered: 09/10/2019)
212 Minute Entry for proceedings held before Judge B. Lynn Winmill: Telephonic Scheduling Conference held on 9/16/2019. Defendants' Motion to Stay shall be filed by 9/30/2019. Plaintiff's response is due by 10/7/2019. A Joint Proposed Discovery Plan shall be filed by 9/20/2019. (ESR Jamie Bracke.) Audio File Location Boise − Courtroom 3. (jlb)THESE MINUTES SHALL STAND AS THE ORDER OF THE COURT
213 DISCOVERY PLAN by Adree Edmo Joint Proposed Update to Discovery Plan. (Rifkin, Lori)
214 Joint MOTION to Stay Brady James Hall appearing for Defendants Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda. Responses due by 10/21/2019 (Attachments: # 1 Memorandum in Support)(Hall, Brady)
215 MOTION for Extension of Time to File Response/Reply as to 214 Joint MOTION to Stay , 212 Scheduling Conference, Lori E Rifkin appearing for Plaintiff Adree Edmo. Responses due by 10/24/2019 (Rifkin, Lori)
216 Amended MOTION for Extension of Time to File Response/Reply as to 214 Joint MOTION to Stay , 212 Scheduling Conference, Lori E Rifkin appearing for Plaintiff Adree Edmo. Responses due by 10/25/2019 (Rifkin, Lori)
217 DOCKET ENTRY ORDER vacating 216 Motion for Extension of Time to File Response. Plaintiff must file a Response to Defendants' Joint Motion to Stay on or before October 21, 2019, the date set forth in the docket at 214 . Signed by Judge B. Lynn Winmill. (ah)
218 DOCKET ENTRY ORDER vacating 216 Motion for Extension of Time to File Response. Plaintiff must file a Response to Defendants' Joint Motion to Stay on or before October 21, 2019, the date set forth in the docket at 214 . Signed by Judge B. Lynn Winmill. (ah)
220 ORDER of USCA (19−35017) as to 154 Notice of Appeal, filed by Rona Siegert, Richard Craig, Howard Keith Yordy, Henry Atencio, Jeff Zumda, Idaho Department of Correction. This court's stay of the district court's December 13, 2018 order is partially lifted so that Plaintiff may receive all presurgical treatments and related

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 22 of 27

10/11/2019 10/15/2019 10/17/2019 10/21/2019 10/22/2019 10/24/2019
10/24/2019 10/30/2019 10/31/2019
10/31/2019 10/31/2019 11/01/2019

corollary appointments or consultations necessary for gender confirmation surgery. (ckh) (Entered: 10/11/2019)
219 STATUS REPORT & Request for Status Conference Following Partial Lifting of Stay of Dec. 13, 2018 Order by Adree Edmo. (Rifkin, Lori)
221 DOCKET ENTRY NOTICE OF HEARING: A Telephonic Status Conference is set for 10/17/2019 at 9:30 AM before Judge B. Lynn Winmill. Counsel will receive the call in information by a separate email. (jlb)
222 Minute Entry for proceedings held before Judge B. Lynn Winmill: Telephonic Status Conference held on 10/17/2019. The next Telephonic Status Conference is set for 10/30/2019 at 3:30 PM before Judge B. Lynn Winmill. The call−in information will be provided to counsel in a forthcoming email. (ESR Jamie Bracke.) Audio File Location Pocatello − District Courtroom. (jlb)
223 RESPONSE to Motion re 214 Joint MOTION to Stay filed by Adree Edmo. Replies due by 11/4/2019. (Attachments: # 1 Affidavit Declaration of Lori Rifkin in Support of Plaintiff's Response to Defendants' Joint Motion to Stay)(Rifkin, Lori)
224 MEMORANDUM/BRIEF filed by Adree Edmo Plaintiff's Submission Re: Pre−Surgical Requirements. (Attachments: # 1 Affidavit Declaration of Lori Rifkin in Support of Plaintiff's Submission Re Pre−surgical Requirements)(Rifkin, Lori)
225 ORDER REQUIRING DEFENDANTS PROVIDE ALL PRE−SURGICAL TREATMENTS AND RELATED COROLLARY APPOINTMENTS OR CONSULTATIONS NECESSARY FOR GENDER CONFIRMATION SURGERY re 224 Plaintiff's Submission Re: Pre−Surgical Requirements filed by Adree Edmo. The Court HEREBY ORDERS: Defendants must file a status report with the Court on or before November 1, 2019, detailing the steps they have taken or are taking to comply with this order. Defendants are instructed to file the status report under seal should it contain any sensitive information. Signed by Judge B. Lynn Winmill. (ckh)
226 NOTICE by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda of Withdrawal of Counsel of Marisa S. Crecelius (Hall, Brady)
230 Minute Entry for proceedings held before Judge B. Lynn Winmill: Telephonic Status Conference held on 10/30/2019. Defendants shall file a written status report by November 22, 2019. (ESR Jamie Bracke.) Audio File Location Pocatello − District Courtroom. (jlb)THESE MINUTES SHALL STAND AS THE ORDER OF THE COURT (Entered: 11/01/2019)
227 NOTICE OF APPEAL (19−35917) by Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Kevin Kempf, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda. Filing fee $ 505, receipt number 0976−1962681. (Notice sent to Court Reporter & 9th Cir) (Attachments: # 1 Representation Statement)(Hall, Brady) Modified on 11/5/2019 to add 9CCA case number (ckh).
228 Expedited MOTION to Stay Brady James Hall appearing for Defendants Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda. Responses due by 11/21/2019 (Attachments: # 1 Memorandum in Support, # 2 Declaration Dawson)(Hall, Brady)
229 MOTION to Expedite Briefing Schedule Brady James Hall appearing for Defendants Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda. Responses due by 11/21/2019 (Hall, Brady)
231 DOCKET ENTRY ORDER: In consideration of Defendants' Motion to Expedite Briefing 299 as to Defendants' Expedited Motion to Stay 288 , and finding good cause therefor, the Court hereby grants the motion. Plaintiff must file a response of no more than 15 pages on or before November 5, 2019 at 12 p.m. M.S.T. The Court will issue an order on the Expedited Motion to Stay as expeditiously as possible after Plaintiff's response is filed with the Court. Signed by Judge B. Lynn Winmill.

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 23 of 27

11/01/2019 11/01/2019 11/01/2019 11/01/2019 11/04/2019 11/05/2019 11/05/2019 11/06/2019 11/06/2019
11/06/2019
11/07/2019 11/07/2019 11/07/2019 11/08/2019 11/08/2019

(ah)
232 STATUS REPORT by Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda. (Eaton, Dylan)
233 Sealed Document Re: 232 Status Report . (Eaton, Dylan)
Set/Reset Deadlines as to 228 Expedited MOTION to Stay . Per Docket Entry Order 231 , response due by 11/5/19 at 12 pm MST (jp) (Entered: 11/04/2019)
237 USCA Case Number 19−35917 for 227 Notice of Appeal, filed by Rona Siegert, Howard Keith Yordy, Catherine Whinnery, Henry Atencio, Jeff Zumda, Idaho Department of Correction, Corizon Incorporated, Murray Young, Kevin Kempf, Scott Eliason, and Richard Craig. (ckh) (Entered: 11/05/2019)
234 REPLY to Response to Motion re 214 Joint MOTION to Stay filed by Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda.Motion Ripe Deadline set for 11/5/2019.(Eaton, Dylan)
235 MEMORANDUM in Opposition re 228 Expedited MOTION to Stay filed by Adree Edmo. (Shanbhag, Shaleen) Modified on 11/6/2019 to remove reply deadline, as no replies will be permitted by Judge Winmill (ckh).
236 MOTION to Strike 228 Expedited MOTION to Stay Portions of the Declaration of April Dawson, M.D. Shaleen Shanbhag appearing for Plaintiff Adree Edmo. Responses due by 11/6/2019 at 2 pm (Shanbhag, Shaleen). Modified on 11/6/2019 to indicate new response deadline (ckh).
Set/Reset Deadlines as to 236 MOTION to Strike 228 Expedited MOTION to Stay Portions of the Declaration of April Dawson, M.D. Responses due by 11/6/2019 at 2 pm. (ckh)
238 RESPONSE to Motion re 236 MOTION to Strike 228 Expedited MOTION to Stay Portions of the Declaration of April Dawson, M.D. filed by Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Kevin Kempf, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda. Replies due by 11/20/2019.(Eaton, Dylan)
239 DOCKET ENTRY ORDER: In consideration of Defendants' Expedited Motion to Stay 228 , and to provide the Court adequate time to carefully and fully consider the motion, the Court hereby vacates the November 8, 2019 deadline [see 225] for Defendants to provide Plaintiff the first hair removal treatment, to be reset by subsequent order. Signed by Judge B. Lynn Winmill. (ah)
240 USCA Scheduling Order (19−35917) as to 227 Notice of Appeal, filed by Rona Siegert, Howard Keith Yordy, Catherine Whinnery, Henry Atencio, Jeff Zumda, Idaho Department of Correction, Corizon Incorporated, Murray Young, Kevin Kempf, Scott Eliason, and Richard Craig. (Notice sent by e−mail to Court Reporter) (ckh)
241 TRANSCRIPT REQUEST by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda for proceedings held on 10/17/2019 before Judge Winmill.. (Hall, Brady)
242 TRANSCRIPT REQUEST by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda for proceedings held on 10/31/2019 before Judge Winmill.. (Hall, Brady)
243 Amended TRANSCRIPT REQUEST by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda for proceedings held on 10/30/2019 before Judge Winmill.. (Hall, Brady) Modified on 11/8/2019 to indicate amended (ckh).
244 ORDER DENYING DEFENDANTS' EXPEDITED MOTION TO STAY re 228 Expedited Motion to Stay. IT IS ORDERED that Defendants' Expedited Motion to Stay (Dkt. 228 ) is DENIED. The deadline for scheduling and completion of the first

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11/09/2019
11/09/2019 11/09/2019
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hair removal appointment will remain vacated pending the Court's decision following the hearing described above. Defendants may file a motion requesting that the Court consider alternative means of remedying their established violation of the Plaintiff's Eighth Amendment rights. Such a motion must be filed by November 15, 2019. Plaintiffs shall respond with any briefs, affidavits, or other evidentiary materials they wish to submit by November 20, 2019. A hearing on Defendants' motion will be conducted on November 21, 2019, at 9:00 a.m. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)
245 Transcript filed, Telephonic Status Conference, 10/30/19 re 227 Notice of Appeal, Court Transcriber Katherine Eismann, Email katherine_eismann@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the court transcriber or PACER. Redaction Request due 12/2/2019. Redacted Transcript Deadline set for 12/10/2019. Release of Transcript Restriction set for 2/7/2020. (ke)
246 Notice of Filing of Official Transcript, Telephonic Status Conference, 10/30/19. (ke)
247 Transcript of Telephonic Status Conference filed for dates of October 17, 2019 before Judge B. Lynn Winmill, re 227 Notice of Appeal, Court Transcriber Katherine Eismann, Email katherine_eismann@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court RTranscriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the court transcriber or PACER. Redaction Request due 12/2/2019. Redacted Transcript Deadline set for 12/10/2019. Release of Transcript Restriction set for 2/7/2020. (ke)
248 Notice of Filing of Official Transcript, 10/17/19 Telephonic Status Conference. (ke)
249 MOTION for Reconsideration re 244 Order on Motion to Stay,,, Lori E Rifkin appearing for Plaintiff Adree Edmo. Responses due by 12/3/2019 (Rifkin, Lori)
250 RESPONSE re 244 Order on Motion to Stay,,, filed by Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda Objection to Order. (Attachments: # 1 Affidavit of Geoffrey D. Stiller, # 2 Exhibit A to Second Declaration of Geoffrey D. Stiller)(Eaton, Dylan)
251 ORDER denying 249 Motion for Reconsideration. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
252 MEMORANDUM/BRIEF filed by Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda in Connection with Evidentiary Hearing of November 21, 2019. (West, J)
253 MEMORANDUM/BRIEF re 244 Order on Motion to Stay,,, 251 Order on Motion for Reconsideration filed by Adree Edmo RE HEARING ON SURGICAL TECHNIQUE AND PRESURGICAL TREATMENT. (Attachments: # 1 Affidavit Declaration of Ryan Nicholas Gorton, M.D., # 2 Affidavit Declaration of Loren Schechter, M.D., # 3 Affidavit Declaration of Adree Edmo)(Rifkin, Lori)
257 ORDER of USCA as to 227 Notice of Appeal, filed by Rona Siegert, Howard Keith Yordy, Catherine Whinnery, Henry Atencio, Jeff Zumda, Idaho Department of Correction, Corizon Incorporated, Murray Young, Kevin Kempf, Scott Eliason, and Richard Craig. We lack jurisdiction to consider this appeal. This appeal is DISMISSED. (ckh) (Entered: 11/25/2019)
254 Minute Entry for proceedings held before Judge B. Lynn Winmill: In Person Hearing held on 11/21/2019. The Court reinstated its previous Order dated October 24, 2019 (Dkt. 225) and indicated Ms. Edmo must receive her first laser hair removal treatment on or before November 26, 2016. (Court Reporter Tammy Hohenleitner.) (jlb)THESE MINUTES SHALL STAND AS THE ORDER OF THE COURT
255 DOCKET ENTRY ORDER vacating as MOOT Plaintiff's Motion to Strike 236 . Signed by Judge B. Lynn Winmill.

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 25 of 27

11/22/2019 12/04/2019 12/05/2019
12/12/2019 12/23/2019 02/10/2020 02/10/2020 02/11/2020
02/11/2020 02/19/2020 02/19/2020
02/20/2020 02/21/2020

(ah)
256 Sealed Document Re: 230 Status Conference, Defendants' Joint Status Report. (Eaton, Dylan)
258 BILL OF COSTS Pursuant to FRAP 39(e) by Adree Edmo. Taxation of Costs due by 12/18/2019 (Shanbhag, Shaleen)
259 Notice of Filing of Official Transcript of Proceedings held on 11/21/19 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 12/26/2019. Redacted Transcript Deadline set for 1/6/2020. Release of Transcript Restriction set for 3/4/2020. (th)
260 MANDATE of USCA 19−35917 as to 227 Notice of Appeal, filed by Rona Siegert, Howard Keith Yordy, Catherine Whinnery, Henry Atencio, Jeff Zumda, Idaho Department of Correction, Corizon Incorporated, Murray Young, Kevin Kempf, Scott Eliason, Richard Craig. (jd) (Entered: 12/16/2019)
261 BILL OF COSTS by Adree Edmo. Taxation of Costs due by 1/6/2020 (Shanbhag, Shaleen)
262 DOCKET ENTRY NOTICE OF HEARING: A Telephonic Status Conference is set for 2/21/2020 at 11:30 AM (Mountain Time) before Judge B. Lynn Winmill. The call in information is as follows: dial in number 1−877−336−1828, access code 4685496, and security code 9455.(jlb)
263 ORDER of USCA (19−35017) as to 154 Notice of Appeal filed by Rona Siegert, Richard Craig, Howard Keith Yordy, Henry Atencio, Jeff Zumda, and Idaho Department of Correction. The petition for rehearing en banc is DENIED. (Attachments: # 1 Ninth Circuit Cited Materials) (ckh) (Entered: 02/11/2020)
264 ORDER DENYING DEFENDANTS' JOINT MOTION TO STAY re 214 Motion to Stay. Pending before the Court is a joint motion to stay filed by Defendants Corizon Inc., Scott Eliason, Murray Young, and Catherine Whinnery. Dkt. 214 . The Court will dismiss the motion as moot. As is possible, the parties should meet and confer in advance of the February 21, 2020 conference to revisit the proposed timeline, reach agreement on remaining discovery topics, and discuss any other pertinent case−management issues. IT IS SO ORDERED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)
NOTICE TO COURT that counsel Alexander Chen wishes to no longer be noticed electronically on this case as of the date of this notice. (Whelan, Amy)
265 ORDER of USCA (19−35017) as to 154 Notice of Appeal, filed by Rona Siegert, Richard Craig, Howard Keith Yordy, Henry Atencio, Jeff Zumda, Idaho Department of Correction. Appellants' motion to stay the mandate pending filing of petition for writ of certiorari, (No. 19−35017, Dkt. 106; No. 19−35019, Dkt. 108), is denied. (ckh)
266 MANDATE of USCA (19−35017) as to 154 Notice of Appeal, filed by Rona Siegert, Richard Craig, Howard Keith Yordy, Henry Atencio, Jeff Zumda, Idaho Department of Correction. The judgment of this Court, entered August 23, 2019, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. Costs are taxed against the appellants in the amount of $292.90. (ckh)
267 ORDER of USCA (19−35017) as to 154 Notice of Appeal, filed by Rona Siegert, Richard Craig, Howard Keith Yordy, Henry Atencio, Jeff Zumda, and Idaho Department of Correction. Appellee's motion to transfer consideration of attorneys' fees on appeal to the district court, (No. 19−35017, Dkt. 107; No. 19−35019, Dkt. 109), is granted. (ckh) (Entered: 02/21/2020)
268 Minute Entry for proceedings held before Judge B. Lynn Winmill: Telephonic Status Conference held on 2/21/2020. (Status Report due by 2/28/2020.) (Court Reporter:

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 26 of 27

02/26/2020
02/28/2020 03/02/2020 03/02/2020
03/05/2020
03/05/2020 03/11/2020 03/25/2020 04/06/2020 04/17/2020
05/13/2020 05/21/2020 05/26/2020 06/01/2020 06/02/2020

Tammy Hohenleitner.) (st)THESE MINUTES SHALL STAND AS THE ORDER OF THE COURT (Main Document 268 replaced on 2/27/2020 to indicate the correct hearing date in the minutes) (st).
269 Notice of Filing of Official Transcript of Proceedings held on 2/21/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 3/18/2020. Redacted Transcript Deadline set for 3/30/2020. Release of Transcript Restriction set for 5/26/2020. (th)
270 STIPULATION and Joint Motion Re: Motion for Attorneys' Fees & Costs by Adree Edmo. (Rifkin, Lori)
271 Sealed Document Re: 268 Status Conference,, Set Deadlines/Hearings, Defendants' Joint Status Report. (Hall, Brady)
272 MOTION to Stay Brady James Hall appearing for Defendants Henry Atencio, Corizon Incorporated, Richard Craig, Scott Eliason, Idaho Department of Correction, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young, Jeff Zumda. Responses due by 3/23/2020 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Dylan Eaton, # 3 Exhibit Exhibit A to Declaration of Dylan Eaton)(Hall, Brady)
273 DOCKET ENTRY ORDER: In consideration of the Motion to Stay 272 , and to further the just, speedy, and inexpensive determination of this matter, the Court hereby expedites the response deadline. Plaintiff must file any response to the Motion to Stay on or before March 11, 2020. Signed by Judge B. Lynn Winmill. (ah)
Set/Reset Deadlines as to 272 MOTION to Stay . Responses due by 3/11/2020 per docket 273. (ckh)
274 RESPONSE to Motion re 272 MOTION to Stay filed by Adree Edmo. Replies due by 3/25/2020.(Rifkin, Lori)
275 REPLY to Response to Motion re 272 MOTION to Stay filed by Corizon Incorporated, Richard Craig, Scott Eliason, Kevin Kempf, Rona Siegert, Catherine Whinnery, Howard Keith Yordy, Murray Young.Motion Ripe Deadline set for 3/26/2020.(Eaton, Dylan)
276 Sealed Document. (Hall, Brady)
277 ORDER GRANTING DEFENDANTS' JOINT MOTION TO STAY re 272 Motion to Stay. IT IS ORDERED THAT Defendants' Motion to Stay (Dkt. 272 ) is GRANTED. Defendants must preserve all relevant evidence, including electronically stored information subject to routine document retention removal practices, during the duration of this case. Defendants must continue to provide Plaintiff with presurgical treatment consistent with the Court's October 2019 presurgical order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)
278 Letter from Supreme Court of the United States. (ckh)
279 Letter from Supreme Court of the United States. (ckh) (Entered: 05/26/2020)
280 STATUS REPORT & Request for Status Conference re Compliance with Order to Provide Surgery by Adree Edmo. (Rifkin, Lori)
281 DOCKET ENTRY NOTICE OF HEARING: A Status Conference is set for 6/3/2020 at 4:00 PM before Judge B. Lynn Winmill. (jlb)
282 DOCKET ENTRY NOTICE OF HEARING: The Court will hold a Video Status Conference on 6/3/2020 at 4:00 PM (Mountain Time) before Judge B. Lynn Winmill. The Parties will be provided a link to connect to video separately. The public may listen to the hearing by phone using the following information: 1−669−254−5252;

Case 1:17-cv-151 Document <docnum> Filed <datefiled> Page 27 of 27

06/03/2020 06/15/2020
06/29/2020 06/29/2020 06/30/2020 06/30/2020 07/01/2020
07/01/2020 07/02/2020

Meeting ID: 160 130 7422; Password: 246421. Members of the public are reminded to mute their phones and that recording the proceedings is prohibited. (jlb)
283 Minute Entry for proceedings held before Judge B. Lynn Winmill: Video Status Conference held on 6/3/2020. (Court Reporter Tammy Hohenleitner.) (jlb) (Entered: 06/04/2020)
284 Notice of Filing of Official Transcript filed for dates of 6/3/20 before Judge B. Lynn Winmill, re 283 Status Conference. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2020. Redacted Transcript Deadline set for 7/16/2020. Release of Transcript Restriction set for 9/14/2020. (th)
286 CERTIFICATE OF SERVICE by Adree Edmo re 285 Ex Parte Document (Rifkin, Lori)
287 RESPONSE re 286 Certificate of Service filed by Henry Atencio, Richard Craig, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda . (Hall, Brady)
288 DOCKET ENTRY NOTICE OF HEARING: A Telephonic Status Conference is set for 7/1/2020 at 9:00 AM (Mountain Time) before Judge B. Lynn Winmill. The call in information is as follows: dial in number 1−877−336−1828 and access code 4685496. (jlb)
289 JOINDER by Defendants Corizon Incorporated, Scott Eliason, Catherine Whinnery, Murray Young joining 287 Response(generic) . (Eaton, Dylan)
290 ORDER REQUIRING DEFENDANTS TO PROVIDE IMMEDIATE COVID−19 TESTING AND TRANSPORT OF PLAINTIFF. The Court hereby orders as follows: Defendants must immediately test Plaintiff for COVID−19 and take any efforts necessary to expedite the receipt of her test results. If Plaintiff's COVID−19 test result is negative for the presence of the virus, Defendants must arrange for the timely transport of Plaintiff to a facility that will enable her to receive gender confirmation surgery as ordered by this Court and as previously scheduled by Defendants. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)
291 Minute Entry for proceedings held before Judge B. Lynn Winmill: Telephonic Status Conference held on 7/1/2020. The Court ordered immediate COVID−19 testing (see Order 290). (Court Reporter/ESR Tammy Hohenleitner.) (jlb)
292 NOTICE by Henry Atencio, Idaho Department of Correction, Rona Siegert, Howard Keith Yordy, Jeff Zumda re 290 Order,, NOTICE OF COMPLIANCE WITH ORDER (Hall, Brady)

 
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 Case 1:17-cv-00151-BLW Document 43 Filed 11/01/17 Page 1 of 14

Brady J. Hall (ISB No. 7873) brady@melawfirm.net Marisa S. Crecelius (ISB No. 8011) marisa@melawfirm.net Moore Elia Kraft & Hall, LLP Post Office Box 6756 Boise, Idaho 83707 Telephone: (208) 336-6900 Facsimile: (208) 336-7031
Attorneys for Defendants Idaho Department of Corrections, Henry Atencio, Jeff Zmuda, Howard Keith Yordy, Richard Craig, and Rona Siegert
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ADREE EDMO,
Plaintiffs,
vs.
IDAHO DEPARTMENT OF CORRECTION; HENRY ATENCIO, in his official capacity; JEFF ZMUDA, in his official capacity; HOWARD KEITH YORDY, in his official and individual capacities; CORIZON, INC.; SCOTT ELIASON; MURRAY YOUNG; RICHARD CRAIG; RONA SIEGERT; CATHERINE WHINNERY; AND DOES 1-15;
Defendants. _________________________________

) Case No. 1:17-cv-151-BLW ) ) MEMORANDUM IN SUPPORT OF IDOC ) DEFENDANTS’ FIRST MOTION FOR ) DISPOSITIVE RELIEF ) ) ) ) ) ) ) ) ) ) ) ) ) )

MEMORANDUM IN SUPPORT OF IDOC DEFENDANTS’ FIRST MOTION FOR DISPOSITIVE RELIEF – pg. 1

Case 1:17-cv-00151-BLW Document 43 Filed 11/01/17 Page 2 of 14
COME NOW Defendants Idaho Department of Correction, Henry Atencio, Jeff Zmuda, Howard Keith Yordy, Richard Craig and Rona Siegert (collectively referred to as the “IDOC Defendants”), by and through their counsel of record, Moore Elia Kraft & Hall, LLP, and pursuant to District Local Rule Civ. 7.1(b)(1), hereby submit this separate memorandum in support containing all of the reasons and points and authorities in support of the IDOC Defendants’ Initial Motion for Dispositive Relief.
LEGAL STANDARDS 1. Summary Judgment Standard Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the summary judgment rule “is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is not “a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, there must be no genuine dispute as to any material fact in order for a case to survive summary judgment. Material facts are those “that might affect the outcome of the suit.” Id. at 248. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
MEMORANDUM IN SUPPORT OF IDOC DEFENDANTS’ FIRST MOTION FOR DISPOSITIVE RELIEF – pg. 2

Case 1:17-cv-00151-BLW Document 43 Filed 11/01/17 Page 3 of 14
The moving party is entitled to summary judgment if that party shows that each material fact cannot be disputed. To show that the material facts are not in dispute, a party may cite to particular parts of materials in the record, or show that the adverse party is unable to produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A) & (B). The Court must consider “the cited materials,” but it may also consider “other materials in the record.” Fed. R. Civ. P. 56(c)(3). The Court is “not required to comb through the record to find some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (internal quotation marks omitted). Instead, the “party opposing summary judgment must direct [the Court's] attention to specific triable facts.” So. Ca. Gas Co., 336 F.3d at 889.
If the moving party meets its initial responsibility, then the burden shifts to the opposing party to establish that a genuine dispute as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The existence of a scintilla of evidence in support of the non-moving party's position is insufficient. Rather, “there must be evidence on which [a] jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.
Material used to support or dispute a fact should be “presented in a form that would be admissible in evidence,” or it may be subject to being stricken. Fed. R. Civ. P. 56(c)(2).3 Affidavits or declarations submitted in support of or in opposition to a motion “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
If a party “fails to properly support an assertion of fact or fails to properly address another party's assertion of fact,” the Court may consider that fact to be undisputed. Fed. R. Civ.
MEMORANDUM IN SUPPORT OF IDOC DEFENDANTS’ FIRST MOTION FOR DISPOSITIVE RELIEF – pg. 3

Case 1:17-cv-00151-BLW Document 43 Filed 11/01/17 Page 4 of 14
P. 56(e)(2). The Court may grant summary judgment for the moving party “if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3).
The Court does not determine the credibility of affiants or weigh the evidence set forth by the parties. Although all reasonable inferences which can be drawn from the evidence must be drawn in a light most favorable to the non-moving party, T.W. Elec. Serv., Inc., 809 F.2d at 63031, the Court is not required to adopt unreasonable inferences from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
2. Motion to Dismiss Standard A motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a party's claim for relief. A 12(b)(6) motion may be based on the expiration of the applicable statute of limitations period for the claims asserted in the complaint. Review of the merits of the 12(b)(6) motion is limited to the face of the complaint. A court's inquiry is whether the allegations in the pleading are sufficiently set forth. The plaintiff need only present a “short and plain statement of the claim” that shows the plaintiff is entitled to relief and that provides the defendant with fair notice of the grounds for the claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss under Federal Rule of Civil Procedure 12, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Dismissal is appropriate if there is a lack of any cognizable legal theory or a failure to plead sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court generally should not
MEMORANDUM IN SUPPORT OF IDOC DEFENDANTS’ FIRST MOTION FOR DISPOSITIVE RELIEF – pg. 4

Case 1:17-cv-00151-BLW Document 43 Filed 11/01/17 Page 5 of 14
consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1997).
ANALYSIS 1. All of Ms. Edmo’s claims not properly exhausted should be dismissed. Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e, et seq., prisoners are required to exhaust all available administrative remedies within the prison system before they can include the claims in a new or ongoing civil rights lawsuit challenging the conditions of their confinement. 42 U.S.C. § 1997e(a); see also Cano v. Taylor, 739 F.3d 1214, 1220-21 (9th Cir. 2014). “Proper” exhaustion of administrative remedies is required, meaning that the prisoner must comply “with [the prison's] deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). However, an inmate need only exhaust those remedies that are “available”—that is, an inmate must exhaust “those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). Proper exhaustion is required “even where it may appear futile.” Nunez v. Duncan, 591 F.3d 1217, 1231 (9th Cir. 2010) (quoting Booth, 532 U.S. at 741). The exhaustion requirement is based on the important policy concern that prison officials should have “an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Id. at 204.
MEMORANDUM IN SUPPORT OF IDOC DEFENDANTS’ FIRST MOTION FOR DISPOSITIVE RELIEF – pg. 5

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As the PLRA intended, all motions addressing exhaustion of administrative remedies, including “disputed factual questions relevant to exhaustion [,] should be decided at the very beginning of the litigation.” Id. at 1171. Rule 56 prohibits the courts from resolving genuine disputes of material fact on summary judgment. However, if a genuine dispute exists as to material facts relating to an exhaustion defense such that summary judgment is inappropriate, the Court is authorized—but not required—to decide the disputed facts in an appropriate preliminary proceeding, “in the same manner a judge rather than a jury decides disputed factual questions relevant to jurisdiction and venue.” Id. at 1170-71. See also McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 184 (1936) (stating that the court may “inquire into the facts as they really exist”) (internal quotation marks omitted); Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1139 (9th Cir. 2004) (stating that the court may “hold[ ] an evidentiary hearing on the disputed facts”); Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987) (stating that the court “has the discretion to take evidence at a preliminary hearing in order to resolve any questions of credibility or fact” and that the plaintiff must establish the facts “by a preponderance of the evidence, just as he would have to do at trial”) (internal quotation marks omitted). In all cases, “[e]xhaustion should be decided, if feasible, before reaching the merits of a prisoner's claim.” Albino, 747 F.3d at 1170.
The defendant bears the ultimate burden of proving failure to exhaust. See Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). If the defendant initially shows that (1) an available administrative remedy existed and (2) the prisoner failed to exhaust that remedy, then the burden of production shifts to the plaintiff to bring forth evidence “showing that there is something in his particular case that made the existing and generally available administrative remedies
MEMORANDUM IN SUPPORT OF IDOC DEFENDANTS’ FIRST MOTION FOR DISPOSITIVE RELIEF – pg. 6

Case 1:17-cv-00151-BLW Document 43 Filed 11/01/17 Page 7 of 14
effectively unavailable to him.” Albino, 747 F.3d at 1172. “[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218.
Here, it is undisputed that the IDOC’s Grievance Process was at all times available to Ms. Edmo. (Statement of Material Facts in Support of IDOC Defendants’ Initial Motion for Dispositive Relief (hereinafter “SMF”), ¶ 3). However, Ms. Edmo did not complete the IDOC’s Grievance Process as to the September 29, 2015 self-castration attempt or the December 31, 2016 self-castration attempt. (Id. at ¶¶ 6-7) Nor did Ms. Edmo complete the IDOC’s Grievance Process within the relevant time period regarding claims for injuries and “severe symptoms” allegedly incurred as a result of the “Defendants’ failure to adequately treat Plaintiff’s gender dysphoria.” (SMF, ¶ 8) Further, Ms. Edmo did not properly and time complete the Grievance Process as to her claims challenging IDOC’s policies prohibiting her from possessing or wearing women’s makeup, obtaining a legal name change, and/or being transferred to a women’s correctional institution. (Declaration of Dana Maybon (“Maybon Decl.”), ¶ 15)
It appears that Ms. Edmo completed the IDOC Grievance Process on several issues and incidents that are (or may be) subjects of this lawsuit: the August 10, 2016 sexual assault (Maybon Decl., ¶ 12); wearing a feminine hairstyle (Maybon Decl., Exh. D, pp. 1-2); staff use of gender pronouns (Maybon Decl., Exh. D, pp. 3-8); denial of electrolysis or hair remover (Maybon Decl., Exh. D, pp. 11-12); alleged denial of a medical/mental health evaluation with a “qualified gender identity disorder evaluator” (Maybon Decl., Exh. D, pp. 15-16); being housed in the Behavioral Health Unit (“BHU”) (Maybon Decl., Exh. D, pp. 17-18); and denial of a medical memo for female underwear and/or “panties” (Maybon Decl., Exh. D, pp. 19-20). However, the remaining allegations and claims in Ms. Edmo’s Second Amended Complaint have
MEMORANDUM IN SUPPORT OF IDOC DEFENDANTS’ FIRST MOTION FOR DISPOSITIVE RELIEF – pg. 7

Case 1:17-cv-00151-BLW Document 43 Filed 11/01/17 Page 8 of 14
not been properly exhausted and should be dismissed. See, e.g., Jones v. Bock, 549 U.S. 199, 211 (2007).
2. The two-year statute of limitations bars Ms. Edmo from bringing any claims that arose prior to April 6, 2015.
It is well-established that claims brought under § 1983 borrow the forum state’s statute of limitations for personal injury claims, Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 1095, 166 L.Ed.2d 973, 980–81 (2007); McCabe v. Craven, 145 Idaho 954, 957, 188 P.3d 896, 899 (2008). In Idaho, that limitations period is two years. See Idaho Code § 5-219(4). Idaho Courts must look to federal law to determine the date at which a § 1983 action accrues. Kato, 549 U.S. at 388, 127 S.Ct. at 1095. Generally, federal law states that “accrual occurs when the plaintiff has a complete and present cause of action” and “can file suit and obtain relief.” Id. (internal quotations removed). In other words, the statute of limitations begins to run “when the wrongful act or omission results in damages. The cause of action accrues even though the full extent of the injury is not then known or predictable.” Id. 549 U.S. at 390, 127 S.Ct. at 1097 (internal quotations omitted).
Here, it appears that Ms. Edmo seeks to recover damages for injuries and “severe symptoms” that she allegedly suffered as a result of incidents that occurred more than two years prior to the filing of this civil rights lawsuit on April 6, 2017. (Dkt. 36, ¶¶ 8, 9, 44-45, 64, 67, 79, 88, 93, 95, 101,108, and 113) For example, Ms. Edmo alleges that she attempted suicide in February 2014 and that she “experienced severe symptoms” between 2012 to early 2015 as a result of Defendants’ having “denied and/or ignored Plaintiff’s requests.” (Dkt. 36, ¶¶ 44(a)-(j), 45, and 49) (SMF, ¶¶ 5, 8) However, to the extent Ms. Edmo seeks damages for those events that occurred prior to April 6, 2015 (two years prior to the date Ms. Edmo commenced this lawsuit), the same are barred by the applicable two-year statute of limitations. Idaho Code § 5-219(4).
MEMORANDUM IN SUPPORT OF IDOC DEFENDANTS’ FIRST MOTION FOR DISPOSITIVE RELIEF – pg. 8

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Accordingly, Ms. Edmo should be precluded from requesting monetary compensation for, or challenging the constitutionality of, those alleged incidents and violations that occurred prior to April 6, 2015.
3. Ms. Edmo cannot maintain her claim under the Americans with Disabilities Act. Ms. Edmo’s “Fourth Claim for Relief” apparently seeks to recover monetary damages against the IDOC for alleged violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 121-1, et seq. (Dkt. 36, ¶ 95) This claim, however, should be dismissed against the IDOC for the two following reasons: First, the IDOC is a department of the State of Idaho, which is immune from suit in federal court pursuant to the Eleventh Amendment. The Eleventh Amendment prohibits a federal court from entertaining a suit brought by a citizen against a state. Hans v. Louisiana, 134 U.S. 1, 16-18 (1890). The Supreme Court has consistently applied the Eleventh Amendment’s jurisdictional bar to states and state entities “regardless of the nature of the relief sought.” See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Moreover, only a “person” may be sued pursuant to 42 U.S.C. § 1983, and a state is not considered a “person” under that statute. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Second, Ms. Edmo’s alleged disability, Gender Identity Disorder/Gender Dysphoria, is specifically excluded from the definition of “disability” as defined under the ADA and the Rehabilitation Act. See 42 U.S.C. § 12211(b)(1) and 29 U.S.C. § 705(20)(F)(i). See also Johnson v. Fresh Mark, Inc., 98 Fed.Appx. 461 462 (6th Cir. 2004). Absent a qualifying disability, Ms. Edmo’s ADA claim should be dismissed.
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4. Ms. Edmo’s Affordable Care Act Claim should be dismissed. In her “Fifth Claim for Relief”, Ms. Edmo alleges that IDOC Defendants Henry Atencio, Jeff Zmuda, and Howard Keith Yordy discriminated against Ms. Edmo on the basis of her transgendered status and diagnosis of Gender Dysphoria, and that such alleged discrimination was a violation of Section 1557 of the Affordable Care Act (ACA), 42 U.S.C. § 18116. (Dkt. 36, ¶¶ 97-101) However, the ACA did not create a new enforcement mechanism, but instead incorporated those “enforcement mechanisms provided for and available under such title VI, title IX, section 504, such Age Discrimination Act,” saying that those statutes “shall apply for purposes of violations of this subsection.” And, as set forth above, gender identity disorders (now known as Gender Dysphoria) are excluded from Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 701. See 49 U.S.C. § 705(20)(F)(i) (stating that “for purposes of sections 791, 793, and 794 of this title, the term ‘individual with a disability’ does not include an individual on the basis of ….gender identity disorders not resulting from physical impairments, or other sexual behavior disorders”) (emphasis added). 5. Ms. Edmo’s negligence claim against three IDOC Defendants should be
dismissed. Ms. Edmo’s “Seventh Claim for Relief” alleges that IDOC Defendants Henry Atencio, Jeff Zmuda, and Howard Keith Yordy were negligent under Idaho law. (Dkt. 36, ¶¶ 111-115) There are two primary reasons why Ms. Edmo’s negligence claim should be dismissed: First, Ms. Edmo’s Second Amended Complaint lacks the requisite factual assertions “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. In other words, although Rule 8 of the Federal Rules of Civil Procedure “does not require detailed factual allegations,…it demands
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more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. (internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” the complaint has not stated a claim for relief that is plausible on its face. Id. (internal quotation marks omitted).
Here, Ms. Edmo has alleged absolutely no facts to suggest that Mr. Atencio, Mr. Zmuda, or Mr. Yordy were negligent, that is that they (1) owed Ms. Edmo a legal duty of care, (2) that they breached that legal duty of care, (3) that Ms. Edmo sustained actual damages, and (4) that the damages Ms. Edmo sustained were proximately caused by the Defendants’ alleged breaches. See, e.g., O’Guin v. Bingham County, 142 Idaho 49, 52 (2005) (setting forth the common law elements that a plaintiff pursuing a claim of negligence in Idaho must establish). In paragraph 111 and 112 of the Second Amended Complaint (Dkt. 36), Ms. Edmo sets forth only conclusory allegations that unspecified “Defendants” generally “failed to comply with professional standards”, yet Ms. Edmo has not alleged a single fact even suggesting that Mr. Atencio, Mr. Zmuda, and/or Mr. Yordy acted in a manner that deviated from such “professional standards” or even a general duty of care.
Second, Ms. Edmo’s state negligence claim against Mr. Atencio, Mr. Zmuda and Mr. Yordy should be dismissed because Ms. Edmo failed to file timely and sufficient notices of claims pursuant to Idaho Code § 6-905. The filing of a tort claim with the Secretary of State is a mandatory condition precedent, and when read together with Idaho Code § 6-908, it is clear that failure to comply with the notice requirement bars a suit regardless of how legitimate it might be. See, e.g., Driggers v. Grafe, 148 Idaho 295, 297 (2009) and Banks v. University of Idaho, 118 Idaho 607, 608 (1990). In order to comply with the notice of claim requirement, Ms. Edmo was required to file tort claims with the Secretary of State within 180 days and to provide, among
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other information, the “time and place the injury or damage occurred” and the “names of all persons involved, if known.” Idaho Code §§ 6-905 and 6-907.
It is undisputed that Ms. Edmo has only filed three tort claims since November 2014. (Declaration of Lisa Mason (“Mason Decl.”), ¶ 3 and Exhs. A, B, and C) None of those tort claims, however, make any reference to Mr. Atencio, Mr. Zmuda, or Mr. Yordy, and no allegations stated therein infer that any of the IDOC Defendants had any involvement or knowledge of the incidents raised. (Id.) (SMF, ¶ 10) Similarly, the December 12, 2016 tort claim contains no date, time, or location that the referenced “negligent acts” or “sexual assault” occurred. (SMF, ¶ 9) Further, while the February 13, 2017 tort claim was timely filed as to the December 31, 2016 self-castration attempt, it was not timely filed within 180 days of the September 29, 2015 self-castration attempt. (SMF, ¶ 10)
At the very most, Ms. Edmo complied with Idaho Code § 6-905 as to only one incident: the December 31, 2016 self-castration attempt. (SMF, ¶ 10) (Mason Decl., Exh. C) That tort claim was filed within 180 days of the alleged August 2016 sexual assault. (Id.) However, there are no factual allegations in the Second Amended Complaint (Dkt. 36) for Ms. Edmo’s negligence claim to survive summary dismissal against Mr. Atencio, Mr. Zmuda, or Mr. Yordy. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, notice of any and all other incidents for which Ms. Edmo seeks damages in negligence against those three IDOC Defendants was not properly or timely filed as required by Idaho Code § 6-905. (Mason Decl., ¶ 3) Accordingly, all of those claims should be dismissed pursuant to Idaho Code § 6-908.
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Case 1:17-cv-00151-BLW Document 43 Filed 11/01/17 Page 13 of 14 CONCLUSION
For the foregoing reasons, the IDOC Defendants respectfully request that this Court grant the IDOC Defendants’ Initial Motion for Dispositive Relief and enter an order consistent with the relief requested in the motion. The IDOC Defendants also request that, after ruling on the motion, the Court orders Ms. Edmo to file a third amended complaint removing those claims and causes of actions that are dismissed.
DATED this 1st day of November, 2017. Moore Elia Kraft & Hall, LLP /s/Brady J. Hall Attorneys for Defendants Idaho Department of Correction, Henry Atencio, Jeff Zmuda, Howard Keith Yordy, Richard Craig, and Rona Siegert
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 1st day of November, 2017, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Dylan Eaton deaton@parsonsbehle.com J. Kevin West kwest@parsonsbehle.com Brady Hall brady@melawfirm.net Lori Rifkin lrifkin@hadsellstormer.com Dan Stormer dstormer@hadsellstormer.com Craig Durham chd@fergusondurham.com Deborah Ferguson daf@fergusondurham.com Amy Whelan awhelan@nclrights.org
/s/Brady J. Hall
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ADREE EDMO,
Plaintiff, v. IDAHO DEPARTMENT OF CORRECTION, et al., Defendants.

Case No. 1:17-cv-00151-BLW
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

INTRODUCTION For more than forty years, the Supreme Court has consistently held that consciously ignoring a prisoner’s serious medical needs amounts to cruel and unusual punishment in violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 103 (1976). After all, inmates have no choice but to rely on prison authorities to treat their medical needs, and “if the authorities fail to do so, those needs will not be met.” Id. Prison authorities thus treat inmates with all manner of routine medical conditions – broken bones are set; diabetic inmates receive insulin; inmates with cancer receive chemotherapy; and so on. This constitutional duty also applies to far less routine, and even controversial, procedures – if necessary to address a serious medical need. And so it is here. Plaintiff Adree Edmo alleges that prison authorities violated her Eighth Amendment rights by refusing to provide her with gender confirmation surgery. For the
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reasons explained below, the Court agrees and will order defendants to provide her with this procedure, a surgery which is considered medically necessary under generally accepted standards of care.
The Court will explain its reasoning below but will first pause to place this decision in a broader context. The Rule of Law, which is the bedrock of our legal system, promises that all individuals will be afforded the full protection of our legal system and the rights guaranteed by our Constitution. This is so whether the individual seeking that protection is black, white, male, female, gay, straight, or, as in this case, transgender. This decision requires the Court to confront the full breadth and meaning of that promise.
Adree Edmo is a male-to-female transgender prisoner in the custody of the Idaho Department of Correction (“IDOC”). She has been incarcerated since April 2012. In June 2012, soon after being incarcerated, an IDOC psychiatrist diagnosed Ms. Edmo with gender dysphoria. An IDOC psychologist confirmed that diagnosis a month later.
Gender dysphoria is a medical condition experienced by transgender individuals in which the incongruity between their assigned gender and their actual gender identity is so severe that it impairs the individual’s ability to function. The treatment for gender dysphoria depends upon the severity of the condition. Many transgender individuals are comfortable living with their gender identity, role, and expression without surgery. For others, however, gender confirmation surgery, also known as gender or sex reassignment surgery (“SRS”), is the only effective treatment.
To treat Ms. Edmo’s gender dysphoria, medical staff at the prison appropriately
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began by providing Ms. Edmo with hormone therapy. This continued until she was hormonally confirmed – meaning she had the same circulating sex hormones and secondary sex characteristics as a typical adult female. Ms. Edmo thus achieved the maximum physical changes associated with hormone treatment. But, Ms. Edmo continued to experience such extreme gender dysphoria that she twice attempted selfcastration. For her second attempt, Ms. Edmo prepared for weeks by studying the anatomy of the scrotum and took steps to diminish the chance of infection by boiling a razor blade and scrubbing her hands with soap. She was successful in opening the scrotum and exposing a testicle. But because there was too much blood, Ms. Edmo abandoned her second self-castration attempt and sought medical assistance. She was transported to a hospital where her testicle was repaired.
As already noted, an inmate has no choice but to rely on prison authorities to treat their medical needs. For this reason, the United States Supreme Court has held that deliberate indifference to a prisoner’s serious medical needs constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. See, e.g., Estelle v. Gamble, 429 U.S. 97, 103 (1976). To show such deliberate indifference, Ms. Edmo must establish two things. First, she must show a “serious medical need” by demonstrating that failure to treat a medical condition could result in significant further injury or the “unnecessary and wanton infliction of pain.” Second, she must show that the prison officials were aware of and failed to respond to her pain and medical needs, and that she suffered some harm because of that failure.
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Ms. Edmo’s case satisfies both elements of the deliberate indifference test. She has presented extensive evidence that, despite years of hormone therapy, she continues to experience gender dysphoria so significant that she cuts herself to relieve emotional pain. She also continues to experience thoughts of self-castration and is at serious risk of acting on that impulse. With full awareness of Ms. Edmo’s circumstances, IDOC and its medical provider Corizon refuse to provide Ms. Edmo with gender confirmation surgery. In refusing to provide that surgery, IDOC and Corizon have ignored generally accepted medical standards for the treatment of gender dysphoria. This constitutes deliberate indifference to Ms. Edmo’s serious medical needs and violates her rights under the Eighth Amendment to the United States Constitution. Accordingly, for the reasons explained in detail below, IDOC and Corizon will be ordered to provide Ms. Edmo with gender confirmation surgery. Thus, the Court will grant in part Plaintiff’s Motion for Preliminary Injunction (Dkt. 62).
In so ruling, the Court notes that its decision is based upon, and limited to, the unique facts and circumstances presented by Ms. Edmo’s case. This decision is not intended, and should not be construed, as a general finding that all inmates suffering from gender dysphoria are entitled to gender confirmation surgery.
FINDINGS OF FACT I. Transgender and Gender Dysphoria 1. Transgender is an umbrella term for a person whose gender identity is not congruent with their assigned gender. Tr. 50:5-11. A transgender person suffers
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from gender dysphoria when that incongruity is so severe that it impairs the individual’s ability to function. Tr. 50:12-14. 2. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) sets forth specific criteria which must exist before a diagnosis of gender dysphoria is appropriate. Specifically, two conditions are required:
a. First, there must be marked incongruence between one’s experienced/expressed gender and assigned gender, of at least six month’s duration, as manifested by at least two of the following: i. A marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics. ii. A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender. iii. A strong desire for the primary and/or secondary sex characteristics of the other gender. iv. A strong desire to be of the other gender. v. A strong desire to be treated as the other gender. vi. A strong conviction that one has the typical feelings and reactions of the other gender.
b. Second, the individual’s condition must be associated with clinically
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significant distress or impairment in social, occupational, or other important areas of functioning. Exh. 1001 at 3-4. 3. “Clinically significant distress” means that the distress impairs or severely limits the person’s ability to function in a meaningful way and has reached a threshold that requires either medical or surgical interventions, or both. Tr. 51:3-8. 4. Not every person who identifies as transgender has gender dysphoria. Tr. 50:5-11.
II. WPATH 5. The World Professional Association of Transgender Health (“WPATH”)
Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People were first promulgated in 1979 and are the internationally recognized guidelines for the treatment of individuals with gender dysphoria. Tr. 42:6-20; Exh. 15. WPATH Standards of Care are “flexible clinical guidelines.” Tr. 118:16-24, 119:1-7, 8-25, 288:7-23, and “are intended to be flexible in order to meet the diverse health care needs of transsexual, transgender, and gender nonconforming people.” Exh. 15 at 8. 6. The WPATH Standards of Care have provided treatment guidelines for incarcerated individuals since 1998. Tr. 54:11-21; Exh. 15 at 73. The current WPATH Standards of Care apply equally to all individuals “irrespective of their housing situation” and explicitly state that health care for transgender people “living in an institutional environment should mirror that which would be available to them if they were living in a non-institutional setting within the same
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community.” Tr. 54:11-21; Exh. 15 at 73. The next update to the WPATH Standards of Care will also apply to an individual regardless of where that person is housed, including in a prison setting. Tr. 54:25-55:12. 7. The WPATH Standards of Care indicate that options for psychological and medical treatment of gender dysphoria include:
a. changes in gender expression and role, b. hormone therapy to feminize or masculinize the body, c. surgical changes of primary or secondary sex characteristics, and d. psychotherapy. Exh. 15 at 15-16. 8. The WPATH Standards of Care suggest options for social support and changes in gender expression, including: a. offline and online peer support resources, groups, or community
organizations that provide avenues for social support and advocacy; b. offline and online support resources for families and friends; c. voice and communication therapy to help individuals develop verbal and
non-verbal communication skills that facilitate comfort with their gender identity; d. hair removal through electrolysis, laser treatment, or waxing; e. breast binding or padding, genital tucking or penile prostheses, padding of hips or buttocks; and f. changes in name and gender marker on identity documents. Exh. 15 at 16.
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9. The WPATH Standards of Care provide that the purposes of psychotherapy include “exploring gender identity, role, and expression; addressing the negative impact of gender dysphoria and stigma on mental health; alleviating internalized transphobia; enhancing social and peer support; improving body image; or promoting resilience.” Exh. 15 at 16.
10. Cross-sex hormone therapy results in development of secondary sex characteristics of the other sex and provides an increase in the overall level of well-being of a person with gender dysphoria. Tr. 60:8-22. For a transgender woman, hormone treatment has physical effects such as breast growth, thinning of facial hair, redistribution of fat and muscle, and shrinkage of the testicles. Tr. 246:7-20. The maximum physical effects of hormone therapy will typically be achieved within two to three years. Exh. 15 at 42; Tr. 60:23-61:5, 246:7-247:1.
11. Surgery – particularly genital surgery – is often the last and the most considered step in the treatment process for gender dysphoria. Exh. 15 at 60.
12. Many transgender individuals find comfort with their gender identity, role, and expression without surgery. Exh. 15 at 60. For many others, however, surgery is essential and medically necessary to alleviate their gender dysphoria. Exh. 15 at 60. For the latter group, relief from gender dysphoria cannot be achieved without modification of their primary or secondary sex characteristics to establish greater congruence with their gender identity. Exh. 15 at 60.
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13. For individuals with severe gender dysphoria, where hormone therapy is insufficient, gender confirmation surgery is the only effective treatment and is medically necessary. Tr. 168:23-169:15; see also Ettner Decl. ¶ 51.
14. The WPATH criteria for genital reconstruction surgery in male-to-female patients include the following: a. Persistent, well documented gender dysphoria; b. Capacity to make a fully informed decision and to consent for treatment; c. Age of majority in a given country; d. If significant medical or mental health concerns are present, they must be well controlled; e. 12 continuous months of hormone therapy as appropriate to the patient’s gender goals; and f. 12 continuous months of living in a gender role that is congruent with their gender identity. Exh. 15 at 66.
15. Regarding the first criterion, “persistent, well documented gender dysphoria” is deemed to exist when the person has a well-established diagnosis of gender dysphoria that has persisted beyond six months. Tr. 55:21-56:3.
16. Regarding the fourth criterion, the WPATH Standards of Care make clear that the presence of co-existing mental health concerns does not necessarily preclude possible changes in gender role or access to feminizing/masculinizing hormones or surgery. Exh. 15 at 31. But these concerns need to be optimally managed prior to,
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or concurrent with, treatment of gender dysphoria. Exh. 15 at 31. a. It is often difficult to determine whether coexisting mental health concerns are a result of gender dysphoria or are unrelated to that medical condition. Tr. 171:1-14, 24-25, 172:1-5; 387:20-25, 388:1, 398:2-18, 601: 11- 602: 2; Campbell Decl., Dkt. 101-4, ¶¶ 30-33. Co-existing mental health issues directly tied to an individual’s gender dysphoria should not be considered in assessing whether an individual meets the fourth WPATH criterion that significant medical or mental health concerns must be well controlled. Tr. 387:6 to 388:6.
17. Regarding the sixth criterion – a twelve-month experience of living in an identitycongruent role – the WPATH Standards of Care provide that this is intended to ensure that the individual has had the opportunity to experience the full range of different life experiences and events that may occur throughout the year (e.g., family events, holidays, vacations, season-specific work or school experiences). During this time, patients should present consistently, on a day-to-day basis and across all settings of life, in their desired gender role. This includes coming out to partners, family, friends, and community members (e.g., at school, work, and in other settings). Exh. 15 at 67.
18. An individual in prison can satisfy the criterion of living in a gender role congruent with their gender identity. Tr. 62:16-63:4, 584:16-25.
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III. Expert Testimony A. Plaintiff’s Experts 19. Dr. Ettner is one of the authors of the WPATH Standards of Care, version 7. Tr.
42:21-24. Dr. Ettner has been a WPATH member since 1993 and chairs its Committee for Institutionalized Persons. Tr. 43:2-16; Exh. 1003.
a. Dr. Ettner has treated approximately 3,000 individuals with gender dysphoria, including evaluating whether gender confirmation surgery is necessary for certain patients. She has referred approximately 300 patients for gender confirmation surgery and assessed approximately 30 incarcerated individuals with gender dysphoria. Tr. 43:17-44:1, 44:9-13.
b. Dr. Ettner has extensive experience treating patients who have undergone gender confirmation surgery. Tr. 44:2-8.
c. Dr. Ettner is an author or editor of numerous peer-reviewed publications on treatment of gender dysphoria and transgender healthcare. Dr. Ettner is an editor for the textbook, “Principles of Transgender Medicine and Surgery,” which was revised in 2017 and is the textbook used in medical schools. Tr. 44:14-45:1; Exh. 1003.
d. Dr. Ettner also trains medical and mental health providers on treating people with gender dysphoria, including assessing whether gender confirmation surgery is appropriate, through the global education initiative of WPATH and other presentations. Tr. 41:8-16, 45:17-46:18.
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e. Dr. Ettner has been appointed by a federal court as an independent expert related to evaluation of an incarcerated patient for gender confirmation surgery. Tr. 46:19-22.
f. However, Dr. Ettner is not a Certified Correctional Healthcare Professional, and she has not treated inmates with gender dysphoria. Tr. 106:21-24, 107:11-18.
20. Dr. Gorton is an emergency medicine physician who practices at a federally qualified healthcare center that primarily services uninsured patients or those with Medicare or Medicaid. Exh. 1004; Tr. 234:24-235:2. Dr. Gorton also works with Project Health, which has provided training for numerous clinics regarding the provision of transgender health care in California. Tr. 233:5-21. Dr. Gorton is a member of WPATH and is on WPATH’s Transgender Medicine and Research Committee and its Institutionalized Persons Committee. Tr. 238:4-6; Exh. 1004. a. Dr. Gorton has been the primary care physician for approximately 400 patients with gender dysphoria and is currently the primary care physician for approximately 100 patients with gender dysphoria. Exh. 1004; Tr. 237:4-12. Dr. Gorton currently provides follow-up care for about thirty patients who have had vaginoplasty. Exh. 1004; Tr. 249:20-250:3. b. Dr. Gorton has published peer-reviewed articles regarding treatment of gender dysphoria. Tr. 239:16-18, Exh. 1004.
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c. Dr. Gorton has been qualified as an expert in multiple cases involving transgender healthcare. Tr. 239:19-240:19; Exh. 1004.
d. However, Dr. Gorton has no experience treating inmates with gender dysphoria. Tr. 269:17-23. Dr. Gorton is not a Certified Correctional Healthcare Professional. Tr. 270:9-16.
B. Defendants’ Experts 21. Dr. Garvey is a psychiatrist and Certified Correctional Healthcare Professional
under the National Commission on Correctional Health Care. Tr. 525:15-23. As the Chief Psychiatrist in the Massachusetts Department of Corrections, Dr. Garvey served as the chair of the Gender Dysphoria Treatment Committee. Tr. 508:10-11. Dr. Garvey directly treated patients in the Massachusetts Department of Correction who had gender dysphoria. Tr. 508:13-509:1.
a. Prior to evaluating Ms. Edmo, Dr. Garvey had never conducted an inperson evaluation to determine whether a patient needed gender confirmation surgery. Tr. 558:10-14.
b. Dr. Garvey has never recommended that a patient with gender dysphoria receive gender confirmation surgery or done long-term follow-up care with a patient who has had gender confirmation surgery. Tr. 556:20-557:9.
22. Dr. Andrade is a licensed independent clinical social worker and is a Certified Correctional Healthcare Professional with an emphasis in mental health. Tr. 626:121. Dr. Andrade has over a decade of experience providing and supervising the
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provision of correctional mental health care, including directing and overseeing the treatment of all inmates diagnosed with gender dysphoria in the custody of the Massachusetts Department of Corrections in his role as clinical director, chair of the Gender Dysphoria Supervision Group, and member of the Gender Dysphoria Treatment Committee. Tr. 627:22-23.
a. Over the last decade, Dr. Andrade has provided treatment to gender dysphoria inmates in his role on the treatment committee and has evaluated and confirmed diagnoses of gender dysphoria for over 100 inmates. Tr. 627:2-14. But Dr. Andrade has never provided direct treatment for patients with gender dysphoria and has never been a treating clinician for a patient who has had gender confirmation surgery. Tr. 647:8-14, 651:10-12.
b. As part of a committee, Dr. Andrade has recommended gender confirming surgery for incarcerated inmates on two occasions. Tr. 627-629:1-10. But the recommendation was contingent upon the requirement that the inmates first live in a women’s prison for approximately twelve months. Tr. 647:19648:25. The Massachusetts Department of Corrections houses prisoners according to their genitals, so the inmates were not allowed to move to a women’s prison. Tr. 649:1-650:11. To Dr. Andrade’s knowledge, the inmates had not been moved to a women’s prison at least seven months after his recommendation. Tr. 649:1-650:11. Thus, the twelve-month period of living in a women’s prison could not have started. Tr. 650:6-11.
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c. As a licensed independent clinical social worker, Dr. Andrade does not qualify under IDOC’s former gender dysphoria policy as a “gender identity disorder evaluator” who could assess someone for surgery. Tr. 660:11-17; Exh. 8 at 3.
23. Dr. Campbell is IDOC’s Chief Psychologist. He has provided mental health services to incarcerated inmates since 2012. Campbell Decl., Dkt. 101-4, ¶¶ 2-7. Dr. Campbell is a member of WPATH and is familiar with the WPATH Standards of Care regarding gender dysphoria offenders and transgender inmates as provided by the National Commission on Correctional Healthcare (“NCCHC”), the National Institute of Corrections, and the Federal Bureau of Prisons. Campbell Decl., Dkt. 101-4, ¶¶ 8-10. a. Dr. Campbell serves as chair of the Management and Treatment Committee (“MTC”), a multidisciplinary committee that meets monthly to discuss and evaluate the needs of inmates who have been diagnosed with gender dysphoria. Campbell Decl., Dkt. 101-4, ¶¶ 13-14. b. Dr. Campbell has directly conducted six gender dysphoria assessments and has overseen the treatment and assessment of approximately fifty inmates who have requested gender dysphoria evaluations, through his role as chair of the Management and Treatment Committee and as the Chief Psychologist. Campbell Decl., Dkt. 101-4, ¶¶ 13-14.
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c. There is no evidence that Dr. Campbell has ever recommended gender confirmation surgery for an inmate. IV. NCCHC
24. The NCCHC endorses the WPATH Standards of Care as the accepted standards for the treatment of transgender prisoners. Exh. 1041 at 2, 4, n.1; Tr. 477:14478:22. V. Defendants’ Policies and Practices Regarding Gender Dysphoria
A. Corizon’s Policies and Practices 25. Corizon is a private corporation that contracts to provide health care to prisons and
jails throughout the country. Corizon providers have never recommended gender confirmation surgery to a patient at any of the prisons where it provides medical services. Tr. 489:20-23. 26. Corizon’s only written policy regarding gender dysphoria treatment does not include gender confirmation surgery as a form of treatment. Tr. 482:25-483:9; Exh. 14. B. IDOC’s Policies and Practices 27. The IDOC MTC is a multiple-disciplinary team that addresses treatment, planning, and security issues associated with IDOC inmates who have gender dysphoria. Tr. 322:12-20. The Management and Treatment Committee reviews the treatment of all inmates with gender dysphoria but does not make medical decisions. Tr. 323:413, 324:9-14.
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28. There are currently 30 prisoners with gender dysphoria in IDOC custody. Tr. 322:21-323:3. No individual in IDOC custody has ever been recommended for, or received, gender confirmation surgery. Tr. 376:23-377:4.
29. IDOC’s operative gender dysphoria policy when Ms. Edmo was assessed for surgery defined a “qualified gender identity disorder (GID) evaluator as ‘[a] Doctor of philosophy (PhD) level practitioner licensed by an appropriate state licensing authority as a psychologist, or a physician licensed by a state Board of Medicine, who has demonstrated an indicia of basic competence related to the diagnosis and treatment of GID and related mental or emotional disorders through their licensure, training, continuing education, and clinical experience.’” Exh. 8 at 3; Tr. 388:16-389:1.
30. This policy stated that gender confirmation surgery “will not be considered for individuals within the Idaho Department of Correction (IDOC), unless determined medically necessary by the treating physician.” Exh. 8 at 8.
31. On October 5, 2018, shortly before the hearing in this matter, IDOC implemented a new gender dysphoria policy that would allow prisoners at Idaho State Correctional Institute (“ISCI”) diagnosed with gender dysphoria to order and possess female commissary items and present in a manner consistent with their gender identity. Tr. 347:18-348:23; Exh. 9.
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a. The new policy also states that “to avoid a sexually charged atmosphere in IDOC facilities . . .. [n]o provocative or sexually charged clothing or behavior will be permitted.” Exh. 9 at 6.
b. IDOC’s new gender dysphoria policy continues to state that gender confirmation surgery “will not be considered for individuals within the Idaho Department of Correction (IDOC), unless determined medically necessary by the treating physician.” Exh. 9 at 8-9.
c. The policy further states that prisoners will be housed “based upon the inmate’s primary physical sexual characteristics.” Exh. 9 at 4. V. Adree Edmo’s Gender Dysphoria
32. Adree Edmo is a male-to-female transgender prisoner in the custody of IDOC. Ms. Edmo has been incarcerated at ISCI since April 2012. Tr. 192:19-20; see also Edmo Decl. ¶ 12. She is 30 years of age. Tr. 192:17-18.
33. From the age of 5 or 6, Ms. Edmo has viewed herself as female. In her words, “my brain typically operates female, even though my body hasn't corresponded with my brain.” Tr. 193:7-8.
34. While others viewed her as being gay, that is not how she perceived herself. Tr. 193:18-23. While, she struggled with her gender identity as a child and teenager, she began living as a woman at age 20 or 21. Tr. 211:1-11. She views herself as a woman with a heterosexual attraction to men. Tr. 193:15-17.
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35. Prior to being incarcerated, and learning about gender identity and transgender, Ms. Edmo struggled with her own identity and sexual orientation. On two occasions in 2010 and 2011, she attempted suicide. Tr. 206:12-15.
36. In June 2012, soon after being incarcerated, Ms. Edmo was diagnosed with gender identity disorder by Corizon psychiatrist Dr. Eliason. Exh. 1 at 321. In July 2012, Corizon psychologist Claudia Lake confirmed Ms. Edmo’s diagnosis of gender identity disorder. Exh. 1 at 323-27. There is no dispute that Ms. Edmo suffers from gender dysphoria. Tr. 69:20-70:3, 251:23-252:3, 518:16-18, 635:1-7.
37. Ms. Edmo legally changed her name to Adree Edmo in September 2013. Tr. 192:6-9. Ms. Edmo has also changed her sex to “female” on her birth certificate to further affirm her gender identity. Tr. 203:13-22; Exh. 1002.
38. Ms. Edmo has consistently presented as feminine throughout her incarceration by wearing her hair in traditionally feminine hairstyles when able to do so, wearing makeup when able to do so, and acting in a feminine demeanor. Tr. 194:24-195:5, 411:1-7, 463:11-464:21. Ms. Edmo’s feminine presentation has been documented by Defendants’ medical providers since 2012. See, e.g., Exh. 1 at 321, 347, 425, 452, 538. Ms. Edmo has also held two jobs while in prison and has presented as feminine at her places of employment. Tr. 201:24-202:10.
39. Ms. Edmo has continually sought to present herself as feminine despite receiving multiple disciplinary offense reports related to wearing makeup, styling her hair in a feminine manner, and altering her male-issued undergarments into female
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panties. Tr. 195:11-20; Exh. 5 at 8, 9, 21-22, 25, 27-28, 33-34, 41-43, 48-57, 6265; Yordy Dep. 47:4-49:15, 85:22-87:11; Edmo Decl. ¶ 19. 40. Ms. Edmo testified that hormone therapy helped treat her gender dysphoria to some extent. Tr. 223:9-14. The hormones “cleared her mind,” and resulted in breast growth, body fat redistribution, and changes in her skin consistency. Tr. 196:15-25. As a result of hormone therapy, Ms. Edmo is hormonally confirmed, which means she has the same circulating sex hormones and secondary sex characteristics as a typical adult female. Tr. 72:14-21; Ettner Decl. ¶ 59. 41. Ms. Edmo has achieved the maximum physical changes associated with hormone treatment. Tr. 602:1-603:4. However, Ms. Edmo continues to experience distress related to gender incongruence, which is mostly focused on her male genitalia. She testified she feels “depressed, embarrassed, and disgusted” by her male genitalia and that this is an “everyday reoccurring thought.” Tr. 197:7-24. 42. Ms. Edmo first attempted self-castration to remove her testicles in September 2015 using a disposable razor blade. She wrote a note to let the officers know she was not trying to commit suicide and was only trying to help herself. She attempted to cut her testicle sac open but was unsuccessful. Edmo Decl. ¶ 31; Tr. 197:25-198:8. 43. In January 2016, Ms. Edmo reported to Dr. Eliason that she was having difficulty sleeping due to thoughts of self-castration. In response, Dr. Eliason prescribed Ms. Edmo sleeping medication. Tr. 458:5-10, 461:18-24.
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44. Ms. Edmo also reported her frequent thoughts of self-castration to her assigned clinician, Krina Stewart, in November 2016. Ms. Stewart testified that none of the interventions she identified for Ms. Edmo at that visit would alleviate her gender dysphoria or desire to self-castrate. Stewart Dep. 58:15-59:16; Exh. 1 at 584-85.
45. Ms. Edmo attempted self-castration a second time in December 2016. She prepared for weeks by studying the anatomy of the scrotum and took steps to diminish the chance of infection by boiling the razor blade and scrubbing her hands with soap. Ms. Edmo made more surgical headway on this attempt and was able to cut open the testicle sac and remove the testicle. Gorton Decl. ¶ 74. Because there was too much blood, Ms. Edmo abandoned her attempt and sought medical assistance. Tr. 198:9-16. She was transported to a hospital where her testicle was repaired. Tr. 198:25-199:13.
46. Ms. Edmo was receiving hormone therapy both times she attempted to selfcastrate. Tr. 228:20-25.
47. After the procedure, Ms. Edmo felt disappointed in herself because she felt she had come so close to removing her testicle but had not succeeded. Tr. 199:17-23. Ms. Edmo continues to actively experience thoughts of self-castration. Tr. 197: 21-24. In an effort to avoid acting on them, when she has experienced extreme episodes of gender dysphoria in the past year, Ms. Edmo “selfmedicat[es]” by using a razor to cut her arm. The physical pain she feels from
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cutting helps her release the emotional torment and mental anguish she feels at the time. Tr. 199:24-200:15. 48. Ms. Edmo will likely be released from prison sometime in 2021. Tr. 201:14-15, 230:3-10.
VI. Defendants’ Treatment of Ms. Edmo for Gender Dysphoria 49. On April 20, 2016, Dr. Eliason evaluated Ms. Edmo for sex reassignment surgery.
Jt. Exh. 1 at 538. Dr. Eliason noted that Ms. Edmo reported she was “doing alright,” that she was eligible for parole, but it had not been granted because of multiple Disciplinary Offense Reports (“DORs”). Jt. Exh. 1 at 538. The DORS were related to her use of makeup and feminine appearance. Jt. Exh. 1 at 538. 50. Dr. Eliason noted that Ms. Edmo had been on hormone replacement for the last year and a half, but that she felt she needed more. Jt. Exh. 1 at 538. Dr. Eliason specifically noted that Ms. Edmo stated an improvement in gender dysphoria on hormone replacement but had ongoing frustrations stemming from her current anatomy. Jt. Exh. 1 at 538. He also recognized Ms. Edmo’s multiple attempts to “mutilate her genitalia” because of the severity of her distress. Jt. Exh. 1 at 538. He also noted that he spoke to prison staff about Ms. Edmo’s behavior, “which is notable for animated affect and no observed distress.” Jt. Exh. 1 at 538. Dr. Eliason then stated that he also personally observed Ms. Edmo in these settings and did not observe significant dysphoria. Jt. Exh. 1 at 538.
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51. Nevertheless, Dr. Eliason noted that Ms. Edmo appeared feminine in demeanor and interaction style. Jt. Exh. 1 at 538. He concluded that Ms. Edmo had Gender Dysphoria, Alcohol Use disorder, and Depression, Jt. Exh. 1 at 538, but his ultimate conclusion was that Ms. Edmo “[d]oes not meet criteria for medical necessity for sex reassignment surgery.” Jt. Exh. 1 at 538.
52. In assessing Ms. Edmo’s need for gender confirmation surgery, Dr. Eliason indicated that he staffed her case with Dr. Jeremy Stoddart, Dr. Murray Young, and Jeremy Clark LCPC (clinical supervisor and WPATH member). Each of these individuals agreed with his assessment. Jt. Exh. 1 at 538.
53. Dr. Eliason indicated he would continue to monitor and assess Ms. Edmo for the medical necessity of gender confirmation surgery. Jt. Exh. 1 at 538. He further determined that the combination of hormonal treatment and supportive counseling is sufficient for Ms. Edmo’s gender dysphoria for the time being.
54. To justify his conclusion, Dr. Eliason noted that while medical necessity for gender confirmation surgery is not very well defined and is constantly shifting, the following situations could constitute medical necessity for the surgery: a. Congenital malformations or ambiguous genitalia; b. Severe and devastating dysphoria that is primarily due to genitals; and c. Some type of medical problem in which endogenous sexual hormones were causing severe physiological damage. Jt. Exh. 1 at 538.
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55. He also explained that there may also be other situations where gender confirmation surgery is medically necessary as more information becomes available. Jt. Exh. 1 at 538.
56. Although not noted in his April 20, 2016 progress notes, Dr. Eliason testified that Ms. Edmo’s mental health concerns were not “fully in adequate control.” Tr. 430:22-431:2. He testified that not all of Ms. Edmo’s mental health issues, such as her major depression and alcohol use disorders, stemmed from her gender dysphoria. His testimony, however, is contradicted by his April 20, 2016 clinician notes. Tr. 451:1-12.
57. Ms. Edmo has received mental health treatment from a psychiatrist and mental health nurse practitioner since she began her incarceration in 2012. Tr. 225:8227:2. However, she has not consistently attended therapy to help her work through serious underlying mental health issues and a pre-incarceration history of trauma, abuse, and suicide attempts. Tr. 134:8-25, 135:1-23, 218:21-25, 219:1-14, 220:17-20; 221:16-19; Campbell Decl. Dkt., 101-4, ¶¶24, 29; Stewart Decl., Dkt. 101-1, ¶12; Watson Decl., Dkt. 101-3, ¶18; Clark Decl., Dkt. 101-7, ¶14).
58. Dr. Eliason testified that there were two primary reasons why sex reassignment surgery was not medically necessary at the time: a. Ms. Edmo had not satisfied the 12-month period of living in her identified gender role under WPATH standards. Tr. 430: 25-431:2; and
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b. “[I]t was not doing Ms. Edmo any service to rush through getting gender reassignment surgery in that current social situation.” Tr. 431:3-6.
59. Dr. Eliason’s evaluation was the only time IDOC and Corizon evaluated Ms. Edmo for gender confirmation surgery prior to this lawsuit. Exh. 1 at 538; Tr. 419:1-10.
60. In concluding that surgery was not medically necessary for Ms. Edmo, Dr. Eliason did not review her prior criminal record, disciplinary history, or her presentence investigation reports. Tr. 468:4-18. The only information Dr. Eliason relied upon was Ms. Edmo’s medical record, staff observations, and her therapist’s notes. Tr. 469:16-25. Dr. Eliason testified that when he assessed her for surgery, he was aware of Ms. Edmo’s prior self-surgery attempt. He believed Ms. Edmo’s gender dysphoria had risen to another level, but he made no change to her treatment plan. Tr. 471:7-22. VII. Ms. Edmo’s Medical Necessity for Gender Confirmation Surgery
61. Plaintiff’s and Defendants’ experts disagree on whether Ms. Edmo meets all the WPATH standards criteria for gender confirmation surgery. Specifically, Defendants’ experts believe that Ms. Edmo does not meet the fourth and sixth criteria – that any significant mental health concerns be well controlled and that she live twelve months in a fully gender-congruent role. Tr. 75:9-78:3; 252:13254:11; 607:2-10, 639:14-640:25.
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62. Notably, however, Dr. Eliason did not rely upon any finding that Ms. Edmo did not meet the WPATH criteria in concluding in his April 2016 assessment that she did not meet the criteria for gender confirmation surgery. Tr. 462:3-463:10.
63. With regard to the fourth criterion, Ms. Edmo has been diagnosed with Major Depressive Disorder, Alcohol Use Disorder, and Gender Dysphoria. See, e.g., Exh. 1 at 538. These diagnoses were generally confirmed by each of the experts, with observation that any substance use disorder has been in remission while Ms. Edmo has been incarcerated. Tr. 67:16-18, 253:3-9, 518:16-219:6, 603:22-604:5. a. Plaintiff’s experts testified that Ms. Edmo’s depression and anxiety are as controlled as they can be and do not impair her ability to undergo surgery. Tr. 76:13-25, 123:14-124:11, 253:3-9; Exh. 15 at 30. In their view, the clinical significance of Ms. Edmo’s self-surgery attempts and recent cutting of her arm is that she has severe genital-focused gender dysphoria and is not getting medically necessary treatment to alleviate it. Tr. 254:15-19, 98:11-22. Ms. Edmo’s self-surgery attempts are not acts of mutilation or self-harm, but are instead attempts to remove her target organ that produces testosterone, which is the cure for gender dysphoria. Tr. 80:3-13. Ms. Edmo’s gender dysphoria, not her depression and anxiety, is the driving force behind her self-surgery attempts. Tr. 254:20-255:8. b. Thus, Ms. Edmo’s self-surgery attempts and cutting do not indicate she has mental health concerns that are not well controlled. Tr. 98:11-22. Rather,
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Ms. Edmo’s recent cutting is attention-reduction behavior that she uses to prevent herself from cutting her genitals. Tr. 98:16-22. Her self-surgery attempts indicate a need for treatment for gender dysphoria. Tr. 98:11-15. c. In the more than six years she has spent in IDOC custody, no Corizon or IDOC provider has ever diagnosed Ms. Edmo with borderline personality disorder. Tr. 361:18-362:3, 470:4-6. Defense expert Dr. Andrade is the first person to ever diagnose Ms. Edmo with borderline personality disorder, and he was unable to identify his criteria for this diagnosis of Ms. Edmo during his testimony. Tr. 652:21-24, 638:16-22. None of the other experts, including Defense expert Dr. Garvey, diagnosed Ms. Edmo with borderline personality disorder. Tr. 131:24-132:3, 139:19-24. d. One of the primary concerns underlying the fourth criterion is that the individual be able to properly participate in postsurgical care. Ms. Edmo has demonstrated the capacity to follow through with the postsurgical care she would require. Tr. 99:3-8, 169:23-170:25. e. Although it is troubling that Ms. Edmo has declined to fully participate in the mental health treatment and counseling sessions recommended by Dr. Eliason and others, Dr. Ettner made clear that, “Psychotherapy is neither a precondition for treatment or a condition -- a precondition for surgery.” Tr. 98:23-99:2.
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f. Dr. Ettner concludes that Ms. Edmo meets the fourth criterion, since she has no unresolved mental health issues that would prevent her from receiving gender confirmation surgery. Tr. 98:3-10.
64. With respect to the sixth criterion, both Plaintiff’s experts testified that Ms. Edmo meets and exceeds the condition of social role transition by living as a woman to the best of her ability in a male prison. a. For the six-plus years she has lived in prison, Ms. Edmo has consistently sought to present as feminine, despite living in an environment hostile to her efforts, and despite the disciplinary consequences she faces. Tr. 77:978:3, 254:4-11.
65. Dr. Ettner testified that gender confirmation surgery would eliminate Ms. Edmo’s gender dysphoria and significantly attenuate much of the attendant depression and symptoms she is experiencing. Tr. 104:24-105:9. She testified that gender confirmation surgery is the cure for gender dysphoria and will therefore result in therapeutic and beneficial effects for Ms. Edmo. Tr. 81:13-19.
66. Dr. Gorton testified that it is highly unlikely that Ms. Edmo’s severe gender dysphoria will improve without gender confirmation surgery. Tr. 267:19-22.
67. The risks of not providing gender confirmation surgery to Ms. Edmo include surgical self-treatment, emotional decompensation, and risk of suicide given her high degree of suicide ideation. Tr. 80:24:81:8, 264:13-22. If she is not provided with surgery, Ms. Edmo has indicated that she will try self-surgery again to deal
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with her extreme episodes of gender dysphoria. Tr. 199:24-200:5. Given that Ms. Edmo made increasing progress on her first two self-surgery attempts, it is likely that Ms. Edmo will be successful if she attempts self-surgery again. Tr. 264:13-22. 68. Scientific studies indicate that the regret rate for individuals who have had gender confirmation surgery is very low and generally in the range of one percent of patients. Tr. 103:25-12, 165:16-166:4. Ms. Edmo does not have any of the risk factors that make her likely to regret undergoing gender confirmation surgery. Tr. 266:1-267:1.
CONCLUSIONS OF LAW I. Injunction Standard
1. Ms. Edmo asks for a preliminary injunction. A preliminary injunction is only awarded upon a clear showing that the plaintiff is entitled to the requested relief. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008).
2. To make this showing, the plaintiff must establish: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to the moving party in the absence of preliminary relief; (3) that the balance of equities tips in favor of the moving party; and (4) that an injunction is in the public interest. Id.
3. The requirements are stated in the conjunctive so that all four elements must be established to justify injunctive relief. The court may apply a sliding scale test, under which “the elements of the preliminary injunction test are balanced, so that a
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stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 4. A more stringent standard is applied where mandatory, as opposed to prohibitory, injunctive relief is sought. Prohibitory injunctions restrain a party from taking action and effectively “freeze[ ] the positions of the parties until the court can hear the case on the merits.” Heckler v. Lopez, 463 U.S. 1328, 1333 (1983). Mandatory injunctions go well beyond preserving the status quo, as they order a party to take some action. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009). 5. Although the same general principles inform the court’s analysis in deciding whether to issue mandatory or prohibitory relief, courts should be “extremely cautious” about ordering mandatory relief. Martin v. Intl Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984). Mandatory preliminary relief should not issue unless both the facts and the law clearly favor the moving party and extreme or very serious damage will result. See Marlyn Nutraceuticals, 571 F.3d at 879. Mandatory injunctions are not issued in doubtful cases, or where the party seeking an injunction could be made whole by an award of damages. Id.
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6. The Court agrees with defendants that Edmo seeks mandatory relief. Thus, the Court will apply the more stringent standard.1
7. The Prison Litigation Reform Act (“PLRA”) requires any preliminary injunction
to be “narrowly drawn, extend no further than necessary to correct the harm the
court finds requires preliminary relief, and be the least intrusive means necessary
to correct the harm. The court shall give substantial weight to any adverse impact
on public safety or the operation of a criminal justice system.” 18 U.S.C. §
3626(a)(2). II. Eighth Amendment Claim
A. Likelihood of Success on the Merits 8. The Eighth Amendment to the United States Constitution protects prisoners
against cruel and unusual punishment. To state a claim under the Eighth
1 In discussions with counsel before the evidentiary hearing, the Court expressed the concern that the nature of the relief requested in this case, coupled with the extensive evidence presented by the parties over a 3-day evidentiary hearing, effectively converted these proceedings into a final trial on the merits of the plaintiff’s request for permanent injunctive relief. Neither party addressed the Court’s concern, and both parties appear to have treated the evidentiary hearing as a final trial of Ms. Edmo’s claims.
In an abundance of caution, the Court has considered the standard for the issuance of a permanent injunction, which would have required the plaintiff to show (1) she has suffered an irreparable injury, (2) monetary damages would not compensate her for that injury, (3) after balancing the hardships between the parties, a remedy of equity is warranted, and (4) the public interest would not be disserved by a permanent injunction. See, eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). That standard appears to be no more rigorous than that applicable to a claim for preliminary mandatory relief. The Court concludes that under either standard Ms. Edmo is entitled to relief.
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Amendment, Ms. Edmo must show that she is “incarcerated under conditions posing a substantial risk of serious harm,” or that she has been deprived of “the minimal civilized measure of life’s necessities” as a result of Defendants’ actions. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). 9. An Eighth Amendment claim requires a plaintiff to satisfy “both an objective standard – that the deprivation was serious enough to constitute cruel and unusual punishment – and a subjective standard – deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012). 10. The Eighth Amendment includes the right to adequate medical care in prison, and prison officials or prison medical providers can be held liable if their “acts or omissions [were] sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). 11. Regarding the objective standard for prisoners’ medical care claims, the Supreme Court of the United States has explained that “[b]ecause society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Estelle v. Gamble, 429 U.S., 97, 103 (1976)). 12. The Ninth Circuit has defined a “serious medical need” in the following ways: failure to treat a prisoner’s condition [that] could result in further significant injury or the unnecessary and wanton infliction of pain [;] ... [t]he existence of an injury
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that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain . . . .” McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992) (internal citations omitted), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 13. As to the subjective standard, a prison official or prison medical provider acts with “deliberate indifference . . . only if the [prison official] knows of and disregards an excessive risk to inmate health and safety.” Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002) (citation and internal quotation marks omitted). “Under this standard, the prison official must not only ‘be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Farmer, 511 U.S. at 837). 14. “If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at 1188 (citation omitted). However, “whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at
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842; see also Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003) (deliberate indifference to medical needs may be shown by circumstantial evidence when the facts are sufficient to demonstrate that defendant actually knew of a risk of harm). 15. In the medical context, a conclusion that a defendant acted with deliberate indifference requires that the plaintiff show both “a purposeful act or failure to respond to a prisoner’s pain or possible medical need and . . . harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 16. Deliberate indifference can be “manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104–05 (footnotes omitted). 17. Non-medical prison personnel are generally entitled to rely on the opinions of medical professionals with respect to the medical treatment of an inmate. However, if “a reasonable person would likely determine [the medical treatment] to be inferior,” the fact that an official is not medically trained will not shield that official from liability for deliberate indifference. Snow, 681 F.3d at 986; see also McGee v. Adams, 721 F.3d 474, 483 (7th Cir. 2013) (stating that non-medical personnel may rely on medical opinions of health care professionals unless “they have a reason to believe (or actual knowledge) that prison doctors or their
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assistants are mistreating (or not treating) a prisoner”) (internal quotation marks omitted). 18. Differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989). “[T]o prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment ‘was medically unacceptable under the circumstances,’ and was chosen ‘in conscious disregard of an excessive risk’ to the prisoner's health.” Toguchi, 391 F.3d at 1058, (alteration omitted) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). 19. Mere indifference, medical malpractice, or negligence will not support a cause of action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir.1980) (per curiam). Likewise, a delay in treatment does not constitute a violation of the Eighth Amendment unless the delay causes further harm. McGuckin, 974 F.2d at 1060. 1. Serious Medical Need 20. There is no dispute that Ms. Edmo suffers from gender dysphoria. And there is no dispute that gender dysphoria is a serious medical condition recognized by the DSM-5.
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21. WPATH Standards of Care are the accepted standards of care for treatment of transgender patients. These standards have been endorsed by the NCCHC as applying to incarcerated persons.
22. There are no other competing, evidence-based standards that are accepted by any nationally or internationally recognized medical professional groups.
23. The Court finds credible the testimony of Plaintiff’s experts Drs. Ettner and Gorton, who have extensive personal experience treating individuals with gender dysphoria both before and after receiving gender confirmation surgery. Plaintiff’s experts found that Ms. Edmo satisfied all six WPATH medical necessity criteria for surgery.
24. Defendants’ experts, by contrast, have opined that surgery is not medically necessary for Ms. Edmo. However, neither Dr. Garvey nor Dr. Andrade has any direct experience with patients receiving gender confirmation surgery or assessing patients for the medical necessity of gender confirmation surgery. Defendants’ experts also have very little experience treating patients with gender dysphoria other than assessing them for the existence of the condition.
25. Defendants’ experts appear to misrepresent the WPATH Standards of Care by concluding that Ms. Edmo, despite presenting as female since her incarceration in 2012, cannot satisfy the WPATH criteria because she has not presented as female outside of the prison setting. But there is no requirement in the WPATH Standards of Care that a “patient live for twelve months in his or her gender role outside of
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prison before becoming eligible for SRS.” Norsworthy v. Beard, 87 F. Supp. 3d 1164 (N.D. Cal. 2015), 26. Indeed, Plaintiff’s experts opine that Ms. Edmo exceeds this criterion because she has not only presented as female for far longer than twelve months, but has done so in an environment arguably more hostile to these efforts than the non-custodial community, and despite the disciplinary consequences of doing so. The WPATH Standards of Care explicitly provide that they apply “in their entirety . . . to all transsexual, transgender, and gender-nonconforming people, irrespective of their housing situation,” and “including institutional environments such as prisons.” Exh. 15 at 73. The Standards of Care make clear that “[d]enial of needed changes in gender role or access to treatments, including sex reassignment surgery, on the basis of residence in an institution are not reasonable accommodations.” Exh. 15 at 74. 27. Defendants’ evidence to the contrary is unconvincing and suggests a decided bias against approving gender confirmation surgery. 28. In 2016, Dr. Eliason contacted Dr. Steven Levine to lead a training for IDOC and Corizon providers on medical necessity for gender confirmation surgery. Tr. 433:23-434:24. Dr. Levine’s training presentation was titled “Medical Necessity of Transgender Inmates: In Search of Clarity When Paradox, Complexity, and Uncertainty Abound.” Exh. 17 at 1. Dr. Levine trained Corizon and IDOC staff that gender confirmation surgery is “not conceived as lifesaving as is repairing a
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potentially leaking aortic aneurysm but as life enhancing as is providing augmentation for women distressed about their small breasts.” Exh. 17 at 43; Exh. 16. 29. Dr. Levine is considered an outlier in the field of gender dysphoria and does not ascribe to the WPATH Standards of Care. Tr. 176:14-21. His training materials do not reflect opinions that are generally accepted in the field of gender dysphoria. Tr. 176:22-179:1. 30. Dr. Levine’s training includes additional criteria proposed by Cynthia Osborne and Anne Lawrence that incarcerated individuals must meet in order to receive gender confirmation surgery. Exh. 17 at 39-41, 51; Exh. 19. These requirements are not part of the WPATH criteria and are in opposition to the WPATH Standards of Care. Tr. 101:15-22, 103:14-20. There are no scientific studies that support these additional requirements, and no professional associations or organizations have endorsed Osborne and Lawrence’s proposed requirements for prisoners. Tr. 103:4-13. The NCCHC has not adopted Osborne and Lawrence’s additional requirements. Tr. 480:12-16. Like Dr. Levine, Osborne and Lawrence are considered outliers in the field of gender dysphoria treatment, are not WPATH members, and do not ascribe to the WPATH Standards of Care. Tr. 101:2-14. 31. A decision of the U.S. District Court in the Northern District of California, Norsworthy v. Beard, 87 F. Supp. 3d 1164 (N.D. Cal. 2015), is noteworthy here. Dr. Levine was retained as a defense expert by the California Department of
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Corrections and Rehabilitation in a suit filed by a transgender plaintiff in that case. In ordering the prison to provide the plaintiff gender confirmation surgery, the Norsworthy court afforded Dr. Levine’s opinions “very little weight,” stating: “To the extent that Levine’s apparent opinion that no inmate should ever receive SRS predetermined his conclusion with respect to Norsworthy, his conclusions are unhelpful in assessing whether she has established a serious medical need for SRS.” Norsworthy, 87 F. Supp. 3d at 1188. The court also determined that Dr. Levine’s opinion was not credible because of illogical inferences, inconsistencies, and inaccuracies,” including misrepresentations of the WPATH Standards of Care, overwhelming “generalizations about gender dysphoric prisoners” and Dr. Levine’s fabrication of a prisoner anecdote. Id. 32. Under these circumstances, the Court gives virtually no weight to the opinions of Defendants’ experts that Ms. Edmo does not meet the fourth and sixth WPATH criteria for gender confirmation surgery. 2. Deliberate Indifference 33. Defendants misapplied the recognized standards of care for treating Ms. Edmo’s gender dysphoria. 34. Defendants insufficiently trained their staff with materials that discourage referrals for surgery and represent the opinions of a single person who rejects the WPATH Standards of Care.
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35. Defendants’ sole evaluation of Ms. Edmo for surgery prior to this lawsuit failed to accurately apply the WPATH Standards of Care. Specifically, Dr. Eliason’s assessment that Ms. Edmo did not meet medical necessity for surgery did not apply the WPATH criteria.
36. Defendants have been deliberately indifferent to Ms. Edmo’s medical needs by failing to provide her with available treatment that is generally accepted in the field as safe and effective, despite her actual harm and ongoing risk of future harm including self-castration attempts, cutting, and suicidal ideation.
37. Evidence also suggests that Ms. Edmo has not been provided gender confirmation surgery because Corizon and IDOC have a de facto policy or practice of refusing this treatment for gender dysphoria to prisoners.
38. In Norsworthy, the court found that the prison had a blanket policy barring surgery in light of evidence that the prison’s “guidelines for treating transgender inmates, which do not mention SRS as a treatment option, and the 2012 training provided to CDCR staff by Levine, which indicated that SRS should never be provided to incarcerated patients.” Norsworthy, 87 F. Supp. 3d at 1191.
39. Here, the only guidelines Corizon issued to assist its providers in treating gender dysphoria likewise do not include surgery as a treatment option. Moreover, Dr. Levine’s training provided to Corizon and IDOC staff, and incorporated into further Corizon and IDOC training, discourages providing surgery to incarcerated persons with gender dysphoria.
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40. Significantly, no Corizon or IDOC provider has ever recommended that gender confirmation surgery is medically necessary for a patient in IDOC custody. In fact, Corizon has never provided this surgery at any of its facilities in the United States.
41. As was the case in Norsworthy, “[t]he weight of the evidence demonstrates that for [Ms. Edmo], the only adequate medical treatment for her gender dysphoria is [gender confirmation surgery], that the decision not to address her persistent symptoms was medically unacceptable under the circumstances, and that [Defendants] denied her the necessary treatment for reasons unrelated to her medical need.” Norsworthy, 87 F. Supp. 3d at 1192.
42. Accordingly, Ms. Edmo is likely to succeed on the merits of her Eighth Amendment claim.
B. Likelihood of Irreparable Harm 43. The Ninth Circuit has repeatedly held that serious psychological harm, in addition
to physical harm and suffering, constitutes irreparable injury. See, e.g., Chalk v. U.S. Dist. Ct. Cent. Dist. of California, 840 F. 2d 701, 709 (9th Cir. 1988) (plaintiff’s “emotional stress, depression and reduced sense of well-being” constituted irreparable harm); Thomas v. Cnty. of Los Angeles, 978 F. 2d 504, 512 (9th Cir. 1992) (“Plaintiffs have also established irreparable harm, based on this Court’s finding that the deputies’ actions have resulted in irreparable physical and emotional injuries to plaintiffs and the violation of plaintiffs’ civil rights.”).
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44. Ms. Edmo’s gender dysphoria results in clinically significant distress or impairment of functioning.
45. Both Plaintiff’s and Defendants’ experts agree that Ms. Edmo is properly diagnosed with gender dysphoria and continues to experience serious distress from this condition.
46. Ms. Edmo has received hormone treatment and achieved the maximum feminizing effects years ago.
47. Other district courts have recognized that the significant emotional pain, suffering, anxiety, and depression caused by prison officials’ failure to provide adequate treatment for gender dysphoria constitute irreparable harm warranting a preliminary injunction. See, e.g., Hicklin v. Precynthe, 2018 WL 806764, at *9 (E.D. Missouri 2018); Norsworthy, 87 F. Supp. 3d at 1192.
48. Ms. Edmo has twice attempted self-castration resulting in significant pain and suffering.
49. The Court is persuaded by Plaintiff’s experts that, without surgery, Ms. Edmo is at serious risk of life-threatening self-harm.
50. Thus, Ms. Edmo has satisfied the irreparable harm prong by showing that she will suffer serious psychological harm and will be at high risk of self-castration and suicide in the absence of gender confirmation surgery.
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C. Balance of Equities 51. “Courts ‘must balance the competing claims of injury and must consider the effect
on each party of the granting or withholding of the requested relief.’” Winter, 555 U.S. at 24 (quoting Amoco Production Co., 480 U.S. 531, 542 (1987)). 52. The balance of equities tips in a plaintiff’s favor where the plaintiff has established irreparable harm in the form of unnecessary physical and emotional suffering and denial of her constitutional rights. See, e. g., Hicklin, 2018 WL 806764, at *13; Norsworthy, 87 F. Supp. 3d at 1193. 53. Ms. Edmo has established that Defendants’ refusal to provide her with gender confirmation surgery causes her ongoing irreparable harm. 54. Defendants have made no showing that an order requiring them to provide treatment that accords with the recognized WPATH Standard of Care causes them injury. D. The Public Interest 55. The Court finds that a mandatory preliminary injunction is in the public interest. “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” See Melendres v. Arpaio, 695 F. 3d 990, 1002 (9th Cir. 2012). 56. “In addition, ‘the public has a strong interest in the provision of constitutionally adequate health care to prisoners.’” McNearney v. Wash. Dep’t of Corr., 2012 WL 3545267, at *16 (W.D. Wash. 2012).
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57. Accordingly, a mandatory preliminary injunction should issue because both the facts and the law clearly favor Ms. Edmo and extreme or very serious damage will result if it is not issued. See Marlyn Nutraceuticals, 571 F.3d at 879. III. FOURTEENTH AMENDMENT AND ACA CLAIMS
58. Plaintiff has not met her burden for a preliminary injunction on her Fourteenth Amendment and Affordable Care Act claims at this time.
59. As explained above, to make this showing for preliminary injunction, the plaintiff must establish: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to the moving party in the absence of preliminary relief; (3) that the balance of equities tips in favor of the moving party; and (4) that an injunction is in the public interest. Winter, 555 U.S. at 22.
60. While Ms. Edmo may ultimately prevail on her Fourteenth Amendment and Affordable Care Act claims, she is unable to show that she is entitled to injunctive relief at this time. Given the Court’s ruling on her Eighth Amendment claim, there is no likelihood of irreparable harm to Ms. Edmo in the absence of injunctive relief on these two claims.
61. Moreover, the balance of equities tips in favor of Defendants because a more developed record on Defendants’ treatment of transgender inmates is necessary before making a broader ruling based upon the Fourteenth Amendment or the Affordable Care Act.
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62. Likewise, a more developed record is necessary to assess the public’s interest in granting such injunctive relief. Id. ORDER IT IS ORDERED: 1. Plaintiff’s Motion for Preliminary Injunction (Dkt. 62) is GRANTED IN
PART. Defendants are ordered to provide Plaintiff with adequate medical care, including gender confirmation surgery. Defendants shall take all actions reasonably necessary to provide Ms. Edmo gender confirmation surgery as promptly as possible and no later than six months from the date of this order. However, given IDOC’s implementation of an updated gender dysphoria policy on October 5, 2018 that appears to provide Plaintiff’s requested injunctive relief related to accessing gender-appropriate underwear, clothing, and commissary items, the Court will not address that relief at this time. This is without prejudice to the plaintiff’s right to raise the issue in the future, should IDOC revoke the new policy or if the implementation of the policy results in ongoing violations.
2. The Court’s Deputy, Jamie Bracke, is directed to set a telephonic status conference in this case no later than two weeks after this decision issues.
DATED: December 13, 2018
_________________________ B. Lynn Winmill Chief U.S. District Court Judge
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Lori Rifkin, Esq. (CA # 244081) (pro hac vice) HADSELL STORMER & RENICK LLP 4300 Horton Street, #15 Emeryville, CA 94608 Telephone: (415) 685-3591 Facsimile: (626) 577-7079 Email: lrifkin@hadsellstormer.com
Dan Stormer, Esq. (CA # 101967) (pro hac vice) Shaleen Shanbhag, Esq. (CA # 301047) (pro hac vice) HADSELL STORMER & RENICK LLP 128 N. Fair Oaks Avenue Pasadena, California 91103 Telephone: (626) 585-9600 Facsimile: (626) 577-7079 Emails: dstormer@hadsellstormer.com
sshanbhag@hadsellstormer.com
Attorneys for Plaintiff

Craig Durham (ISB # 6428) Deborah Ferguson (ISB # 5333) FERGUSON DURHAM, PLLC 223 N. 6th Street, Suite 325 Boise, ID 83702 Telephone: 208-345-5183 Facsimile: 208-908-8663 Emails: chd@fergusondurham.com
daf@fergusondurham.com
Amy Whelan, Esq. (CA # 215675) (pro hac vice) Julie Wilensky, Esq. (CA # 271765) (pro hac vice) NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: 415-365-1338 Facsimile: 415-392-8442 Email: AWhelan@NCLRights.org
jwilensky@NCLRights.org

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

ADREE EDMO (a/k/a MASON EDMO), Case No.: 1:17-cv-00151-BLW

Plaintiff,
v.
IDAHO DEPARTMENT OF CORRECTION; HENRY ATENCIO, in his official capacity; JEFF ZMUDA, in his official capacity; HOWARD KEITH YORDY, in his official and individual capacities; CORIZON, INC.; SCOTT ELIASON; MURRAY YOUNG; RICHARD CRAIG; RONA SIEGERT; CATHERINE WHINNERY; and DOES 1-15;
Defendants.

THIRD AMENDED COMPLAINT
1. Failure to Provide Medical Treatment (8th Amendment)
2. Violation of Equal Protection – Sex (14th Amendment)
3. Violation of Equal Protection – Diagnosis (14th Amendment)
4. Discrimination in Violation of Americans with Disabilities Act/Rehabilitation Act
5. Discrimination in Violation of Affordable Care Act
6. Negligence (Idaho State Law)

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INTRODUCTION

1.

Plaintiff Adree Edmo is currently incarcerated by the Idaho Department of

Corrections (“IDOC”) in Idaho State Correctional Institution in Kuna, Idaho. Ms. Edmo has

been incarcerated since April 2012. Ms. Edmo is a transgender woman—an individual whose gender identity (female) is different from the male gender assigned to her at birth.1 Ms. Edmo

has been diagnosed by IDOC with gender dysphoria (previously known as Gender Identity

Disorder), a serious medical condition characterized by strong cross-gender identification, and

strong and persistent discomfort about one’s assigned sex. As a result of gender dysphoria, Ms.

Edmo experiences severe dysphoria and distress resulting from the incongruence between her

male physical features and her female gender identity. She requires medically necessary care to

treat gender dysphoria.

2.

The most common forms of treatment for gender dysphoria are counseling, the

“real-life” experience of living full-time within the desired gender, hormonal therapy, and gender

confirmation surgeries that conform primary or secondary sex characteristics with gender

identity. Because gender dysphoria is not a mental disorder, counseling is aimed at providing

coping mechanisms to deal with the discrimination and bias that transgender people typically

experience from other people or institutions.

3.

Prior to being incarcerated, Ms. Edmo lived full-time as a woman. Ms. Edmo is

Native American and her Tribe recognizes that some individuals are Two-Spirit, a Native

American concept encompassing cross-gender identifying and gender nonconforming

individuals.

4.

After she was diagnosed with gender dysphoria by IDOC, Ms. Edmo sought

appropriate medical treatment, including access to feminizing hormones, evaluation for gender confirmation surgery, 2 and the ability to live as a woman while incarcerated. However,

1 At birth, infants are classified as male or female based on a visual observation of their external
genitalia. This classification becomes the person’s “sex assigned at birth,” but may not be the
same as the person’s sex/gender identity. 2 This is also sometimes referred to as “sex reassignment surgery.”

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Defendants have refused to allow Plaintiff to access such medically necessary treatment, and

instead have repeatedly punished Plaintiff for expressing her gender identity, including

subjecting her to solitary confinement.

5.

Defendants’ denial of necessary medical treatment as well as discipline and

punishment of Ms. Edmo for expressing her gender identity have caused grave and unnecessary

suffering and harm to Ms. Edmo, including two attempted self-castrations.

6.

Defendants’ discipline and punishment of Ms. Edmo for expressing her gender

identity has also negatively affected her eligibility for parole.

7.

Defendants’ actions violate the Eight Amendment to the U.S. Constitution’s

prohibition on cruel and unusual punishment by denying Ms. Edmo necessary medical treatment

and failing to protect her from harm; the Fourteenth Amendment to the U.S. Constitution’s

guarantee of equal protection by discriminating against her based on sex, sex stereotyping,

and/or gender identity as well as based on the diagnosis of gender dysphoria; the Americans

with Disabilities Act and Section 504 Rehabilitation Act by discriminating against her in

provision of medical treatment and participation in programs and services; the non-

discrimination provision of the Affordable Care Act by discriminating based on sex, sex

stereotyping, and/or gender identity; and Idaho tort law by negligently failing to provide Ms.

Edmo treatment.

8.

Ms. Edmo seeks injunctive and declaratory relief and damages to remediate

Defendants’ violations of her rights.

JURISDICTION AND VENUE

9.

Plaintiff brings this suit pursuant to 42 U.S.C. § 1983, the Eighth and Fourteenth

Amendments of the United States Constitution, the Americans with Disabilities Act, 42 U.S.C. §

12101 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.SC. § 794a, and Section 1557

of the Affordable Care Act, 42 U.S.C. § 18116 . This Court has jurisdiction over this action

pursuant to 28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction over Plaintiff’s related

state law negligence claim because it arises out of the same actions and omissions. Plaintiff

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seeks declaratory and injunctive relief and damages for Defendants’ violation of Plaintiff’s civil rights.
10. Venue is appropriate in the District of Idaho pursuant to 28 U.S.C. § 1391(b)(2) because the events giving rise to the claim occurred in this District.
11. Plaintiff has exhausted all administrative remedies with respect to the claims contained herein. A copy of Plaintiff’s “Notice of Claim” is attached as Exhibit A to the Complaint. Copies of Plaintiff’s IDOC grievances and appeals that are in her possession, as they relate to these claims, are attached as Exhibit B to the Complaint. Any further IDOC grievances deemed to contain complaints similar to those Plaintiff has already grieved are returned to Plaintiff and not allowed any further process.
PARTIES 12. Plaintiff ADREE EDMO is 31 years old and a United States citizen and member of the Shoshone-Bannock Tribe. She is currently housed at Idaho State Correctional Institution (“ISCI”) in Kuna, Idaho. Plaintiff has been incarcerated in the custody of IDOC since April 2012. 13. Defendant IDAHO DEPARTMENT OF CORRECTION (“IDOC”) is the State agency responsible for incarceration of adult inmates sentenced by the courts. IDOC operates nine adult correctional facilities in Idaho, including ISCI where Plaintiff is housed. 14. Defendant HENRY ATENCIO is the current Director of the Idaho Department of Correction.3 As Director, Defendant Atencio is the highest-level official in IDOC and is responsible for administering and overseeing the operations of IDOC, including the policies, procedures, and practices followed by IDOC, its contractors, employees, and agents. On information and belief, Defendant Atencio is also the final reviewer for treatment decisions by IDOC’s Management and Treatment Committee. Mr. Atencio is sued in his official capacity.

3 Plaintiff originally named Kevin Kempf, who was then Director of IDOC. Since Plaintiff filed her suit, Mr. Atencio has been appointed Director and is automatically substituted as party in his official capacity. Fed. R. Civ. P. 25(d).

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15. Defendant JEFF ZMUDA is the current Deputy Director of the Idaho Department of Correction. As Deputy Director, Defendant Zmuda is a member of IDOC’s executive leadership team, and is specifically charged by IDOC policy to oversee implementation of health care services and treatment in IDOC including the development and implementation of standard operating procedures to effectuate health care delivery. Mr. Zmuda is sued in his official capacity.
16. Defendant HOWARD KEITH YORDY is and was at times relevant to the actions and omissions described herein, the Warden of ISCI where Plaintiff was housed. As Warden, Defendant Yordy is responsible for oversight of operations at ISCI, implementation of IDOC policies and procedures, staff training, welfare of inmates housed at the ISCI, and the supervisor of all other individual Defendants employed at ISCI. Defendant Yordy was a member of the Management and Treatment Committee for Plaintiff. Defendant Yordy also directly participated in review and denials of Plaintiff’s requests for appropriate treatment for gender dysphoria, including implementing de facto policies regarding “feminine” appearance. Mr. Yordy is sued in his official and individual capacities.
17. Defendant CORIZON INCORPORATED (“CORIZON”) is a private for-profit corporation contracted to provide healthcare, including medical and mental health treatment services, to inmates in the custody of IDOC, including inmates at ISCI where Plaintiff is housed. As IDOC’s contract medical provider, Corizon is responsible for ensuring that proper medical, dental, psychiatric and psychological services, and treatment are provided to inmates incarcerated under IDOC’s jurisdiction.
18. Defendant SCOTT ELIASON, M.D., was at all times relevant to the actions and omissions described herein the Regional Psychiatric Director for Corizon and a psychiatrist engaged to provide medical services at ISCI. Defendant Eliason is a direct medical provider to Plaintiff, is a member of the Management and Treatment Committee for Plaintiff, and directly participated in decisions to deny Plaintiff adequate and necessary medical treatment for gender dysphoria.

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19. Defendant MURRAY YOUNG was at all times relevant to the actions and omissions described herein the Regional Medical Director for Corizon. Defendant Young also directly participated in treatment decisions for Plaintiff.
20. Defendant RICHARD CRAIG was the Chief Psychologist at ISCI until approximately the end of 2016, and engaged to provide medical services to inmates housed therein. Defendant Craig was a member of the Management and Treatment Committee for Plaintiff.
21. Defendant RONA SIEGERT was at all times relevant to the actions and omissions described herein the Health Services Director at ISCI and engaged to provide medical services to inmates housed therein. Defendant Siegert was a member of the Management and Treatment Committee for Plaintiff.
22. Defendant CATHERINE WHINNERY was at all times relevant to the actions and omissions described herein a medical provider engaged to provide medical services at ISCI. Defendant Whinnery is a direct medical provider to Plaintiff and directly participated in the denial of adequate and necessary medical treatment to Plaintiff for gender dysphoria.
23. DOES 1-10 (“Custody Does”) are additional custody supervisors and officers who were at all times relevant to the actions and omissions described herein employed at ISCI, and responsible for implementation of IDOC policies and procedures, and the welfare of inmates including Plaintiff. Custody Does supervised and/or participated in the disciplinary actions and denial of Plaintiff’s requests complained of herein. At the present time, the identities of Custody Does are unknown and not discoverable to Plaintiff without the relevant documents for her custody file, to which she does not presently have access. Plaintiff will substitute the true names of Custody Does when Plaintiff is able to ascertain their identities through discovery.
24. Does 10-15 (“Health Care Does”) are additional medical providers and staff who were at all times relevant to the actions and omissions described herein engaged to provide medical services at ISCI, and who were responsible for ensuring provision of appropriate medical care to Plaintiff and/or participated in the denial of adequate and necessary medical

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treatment to Plaintiff for gender dysphoria. At the present time, the identities of Health Care Does are unknown and not discoverable to Plaintiff without discovery. Plaintiff will substitute the true names of Health Care Does when Plaintiff is able to ascertain their identities through discovery.
25. At all times relevant herein, each Defendant was acting in the course and scope of his or her employment and under color of state law.
FACTUAL ALLEGATIONS Gender Dysphoria is Recognized as a Serious Medical Condition Requiring Treatment 26. Gender Dysphoria is a diagnosable and treatable condition recognized by the American Psychiatric Association and included in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-V”), as well as the International Classification of Diseases-10 (World Health Organization). 27. Gender dysphoria is not a mental illness or disorder. Rather, “gender dysphoria” is a diagnostic term that refers to clinically significant distress associated with an incongruence or mismatch between a person’s gender identity and assigned sex. When gender dysphoria is severe, it can result in a person’s inability to function in everyday life. Gender dysphoria is highly treatable. Indeed, with appropriate treatment, individuals with gender dysphoria can be fully cured of all symptoms. When not properly treated, however, gender dysphoria is often associated with dangerous related conditions such as depression, substance abuse, selfmutilation, suicidal ideations, and suicide. Without treatment, the path for those suffering from gender dysphoria can be torturous, as evidenced by alarmingly high suicide attempt rates: 40 percent of persons identifying as transgender attempt suicide, nearly 9 times the national average of 4.6 percent, according to the 2015 National Transgender Discrimination Survey. 4 Plaintiff’s history reflects such effects resulting from inadequate treatment: she has repeatedly experienced

4 Available at http://www.transequality.org/sites/default/files/docs/usts/USTS%20Full%20Report%20%20FINAL%201.6.17.pdf

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suicidal ideation and has engaged in dangerous attempts to self-harm and self-castrate as a response to her despair over her inability to access necessary treatment for her gender dysphoria.
28. The World Professional Association for Transgender Health (“WPATH”) is the leading international organization focused on transgender health care. WPATH has more than 1,000 members throughout the world consisting of physicians, psychiatrists, psychologists, social workers, surgeons, and other health professionals who specialize in the diagnosis and treatment of gender dysphoria. WPATH publishes the Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (“Standards of Care”). The Standards of Care were first developed in 1979. The current version of the Standards of Care, Version 7,5 was published in September 2011 following a five-year process in which eighteen gender dysphoria specialists submitted peer-reviewed papers to help identify the most effective treatments for gender dysphoria. WPATH’s Standards of Care are the prevailing standards of care used by mental health providers and medical professionals treating gender dysphoria.
Just as With Other Medical Conditions, People with Gender Dysphoria Must Be Able to Access Treatment Determined to Be Medically Necessary, Including Gender Confirmation Surgery
29. IDOC Policy 401, “Clinical Services and Treatment,” states that it is IDOC’s policy to provide “proper medical, dental, psychiatric and psychological services, and treatment” to inmates.
30. IDOC Standard Operating Procedure 401.06.03.001, “Access to Care,” states that the purpose of the procedure is “to ensure that offenders have unimpeded access to healthcare services to meet their serious medical, dental and mental health needs.” It further explains that “The IDOC provides healthcare to offenders during incarceration that focuses on prevention and maintenance of the offender’s health status.”

5 Available at https://s3.amazonaws.com/amo_hub_content/Association140/files/Standards%20of%20Care%20 V7%20-%202011%20WPATH%20(2)(1).pdf

THIRD AMENDED COMPLAINT

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FOR DAMAGES

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31. The goals of medical treatments for gender dysphoria, as stated in the Standards of Care, are (1) to alleviate clinically significant distress and impairment of functioning associated with gender dysphoria, and (2) to maximize overall psychological well-being.
32. As recognized by both the DSM-V and the Standards of Care, people with gender dysphoria who do not receive appropriate medical treatment are at risk of depression, anxiety, suicide, and genital self-harm, including attempts to perform auto-castration or auto-penectomy that can lead to serious and life-threatening injuries.
33. The Standards of Care set forth treatment options for gender dysphoria including: changes in gender expression and role (which may involve living part time or full time in another gender role, consistent with one’s gender identity); hormone therapy to feminize or masculinize the body; surgery to change primary and/or secondary sex characteristics (e.g. breasts/chest, external and/or internal genitalia, facial features, body contouring); and psychotherapy addressing the negative impact of gender dysphoria and stigma on mental health, alleviating internalized transphobia, enhancing social and peer support, improving body image, or promoting resilience.
34. After a diagnosis of gender dysphoria is made, the Standards of Care require that a competent medical professional with knowledge and expertise in gender dysphoria evaluate a patient for appropriate and necessary treatment options. This medical treatment not only improves a patient’s quality of life, but also limits the development of mental health issues which often accompany lack of treatment.
35. The Standards of Care also make clear that gender confirmation surgery is not an “elective procedure.” Gender confirmation surgery is an “essential and medically necessary” treatment to alleviate gender dysphoria in some cases. Hormone therapy alone for those individuals is not sufficient.
36. In promulgating the Standards of Care, the WPATH specifies that they “apply to all transsexual, transgender, and gender nonconforming people, irrespective of housing situation, including in institutional environments such as prisons. The Standards of Care state that “[a]ll

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elements of assessment and treatment as described in the SOC can be provided to people living in institutions…If the in-house expertise of health professionals in the direct or indirect employ of the institution does not exist to assess and/or treat people with gender dysphoria, it is appropriate to obtain outside consultation from professionals who are knowledgeable about this specialized area of health care.”
Defendants’ Failure to Provide Necessary Treatment and Discrimination Against Plaintiff 37. Plaintiff was born on October 29, 1987, in Pocatello, Idaho and grew up in Tyhee,
Idaho. Plaintiff is a member of the Shoshone-Bannock Tribe. 38. Plaintiff’s Tribe recognizes individuals as Two-Spirit, a Native American concept
encompassing cross-gender identifying and gender nonconforming individuals. 39. From a young age, Plaintiff identified with her sisters and other female family
members, and would dress in women’s clothing. As a teenager, she identified as female and was not comfortable in the male gender that was assigned to her at birth. At around age 18, Plaintiff began living “part-time” as a woman, including wearing women’s clothing and make-up, and at around age 20 began living full-time as a woman. Plaintiff identifies as Two-Spirit within her Tribe.
40. Plaintiff began her current term of incarceration in April 2012. Soon thereafter, in or around July 2012, Plaintiff was diagnosed with gender dysphoria by Dr. Lake, a doctor treating her on behalf of IDOC.
41. IDOC Standard Operating Procedure 410.06.03.501 requires the “Management and Treatment Committee” to create an individualized management and treatment program for inmates with gender dysphoria. However, Defendants have repeatedly failed to provide Plaintiff with individualized care.
42. On information and belief, Defendants’ failure to provide Plaintiff with individualized care as required by IDOC policy reflects Defendants’ custom, practice, and/or de facto policy of failing to provide necessary medical treatment for persons with gender dysphoria.
43. After IDOC’s own medical provider diagnosed Plaintiff with gender dysphoria,

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Plaintiff submitted numerous Corizon “Health Service Request” forms, and IDOC “Offender Concerns” forms related to medical needs resulting from gender dysphoria. These included requests for electrolysis for facial hair removal; medically appropriate doses of feminizing hormones; evaluation for gender confirmation surgery; change of gender marker on her IDOC identification card; female underwear; and the ability to purchase women’s cosmetics from commissary that are available to female prisoners.
44. From 2012 through 2016, Defendants largely denied and/or ignored Plaintiff’s requests. For example:
a. On or around December 3, 2012, Defendant Whinnery denied Plaintiff’s request for an increased dosage of estrogen and recorded in Plaintiff’s medical record that “policy is to maintain current doses” and informed Plaintiff that IDOC limits estrogen dosages to 3 mg, regardless of inmates’ individual needs.
b. On or around October 16, 2013, Plaintiff requested a medical memo that would allow her to possess gender-appropriate undergarments. This request was denied without consideration of her individual needs or development of an individualized treatment plan. Defendant Whinnery stated IDOC does not allow “female panties” for male inmates.
c. On or around November 16, 2013, Plaintiff requested medication to decrease facial hair. Defendant Young saw Plaintiff approximately one-and-a-half months later and refused to discuss any changes to medications.
d. On or around December 16, 2013, during a medical appointment with Defendant Young, Plaintiff again requested a medical memo that would allow her to possess gender-appropriate undergarments. Defendant Young indicated that she had to receive approval from security staff. On or around December 22, 2013, Defendant Warden Carlin denied Plaintiff’s request.
e. On or around February 11, 2014, Plaintiff requested an appointment with a gender dysphoria specialist and gender confirmation surgery. Health service

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Administrator Linda Gercke coordinate with Defendant Young and refused Plaintiff’s request as “not medically necessary.” f. On or around March 12, 2014, Defendant Yordy refused Plaintiff’s requests to live in a manner consistent with her female gender because she is “housed within a male prison.” g. On or around July 3, 2014, during a medical appointment with Defendant Whinnery, Plaintiff requested an evaluation for the medical necessity of gender confirmation surgery. Defendant Whinnery refused and stated words to the effect that “IDOC will not allow me to approve or recommend any medical treatment regarding sex reassignment surgery without a court order.” h. On or around September 20, 2014, Plaintiff requested to be seen by a qualified gender identity evaluator, and her request was not answered. i. On or around October 8, 2014, during a medical appointment with Defendant Whinnery, Plaintiff again requested approval to purchase women’s underwear. Defendant Whinnery refused citing IDOC policy not to issue a medical memo for female underwear to inmates with gender dysphoria. j. On or around January 8, 2015, during a medical appointment with Defendant Whinnery, Plaintiff requested an evaluation for gender confirmation surgery. Defendant Whinnery refused, saying this would not be provided without a court order. k. On or around April 20, 2016, Plaintiff was seen by Defendant Eliason and requested gender confirmation surgery. Defendant Eliason told Plaintiff words to the effect that “It would be a lot easier if you acted like a man, got out, and then you could do anything you want.” 45. As a result of Defendants’ failure to adequately treat Plaintiff’s gender dysphoria, Plaintiff experienced severe symptoms related to this condition, resulting in one suicide attempt and two attempts to self-castrate. In February 2014, Plaintiff attempted suicide as a result of

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learning that Defendants were denying her treatment for gender dysphoria. On September 29, 2015, Plaintiff attempted to self-castrate by using a razor blade to cut her testicle. On December 31, 2016, Plaintiff used a razor blade to cut her scrotum, pulling out the entire right testicle.
46. In response to Plaintiff’s September 29, 2015 castration attempt, she was given sutures to close the laceration, and then put on suicide watch for approximately 72 hours, and then placed in the “Behavioral Housing Unit” at the prison without any further medical treatment.
47. In response to Plaintiff’s December 31, 2016 castration attempt, she was transported to an outside hospital and given surgery to repair her self-castration attempt. Plaintiff was heavily medicated during her time at the outside hospital and is unaware if anyone at that outside medical facility spoke with IDOC or Corizon staff about a medical option of removing rather than repairing her testicle.
48. After this castration attempt, a clinician threatened Plaintiff that if she cut herself again, she would be placed in a maximum security prison.
49. From 2012 until December 2016, Defendants refused to evaluate Plaintiff’s requests for evaluation of the medically appropriate dose of feminizing hormones.
50. In or around December 2016, Defendants provided Plaintiff with one-time access to an outside medical provider who evaluated her dosage of hormones and other medications related to gender dysphoria. This medical doctor significantly raised Plaintiff’s dose of estradiol and spironolactone, and additionally prescribed her progesterone. However, since that date, Plaintiff has not had any follow-ups with this outside provider nor are any scheduled. Also since that date, despite the substantial changes in medication, Plaintiff’s blood levels have not been measured nor has there been other necessary monitoring of the effects of the medications, or evaluation of whether she is now receiving appropriate dosages of the medications.
51. Moreover, during Plaintiffs’ December 2016 visit with the outside provider, when Plaintiff sought to discuss the appropriateness of gender confirmation surgery, the outside provider informed her that he was unable to discuss this with her because it was outside of his

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contract with IDOC. 52. Defendants’ refusal to provide Plaintiff with access to a qualified medical
provider with expertise in gender dysphoria to assess her need for gender confirmation surgery reflects Defendants’ policy, procedure, custom, and/or practice of failing to provide adequate and necessary medical treatment to persons with gender dysphoria.
53. IDOC Standard Operating Procedure 401.06.03.001, “Access to Care,” prohibits “unreasonable barriers” to inmates’ access to healthcare services, including “[p]unishing offenders for seeking care for their serious health needs” and directs that “non-health care services staff (i.e. security staff) must not be allowed to approve or deny requests for healthcare made by an offender. Non-healthcare services staff must forward requests for healthcare at the facility for review and action if necessary.”
54. Throughout Plaintiff’s incarceration, Defendants have repeatedly disciplined and punished her for expressing her gender identity in a manner that did not pose any legitimate threat to the safety and security of the prison and that were related to gender dysphoria. For example, Defendants issued “Disciplinary Offense Reports” (“DORs”) to Plaintiff for, inter alia:
a. “Destruction of Property under $25” for converting state-issued men’s underwear into a style similar to women’s underwear to provide more support, for which Plaintiff was charged to pay restitution;
b. “Disobedience to Orders” for wearing “eyeliner makeup,” resulting in commissary restriction for 15 days;
c. “Possession of unauthorized property” for having “eyelash makeup with an eyelash applicator,” resulting in commissary restriction;
d. “Disobedience to Orders” for “hair in a bun that was above ear line,” resulting in 5 days in disciplinary segregation;
e. “Disobedience to Orders” for “hair in a high pony tail styled in a feminine fashion,” which was subsequently dismissed;
f. “Disobedience to Orders” for a “feminine hairstyle,” resulting in 20 days

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commissary restriction and 20 days recreation restriction; 55. Makeup items from the IDOC commissary are available to female inmates. 56. Defendants’ discipline of Ms. Edmo for expressing her gender identity has also resulted in her ineligibility for parole. Ms. Edmo was informed that she would no longer be considered for early release because of her disciplinary record, a substantial portion of which is comprised of Defendants’ punishment of her for expressing her gender identity. As a result, Ms. Edmo has stopped being considered for parole and, on information and belief, will not considered in the future.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Failure to Provide Necessary Medical Treatment (8th Amendment; 42 U.S.C. § 1983) Against ALL Defendants Except IDOC 57. Plaintiff repeats and re-alleges the allegations in all preceding paragraphs as if fully set forth herein. 58. Plaintiff has been diagnosed with the serious medical condition of gender dysphoria, which continues to cause Plaintiff serious mental distress and, without necessary treatment, has resulted in serious physical harm to Plaintiff. 59. Defendants are responsible for providing adequate and necessary medical treatment to Plaintiff, including treatment for persons diagnosed with gender dysphoria. 60. Defendants have failed to follow even IDOC’s own policies relating to Plaintiff’s treatment. For example, Defendants failed to convene and/or conduct the necessary IDOC Management and Treatment Committee meetings to meaningfully evaluate Plaintiff’s treatment for gender dysphoria. 61. Defendants have failed to provide adequate and necessary treatment to Plaintiff that is consistent with prevailing medical standards of care for gender dysphoria. 62. Defendants’ acts and/or omissions with respect to Plaintiff’s treatment reflect Defendants’ policy, custom, practice and/or procedure of failing to provide adequate and

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necessary medical treatment to inmates with gender dysphoria. 63. Each Defendant has been and remains deliberately indifferent to Plaintiff’s
medical need to be adequately treated for gender dysphoria, including but not limited to evaluation for gender confirmation surgery by qualified medical personnel with expertise in the diagnosis and treatment of gender dysphoria and provision of such surgery, if determined appropriate, as well as other medical treatments and accommodations that would alleviate Plaintiff’s serious medical symptoms. Each Defendant has known of Plaintiff’s serious medical need for treatment for gender dysphoria and failed to take reasonable measures to address Plaintiff’s continued pain and suffering resulting from her inadequately treated gender dysphoria.
64. Defendants’ continued denial of necessary medical treatment for gender dysphoria is causing irreparable harm and unnecessary suffering to Plaintiff, including severe anxiety and distress resulting in emotional, psychological, and physical harm.
65. Defendants’ failure to provide necessary medical treatment to Plaintiff violates the Eighth Amendment to the U.S. Constitution.
66. As a direct and legal result of Defendants’ actions and omissions, Plaintiff has suffered and continues to suffer damages including, without limitation, pain and suffering; emotional, psychological, and physical distress; violation of dignity; and other pecuniary losses not yet ascertained.
67. Individual Defendants and Corizon, by engaging in the aforementioned acts or omissions and/or in ratifying such acts or omissions, engaged in willful, malicious, intentional, and/or oppressive conduct, and/or acted with willful and conscious disregard of the rights, welfare, and safety of Plaintiff, thereby justifying the award of punitive and exemplary damages in an amount to be determined at trial. // // // //

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SECOND CLAIM FOR RELIEF Violation of Equal Protection – Discrimination Based on Sex (14th Amendment; 42 U.S.C.
§ 1983) Against ALL Defendants Except IDOC 68. Plaintiff repeats and re-alleges the allegations in all preceding paragraphs as if fully set forth herein. 69. Under the Equal Protection Clause of the Fourteenth Amendment, discrimination based on sex is presumptively unconstitutional and subject to heightened scrutiny. 70. Defendants have discriminated against Plaintiff based on her sex by failing to provide adequate and necessary medical treatment for gender dysphoria and by disciplining her based on Defendants’ sex-based stereotyping about the ways in which Plaintiff should appear, act, and express herself based on her sex assigned at birth. 71. In particular, Defendants have withheld adequate medical care from Plaintiff because she is transgender, because she is attempting to transition genders, and/or because of their sex-based belief that people who are assigned the male sex at birth should not receive medically necessary care that feminizes their bodies. 72. Defendants denied various requests and/or permitted the denial of requests by Plaintiff for commissary products allowed to similarly situated female inmates, including but not limited to women’s underwear and cosmetics. Defendants also disciplined Plaintiff for wearing her hair in hairstyles deemed to be “feminine” that are allowed for similarly situated female inmates. 73. Defendants also disciplined and/or permitted the discipline of Plaintiff for sexbased behaviors because she is transgender, because she is attempting to transition genders, and/or because of the sex-based belief that people who are assigned the male sex at birth should display only stereotypically male characteristics, behaviors, or dress. Defendants thus treated Plaintiff differently based on her sex and her perceived non-conformity with sex stereotypes, including the expectation that a person’s gender must conform to the sex assigned at birth.

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74. Defendants’ treatment of Plaintiff is based on her sex assigned at birth and sexbased stereotypes that Plaintiff should express herself in a manner that does not include wearing of cosmetics, “feminine” hairstyles, women’s underwear, and other “feminine” behaviors and/or expressions.
75. Defendants discriminated against Plaintiff because of sex, sex stereotyping, and/or gender identity pursuant to official policies, procedures, customs and/or practices.
76. Defendants’ discriminatory treatment of Plaintiff because of sex, sex stereotyping, and/or gender identity deprives Plaintiff of her right to equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution.
77. Defendants’ discrimination against Plaintiff because of sex, sex stereotyping, and/or gender identity is not substantially related to any important government interest, nor is it even rationally related to any legitimate government interest. Defendants’ discrimination against Plaintiff because of sex, sex stereotyping, and/or gender identity is also not reasonably related to legitimate penological interests.
78. As a direct and legal result of Defendants’ actions and/or omissions, Plaintiff has suffered and continues to suffer damages including, without limitation, pain and suffering; emotional, psychological, and physical distress; violation of dignity; and other pecuniary losses not yet ascertained.
79. Individual Defendants and Corizon, by engaging in the aforementioned acts and/or omissions and/or in ratifying such acts or omissions, engaged in willful, malicious, intentional, and/or oppressive conduct, and/or acted with willful and conscious disregard of the rights, welfare, and safety of Plaintiff, thereby justifying the award of punitive and exemplary damages in an amount to be determined at trial. / / / / / / / / /

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THIRD CLAIM FOR RELIEF Violation of Equal Protection – Discrimination Based on Diagnosis of Gender Dysphoria
(14th Amendment; 42 U.S.C. § 1983) Against ALL Defendants Except IDOC 80. Plaintiff repeats and re-alleges the allegations in all preceding paragraphs as if fully set forth herein. 81. IDOC policies require that prisoners with serious medical conditions be provided with appropriate and necessary medical care. IDOC Policy 401, “Clinical Services and Treatment,” states that it is IDOC’s policy to provide “proper medical, dental, psychiatric and psychological services, and treatment” to inmates. IDOC Standard Operating Procedure 401.06.03.001, “Access to Care,” provides that “in a timely manner, an offender patient can be seen by a clinician, be given a professional clinical judgment, and receive care that is ordered,” and that healthcare for inmates focuses on “prevention and maintenance of the offender’s health status.” The policy requires that “[u]pon identification of any medical or mental health need requiring evaluation and/or intervention by a physician . . . or mental health professional, arrangements must be made to provide timely examination, assessment, ,and/or treatment by scheduling an appointment with the appropriate practitioner” IDOC Directive 401.06.03.035, “Mental Health Care/Evaluation and Assessment,” provides that treatment needs be addressed as soon as possible, and inmates who require acute mental health services beyond those available at the prison will be transferred to an appropriate facility which may include a facility in the community. 82. Defendants diagnose and treat similarly situated IDOC inmates with mental health diagnoses and medical conditions other than gender dysphoria according to the IDOC policies, including those described above, regardless of whether such diagnosis and/or treatments are not common practices, or are unpopular treatments. 83. Defendants have failed, and continue to fail, to provide Plaintiff treatment according to IDOC policies because of her diagnosis of gender dysphoria.

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84. By official policy, procedure, custom and/or practice, Defendants discriminate against transgender inmates diagnosed with gender dysphoria, including Plaintiff, by providing them with inferior medical care as compared to similarly situated inmates with medical and mental conditions and/or diagnoses other than gender dysphoria.
85. Defendants’ discriminatory treatment of Plaintiff because of her diagnosis of gender dysphoria deprives Plaintiff of her right to equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution.
86. Defendants’ discrimination against Plaintiff based on her diagnosis of gender dysphoria is not substantially related to any important government interest, nor is it even rationally related to any legitimate government interest. Defendants’ discrimination against Plaintiff based on her diagnosis of gender dysphoria is also not reasonably related to legitimate penological interests.
87. As a direct and legal result of Defendants’ actions and omissions, Plaintiff has suffered and continues to suffer damages including, without limitation, pain and suffering; emotional, psychological, and physical distress; violation of dignity; and other pecuniary losses not yet ascertained.
88. Individual Defendants and Corizon, by engaging in the aforementioned acts or omissions and/or in ratifying such acts or omissions, engaged in willful, malicious, intentional, and/or oppressive conduct, and/or acted with willful and conscious disregard of the rights, welfare, and safety of Plaintiff, thereby justifying the award of punitive and exemplary damages in an amount to be determined at trial.
FOURTH CLAIM FOR RELIEF Discrimination on Basis of Disability (Americans with Disabilities Act, 42 U.S.C. § 12101
et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794a) Against Defendants IDOC and Corizon
89. Plaintiff repeats and re-alleges the allegations in all preceding paragraphs as if fully set forth herein.

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90. Based on her diagnosis of gender dysphoria, Plaintiff suffers from a “disability” within the meaning and scope of 42 U.S.C. § 1202, which has been recognized and documented by Defendants. Accordingly, Plaintiff is a member of the class of persons protected by the ADA and Section 504 of the Rehabilitation Act, which make it unlawful for a public entity and entities receiving federal funds to discriminate against an individual with a disability, or to deny the benefits of the services, programs, or activities of a public entity or entity receiving federal funds to a person with a disability.
91. Defendants discriminated against Plaintiff because of her disability and denied her the benefits of public services, programs and activities as a result of her disability by, inter alia, failing to provide adequate and necessary medical treatment; failing to provide proper and reasonable training to custody and health staff in responding to persons with gender dysphoria; and by disciplining Plaintiff for actions or behavior related to gender dysphoria and imposing punishments depriving Plaintiff of programs and activities because of such actions or behavior in a manner detrimental to her health.
92. Defendants’ acts and omissions violated the ADA and Section 504, which prohibit discrimination on the basis of physical and mental disability, and protect persons such as Plaintiff from the type of injuries and damages set forth herein.
93. Defendant IDOC is not entitled to immunity from suit under the Eleventh Amendment for this cause of action.
94. As a direct and legal result of Defendants’ actions and omissions, Plaintiff has suffered and continues to suffer damages including, without limitation, pain and suffering; emotional, psychological, and physical distress; and other pecuniary losses not yet ascertained.
FIFTH CLAIM FOR RELIEF Violation of Affordable Care Act (42 U.S.C. § 18116) Against Defendants Atencio, Zmuda, and Yordy in their official capacities 95. Plaintiff repeats and re-alleges the allegations in all preceding paragraphs as if fully set forth herein.

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96. Section 1557 of the Affordable Care Act, 42 U.S.C. § 18116, prohibits covered entities from discriminating on the basis of sex for the purpose of providing health care services.
97. Covered entities include “any health program or activity, any part of which is receiving Federal financial assistance.” IDOC is a covered entity subject to the ACA’s nondiscrimination requirement.
98. As set forth above, Defendants have and continue to discriminate against Plaintiff on the basis of sex when they deny her adequate and necessary medical treatment on the basis that she is transgender, has been diagnosed with gender dysphoria, and is attempting to transition genders.
99. As set forth above, Defendants have and continue to discriminate against Plaintiff on the basis of sex when they deny her adequate and necessary medical treatment on the basis of sex stereotyping and/or a belief that people who are assigned the male sex at birth should display only stereotypically male characteristics, behaviors, and dress.
100. As a direct and legal result of Defendants’ actions and omissions, Plaintiff has suffered and continues to suffer damages including, without limitation, pain and suffering; emotional, psychological, and physical distress; violation of dignity; and other pecuniary losses not yet ascertained.
SIXTH CLAIM FOR RELIEF Negligence (Idaho State Law) Against Defendants Atencio and Zmuda, in their official capacities; Defendant Yordy in his official and individual capacity; Defendant Corizon; and Defendants Custody Does 101. Plaintiff repeats and re-alleges the allegations in all preceding paragraphs as if fully set forth herein. 102. Defendants failed to comply with professional standards in the treatment, care, and supervision of Plaintiff during her incarceration at ISCI. Defendants’ failures include but are not limited to: failing to provide timely and necessary medical treatment; disciplining and punishing Plaintiff for behaviors and actions reflecting her medical diagnosis and seeking

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medical treatment; and failing to house Plaintiff safely. 103. Defendants also failed to appropriately supervise, review, and ensure the
provision of adequate care and treatment to Plaintiff by custody and medical staff, and failed to enact appropriate standards and procedures that would have prevented the harm that she has experienced.
104. Together, Defendants acted negligently and improperly, breached their respective duties, and as a direct and proximate result, Plaintiff suffered injuries and damages as alleged herein.
105. The negligent conduct of Defendants was committed within the course and scope of their employment.
106. The aforementioned acts of individual Defendants and Corizon were conducted with conscious disregard for the safety of Plaintiff and others, and were therefore malicious, wanton, and oppressive. As a result, Defendants’ actions justify an award of exemplary and punitive damages to punish the wrongful conduct alleged herein and to deter such conduct in the future.
PRAYER FOR RELIEF WHEREFORE, Plaintiff requests entry of judgment in her favor and against Defendants as follows: a. For injunctive and declaratory relief, including but not limited to enjoining
Defendants to provide Plaintiff with adequate and necessary medical care; enjoining Defendants to provide Plaintiff equal access to clothing, cosmetic, and hygiene items available to inmates housed in female institutions; enjoining Defendants to house Plaintiff at an institution consistent with her gender identity; declaring unconstitutional and violative of federal law Defendants’ practices in denying Plaintiff and other similarly situated inmates with adequate and necessary medical treatment; b. For compensatory, general and special damages, in an amount to be determined at

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Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 24 of 60

trial; c. For punitive damages against individual Defendants and Corizon in an amount to
be proven at trial; d. For reasonable costs of this suit and attorneys' fees and expenses; and d. For such further relief as the Court may deem just, proper, and appropriate

DEMAND FOR JURY Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands trial by jury.

Dated: Janary 31, 2019

Respectfully Submitted, NATIONAL CENTER FOR LESBIAN RIGHTS FERGUSON DURHAM HADSELL STORMER & RENICK LLP
By: /s/ - Lori E. Rifkin Lori E. Rifkin
Attorneys for Plaintiff

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Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 25 of 60
Third Amended Complaint
Exhibit A

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 26 of 60
Case 1:17-cv-00151-REB Document 4 Filed 04/06/17 Page 2 of 13

NOTICE OF CLAIM

In compliance with Title 6, Chapter 9 of the Idaho Code*, the undersigned hereby presents a

claim arising out of an accident or occurrence which happened as fo llows against the following

governmental entity: (CHOOSE ONE)

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State of Idaho J dtJi 0 Sf

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PO Box 83720 Boise, ID 8372

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County I Clerk
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Date and Time of Occurrence: [X>g ;())OJDf X' ~\) ?:O \Lo <lt 0-bo1J...,-t lZ-30 \r) rurs .

or- \\ .- , . : - Cause of Damages: (Describe the details and circumstances of the accident or occurrence)

~ lf\U~~s, L(-1n VYLL~~r
WitnesseS: (Name, Address and Phone N

-ro ~oltllv murv.d

Amount of Claim: $ Q!~fl_{.

(Attach all bills or substantiating information as to the

amount of the claim)

Personal Injury:
·c treatment, etc.) --""'---4-'=-=-4->-"'--'-''....J......oL-_l"'-'...~1,-lLI-"-'4-~4.:...!'-'--~~=--'-"~='-.!......!<:....t....x.;'.4-4-'~l<.L'-''lre5
~~~~~~~~~~~~~~~

Property Damage: (Describe the property damage) --tf\-t-t/-~tt------------

a-rf'1 DATED this \
Name of Claimant: Street Address : City and State:
*Claims must be filed within 180 days ofthe date the claim arose or should have been reasonably discovered.
NOTICE OF CLAIM - 1
Revised: 3/24/l 6

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 27 of 60
Third Amended Complaint
Exhibit B

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 28 of 60

Case 1:17-cv-00151-REB Document 4 Filed 04/06/17 Page 4 of 13

IDAHO
DEPARTMENT OF CORRECTION

Idaho D epartment of Correction Grievance Form

Offender Name:

EDMO, MASON DEAN

Location: ISCI

Offender Number: 94691

Number: II 160000599

Offender Grievance Infom1ation

Date Received:

0610 1/20 16

The problem is:

Category: MED ICAL/HEALTHCARE

I am being denied access to care by !DOC officials, specifically, ISC I warden Yordy, as he does not allow my medical/mental health providers to issue me a med ical memo for panties for my psychological support of treating my GID. He allows me to have bras but denies panties; both are women's undergarments, this makes no sense at all, both are needed for treating my GID.

I have tried to solve this problem informally by:
submitting HSR # 8459 I I on 05/21 116, concern forms: Dr. Eliason on 05/20/ J6, !SCI warden Yordy on 06-24-15 (A ll Attached)

1suggest the fo llowing so lution for the probl em:
Be allowed to purchase, possess and wear fema le panties for the psychological improvement and as a medically necessary treatment for my GID as according to the World Professional Associations ofTransgender Health ("WPATH").

I Level 1 - Initial Response

Date Forwarded :

06/0112016

Date Returned:

06/09/2016

Date Due Back:

0611512016

Level I Responder:

The response from the staff member or person in charge of the area/operation being grieved:

BENTON, AMANDA

Bra memos are issued on an " as needed" basis to support development of breast tissue. Panties are not medically indicated or necessary at this time.

I Level 2 - Reviewing Authority Response

Date Forwarded:

06/09/2016

Grievance Disposition:

DENIED

Date Due Back:

0 6/ 23 / 2016

Level 2 Responder:

HOFER, AARON

Date Ren1rned:

06110/2016

Your grievencc has been reviewed and 1find:

Response sent to offender:

06/13/2016

I am sorry for any inconvenience thi s has caused. Medical does not deal with panties. Please speak with Dr. Eliason for any and all information pertaining to G. l. D. Thank you

Date: 07/06/2016 15:46 CIS/Facilities/Main/Misc/Grievance Detail

Crcalcd By: kawillso

Page I of 2

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Case 1:17-cv-00151-REB Document 4 Filed 04/06/17 Page 5 of 13

11 160000599

EDMO. MASON DEAN

9469 1

Offender Appeal
Offender Comments:

I've already talked to Dr. Eliason on (04/20/16) about the pantie issues and he has told me that !SCI Administrators/ ISCI Warden Yordy wi ll not allow Dr. Eliason to issue me a medical memo so that I may get panties from laundry or purchase o n my own. This medical memo is necessary because a llowing me to have panties support my mental hea lth and help alleviate some of my gender dyshoria. I talked to a provider on (06114/ 16) about this issue as well and he said he would issue a medical memo so that I can request panties from laundry (or SBWCC Laundry) or I be allowed to purchase my own. If I am denied it can be deliberate indifference to my serious medical need of appropriate undergannents for treating my gender dyshporia.

Level 3 - Appellate Authority Response

Date Appealed:

06/22/2016

Grievance Disposition:

D EN IE D

Date Forwarded:

0 6/23/2016

Level 3 Responder:

SIEGERT, RONA

Date Due Back:

07/09/2016

Response sent to offender:

07 /0 6/ 2 0 1 6

Date Returned:

07/06/2016

Your appeal has been reviewed and I find:

Inmate Edmo:

Medical providers have determined that "panties" are not medically necessary. Please address your gender dysphoria issues with your assigned clinician.

Dale: 07/06/2016 15:46 CIS/ Facilities/Main/ Misc/Grievance Detail

Created By: kawillso

Page 2 of

2

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Case 1:17-cv-00151-REB Document 4 Filed 04/06/17 Page 6 of 13

Idaho Department of Correction Grievance Fonn

Offender Name: Offender Number:

EDMO, MASON DEAN 9469 1

I Offender Grievance Information

Date Received:

04/04/2016

The problem is:

Location: Number: Catego1y:

!SCI [[ 160000391 MEDICAL/HEA LTHCAR E

I am not being provided timely adequate medical/mental health care, specifically a medical/mental heal th eva luation for the medical necessity pre-requisite of sex reassignment surge1y by a qual ified gender identity disorder evaluator pursuant lo IDOC SOP 401.06.03.50 1 and NCCHC MH-A-0 1 Access to care. and P.-G-02 special needs.

l have tried to solve this problem informally by:
Sending concern forms to clinician Houser on 3/03/16, clinician Irvin on 2/22/16 and Dr. Scott Eliason on 3/ 16/1 6, and 3/25/16. (all attached)

I s uggest the fo llowing so lution for the problem:
I wa nt to be schedu led immed iately by a qual ified gender identity disorder evaluator for a medical/mental health evaluation for sex reassignment surge1y!

I Level l - Initial Response

Date Forwarded:

04/07/20 16

Date Returned:

Date Due Back:

04/21 /20 16

Level I Responder:

The response from the staff member or person in charge of the area/operation bei ng grieved:

Please submit a concern fom1 to Dr. Eliason for thi s request.

04/08/20 16 BREWER, GEN

I Level 2 - Reviewing Authority Response

Date Fo1warded:

04/08/20 16

Grievance Disposition:

MODI FIED

Date Due Back:

04/22/20 16

Level 2 Responder:

HOFER, AARON

Date Returned:

04/ 13/20 l6

Your grievence has been reviewed and I fi nd:

Response sent to offender:

04/ 18/20 16

Please address any and all GID questions/concerns to Dr. Eliason. Dr. Eliason is the expert and has the decision making abi lity in th is area. Thank you.

Date: 05/19120 16 09:23 C IS/ Facilities/Main!Misc/Gricvancc Dclail

Crealed By: j whi11in

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Case 1:17-cv-00151-REB Document 4 Filed 04/06/17 Page 7 of 13

II 160000391

EDMO. MASON DEAN

9469 1

Offender Appeal
Offender Comments:

Dr. Eliason is not an ex pert in GID, docs not have any substantial treatment experience in treating persons w/ GID. Dr. Eliason is restricied, restrained, land I or denied from uti lizing the standard of care typica lly used in treating GID/ GD; wpath, Dr. Eliason furlher delays and I or interferes with adequate medical care of my GID by stating he is a expert and I or specialist. I still am being denied Iimely and adequate medical treatment fo r my GID by a medical I mental health provider qualified to exercise judgment about my particular med ical I mental health condition of G ID.

Level 3 - Appellate Authority Response

Date Appealed:

04/25/2016

Grievance Disposition:

MODIFIED

Date Forwarded:

04/29/2016

Level 3 Responder:

SIEGERT, RONA

Date Due Back:

05/17/ 2016

Response sent to offender:

05/ 19/2016

Date Returned:

05/17/ 2016

Your appeal has been reviewed and I find:

Offender Edmo:

Dr. Eliason is a board certified phys ician with a specialty in psyehi at1y. If Dr. Eli ason feels that it is necessa1y for you to be evaluated by a "qualified gender identity disorder evaluator" he will provide that service to you. If you have furthe r questions or concerns please follow up with Dr. Eliason.

Rona Sieger! RN , CCHP-RN Idaho Department of Correction

Date: 05/19/2016 09:23 CIS/Facilities/ Main/Misc/Grievance Detail

Created By: jwhillin

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Case 1:17-cv-00151-REB Document 4 Filed 04/06/17 Page 8 of 13

Idaho Department of Correction Grievance Form

Offender Name:

EDMO, MASON DEAN

Location: lSCl

Offender Number: 94691

Number: ll l 5000 l348

Offender Grievance Information

Date Received:

l 2/16/2015

The problem is:

Catego1y: MEDICAL/HEALTHCARE

l submilled HSR #'s 784687 & 784637 on l 1/22/ 15, concern form to !DOC I !SCI HSA on l2/0611 5 asking about HS R's, no response on either. l am being denied an endocrinologi st & medical treatment wpath standards. This is creating a substantial risk of future harm ofautocastrating myself. l shouldn't have to wait for 30, 60, 90 days until nex t appt.

l have tried to solve this problem informally by: Submitting HS R's #'s 784687, 784637 on l l/22/15 & concern form l 2/06/015 to !SCI HSA, both no response. (attached)

l suggest the following solution for the problem:
l request an appt. with a licensed endochnologist and proper medical care treatment. According towpath standards of care fo r GID individuals as myself.

Level 1 - Initial Response

Date Forwarded:

l 2/18/2015

Date Returned:

1213012015

Date Dur Back:

0110l/2016

Level l Responder:

The response from the staff member or person in charge of the area/operation being grieved:

WINGE RT. WILLIAM

HSR received l l-22- l5. Edmo scheduled 12-7- 15 and failed to show to appointment. Rescheduled l 2-23-15. The Nurse Practitioner ordered that he be seen by an MD to discuss plan of care. That appointment is slated for his next scheduled appointment time.

Level 2 - Reviewing Authority Response

Date Forwarded:

12/30/20 15

Grievance Disposition:

MODIFI ED

Date Due Back:

01 / 13/2016

Level 2 Responder:

HOFER, AARON

Date Returned:

12/31/2015

Your grievence has been reviewed and I find :

Response sent to offender:

12/3 l/20 l5

l am so1Ty fo r any inconvenience this has caused you. You wi ll be scheduled with an MD to discuss plan of action and HS R's.

Date: 01/11 /20 16 15:38 C IS/Facilities/ Main/M isc/Grievance Detail

Created By: jwhi1tin

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Case 1:17-cv-00151-REB Document 4 Filed 04/06/17 Page 9 of 13

11150001 348

EDMO. MASOt\ DEAN

9469 1

Offender Appeal
Offender Comments:

I believe that being in the chronic care health program of lDOC I should have seen by a MD physician. This is an ongoing struggle with Corizon, and !DOC to recieve an adequate medical plan of action for my G.D. Ive not seen a medical physician the entire year of201 5 and believe I should be afforded the opportun ity to explain my medical concerns to such.

Level 3 - Appellate Authority Response

Date Appealed:

01/11 /2016

Grievat .rn Dispns ition:

DENIED

Date Forwarded:

01111 /2016

Leve l 3 Responder:

SIEGE RT, RONA

Date Due Back:

01/27/2016

Response sen t to offender:

0 1/1 1/20 16

Date Returned:

01/11 /2016

Your appeal has been reviewed and I find:

Offender Edmo:

In your original grievance you are asking to be seen by an "endocrinologist", however, in your appeal you state that you feel that you should be seen in the chroni c disease clinic by an MD. Per policy you cannot change or add issues at the appeal level. Therefore this appeal is denied.

Rona Siegert RN, CCHP-RN IDOC Health Services Director

Dale: 01111/20 16 15:38 C IS/ Facili1ies/Main/ Misc/Grievance Delail

Crcalcd By: j whinin

! ,M.
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Page 2 of

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 34 of 60
Case 1:17-cv-00151-REB Document 4 Filed 04/06/17 Page 10 of 13
Idaho Department of Con-ection Grievance Form

Offender Name: Offender Number:

EDMO, MASON DEAN 9469 1

Location: Num ber:

ISCI II 150001187

Offender Grievance Information

Date Received:

11/04/ 2015

The problem is:

Catego1y: MED ICAL/HEALTH CA RE

I am being denied adequate I appropriate medical care for my serious condition of GID. N. P.-C Paulson refuses to follow the WPATH standard of care in treating my GID; specifically of ordering laser hair removal electrolysis, or hair remover for my fac ial hair, or any fu rther treatment on I0/20/1 S.

I have tried to solve this problem info1mally by: Sending concern fo1m on IOil Sil S and submitting HSR # 784404 on I0125/ 1S. (Both attached)

I suggest the followi ng solution for the problem: I should be treated according to WPATH standards of care fo r my serious condition of GID.

Level 1 - Initial Response

Date Forwarded:

11 /04/2015

Date Returned:

Date Due Back:

11 /18/20 IS

Leve l I Responder:

The response from the staff member or person in charge of the area/operation being grieved:

Facial hai r removal for Gender Dyspho ria is not an !DOC po licy. nor is it medically necessary.

11/05/201 s
WINGERT, WILLI AM

I Level 2 - Reviewing Authority Response

Date Forwarded:

11 /05/20 15

Grievance Disposition:

Date Due Back:

11 119/201 5

Leve l 2 Responder:

Date Returned:

11/06/20 15

Your grievence has been reviewed and I fi nd:

Response sent to offender:

Ed mo, Hair removal is not part of our pol icy, nor is it medically necessary.

DEN IED VA LL EY, RYAN
11106/201 s

Date: 11/1 6/20 15 13:28 C IS/Facilities/Main/Misc/Gricvance Detail

Created By: jwhillin

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Case 1:17-cv-00151-REB Document 4 Filed 04/06/17 Page 11 of 13

II 1500011 87

EDMO. MASON DE,

9-169 1

Offender Appeal
Offender Comments:

WPATH "SOC" PAS 17 1-72 explain the need for electrolysis for support in changes of gender expression in conjunction with hormone therapy. WPATH is the standard of care for treating GID. Corizon nor !DOC have any providers competent, or experienced in treating GID, including me. A competent experienced provider would note this facial hair removal medically necessary to alleviate my gender dysphoria, and help to prevent another attempt at autocastration, as I did on 0912911 5. Please refer me to a GlD specialist to be evaluated by appropriate medical care of my GID. Denial based on policy or cursory health service evaluations is deliberate and indifference to my serious GID medical condition. Denial highers my depression and ideation of autocastration.

Level 3 - Appellate Authority Response

Date Appealed:

11/13/20 15

Grievance Disposition:

DEN IED

Date Forwarded:

11/13/20 15

Level 3 Responder:

SIEGERT, RONA

Date Due Back:

11 / 29/2015

Response sent to offender:

1111 6/2015

Date Returned:

11/16/2015

Your appeal has been reviewed and I find:

O ffender Edmo:

Per WPATH, The Standards of Care, Version 7. Hair removal is listed as an option or alternative not a requireme111 for GD treatment.

Rona Siegert RN, CC HP-RN !DOC Health Services Director

Date: 11/1 6/201 5 13:28 CIS/Facilities/Main/Misc/Grievance Detail

Created By: jwhittin

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Case 1:17-cv-00151-REB Document 4 Filed 04/06/17 Page 12 of 13

Idaho Department of Correction Grievance Fonn

Offender Name:

EDMO, MASON DEAN

Location: ISCI

Offender Number: 94691

Number: II 150001091

Offender Grievance Information

Date Recei ved:

10/0712015

The problem is:

Ca tego1y: ADM IN ISTRATION

Dr. Craig did not respond to my concern form about my mental hea lth issues which has caused me to lose parole eligibility.

I have tried to solve this problem infonnally by: Sending concern form to Dr. Craig on 9/ 15115.

I suggest the fo llowing sol ution for the problem:
Dr. Craig respond to my issue of G. D. symptoms (hairstyles) resulti ng in my parole eligibi lity loss, and my treatment plan brought lo MTCC for implementation of appropriate mental health.

I Level 1 - Initial Response

Date Forwarded:

10/14/ 2015

Date Returned:

Date Due Back:

10/28/2015

Level 1 Responder:

The response from the staff member or person in charge of the area/operation being grieved:

No level one response.

10/14/2015

Level 2 - Reviewing Authority Response

Date F01warded:

10114/201 5

Grievance Disposition:

MO D IFI ED

Date Due Back:

10/30/2015

Level 2 Responder:

CRA IG, RICHARD

Date Returned:

10/22/2015

Your grievence has been reviewed and I find :

Response sent to offender:

I0/22/2015

Your concern fonn of 09/15/15 was recei ved and a response was entered on 9/27/15 (see attached). Offender Edmo's concerns were related to hair style and dress and she was informed that those were security issues and should be discussed with the Warden. In regards to mental health concerns, Offender Edmo was on the BHU at the time the concern fo rm was penned but moved to unit 15 the following day per her request. Since that time offender Edmo has been returned to the BH U on 09/29/15 and has access to mental health services.

Date: 10/22/20 15 13:58 CIS/Facilities/Main/Misc/Grievance Detail

Created By: jwhit1in

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Case 1:17-cv-00151-REB Document 4 Filed 04/06/17 Page 13 of 13

II 150001091

EDMO. MASON DEAN

Offender Appeal
Offender Comments:

9469 1

Level 3 - Appellate Authority Response
Date Appealed: Date Forwarded: Date Due Back: Date Returned: Your appeal has been reviewed and I find:

Grievance Disposition: Le vel 3 Responder: Respqnse. sent to o ffender:

Da te: 10/22/2015 13:58 C IS/Facilities/Main/Misc/Grievance Detail

Created By: j whillin

Page 2 of

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Case 1:17-cv-00151-REB Document 4-1 Filed 04/06/17 Page 1 of 12
Idaho Department of Coffection Grievance Fonn

Offender Name: Offender Number:

EDMO. MASON DEAN 94691

Offender Grievance Information

Date Received:

07/15/20 15

The problem is:

Location: Number: Category:

ISCI II 150000749 COM PLA INT AGA INST

On 06-29-15 while at a property appt. with Sgt. Sidwell. Sidwell kept calling me "Mr. Edmo", "he"', "his". I respectfully reminded Sgt. Sidwell of S.O.P. 401 .06.03.50 I - section I0 on gender pronouns of my GD. He said "whatever" in response. On 07-01-15, again. Sgt Sidwell continued to use "he" and Mr. Edmo. Thi s is humiliating and offensive.

I have tried to so lve this problem informally by:
Reminding Sgt. Sidwell respectfully of SOP 401.06.03.501 , and sending concern form on 06-25-15 Lo Sgt. Sidwell. (Concern fonn attached).

I suggest the fo llowing solution for the problem:
Sgt. Sidwell instructed to follow !DOC policy 40 l .06.03.50 l - GID and SOP 207 Respectful Workplace. specifically section 07-02-1 1. and the harmful effects this has on my mental health.

Level l - initial Response

Date Forwarded:

07/ 16/2015

Date Returned:

07/20/20 IS

Date Due Back:

07/30/2015

Level I Responder:

The response from the sta ff member or person in charge of the area/operation being grieved:

GREENLAND,

!SCI is a male faci lity and it is common placed and respectfu l to state something to the effect "Good morning sir how may I help you." I understand that this may offend you but it was not the intent. The staff member stated that you were upset about not being able to retain the items in the confiscation and had immediately threaten grievance before even explaini ng your status as a GID offender. I will talk to Sgt. Sidwell about this and I do believe that he wi ll try to correct how he address you in the future. But understand this fac il ity is a male fac ility and it may occur again. I would ask that before you threaten grievance attempt to exp lain to staff your issue firs t.

Date: 08/31120 15 15: 12 CIS/Facilitics/Main/Misc/Grievance Detail

Created By: jwhittin

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Case 1:17-cv-00151-REB Document 4-1 Filed 04/06/17 Page 2 of 12

II 150000749

EDMO. MASON D~

I Level 2 - Reviewing Authority Response

Date Forwarded:

07/20/ 2015

9~691
Grievance Disposition:

MODIFIED

Date Due Back:

08/05/ 2015

Level 2 Responder:

PEN EKU. LEROY

Date Re turned:

0 7/ 21 / 2015

Your g rievence has been reviewed and I find:

Response sent lo offender:

07/22/2015

Inmate Edmo - This is a male correctional fa cility, staff are accusto m to addressing the population as such. I'm s ure the Sergea nt meant no disrespect towards you, nor did he lly to humi liate you. We will address your concern with Sergeant Sidwel l.

Offender Appeal
Offender Comments:
Upon review of policies 401.06.03.50 I (GID) and 207.07.02.11 (Respectful workplace - offenders) an excuse of w hether this is a ma le instinttion or female institution does not excuse accountability. These policies do not allow fo r any s taff member in either a male or a fema le institution to address a GID inmate, as myself. w ith gender spec ifiers. or pronouns. Sgt. Sidwell , as a Sgt. should be will aware of policy and procedures. These intentional unexcusable. humiliating. and offensive use of "mr", ("sir"), etc, masculine pronouns need to s top. This is the 3rd g1ievance against staff for such misconduct. It is a repetitive behavior. Staff must be able to modify behavior as a professional while at work as a correctional officer.

Level 3 - Appellate Authority Response

Date Appealed:

08/J 1/2015

Grievance Disposition:

MODIFIED

Date Forwarded:

08/J 2/20 15

Level 3 Responder:

YORDY, HOWARD

Date Due Back:

08/ 3 1/ 20 15

Response sent to offender:

08/ 31 / 20 15

Date Returned:

08/ 31 /20 15

Your appeal has been reviewed and I find:

The policy does state sta ff are to be gender neutral when addressing GID offenders. Although. I don't believe it was intentional, we need to make bener awareness to our staff.

Warden Yordy

Date: 08/3 I/20 15 15: 12 C lS /Facilities/Main/Misc/Gricvance Detail

Created By: j whiuin

Pa g~

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Idaho Department of CoITection Grievance F01m

Offender Name: Offender Number:

EDMO, MASON DEAN 9469 1

Offender Grievance Information

Date Received:

05121 120 15

The problem is:

Location: N u mb e r: Category:

!SCI II 150000555 COMPLAINT AGA INST

05- 13- 15 Cpl. Plumer #0 101 had kept call ing me him, Mr., and he which is not allowed per SOP 's 401 .06.03.50 1 section I0, and SOP 207.07.0 2.11.

I have tried to solve this problem informally by: Sending Plumer a concern form on 05-13-15, and reminding him that we have been through lhis before.

l suggest the fo llowing so lution fo r the problem: Cpl. Plumer be instructed to fo llow IDOC po licies as instructed.

Level 1 - Initial Response

Date Forwarded:

05/21 /2015

Da te Returned:

0512 1120 [ 5

Date Due Back:

06/04/2015

Level 1 Responder:

Th e response from the staff member or person in charge of the area/operation being grieved:

GOULD, DA YID

Please understand that you are housed in an all male facility, and that sta ff address indi•!iduals housed here as Mr. or him all day long. I'm sure that it was not done in malice. l wi ll remind Cpl. Plumer of this policy.

Level 2 - Reviewing Authority Response

Da te Forwarded:

05/21/201 5

G rievance Dispositio n:

GRANTED

Date Due Back:

06106120 15

Level 2 Responder:

PENE KU, LEROY

Date Returned:

05/2 l/20 [5

Your grievence has been reviewed and I fi nd:

Response sent to offender:

0512 1/2015

Inmate Edmo - Considering that this is a male correctional faci lity, staff become accustom to addressing the population as such. I'm sure the Cpl meant no disrespect towards you. We will address your concern with Cpl. Plumer.

Date: 06/ 16/20 15 12:29 C IS/Fac il ities/Main/Misc/Grievance Detail

Created By: jwhittin

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Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 41 of 60

Case 1:17-cv-00151-REB Document 4-1 Filed 04/06/17 Page 4 of 12

11 150000555

EDMO, MASON D

94691

Offender Appeal
Offender Comments:

Policies 207 and 401.06.03.50 I do not allow exceptions for staff in male correctional facilities to intentionally d isregard policy. Cpl. Plumer is well versed abou t my status as an GID offender as Cpl. Plumer has worked in ISC I's BH U where G ID offenders are usually housed - this "general" population statement cannot suffice justification. Cpl. Plumer must be clearly adv ised of these policies.

Level 3 - Appellate Authority Response

Date Appealed:

06/04120 I5

Grievance Di sposition:

MODIFIED

Date Forwarded:

06/1012015

Level 3 Responder:

YORDY, HOWARD

Date Due Back:

06/2612015

Response sent to offender:

06/16/2015

Date Returned:

06116/2015

Your appeal has been reviewed and I find :

Sta ff have addressed the issue with Corporal Plumer and he has been advised of the policy. I don't believe it was intentional but it is di fficu lt for staff to remember to address GD offenders with non-gender identifiers.

Warden Yordy

Date: 06/ 16/201 5 12:29 C IS/Fac iliticsfMain/M isc/Grievance Detail

Created By: jwhinin

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Page 2 of 2

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Case 1:17-cv-00151-REB Document 4-1 Filed 04/06/17 Page 5 of 12

IDAHO
DEPARTMENT OF CORRECTION

Idaho Department of Correction Grievance Form

Offender Name: Offender Number:

EDMO, MASON DEAN 94691

Offender Grievance Infonnation

Date Received:

05/09/20 16

The problem is:

Location: Number: Category:

!SCI II 1600005 17 CONDITIONS OF

I am an being denied equal protection of the laws by C.S. C lark, Sgt. N immo, and MTC of SOP 401.06.03.501 by not being a llowed to move out of BH U because o f my status as an GID inmate of IDOC, and because of DOR history. This is a violation of my 14th am endment rights.

I have tried to solve this problem informally by:
Sending concern forn1s to: Clinician Houser 02/08/1 6, Clinician Irvin 0 2/20116, C.S. Clark 04/ 1111 6, Ashley Dowell 04116/16, and speaking to Dr. Scott Eliason 04 /20/16.

I suggest the fol lowing solution for the problem:
Be moved out ofBHU ASAP and into general population ASAP and remedied of my constitutional rights of being treated equa lly.

Level 1 - Initial Response

Date Forwarded:

05/1 1/20 16

Date Returned:

05/ 12/20 16

Date Due Back:

05/25/20 16

Level I Responder:

The response from the staff member or person in charge of the area/operation being g rieved:

HOUSER, AMY

Housing placement for Gender Dysphoria (GD) inmates are reviewed through the Management and Treatment Committee on a qua11erly basis. I ha ve been informed tha t Edmo's placement in Unit 16 will be addressed in the beginning of June 201 6. Amy Houser C linician, !SCI

Date: 06/29/201 6 18:04 CIS/ Facilitics/ Main/Misc/Grievance Delail

Created By: kawillso

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Case 1:17-cv-00151-REB Document 4-1 Filed 04/06/17 Page 6 of 12

II 160000517

EDMO, MASON DEAN

94 691

Level 2 - Reviewing Authority Response

Date Fotwarded:

05/12/2016

Date Due Back :

05/28/20 16

Grievance Disposition: Level 2 Responder:

MODIFIED CLARK, JEREMY

Date Returned:

05/23/20 16

Your grievence has been reviewed and I find:

Response sent to offender:

0 5123/20 16

Per Pol icy 401.06.03.50 1, the Management and Treatment Committee (MTC) is responsible for reviewing and determining housing placement for inmate who have Gender Dysphoria. The committee is aware of your desire to be moved out of Unit 16, and this will be reviewed in our next MTC meeting which is currently scheduled for June Ist, 2016. The decision of the committee will be given to you sho11ly after that meeting.

Offender Appeal
Offender Comments:
SOP# 401.03.50 I ; MTC determines the placement for G ID inmates, etc. Clinician Hahn had informed me that the MTC had determined my moving out of BHU wo uld not be possible because of my behaviors, DOR's and risk in othe r units. I do not agree and believe these are pretext reasons to keep me in BHU because of my membership in a suspect class, namely, GID inmate a deliberate attempt to keep me uncomfo11able and frustrated because I am a GID inmate. I previously livend within BHU but had an issue because of my medical provider's deliberate indifference to my medical needs and honnone monitoring. I've had more DO R's in BHU because of bias staff and because of unstable inmates. Please move me to General P op u l a ti on.

Level 3 - Appellate Authority Response

Date Appealed:

06/08/20 16

Grievance Disposition:

MODIFIED

Date Fo1warded:

06/ 10/20 16

Level 3 Responder:

DOWELL, ASHLEY

Date Due Back:

06/26/2016

Response sent to offender:

0 6/2 9/ 2 0 1 6

Date Returned:

06/29/2016

Your appeal has been reviewed and I find:

Thank you for outli ning your concerns about your cuITent housing and placement. As Clinical Supervisor Clark noted, the Management Treatment Committee (MTC) is responsibl e for reviewing and determining placement for inmates with Gender Dysphoria per Policy 401 .06. 03. 50 I. You are correct in that the MTC recommended your continued placement in the Behavioral Health Unit on June 1, 20 16. Per Policy 401.06.03.501, the Administrative Review Committee (ARC) reviews the Management and Placement Plan recommended by the MTC, consults with members of the MTC to address questions or concerns, and recommends approving or denying the plan. The Director of IDOC then chooses whether or not to accept the ARC's recommendation. As your request for placement is still in the review process, a final determination regarding housing and placement has not been made.

Ashley Dowell , LCPC, CCHP-MH Deputy Chief- Prisons Division Idaho Department of Correction

Date: 06/29/20 16 18:04 CIS/Facili ties/ Main/ Misc/Grievance Detail

Created By: kawillso

Page 2 of

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 44 of 60
Case 1:17-cv-00151-REB Document 4-1 Filed 04/06/17 Page 7 of 12
Idaho Department of Correction Grievance Form

Offender Name:

EDMO, MASON DEAN

Location: !SCI

Offender Number: 9469 1

Number: II 150000413

Offender Grievance Information

Date Received:

04/22/2015

The problem is:

Category: COMPLAINT AGAINST

Cpl. Elliot keeps calling I using gender pronouns when talking to me, he uses "Mr Edmo", "Sir" and "he". I've told him about policy 401.06.03.501 on 04-14-15, and on 04-15-15 and 04-16-15 he continues to disregard this policy, making me feel humiliated. Cpl. Elliot states he was told I am not in the GID program anymore - GID is not a program.

1 have tried to solve this problem informally by: Talking to Cpl. Elliot on 04-14-1 5, writing concern to Elliot on 04-16-15 and talking to Lt. Clark on 04-16-15.

I suggest the following solution for the problem: Cpl. Elliot be given reprimands for disregarding !DOC policy.

Level I - Initial Response

Date Forwarded:

04/23/2015

Date Returned:

04/24/20 15

Date Due Back:

05/07/20 15

Level 1 Responder:

The response from the staff member or person in charge of the area/operation being grieved:

MELDRUM,

Offender EdmoWhile I respect your concern of Cpl. Elliot's comments, I remind you that ISCI has approximately 1600 male offenders
so unfortunately, mistakes will happen. I will work with Cpl. Elliot to ensure that he is made aware of and follows policy 401.06.03.501.

Date: 06/09/20 t 5 I I: 14 C IS/ Fac ilities/Main/Misc/Grievance Detail

Created By: j whittin

Page I of

2

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 45 of 60

Case 1:17-cv-00151-REB Document 4-1 Filed 04/06/17 Page 8 of 12

II 150000413

EDMO, MASON L

94691

Level 2 - Reviewing Authority Response

Date Forwarded:

04/27/2015

Grievance Disposition:

MODIFIED

Date Due Back:

05/13/20 15

Level 2 Responder:

PEN EKU, LEROY

Date Returned:

04/28/2015

Your grievence.has been reviewed and I find:

Response sent to offender:

04/30/2015

Inmate Edmo - Sgt Meldrum wi ll remind his sta ff how to appropriately address inmates.

Offender Appeal
Offender Comments:
The incident involving Cpl. Elliott is not an isolated incident. This is a common, re-occun-ing problem with staff that I encounter about daily. It is very obvious I am trans and undergoing sex reassignment treatment per !DOC SOP 401.06.03 .50 I. I believe in my circumstances it's not a mis take but a mere purposeful behavior directed towards me as a trans-woman. Sgt. Meldmms I600 male offender excuse is an institutional excuse that is a generalization of not being accountable for s taff behaviors. This causes me great humiliation, embarrassment and highly increases my gender dysphoria of my male genitalia. More effort and awareness is cmcially needed.

Level 3 - Appellate Authority Response

Date Appealed:

05/I 8/2015

Date Forwarded:

05/ 19/2015

Date Due Back:

06/05/2015

Date Returned:

06/08/2015

Your appeal has been reviewed and I find:

G rievance Disposition: Level 3 Responder: Response sent to offender:

MOD IFIED YORDY, HOWARD 06/09/20 15

Supervisors are addressing the issue with staff. I can appreciate you wanting staff to follow the gender neutral guidelines you are entitled to but I don't think staff are doing it intentionally. This is a male facility and staff become accustomed to saying male identifi ers. We wi ll continually work on this issue.

Warden Yordy

•...

Date: 06/09/2015 11:14 C JS/ Facilities/Main/Misc/Grievance Detail

Created Cly: jwhittin

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Page 2 o f'

2

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 46 of 60
Case 1:17-cv-00151-REB Document 4-1 Filed 04/06/17 Page 9 of 12

Idaho Department of Correction Grievance Form

VCT 16 2015

Offender Name: Offender Number:

EDMO, MASON DEAN 94691

Offender Grievance Information

Date Received:

02/ 17/2015

The problem is:

Location: Number: Category:

ISCI II 150000191 SECURJTY

On 02-07-15 Cpt. Schlienz authorized my placement into unit 8 because offeminem behaviors due to my gender dysphoria. Overall feminem appearance I effeminate hairstyle as noted to be a violation ofIDOC policy #325, which is also a violation of my constitutional rights.

I have tried to solve this problem informally by:
Sending concern form to Cpt. Schlienz and speaking with Warden Yordy about "feminem hairstyles" and what that exactly entails - no answer.

I suggest the following solution for the problem:
This grievance fmwarded to a IDOC administrator better positioned to clarify what a "feminem hairstyle" is exactly defined as for offenders with gender dysphoria.

Level 1 - Initial Response

Date Forwarded:

02/ 19/2015

Date Returned:

02/19/2015

Date Due Back:

03 / 05/ 2015

Level 1 Responder:

The response from the staff member or person in charge of the area/operation being grieved:

SCHLIENZ, RODNEY

After reviewing the related documents regarding this issue, I concur with the statement ofauthorizing the placement of this inmate into restrictive housing. However, placement was for a deliberate indifference to the direction Cpl. Bollman had given regarding the removal of the feminine and/or effeminate hair style and failure to comply with SOP 325.

Level 2 - Reviewing Authority Response

Date Forwarded:

02119/2015

Grievance Disposition:

MODIFIED

Date Due Back:

03/07/2015

Level 2 Responder:

PENEKU, LEROY

Date Returned:

02/27/2015

Your grievence has been reviewed and I find:

Response sent to offender:

03/02/2015

Inmate Edmo - According to the reports, you were placed in restrictive housing because you failed to follow the instructions of a correctional staff. Per the response Warden Yordy provided in grievance #II 140000914, he stated the following,

"The policy states the warden is to make the decision on whether an offender's hair style is effeminate or not. The direction I gave Edmo was if staff felt the hairstyle was effeminate, they were to photograph the style and I would make that determination later. The offender was to follow staffs immediate direction at the time. I don't believe I could give a definition ofwhat an effeminate

Date: 03/ 23/ 2015 11 :52

Created By: jwhittin

Page I of

2

C IS/Facilities/Main/Misc/Grievance Detail

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 47 of 60

Case 1:17-cv-00151-REB Document 4-1 Filed 04/06/17 Page 10 of 12

II 150000 191

EDMO, MASON DEAN

94691

hairstyle is other than the stylers intent to make it feminine in nature. The hairstyles I would be concerned with are those I believe are intended to look female"

In his response the Warden states that "you are to follow staffs immediate direction at the time". You failed to do so, and for that you were placed in restrictive housing. It's in your best interest to fo llow and comply w ith the rules, policies, SOP's and laws established within the IDOC.

Offender Appeal
Offender Comments:
It is clearly not noted that I had in fact corrected the issue and complied with staffs direct order to "remove hair from a bun". Policy #325 does not specifically state "ear level" or below for a ponytail, therefore, I had not violated IDOC SOP's, rules, laws or policies as Dep. Warden Peneku states. In DOR #150854, the DOR in conjunction with this grievance I appeal clearly states I had obeyed correctional staff. Pony tails I wear are not intended to be feminine in nature. As indicated by Warden Yordy if the staff are in question, a picture should be taken and sent to Yordy for determination, which had not happened. This is clearly malicious harassment by staff because of my mental condition of gender dysphoria, a violation of the U.S. constitution and Idaho code section 18 chpts. 7301 and Idaho code sect. 67.

Level 3 - Appellate Authority Response

Date Appealed:

03/05/2015

Grievance Disposition:

DENIED

Date Forwarded:

03/09/201 5

Level 3 Responder:

YORDY, HOWARD

Date Due Back:

03/25/201 5

Response sent to offender:

03/23/20 15

Date Returned:

03/23/20 15

Your appeal has been reviewed and I find:

Staff gave you clear direction in addressing your hair that you repeatedly chose not to follow. The captain appropriately removed you from general population after you continued to ignore staffs direction. The actions ofstaff were fair and consistent with policy.

Warden Yordy

Date: 03/23/2015 I I :52 CIS/Facilities/Main/Misc/Grievance Detail

Created By: jwhinin

Page 2 of

2

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 48 of 60
Case 1:17-cv-00151-REB Document 4-1 Filed 04/06/17 Page 11 of 12
Idaho Depa1iment of Correction Grievance Form

Offender Name: Offender Number:

EDMO, MASON DEAN 94691

Offender Grievance Information

Date Received:

12/ 17/20 14

The problem is:

Location: Number: Category:

ISCI II 140001365 MEDICAL/HEALTI-I CARE

Not being allowed panties as a medically necessary undergarment approved by Dr. Whinne1y , IDOC states, it does not allow for panties.

I have tried to solve this problem infonnally by: Submitting I-ISR #71648 1, & concern fonn to Dr. Whinnery on 11-16-14.

I suggest the following solution for the problem:
Be given a medical memo to possess I purchase panties from commissary as approved by Director Rienke, Dr. Whinnery, and IDOC A.R.C.

Level I - lnitial Response

Date F01warded:

12/17/20 14

Date Returned:

12/19/2014

Date Due Back:

12/31/2014

Level I Responder:

The response from the staff member or person in charge of the area/operation being grieved:

CARLSON LESLIE

Panties are not," medicaliy necessary." This is a corr,fort issue. Please take this issue up -with Idaho Department of Corrections.

Level 2 - Reviewing Authority Response

Date Fo1warded:

12/ 19/2014

Grievance Disposition:

DEN IED

Date Due Back:

01/02/2015

Level 2 Responder:

VALLEY, RYAN

Date Returned:

12/19/2014

Your gricvence has been reviewed and I find :

Response sent to offender:

12/22/201 4

Edmo, There is no medical need for you to be given panties to wear. If you would like to request panties, this needs to be made to the Idaho Department ofCorrections.

Date: 0 t/09/20 I5 I0:58 C IS/Facilities/Main/ Misc/Grievance Detail

Crealed By: jwhittin

Page I of

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 49 of 60

Case 1:17-cv-00151-REB Document 4-1 Filed 04/06/17 Page 12 of 12

II 140001365

EDMO, MASON Dl

94691

Offender Appeal
Offender Comments:

As decided by A.R.C. Medical would have determine appropriateness, and Dr. Whinnery clearly slates she would provide a medical memo for women's underwea r on concern fonn dated Nov. 16. 201 4. This is deliberate indifference to a serious medical need. Panties and underwear are medical necessities, !DOC allows @ SBWCC, I am a similarly situated individual. There is no substanti al penological concern justifying denial of a clearly stated medical need indicated by my provider Dr. Whinnery. !DOC is contracted w/Corizon therefore both need be able to allow for such medical necessities.

Level 3 - Appellate Authority Response

Date Appealed:

I2/30/2014

Grievance Disposition:

DENIED

Date Forwarded:

12/30/20 14

Level 3 Responder:

SIEGERT, RONA

Date Due Back:

01 /15/20 15

Response sent to offender:

01 /09/2015

Date Returned:

01/08/20 15

Your appeal has been reviewed and I find:

Revised Grievance Appeal Response Dated 1/8/ 15:

Offender Edmo:

Upon furth er research and discussion, the response I provided to Grievance II 4000 1365 is incorrect. Female underpants are only allowed when determined to be medically necessary not based on a GID diagnosis.

Rona Siegert RN, CC HP-RN !SC I Health Services Director

Date: 0 1/09/201 5 I0 :58 CIS/ Facilities/Main/Misc/Grievance Detail

Created 13y: jwhittin

•
Page 2 of

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 50 of 60
Case 1:17-cv-00151-REB Document 4-2 Filed 04/06/17 Page 1 of 10

Idaho Depaiiment of Correction Grievance Form

ocr It rB za15

Offender Name: Offender Number:

EDMO, MASON DEAN 94 691

Loca ti on: N u m be r :

!SC I [[ 140001365

Offender Grievance Information

Date Recei ved:

12/1 7/2014

The problem is:

Category: MEDICAL/H EALT HCARE

Not bei ng allowed panties as a medically necessary undergarm ent approved by Dr. Whinnery, !DOC states, it does not allow for panties.

I have tried to solve this problem informally by: Submitting HSR #716481 , & concern f01m to Dr. Whinnery o n 11-16-14.

I suggest the following solution for the problem:
Be given a medical memo to possess I purchase panties from commissary as approved by Director Rienke, Dr. Whinnery, and !DOC A.R.C.

Level 1 - Initial Response

Date F01warded:

12/17/20 14

Date Returned:

12/19/20 14

Date Due Back:

12/31 /20 14

Level I Responder:

The response from the staff member or person in charge of the area/operation bei ng grieved:

CARLSON LESLIE

Panties are not," medically necessary." This is a comfo rt issue. Please take this issue up wi th Idaho Department of Corrections.

Level 2 - Reviewing Authority Response

Date Forwarded:

1211 9/2014

Grievance Disposition:

-··- -- ·---- 1
DEN IED

Date Due Back:

01/02/2015

Level 2 Responder:

VALLEY, RYAN

Date Returned:

12/19/2014

Your grievence has been reviewed and I find:

Response sent to offender:

12/22/2014

Edmo, There is no medical need for you to be given panties to wear. !f you would like to request panties, this needs to be made to the Idaho Department of Corrections.

Dale: 12/30/201 4 15: 52 CIS/Facililies/Main/Misc/Grievance Detail

Created By: j wh itlin

Page I of

2

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 51 of 60

Case 1:17-cv-00151-REB Document 4-2 Filed 04/06/17 Page 2 of 10

II 140001365

EDMO, MASON DEA 1~

94691

Offender Appeal
Offender Comments:
As decided by A.R.C. Medical would have determine appropriateness, and Dr. Whinnery clearly states she would provide a medical memo for women's underwear on concern fom1 dated Nov. 16. 2014. This is deliberate indifference to a serious medical need. Panties and underwear are medical necessities, !DOC allows@ SBWCC, I am a si milarly situated ind ividual. There is no substantial penological concern justifying denial of a clearly stated medical need indicated by my provider Dr. Whinnery. !DOC is contracted w/Corizon therefore both need be able to allow for such medical necessities.

Level 3 - Appellate Authority Response

Date Appealed:

12/ 30/2 0 1 4

Grievance Disposition:

MODIFIED

Date Forwarded:

12/30/ 2014

Level 3 Responder:

SIEGERT, RONA

Date Due Back:

01/15/2015

Response sent to offender:

12/30/2014

Date Returned:

12/30/201 4

Your appeal has been reviewed and 1find:

Offender Edmo:

Medical has detennined that special undergarments are not medically necessary. With a GID diagnosis you are allowed to have the same undergarments that the other female offenders have. Please contact your Unit Sergeant for the process on how to be issued female undergarments.

Rona Siegert RN , CCHP-RN IDOC Health Services Director

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Date: 12/30/20 14 I5:52 CIS/Facilitics/Main/M isc/Grievance Detail

Crca1ed By: jwhittin

Page 2 of 2

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 52 of 60
Case 1:17-cv-00151-REB Document 4-2 Filed 04/06/17 Page 3 of 10
Idaho Department of Correction Grievance Form

Offender Name: Offender Number:

EDMO, MASON DEAN 94691

Offender Grievance lnfonnation

Date Received:

12/17/20 14

The problem is:

Location: Number: Category:

ISCI II 140001364 ADMINI STRATION

I have not been able to have a new !DOC offender ID badge made with a new picture and a gender change from male to female on the !DOC card.

I have tried to solve this problem informally by: Sending concern forms to !DOC I ISCI ID officer, and concern form to Dr. Craig dated 11 - 10-14 & 11-15-14.

I suggest the foll owing solution for the problem:
Scheduled a time to have a new picture taken, and the gender I sex marker on the !DOC badge changed from male to female as soon as possible.

Level 1 - Initial Response

Date Forwarded:

12/1 7/20 14

Date Returned:

12/23/20 14

Date Due Back:

12/31 /2014

Level 1 Responder:

The response from the staff member or person in charge of the area/operation being grieved :

THOMPSON,

On 12-10-1 4, at about 1330 hours, I captured new portrait and profile photos for your offender fil e. Also, I printed a new IDOC offender ID badge for you at that time. We discussed your concern about the sex which is printed on the ID card. informed you that ISC I staff cannot alter the sex listed in your fil e. Finally, I advised you to seek legal resources which may assist you in making the desired changes through the courts.

Date: 0 1/1 2/201 5 14:59 C IS/Facilitics/Main/Misc/Grievancc Detail

Created By: j whittin

Page I of

2

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 53 of 60

Case 1:17-cv-00151-REB Document 4-2 Filed 04/06/17 Page 4 of 10

II 140001 364

EDMO, MASON DL .

94691

Level 2 - Reviewing Authority Response

Date Forwarded:

12/ 23 / 2014

Grievance Disposition:

MODIFIED

Date Due Back:

01 /08/2015

Level 2 Responder:

COBURN, GARRETT

Date Returned:

12/29/2014

Your grievence has been reviewed and I find:

Response sent to offender:

12/29/201 4

You were provided with a new ID. However due to the fact that your physical gender is male, we will not be changing your ID to reflect you being a femal e.

Offender Appeal
Offender Comments:
I do not understand - this decision to reflect any real security concern other than personal intentions to inflict more emotional stress from IDOC staff, specificall y - !SC! administratio n. l am asking the appellate authority to thoroughly review my request and holi stically make a decis ion to consider my request. D.W. Coburn's reply clearly depicts a lack of knowledge about an offender diagnosed with a mental condition of gender dysphoria. Sex is the biological genetic make up of a person, as gender is a societal structured behavior and or perception a society follows, two clearly different associations. Dr. Eliason has signified I changed genders from ma le to female, as well as Dr. Whinnery. This is also part of sex reassignment treatment being provided to me by IDOC in contract with Corizon medical providers.

Level 3 - Appellate Authority Response

Date Appealed:

12/3 1/20 14

Grievance Disposition:

DEN IED

Date Forwarded:

12/31 /2014

Level 3 Responder:

YORDY, HOWARD

Date Due Back:

01/16/201 5

Date Returned:

01/12/20 15

Your appeal has been reviewed and I find:

Response sent to offender:

0 1/12/2015

We are not going to change your sex on your ID card. Our facili ty has correctly identified you as male.

Warden Yordy

Date: 0 1112/20 15 14:59 C !S/Facilitics/Mai n/Misc/G rievance Detai l

Created By: jwhittin

Page 2 o f

2

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 54 of 60
Case 1:17-cv-00151-REB Document 4-2 Filed 04/06/17 Page 5 of 10

Idaho Department of Correction Grievance Form

Offender Name: Offender Number:

EDMO, MASON DEAN 94691

Offender Grievance Information

Date Received:

08/08/20 14

The problem is:

Location: Number: Category:

!SCI II 140000914 ADMlNISTRATION

Had an incident concerning my "hair style" on 07-9-14. Concerned Warden Yordy & sent letter to Yordy dated 07-09-14 Re: Incident w/ C/O White. Warden Yordy will not provide me with a accurate direction ofwhat a "feminine hairstyle" is or is not

I have tried to solve this problem informally by: Sending letter to Warden Yordy on 07-09-1 4; sending concern form to Warden yordy on 07-09-14 addressing this issue.

I suggest the following solution for the problem:
Being given a direct definition of what a "feminine hairstyle is according to a offender diagnosed as GID and undergoing
sex reassignment treatment!

I Level 1 - Initial Response

Date Forwarded:

08/ 12/2014

Date Returned:

Date Due Back:

08/26/2014

Level 1 Responder:

The response from the staff member or person in charge of the area/operation being grieved:

No level one response due to nature of grievance.

0 8 /12/2014

I Level 2 - Reviewing Authority Response

Date Forwarded:

08/12/201 4

Grievance Disposition:

Date Due Back:

08/28/201 4

Level 2 Responder:

Date Returned:

08/12/2014

Your grievence has been reviewed and I find:

Response sent to offender:

No level two response due to nature of grievance.

DENIED

Date: 09/02/2014 16:12 C!S/Facilities/Main/Misc/Grievance Detail

Created By: jwhi•.ln

Page 1 of 2

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 55 of 60
Case 1:17-cv-00151-REB Document 4-2 Filed 04/06/17 Page 6 of 10

II 140000914

EDMO, MASON DEAN

I Offender Appeal
Offender Comments:

See above.

94691

I Level 3 - Appellate Authority Response

Date Appealed:

08/12/2014

Grievance Disposition:

DENIED

Date Forwarded:

08/12/2014

Level 3 Responder:

YORDY, HOWARD

Date Due Back:

08/ 28/20 14

Response sent to offender:

09/02/ 2014

D ate Returned:

09/02/2014

Your appeal has been reviewed and I find:

The policy states 1he warden is to make the decision on whether an offender's hair style is effeminate or not. The direction I gave Edrno was if stafffelt the hairstyle was effeminate:, they were t-0 photograph the style and I would make that determination later. The offender was to follow staff's immediate direction at the time. I don't believe I could give a definition of what an effeminate hairstyle is other than the styler's intent to make it feminine in nature. The hairstyles I would be concerned with are those I believe are intended to look female.

Warden Yordy

Date: 09/0212014 16:12 CIS/Faci!ities/Main/Misc/Grievance Detail

Created By: jwhit 5;i

Page t. 2 of 2
~.,.. :

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 56 of 60
Case 1:17-cv-00151-REB Document 4-2 Filed 04/06/17 Page 7 of 10
Idaho Depart1nent of Correction Grievance Form

Offender Name: Offender Number:

EDMO, MASON DEAN 94691

Offender Grievance Information

Date Received:

03 / 07/2 0 1 4

T he problem is:

Location: N um be r : Category:

!SCI I! 1400003 12 MEDICAL/HEALTHCARE

Sent concern fotm to HSA about issues concerning Gender Reassignment surgery. Ma llet #8769 responded that Gender Reassignment surgery is unavailable. S. Mallet #8769 is not a M.D. to make this decision, nor is Regional Director Young qualified to base decisions through concern forms without seeing me personally.

I have tried to solve thi s problem informally by: S ubmitting HS R's, talking to clinicians, submitting concern forms. Note: Only one concern form is submitted with grievance.
I suggest the following solution fo r the problem: Allowed to be seen by a GID evaluator special ist.

I Level 1 - Initial Response

D a te Forwarded:

03117/201 4

Date Returned:

03/17/201 4

Date Due Back:

03/21/20 14

Level l Responder:

T he response from the staff member or person in charge of the area/operation being grieved:

PlLOTE, KIMBERLY

Dr. Young is a qualified health care provider and is capable of making decisions regarding your care. However, gender reassignment surgery is not medically necessary. Please submit an HSR if your have any other issues. Thanks.

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Date: 03/20/2014 12:42 CIS/Facilities/Main/Misc/Grievance Detail

Created By: j whittin

Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 57 of 60

Case 1:17-cv-00151-REB Document 4-2 Filed 04/06/17 Page 8 of 10

II 140000312

EDMO, MASON DE.

9469 1

Level 2 - Reviewing Authority Response

D ate Forwarded:

03/17/20 14

G rievance Disposition:

DEN IED

Date Due Back:

03131120 14

Level 2 Responder:

VALLEY, RYAN

Date Returned:

03117/2014

Your grievence has been reviewed and I fin d:

Response sent to offender:

03/18/2014

You have been seen by medical providers that are liccensed to practice in the State of Idaho. Your gender re-assignment surgery is not medically necessary and there fo re has not been recommended by our providers.

Offender Appeal
O ffender Comments:

[ Level 3 - A ppellate Authority Response
Date Appealed: D ate Forwarded: D ate Due Back: D ate Returned: Your appeal has been reviewed and I find:

Grievance Disposition: Level 3 Responder: Response sent to offender:

Date: 03/20/2014 12:42 CIS/Facilities/tvlain/Misc/Grievance Detail

Created By: jwhittir,

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Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 58 of 60
Case 1:17-cv-00151-REB Document 4-2 Filed 04/06/17 Page 9 of 10
Idaho Department of Correction Grievance Form

Offender Name: Offender N umber:

EDMO, MASON DEAN 94691

Offender Grievance Information

Date Received:

03 / 07/ 2014

The problem is:

Location: Number: Category:

!SCI II 1400003 12 ME DI C A L / H E A LTHC A R E

Sent concern form to HSA about issues concerning Gender Reassignment surgery. Mallet #8769 responded that Gender R eassignment surgery is unavailable. S. Mallet #87fi9 is not a M.D. to make this decision, nor is Regional Director.'loung qual ified to base decisions through concern forms without seeing me personally.

I have tried to solve this problem informally by: Submitting HSR's, talking to clinicians, submitting concern forms. Note: Only one concern form is submitted wi th grievance.
I suggest the following solution for the problem: Allowed to be seen by a GID evaluator specialist.

Level I - Initial Response

Date Forwarded:

03/1 7/2014

Date Returned:

03117/20 14

Date Due Back:

03/ 2 1/2014

Level l Responder:

The response from the staff member or person in charge of the area/operation being grieved:

PILOTE, K.lMBER.LY

Dr. Young is a qualifi ed health care provider and is capable of making decisions regarding your care. However, gender reassignment surgery is not medically necessary. Please s ubmit an HSR if your have any other issues. Thanks.

Date: 03/26/2014 15:0 l C IS/Facilities/Main/Misc/Grievance Detail

Created By: jwhillin

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Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 59 of 60

Case 1:17-cv-00151-REB Document 4-2 Filed 04/06/17 Page 10 of 10

II 1400003 12

EDMO, MASON L .~

9469 1

Level 2 - Reviewing Authority Response

Date Forwarded:

03/17/20 14

Grievance Disposition:

D EN IED

Date Due Back:

03/31 /20 14

Level 2 Responder:

VALLEY, RYAN

Date Returned:

03/ 17/20 14

Your grievence has been reviewed and I fi nd:

Response sent to offender:

03/ 18/20 14

You have been seen by medical providers that are liccensed to practice in the State of Idaho. Your gender re-assignment surgery is not medically necessary and therefore has not been recommended by our providers.

Offender Appeal
Offender Comments:
Response to Level 2 responder: I have not been seen by your providers, or anyone in medical dealing with my gender reassigrunent request, medical refused to schedule any appt. , especially when I state gender reassigrunent on the H SR. Of course your providers have not recommended gender reassignment, l have not been able to see anyone in medical to address this issue. !DOC medical I Corizon is discrim inating against me because of my gender. I am being denied access to medical care - when I cannot even have an appt. to address this issue. I need a specialist dealing w ith GID patients, as it is a serious medical need.

Level 3 - Appellate Authority Response

Date Appealed:

03 /2 4/ 2 014

Grievance Disposition:

MOD IFIED

Date Forwarded:

03 / 24/ 2014

Level 3 Responder:

SIEGERT, RONA

Date Due Back:

04/09/20 14

Response sent to offender:

03/26/2014

Date Returned:

03/26/20 14

Your appeal has been reviewed and I find:

Offender Edmo:

Your medical record shows that you have been seen by the !SCI providers in the chronic disease program (CDP). Your last visit was March 6, 20 14 with Dr. Whinnery. You are followed in the C DP for GID. Please address your questions regarding gender reassignment surgery at your next C DP appointment.

Rona Siegert RN, CC HP IDOC Health Services Director

t

:;.

Date: 03/26/20 14 15:01 C IS/Facilities/Main/Misc/Gricvance Detail

Created By: j whitti n

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Case 1:17-cv-00151-BLW Document 172 Filed 01/31/19 Page 60 of 60
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 31st day of January, 2019, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:
Dylan Eaton deaton@parsonsbehle.com J. Kevin West kwest@parsonsbehle.com Attorneys for Corizon Defendants Brady James Hall brady@melawfirm.net Marisa S. Crecelius marisa@melawfirm.net
Attorney for IDOC Defendants
/s/ - Lori E. Rifkin Lori E. Rifkin

THIRD AMENDED COMPLAINT

-24-

FOR DAMAGES

 
 Edmo v. Idaho Department of Correction, Slip Copy (2018) 2018 WL 2745898

2018 WL 2745898 Only the Westlaw citation is currently available.
United States District Court, D. Idaho. Adree EDMO (Mason Edmo), Plaintiff,
v. IDAHO DEPARTMENT OF CORRECTION, et al.,
Defendants. Case No. 1:17-cv-00151-BLW
| Signed 06/07/2018
Attorneys and Law Firms Amy Whelan, Julie Wilensky, National Center for Lesbian Rights, San Francisco, CA, Craig Durham, Deborah A. Ferguson, Ferguson Durham, PLLC, Boise, ID, Dan Stormer, Lori E. Rifkin, Shaleen Shanbhag, Hadsell Stormer & Renick LLP, Pasadena, CA, for Plaintiff. Dylan Alexander Eaton, J. Kevin West, Parsons Behle & Latimer, Brady James Hall, Moore & Elia, LLP, Boise, ID, for Defendants.
MEMORANDUM DECISION AND ORDER
B. Lynn Winmill, Chief U.S. District Court Judge
INTRODUCTION *1 The Court has before it Defendants’ First Motion for Dispositive Relief (Dkt. 39). The Court held a hearing on April 4, 2018, and the Court now issues the following Memorandum Decision and Order.

BACKGROUND
Edmo is a male-to-female transgender prisoner, in the custody of the Idaho Department of Corrections (“IDOC”). Edmo’s medical records indicate diagnoses of Gender Identity Disorder (GID) and Gender Dysphoria (GD). Edmo remains anatomically male but identifies as female. As a result of IDOC’s policy to assign an inmate’s facility in accordance with the inmate’s primary sexual characteristics, Edmo is currently incarcerated in a men’s prison at Idaho State Correctional Institution (“ISCI”). According to Edmo, common treatments of GID/GD are the “real-life” experience of living full-time within the desired gender, hormonal therapy, and sex reassignment surgeries. After being diagnosed with GID/GD, Edmo requested treatment including access to feminizing hormones, evaluation for sex affirming surgery, and the ability to live as a woman while incarcerated. Edmo alleges that Defendants denied certain necessary medical treatment resulting in Edmo’s suffering harm, including two attempted self-castrations.
Edmo filed a complaint alleging that Defendants’ actions violated the following: (1) the Eighth Amendment by failing to protect her from harm and it’s prohibition on cruel and unusual punishment; the Fourteenth Amendment’s guarantee of equal protection; (2) the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by discriminating in provision of medical treatment and participation in programs and services; (3) the nondiscrimination provision of the Affordable Care Act (ACA) by discriminating based on sex, sex stereotyping, and/or gender identity; and (4) Idaho tort law by negligently failing to provide treatment. Amended Complaint, Dkt. 36.
Defendants now seek summary judgment on all claims for which administrative remedies were not exhausted, and dismissal under FRCP 12(b)(6) of statutorily time-barred claims, ADA claims, ACA claims, and state negligence claims.
LEGAL STANDARDS

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Edmo v. Idaho Department of Correction, Slip Copy (2018) 2018 WL 2745898
1. Motion for Summary Judgment Standard Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the summary judgment “is to isolate and dispose of factually unsupported claims....” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact—a fact “that may affect the outcome of the case.” Id. at 248.
*2 The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)(en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Deveraux, 263 F.3d at 1076. The non-moving party must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine dispute of material fact exists. Celotex, 477 U.S. at 324.
2. Motion to Dismiss Standard Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the

pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964 (2007). While a complaint attacked by a Rule 12(b)(6) motion to dismiss “does not need detailed factual allegations,” it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570.
Providing too much in the complaint may also be fatal to a plaintiff. Dismissal may be appropriate when the plaintiff has included sufficient allegations disclosing some absolute defense or bar to recovery, such as a statute of limitations. See Weisbuch v. County of L.A., 119 F.3d 778, 783, n. 1 (9th Cir. 1997) (stating that “[i]f the pleadings establish facts compelling a decision one way, that is as good as if depositions and other ... evidence on summary judgment establishes the identical facts”).
A dismissal without leave to amend is improper unless it is beyond doubt that the complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009). The Ninth Circuit has held that “in dismissals for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether plaintiff will prevail but whether he “is entitled to offer evidence to support the claims.” Diaz v. Int’l Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)(citations omitted).
*3 Under Rule 12(b)(6), the Court may consider matters that are subject to judicial notice. Mullis v. United States Bank, 828 F.2d 1385, 1388 (9th Cir. 1987). The Court may take judicial notice “of the records of state agencies and other undisputed matters of public record” without transforming the motions to dismiss into motions for summary judgment. Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866, n.1 (9th Cir. 2004). The Court may also examine documents referred to in the complaint, although not attached thereto, without transforming the motion to dismiss into a motion for summary judgment. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
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Edmo v. Idaho Department of Correction, Slip Copy (2018) 2018 WL 2745898
DISCUSSION
1. Exhaustion of Administrative Remedies Inmates must exhaust their available administrative remedies before bringing civil rights actions based on prison conditions. The federal Prison Litigation Reform Act (“PLRA”) requires exhaustion of administrative remedies for all federal claims brought by state prisoners who challenge the conditions of their confinement in a federal complaint. “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This requirement gives prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. Jones v. Bock, 549 U.S. 199, 218 (2007).
Exhaustion must be proper; meaning “a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). “The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 204.
Failure to exhaust is an affirmative defense that, in rare situations, may be asserted in a Rule 12(b)(6) motion to dismiss. Albino v. Baca, 747 F.3d 1162 (9th Cir. April 3, 2014) (en banc) (“In a few cases, a prisoner’s failure to exhaust may be clear from the face of the complaint.”). If, however, the material facts underlying the exhaustion issue are genuinely disputed, the Court may decide the issue on a motion for summary judgment under Rule 56. Id.
The defendant bears the ultimate burden of proving failure to exhaust. See Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). If the defendant initially shows that (1) an available administrative remedy existed and (2) the prisoner failed to exhaust that remedy, then the burden of production shifts to the plaintiff to bring forth evidence “showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.”

Albino, 747 F.3d at 1170-71.
Rule 56 prohibits the courts from resolving genuine disputes as to material facts on summary judgment. If a genuine dispute exists as to material facts relating to an exhaustion defense, the motion should be denied, and the “disputed factual questions relevant to exhaustion should be decided by the judge, in the same manner a judge rather than a jury decides disputed factual questions relevant to jurisdiction and venue.” Albino, 747 F.3d at 1170-71. See Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987) (the court has the discretion to take evidence at a preliminary hearing to resolve any questions of credibility or fact and that the plaintiff must establish the facts by a preponderance of the evidence, just as he would have to do at trial).
*4 If a prisoner has failed to exhaust available administrative remedies, the appropriate remedy is dismissal without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), overruled in part on other grounds by Albino, 747 F.3d 1162.
2. IDOC’s Grievance Procedure The IDOC grievance process is contained generally in IDOC Policy 316: Offender Grievance Process. The grievance procedure is contained in IDOC Division of Prisons Standard Operating Procedure 316.02.01.001. See Maybon Decl., Dkt. 41 ¶ 3.
The IDOC grievance procedure consists of three stages. Id. ¶ 5. First, an inmate must seek an informal resolution by filling out an Offender Concern Form, addressed to the most appropriate staff member. Id. ¶ 6. If the issue is not informally resolved, offenders are required under the Grievance Process to file a Grievance within thirty days of the incident or problem that is the basis for the Grievance. Id.¶ 7. Only one issue may be raised in each grievance and the offender must also suggest a solution or proposed remedy. Id. The grievance information is then entered into the Corrections Integrated System, and the Grievance Coordinator assigns the grievance to the staff member most capable of responding to and, if appropriate, resolving the issue. Id. ¶ 8. That staff member responds to the grievance and returns it to the Grievance Coordinator. Id.
The Grievance Coordinator then forwards the grievance to a “reviewing authority”. Id. The reviewing authority returns the grievance to the Grievance Coordinator, who logs the response into the database and sends the
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Edmo v. Idaho Department of Correction, Slip Copy (2018) 2018 WL 2745898
completed grievance back to the inmate. Id.
The third step of the Grievance Process requires the offender to submit an appeal to the Grievance Coordinator within 14 days of the date the level two responder provided his/her reviewing authority response. Id. ¶ 9. Upon receipt of the appeal, the Grievance Coordinator provides the appeal to the appellate authority who is typically the Warden of the facility. If it is a medical grievance, the Health Services Director is the appellate authority. After the appeal is decided, the Grievance Coordinator returns the completed appeal form to the inmate. Id. The grievance process is exhausted at the end of all three of these steps. Id. ¶ 9.
Here, both Edmo and Defendants agree that Edmo properly exhausted administrative remedies for several issues in this case. These include the following: (1) an August 10, 2016 sexual assault, (2) being allowed to wear a feminine hairstyle, (3) IDOC staff use of masculine gender pronouns, (4) denial of electrolysis or hair remover, (5) alleged denial of a medical/mental health evaluation with a qualified gender identity disorder evaluator, (6) being housed in the Behavioral Health Unit, (7) and denial female underwear. Dkt. 44; Dkt. 43; Maybon Decl. Dkt. 41.
However, Defendants contend that Edmo failed to properly exhaust several claims including: (1) Claim for damages Edmo sustained as a result of a September 29, 2015 self-castration attempt, (2) Claim for damages sustained as a result of a December 31, 2016 selfcastration attempt; (3) Claim for damages and/or equitable relief related to policy prohibiting Plaintiff from wearing women’s makeup in a male prison; (4) Claim for damages or equitable relief regarding a legal name change while incarcerated; and (5) Claim for damages and/or equitable relief related to the alleged failure to transfer Edmo to a women’s correctional facility. Dkt. 47. Maybon Decl. Dkt. 41, Exhibits C and D.
A. Self-Castration Attempts
*5 Edmo’s First and Seventh claims seek damages for “harms” suffered. Compl. Dkt. 36, ¶¶ 88, 113. Although the alleged harms suffered are not specified within each claim for relief, Edmo references two self-castration attempts throughout the Complaint’s Factual Allegations. Id. at ¶¶ 5, 46-48.

Defendants contend that Edmo did not independently raise self-castration as an issue the inmate sought to have addressed through IDOC’s grievance process and thereby failed to exhaust administrative remedies. Dkt. 47. In response, Edmo points to several grievances that reference the castration attempts and argues that, even if not properly grieved, the attempts were “factual indicia” of Defendants’ denial of care and thus not claims which require grieving. Dkt. 44.
The Ninth Circuit has made clear that a critical function of the grievance process is to provide prison officials with the opportunity to address the identified grievance and correct prison error accordingly. Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016). A grievance is not the equivalent of a “summons and complaint that initiates adversarial litigation,” see Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004), and it need not “contain every fact necessary to prove each element of an eventual legal claim,” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009.) It is instead sufficient if the prisoner brings a problem to the prison’s attention in compliance with the prison’s administrative rules such that officials can understand the nature of the complaint and have the opportunity to fix it. Houser v. Corizon, 2014 WL 4249873, at *5 (D. Idaho Aug. 27, 2014).
The Court will first address whether the castration attempts were exhausted independently before deciding whether they may be properly classified as examples of denial of care which would not require specific grievances.
In Grievance II 15000117 Edmo sought the ability to wear makeup and a treatment plan which would accommodate such to avoid “future harm.” Maybon Decl., Dkt. 41-3, Ex. C. This grievance is targeted at resolving a dispute regarding the ability to wear makeup, and does not raise the occurrence of self-castration so as to provide IDOC the opportunity to address the incident as part of the administrative dispute resolution process.
In Grievance II 150001166 Edmo sought reimbursement of a personal blanket that was lost after a self-castration attempt. Id. Similarly, this grievance did not raise the castration attempt as a matter Edmo sought to dispute in a manner which would provide opportunity for resolution.
In Grievance II 150001348, Edmo states “I am being denied an endocrinologist & medical treatment [to] wpath [sic] standards. This is creating a substantial risk of future harm of auto-castrating myself. I shouldn’t have to wait for 30, 60, 90 days until next [appointment].” Id. In this grievance, Edmo specifically sought an appointment with
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Edmo v. Idaho Department of Correction, Slip Copy (2018)
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and treatment by an endocrinologist. The grievance was thus targeted at a perceived denial of medical care, not at resolving a castration attempt. Additionally, this grievance was filed 78 days after the first castration attempt and over one year before the occurrence of the second attempt. Therefore, this grievance could not properly cover either castration as its essential purpose.
*6 Under these circumstances, the Court agrees with Defendants, and finds that Edmo did not exhaust administrative remedies regarding self-castration attempts.
However, the Court is persuaded by Edmo’s argument that the castration attempts do not require separate grievances as they are claimed as a result of not receiving requested medical treatments which were properly grieved. Dkt. 41-3. Edmo also points to case law in which this Court has noted that exhaustive examples (“factual indicia”) offered to support a specific claim need not be grieved separately. See e.g. Spaude v. Corr. Corp. of Am., 2011 WL 5038922 (D. Idaho Oct. 21, 2011); Houser v. Corizon, 2014 WL 4249873 (D. Idaho Aug. 27, 2014); Steece v. Corr. Corp. of Am., 2012 WL 761923 (D. Idaho Mar. 8, 2012). An inmate is not required to grieve every detail of how a perceived deprivation occurred. Instead, it is enough for an inmate to articulate the deprivation with enough specificity to allow prison officials the opportunity to investigate and correct the deficiency. Steece, 2012 WL 761923, at *5.
For example, in Spaude, a plaintiff who had properly grieved “institutional indifference to inmate safety” was not required to grieve each specific example of policy and procedure that exemplified indifference to inmate safety before alleging it in court. 2011 WL 5038922, at *3. Had prison officials addressed the plaintiff’s initial grievance they would have discovered the mirrored reflections of indifference throughout. Id. In Houser, an inmate who properly grieved that Corizon stalled and delayed treatments was allowed to proceed with a count alleging a not-grieved example of treatment delay through “concealment of x-rays”. Houser v. Corizon, No. 1:13CV-00006-EJL, 2014 WL 4249873, at *5 (D. Idaho Aug. 27, 2014). Similarly, the Steece court found that inmates need not separately grieve each of a prison’s policies that highlight institutional aversion to prisoner protection when “failure to protect from harm” is properly grieved. Steece, 2012 WL 761923, at *5. In each case the inmate’s grievances were consistent with the PLRA and IDOC’s requirement of providing prison officials with the opportunity to understand the nature of the complaint and address its essential purpose accordingly.

Here, Edmo alerted prison officials to her concerns regarding perceived denial of medical care through the grievance process prior to both castration attempts. Edmo argues that had gender reassignment surgery been provided as was requested through those grievances, selfcastration would not have occurred.
Edmo first attempted self-castration on September 29, 2015. Prior to that, Edmo filed Grievance II 140000312 requesting evaluation by a specialist for gender reassignment surgery. This grievance should have served to provide prison officials opportunity to understand Edmo’s complaint and address it accordingly. Though the Court makes no finding regarding the prison’s response to Edmo’s grievance, it is undisputed that Edmo was not provided with gender reassignment surgery.
Edmo’s second castration attempt occurred on December 31, 2016. Similarly, prior to that attempt, Edmo filed Grievance II 150001080 which specifically stated “I am being denied an endocrinologist & medical treatment [to] WPATH standards. This is creating a substantial risk of future harm of autocastrating myself.” Maybon Decl., Dkt. 41-3. Although this grievance was ultimately denied by prison officials and filed over one year before the second castration attempt, it should have served to sufficiently alert prison officials to Edmo’s complaint that gender reassignment surgery had not been provided.
*7 Based on the information contained in these grievances, the exhaustion requirement was properly satisfied as related to the claims Edmo raises here. In particular, Edmo alerted prison officials of a desire to be provided with gender reassignment surgery and that a denial could result in self-castration.
As noted in Spaude, if a prisoner seeks relief based on facts or theories too far afield from the subject matter that was brought before prison officials, then the prisoner cannot be said to have exhausted remedies before raising those claims. 2011 WL 5038922, at *5. Here, however, Edmo’s grievances provided enough information to allow prison officials to take appropriate responsive measures.
Defendants additionally argue that if a prisoner seeks monetary damages as a result of perceived injury, the incident of injury must be specifically grieved. In support, Defendants point to Daniels v. Blades, which held that the plaintiff who was seeking monetary damages for injuries sustained during an alleged assault was required to exhaust administrative remedies pertaining to those injuries. 2017 WL 874567, * 2 (D. Idaho March 3, 2017). However, Daniels is factually distinguishable. In Daniels, not only had the prisoner failed to specifically grieve his
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injuries, but he failed to file a grievance after being moved to a prison tier that he knew housed members of a gang the prisoner had dropped out of and failed to file a grievance regarding the alleged assault by those gang members which had produced his injuries. Id. Thus, prison officials were not provided opportunity to address Daniels’ issue before the lawsuit was filed. As discussed above, a lack of grievances regarding Edmo’s concern over sex reassignment surgery is not the case here. Accordingly, Defendant’s Motion to Dismiss will be denied regarding the castration claims.
B. Access to Makeup
Defendants assert that Edmo did not exhaust administrative remedies relating to a policy prohibiting males from wearing women’s makeup. However, they admit that the policy about males wearing female hairstyles were properly exhausted.
Grievance II 150000395, which was fully processed, states a concern regarding makeup and hairstyle. Accordingly, the Court finds access to makeup has been properly grieved and Defendant’s Motion to Dismiss this matter will be denied.
C. Name Change
Edmo has not provided evidence of having grieved a name change. Thus, Edmo has not properly exhausted administrative remedies regarding a name change. Accordingly, Defendant’s Motion to Dismiss will be granted without prejudice.
D. Transfer to Women’s Facility
Grievance II 170000899, which addresses Edmo’s request for transfer to a women’s facility, has not been fully exhausted through the grievance process. Accordingly, Defendant’s Motion to Dismiss will be granted without prejudice.

3. Americans with Disabilities Act Claims In order to state a claim under Title II of the ADA, a plaintiff must allege: (1) a disability, (2) consisting of a physical or mental impairment, (3) which substantially limits, (4) one or more major life activities, (5) that they were either excluded from participation in or denied the benefits of the public entity’s services, programs, or activities, and (6) such exclusion, denial of benefits, or discrimination was by reason of the disability. 42 U.S.C. § 12101.
*8 Section 12211(b)(1) goes on to provide: “Under this chapter, the term ‘disability’ shall not include (1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”
Defendants argue that Edmo’s diagnosis falls under gender identity disorder as specifically excluded from the ADA, and in the alternative that a diagnosis of gender dysphoria is interchangeable with that of gender identity disorder which it recently replaced in the psychiatric field. In contrast, Edmo argues that a diagnosis of gender dysphoria is different from that of gender identity disorder, and thus is not excluded.
As presented here, the issue of whether Edmo’s diagnosis falls under a specific exclusion of the ADA presents a genuine dispute of material fact in this case. Therefore, Edmo’s ADA claim will not be dismissed.
4. Affordable Care Act Claims Defendants contend that Congress, in adopting the ACA, did not create a private right of action for discrimination, but instead relied upon enforcement mechanisms already available under such anti-discrimination statutes as Title VI, Title IX, § 504 of the Rehabilitation Act, and the Age Discrimination Act. Dkt. 47. The contrary view, of course, is that the ACA provides its own enforcement mechanism which stacks upon the enforcement mechanisms available under those statutes. Dkt. 44.
The Court must begin with the plain language of the statute. Lamie v. United States Tr., 540 U.S. 526, 534 (2004). Congress may create a private right of action to enforce federal law through explicit language in the
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statute, or by implication. Alexander v. Sandoval, 532 U.S. 275, 286 (2001). The Court must determine whether the statute manifests an intent to create both a private right and also a private remedy. Id. Statutory intent on this latter point is determinative. Id. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter. Id. at 286-87 (internal citations omitted). The text of the statute must be “phrased in terms of person benefitted” for a statute to create such private rights. Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002).
Section 1557 expressly incorporates four federal civil rights statutes and includes similar rights-creating language found in those statutes. See 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”); 20 U.S.C. § 1681 (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ...”); 42 U.S.C. § 6102 (“[N]o person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.”); 29 U.S.C. § 794 (“No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....”).
*9 Section 1557 cross-references these four federal civil rights statutes to provide the classes of those protected by the statute’s non-discrimination provision. The cross reference to these statutes and the use of similar rightscreating terms sufficiently manifests Congressional intent to create a private right. See 42 U.S.C. § 18116(a) (“an individual shall not, on the ground prohibited [under the federal civil rights statutes], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under” a variety of programs and activities). In addition, 42 U.S.C. § 18116(a) expressly provides a private remedy by stating that the “enforcement mechanisms provided for and available under such title VI, title IX, section 504, or such Age Discrimination Act shall apply for purposes of violations of this subsection.” Finally, 42 U.S.C. § 18116(b) states, “[n]othing in this title (or an amendment made by this title) shall be construed to invalidate or limit the rights,

remedies, procedures, or legal standards available to individuals aggrieved under [the four federal statutes].” This reinforces the notion that Congress intended create a private right and remedy by not limiting the rights provided under the cross-referenced federal statutes. Therefore, cross-referencing the statutes and the express incorporation of the enforcement mechanisms from those statutes is probative of Congressional intent to provide both a private right and a private remedy for violations of Section 1557. Accordingly, Defendant’s Motion to Dismiss this claim will be denied.
5. Statute of Limitation Issues The statute of limitations period for filing a civil rights lawsuit under 42 U.S.C. § 1983 is determined by the statute of limitations period for personal injuries in the state where the claim arose. Wilson v. Garcia, 471 U.S. 261 (1985) (later overruled only as to claims brought under the Securities Exchange Act of 1934, not applicable here). Idaho Code § 5-219 provides for a two-year statute of limitations for professional malpractice, personal injury, and wrongful death actions. Federal civil rights actions arising in Idaho are governed by this two-year statute of limitations.
Although the Court relies upon the state statute of limitations to determine the time for filing a claim, the Court uses federal law to determine when a claim accrues. Elliott v. City of Union City, 25 F.3d 800, 801-02 (9th Cir. 1994). The Ninth Circuit has determined that a claim accrues when the plaintiff knows, or should know, of the injury that is the basis of the cause of action. See Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). Under this “discovery rule,” the statute begins to run once a plaintiff knows of his injury and its cause. Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986). A claim accrues upon awareness of an actual injury, “and not when the plaintiff suspects a legal wrong.” Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1049 (9th Cir. 2008).
Here, Defendants argue that Edmo seeks to recover damages for injuries and “severe symptoms” that she allegedly suffered as a result of incidents that occurred more than two years prior to the filing of this civil rights lawsuit on April 6, 2017. Dkt. 43. (Pointing to Dkt. 36, ¶¶ 8, 9, 44-45, 64, 67, 79, 88, 93, 95, 101,108, and 113). Defendants specifically note that Edmo described an attempted suicide in February 2014 and “experienced severe symptoms” between 2012 to early 2015 as a result of Defendants’ having “denied and/or ignored Plaintiff’s
7

Edmo v. Idaho Department of Correction, Slip Copy (2018) 2018 WL 2745898
requests.” Dkt. 43. (Pointing to Dkt. 36, ¶¶ 44(a)-(j), 45, and 49) (SMF, ¶¶ 5, 8).
Edmo does not dispute the effect of the applicable statute of limitations, but points out that the claims actually included in her complaint accrued less than two years prior to the filing of her complaint and are therefore not time barred. Accordingly, Defendant’s request to preclude Edmo from seeking damages arising from events that occurred prior to April 6, 2015 will be granted. However, claims accruing after that date are not time-barred and will not be dismissed.
6. State Negligence Claims Idaho Code § 6-905 of the Idaho Tort Claims Act states: All claims against the state arising under the provisions of this act and all claims against an employee of the state for any act or omission of the employee within the course or scope of his employment shall be presented to and filed with the secretary of state within one hundred eighty (180) days from the date the claim arose or reasonably should have been discovered, whichever is later.”
*10 Idaho Code § 6-907 goes on to provide that: “All claims presented to and filed with a governmental entity shall accurately describe the conduct and circumstances which brought about the injury or damage, describe the injury or damage, state the time and place the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed....”
Defendants claim that Edmo did not properly comply with the Idaho Tort Claims Act, cannot sue the state officials in their official capacity because of 11th Amendment immunity, and failed to plead Defendants’ wrongdoing with sufficient specificity. Dkt. 47. Edmo provided only a limited response to these contentions, arguing only that the notice requirements of the ITCA were satisfied. Notably, she did not otherwise address whether she complied with other provisions of the statute.
Edmo’s 11/24/2014 tort claim (Claim 1) identifies disciplinary reports issued regarding Edmo’s feminine hairstyle as a violation of the Prison Rape Elimination Act. Dkt. 42. Ex 1. Although named defendants were not specifically listed in the filing of this tort, it served to notify the state of Edmo’s underlying claim and was filed within 180 days of a DOR received on July 07, 2014.
Edmo’s 12/12/2016 tort claim (Claim 2) does not provide

a date on which the alleged injury was suffered, does not specify any alleged negligent acts, and does not specify anyone who was involved. Dkt. 42. Ex. 2. As such, it does not properly notify the state of Edmo’s claim, nor does it comply with the 180 day filing mandate under Idaho Code § 6-905.
Edmo’s 02/13/2017 tort claim (Claim 3) identifies a 09/29/2015 and a 12/31/2016 castration attempt. Dkt. 42. Ex. 3. The claim was not filed within 180 days of the 09/29/2015 attempt, but was properly filed as to the 21/31/2016 attempt. As such, Edmo may only proceed regarding the latter claim.
Accordingly, Defendant’s request to dismiss Edmo’s state negligence claims will be denied as to Claim 1, granted as to Claim 2, and denied regarding the first castration attempt and granted regarding the second attempt found in Claim 3.
ORDER
IT IS ORDERED:
1. Defendants’ First Motion for Dispositive Relief (Dkt. 39) is GRANTED IN PART and DENIED IN PART.
a. Defendants’ Motion for Summary Judgment is GRANTED regarding a name change and transfer to a women’s facility. Plaintiff may proceed on self-castration and access to makeup claims.
b. Defendants’ Motion to Dismiss Americans with Disabilities Act claims is DENIED without prejudice.
c. Defendants’ Motion to Dismiss Affordable Care Act claims is DENIED without prejudice.
d. Defendants’ Motion to Dismiss statutorily timebarred claims is GRANTED.
e. Defendants’ Motion to Dismiss State Negligence Claim 1 is DENIED without prejudice.
f. Defendants’ Motion to Dismiss State Negligence Claim 2 is GRANTED.
g. Defendants’ Motion to Dismiss State
8

Edmo v. Idaho Department of Correction, Slip Copy (2018) 2018 WL 2745898
Negligence Claim 3 is GRANTED regarding the 09/29/2015 castration attempt and DENIED regarding the 12/31/2016 attempt.

All Citations Slip Copy, 2018 WL 2745898

End of Document

9

 
 Case 1:17-cv-00151-BLW Document 175 Filed 03/04/19 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ADREE EDMO, Plaintiff,
v. IDAHO DEPARTMENT OF CORRECTION, et al.,
Defendants.

Case No. 1:17-cv-00151-BLW
MEMORANDUM DECISION AND ORDER

INTRODUCTION Before the Court is Defendants’ Joint Motion to Stay Order [Dkt. 149] Pending Appeal. Dkt. 156. For the reasons set forth below, Defendants’ motion is denied.
BACKGROUND The Court issued its Findings of Fact, Conclusion of Law, and Order in this case after a three-day evidentiary hearing. Dkt. 149. During that hearing, Ms. Adree Edmo established that she was entitled to gender confirmation surgery by June 13, 2019. The Court will not repeat all the factual and legal conclusions that led to its decision, but will highlight the following portion of the Court’s order: The risks of not providing gender confirmation surgery to Ms. Edmo include surgical self-treatment, emotional decompensation, and risk of suicide given her high degree of suicide ideation. Tr. 80:24:81:8, 264:13-22. If she is not provided
MEMORANDUM DECISION AND ORDER - 1

Case 1:17-cv-00151-BLW Document 175 Filed 03/04/19 Page 2 of 4
with surgery, Ms. Edmo has indicated that she will try self-surgery again to deal with her extreme episodes of gender dysphoria. Tr. 199:24-200:5. Given that Ms. Edmo made increasing progress on her first two self-surgery attempts, it is likely that Ms. Edmo will be successful if she attempts self-surgery again. Tr. 264:1322. Edmo v. Idaho Dep’t of Correction, No. 1:17-CV-00151-BLW, 2018 WL 6571203, at *12 (D. Idaho Dec. 13, 2018) (emphasis added).
LEGAL STANDARD Granting a stay is “an exercise of judicial discretion” that is “dependent upon the circumstances of the particular case.” Nken v. Holder, 556 U.S. 418, 433, (2009). The Supreme Court suggested in Hilton v. Braunskill, 481 U.S. 770, 776 (1987) that the trial court, in exercising its discretion, should consider four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” The Ninth Circuit has suggested that the Hilton factors should be applied using a “sliding scale” approach in which a stronger showing of one element may offset a weaker showing of another. Peck Ormsby Const. Co. v. City of Rigby, No. CIV. 1:10-545 WBS, 2012 WL 914915, at *3 (D. Idaho Mar. 15, 2012). The moving party bears the burden of showing that the circumstances justify an exercise of the court’s discretion and must show at least a minimum threshold for each factor. Nken, 556 U.S. at 434. However, the “first two factors ... are the most critical.” Id.
ANALYSIS
MEMORANDUM DECISION AND ORDER - 2

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Defendants, in seeking a stay, rehash the arguments they presented during the three-day evidentiary hearing in this case. The Court was unpersuaded by the arguments then, and remains so now. Applying the Hilton factors to the findings of fact contained in the Court’s prior decision, Defendants have failed to carry their burden to show that a stay is appropriate.
While there is no certainty as to how this case will be viewed on appeal, the Court is firmly convinced that its decision is supported by the facts and law presented during the hearing. I must, therefore conclude that the Defendants have not made a strong showing that they are likely to succeed on appeal.
The Court is not persuaded that the Defendants will be irreparably injured absent a stay. Indeed, it is difficult to see how providing medical treatment to an inmate could ever constitute an irreparable injury.
By comparison, the Court is convinced that issuing the stay will substantially injure Ms. Edmo for the reasons identified in that portion of the Court’s decision quoted above. Indeed, given Edmo’s past actions, time is of the essence.
Finally, I am also persuaded that there is a strong public interest in ensuring that our prisons are not deliberately indifferent to the serious medical needs of its inmates.
The Court will offer just one more thought: Ms. Edmo’s testimony and that of her experts conclusively established, in the Court’s opinion, that there is a substantial risk that Ms. Edmo will make a third attempt to self-castrate if the Defendants continue to deny her gender confirmation surgery. In short, her medical needs are urgent. The Constitution requires Defendants to act accordingly.
MEMORANDUM DECISION AND ORDER - 3

Case 1:17-cv-00151-BLW Document 175 Filed 03/04/19 Page 4 of 4
ORDER IT IS ORDERED: 1. Defendants’ Joint Motion to Stay Order [Dkt. 149] Pending Appeal (Dkt. 156) is DENIED.
DATED: March 4, 2019 _________________________ B. Lynn Winmill U.S. District Court Judge
MEMORANDUM DECISION AND ORDER - 4

 
 Case 1:17-cv-00151-BLW Document 193 Filed 04/09/19 Page 1 of 5
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ADREE EDMO, Plaintiff,
v. IDAHO DEPARTMENT OF CORRECTION, et al.,
Defendants.

Case No. 1:17-cv-00151-BLW
MEMORANDUM DECISION AND ORDER

INTRODUCTION Before me is Plaintiff’s Motion for Indicative Ruling Under Federal Rules of Civil Procedure 62.1 and 60(a). Dkt. 185. Plaintiff’s Motion is DENIED as unnecessary given my prior Memorandum Decision and Order.
BACKGROUND This case is currently on appeal before the United States Court of Appeals for the Ninth Circuit. Dkts. 163, 164. Plaintiff filed a motion for an indicative ruling pursuant of Federal Rules of Civil Procedure 62.1 and 60(a), asking me to make explicit findings that:

MEMORANDUM DECISION AND ORDER - 1

Case 1:17-cv-00151-BLW Document 193 Filed 04/09/19 Page 2 of 5
the injunctive relief ordered … [in the Court’s prior memorandum decision and order in this case] is narrowly drawn, extends no further than necessary to correct the violation of the federal right, is the least intrusive means necessary to correct the violation of the Federal right, and that there is no evidence that granting this relief will have any adverse impact on public safety or the operation of the criminal justice system.
Dkt. 185 at 2.
ANALYSIS
The Prison Litigation Reform Act (“PLRA”), as codified at 18 U.S.C. §
3626(a)(1), provides:
In any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief.
Plaintiff, through her motion, asks me to make explicit findings indicating that the
preliminary injunction I issued complies with the PLRA. Conversely, Defendants
maintain that I cannot issue an indicative ruling because (1) my Memorandum Decision
and Order has expired (Dkt. 188 at 4-5); (2) Plaintiff failed to properly sequence her
motions (id. at 5-7); and (3) Plaintiff is not entitled to the relief she seeks under Rule
60(a) (id. at 7-11).
Having reviewed the arguments set forth by the Parties, I find that the proper
course is to deny Plaintiff’s motion, but not for any of the reasons urged by Defendants.
Rather, denial is appropriate because my initial Memorandum Decision and Order (Dkt.
149) fully complies with the requirements of 18 U.S.C. § 3626(a)(1).
MEMORANDUM DECISION AND ORDER - 2

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While I did not make explicit findings on the need-narrowness-intrusiveness requirement which parroted the language of the statute, nothing in its text suggests that the precise language in the statute must be employed in the decision. The Ninth Circuit so indicated in Gilmore v. People of the State of California, 220 F.3d 987, 1008 (9th Cir. 2000):
We do not read this to mean that explicit findings must have been made, so long as the record, the court’s decision ordering prospective relief, and relevant caselaw fairly disclose that the relief actually meets the § 3626(b)(2) narrow tailoring standard. 1 See also Armstrong v. Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir. 2010); Pierce v. Cty. of Orange, 761 F. Supp. 2d 915, 947 (C.D. Cal. 2011). Here, I went further than is required under the Gilmore standard. Rather than leave it to the appellate court to determine whether the injunction met the statute’s requirements, I made explicit findings which clearly indicate that I considered and applied the narrow tailoring standard of the statute. I began my Memorandum Decision and Order by quoting the applicable section of the PLRA in the “INJUNCTION STANDARD” section. Dkt. 149 at 31. Thus, I fully considered and made findings in accordance with the applicable provision in the PLRA. But again, I went further and made findings which addressed each requirement of the statute.
1 Although § 3626(b)(2) is a different subsection of the PLRA, the need-narrowness-intrusiveness language is almost identical to § 3626(a)(1) and nothing in the Gilmore Court’s decision suggests that its reasoning does not apply with equal force to § 3626(a)(1). MEMORANDUM DECISION AND ORDER - 3

Case 1:17-cv-00151-BLW Document 193 Filed 04/09/19 Page 4 of 5
First, I carefully indicated that the preliminary injunction was narrowly drawn and would have no application outside of the case before me. I made clear that the injunction applies solely to Plaintiff, noting that “[the Court’s] decision … [was] based upon, and limited to, the unique facts and circumstances presented by Ms. Edmo’s case.” Id. at 4. Thus, my decision could not have been more narrowly drawn, given that it applies solely to one person.
Second, the relief ordered extends no further than necessary to correct the constitutional injury Plaintiff is suffering. Again, I noted that my decision “was not intended, and should not be construed, as a general finding that all inmates suffering from gender dysphoria are entitled to gender confirmation surgery.” Id.
Third, I found that gender confirmation surgery was the least intrusive, and in this case the only effective, method to treat Plaintiff’s gender dysphoria. Id. at 25-29. I concluded “[i]f she is not provided with surgery, Ms. Edmo has indicated that she will try self-surgery again to deal with her extreme episodes of gender dysphoria.” Id. at 28-29.
Finally, I gave full consideration to Defendants’ repeated arguments that prison authorities were entitled to withhold gender confirmation surgery from Plaintiff because providing her with the surgery could create challenges in managing the prison system in Idaho. While I fully considered and appreciated that concern, I ultimately concluded that those considerations must give way to the Defendants’ constitutional obligation to provide Plaintiff with the care mandated by the Eighth Amendment. Thus, I considered public safety and the impact on the operations of the criminal justice system in crafting the preliminary injunction in this case.
MEMORANDUM DECISION AND ORDER - 4

Case 1:17-cv-00151-BLW Document 193 Filed 04/09/19 Page 5 of 5
In short, in issuing my decision, I fully considered and applied the narrowing legal standards of 18 U.S.C. § 3626(a)(1). I see no need to offer an indicative ruling that would employ some talismanic language2 which adds nothing to the clarity and certainty of my decision.
ORDER IT IS HEREBY ORDERED: 1. Plaintiff’s Motion for Indicative Ruling Under Federal Rules of Civil Procedure 62.1 and 60(a) (Dkt. 185) is DENIED as unnecessary.3
DATED: April 9, 2019
_________________________ B. Lynn Winmill U.S. District Court Judge
2 I do not mean to suggest here that use of the exact words of the statute is sufficient, in and of itself, to satisfy the requirements of the PLRA. Balla v. Idaho State Board of Corrections, 1:81-cv-001165-BLW (D. Idaho March 20, 2019) (Dkt. 1262 at 7). Indeed, the teaching of my decisions in this case and in Balla is that using the exact language of the statute is neither necessary nor sufficient to satisfy the PLRA. 3 I would note that if the Ninth Circuit finds that I am required to use the precise language used in the PLRA, I would have no hesitancy in following their order to do so. An amended decision including the talismanic language would be fully consistent with my intent when I issued the original Memorandum Decision and Order, and would be issued immediately upon remand if that is deemed necessary by the appellate court. MEMORANDUM DECISION AND ORDER - 5

 
 CCaassee1::1197--3c5v-001071,5015-/B3L0W/201D9o, cIDum: 1e1n3t11399532F, iDlekdtE0n5t/r3y0: /9109, PPaaggee11oof f44

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
MAY 30 2019
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

ADREE EDMO, AKA Mason Edmo, Plaintiff-Appellee,
v. CORIZON, INC.; et al.,
Defendants-Appellants, and IDAHO DEPARTMENT OF CORRECTIONS; et al.,
Defendants.

No. 19-35017
D.C. No. 1:17-cv-00151-BLW District of Idaho, Boise
ORDER

ADREE EDMO, AKA Mason Edmo, Plaintiff-Appellee,
v. IDAHO DEPARTMENT OF CORRECTIONS; et al.,
Defendants-Appellants, and CORIZON, INC.; et al.,

No. 19-35019 D.C. No. 1:17-cv-00151-BLW

CCaassee1::1197--3c5v-001071,5015-/B3L0W/201D9o, cIDum: 1e1n3t11399532F, iDlekdtE0n5t/r3y0: /9109, PPaaggee22oof f44
Defendants. Before: McKEOWN and GOULD, Circuit Judges, and LASNIK,* District Judge.
The Prison Litigation Reform Act (“PLRA”) requires a district court to make any order for “[p]reliminary injunctive relief . . . final” within “90 days after its entry.” 18 U.S.C. § 3626(a)(2). If a district court does not, the “[p]reliminary injunctive relief shall automatically expire.” Id.; see also Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001); United States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1228–29 (11th Cir. 2015). Defendants-Appellants contend that the district court’s December 13, 2018 injunction automatically expired under this PLRA provision and, for that reason, the appeal is moot.
We order a limited remand to the district court to address two issues relevant to mootness. See Friery v. L.A. Unified Sch. Dist., 448 F.3d 1146, 1150 (9th Cir. 2006) (limited remand appropriate to determine issues relevant to jurisdiction); Ciarpaglini v. Norwood, 817 F.3d 541, 548 (7th Cir. 2016) (limited remand appropriate to determine issues relevant to mootness). 1. The district court granted injunctive relief to Plaintiff-Appellee Adree Edmo on December 13, 2018. Defendants then appealed and moved the district court to
* The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation.
2

CCaassee1::1197--3c5v-001071,5015-/B3L0W/201D9o, cIDum: 1e1n3t11399532F, iDlekdtE0n5t/r3y0: /9109, PPaaggee33oof f44
stay the injunction pending appeal. The district court denied Defendants’ motion on March 4, 2019—nine days before a preliminary injunction would have expired under the PLRA. On remand, the district court shall clarify whether its order denying Defendants’ motion for a stay pending appeal was meant to renew the injunction. See Mayweathers, 258 F.3d at 936 (holding that district courts may renew preliminary injunctions under the PLRA while an appeal is pending). If the district court’s order was not meant to renew the injunction, the district court has the authority under this limited remand to consider whether to reissue the injunction. 2. The district court stated that it was granting Edmo’s Motion for Preliminary Injunction. See Edmo v. Idaho Dep’t of Corr., 358 F. Supp. 3d 1103, 1110, 1129 (D. Idaho 2018). It also stated that the parties effectively “treated the evidentiary hearing as a final trial on the merits” and concluded that Edmo “satisfies both elements of the deliberate indifference test,” id. at 1110, and is “entitled to relief” under a permanent injunction standard, see id. at 1122 n.1. The district court, at the beginning and conclusion of the evidentiary hearing, questioned whether it should apply a permanent injunction standard and asked the parties to address the question. But “[n]either party addressed the [district court’s] concern.” Id.
On remand, the district court shall clarify whether, as part of its ruling on Edmo’s motion for preliminary injunction, the district court also granted
3

CCaassee1::1197--3c5v-001071,5015-/B3L0W/201D9o, cIDum: 1e1n3t11399532F, iDlekdtE0n5t/r3y0: /9109, PPaaggee44oof f44
permanent injunctive relief. The district court shall also clarify whether it concluded that Edmo actually succeeded on the merits of her Eighth Amendment claim for permanent injunctive relief.
* * * The district court is requested to promptly render its decision. Once the district court does so, the parties shall promptly notify the Clerk’s Office and indicate that “the cause will be resubmitted to this panel for review and final disposition.” Miller v. United Food & Commercial Workers Union, Local 498, AFL-CIO, 708 F.2d 467, 468 (9th Cir. 1983). This panel retains jurisdiction pending the limited remand. No party need file a new notice of appeal. See Mujica v. AirScan Inc., 771 F.3d 580, 589–90 (9th Cir. 2014). The injunction will remain stayed pending limited remand. The panel retains jurisdiction over this appeal, so no mandate shall issue as a consequence of this order. REMANDED.
4

 
 Case 1:17-cv-00151-BLW Document 196 Filed 05/31/19 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ADREE EDMO, Plaintiff,
v. IDAHO DEPARTMENT OF CORRECTION, et al.,
Defendants.

Case No. 1:17-cv-00151-BLW ORDER

INTRODUCTION The United States Court of Appeals for the Ninth Circuit has remanded this case and asked the Court to address three limited issues. First, the Court is asked to “clarify whether its order denying Defendants’ motion for a stay pending appeal was meant to renew the injunction.” Second, the Court must “clarify whether, as part of its ruling on Edmo’s motion for preliminary injunction, the district court also granted permanent injunctive relief.” Third, the Court is asked to “clarify whether it concluded that Edmo actually succeeded on the merits of her Eighth Amendment claim for permanent injunctive relief.”
ANALYSIS Beginning with the first issue, the Court’s order denying Defendants’ request for a stay did not renew the injunction. Dkt. 175. The issue of whether the injunction should be renewed was not presented in the parties’ briefing (Dkts. 156, 168, 174), and the
ORDER - 1

Case 1:17-cv-00151-BLW Document 196 Filed 05/31/19 Page 2 of 5
Court’s decision was limited to the question of whether a stay should be issued.1 Dkt. 175.
Nevertheless, the Court expressly denied the stay because of the significant risk that Ms. Edmo will make a third attempt at self-castration if she is not provided with gender confirmation surgery in the very near future. Id. at 2 (“Given that Ms. Edmo
made increasing progress on her first two self-surgery attempts, it is likely that Ms. Edmo will be successful if she attempts self-surgery again.”) (emphasis in original). The Court has found that the treatment employed by Defendants has been ineffective, leaving gender confirmation surgery as the sole remaining option. Edmo v. Idaho Dep’t of Correction, 358 F. Supp. 3d 1103, 1118-20 (D. Idaho 2018). By denying Ms. Edmo gender confirmation surgery, Defendants continue to subject her to cruel and unusual punishment that is contrary to the Eighth Amendment. Id. at 1129. The Court’s intent in denying the stay was to secure a quick end to Defendants’ constitutionally deficient care. That same intent informs the Court’s decision today to reissue the preliminary injunction in accordance with the Prison Litigation Reform Act.2 See 18 U.S.C. § 3626.
1 To be sure, if the plaintiff had so requested, the Court would have renewed the injunction as part of its decision denying Defendants’ request for a stay.
2 In doing so, the Court notes that its original injunction complied with the Prison Litigation Reform Act’s requirement that the Court consider and make certain factual findings regarding the scope of the injunction. See Dkt. 193. The Court reincorporates all those findings in today’s decision. In an abundance of caution, the Court will again find that its injunction is “narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1). The Court has given “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Id. ORDER - 2

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The Ninth Circuit has also asked the Court to clarify whether as part of its decision granting Ms. Edmo’s motion for preliminary injunction it also intended to grant permanent injunctive relief. That was the Court’s intention.
At the outset of the evidentiary hearing on Ms. Edmo’s motion for preliminary injunction and at the hearing’s close, the Court asked the parties to address whether the permanent or preliminary injunctive standard applied. Dkts. 137, 139. Both parties failed to do so. Lacking any guidance from the parties, the Court issued its decision using the standard for a preliminary injunction in light of the looming threat to Ms. Edmo’s health and in accordance with Federal Rule of Civil Procedure 1. See Edmo, 358 F. Supp. 3d at 1110, 1122 (citing Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008)). In doing so, however, the Court explicitly “conclude[d] that under either [the preliminary mandatory or permanent injunction] standard Ms. Edmo is entitled to relief.” Id. at 1122, n.1. Thus, the Court will reiterate its prior finding: Ms. Edmo is entitled to gender confirmation surgery under the permanent injunction standard.
Finally, the Ninth Circuit asks the Court to “clarify whether it concluded that Edmo actually succeeded on the merits of her Eighth Amendment claim for permanent injunctive relief.” Simply stated, that was the Court’s conclusion.
Because the Court’s original decision granted Ms. Edmo a permanent injunction, she necessarily succeeded on the merits of her Eighth Amendment claim. The parties in this case “effectively converted … the evidentiary hearing into the final trial on the merits.” Edmo, 358 F. Supp. 3d at 1122, n.1. During the hearing, the Court repeatedly informed counsel that there did not appear to be any meaningful distinction between a
ORDER - 3

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preliminary and permanent injunction in this case. Defendants, who now object to viewing the evidentiary hearing as a full trial on the merits, said nothing. See Dkts. 137, 138, 139. Additionally, in the lead up to the three-day long hearing, the parties conducted extensive discovery. During the hearing itself, they submitted, without any limitation or restriction, all evidence and briefing they wanted the Court to consider. Both sides put on extensive expert and lay testimony that was indistinguishable from the testimony that would have been received during a full trial. And, finally, the Court employed post-hearing procedures that are usually reserved for full trials including: (1) having the parties submit proposed findings of fact and conclusions of law; (2) expediting the hearing transcript so the parties could have the full record before them in drafting their findings of fact and conclusions of law; and (3) inviting the parties to submit testimony via affidavit from any witnesses who were not available to testify at the hearing. In short, Defendants were afforded a full opportunity to show that Ms. Edmo was receiving constitutionally compliant care. They failed. Ms. Edmo succeeded in showing that the care she is receiving from Defendants is cruel and unusual punishment under the Eighth Amendment.
ORDER IT IS HEREBY ORDERED: 1. The preliminary mandatory relief set forth in the Court’s decision at Docket
No. 149 is RENEWED. 2. The Court clarifies that as part of its ruling on the motion for preliminary
injunction, it also granted permanent injunctive relief.
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3. The Court further clarifies that it concluded, and expressly incorporated into its final decision, that Plaintiff succeeded on the merits of her Eighth Amendment claim for permanent injunctive relief. DATED: May 31, 2019 _________________________ B. Lynn Winmill U.S. District Court Judge
ORDER - 5

 
 Case 1:17-cv-00151-BLW Document 225 Filed 10/24/19 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ADREE EDMO,
Plaintiff,
v.
IDAHO DEPARTMENT OF CORRECTION; HENRY ATENCIO; JEFF ZMUDA; HOWARD KEITH YORDY; CORIZON, INC.; SCOTT ELIASON; MURRAY YOUNG; RICHARD CRAIG; RONA SIEGERT; CATHERINE WHINNERY; AND DOES 1-15,
Defendants.

Case No. 1:17-CV-00151-BLW
ORDER REQUIRING DEFENDANTS PROVIDE ALL PRE-SURGICAL TREATMENTS AND RELATED COROLLARY APPOINTMENTS OR CONSULTATIONS NECESSARY FOR GENDER CONFIRMATION SURGERY

On October 10, 2019, the United States Court of Appeals for the Ninth Circuit Court granted a motion by Plaintiff-Appellee in case number 19-35017, to partially lift its stay of this Court’s order of December 13, 2018, which required Defendants to take all actions reasonably necessary to provide Plaintiff with gender confirmation surgery. (Dkt. 220.) The Ninth Circuit partially lifted the stay “so that Plaintiff may receive all presurgical treatments and related corollary appointments or consultations necessary for gender confirmation surgery.” Id. at 2.
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On October 17, 2019, the Court held a status conference with counsel for the parties regarding the Ninth Circuit’s order. The Court instructed counsel for Plaintiff to file a memorandum detailing all presurgical requirements necessary for Plaintiff to undergo gender confirmation surgery. On October 22, 2019, Plaintiff filed the submission regarding pre-surgical requirements. (Dkt. 224.) Plaintiff’s submission is accompanied by a declaration from Dr. Geoffrey D. Stiller, the surgeon selected by Defendants to provide gender confirmation surgery. (Dkt. 224-1 at 5-8.) According the submission, three pre-surgical requirements remain to be completed: 1) laser treatment or electrolysis for hair removal around the surgical site; 2) the provision of a referral for the surgery from a treating physician; and 3) the provision of documentation of approval for payment for the surgery. (Dkt. 224 at 2-3.)
In consideration of the foregoing, and to comply with the Ninth Circuit’s order of October 10, 2019 that Plaintiff receive “all presurgical treatments and related corollary appointments or consultations necessary for gender confirmation surgery,” the Court HEREBY ORDERS as follows:
1) Defendants must arrange for and see that Ms. Edmo receive complete hair removal from the surgical site by either laser hair removal or electrolysis. Ms. Edmo must receive her first hair removal treatment on or before November 8, 2019. Thereafter, the hair removal treatments must continue at regularly
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scheduled intervals until complete hair removal is achieved consistent with the requirements outlined in Dr. Stiller’s declaration. (See Dkt. 224-1 at 6-7.)
2) Defendants must ensure that the required treating physician referral letter, as described in Plaintiff’s presurgical submission (Dkt. 224 at 2), is provided by Ms. Edmo’s current treating prison physician to Dr. Stiller on or before December 31, 2019. If this is not possible for any reason, Defendants must instead coordinate and take all steps to ensure Ms. Edmo is referred to an outside physician who can provide the required physician referral letter to Dr. Stiller, and that this step is taken to ensure the physician is able to supply the referral letter on or before December 31, 2019.
3) Defendants must also ensure that the requisite payment approval for the gender confirmation surgery is provided to Dr. Stiller as soon as possible.
4) Defendants must file a status report with the Court on or before November 1, 2019, detailing the steps they have taken or are taking to comply with this order. Defendants are instructed to file the status report under seal should it contain any sensitive information.
DATED: October 24, 2019
_________________________ B. Lynn Winmill U.S. District Court Judge
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 Case 1:17-cv-00151-BLW Document 244 Filed 11/08/19 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ADREE EDMO,
Plaintiff,
v.
IDAHO DEPARTMENT OF CORRECTION; HENRY ATENCIO; JEFF ZMUDA; HOWARD KEITH YORDY; CORIZON, INC.; SCOTT ELIASON; MURRAY YOUNG; RICHARD CRAIG; RONA SIEGERT; CATHERINE WHINNERY; AND DOES 1-15,
Defendants.

Case No. 1:17-cv-00151-BLW
ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY

INTRODUCTION Pending before the Court is Defendants’ expedited motion to stay this Court’s order of October 24, 2019, pending appeal to the United States Court of

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Appeals for the Ninth Circuit. (Expedited Motion to Stay, Dkt. 228; Notice of Appeal, Dkt. 227.) The Court’s order requires Defendants to provide all presurgical treatments and related corollary appointments or consultations necessary for the Plaintiff to undergo gender confirmation surgery. (See Dkt. 225 (“Presurgical Order”).)
After careful consideration of the motion, the parties’ arguments, the procedural and factual record, and relevant law, the Court will deny the expedited motion to stay. However, the Court will defer setting a deadline for Plaintiff to receive her first hair removal treatment to allow the Court to hold a limited hearing for purposes outlined below.
BACKGROUND On December 13, 2018, the Court issued a decision concluding that by refusing to provide Plaintiff gender confirmation surgery to treat her severe gender dysphoria, Defendants violated the Eighth Amendment to the Constitution of the United States of America. The Court granted Plaintiff’s motion for injunctive relief, and ordered Defendants to “take all actions reasonably necessary to provide Ms. Edmo gender confirmation surgery as promptly as possible and no later than six months from the date” of the order. (Dkt. 149 at 45 (“2018 Order”). Defendants appealed the decision, and moved the Court to stay the injunction pending resolution of the appeal. (Dkt. 154; Dkt
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156.) Although the Court denied the motion to stay, a Ninth Circuit motions panel granted a stay pending appeal. (Dkt. 182.) Later, Plaintiff filed a motion to modify the appellate stay to exempt a previously scheduled presurgical appointment with the surgeon chosen by Defendants to perform the gender confirmation surgery, Dr. Geoffrey Stiller. The panel granted the motion, and the presurgical appointment took place on April 12, 2019. (Dkt. 187.)
Dr. Stiller’s medical assessment record from the presurgical appointment included notes that are pertinent to Defendants’ motion. (Exhibit A to Defendants’ Memorandum in Support of the Expedited Motion to Stay, Dkt. 228-2 at 12.) Dr. Stiller noted that he discussed the pros and cons of two gender confirmation surgery techniques—penile inversion vaginoplasty and colovaginoplasty. Id. The notes include that Dr. Stiller discussed with Plaintiff the fact that hair removal was “needed” for the penile inversion technique. Id. Dr. Stiller noted also that, should Plaintiff proceed with the colovaginoplasty technique, “the first stage can be completed with hair removal” followed by the surgery six (6) months later. Id.
On August 23, 2019, the Ninth Circuit affirmed the 2018 Order, holding Defendants violated Plaintiff’s Eighth Amendment right to adequate and necessary medical treatment of her severe gender dysphoria by denying gender confirmation surgery. (Dkt. 209.) Defendants filed a petition for rehearing en
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banc, which as of the date of this order is pending. Subsequently, Plaintiff filed a motion requesting the Ninth Circuit
partially lift its stay of the 2018 Order to enable her to receive all necessary presurgical treatments. In support of the motion, Plaintiff submitted a letter from Dr. Stiller wherein he provided an estimation that completion of all presurgical treatments and prerequisites would take at least six months. The Ninth Circuit granted Plaintiff’s motion for partial lifting of the stay. (Dkt. 220.) The court found that, as the proponents of the stay, Defendants failed to show irreparable harm was probable “with respect to the limited nature of Plaintiff’s request.” Id. at 2. The court found also that Defendants failed to meet their burden to show a substantial case on the merits or that the balance of the hardships tipped sharply in their favor. Id. at 2. Accordingly, the Ninth Circuit partially lifted the appellate stay of the 2018 injunction “so that Plaintiff may receive all presurgical treatments and related corollary appointments or consultations necessary for gender confirmation surgery.” Id.
In light of the partial lifting, the Court held a status conference with counsel for the parties. (Dkt. 222.) During the conference, counsel for Defendant Corizon suggested, for the first time, that his client was confused or uncertain regarding the specific presurgical requirements and the type of gender confirmation surgery required by the 2018 Order and the Ninth Circuit’s August
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2019 decision. Given Defendants’ contentions, the Court ordered Plaintiff to file a submission detailing the presurgical requirements indicated by the performing surgeon, Dr. Stiller.
Plaintiff filed the submission on October 22, 2019. (Dkt. 224.) According to the submission, three presurgical requirements remain outstanding: (1) a physician referral letter, (2) laser treatment or electrolysis of the surgical area, and (3) documentation of approval for payment. Id. With the presurgical requirements clarified, the Court issued the Presurgical Order, which requires Defendants to take steps to ensure the three remaining presurgical requirements are completed in a timely manner. To this end, the Court required Defendants to schedule and ensure that Plaintiff’s first hair removal treatment take place on or before November 8, 2019.
The Court held a second status conference with Counsel for the parties on October 30, 2019. (Dkt. 230.) The purpose of the status conference was to obtain an update from Defendants on their progress in complying with the Presurgical Order. Counsel for Defendants noted Plaintiff’s first hair removal treatment had been scheduled for November 7, 2019. Defendants filed the present motion and notice of appeal on October 31, 2019. (Dkt. 227, 228.) Plaintiff filed a response to the motion November 5, 2019. (Dkt. 235.) The following day, the Court vacated the November 8, 2019 hair removal treatment
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deadline to allow careful and full consideration of Defendants’ expedited motion to stay. (Dkt. 239.) The Court will now discuss the merits of the motion.
STANDARD OF LAW Federal Rule of Civil Procedure 62(d) provides that, when “an appeal is pending from an interlocutory order or final judgment that grants … an injunction,” a “court may suspend, modify, or restore an injunction on …. terms that secure the opposing party’s rights.” Pertinent to the present motion, a court may stay, i.e. “hold an order in abeyance pending [its] review.” Nken v. Holder, 556 U.S. 418, 427 (2009). The traditional standard used to determine whether a stay of an order should issue pending appeal of the order requires a court to consider four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Id. (internal citations omitted). The party requesting the stay bears the burden of showing it is warranted under the circumstances. Id. at 433-34. The first two factors are considered “the most critical” to a court’s determination. Id. at 434. Ultimately, however, a stay is “an exercise of judicial discretion” where the propriety “of its issue is dependent upon the circumstances of the particular
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case.” Id. ANALYSIS
The recent procedural history of this case bears on the Court’s analysis of the propriety of a stay of the Presurgical Order. Defendants’ motion comes on the heels of a decision from the Ninth Circuit to partially lift the appellate court stay of the 2018 Order. In issuing the order, the Ninth Circuit found “Defendants, as the proponents of the stay,” did not show “that irreparable harm is probable with respect to the limited nature of Plaintiff’s request” and also did not show “that they have both a substantial case on the merits and the balance of hardships tips sharply in their favor.” (Dkt. 220 at 2 (citing Leiva-Perez v. Holder, 640 F.3d 962, 970 (9th Cir. 2011) (per curiam) (internal citations omitted)).
Defendants now ask this Court to reconsider the factors and arguments fully considered by the Ninth Circuit. Furthermore, Defendants’ motion involves, as its subject, the same core issue presented to the circuit—the performance of presurgical treatments pending conclusion of appellate review. Defendants’ motion viewed in the best light invites the Court to engage in a circular exercise; in the worst light it suggests an attempt to relitigate decided issues and to delay provision of the presurgical treatments ordered by the Ninth Circuit.
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While gravely concerned that the Defendants’ filings are for the purpose of delay and do not reflect any real misunderstanding of the Court’s prior decision, the Court will not preclude the Defendants from presenting, on an expedited basis, their belated argument that other gender confirmation surgery techniques would cure the constitutional violation at issue in this case. The Court will discuss that issue in the context of the factors it must consider when deciding whether to issue a stay pending appeal. 1. Defendants have not shown a strong likelihood of success on appeal.
Defendants argue they have a strong likelihood of success on appeal of Presurgical Order for three reasons: (1) the Court lacked jurisdiction to issue the order; (2) the Court “materially modified” the 2018 injunction without affording Defendants an opportunity to be heard; and (3) the order is overbroad under the PLRA and contrary to the Eighth Amendment.
In response, Plaintiff asserts the Presurgical Order is not appealable because it is not a modification of the 2018 injunction. In the alternative, Plaintiff argues that even if the order did modify the injunction, Defendants do not have a case for relief because the appeal does not present any serious legal questions for the Ninth Circuit’s interlocutory determination.
A. The Court had jurisdiction to issue the Presurgical Order. Defendants first contend this Court did not have jurisdiction to issue the
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Presurgical Order because the order itself materially modified the December 2018 injunction. In support of this contention, Defendants assert the Presurgical Order affects two core questions within their original appeal. The first, whether the injunction was overbroad under the PLRA because the Court failed to define the terms “gender confirmation surgery” and “adequate medical care.” (Dkt. 228-1 at 4.) The second, whether the injunction was overbroad, premature, or intrusive “given the lack of evidence” that Plaintiff had the requisite letter of referral from mental health practitioners to be a candidate for gender confirmation surgery.
The Court finds Defendants’ argument that it lacked jurisdiction to issue the Presurgical Order completely unpersuasive. First, the Ninth Circuit partially lifted the stay of the Court’s 2018 Order and injunction. The express reason for partial lifting of the stay was to allow Plaintiff to receive all necessary presurgical treatments, consultations, and corollary appointments. The Ninth Circuit made this ruling after considering arguments substantially similar to the arguments Defendants make in the present motion. Importantly, Federal Rule of Civil Procedure 62(d) permits the Court discretion to “modify, restore, or grant an injunction” on “terms that secure” the rights of the party opposing appeal of an interlocutory order or final judgment regarding an injunction. Fed. R. Civ. P. 62(d). Therefore, the Court both had jurisdiction and the authority to issue the
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Presurgical Order. B. Defendants had ample opportunity to be heard. Defendants argue that the Presurgical Order violated their due process
rights because the Court invited only Plaintiff to submit evidence regarding prerequisites to surgery. This characterization is completely inaccurate and unfounded.
Defendants have been on notice since at least March of 2019 regarding the presurgical requirements for a gender confirmation surgery. (March 1, 2019 Letter, Dkt. 224-1 at 16-17, Ex. 2.) Defense counsel detailed the following in a March 1, 2019 letter to Plaintiff’s counsel:
Id. at 17. Yet, Defendants assert in their motion that colovaginoplasty does not
require hair removal. Defendants provide scant evidence1 in support of this
1 The only evidence supplied to support Defendants’ contention that hair removal is not medically necessary as a part of the colovagioplasty gender confirmation surgery technique, is subject to a hearsay-based motion to strike statements contained in the Declaration of April Dawson, regional Medical Director for Corizon. (See Dkt. 228-2 at 4-5.)
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assertion. However, in addition to the letter cited immediately above, there is other evidence in the record that raises questions about Defendants’ contention. For example, Defendants include as Exhibit A to their memorandum in support of the motion for expedited stay, an assessment report completed by Dr. Stiller after the April 2019 presurgical consultation with Plaintiff. (Dkt. 228-2 at 12.) Dr. Stiller’s notes state that the first step to the colovaginoplasty technique would be hair removal treatments starting six months prior to surgery. Id.
Additionally, the presurgical requirements for gender confirmation surgery were presented to the Ninth Circuit when Plaintiff filed her motion for partial lifting of the stay. (See Plaintiff-Appellant’s Motion for Partial Lifting of Stay, USCA Case No. 19-35019.) Defendants submitted a response brief to the motion that called into question the provision of the hair removal treatments. After consideration of Defendants’ arguments against partially lifting the stay, the Ninth Circuit nevertheless granted Plaintiff’s motion. The Ninth Circuit determined that Defendants had failed to carry their burden to show that irreparable harm is probable if the presurgical treatments are completed – including hair removal. That is the law of the case. See United States v. Alexander, 106 F.3d 874, 876–77 (9th Cir. 1997) (“Under the ‘law of the case’ doctrine, a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case.”
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(internal quotations and citations omitted)). Despite this background, as detailed above, during the telephonic
conference with the parties on October 17, 2019, Defense counsel indicated their clients do not have proper guidance either from this Court or the Ninth Circuit as to what presurgical requirements are required for gender confirmation surgery. Provided Defendants’ contention, the Court directed Plaintiff’s counsel to file a submission detailing the presurgical requirements that remain to be completed according to the performing surgeon, Dr. Stiller. Notably, these were essentially the same presurgical requirements Defense counsel detailed in the letter of March 1, 2019.
Finally, during the telephonic status conference, the Court stated that it intended to give full effect to the Ninth Circuit’s order partially lifting the stay, but also acknowledged Defendants’ right to file a motion raising argument to challenge the presurgical requirements—which is exactly what Defendants have done. The Court is presently considering Defendants’ arguments in context. Thus, given Defendants’ prior opportunities to raise the issue regarding the necessity of hair removal prior to the available gender confirmation surgery techniques, and the Court’s consideration of the contention within this order, the assertion that they have not had the opportunity to be heard on this issue is completely unsupported.
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C. Notable PLRA and Eighth Amendment considerations. Finally, Defendants assert they are likely to prevail on the merits of their appeal of the Presurgical Order because it is overbroad under the PLRA and contrary to the Eighth Amendment. To this end, Defendants argue the Eighth Amendment does not provide a right to a specific treatment or to the best possible care. Relatedly, Defendants note the PLRA mandates that Defendants correct a constitutional violation and that any correction must be made by the least intrusive means necessary. See 18 U.S.C. § 3626(a)(1)(A). It is true that differences in judgment between inmate and prison medical personnel regarding appropriate medical treatment are not enough to establish a deliberate indifference claim under the Eighth Amendment. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989). However, when there are choices between alternative treatments, a prisoner can successfully challenge a chosen treatment if there is evidence it is “medically unacceptable under the circumstances” and is chosen “in conscious disregard of an excessive risk” to the inmate’s heath. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (alternation and quotations omitted). However, those principles must be applied in the context of the Court’s determination that the Defendants were deliberately indifferent to Ms. Edmo’s Eighth Amendment rights by failing to provide her with gender confirmation surgery which would treat her gender dysphoria. Simply put, the
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surgery provided must address Ms. Edmo’s medical condition. Nothing less will satisfy the requirements of the Eighth Amendment.
Defendants claim there are three gender confirmation treatments that may cure the constitutional violation in this case: (1) penile inversion vaginoplasty, (2) colovaginoplasty, or (3) a zero-depth genital removal procedure. Defendants argue that “[t]hese are very different and distinct surgeries, and there is … no evidence in the record to establish which is medically necessary or required to reverse a constitutional violation.” (Dkt. 228-1 at 7.)
The Court is frustrated that this issue was not raised during the evidentiary hearing in this matter conducted a year ago, and has not been presented to the Court until, almost literally, the eleventh hour. Nevertheless, the Court will provide the Defendants with the opportunity to raise the issue, but on a very expedited basis.
Additionally, Defendants assert that the Presurgical Order modified the injunction in violation of the PLRA by requiring Defendants to “doctor shop” for physicians to provide the referrals necessary for Ms. Edmo to obtain gender confirmation surgery. They assert that the order exceeds also the bounds of an inmate’s constitutional protections under the Eighth Amendment because an inmate, Ms. Edmo in this case, is not entitled to choose her medical provider.
This argument is circular and nonsensical. If the medical providers at the
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prison will not, or cannot provide a referral necessary for an inmate to obtain medically necessary treatment, and the denial of such treatment deprives the inmate of rights secured by the Eighth Amendment, prison officials have an affirmative duty to refer the inmate to medical professionals who will, and can provide the necessary referral letters. In this case, the Court has determined, and the Ninth Circuit has affirmed that, denial of gender confirmation surgery violates Plaintiff’s Eighth Amendment right to receive medically necessary treatment. It necessarily follows that to cure the violation, Defendants must refer Ms. Edmo to physicians who will provide the requisite referral letters. Notably, Defendants have had full opportunity to raise and argue this issue to the Ninth Circuit. 2. Defendants have not met their burden to show irreparably injury absent a stay.
In granting Plaintiff’s motion to partially lift the stay, the Ninth Circuit considered arguments from Defendants substantially similar, if not identical, to the arguments made in the present motion to stay. The Ninth Circuit’s finding that Defendants’ had not carried their burden to show “irreparable harm is probable” given “the limited nature of Plaintiff’s request” is the law of the case. See United States v. Alexander, 106 F.3d 874, 876-77 (9th Cir. 1997). 3. The potential for harm to Plaintiff is ongoing, therefore a stay is disfavored.
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Defendants contend Plaintiff does not need to receive hair removal treatment before undergoing a colovaginoplasty. (Dkt. 228-1 at 14.) However, as stated above, Defendants provide no persuasive medical authority for this assertion. Defendants also assert Plaintiff “has failed to present any evidence that hair removal surgery is necessary before undergoing the zero depth procedure.” This line of argument highlights the reason a limited evidentiary hearing on these issues is necessary. However, it is not only necessary to determine whether hair removal is medically necessary to the various surgical techniques, but which surgical technique or techniques will be gender confirming for Plaintiff.
Finally, Defendants assert “[t]here is little to no risk of self-castration” during a stay “because Ms. Edmo is committed to preserving her male anatomy for use in a future surgery.” (Dkt. 228-1 at 10, citing Evidentiary Hearing Transcript, October 11, 2018, Vol., 2, pp. 199-200, 218, ll. 2-14.) This argument is belied by the Court’s findings of fact and conclusions of law made in the 2018 Order after considering this same testimony within the context of all of the facts then before the Court. In that order the Court found that, “Ms. Edmo’s gender dysphoria results in clinically significant distress or impairment of functioning.” (Dkt. 149 at 42.) As of the date of this order, Ms. Edmo has not received adequate treatment for her gender dysphoria.
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4. Public interest disfavors a stay. As stated in the Court’s 2018 Order, “the public has a strong interest in
the provision of constitutionally adequate health care to prisoners.” McNearney v. Wash. Dep’t of Corr., 2012 WL 3545267, at *16 (W.D. Wash. 2012). Furthermore, the public’s interest is served by ensuring that court orders and judgments are carried out. As has been stated throughout, the Ninth Circuit partially lifted the stay of this Court’s 2018 Order and injunction “so that Plaintiff may receive all presurgical treatments and related corollary appointments or consultations necessary for gender confirmation surgery.” (Dkt. 220 at 2.) The Court therefore finds the public has an interest in orders of the courts of the United States being carried out, even if some may disagree with the outcome.
CONCLUSION Provided the foregoing, the Court will deny Defendants’ expedited motion to stay the Presurgical Order pending appeal. However, the Court has already extended the time to begin the pre-surgical procedures to provide the Defendants with an opportunity to present to the Court its argument that it should be allowed to provide Ms. Edmo with colovaginoplasty or zero-depth genital removal as a means of discharging their obligations under the Eighth Amendment. The Court will hold a limited hearing on the following discrete
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issues:

1. Whether colovaginoplasty would treat Ms. Edmo’s serious medical need for gender confirmation surgery.

2. Whether hair removal treatment, or any other pre-surgical treatment is necessary for a medically successful outcome of a colovaginoplasty surgery.

3. Whether a zero-depth genital removal procedure would treat Ms. Edmo’s serious medical need for gender confirmation surgery.

4. Whether hair removal treatment is necessary for a medically successful outcome of the zero-depth procedure.

The Court will issue a ruling on the hearsay objections subject to Plaintiff’s

Motion to Strike (Dkt. 236) in advance of the hearing.

IT IS ORDERED that

ORDER

1. Defendants’ Expedited Motion to Stay (Dkt. 228) is DENIED.

2. The deadline for scheduling and completion of the first hair removal

appointment will remain vacated pending the Court’s decision following

the hearing described above.

3. Defendants may file a motion requesting that the Court consider

alternative means of remedying their established violation of the

Plaintiff’s Eighth Amendment rights. Such a motion must be filed, along

with any briefs, affidavits, or other evidentiary materials they wish to

submit, by November 15, 2019. Plaintiffs shall respond with any briefs,

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affidavits, or other evidentiary materials they wish to submit by November 20, 2019. A hearing on Defendants’ motion will be conducted on November 21, 2019, at 9:00 a.m.
DATED: November 8, 2019 _________________________ B. Lynn Winmill U.S. District Court Judge
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 Case 1:17-cv-00151-BLW Document 277 Filed 04/17/20 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ADREE EDMO,
Plaintiff,
v.
IDAHO DEPARTMENT OF CORRECTION; HENRY ATENCIO; JEFF ZMUDA; HOWARD KEITH YORDY; CORIZON, INC.; SCOTT ELIASON; MURRAY YOUNG; RICHARD CRAIG; RONA SIEGERT; CATHERINE WHINNERY; AND DOES 1-15,
Defendants.

Case No. 1:17-cv-00151-BLW
ORDER GRANTING DEFENDANTS’ JOINT MOTION TO STAY

INTRODUCTION Pending before the Court is Defendants’ Joint Motion to Stay this litigation pending the resolution of Defendants’ appeal to the Supreme Court of the United States of America. Dkt. 272. Plaintiff does not oppose the stay, but requests the stay include limited exceptions necessary to preserve critical evidence. Dkt. 274 at 2. After careful consideration, the Court will exercise its discretion to issue a stay.
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STANDARD OF LAW “A district court has discretionary power to stay proceedings in its own court.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005). In deciding whether issue a stay of litigation pending appeal, the Court must weigh “the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.”4 CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962).
DISCUSSION As set forth above, the parties agree to a stay of this litigation pending resolution of Defendants’ appeal to the Supreme Court. Plaintiff, however, argues that a balancing of the hardships inquiry requires that the stay order include allowance for “target discovery” and an evidence retention order. Dkt. 274 at 4. Specifically, that the order: 1) permit Plaintiff to depose three individual Defendants and one key witness who have moved to other correctional systems or retired; 2) require Defendants to provide Plaintiff ongoing access to her custody and medical records; and 3) ensure preservation of relevant documentary and electronic evidence regardless of Defendants’ default retention practices. Id. at 2. Since the inception of this lawsuit, three defendants and one key witness
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have either moved out of the state of Idaho, or retired from IDOC or Corizon. Dkt. 223-1. Plaintiff’s claims include allegations that the three defendants “were personally involved in violating her rights, and so their testimony is particularly important to her claims.” Dkt. 274 at 7. Plaintiff asserts that, because deponents have either changed jobs or retired, the potential for their memories of the events and circumstances surrounding the claims to fade is high. Plaintiff argues an order allowing for these depositions during the pendency of Defendants’ appeal to the Supreme Court is necessary to preserve critical evidence. Additionally, Plaintiff asserts that there is a danger some evidence, in the form of electronically stored information, may be destroyed during the pendency of the appeal due to Defendants’ document retention policies.
Defendants oppose Plaintiff’s request to perform the depositions during a stay, asserting Plaintiff has failed to show she will be harmed by the Court granting a stay in full. Dkt. 272 at 6–10; Dkt. 275 at 3. In reply, Defendants also cite the ongoing COVID-19 pandemic as reason for the Court to deny Plaintiff’s request to conduct these four depositions. Dkt. 275 at 3. According to Defendants, one of the individuals to be deposed lives in Salt Lake City, and also spends some time in Ketchum, Idaho. Id. Defendants’ counsel also points to the factor that Plaintiff’s lead counsel works in San Francisco, California, a location where residents are currently under stay in place orders. Id. Defendants
ORDER GRANTING DEFENDANTS’ JOINT MOTION TO STAY – 3

Case 1:17-cv-00151-BLW Document 277 Filed 04/17/20 Page 4 of 6
assert that, “deposing these witnesses would require out of state travel and could endanger the health of counsel, the witnesses, and the public.” Id.
First, the Court will require Defendants to retain all evidence that is discoverable under the broad scope of Federal Rule of Civil Procedure 26(b)(1). Any document retention policy that would ordinarily result in the Defendants’ destruction or deletion of such evidence must be suspended until the conclusion of this lawsuit.
Second, the Court will require Defendants to continue to allow Plaintiff ongoing access to her custodial and medical records—as the case is ongoing, so is the need for Plaintiff’s access to relevant records.
Third, the Court will order this matter stayed without allowance for the four depositions Plaintiff seeks to take during the pendency of the appeal. Plaintiff argues that, because the four deponents have either changed employment and moved out of state or retired, there is somehow greater risk than usual that they will forget information. However, a change in a deponent’s personal life, absent potential for the deponent to abscond to another country, to die, or to lose the ability to remember due to a disability or generative disease, carries no greater risk of loss of evidence than that encompassed in the ordinary case of the passage of time. See Herbalife Int’l of Am. Inc. v. Ford, 2008 WL 11491587, at *2 (C.D. Cal. Mar. 12, 2008).
ORDER GRANTING DEFENDANTS’ JOINT MOTION TO STAY – 4

Case 1:17-cv-00151-BLW Document 277 Filed 04/17/20 Page 5 of 6
Plaintiff relies in part on Clinton v. Jones to support her argument that the delay in taking the depositions will result in prejudice due to potential loss of evidence. 520 U.S. 681, 707–08 (1997). In Jones, the appellate court found, and the Supreme Court later affirmed, that it was an abuse of the trial court’s discretion to issue a stay of the trial until the conclusion of President William Jefferson Clinton’s presidency. Id. The Supreme Court’s decision on the issue was published in May 1997. President Clinton’s second term of office expired in January 2001—nearly four years later. Here, Defendants have already submitted the issue to the Supreme Court for consideration. The Court and the parties will know whether the Supreme Court takes up the appeal within months, or even weeks, of this order. As such, the delay at issue is not analogous. Further, as noted by Defendants, the COVID-19 pandemic and resultant stay-at-home orders would currently prevent Plaintiff’s counsel from performing any in-person depositions at this time, and would potentially prevent deponents from being available to appear – even by way of video deposition.
Additionally, in weighing the possibility of prejudice resulting from a stay issued without ongoing discovery, the Court notes that the primary and most pressing claim in this matter has been adjudicated by this Court. See Order of Dec. 13, 2018, Dkt. 149. Finally, the stay order will not apply to or impact the Court’s enforcement of its October 2019 presurgical order. See Presurgical
ORDER GRANTING DEFENDANTS’ JOINT MOTION TO STAY – 5

Case 1:17-cv-00151-BLW Document 277 Filed 04/17/20 Page 6 of 6
Order, Dkt. 225. As the Court detailed in discussions with counsel during the February 26, 2020 status conference, the presurgical order stands. See Dkt. 2713 at 19–20. Defendants must continue to comply with the order by providing all necessary presurgical treatments while the Supreme Court considers whether to take up the appeal.
ORDER IT IS ORDERED THAT 1. Defendants’ Motion to Stay (Dkt. 272) is GRANTED. 2. Defendants must preserve all relevant evidence, including electronically stored information subject to routine document retention removal practices, during the duration of this case. 3. Defendants must continue to provide Plaintiff with presurgical treatment consistent with the Court’s October 2019 presurgical order. 1
DATED: April 17, 2020
_________________________ B. Lynn Winmill U.S. District Court Judge
1 To this end, the Court notes Defendants’ status update of April 6, 2020 regarding unavoidable delays to some presurgical treatment due to COVID-19 closures. As soon as the closures are no longer in effect, the necessarily delayed presurgical treatment must immediately recommence.
ORDER GRANTING DEFENDANTS’ JOINT MOTION TO STAY – 6

 
 Case: 19-35017, 08/23/2019, ID: 11407843, DktEntry: 96-1, Page 1 of 85

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ADREE EDMO, AKA Mason Edmo, Plaintiff-Appellee,
v.
CORIZON, INC.; SCOTT ELIASON; MURRAY YOUNG; CATHERINE WHINNERY,
Defendants-Appellants,
and
IDAHO DEPARTMENT OF CORRECTIONS; AL RAMIREZ, in his official capacity as warden of Idaho State Correctional Institution;* HENRY ATENCIO; JEFF ZMUDA; HOWARD KEITH YORDY; RICHARD CRAIG; RONA SIEGERT,
Defendants.

No. 19-35017
D.C. No. 1:17-cv-00151-
BLW

ADREE EDMO, AKA Mason Edmo, Plaintiff-Appellee,

No. 19-35019

* Al Ramirez is substituted in his official capacity for his predecessor, Howard Keith Yordy, pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure.

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v.
IDAHO DEPARTMENT OF CORRECTIONS; AL RAMIREZ, in his official capacity as warden of Idaho State Correctional Institution; HENRY ATENCIO; JEFF ZMUDA; HOWARD KEITH YORDY; RICHARD CRAIG; RONA SIEGERT,
Defendants-Appellants,
and
CORIZON, INC.; SCOTT ELIASON; MURRAY YOUNG; CATHERINE WHINNERY,
Defendants.

D.C. No. 1:17-cv-00151-
BLW
OPINION

Appeal from the United States District Court for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted May 16, 2019 San Francisco, California
Filed August 23, 2019
Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Robert S. Lasnik,** District Judge.
Per Curiam Opinion

** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation.

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SUMMARY***

Eighth Amendment / Prisoner Rights
The panel affirmed the district court’s entry of a permanent injunction in favor of Idaho state prisoner Adree Edmo, but vacated the injunction to the extent it applied to defendants Corizon, Howard Yordy, Rona Siegert, Dr. Young, Dr. Craig, and Dr. Whinnery, in their individual capacities, in Edmo’s action seeking medical treatment for gender dysphoria.
The district court concluded that Edmo had established her Eighth Amendment claim. The district court further concluded that gender confirmation surgery (“GCS”) was medically necessary for Edmo, and ordered the State to provide the surgery.
The panel credited the district court’s factual findings as logical and well-supported, and held that the responsible prison authorities were deliberately indifferent to Edmo’s gender dysphoria, in violation of the Eighth Amendment. The panel held that the record, as construed by the district court, established that Edmo had a serious medical need, that the appropriate medical treatment was GCS, and that prison authorities had not provided that treatment despite full knowledge of Edmo’s ongoing and extreme suffering and medical needs. The panel rejected the State’s position that there was a reasoned disagreement between qualified medical professionals. The panel emphasized that its

*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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analysis was individual to Edmo, and rested on the record of this case.
Addressing further aspects of the appeal, the panel rejected the State’s contention that the district court did not make the Prison Litigation Reform Act’s requisite “neednarrowness-intrusiveness” findings, causing the injunction to automatically expire and mooting the appeal. The panel held that the district court’s order, considered as a whole, made all the findings required by 18 U.S.C. § 3626(a)(1)(A), and Ninth Circuit precedent. The panel also held that the permanent injunction that the district court entered had not expired, and remained in place, albeit stayed. The panel accordingly denied the State’s motion to dismiss.
The panel held that the district court did not err in granting a permanent injunction. Specifically, the panel held, based on the district court’s factual findings, that Edmo established her Eighth Amendment claim and that she will suffer irreparable harm – in the form of ongoing mental anguish and possible physical harm – if GCS is not provided. The State did not dispute that Edmo’s gender dysphoria was a sufficiently serious medical need to trigger the State’s obligations under the Eighth Amendment. The panel held that the district court did not err in crediting the testimony of Edmo’s experts that GCS was medically necessary to treat Edmo’s gender dysphoria and that the State’s failure to provide that treatment was medically unacceptable. The panel further held that the district court did not err in discrediting the State’s experts because aspects of their opinions were illogical and unpersuasive. Also, the panel held that the record demonstrated that Dr. Eliason acted with deliberate indifference to Edmo’s serious medical needs. The panel noted that its decision was in tension with the Fifth Circuit’s decision in Gibson v. Collier, 920 F.3d 212 (5th

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Cir. 2019), and the panel rejected that decision’s categorical holding that denying GCS cannot, as a matter of law, violate the Eighth Amendment.
The panel held that the district court did not err in finding that Edmo would be irreparably harmed absent an injunction. The panel rejected the State’s contentions as to why the district court erred in this finding.
The panel next considered the State’s challenges to the scope of the injunction. The panel held that the injunction was properly entered against Dr. Eliason because he personally participated in the deprivation of Edmo’s constitutional rights. The panel also held that because Edmo may properly pursue her Eighth Amendment claim for injunctive relief against Attencio, Zmuda and Ramirez in their official capacities, they were properly included within the scope of the district court’s injunction. On remand, the district court shall amend the injunction to substitute the current warden as a party for Yordy. The panel vacated the district court’s injunction to the extent it applied to Yordy, Siegert, Dr. Young, Dr. Craig, and Dr. Whinnery in their individual capacities because the evidence in the record was insufficient to conclude that they were deliberately indifferent to Edmo’s serious medical needs. The panel vacated the injunction as to Corizon, and remanded with instructions to the district court to modify the injunction to exclude Corizon. Finally, the panel held that the injunctive relief ordered was not overbroad.
The panel considered the State’s challenges to the procedure used by the district court. The panel rejected the State’s contention that the district court erroneously converted the evidentiary hearing into a final trial on the merits without giving proper notice. The panel held that the State did receive notice, and in any event, the State had not

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shown any prejudice. The panel also rejected the State’s contention that the district court violated defendants’ Seventh Amendment right to a jury trial by converting the evidentiary hearing into a trial on the merits. The panel held that the State’s conduct waived its right to a jury trial with respect to issues common to Edmo’s request for an injunction ordering GCS and her legal claims.

COUNSEL
Brady J. Hall (argued), Special Deputy Attorney General; Lawrence G. Wasden, Attorney General; Office of the Attorney General, Boise, Idaho; Marisa S. Crecelius, Moore Elia Kraft & Hall LLP, Boise, Idaho; for DefendantsAppellants Idaho Department of Corrections, Henry Atencio, Jeff Zmuda, Howard Keith Yordy, Richard Craig, and Rona Siegert.
Dylan A. Eaton (argued), J. Kevin West, and Bryce Jensen, Parsons Behle & Latimer, Boise, Idaho, for DefendantsAppellants Corizon, Inc.; Scott Eliason; Murray Young; and Catherine Whinnery.
Lori Rifkin (argued), Hadsell Stormer & Renick LLP, Emeryville, California; Dan Stormer and Shaleen Shanbhag, Hadsell Stormer & Renick LLP, Pasadena, California; Craig Durham and Deborah Ferguson, Ferguson Durham PLLC, Boise, Idaho; Amy Whelan and Julie Wilensky, National Center for Lesbian Rights, San Francisco, California; for Plaintiff-Appellee.
David M. Shapiro, Sheila A. Bedi, and Vanessa del Valle, Roderick & Solange MacArthur Justice Center, Chicago, Illinois; Molly E. Whitman, Akin Gump Strauss Hauer &

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Feld LLP, Dallas, Texas; for Amici Curiae Andrea Armstrong, Sharon Dolovich, Betsy Ginsberg, Michael B. Mushlin, Alexander A. Reinert, Laura Rovner, and Margo Schlanger.

Molly Kafka and Richard Alan Eppink, ACLU of Idaho Foundation, Boise, Idaho; Devon A. Little and Derek Borchardt, Walden Macht & Haran LLP, New York, New York; Amy Fettig and Jennifer Wedekind, ACLU National Prison Project, Washington, D.C.; Gabriel Arkles and Rose Saxe, ACLU LGBT & HIV Project/ACLU Foundation, New York, New York; for Amici Curiae Former Corrections Officials.

Devi M. Rao and Jason T. Perkins, Jenner & Block LLP, Washington, D.C., for Amici Curiae Medical and Mental Health Professional Organizations.

Sharif E. Jacob, Ryan K. M. Wong, Kristin E. Hucek, and Patrick E. Murray, Keker Van Nest & Peters LLP, San Francisco, California, for Amicus Curiae Jody L. Herman.

Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Michael Posada, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Richard Saenz, Lambda Legal Defense & Education Fund Inc., New York, New York; A. Chinyere Ezie, Center for Constitutional Rights, New York, New York; for Amici Curiae Civil Rights & Non-Profit Organizations.

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OPINION
PER CURIAM:
The Eighth Amendment prohibits “cruel and unusual punishments.” U.S. Const. amend. VIII. “The Amendment embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . . .” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quotation omitted). Our society recognizes that prisoners “retain the essence of human dignity inherent in all persons.” Brown v. Plata, 563 U.S. 493, 510 (2011).
Consistent with the values embodied by the Eighth Amendment, for more than 40 years the Supreme Court has held that “deliberate indifference to serious medical needs” of prisoners constitutes cruel and unusual punishment. Estelle, 429 U.S. at 106. When prison authorities do not abide by their Eighth Amendment duty, “the courts have a responsibility to remedy the resulting . . . violation.” Brown, 563 U.S. at 511. We do so here.
Adree Edmo (formerly Mason Dean Edmo) is a male-tofemale transgender prisoner in the custody of the Idaho Department of Correction (“IDOC”). Edmo’s sex assigned at birth (male) differs from her gender identity (female). The incongruity causes Edmo to experience persistent distress so severe it limits her ability to function. She has twice attempted self-castration to remove her male genitalia, which cause her profound anguish.
Both sides and their medical experts agree: Edmo suffers from gender dysphoria, a serious medical condition. They also agree that the appropriate benchmark regarding treatment for gender dysphoria is the World Professional Association of Transgender Health Standards of Care for the

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Health of Transsexual, Transgender, and Gender Nonconforming People (“WPATH Standards of Care”). And the State1 does not seriously dispute that in certain circumstances, gender confirmation surgery (“GCS”) can be a medically necessary treatment for gender dysphoria. The parties’ dispute centers around whether GCS is medically necessary for Edmo—a question we analyze with deference to the district court’s factual findings.
Following four months of intensive discovery and a three-day evidentiary hearing, the district court concluded that GCS is medically necessary for Edmo and ordered the State to provide the surgery. Its ruling hinged on findings individual to Edmo’s medical condition. The ruling also rested on the finding that Edmo’s medical experts testified persuasively that GCS was medically necessary, whereas testimony from the State’s medical experts deserved little weight. In contrast to Edmo’s experts, the State’s witnesses lacked relevant experience, could not explain their deviations from generally accepted guidelines, and testified illogically and inconsistently in important ways.
The district court’s detailed factual findings were amply supported by its careful review of the extensive evidence and testimony. Indeed, they are essentially unchallenged. The appeal boils down to a disagreement about the implications of the factual findings.
Crediting, as we must, the district court’s logical, wellsupported factual findings, we hold that the responsible

1 In addition to IDOC, Edmo sued Corizon, Inc. (a private for-profit corporation that provides health care to inmates in IDOC custody) and various employees of IDOC and Corizon. The defendants briefed the case jointly, and for ease of reference we refer to them collectively as “the State.”

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prison authorities have been deliberately indifferent to Edmo’s gender dysphoria, in violation of the Eighth Amendment. The record before us, as construed by the district court, establishes that Edmo has a serious medical need, that the appropriate medical treatment is GCS, and that prison authorities have not provided that treatment despite full knowledge of Edmo’s ongoing and extreme suffering and medical needs. In so holding, we reject the State’s portrait of a reasoned disagreement between qualified medical professionals. We also emphasize that the analysis here is individual to Edmo and rests on the record in this case. We do not endeavor to project whether individuals in other cases will meet the threshold to establish an Eighth Amendment violation. The district court’s order entering injunctive relief for Edmo is affirmed, with minor modifications noted below.
Our opinion proceeds as follows. In Part I, we provide background on gender dysphoria, the standard of care, and the evidence considered and factual findings made by the district court. Part II explains why this appeal complies with the Prison Litigation Reform Act (“PLRA”) and is not moot. In Part III, we turn to the gravamen of the appeal: Edmo’s Eighth Amendment claim and showing of irreparable injury. Part IV addresses the State’s challenges to the injunction’s scope and narrows the injunction as to certain defendants. Part V rejects the State’s objections to the procedure employed by the district court. We conclude in Part VI.

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I. Background2

A. Gender Dysphoria and its Treatment

Transgender individuals have a “[g]ender identity”—a “deeply felt, inherent sense” of their gender—that does not align with their sex assigned at birth.3 Am. Psychol. Ass’n, Guidelines for Psychological Practice with Transgender and Gender Nonconforming People, 70 Am. Psychologist 832, 834 (2015). Recent estimates suggest that approximately 1.4 million transgender adults live in the United States, or 0.6 percent of the adult population. Andrew R. Flores et al., The Williams Inst., How Many Adults Identify as Transgender in the United States?, at 2 (2016), http://williamsinstitute.law.ucla.edu/wp-content/ uploads/How-Many-Adults-Identify-as-Transgender-in-theUnited-States.pdf.
Gender dysphoria4 is “[d]istress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth (and the associated gender role and/or primary and secondary sex characteristics).” World Prof’l Ass’n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender-

2 The following sections are derived from the district court’s factual findings and the record on appeal.
3 At birth, infants are classified as male or female based on visual observation of their external genitalia. This is a person’s “sex assigned at birth,” but it may not be the person’s gender identity.
4 Until recently, the medical community commonly referred to gender dysphoria as “gender identity disorder.” See Kosilek v. Spencer, 774 F.3d 63, 68 n.1 (1st Cir. 2014).

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Nonconforming People 2 (7th ed. 2011) (hereinafter “WPATH SOC”). The Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) sets forth two conditions that must be met for a person to be diagnosed with gender dysphoria.5
First, there must be “[a] marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 months’ duration, as manifested by at least two of the following”:
(1) “a marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics”;

(2) “a strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender”;

(3) “a strong desire for the primary and/or secondary sex characteristics of the other gender”;

(4) “a strong desire to be of the other gender”;

(5) “a strong desire to be treated as the other gender”; or

5 Each expert in the case used these criteria to determine whether Edmo has gender dysphoria.

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(6) “a strong conviction that one has the typical feelings and reactions of the other gender.”

Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 452 (5th ed. 2013) (hereinafter “DSM-5”). Second, the person’s condition must be associated with “clinically significant distress”—i.e., distress that impairs or severely limits the person’s ability to function in a meaningful way and has reached a threshold that requires medical or surgical intervention, or both. Id. at 453, 458. Not every transgender person has gender dysphoria, and not every gender dysphoric person has the same medical needs.
Gender dysphoria is a serious but treatable medical condition. Left untreated, however, it can lead to debilitating distress, depression, impairment of function, substance use, self-surgery to alter one’s genitals or secondary sex characteristics, self-injurious behaviors, and even suicide.
The district court found that the World Professional Association of Transgender Health Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (“WPATH Standards of Care”)6 “are the internationally recognized guidelines for the treatment of individuals with gender dysphoria.” Edmo v. Idaho Dep’t of Corr., 358 F. Supp. 3d 1103, 1111 (D. Idaho 2018). Most courts agree. See, e.g., De’lonta v. Johnson, 708 F.3d 520, 522–23 (4th Cir. 2013); Keohane v. Jones, 328 F. Supp. 3d 1288, 1294 (N.D. Fla. 2018), appeal filed,

6 The WPATH Standards of Care were formerly referred to as the “Harry Benjamin Standards of Care” and were promulgated by WPATH under its former name, the “Harry Benjamin International Gender Dysphoria Association.” Kosilek, 774 F.3d at 70 & n.3.

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No. 18-14096 (11th Cir. 2018); Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1170 (N.D. Cal.), appeal dismissed & remanded, 802 F.3d 1090 (9th Cir. 2015); Soneeya v. Spencer, 851 F. Supp. 2d 228, 231–32 (D. Mass. 2012). But see Gibson v. Collier, 920 F.3d 212, 221 (5th Cir. 2019) (“[T]he WPATH Standards of Care reflect not consensus, but merely one side in a sharply contested medical debate over [GCS].”); cf. Kosilek, 774 F.3d at 76–79 (recounting testimony questioning the WPATH Standards of Care). And many of the major medical and mental health groups in the United States—including the American Medical Association, the American Medical Student Association, the American Psychiatric Association, the American Psychological Association, the American Family Practice Association, the Endocrine Society, the National Association of Social Workers, the American Academy of Plastic Surgeons, the American College of Surgeons, Health Professionals Advancing LGBTQ Equality, the HIV Medicine Association, the Lesbian, Bisexual, Gay and Transgender Physician Assistant Caucus, and Mental Health America—recognize the WPATH Standards of Care as representing the consensus of the medical and mental health communities regarding the appropriate treatment for transgender and gender dysphoric individuals.
Each expert in this case relied on the WPATH Standards of Care in rendering an opinion. As the State acknowledged to the district court, the WPATH Standards of Care “provide the best guidance,” and “are the best standards out there.” “There are no other competing, evidence-based standards that are accepted by any nationally or internationally recognized medical professional groups.” Edmo, 358 F. Supp. 3d at 1125.

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“[B]ased on the best available science and expert professional consensus,” the WPATH Standards of Care provide “flexible clinical guidelines” “to meet the diverse health care needs of transsexual, transgender, and gender nonconforming people.” WPATH SOC at 1–2. Treatment under the WPATH Standards of Care must be individualized: “[w]hat helps one person alleviate gender dysphoria might be very different from what helps another person.” Id. at 5. “Clinical departures from the [WPATH Standards of Care] may come about because of a patient’s unique anatomic, social, or psychological situation; an experienced health professional’s evolving method of handling a common situation; a research protocol; lack of resources in various parts of the world; or the need for specific harm reduction strategies.” Id. at 2.
The WPATH Standards of Care identify the following evidence-based treatment options for individuals with gender dysphoria:
(1) “changes in gender expression and role (which may involve living part time or full time in another gender role, consistent with one’s gender identity)”;

(2) “psychotherapy (individual, couple,

family, or group) for purposes such as

exploring gender identity, role, and

expression[,] addressing the negative impact

of gender dysphoria and stigma on mental

health[,]

alleviating

internalized

transphobia[,] enhancing social and peer

support[,] improving body image[,] or

promoting resilience”;

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(3) “hormone therapy to feminize or masculinize the body”; and

(4) “surgery to change primary and/or secondary sex characteristics (e.g., breasts/chest, external and/or internal genitalia, facial features, body contouring).”

Id. at 10. The WPATH Standards of Care state that many individuals “find comfort with their gender identity, role, and expression without surgery.” Id. at 54. For others, however, “surgery is essential and medically necessary to alleviate their gender dysphoria.” Id. That group cannot achieve “relief from gender dysphoria . . . without modification of their primary and/or secondary sex characteristics to establish greater congruence with their gender identity.” Id. at 55; see also Jae Sevelius & Valerie Jenness, Challenges and Opportunities for GenderAffirming Healthcare for Transgender Women in Prison, 13 Int’l J. Prisoner Health 32, 36 (2017) (“Negative outcomes such as genital self-harm, including autocastration and/or autopenectomy, can arise when gender-affirming surgeries are delayed or denied.”); George R. Brown & Everett McDuffie, Health Care Policies Addressing Transgender Inmates in Prison Systems in the United States, 15 J. Corr. Health Care 280, 287–88 (2009) (describing the authors’ “firsthand knowledge of completed autocastration and/or autopenectomy in six facilities in four states”).
The weight of opinion in the medical and mental health communities agrees that GCS is safe, effective, and medically necessary in appropriate circumstances. See, e.g., U.S. Dep’t of Health & Human Servs., No. A-13-87, Decision No. 2576, (Dep’t Appeals Bd. May 30, 2014); Randi Ettner, et al., Principles of Transgender Medicine and

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Surgery 109–11 (2d ed. 2016); Jordan D. Frey, et al., A Historical Review of Gender-Affirming Medicine: Focus on Genital Reconstruction Surgery, 14 J. Sexual Med. 991, 991 (2017); Cynthia S. Osborne & Anne A. Lawrence, Male Prison Inmates With Gender Dysphoria: When Is Sex Reassignment Surgery Appropriate?, 45 Archives of Sexual Behav. 1649, 1651–53 (2016); see also De’lonta, 708 F.3d at 523 (“Pursuant to the Standards of Care, after at least one year of hormone therapy and living in the patient’s identified gender role, sex reassignment surgery may be necessary for some individuals for whom serious symptoms persist. In these cases, the surgery is not considered experimental or cosmetic; it is an accepted, effective, medically indicated treatment for [gender dysphoria].”).
The WPATH criteria for genital reconstruction surgery in male-to-female patients include the following:
(1) “persistent, well documented gender dysphoria”;

(2) “capacity to make a fully informed decision and to consent for treatment”;

(3) “age of majority in a given country”;

(4) “if significant medical or mental health concerns are present, they must be well controlled”;

(5) “12 continuous months of hormone therapy as appropriate to the patient’s gender goals”; and

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(6) “12 continuous months of living in a gender role that is congruent with their gender identity.”

WPATH SOC at 60. The parties’ dispute focuses on whether Edmo satisfied the fourth and sixth criteria.
With respect to the fourth criterion, the WPATH Standards of Care provide that coexisting medical or mental health concerns unrelated to the person’s gender dysphoria do not necessarily preclude surgery. Id. at 25. But those concerns need to be managed prior to, or concurrent with, treatment of a person’s gender dysphoria. Id. Coexisting medical or mental health issues resulting from a person’s gender dysphoria are not an impediment under the fourth criterion. It may be difficult to determine, however, whether mental or medical health concerns result from the gender dysphoria or are unrelated.
The WPATH Standards of Care explain that the sixth criterion—living for 12 months in an identity-congruent role—is intended to ensure that the person experiences the full range of “different life experiences and events that may occur throughout the year.” Id. at 61. During that time, the patient should present consistently in her desired gender role. Id.
Scientific studies show that the regret rate for individuals who undergo GCS is low, in the range of one to two percent. See, e.g., Osborne & Lawrence, Male Prison Inmates With Gender Dysphoria, 45 Archives of Sexual Behav. at 1660; William Byne, et al., Report of the American Psychiatric Association Task Force on Treatment of Gender Identity Disorder, 41 Archives of Sexual Behav. 759, 780–81 (2012). The district court found, and the State does not dispute on appeal, that Edmo does not have any of the risk

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factors that would make her likely to regret GCS. See Edmo, 358 F. Supp. 3d at 1121.
The WPATH Standards of Care apply equally to all individuals “irrespective of their housing situation” and explicitly state that health care for transgender individuals “living in an institutional environment should mirror that which would be available to them if they were living in a non-institutional setting within the same community.” WPATH SOC at 67. The next update to the WPATH Standards of Care will likewise apply equally to incarcerated persons. The National Commission on Correctional Health Care (“NCCHC”), a leading professional organization in health care delivery in the correctional context, endorses the WPATH Standards of Care as the accepted standards for the treatment of transgender prisoners.
In summary, the broad medical consensus in the area of transgender health care requires providers to individually diagnose, assess, and treat individuals’ gender dysphoria, including for those individuals in institutionalized environments. Treatment can and should include GCS when medically necessary. Failure to follow an appropriate treatment plan can expose transgender individuals to a serious risk of psychological and physical harm. The State does not dispute these points; it contends that GCS is not medically necessary for Edmo.
B. Edmo’s Treatment
Edmo is a transgender woman in IDOC custody. Her sex assigned at birth was male, but she identifies as female. In her words, “my brain typically operates female, even though my body hasn’t corresponded with my brain.”

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Edmo has been incarcerated since pleading guilty in 2012 to sexual abuse of a 15-year-old male at a house party. Edmo was 21 years old at the time of the criminal offense. Edmo is currently incarcerated at the Idaho State Correctional Institution (“ISCI”). At the time of the evidentiary hearing, she was 30 years old and due to be released from prison in 2021.
Edmo has viewed herself as female since age 5 or 6. She struggled with her gender identity as a child and teenager, presenting herself intermittently as female, but around age 20 or 21 she began living fulltime as a woman.
Although she identified as female from an early age, Edmo first learned the term “gender dysphoria” and the contours of that diagnosis around the time of her incarceration. Shortly thereafter, Corizon psychiatrist Dr. Scott Eliason diagnosed her with “gender identity disorder,” now referred to as gender dysphoria. Corizon psychologist Dr. Claudia Lake confirmed that diagnosis.
While incarcerated, Edmo has changed her legal name to Adree Edmo and the sex on her birth certificate to “female” to affirm her gender identity. Throughout her incarceration, Edmo has consistently presented as female, despite receiving many disciplinary offense reports for doing so. For example, when able to do so, Edmo has worn her hair in feminine hairstyles and worn makeup, for which she has received multiple disciplinary offense reports.7 Medical providers have documented Edmo’s feminine presentation since 2012.

7 Before the evidentiary hearing, Edmo tried to receive access to female commissary items, such as women’s underwear. Most of her requests were denied. On the eve of the evidentiary hearing, IDOC

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Neither the parties nor their experts dispute that Edmo suffers from gender dysphoria. That dysphoria causes Edmo to feel “depressed,” “disgusting,” “tormented,” and “hopeless.”
To alleviate Edmo’s gender dysphoria, prison officials have, since 2012, provided hormone therapy. Edmo has followed and complied with her hormone therapy regimen, which helps alleviate her gender dysphoria to some extent. The hormones “clear[] [her] mind” and have resulted in breast growth, body fat redistribution, and changes in her skin. Today, Edmo is hormonally confirmed, which means that she has the hormones and secondary sex characteristics (characteristics, such as women’s breasts, that appear during puberty but are not part of the reproductive system) of an adult female. Edmo has gained the maximum physical changes associated with hormone treatment.
Hormone therapy has not completely alleviated Edmo’s gender dysphoria. Edmo continues to experience significant distress related to gender incongruence. Much of that distress is caused by her male genitalia. Edmo testified that she feels “depressed, embarrassed, [and] disgusted” by her male genitalia and that this is an “everyday reoccurring thought.” Her medical records confirm her disgust, noting repeated efforts by Edmo to purchase underwear to keep, in Edmo’s words, her “disgusting penis” out of sight.
In addition to her gender dysphoria, Edmo suffers from major depressive disorder with anxiety and drug and alcohol addiction, although her addiction has been in remission

amended its policy concerning the treatment of gender dysphoric prisoners to increase transgender women’s access to female commissary items.

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while incarcerated. Edmo has taken her prescribed medications for depression and anxiety. Prison officials have also provided Edmo mental health treatment to help her work through her serious underlying mental health issues and a pre-incarceration history of trauma, abuse, and suicide attempts. Edmo sees her psychiatrist when scheduled. But Edmo does not see her treating clinician, Krina Stewart, because Edmo does not believe Stewart is qualified to treat her gender dysphoria. Edmo has attended group therapy sessions inconsistently.
In September 2015, Edmo attempted to castrate herself for the first time using a disposable razor blade.8 Before doing so, she left a note to alert officials that she was not “trying to commit suicide,” and was instead “only trying to help [her]self.” Edmo did not complete the castration, though she continued to report thoughts of self-castration in the following months.
On April 20, 2016, Dr. Eliason evaluated Edmo for GCS. At the time, IDOC’s policy concerning the treatment of gender dysphoric prisoners provided that GCS “will not be considered for individuals within [IDOC], unless determined medically necessary by” the treating physician.9 Corizon’s policy does not mention GCS.
In his evaluation, Dr. Eliason noted that Edmo reported she was “doing alright.” He also noted that Edmo had been on hormone replacement therapy for the last year and a half, but that she felt she needed more. He reported that Edmo
8 She had previously reported thoughts of self-castration to clinicians.
9 IDOC revised its policy shortly before the evidentiary hearing, but its revised policy contains functionally identical language.

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had stated that hormone replacement therapy helped alleviate her gender dysphoria, but she remained frustrated with her male anatomy.
Dr. Eliason indicated that Edmo appeared feminine in demeanor and interaction style. He also indicated that Edmo had previously attempted to “mutilate her genitalia” because of the severity of her distress. Dr. Eliason later testified that, at the time of his evaluation, he felt that Edmo’s gender dysphoria “had risen to another level,” as evidenced by her self-castration attempt.
But Dr. Eliason also flagged that he had spoken to prison staff about Edmo’s behavior and they explained it was “notable for animated affect and no observed distress.” He similarly noted that he had personally observed Edmo and did not see significant dysphoria; instead, she “looked pleasant and had a good mood.”
As to GCS, Dr. Eliason explained in his notes that while medical necessity for GCS is “not very well defined and is constantly shifting,” in his view, GCS would be medically necessary in at least three situations: (1) “congenital malformations or ambiguous genitalia,” (2) “severe and devastating dysphoria that is primarily due to genitals,” or (3) “some type of medical problem in which endogenous sexual hormones were causing severe physiological damage.” Dr. Eliason concluded that Edmo “does not meet any of those . . . criteria” and, for that reason, GCS is not medically necessary for her.
Dr. Eliason instead concluded that hormone therapy and supportive counseling suffice to treat Edmo’s gender dysphoria for the time being, despite recognizing that Edmo had attempted self-castration on that regimen. Dr. Eliason

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indicated that he would continue to monitor and assess Edmo.
Dr. Eliason staffed Edmo’s evaluation with Dr. Jeremy Stoddart, Dr. Murray Young, and Jeremy Clark, who all agreed with his assessment. They did not observe Edmo; rather, they agreed with Dr. Eliason’s recommended treatment as he presented it to them. The record is sparse on the qualifications of Dr. Stoddart and Dr. Young, but Clark has never personally treated anyone with gender dysphoria and was not qualified under IDOC policy to assess whether GCS would be appropriate for Edmo.
Dr. Eliason also discussed his evaluation with IDOC’s Management and Treatment Committee (“MTC”), a multidisciplinary team composed of medical providers, mental health clinicians, IDOC’s Chief Psychologist, and prison leadership. The MTC meets periodically to evaluate and address the unique medical, mental health, and housing needs of prisoners with gender dysphoria. The committee “does not make any individual treatment decisions regarding” treatment for inmates with gender dysphoria. “Those determinations are made by the individual clinicians or the medical staff employed by Corizon.” The MTC agreed with Dr. Eliason’s assessment.
Although not mentioned in his April 20, 2016 notes, Dr. Eliason testified at the evidentiary hearing that he considered the WPATH Standards of Care when determining Edmo’s treatment. Citing those standards, Dr. Eliason testified that he did not believe GCS was appropriate for two reasons: (1) because mental health issues separate from Edmo’s gender dysphoria were not “fully in adequate control” and (2) because Edmo had not lived in her identified gender role for 12 months outside of prison. He explained that Edmo needed to experience

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“living as a woman” around “her real social network – her family and friends on the outside” so that she could “determine whether or not she felt like that was her real identity.”
Edmo was never evaluated for GCS again, but the MTC considered her gender dysphoria and treatment plan during later meetings. The MTC continues to believe that GCS is not medically necessary or appropriate for Edmo.
In December 2016, Edmo tried to castrate herself for the second time. A medical note from the incident reports that Edmo said she no longer wanted her testicles. Edmo reported to medical providers that she was “feeling angry/frustrated that [she] was not receiving the help desired related to [her] gender dysphoria. Inmate Edmo’s actions were reported as a method to stop/cease testosterone production in Edmo’s body. Edmo denied suicidal ideation . . . .”
Edmo’s second attempt was more successful than the first. She was able to open her testicle sac with a razor blade and remove one testicle. She abandoned her attempt, however, when there was too much blood to continue. She then sought medical assistance and was transported to a hospital, where her testicle was repaired. Edmo was receiving hormone therapy both times she attempted selfcastration.
Edmo testified that she was disappointed in herself for coming so close but failing to complete her self-castration attempts. She also testified that she continues to actively think about self-castration. To avoid acting on those thoughts and impulses, Edmo “self-medicat[es]” by cutting her arms with a razor. She says that the physical pain helps

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to ease the “emotional torment” and mental anguish her gender dysphoria causes her.
Edmo further testified that she expects GCS to help alleviate some of her gender dysphoria. In particular, she testified that she expects GCS to help her avoid having “as much depression about myself and my physical body. I don’t think I will be so anxious that people are always knowing I’m different . . . .” Edmo recognizes, however, that GCS “is not a fix-all”: “[i]t’s not a magic operation. . . . I’m still going to have to face the same stressors that we all face in everyday life . . . .”
C. Initiation of this Action
Edmo filed a pro se complaint on April 6, 2017. She also moved for a temporary restraining order, a preliminary injunction, and the appointment of counsel.
Edmo’s motion for appointment of counsel was granted in part, and counsel for Edmo appeared in June and August 2017. Counsel withdrew Edmo’s pro se motion for preliminary injunction shortly thereafter.
On September 1, 2017, Edmo filed an amended complaint asserting claims under 42 U.S.C. § 1983, the Eighth Amendment, the Fourteenth Amendment, the Americans with Disabilities Act, the Affordable Care Act, and for common law negligence. She named as defendants IDOC, Henry Atencio (Director of IDOC), Jeff Zmuda (Deputy Director of IDOC), Howard Keith Yordy (former Warden of ISCI), Dr. Richard Craig (Chief Psychologist at ISCI), Rona Siegert (Health Services Director at ISCI), Corizon, Dr. Eliason, Dr. Young, and Dr. Catherine Whinnery (Corizon employee).

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Through counsel, Edmo filed a renewed motion for a preliminary injunction on June 1, 2018. Among other relief, Edmo sought an order requiring the State to provide her with a referral to a qualified surgeon and access to GCS.
The State moved to extend the time to respond to Edmo’s motion. After a status conference, the district court set an evidentiary hearing for October 10, 11, and 12, 2018. The court permitted the parties to undertake four months of extensive fact and expert discovery in preparation for the hearing.
D. The Evidentiary Hearing
At the evidentiary hearing, each side had eight hours to present its case. The district court heard live testimony from seven witnesses over three days. It also considered thousands of pages of exhibits, including Edmo’s medical records. With the parties’ agreement, the court also permitted the State to submit declarations in lieu of live testimony and permitted Edmo to impeach the declarations with deposition testimony.
At the outset of the hearing, the district court noted that “[w]e’re here on a hearing for a temporary injunction,” but it explained that “it’s hard for me to envision this hearing being anything but a hearing on a final injunction[,] at least as to” the injunctive relief ordering GCS. The court stated that it was unsure whether that made a difference, and it asked the parties to address at some point whether the hearing was for a preliminary injunction or a permanent injunction. Notably, the State did not do so.
The district court heard testimony from three percipient witnesses: Edmo, Dr. Eliason (the Corizon physician), and Jeremy Clark (an IDOC clinician who did not meet IDOC’s

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criteria to assess Edmo for GCS). Their relevant testimony is largely recounted above.
It also heard testimony from four expert witnesses, two each for Edmo and the State. Dr. Randi Ettner, Ph.D. in psychology, testified first for Edmo. Dr. Ettner is one of the authors of the current (seventh) version of the WPATH Standards of Care. She has been a WPATH member since 1993 and chairs its Institutionalized Persons Committee. Dr. Ettner has authored or edited many peer-reviewed publications on the treatment of gender dysphoria and transgender health care more broadly, including the leading textbook used in medical schools on the subject. She also trains medical and mental health providers on treating people with gender dysphoria. Dr. Ettner has been retained as an expert witness on gender dysphoria and its treatment in many court cases, and she has been appointed as an independent expert by one federal court to evaluate an incarcerated person for GCS.
Dr. Ettner has evaluated, diagnosed, and treated between 2,500 and 3,000 individuals with gender dysphoria. She has referred about 300 people for GCS. She has also refused to recommend surgery for some patients who have requested it. She believes that not everyone who has gender dysphoria needs GCS. Dr. Ettner also has “[e]xtensive experience” treating and providing post-operative care for patients who have undergone GCS.
Dr. Ettner has assessed approximately 30 incarcerated individuals with gender dysphoria for GCS and other medical care, but she has not treated incarcerated patients. She has not worked in a prison and she is not a Certified Correctional Healthcare Professional.

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Based on her evaluation of Edmo and a review of Edmo’s medical records, Dr. Ettner diagnosed Edmo with gender dysphoria, depressive disorder, anxiety, and suicidal ideation. In Dr. Ettner’s opinion, GCS is medically necessary for Edmo and should be immediately performed. She explained that most patients with gender dysphoria do not require GCS, but Edmo requires it because hormone therapy has been inadequate for her and Edmo has attempted to remove her own testicles. Dr. Ettner further explained that GCS would give Edmo congruent genitalia, eliminating the severe distress Edmo experiences due to her male anatomy.
Dr. Ettner further opined that Edmo meets the WPATH criteria for GCS. She explained that Edmo has “persistent and well-documented long-standing gender dysphoria”; Edmo “has no thought disorders and no impaired reality testing”; Edmo is the age of majority in this country; although Edmo has depression and anxiety, those conditions do not “impair her ability to undergo surgery” because they are “as controlled as [they] can be”; Edmo has had six years of hormone therapy; and Edmo has lived for more than one year “as a woman to the best of her ability in a male prison.”
More specifically, as to the fourth criterion, Dr. Ettner opined that Edmo does not have mental health concerns that would preclude GCS. She explained that Edmo’s depression and anxiety are as “controlled as can be” because Edmo “is taking the maximum amount of medication that controls depression.” Dr. Ettner noted that Edmo has complied with taking her prescribed medications and that psychotherapy is not “a precondition for surgery” under the WPATH Standards of Care. She also flagged that Edmo has the capacity to comply with her postsurgical treatment, as evidenced by her compliance with her hormone therapy to date.

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As to the clinical significance of Edmo’s self-castration attempts and cutting behaviors, Dr. Ettner explained that neither behavior indicates that Edmo has inadequately controlled mental health concerns. Rather, those behaviors indicate “the need for treatment for gender dysphoria.” Dr. Ettner explained that
when an individual who is not psychotic or delusional attempts what we call surgical self-treatment – because we don’t regard removal of the testicles or attempted removal of the testicles as either mutilation or selfharm – we regard it as an intentional attempt to remove the target organ that produces testosterone, which, in fact, is the cure for gender dysphoria.

In Dr. Ettner’s opinion, Edmo’s depression and anxiety “will be attenuated post surgery.”
Dr. Ettner opined that Edmo satisfies the sixth criterion because she has lived “as a woman to the best of her ability in a male prison.” Dr. Ettner based her opinion on Edmo’s “appearance . . . , her disciplinary records, which indicated that she had attempted to wear her hair in a feminine hairstyle and to wear makeup even though that was against the rules and she was – received some sort of disciplinary action for that, and her – the way that she was receiving female undergarments and had developed the stigma of femininity, the secondary sex characteristics, breast development, et cetera.”
Dr. Ettner opined that if Edmo does not receive GCS, “[t]he risks would be, as typical in inadequately treated or untreated gender dysphoria, either surgical self-treatment, emotional decompensation, or suicide.” Dr. Ettner

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explained that Edmo “is at particular risk of suicide given that she has a high degree of suicide ideation.” If, on the other hand, Edmo receives surgery, Dr. Ettner opined that
[i]t would eliminate the gender dysphoria. It would provide a level of wellbeing that she hasn’t had previously. It would eliminate 80 percent of the testosterone in her body, necessitating a lower dose of hormones going forward, which would be particularly helpful given that she has elevated liver enzymes. And it would, I believe, eliminate much of the depression and the attendant symptoms that she is experiencing.

Dr. Ryan Gorton, M.D., also testified for Edmo. Dr. Gorton is an emergency medicine physician. He also works pro bono at a clinic serving uninsured patients or those with Medicare or Medicaid. Many of those patients have mental health conditions or have been in prison. He has published peer-reviewed articles on the treatment of gender dysphoria, and he has been qualified as an expert witness in cases involving transgender health care. Dr. Gorton also provides training on transgender health care issues to many groups, is a member of WPATH, and serves on WPATH’s Transgender Medicine and Research Committee and its Institutionalized Persons Committee.
Dr. Gorton has been the primary care physician for about 400 patients with gender dysphoria. At the time of the evidentiary hearing, Dr. Gorton was treating approximately 100 patients with gender dysphoria. Dr. Gorton has assessed patients for gender dysphoria, initiated and monitored hormone treatment, referred patients for mental health treatment, and determined the appropriateness of GCS. At

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the time of the evidentiary hearing, Dr. Gorton was providing follow-up care for about 30 patients who had vaginoplasty. Dr. Gorton has no experience treating transgender inmates and is not a Certified Correctional Healthcare Professional.
Based on his review of Edmo’s medical records and his in-person evaluation of Edmo, Dr. Gorton opined that GCS is medically necessary for Edmo and that she meets the WPATH criteria for GCS. He explained that Edmo has “persistent well-documented gender dysphoria,” as shown in her prison medical records; she has the capacity “to make a fully informed decision and to consent for treatment” because “she didn’t seem at all impaired in her decisionmaking capacity”; she is the age of majority; she has depression and anxiety, “but they are not to a level that would preclude her getting [GCS]”; she had 12 consecutive months of hormone therapy; and she has been living in her “target gender role . . . despite an environment that’s very hostile to that and some negative consequences that she has experienced because of that.”
Dr. Gorton further opined that if Edmo “is not provided surgery, there is a very substantial chance she will try to attempt self-surgery again. And that’s especially worrisome given her attempts have been progressive. . . . So I think she might be successful” on her next attempt. He predicted that there is little chance that Edmo’s gender dysphoria will improve without surgery. Conversely, Dr. Gorton anticipated that Edmo is unlikely to regret surgery because “her gender dysphoria is very genital-focused” and regret rates among GCS patients are very low.
Dr. Gorton also opined that Edmo’s self-castration attempts demonstrate “that she has severe genital-focused gender dysphoria and that she is not getting the medically

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necessary treatment to alleviate that.” He elaborated that Edmo’s depression and anxiety are not driving Edmo’s selfcastration attempts: “there [are] a lot of people with depression and anxiety who don’t remove their testicles.”
Finally, Dr. Gorton criticized Dr. Eliason’s evaluation of Edmo. He explained that he disagreed with Dr. Eliason’s conclusion that Edmo does not need GCS and he also disagreed with the three “criteria” Dr. Eliason gave for when GCS would be necessary. Dr. Gorton criticized Dr. Eliason’s first criterion—that GCS could be needed where there is “congenital malformation or ambiguous genitalia”— because that situation “isn’t even germane to transgender people”; rather, it relates to “people with intersex conditions.” As to the second criterion—that GCS could be needed when a patient is suffering from “severe and devastating gender dysphoria that is primarily due to genitals”—Dr. Gorton pointed out that the WPATH Standards of Care for surgery require only “clear and significant dysphoria.” And even applying Dr. Eliason’s higher bar, Dr. Gorton explained that Edmo would still qualify for GCS because she has twice attempted selfcastration, demonstrating “severe genital-focused dysphoria.” Finally, Dr. Gorton characterized Dr. Eliason’s third criterion—that GCS could be needed in situations when “endogenous sexual hormones were causing severe physiological damage”—as “bizarre.” Dr. Gorton could not conjure “a clinical circumstance where that would be the case that your hormones that your body produces are attacking you . . . . I just don’t understand what [Dr. Eliason] is talking about there.”
Dr. Keelin Garvey, M.D., testified for the State. Dr. Garvey is a psychiatrist and Certified Correctional Healthcare Professional. As the former Chief Psychiatrist of

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the Massachusetts Department of Corrections, Dr. Garvey chaired the Gender Dysphoria Treatment Committee. She directly treated a “couple of patients” with gender dysphoria earlier in her career as Deputy Medical Director, but she has not done so in recent years. Prior to evaluating Edmo, Dr. Garvey had never evaluated a patient in person to determine whether that person needed GCS. Dr. Garvey has never recommended a patient for GCS, and she has not done follow-up care with a person who has received GCS.
Based on her evaluation of Edmo and a review of Edmo’s medical records, Dr. Garvey diagnosed Edmo with gender dysphoria, major depressive disorder, alcohol use disorder, stimulant use disorder, and opioid use disorder. She explained that the latter three are in remission.
Relying on the WPATH Standards of Care, Dr. Garvey opined that GCS is not medically necessary for Edmo.10 Dr. Garvey first explained that Edmo does not meet the first WPATH Standards of Care criterion—“persistent, well documented gender dysphoria”—because of a lack of evidence in pre-incarceration medical records that Edmo presented as female before her time in prison. Dr. Garvey acknowledged, however, that Edmo has been presenting as female since 2012 and that she has been diagnosed with gender dysphoria since that time.
Dr. Garvey then explained that Edmo does not meet the fourth criterion—“medical/mental health concerns must be well controlled”—because Edmo “is actively self-injuring.” Dr. Garvey elaborated that “self-injury in any form is never

10 Dr. Garvey testified that she relies on the WPATH Standards of Care and the NCCHC guidelines adopting those standards when treating inmates with gender dysphoria.

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considered a healthy or productive coping mechanism” and that she would like to see Edmo “develop further coping skills that she would be able to use following surgery so that she is not engaging in self-injury after surgery.” Dr. Garvey’s concern is that GCS is a “stressful undertaking” and Edmo lacks “effective coping strategies” to deal with the stress.
Finally, Dr. Garvey testified that Edmo does not meet the sixth criterion—“12 continuous months of living in a gender role that is congruent with gender identity”—because Edmo has not presented as female outside of prison and “there [are] challenges to using her time in a men’s prison as this reallife experience because it doesn’t offer her the opportunity to actually experience all those things she is going to go through on the outside.”
Dr. Joel Andrade, Ph.D. in social work, also testified for the State. He is a licensed clinical social worker and is a Certified Correctional Healthcare Professional with an emphasis in mental health. Dr. Andrade has over a decade of experience providing and supervising the provision of correctional mental health care, including directing and overseeing the treatment of inmates diagnosed with gender dysphoria in the custody of the Massachusetts Department of Corrections in his roles as clinical director, chair of the Gender Dysphoria Supervision Group, and member of the Gender Dysphoria Treatment Committee.
As a member of the Gender Dysphoria Treatment Committee, Dr. Andrade recommended GCS for two inmates. But the recommendations were contingent on the inmates living in a women’s prison for approximately 12 months before the surgery. The Massachusetts Department of Corrections, like IDOC, houses prisoners

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according to their genitals, so the inmates had not been moved (nor had their surgery occurred).
Dr. Andrade has never directly treated patients with gender dysphoria, nor has he been a treating clinician for a patient who has had GCS. His “experience with gender dysphoria comes almost exclusively from [his] participation on the Massachusetts Department of Corrections[’] Gender Dysphoria Treatment Committee and Supervision Group.” Dr. Andrade did not qualify, under the IDOC gender dysphoria policy in effect at the time of his assessment of Edmo, to assess a person for GCS because he is neither a psychologist nor a physician.
Based on his evaluation of Edmo and a review of her medical records, Dr. Andrade diagnosed Edmo with “major depressive disorder, recurrent, in partial remission,” “generalized anxiety disorder,” “alcohol use disorder, severe,” and gender dysphoria. Dr. Andrade also diagnosed Edmo with borderline personality disorder. The district court did not credit this diagnosis, however, because no other person (including the State’s other expert, Dr. Garvey) has ever diagnosed Edmo with borderline personality disorder and Dr. Andrade was unable to identify his criteria for this diagnosis. Edmo, 358 F. Supp. 3d at 1120. The record amply supports the district court’s finding in this respect.
Dr. Andrade opined that Edmo does not meet the WPATH criteria for GCS. He explained that, based on his review of Edmo’s pre-incarceration records, Edmo did not present as female or discuss her gender dysphoria before incarceration. Dr. Andrade testified that he would like to see Edmo live as female outside of a correctional setting before receiving GCS, or, at the least, live in a women’s prison first. IDOC, however, houses prisoners according to their genitals. Dr. Andrade also explained that Edmo needs to

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work through some of her trauma, particularly sexual abuse that she suffered, and other mental health concerns before receiving surgery. Dr. Andrade opined that Edmo’s mental health issues will not be cured by GCS.
At the close of the hearing, the district court reiterated that it was unsure “how we can hear [Edmo’s request for GCS] on a preliminary injunction. . . . [I]f I order it, then it’s done.” The court further suggested that the request for GCS could “only be resolved in a final hearing” and noted that it had, in effect, “treated this hearing as [a] final hearing on the issue.”
The court, as it had done at the outset of the hearing, asked the parties to address whether the hearing was for a preliminary or permanent injunction. In response, Edmo contended that the court could order GCS in a preliminary injunction. The State did not address the court’s question. It instead contended that the standard for a mandatory injunction—which can be preliminary or permanent— should apply.
E. The District Court’s Decision
The district court rendered its decision on December 13, 2018. After recounting the evidence and making extensive factual findings, the district court began its analysis by noting that it was unsure whether the standard for a preliminary injunction or the standard for a permanent injunction applied. The court noted that “the nature of the relief requested in this case, coupled with the extensive evidence presented by the parties over a 3-day evidentiary hearing, [may have] effectively converted these proceedings into a final trial on the merits of the plaintiff’s request for permanent injunctive relief.” Edmo, 358 F. Supp. 3d at 1122 n.1. It also indicated that “both parties appear to have treated

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the evidentiary hearing” as a final trial on the merits. Id. The district court explained that the difference was immaterial, however, because Edmo was entitled to relief under either standard. Id.
On the merits, the district court concluded that Edmo had established her Eighth Amendment claim. The district court first held that Edmo suffers from gender dysphoria, which is undisputedly “a serious medical condition.” Id. at 1124.
It then concluded that GCS is medically necessary to treat Edmo’s gender dysphoria. See id. at 1124–26. In a carefully considered, 45-page opinion, the district court specifically found “credible the testimony of Plaintiff’s experts Drs. Ettner and Gorton, who have extensive personal experience treating individuals with gender dysphoria both before and after receiving gender confirmation surgery,” and who opined that GCS was medically necessary. Id. at 1125. The court rejected the contrary opinions of the State’s experts because “neither Dr. Garvey nor Dr. Andrade has any direct experience with patients receiving gender confirmation surgery or assessing patients for the medical necessity of gender confirmation surgery,” and neither of the State’s experts had meaningful “experience treating patients with gender dysphoria other than assessing them for the existence of the condition.” Id. The district court also noted that the State’s “experts appear to misrepresent the WPATH Standards of Care by concluding that Ms. Edmo, despite presenting as female since her incarceration in 2012, cannot satisfy the WPATH criteria because she has not presented as female outside of the prison setting.” Id. As the district court noted, “there is no requirement in the WPATH Standards of Care that a patient live for twelve months in his or her gender role outside of prison before becoming eligible for” GCS. Id. (quotation omitted).

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Finally, the district court explained that the State was deliberately indifferent to Edmo’s gender dysphoria because it “fail[ed] to provide her with available treatment that is generally accepted in the field as safe and effective, despite her actual harm and ongoing risk of future harm including self-castration attempts, cutting, and suicidal ideation.” Id. at 1126–27. The district court also stated that the evidence “suggest[ed] that Ms. Edmo has not been provided gender confirmation surgery because Corizon and IDOC have a de facto policy or practice of refusing this treatment for gender dysphoria to prisoners,” which amounts to deliberate indifference. Id. at 1127.
After analyzing the merits, the district court concluded that Edmo satisfied the other prerequisites to injunctive relief. Id. at 1127–28. The district court found that, given Edmo’s continuing emotional distress and self-castration attempts, “Edmo is at serious risk of life-threatening selfharm” if she does not receive GCS. Id. at 1128. The State, on the other hand, had not shown that it would be harmed if ordered to provide GCS, so the equities favored Edmo. Id.
Having concluded that Edmo was entitled to an injunction, the court ordered the State “to provide Plaintiff with adequate medical care, including gender confirmation surgery.” Id. at 1129. It ordered the State to “take all actions reasonably necessary to provide Ms. Edmo gender confirmation surgery as promptly as possible and no later than six months from the date of this order.” Id.
F. Appellate Proceedings
The State filed timely notices of appeal on January 9, 2019. It also asked the district court to stay its order pending appeal. The district court denied the State’s motion on March 4.

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The State then filed in this court a motion to stay pending appeal. A motions panel granted that motion. Edmo subsequently moved to amend the stay to allow her to undergo a previously scheduled pre-surgery consultation. The motions panel granted that motion and amended the stay.
On April 3, the State filed an “urgent motion” to dismiss this appeal as moot. We indicated on April 5 that our court would consider that motion with the merits, not on an urgent basis.
After hearing oral argument on May 16, we ordered a limited remand to the district court to clarify three points. Relevant here, we asked the district court to clarify whether it granted Edmo a permanent injunction in its December 13, 2018 order. The district court clarified that it “granted permanent injunctive relief.” Edmo v. Idaho Dep’t of Corr., No. 1:17-CV-00151-BLW, 2019 WL 2319527, at *2 (D. Idaho May 31, 2019). We also asked the district court to clarify whether it had concluded that Edmo had succeeded on the merits of her Eighth Amendment claim. The district court responded that it had. Id.
Having received the district court’s response to our limited remand order, we proceed to the issues on appeal. The State challenges the district court’s grant of injunctive relief to Edmo on multiple grounds. It contends that this appeal is moot because the injunction did not comply with the PLRA and has, for that reason, automatically expired. It contends that the decision not to provide GCS to Edmo reflects a difference of prudent medical opinion and cannot support an Eighth Amendment claim. It contends that Edmo will not be irreparably harmed absent an injunction. It contends that the injunction is overbroad. Finally, it contends that, to the extent the district court converted the

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evidentiary hearing into a final trial on the merits of Edmo’s request for GCS, it was provided inadequate notice and the court violated its right to a jury trial.
II. Mootness
“We first address, as we must, the question of mootness . . . .” Shell Offshore Inc. v. Greenpeace, Inc., 815 F.3d 623, 628 (9th Cir. 2016). An appeal is moot “[w]hen events change such that the appellate court can no longer grant ‘any effectual relief whatever to the prevailing party.’” Id. (quoting City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)). In those circumstances, we “lack[] jurisdiction and must dismiss the appeal.” Id.
The State contends that the injunction does not comply with provisions of the PLRA and, for that reason, has automatically expired under the terms of the statute. Relevant here, the PLRA provides that a
court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.

18 U.S.C. § 3626(a)(1)(A). Courts often refer to this provision as the “need-narrowness-intrusiveness” inquiry. Graves v. Arpaio, 623 F.3d 1043, 1048 n.1 (9th Cir. 2010) (per curiam) (quoting Pierce v. County of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008)). The PLRA further provides that

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any “[p]reliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required under subsection (a)(1) [quoted above] for the entry of prospective relief and makes the order final before the expiration of the 90-day period.” 18 U.S.C. § 3626(a)(2).
The State contends that the district court did not make the PLRA’s requisite need-narrowness-intrusiveness findings or make its order final within 90 days, causing the injunction to expire under 18 U.S.C. § 3626(a)(2). Generally, the expiration of an injunction challenged on appeal moots the appeal. See Kitlutsisti v. ARCO Alaska, Inc., 782 F.2d 800, 801 (9th Cir. 1986); see also United States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1228–29 (11th Cir. 2015). The State asserts separate, albeit overlapping, contentions in their motion to dismiss this appeal and in their briefing. We reject those arguments.
A. Need-Narrowness-Intrusiveness Findings
The State first contends that the district court did not make the PLRA’s need-narrowness-intrusiveness findings, causing the injunction to automatically expire and mooting this appeal.11 As we have explained in prior decisions, the PLRA “has not substantially changed the threshold findings and standards required to justify an injunction.” Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir. 2001). When “determining the appropriateness of the relief ordered,” appellate “courts must do what they have always done”:

11 We question whether the State’s need-narrowness-intrusiveness challenge, properly understood, implicates mootness. But because the result is the same, we accept the State’s framing for purposes of our analysis.

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“consider the order as a whole.” Armstrong v. Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir. 2010). District courts must make need-narrowness-intrusiveness “findings sufficient to allow a ‘clear understanding’ of the ruling,” but they need not “make such findings on a paragraph by paragraph, or even sentence by sentence, basis.” Id. (quotation omitted). “What is important, and what the PLRA requires, is a finding that the set of reforms being ordered—the ‘relief’—corrects the violations of prisoners’ rights with the minimal impact possible on defendants’ discretion over their policies and procedures.” Id.
Here, the district court made the necessary neednarrowness-intrusiveness findings. At the start of its December 13, 2018 order, the district court explained that any injunction must meet the PLRA’s need-narrownessintrusiveness requirement. See Edmo, 358 F. Supp. 3d at 1122. The district court then explained how the relief being ordered, GCS, “corrects the violations of” Edmo’s rights. See Armstrong, 622 F.3d at 1071. Specifically, the district court explained that GCS is medically necessary to alleviate Edmo’s gender dysphoria and that the State’s denial of GCS amounts to deliberate indifference in violation of the Eighth Amendment. See Edmo, 358 F. Supp. 3d at 1116–21, 1123– 27, 1129. The district court limited the relief ordered to have “the minimal impact possible on [the State’s] discretion over their policies and procedures.” See Armstrong, 622 F.3d at 1071. Specifically, the district court limited the relief to “actions reasonably necessary” to provide GCS, cautioned that its conclusion is based on “the unique facts and circumstances presented” by Edmo, and noted that its “decision is not intended, and should not be construed, as a general finding that all inmates suffering from gender dysphoria are entitled to [GCS].” Edmo, 358 F. Supp. 3d at

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1110, 1129. Finally, the district court rejected the notion that injunctive relief would have “any adverse impact on public safety or the operation of a criminal justice system.” 18 U.S.C. § 3626(a)(1)(A). It explained that the State had “made no showing that an order requiring them to provide” GCS to Edmo “causes them injury.” Edmo, 358 F. Supp. 3d at 1128. The district court’s order, considered as a whole, made all the findings required by 18 U.S.C. § 3626(a)(1)(A) and our precedent. See Armstrong, 622 F.3d at 1070.
B. Finality
The State next argues that the injunction has automatically expired under the PLRA because the district court did not make its order “final” within 90 days of entering injunctive relief. See 18 U.S.C. § 3626(a)(2); see also Sec’y, Fla. Dep’t of Corr., 778 F.3d at 1228–29 (holding that an appeal of a preliminary injunction was moot because the district court “did not issue an order finalizing its [preliminary-injunction] order,” and “[a]s a result, the preliminary injunction expired by operation of law” 90 days later). The PLRA provision cited by the State applies to preliminary injunctive relief, not permanent injunctive relief. See 18 U.S.C. § 3626(a)(2). The permanent injunction that the district court entered has not expired. See Edmo, 358 F. Supp. 3d at 1122 n.1 (concluding that Edmo is “entitled to relief” under the permanent injunction standard); see also Edmo, 2019 WL 2319527, at *2 (clarifying on limited remand that the district court granted Edmo a permanent injunction). It remains in place, albeit stayed.

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There is a live controversy on appeal.12 We accordingly DENY the State’s motion to dismiss and proceed to the merits of the appeal.

III. Challenges to the District Court’s Grant of Injunctive Relief

An injunction is an “extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “To be entitled to a permanent injunction, a plaintiff must demonstrate: (1) actual success on the merits; (2) that it has suffered an irreparable injury; (3) that remedies available at law are inadequate; (4) that the balance of hardships justify a remedy in equity; and (5) that the public interest would not be disserved by a permanent injunction.”13 Indep. Training & Apprenticeship Program

12 Even construed as a preliminary injunction, the district court’s December 13, 2018 order is not moot. On May 31, 2019, the district court, incorporating its previous findings, renewed the injunction. See Edmo, 2019 WL 2319527, at *2. Because the district court renewed the injunction, we can consider its merits. See Mayweathers v. Newland, 258 F.3d 930, 935–36 (9th Cir. 2001) (holding that district courts may renew preliminary injunctions under the PLRA while an appeal is pending, and considering the merits of the renewed injunction). And we have jurisdiction under 28 U.S.C. § 1292(a)(1) regardless of whether the district court’s order is considered a preliminary or permanent injunction. See Hendricks v. Bank of Am., N.A., 408 F.3d 1127, 1131 (9th Cir. 2005) (preliminary injunction); TransWorld Airlines, Inc. v. Am. Coupon Exch., Inc., 913 F.2d 676, 680–81 (9th Cir. 1990) (permanent injunction where the “district court retained jurisdiction to determine damages” and to adjudicate a separate claim).
13 We agree with the State that the injunction is mandatory, as opposed to prohibitory, because it requires the State to act. Based on that distinction, the State argues that Edmo must satisfy a higher burden of

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v. Cal. Dep’t of Indus. Relations, 730 F.3d 1024, 1032 (9th Cir. 2013) (citing eBay Inc. v. MercExch., L.L.C., 547 U.S. 388, 391 (2006)).
We review for abuse of discretion the district court’s decision to grant a permanent injunction. Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 965 (9th Cir. 2017). We

proof to be entitled to injunctive relief, and that the district court failed to hold Edmo to that burden. On that point, we disagree.
The State errs by relying on cases that concern mandatory preliminary injunctions. Because mandatory preliminary injunctions go “well beyond simply maintaining the status quo [p]endente lite,” they are “particularly disfavored” and “are not issued in doubtful cases.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (alteration in original) (quoting Anderson v. United States, 612 F.2d 1112, 1114–15 (9th Cir. 1980)). The calculus is different in the context of permanent injunctions. A plaintiff must show actual success on the merits, see Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987), so there is no concern that a mandatory permanent injunction will upset the status quo only for a later trial on the merits to show that the plaintiff was not entitled to equitable relief. As a result, a plaintiff need not show that “extreme or very serious damage will result,” as is required for mandatory preliminary injunctions.
As we have explained, the district court granted Edmo injunctive relief under both the preliminary and permanent injunction standards. See Edmo, 358 F. Supp. 3d at 1122 n.1; see also Edmo, 2019 WL 2319527, at *2. Because the standard for granting permanent injunctive relief is higher (in that it requires actual success on the merits) and the State contends in its opening brief that we should review the injunction as a permanent injunction, we consider whether the district court erred in granting Edmo permanent injunctive relief. But we would also affirm under the mandatory preliminary injunction standard, because the district court correctly applied the proper standard for mandatory preliminary injunctive relief, and not the lower standard for prohibitory preliminary injunctions. See Edmo, 358 F. Supp. 3d at 1122, 1128.

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review “any determination underlying the grant of an injunction by the standard that applies to that determination.” Ting v. AT&T, 319 F.3d 1126, 1134–35 (9th Cir. 2003). Accordingly, the district court’s factual findings on Edmo’s Eighth Amendment claim are reviewed for clear error. See Graves, 623 F.3d at 1048. Clear error exists if the finding is “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867, 879 (9th Cir. 2014) (quoting Herb Reed Enters., LLC v. Florida Entm’t Mgmt., Inc., 736 F.3d 1239, 1247 (9th Cir. 2013)). We review de novo the district court’s “conclusion that the facts . . . demonstrate an Eighth Amendment violation.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002).
The State contends that the district court erred in granting an injunction because (1) Edmo’s Eighth Amendment claim fails and (2) Edmo has not shown that she will suffer irreparable injury in the absence of an injunction.14 We disagree. We hold, based on the district court’s factual findings, that Edmo established her Eighth Amendment claim and that she will suffer irreparable harm—in the form of ongoing mental anguish and possible physical harm—if GCS is not provided.
A. The Merits of Edmo’s Eighth Amendment Claim
“[D]eliberate indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle, 429 U.S. at 104. Because “society takes from prisoners the means to provide for their own needs,” Brown, 563 U.S.

14 Because the State does not contest the other injunction factors, we do not address them.

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at 510, the government has an “obligation to provide medical care for those whom it is punishing by incarceration,” Estelle, 429 U.S. at 103.
To establish a claim of inadequate medical care, a prisoner must first “show a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). Serious medical needs can relate to “physical, dental and mental health.” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
The State does not dispute that Edmo’s gender dysphoria is a sufficiently serious medical need to trigger the State’s obligations under the Eighth Amendment. Nor could it. Gender dysphoria is a “serious . . . medical condition” that causes “clinically significant distress”—distress that impairs or severely limits an individual’s ability to function in a meaningful way. DSM-5 at 453, 458. As Edmo testified, her gender dysphoria causes her to feel “depressed,” “disgusting,” “tormented,” and “hopeless,” and it has caused past efforts and active thoughts of self-castration. As this and many other courts have recognized, Edmo’s gender dysphoria is a sufficiently serious medical need to implicate the Eighth Amendment. See Rosati v. Igbinoso, 791 F.3d 1037, 1039–40 (9th Cir. 2015); Kosilek, 774 F.3d at 86; De’lonta, 708 F.3d at 525; Battista v. Clarke, 645 F.3d 449, 452 (1st Cir. 2011); Allard v. Gomez, 9 F. App’x 793, 794 (9th Cir. 2001); White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988); Meriwether v. Faulkner, 821 F.2d 408, 412 (7th Cir.

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1987) (and cases cited therein); Norsworthy, 87 F. Supp. 3d at 1187; Konitzer v. Frank, 711 F. Supp. 2d 874, 905 (E.D. Wis. 2010).
If, as here, a prisoner establishes a sufficiently serious medical need, that prisoner must then “show the [official’s] response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. An inadvertent or negligent failure to provide adequate medical care is insufficient to establish a claim under the Eighth Amendment. Estelle, 429 U.S. at 105–06; see also Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“ordinary lack of due care” is insufficient to establish an Eighth Amendment claim). In other words, “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. To “show deliberate indifference, the plaintiff must show that the course of treatment the [official] chose was medically unacceptable under the circumstances and that the [official] chose this course in conscious disregard of an excessive risk to the plaintiff’s health.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (quoting Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc)).
1. The Medical Necessity of GCS for Edmo
The crux of the State’s appeal is that it provided adequate and medically acceptable care to Edmo.
Accepted standards of care and practice within the medical community are highly relevant in determining what care is medically acceptable and unacceptable. See Allard v. Baldwin, 779 F.3d 768, 772 (8th Cir. 2015); Henderson v. Ghosh, 755 F.3d 559, 566 (7th Cir. 2014) (per curiam). Typically, “[a] difference of opinion between a physician

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and the prisoner—or between medical professionals— concerning what medical care is appropriate does not amount to deliberate indifference.” Snow, 681 F.3d at 987; see also Gibson, 920 F.3d at 220. But that is true only if the dueling opinions are medically acceptable under the circumstances. See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (a mere “difference of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference,” but not if the “chosen course of treatment ‘was medically unacceptable under the circumstances’” (alterations in original) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996))).
“In deciding whether there has been deliberate indifference to an inmate’s serious medical needs, we need not defer to the judgment of prison doctors or administrators.” Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989). Nor does it suffice for “correctional administrators wishing to avoid treatment . . . simply to find a single practitioner willing to attest that some well-accepted treatment is not necessary.” Kosilek, 774 F.3d at 90 n.12. In the final analysis under the Eighth Amendment, we must determine, considering the record, the judgments of prison medical officials, and the views of prudent professionals in the field, whether the treatment decision of responsible prison authorities was medically acceptable.
Reviewing the record and the district court’s extensive factual findings, we conclude that Edmo has established that the “course of treatment” chosen to alleviate her gender dysphoria “was medically unacceptable under the circumstances.” Hamby, 821 F.3d at 1092 (quoting Snow, 681 F.3d at 988). This conclusion derives from the district court’s factual findings, which are not “illogical, implausible, or without support in inferences that may be

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drawn from the facts in the record.” La Quinta Worldwide LLC, 762 F.3d at 879 (quotation omitted).
In particular, and as we will explain, this is not a case of dueling experts, as the State paints it. The district court permissibly credited the opinions of Edmo’s experts that GCS is medically necessary to treat Edmo’s gender dysphoria and that the State’s failure to provide that treatment is medically unacceptable. Edmo’s experts are well-qualified to render such opinions, and they logically and persuasively explained the necessity of GCS and applied the WPATH Standards of Care—the undisputed starting point in determining the appropriate treatment for gender dysphoric individuals. On the other side of the coin, the district court permissibly discredited the contrary opinions of the State’s treating physician and medical experts. Those individuals lacked expertise and incredibly applied (or did not apply, in the case of the State’s treating physician) the WPATH Standards of Care. In other words, the district court did not clearly err in making its credibility determinations, so it is not our role to reevaluate them. The credited testimony establishes that GCS is medically necessary.
a. Expert Testimony
Turning first to the expert testimony offered, the district court credited the testimony of Edmo’s experts that GCS is medically necessary to treat Edmo’s gender dysphoria and that the State’s failure to provide that treatment is medically unacceptable. See Edmo, 358 F. Supp. 3d at 1120–21, 1125. Dr. Ettner and Dr. Gorton opined that GCS is medically necessary because Edmo’s current treatment has been inadequate, as evidenced by her self-castration attempts. They also opined that if Edmo does not receive GCS, there is little chance that her gender dysphoria will improve and she is at risk of committing self-surgery again, suicide, and

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further emotional decompensation. On the other hand, providing GCS to Edmo would, in the opinions of Dr. Ettner and Dr. Gorton, align Edmo’s genitalia with her gender identity, thereby eliminating the severe distress Edmo experiences from her male genitalia.
In sharp contrast, the district court gave “virtually no weight” to the opinions of the State’s experts. Edmo, 358 F. Supp. 3d at 1126. Dr. Garvey and Dr. Andrade, who purported to rely on the WPATH Standards of Care, opined that GCS is not medically necessary for Edmo.
The district court did not err in crediting the testimony of Edmo’s experts and discounting the testimony of the State’s experts. Dr. Ettner and Dr. Gorton are well-qualified to opine on the medical necessity of GCS. Both have substantial experience treating individuals with gender dysphoria. Dr. Ettner has evaluated, diagnosed, and treated between 2,500 and 3,000 individuals with gender dysphoria, while Dr. Gorton has been the primary care physician for approximately 400 patients with gender dysphoria. Both have substantial experience evaluating whether GCS is medically necessary for patients. Dr. Ettner has evaluated hundreds of people for GCS, referring approximately 300 while refusing others, and Dr. Gorton routinely determines the appropriateness of GCS for patients. They also have experience providing follow-up care for patients who have undergone GCS. And both have published peer-reviewed articles concerning the treatment of gender dysphoria.
The State’s experts, by contrast, have substantial experience providing health care in institutional settings, but lack meaningful experience directly treating people with gender dysphoria. Dr. Garvey directly treated a “couple of patients” with gender dysphoria early in her career, while Dr. Andrade has never provided direct treatment for patients

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with gender dysphoria. Moreover, prior to evaluating Edmo, neither had ever evaluated someone in person to determine the medical necessity of GCS. Relatedly, Dr. Garvey and Dr. Andrade have never provided follow-up care for a person who has received GCS. Indeed, Dr. Andrade did not even qualify under IDOC policy to assess a person for GCS. And neither Dr. Garvey nor Dr. Andrade has published a peerreviewed article concerning the treatment of gender dysphoria.
Neither Dr. Ettner nor Dr. Gorton have treated prisoners with gender dysphoria, nor are they Certified Correctional Healthcare Professionals. But both serve on WPATH’s Institutionalized Persons Committee, which “looks at the care and the assessment of individuals who are incarcerated and develops standards for treatment” of such individuals. They are thus familiar with medical treatment in prison settings. Moreover, Dr. Ettner has assessed approximately 30 incarcerated persons with gender dysphoria for GCS and other medical care.
More to the point, the more relevant experience for determining the medical necessity of GCS is having treated individuals with gender dysphoria, having evaluated individuals for GCS, and having treated them postoperatively. Such experience lends itself to fundamental knowledge of whether GCS is necessary and the potential risks of providing or foregoing the surgery. Edmo’s experts have the requisite experience; the State’s experts do not. For that reason alone, the district court did not clearly err in crediting the opinions of Edmo’s experts over those of the State.15 See Caro v. Woodford, 280 F.3d 1247, 1253 (9th

15 The State contends that neither Dr. Ettner nor Dr. Gorton was qualified to offer expert opinions as to the appropriate medical care for

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Cir. 2002) (explaining that we “must afford the District Court considerable deference in its determination that the witnesses were qualified to draw [their] conclusions”).
Independent of the experts’ qualifications, the district court did not err in crediting the opinions of Edmo’s experts over those of the State because aspects of Dr. Garvey’s and Dr. Andrade’s opinions ran contrary to the established standards of care in the area of transgender health care—the WPATH Standards of Care—which they purported to apply.16 See Edmo, 358 F. Supp. 3d at 1125.

Edmo because neither is a psychiatrist. So far as we can discern, the argument is that because a psychiatrist (Dr. Eliason) evaluated Edmo for GCS, only other psychiatrists are qualified to opine as to the medical necessity of GCS and to contradict his assessment. See Oral Arg. at 10:00–10:30. We reject that contention. Edmo’s experts, as explained, have significant experience evaluating patients for GCS— precisely what Dr. Eliason did. On the basis of their medical experience treating persons with gender dysphoria, they are well-qualified to render an opinion on the medical necessity of GCS and whether failure to provide the surgery is medically acceptable. See Fed. R. Evid. 702.
16 The State contends that the district court erred in requiring strict adherence to the flexible WPATH Standards of Care and in concluding that any deviation from those standards is medically unacceptable. But the district court correctly recognized that the WPATH Standards of Care are flexible, see Edmo, 358 F. Supp. 3d at 1111, and it appropriately used them as a starting point to gauge the credibility of each expert’s testimony, see id. at 1125–26. Tellingly, each expert for Edmo and the State likewise used the WPATH Standards of Care as a starting point. As the district court recognized: “There are no other competing, evidence-based standards that are accepted by any nationally or internationally recognized medical professional groups.” Id. at 1125. And as the State acknowledged at the evidentiary hearing, the “WPATH standards of care in the seventh edition do provide the best guidance” and “are the best standards out there.” For these reasons, the WPATH Standards of Care establish a useful starting point for analyzing the

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For example, both Dr. Garvey and Dr. Andrade expressed the view that Edmo does not meet the sixth WPATH criterion, “12 continuous months of living in a gender role that is congruent with gender identity.” WPATH SOC at 60. They pointed out that Edmo has not presented as female outside of prison and urged that she needs real-life experiences in the community before undergoing GCS.
These opinions run head-on into the WPATH Standards of Care. The WPATH standards, which the NCCHC endorses as the accepted standards for the treatment of transgender inmates, apply
in their entirety . . . to all transsexual, transgender, and gender nonconforming people, irrespective of their housing situation. People should not be discriminated against in their access to appropriate health care based on where they live, including institutional environments such as prisons . . . . Health care for transsexual, transgender, and gender nonconforming people living in an institutional environment should mirror that which would be available to them if they were living in a noninstitutional setting within the same community.

credibility and weight to be given to each expert’s opinion and whether that opinion was consistent with established standards of care. The State does not contest the district court’s finding that the WPATH Standards of Care are the “internationally recognized guidelines for the treatment of individuals with gender dysphoria.” Id. at 1111. They are the gold standard on this issue.

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All elements of assessment and treatment as described in the [Standards of Care] can be provided to people living in institutions. Access to these medically necessary treatments should not be denied on the basis of institutionalization or housing arrangements.

WPATH SOC at 67. Dr. Garvey and Dr. Andrade’s view— that GCS cannot be medically indicated for transgender inmates who did not present in a gender-congruent manner before incarceration—contradicts these accepted standards. Dr. Garvey and Dr. Andrade would deny GCS to a class of people because of their “institutionalization,” which the WPATH Standards of Care explicitly disavow. They provide no persuasive explanation for their deviation.17 And nothing in the WPATH Standards of Care or the law supports excluding an entire class of gender dysphoric individuals from eligibility for GCS.
Both Dr. Garvey and Dr. Andrade also relied on Edmo’s failure to attend psychotherapy sessions as an indication that her mental health concerns are not well controlled. But psychotherapy is not a precondition for surgery under the WPATH Standards of Care. WPATH SOC at 28–29.
We acknowledge that the WPATH Standards of Care are flexible, and a simple deviation from those standards does not alone establish an Eighth Amendment claim. But the

17 In concluding that Edmo does not meet the sixth WPATH criterion, Dr. Garvey expressed concern that there is a lack of evidence regarding GCS in prison settings. That rationale acts as self-fulfilling prophecy. If prisons and prison officials deny GCS to prisoners because of a lack of data, the data will never be generated, and the cycle will continue.

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State’s experts purported to be applying those standards and yet did so in a way that directly contradicted them. These unsupported and unexplained deviations offer a further reason why the district court did not clearly err in discounting the testimony of the State’s experts. See Caro, 280 F.3d at 1253.
Finally, the district court did not err in discrediting the State’s experts because aspects of their opinions were illogical and unpersuasive. For example, Dr. Garvey and Dr. Andrade expressed the view that Edmo does not meet the first WPATH criterion—“persistent, well documented gender dysphoria,” WPATH SOC at 60—because of a lack of evidence from pre-incarceration records of Edmo presenting as female. But both experts acknowledged that Edmo has been diagnosed with and treated for gender dysphoria since 2012—i.e., for six years as of the evidentiary hearing. Neither Dr. Garvey nor Dr. Andrade questioned Edmo’s diagnosis, and both agree that she currently suffers gender dysphoria. There can be no doubt that Edmo has “persistent, well documented gender dysphoria,” so their opinion is inexplicable.
Dr. Garvey’s and Dr. Andrade’s opinions on this point also ignore that individuals with gender dysphoria do not always experience symptoms early in life or throughout their life, or do not identify them as such. As Dr. Ettner testified, “gender dysphoria intensifies with age.” And as with treatment for any other medical condition, treatment for gender dysphoria must be based on a patient’s current situation.
The opinions of Edmo’s experts are notably devoid of these flaws. Dr. Ettner and Dr. Gorton cogently and persuasively explained why GCS is medically necessary for Edmo and why Edmo meets the WPATH criteria for GCS.

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For example, consistent with the WPATH Standards of Care, Dr. Ettner explained that Edmo has lived for “12 continuous months . . . in a gender role that is congruent with gender identity” (the sixth WPATH criterion) because she has lived “as a woman to the best of her ability in a male prison.” In support of her opinion, Dr. Ettner cited Edmo’s “appearance . . . , her disciplinary records, which indicated that she had attempted to wear her hair in a feminine hairstyle and to wear makeup even though that was against the rules and she was – received some sort of disciplinary action for that, and her – the way that she was receiving female undergarments and had developed the stigma of femininity, the secondary sex characteristics, breast development, et cetera.” Dr. Gorton similarly explained that Edmo satisfies the sixth WPATH criterion because she has lived for years in her “target gender role . . . despite an environment that’s very hostile to that and some negative consequences that she has experienced because of that.”
Moreover, both Dr. Ettner and Dr. Gorton offered reasoned explanations tying Edmo’s self-castration attempts to her severe gender dysphoria. Dr. Ettner explained that doctors regard “surgical self-treatment . . . as an intentional attempt to remove the target organ that produces testosterone, which, in fact, is the cure for gender dysphoria.” As Dr. Gorton elaborated, Edmo’s selfcastration attempts demonstrate deficient treatment for “severe genital-focused gender dysphoria.” He rejected the notion that Edmo’s depression and anxiety drove her selfcastration attempts: “there [are] a lot of people with depression and anxiety who don’t remove their testicles.”
In light of the experts’ backgrounds and experience, and the reasonableness, consistency, and persuasiveness of their opinions, the district court did not err in crediting the

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opinions of Edmo’s experts and giving little weight to those of the State’s experts. The district court carefully examined the voluminous record, extensive testimony, and conflicting expert opinions in this case and set forth clear reasons, supported by the record, for relying on the testimony of Edmo’s experts. See La Quinta Worldwide, 762 F.3d at 879 (a factual finding is clear error if it is “illogical, implausible, or without support in inferences that may be drawn from the facts in the record”); Caro, 280 F.3d at 1253; Beech Aircraft Corp. v. United States, 51 F.3d 834, 838 (9th Cir. 1995) (per curiam). The credited expert testimony established that GCS is medically necessary to alleviate Edmo’s gender dysphoria.
b. Dr. Eliason’s Assessment
Turning from the expert testimony offered, the State contends that Edmo’s experts, at most, created a dispute of professional judgment with Edmo’s treating psychiatrist, Dr. Eliason, who it urges reasonably concluded that GCS is inappropriate for Edmo. If that is the case, the argument goes, then Edmo’s Eighth Amendment claim fails because the dispute is merely a “difference of opinion . . . between medical professionals” about “what medical care is appropriate.” Snow, 681 F.3d at 987. The problem for the State is that Dr. Eliason’s decision “was medically unacceptable under the circumstances.” Toguchi, 391 F.3d at 1058 (quoting Jackson, 90 F.3d at 332).
In particular, as the district court found, Dr. Eliason did not follow accepted standards of care in the area of transgender health care. See Edmo, 358 F. Supp. 3d at 1126. Dr. Eliason explained in his notes that, in his view, GCS is medically necessary in three situations: “congenital malformation or ambiguous genitalia,” “severe and devastating dysphoria that is primarily due to genitals,” or “some type of medical problem in which endogenous sexual

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hormones were causing severe physiological damage.” The conclusion of his notes—“[t]his inmate does not meet any of those [three] criteria”—suggests that he views those as the only three scenarios in which GCS would be medically necessary, an impression he did not dispel during his testimony. Those “criteria” (Dr. Eliason’s term), however, bear little resemblance to the widely accepted, evidencebased criteria set out in the WPATH’s Standards of Care. As Dr. Eliason acknowledged, the NCCHC endorses the WPATH Standards of Care as the accepted standards for the treatment of transgender prisoners. And as the district court found and the State does not contest, “[t]here are no other competing, evidence-based standards that are accepted by any nationally or internationally recognized medical professional groups.” Id. at 1125. Dr. Eliason did not follow these standards in rendering his decision.
The State challenges the district court’s finding that Dr. Eliason “did not apply the WPATH Criteria,” id. at 1126, on two grounds. First, citing Dr. Eliason’s testimony at the evidentiary hearing, it urges that Dr. Eliason concluded that GCS was not medically necessary for Edmo because Edmo’s mental health issues were not well controlled (the fourth WPATH criterion) and she had not consistently presented as female outside of prison (the sixth).
The district court’s rejection of this post hoc explanation was not clear error. Neither of the explanations offered by Dr. Eliason during the evidentiary hearing appears in Dr. Eliason’s notes. Nor did he give these reasons during his deposition. Their absence is conspicuous, given that Dr. Eliason took the time to indicate instances where, in his opinion, GCS is appropriate and to explain that Edmo did not satisfy his “criteria.”

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Second, the State highlights that Dr. Eliason’s notes recommend further “supportive counseling” for Edmo and indicate that Edmo was up for parole. The State construes these notes as shorthand for the fourth and sixth WPATH criteria, respectively. The State’s proposed reading of Dr. Eliason’s notes is unreasonable. His notes are clear that GCS is not needed because Edmo did not meet his three “criteria,” and the district court was well within its factfinding discretion in rejecting the State’s strained reading. We therefore conclude that the district court reasonably found that Dr. Eliason “did not rely upon any finding that Ms. Edmo did not meet the WPATH criteria in concluding in his April 2016 assessment that she did not meet the criteria for gender confirmation surgery.” Id. at 1120.
Notably, neither Dr. Eliason nor the State has offered any explanation or support for Dr. Eliason’s “criteria.” Dr. Eliason testified that he could not recall where he came up with them.
Nor has Dr. Eliason or the State contended that Dr. Eliason’s criteria were a reasonable deviation or modification of the WPATH Standards of Care. In any event, we could not accept that argument. Dr. Eliason’s criteria—apparently invented out of whole cloth—are so far afield from the WPATH standards that we cannot characterize his decision as a flexible application of or deviation from those standards. Indeed, as Dr. Gorton explained, two of Dr. Eliason’s criteria are inapplicable to the care of transgender individuals. Dr. Eliason’s criterion of “congenital malformation or ambiguous genitalia” “isn’t . . . germane to transgender people.” His statement that GCS could be needed when “endogenous sexual hormones were causing severe physiological damage,” is, in Dr. Gorton’s

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words, “bizarre. I can’t think of a clinical circumstance where . . . your hormones that your body produces are attacking you . . . . I just don’t understand what [Dr. Eliason] is talking about there.”
Dr. Eliason, in short, did not follow the accepted standards of care in the area of transgender health care, nor did he reasonably deviate from or flexibly apply them. Dr. Eliason did not apply the established standards, even as a starting point, in his evaluation.
Putting to the side Dr. Eliason’s failure to follow or reasonably deviate from the accepted standards of care, his decision was internally contradictory in an important way. His notes reflect that GCS would be medically necessary if a person is suffering “severe and devastating gender dysphoria that is primarily due to genitals.” At his deposition, Dr. Eliason conceded that self-castration could show gender dysphoria sufficiently severe to satisfy that criterion. And at the evidentiary hearing, he acknowledged that Edmo “does primarily meet that criteri[on].” Thus, even under Dr. Eliason’s own criteria, Edmo should have been provided GCS. Neither Dr. Eliason nor the State has reconciled this important contradiction between Dr. Eliason’s criteria and his determination.
In sum, Dr. Eliason’s evaluation was not an exercise of medically acceptable professional judgment. Dr. Eliason’s decision was based on inexplicable criteria far afield from the recognized standards of care and, even applying Dr. Eliason’s criteria, Edmo qualifies for GCS. Given the credited expert testimony that GCS is necessary to treat Edmo’s gender dysphoria, Dr. Eliason’s contrary

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determination was “medically unacceptable under the circumstances.”18 Snow, 681 F.3d at 988.
2. Deliberate Indifference
The State next contends that even if the treatment provided Edmo was medically unacceptable, no defendant acted “in conscious disregard of an excessive risk to [Edmo’s] health.” Hamby, 821 F.3d at 1092 (quoting Snow, 681 F.3d at 988). We disagree.
The record demonstrates that Dr. Eliason acted with deliberate indifference to Edmo’s serious medical needs. Dr. Eliason knew, as of the time of his evaluation, that Edmo had attempted to castrate herself. He also knew that Edmo suffers from gender dysphoria; he knew she experiences “clinically significant” distress that impairs her ability to function. He acknowledged that Edmo’s self-castration attempt was evidence that Edmo’s gender dysphoria, in his words, “had risen to another level.” Dr. Eliason nonetheless continued with Edmo’s ineffective treatment plan.
Edmo then tried to castrate herself a second time, in December 2016. Dr. Eliason knew of that nearly

18 Dr. Eliason was not alone in his decision. Dr. Stoddart, Dr. Young, and Jeremy Clark agreed with his assessment, as did the MTC. The State contends that such general agreement demonstrates that Dr. Eliason’s decision was reasonable. But general agreement in a medically unacceptable form of treatment does not somehow make it reasonable. This is especially so in light of the limited review those individuals performed: Dr. Stoddard, Dr. Young, and Jeremy Clark agreed with Dr. Eliason’s recommended treatment as he presented it to them and without personally evaluating Edmo, and the MTC “does not make any individual treatment decisions regarding [gender dysphoric] inmates. Those determinations are made by the individual clinicians or the medical staff employed by Corizon,” like Dr. Eliason.

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catastrophic event, but he did not reevaluate or recommend a change to Edmo’s treatment plan, despite indicating in his April 2016 evaluation that he would continue to monitor and assess Edmo’s condition. Dr. Eliason continued to see Edmo after that time, and he considered Edmo’s treatment as a member of the MTC. At no point did Dr. Eliason change his mind or the treatment plan regarding surgery. Under these circumstances, we conclude that Dr. Eliason knew of and disregarded the substantial risk of severe harm to Edmo. Farmer, 511 U.S. at 837.
The State urges that neither Dr. Eliason nor any other defendant acted with deliberate indifference because none acted with “malice, intent to inflict pain, or knowledge that [the] recommended course of treatment was medically inappropriate.” The State misstates the standard. A prisoner “must show that prison officials ‘kn[e]w [ ] of and disregard[ed]’ the substantial risk of harm,’ but the officials need not have intended any harm to befall the inmate; ‘it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.’” Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (alterations in original) (quoting Farmer, 511 U.S. at 837, 842). Neither the Supreme Court nor this court has ever required a plaintiff to show a “sinister [prison official] with improper motives,” as the State would require. It is enough that Dr. Eliason knew of and disregarded an excessive risk to Edmo’s health by rejecting her request for GCS and then never re-evaluating his decision despite ongoing harm to Edmo.
The State also contends that because the defendants provided some care to Edmo, no defendant could have been deliberately indifferent. The provision of some medical treatment, even extensive treatment over a period of years,

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does not immunize officials from the Eighth Amendment’s requirements. See Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (en banc) (explaining that “[a] prisoner need not prove that he was completely denied medical care” to make out an Eighth Amendment claim); see also De’lonta, 708 F.3d at 526 (“[J]ust because [officials] have provided De’lonta with some treatment consistent with the GID Standards of Care, it does not follow that they have necessarily provided her with constitutionally adequate treatment.”). As the Fourth Circuit has aptly analogized,
imagine that prison officials prescribe a painkiller to an inmate who has suffered a serious injury from a fall, but that the inmate’s symptoms, despite the medication, persist to the point that he now, by all objective measure, requires evaluation for surgery. Would prison officials then be free to deny him consideration for surgery, immunized from constitutional suit by the fact they were giving him a painkiller? We think not.

De’lonta, 708 F.3d at 526. Here, although the treatment provided Edmo was important, it stopped short of what was medically necessary.
3. Out-of-Circuit Precedent
Our decision cleaves to settled Eighth Amendment jurisprudence, which requires a fact-specific analysis of the record (as construed by the district court) in each case. See Patel v. Kent Sch. Dist., 648 F.3d 965, 975 (9th Cir. 2011) (“Deliberate-indifference cases are by their nature highly fact-specific . . . .”); see also Rachel v. Troutt, 820 F.3d 390, 394 (10th Cir. 2016) (“Each step of this [deliberate

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indifference] inquiry is fact-intensive.” (quoting Hartsfield v. Colburn, 491 F.3d 394, 397 (8th Cir. 2007))); Roe v. Elyea, 631 F.3d 843, 859 (7th Cir. 2011) (“[I]nmate medical care decisions must be fact-based with respect to the particular inmate, the severity and stage of his condition, the likelihood and imminence of further harm and the efficacy of available treatments.”); Youmans v. Gagnon, 626 F.3d 557, 564 (11th Cir. 2010) (“Judicial decisions addressing deliberate indifference to a serious medical need, like decisions in the Fourth Amendment search-and-seizure realm, are very fact specific.”); Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“Whether a course of treatment was the product of sound medical judgment, negligence, or deliberate indifference depends on the facts of the case.”).
Several years ago, the First Circuit, sitting en banc, employed that fact-based approach to evaluate a gender dysphoric prisoner’s Eighth Amendment claim seeking GCS. The First Circuit confronted the following record: credited expert testimony disagreed as to whether GCS was medically necessary; the prisoner’s active treatment plan, which did not include GCS, had “led to a significant stabilization in her mental state”; and a report and testimony from correctional officials detailed significant security concerns that would arise if the prisoner underwent GCS. Kosilek, 774 F.3d at 86–96. “After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC,” a 3–2 majority of the en banc court concluded that the plaintiff had not demonstrated GCS was medically necessary treatment for her gender dysphoria. Id. at 68.

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Our approach mirrors the First Circuit’s, but the important factual differences between cases yield different outcomes. Notably, the security concerns in Kosilek, which the First Circuit afforded “wide-ranging deference,” are completely absent here. Id. at 92. The State does not so much as allude to them. The medical evidence also differs. In Kosilek, qualified and credited experts disagreed about whether GCS was necessary. Id. at 90. As explained above, the district court’s careful factual findings admit of no such disagreement here. Rather, they unequivocally establish that GCS is the safe, effective, and medically necessary treatment for Edmo’s severe gender dysphoria.
We recognize, however, that our decision is in tension with Gibson v. Collier. In that case, the Fifth Circuit held, in a split decision, that “[a] state does not inflict cruel and unusual punishment by declining to provide [GCS] to a transgender inmate.” 920 F.3d at 215. It did so on a “sparse record”—which included only the WPATH Standards of Care and was notably devoid of “witness testimony or evidence from professionals in the field”—compiled by a pro se plaintiff. Id. at 220. Despite the sparse record, a 2–1 majority of the Gibson panel concluded that “there is no consensus in the medical community about the necessity and efficacy of [GCS] as a treatment for gender dysphoria. . . . This on-going medical debate dooms Gibson’s claim.” Id. at 221.
We respectfully disagree with the categorical nature of our sister circuit’s holding. Most fundamentally, Gibson relies on an incorrect, or at best outdated, premise: that “[t]here is no medical consensus that [GCS] is a necessary or even effective treatment for gender dysphoria.” Id. at 223.
As the record here demonstrates and the State does not seriously dispute, the medical consensus is that GCS is

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effective and medically necessary in appropriate circumstances. The WPATH Standards of Care—which are endorsed by the American Medical Association, the American Medical Student Association, the American Psychiatric Association, the American Psychological Association, the American Family Practice Association, the Endocrine Society, the National Association of Social Workers, the American Academy of Plastic Surgeons, the American College of Surgeons, Health Professionals Advancing LGBTQ Equality, the HIV Medicine Association, the Lesbian, Bisexual, Gay and Transgender Physician Assistant Caucus, and Mental Health America— recognize this fact. WPATH SOC at 54–55. Each expert in this case agrees. As do others in the medical community. See, e.g., U.S. Dep’t of Health & Human Servs., No. A-1387, Decision No. 2576; Bao Ngoc N. Tran, et al., Gender Affirmation Surgery: A Synopsis Using American College of Surgeons National Surgery Quality Improvement Program and National Inpatient Sample Databases, 80 Annals Plastic Surgery S229, S234 (2018); Frey, A Historical Review of Gender-Affirming Medicine, 14 J. Sexual Med. at 991; see also What We Know Project, Ctr. for the Study of Inequality, Cornell Univ., What Does the Scholarly Research Say About the Effect of Gender Transition on Transgender Well-Being?, https://whatweknow.inequality.c ornell.edu/topics/lgbt-equality/what-does-the-scholarly-rese arch-say-about-the-well-being-of-transgender-people/ (last visited July 10, 2019) (reviewing the available literature and finding “a robust international consensus in the peerreviewed literature that gender transition, including medical treatments such as hormone therapy and surgeries, improves the overall well-being of transgender individuals”). The Fifth Circuit is the outlier.

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Gibson’s broad holding stemmed from a dismaying disregard for procedure. As noted, the “sparse” summary judgment record that the pro se plaintiff developed included “only the WPATH Standards of Care.” Gibson, 920 F.3d at 221. Perhaps that factual deficiency doomed Gibson’s Eighth Amendment claim. See id. at 223–24. But to reach its broader holding that denying GCS cannot, as a matter of law, violate the Eighth Amendment—in other words, to reject every conceivable Eighth Amendment claim based on the denial of GCS—the Fifth Circuit coopted the record from Kosilek, a First Circuit decision that predates Gibson by four years. Id. at 221–23. We doubt the analytical value of such an anomalous procedural approach.
Worse yet, the medical opinions from Kosilek do not support the Fifth Circuit’s categorical holding. Dr. Chester Schmidt’s and Dr. Stephen Levine’s testimony in Kosilek, which the Fifth Circuit relied on, do not support the proposition that GCS is never medically necessary. Dr. Schmidt and Dr. Levine testified that GCS was not necessary in the factual circumstances of that case, that is, based on the unique medical needs of the prisoner at issue. See Kosilek, 774 F.3d at 76–79.
The only suggestion in Kosilek that GCS is never medically necessary is in the First Circuit’s recitation of the testimony of Dr. Cynthia Osborne. See Gibson, 920 F.3d at 221. The First Circuit recounted that Dr. Osborne testified that she “did not view [GCS] as medically necessary in light of the ‘whole continuum from noninvasive to invasive’ treatment options available to individuals with” gender dysphoria. Kosilek, 774 F.3d at 77. To the extent this vague portrait of Dr. Osborne’s testimony conveys her belief that GCS is never medically necessary, she has apparently changed her view in the more than ten years since she

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testified in Kosilek. Like both sides and all four medical experts who testified here, Dr. Osborne now agrees that GCS “can be medically necessary for some, though not all, persons with [gender dysphoria], including some prison inmates.” Osborne & Lawrence, Male Prison Inmates With Gender Dysphoria, 45 Archives of Sexual Behav. at 1651. In her and her co-author’s words, “[GCS] is a safe, effective, and widely accepted treatment for [gender dysphoria]; disputing the medical necessity of [GCS] based on assertions to the contrary is unsupportable.” Id. The predicate medical opinions that Gibson is premised upon, then, do not support the Fifth Circuit’s view that GCS is never medically necessary. The consensus is that GCS is effective and medically necessary in appropriate circumstances.19
Gibson is unpersuasive for several additional reasons. It directly conflicts with decisions of this circuit, the Fourth

19 We do not suggest that every member of the medical and mental health communities agrees that GCS may be medically necessary. There are outliers. But when the medical consensus is that a treatment is effective and medically necessary under the circumstances, prison officials render unacceptable care by following the views of outliers without offering a credible medical basis for deviating from the accepted view. See Kosilek, 774 F.3d at 90 n.12 (explaining that it is not enough for “correctional administrators wishing to avoid treatment . . . simply to find a single practitioner willing to attest that some well-accepted treatment is not necessary”); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992) (“By choosing to rely upon a medical opinion which a reasonable person would likely determine to be inferior, the prison officials took actions which may have amounted to the denial of medical treatment, and the unnecessary and wanton infliction of pain.” (quotation omitted)), overruled in part on other grounds as recognized in Snow, 681 F.3d at 986; cf. also Bragdon v. Abbott, 524 U.S. 624, 650 (1998) (“A health care professional who disagrees with the prevailing medical consensus may refute it by citing a credible scientific basis for deviating from the accepted norm.”).

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Circuit, and the Seventh Circuit, all of which have held that denying surgical treatment for gender dysphoria can pose a cognizable Eighth Amendment claim. Rosati, 791 F.3d at 1040 (alleged blanket ban on GCS and denial of GCS to plaintiff with severe symptoms, including repeated selfcastration attempts, states an Eighth Amendment claim); Fields v. Smith, 653 F.3d 550, 552–53, 558–59 (7th Cir. 2011) (law banning hormone treatment and GCS, even if medically necessary, violates the Eighth Amendment); De’lonta, 708 F.3d at 525 (alleged denial of an evaluation for GCS states an Eighth Amendment claim).20 Relatedly, Gibson eschews Eighth Amendment precedent requiring a case-by-case determination of the medical necessity of a particular treatment. See, e.g., Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (holding that the “blanket, categorical denial of medically indicated surgery solely on the basis of an administrative policy . . . is the paradigm of deliberate indifference” (quotation omitted)); Roe, 631 F.3d at 859.
In this latter respect, Gibson also contradicts and misconstrues the precedent it purports to follow: Kosilek. According to the Gibson majority, “the majority in Kosilek effectively allowed a blanket ban on sex reassignment surgery.” 920 F.3d at 216. Not so. The First Circuit did precisely what we do here: assess whether the record before it demonstrated deliberate indifference to the plaintiff’s

20 The Fifth Circuit unpersuasively attempted to reconcile its decision with Rosati and De’lonta, pointing out that those decisions “allowed Eighth Amendment claims for [GCS] to survive motions to dismiss, without addressing the merits.” Gibson, 920 F.3d at 223 n.8. But if Gibson is correct that failing to provide GCS cannot amount to deliberate indifference, then a plaintiff cannot state an Eighth Amendment claim based on the denial of GCS. Rosati and De’lonta would necessarily have been decided differently under Gibson’s holding.

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gender dysphoria. On the record before it, the First Circuit determined that either of two courses of treatment (one included GCS and one did not) were medically acceptable. Kosilek, 774 F.3d at 90. In light of those medically acceptable alternatives, the First Circuit explained that it was not its place to “second guess medical judgments or to require that the DOC adopt the more compassionate of two adequate options.” Id. (quotation omitted). It expressly cautioned that the opinion should not be read to “create a de facto ban against [GCS] as a medical treatment for any incarcerated individual,” as “any such policy would conflict with the requirement that medical care be individualized based on a particular prisoner’s serious medical needs.” Id. at 91 (citing Roe, 631 F.3d at 862–63). The Fifth Circuit disregarded these words of warning.21
* * *
In summary, Edmo has established that she suffers from a “serious medical need,” Jett, 439 F.3d at 1096, and that the treatment provided was “medically unacceptable under the circumstances” and chosen “in conscious disregard of an excessive risk” to her health, Hamby, 821 F.3d at 1092. She established her Eighth Amendment claim of deliberate indifference as to Defendant-Appellant Dr. Eliason.

21 Gibson’s final, originalist rationale—that it cannot be cruel and unusual to deny a surgery that has only once been provided to an inmate, 920 F.3d at 226–28—warrants little discussion. Gibson’s originalist understanding of the Eighth Amendment does not control; Estelle does, and under Estelle a plaintiff establishes an Eighth Amendment claim by demonstrating that prison officials were deliberately indifferent to a serious medical need. 429 U.S. at 106. This standard protects the evolving standards of decency enshrined in the Eighth Amendment.

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B. Irreparable Harm
The State next contends that the district court erred in finding that Edmo would be irreparably harmed absent an injunction.
In reaching its conclusion, the district court found that Edmo experiences ongoing “clinically significant distress,” meaning “the distress impairs or severely limits [her] ability to function in a meaningful way.” Edmo, 358 F. Supp. 3d at 1110–11. This finding is supported by Edmo’s testimony that her gender dysphoria causes her to feel “depressed,” “disgusting,” “tormented,” and “hopeless”; that she actively experiences thoughts of self-castration; and that she “selfmedicat[es]” by cutting her arms with a razor to avoid acting on those thoughts and impulses. The district court also found that in the absence of surgery, Edmo “will suffer serious psychological harm and will be at high risk of selfcastration and suicide.” Id. at 1128. This finding is supported by the credited expert testimony of Dr. Ettner and Dr. Gorton, who detailed the escalating risks of self-surgery, suicide, and emotional decompensation should Edmo be denied surgery.
It is no leap to conclude that Edmo’s severe, ongoing psychological distress and the high risk of self-castration and suicide she faces absent surgery constitute irreparable harm. See Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1324 n.5 (9th Cir. 1994); Thomas v. County of Los Angeles, 978 F.2d 504, 511 (9th Cir. 1992); Chalk v. U.S. Dist. Ct. Cent. Dist. of Cal., 840 F.2d 701, 709 (9th Cir. 1988). Moreover, the deprivation of Edmo’s constitutional right to adequate medical care is sufficient to establish irreparable harm. See Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008) (“Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore

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generally constitute irreparable harm.”), rev’d and remanded on other grounds, 562 U.S. 134 (2011).
The State offers three contentions as to why the district court erred in finding that Edmo would be irreparably injured in the absence of an injunction. None is persuasive.
First, the State argues that the “long delay” of “nearly a year” between Edmo filing her Amended Complaint and her preliminary injunction motion “implies a lack of urgency and irreparable harm.” We disagree. The procedural history demonstrates that Edmo did not sit on her rights. Proceeding pro se, Edmo moved for preliminary injunctive relief when she filed her original complaint. The court then appointed counsel for Edmo, and shortly after appearing, appointed counsel withdrew Edmo’s motion and filed an amended complaint. To assess the urgency of surgery, Edmo’s counsel promptly sought access to Edmo’s medical records, which the State did not produce until more than six months later. Edmo moved for injunctive relief shortly thereafter. During that time, Edmo and her counsel diligently investigated and compiled the necessary record to move for injunctive relief. That it took them months to do their diligence does not suggest that Edmo will not be harmed absent an injunction.
Second, the State contends that Edmo has not established irreparable injury because both she and her expert, Dr. Gorton, agree that GCS is not an emergency surgery and that the State should have six months to provide such surgery. The State’s argument would preclude courts from ordering non-emergent medical care, even if the Eighth Amendment demands it. That is untenable. The State also ignores the rationale for the six-month time period. As Dr. Gorton explained, all patients who receive GCS “are seen, they are evaluated, there is a process you have to go

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through.” In his experience, that process typically concludes within six months. That Edmo requested relief on a reasonable timeline, based on the medical evidence, does not undermine the strong evidence of irreparable injury.
Third, the State contends that Edmo has not established irreparable harm because she “has not attempted suicide or self-castration for years.” That argument overlooks the profound, persistent distress Edmo’s gender dysphoria causes, as well as the credited expert testimony that absent GCS, Edmo is at risk of further attempts at self-castration, and possibly suicide. The district court did not err in finding that Edmo would be irreparably harmed in the absence of an injunction.
IV. Challenges to the Scope of the Injunction
We turn to the State’s contentions that the district court’s injunction was overbroad.
A. Individual Defendants
The State contends that the injunction should not apply to Atencio, Zmuda, Yordy, Siegert, Dr. Young, Dr. Craig, Dr. Eliason, or Dr. Whinnery because the district court did not find that they, individually, were deliberately indifferent to Edmo’s medical needs.
As explained in Section III.A, Edmo has established that Dr. Eliason was deliberately indifferent to her serious medical needs. The injunction was properly entered against him because he personally participated in the deprivation of Edmo’s constitutional rights. See Colwell, 763 F.3d at 1070.
Edmo sued Attencio, Zmuda, and Yordy in their official capacities. An official-capacity suit for injunctive relief is

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properly brought against any persons who “would be responsible for implementing any injunctive relief.” Pouncil v. Tilton, 704 F.3d 568, 576 (9th Cir. 2012). The State does not contest that Attencio, as Director of IDOC, and Zmuda, as Deputy Director of IDOC, would be responsible for implementing any injunctive relief ordered. Edmo properly named them as defendants to her Eighth Amendment claim for injunctive relief, regardless of their personal involvement. See Colwell, 763 F.3d at 1070–71 (director of a state correctional system is a proper defendant in an official-capacity suit seeking injunctive relief for Eighth Amendment violations). Yordy is no longer the Warden of ISCI, but, by operation of the Federal Rules, his successor, Al Ramirez, is “automatically substituted as party” in his official capacity. Fed. R. Civ. P. 25(d). Ramirez is properly a defendant to Edmo’s Eighth Amendment claim for injunctive relief, regardless of his personal involvement. See Colwell, 763 F.3d at 1070–71 (warden is a proper defendant in an official-capacity suit seeking injunctive relief for Eighth Amendment violations). Because Edmo may properly pursue her Eighth Amendment claim for injunctive relief against Attencio, Zmuda, and Ramirez in their official capacities, they are properly included within the scope of the district court’s injunction. On remand, the district court shall amend the injunction to substitute Al Ramirez (or the thencurrent Warden of ISCI) as a party for Yordy.
Edmo also named Yordy as a defendant in his individual capacity. She likewise named Siegert, Dr. Young, Dr. Craig, and Dr. Whinnery as defendants in their individual capacities (though she does not argue on appeal that the injunction properly included them). We hold that the evidence in the current record is insufficient to conclude that they were deliberately indifferent to Edmo’s serious medical needs. In particular, the record does not show what they

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knew about Edmo’s condition and what role they played in her treatment or lack thereof. Edmo has not established their liability, and the district court improperly included them within the scope of the injunction. We vacate the district court’s injunction to the extent it applies to Yordy, Siegert, Dr. Young, Dr. Craig, and Dr. Whinnery in their individual capacities. See California v. Azar, 911 F.3d 558, 585 (9th Cir. 2018) (vacating in part an overbroad injunction and remanding to the district court). On remand, the district court shall modify the injunction to exclude those defendants from its scope.
B. Corizon
The State also contends that the injunction should not apply to Corizon. It urges that Corizon does not have a policy barring GCS and argues that such a policy is a prerequisite to liability under Monell v. Department of Social Services, 436 U.S. 658 (1978). We have not yet determined whether Monell applies “to private entities acting on behalf of state governments,” such as Corizon. Oyenik v. Corizon Health Inc., 696 F. App’x 792, 794 n.1 (9th Cir. 2017). We leave that issue for another day. Instead, we vacate the injunction as to Corizon and remand with instructions to the district court to modify the injunction to exclude Corizon. See Azar, 911 F.3d at 585. Doing so still provides Edmo the relief she seeks at this stage.22

22 For similar reasons, we need not reach Edmo’s contention and the district court’s finding that “Corizon and IDOC have a de facto policy or practice of refusing” GCS to prisoners. Edmo, 358 F. Supp. 3d at 1127.

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C. Relief Ordered
The State next contends that the injunctive relief ordered is overbroad because it requires the State to provide Edmo all “adequate medical care.” The State misconstrues the district court’s order. The order, read in context, requires defendants to provide GCS, as well as “adequate medical care” that is “reasonably necessary” to accomplish that end—not every conceivable form of adequate medical care. Edmo, 358 F. Supp. 3d at 1129; see also id. at 1109 (“Plaintiff Adree Edmo alleges that prison authorities violated her Eighth Amendment rights by refusing to provide her with gender confirmation surgery. For the reasons explained below, the Court agrees and will order defendants to provide her with this procedure, a surgery which is considered medically necessary under generally accepted standards of care.”); id. at 1110 (“[F]or the reasons explained in detail below, IDOC and Corizon will be ordered to provide Ms. Edmo with gender confirmation surgery.”).
The State similarly contends that the injunctive relief ordered is overbroad because it requires the State to provide Edmo surgery even though the defendants are not surgeons and no surgeon has evaluated Edmo. We reject this obtuse reading of the district court’s order. The district court ordered the State to “take all actions reasonably necessary to provide Ms. Edmo gender confirmation surgery.” Edmo, 358 F. Supp. 3d at 1129. That means that the State must take steps within its power to provide GCS to Edmo, such as finding a surgeon and scheduling a surgical evaluation. Indeed, we modified our stay of the district court’s order to permit a surgical consultation, which went forward in April 2019. Oral Arg. at 12:00–12:10. The State cannot reasonably understand the district court’s December 13, 2018 order to require that the defendants themselves provide

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surgery. To the extent there are issues arising from a surgical evaluation, the State can raise those issues with the district court.23
V. Challenges to the Procedure Used by the District Court
Finally, the State contends that the district court improperly converted an evidentiary hearing on a preliminary injunction into a final trial on the merits of Edmo’s Eighth Amendment claim for GCS without giving them adequate notice and in violation of their Seventh Amendment right to a jury trial. We address and reject each contention.
A. Notice
We first address the State’s contention that the district court erroneously converted the evidentiary hearing into a final trial on the merits without giving the State “clear and unambiguous notice.” Under Federal Rule of Civil Procedure 65(a)(2), “[a] district court may consolidate a preliminary injunction hearing with a trial on the merits, but only when it provides the parties with clear and unambiguous notice [of the intended consolidation] either before the hearing commences or at a time which will afford

23 The State contends for the first time in its reply brief that the injunctive relief ordered was inappropriate because the WPATH Standards of Care require two referrals from qualified mental health professionals who have independently assessed the patient before GCS may be provided. It similarly contends for the first time in its reply in support of its motion to dismiss that the order is overbroad because it does not specify the type of GCS ordered. Because the State did not present these arguments in its opening brief, we do not consider them. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

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the parties a full opportunity to present their respective cases.” Isaacson v. Horne, 716 F.3d 1213, 1220 (9th Cir. 2013) (second alteration in original) (quotation omitted). “What constitutes adequate notice depends upon the facts of the case.” Michenfelder v. Sumner, 860 F.2d 328, 337 (9th Cir. 1988).
A party challenging consolidation must show not only inadequate notice, but also “substantial prejudice in the sense that [it] was not allowed to present material evidence.” Michenfelder, 860 F.2d at 337; see also 11A Charles Alan Wright et al., Federal Practice and Procedure § 2950 (3d ed. Apr. 2019 update). “We have on occasion upheld a district court’s failure to give any notice whatsoever before finally determining the merits after only a preliminary injunction hearing, where the complaining party has failed to show how additional evidence could have altered the outcome.” Michenfelder, 860 F.2d at 337.
At the outset, we note that the State was provided notice, twice, that the district court considered the evidentiary hearing a final trial on the merits of Edmo’s request for GCS. At the beginning of the hearing, the district court explained “it’s hard for me to envision this hearing being anything but a hearing on a final injunction at least as to that part of the relief requested [GCS],” and it asked the parties to address by the end of the hearing whether it was for a permanent injunction. At the close of the hearing, the district court again questioned whether it could order GCS in a preliminary injunction. It explained that it had, in effect, “kind of treated this hearing as the final hearing” on Edmo’s request for GCS, and it again asked the parties to address in their oral closings or written briefs whether the hearing was one for a permanent injunction. The State never answered the court’s question or objected to consolidation, despite the

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district court specifically noting it had treated the hearing as final. Cf. Reilly v. United States, 863 F.2d 149, 160 (1st Cir. 1988) (“[W]hen a trial judge announces a proposed course of action which litigants believe to be erroneous, the parties detrimentally affected must act expeditiously to call the error to the judge’s attention or to cure the defect, not lurk in the bushes waiting to ask for another trial when their litigatory milk curdles.”). This is not a case where the district court gave no notice whatsoever.
Regardless, the State has not shown any prejudice. With full awareness of the stakes, the district court permitted the parties four months of discovery and held a three-day evidentiary hearing. The parties called seven witnesses, submitted declarations in lieu of live testimony for other witnesses, and submitted thousands of pages of exhibits and extensive pre- and post-trial briefing. Most importantly, both parties put on extensive evidence concerning the treatment provided to and withheld from Edmo and why it was or was not appropriate—the key issue at the hearing.
When it comes to identifying prejudice, the State is tellingly short on specifics. It indicates that it “would have objected” to consolidation, but it failed to do so despite repeated invitations—indeed, directives—to address the issue. The State also urges that it would have requested that the named defendants be able to testify live, but it stipulated—knowing full well the stakes of the hearing—to submit certain testimony via declaration “[i]n lieu of and/or in addition to live testimony.” Moreover, the State fails to identify what testimony those witnesses would have offered or explain how presenting that testimony live, instead of via declaration, “could have altered the outcome.” Michenfelder, 860 F.2d at 337. The district court did not

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commit reversible error in consolidating the evidentiary hearing with a trial on the merits of Edmo’s request for GCS.
B. Seventh Amendment
We turn to the State’s related contention that the district court violated the defendants’ Seventh Amendment right to a jury trial by converting the evidentiary hearing into a trial on the merits. We review that contention de novo. Palmer v. Valdez, 560 F.3d 965, 968 (9th Cir. 2009).
The Seventh Amendment guarantees the right to a trial by jury “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars.” U.S. Const. amend. VII. In a case such as this, where legal claims are joined with equitable claims, a party “has a right to jury consideration of all legal claims, as well as all issues common to both claims.” Plummer v. W. Int’l Hotels Co., 656 F.2d 502, 504 n.6 (9th Cir. 1981) (citing Curtis v. Loether, 415 U.S. 189, 196 n.11 (1974)). “Otherwise, the court might limit the parties’ opportunity to try to a jury every issue underlying the legal claims by affording preclusive effect to its own findings of fact on questions that are common to both the legal and equitable claims.” Lacy v. Cook County, 897 F.3d 847, 858 (7th Cir. 2018).
Like other constitutional rights, the right to a jury trial in civil suits can be waived. See United States v. Moore, 340 U.S. 616, 621 (1951). It is well established that “[a] failure to object to a proceeding in which the court sits as the finder of fact waives a valid jury demand as to any claims decided in that proceeding, at least where it was clear that the court intended to make fact determinations.” Fillmore v. Page, 358 F.3d 496, 503 (7th Cir. 2004) (quotation omitted); see also 9 Wright & Miller, Federal Practice and Procedure § 2321 (“The right to jury trial also may be waived as it has

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in many, many cases, by conduct, such as failing to object to or actually participating in a bench trial . . . .”).
For example, in White v. McGinnis, we held that “[a] party’s vigorous participation in a bench trial, without so much as a mention of a jury, . . . can only be ascribed to knowledgeable relinquishment of the prior jury demand.” 903 F.2d 699, 703 (9th Cir. 1990) (en banc). We explained that where a party chooses “to argue his case fully before the district judge[,] it is not unjust to hold him to that commitment.” Id. By contrast, we have held that “[w]hen a party participates in [a] bench trial ordered by the trial court while continuing to demand a jury trial, his ‘continuing objection’ is ‘sufficient to preserve his right to appeal the denial of his request for a jury.’” Solis v. County of Los Angeles, 514 F.3d 946, 957 (9th Cir. 2008) (quoting United States v. Nordbrock, 941 F.2d 947, 950 (9th Cir. 1991)). “This is because the party in such a case is not seeking ‘two bites at the procedural apple’ . . . . Rather, when a trial court denies a party a jury trial despite the party’s continuing demand, the party has little choice but to accede to the trial court’s ruling and participate in the bench trial.” Id. (citation omitted); see also Lovelace v. Dall, 820 F.2d 223, 228 (7th Cir. 1987) (“Another policy justifying the jury demand waiver rule is the view that it is unfair to permit a party to have a trial, discover that it has lost, and then raise the jury issue because it is unsatisfied with the result of the trial.”).
The State seeks a second bite at the apple. It vigorously participated in the evidentiary hearing without ever raising the right to a jury trial. The State remained silent in the face of statements from the district court that it was considering treating, and then that it had treated, the hearing as a final trial on the merits, which made it clear that the court “intended to make fact determinations.” Fillmore, 358 F.3d

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at 503. It also remained silent despite the district court asking twice whether the hearing was one for a permanent injunction—as clear a time as any to raise any concerns about a jury trial.
The State raised the issue of a jury trial for the first time on appeal, after the district court ruled against it. Even after the district court’s ruling, the State made no objection or claim to a jury trial. This conduct waived the State’s right to a jury trial with respect to issues common to Edmo’s request for an injunction ordering GCS and her legal claims.
VI. Conclusion
We apply the dictates of the Eighth Amendment today in an area of increased social awareness: transgender health care. We are not the first to speak on the subject, nor will we be the last. Our court and others have been considering Eighth Amendment claims brought by transgender prisoners for decades. During that time, the medical community’s understanding of what treatments are safe and medically necessary to treat gender dysphoria has changed as more information becomes available, research is undertaken, and experience is gained. The Eighth-Amendment inquiry takes account of that developing understanding. See Estelle, 429 U.S. at 102–03.
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.

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* * *
We affirm the district court’s entry of an injunction for Edmo. However, we vacate the injunction to the extent it applies to Corizon, Yordy, Siegert, Dr. Young, Dr. Craig, and Dr. Whinnery, in their individual capacities, and remand to the district court to modify the injunction accordingly. The district court shall also modify the injunction to substitute Al Ramirez in his official capacity as Warden of ISCI for Yordy.
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. 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.
In light of the nature and urgency of the relief at issue, we will disfavor any motion, absent extraordinary circumstances or consent from all parties, to extend the period to petition for rehearing or rehearing en banc. Our stay of the district court’s December 13, 2018 order shall automatically terminate upon issuance of the mandate.
Costs on appeal are awarded to Edmo.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

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Case: 19-35017, 08/23/2019, ID: 11407843, DktEntry: 96-3, Page 1 of 4

United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment •

This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. Purpose (Panel Rehearing): • A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not addressed in the opinion. • Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc) • A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 12/2018

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► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

Post Judgment Form - Rev. 12/2018

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• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms.
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Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at www.ca9.uscourts.gov under Forms.
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Petition for a Writ of Certiorari • Please refer to the Rules of the United States Supreme Court at www.supremecourt.gov
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Post Judgment Form - Rev. 12/2018

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Form 10. Bill of Costs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form10instructions.pdf
9th Cir. Case Number(s)
Case Name The Clerk is requested to award costs to (party name(s)):

I swear under penalty of perjury that the copies for which costs are requested were actually and necessarily produced, and that the requested costs were actually expended.

Signature

Date

(use “s/[typed name]” to sign electronically-filed documents)

COST TAXABLE DOCUMENTS / FEE PAID

REQUESTED (each column must be completed)

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$

Principal Brief(s) (Opening Brief; Answering
Brief; 1st, 2nd , and/or 3rd Brief on Cross-Appeal; Intervenor Brief)

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$

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Supplemental Brief(s)

$

$

Petition for Review Docket Fee / Petition for Writ of Mandamus Docket Fee $

TOTAL: $

*Example: Calculate 4 copies of 3 volumes of excerpts of record that total 500 pages [Vol. 1 (10 pgs.) + Vol. 2 (250 pgs.) + Vol. 3 (240 pgs.)] as: No. of Copies: 4; Pages per Copy: 500; Cost per Page: $.10 (or actual cost IF less than $.10); TOTAL: 4 x 500 x $.10 = $200.
Feedback or questions about this form? Email us at forms@ca9.uscourts.gov

Form 10

Rev. 12/01/2018

 
 Case: 19-35017, 02/10/2020, ID: 11590647, DktEntry: 105-1, Page 1 of 48

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ADREE EDMO, AKA Mason Edmo, Plaintiff-Appellee,
v.
CORIZON, INC.; SCOTT ELIASON; MURRAY YOUNG; CATHERINE WHINNERY,
Defendants-Appellants,
and
IDAHO DEPARTMENT OF CORRECTIONS; HENRY ATENCIO; JEFF ZUMDA; HOWARD KEITH YORDY; AL RAMIREZ, Warden; RICHARD CRAIG; RONA SIEGERT,
Defendants.

No. 19-35017
D.C. No. 1:17-cv-00151-
BLW

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EDMO V. CORIZON

ADREE EDMO, AKA Mason Edmo, Plaintiff-Appellee,
v.
IDAHO DEPARTMENT OF CORRECTIONS; HENRY ATENCIO; JEFF ZUMDA; HOWARD KEITH YORDY; AL RAMIREZ, Warden; RICHARD CRAIG; RONA SIEGERT,
Defendants-Appellants,
and
CORIZON, INC.; SCOTT ELIASON; MURRAY YOUNG; CATHERINE WHINNERY,
Defendants.

No. 19-35019
D.C. No. 1:17-cv-00151-
BLW
ORDER

Filed February 10, 2020
Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Robert S. Lasnik,* District Judge.
Order; Statement by Judge O’Scannlain;
Dissent by Judge Collins; Dissent by Judge Bumatay

* The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation.

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SUMMARY**

Prisoner Civil Rights
The panel denied a petition for panel rehearing and denied a petition for rehearing en banc on behalf of the court, in a case in which the panel affirmed the district court’s entry of a permanent injunction in favor of an Idaho state prisoner, but vacated the injunction to the extent it applied to certain defendants in their individual capacities, in the prisoner’s action seeking medical treatment for gender dysphoria.
Respecting the denial of rehearing en banc, Judge O’Scannlain, joined by Judges Callahan, Bea, Ikuta, R. Nelson, Bade, Bress, Bumatay and VanDyke, stated that with its decision not to rehear this case en banc, this court became the first federal court of appeals to mandate that a State pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment. Judge O’Scannlain stated that the three-judge panel’s conclusion—that any alternative course of treatment would be “cruel and unusual punishment”—is as unjustified as it is unprecedented. To reach such a conclusion, the court created a circuit split, substituted the medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, redefined the familiar “deliberate indifference” standard, and, in the end, constitutionally enshrined precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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Dissenting from the denial of rehearing en banc, Judge Collins stated that whether the defendant doctor was negligent or not (a question on which Judge Collins expressed no opinion), his treatment decisions did not amount to “cruel and unusual punishment,” and the court thus strayed far from any proper understanding of the Eighth Amendment.

Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Callahan, Ikuta, R. Nelson, Bade and VanDyke, and by Judge Collins as to Part II, stated that by judicially mandating an innovative and evolving standard of care, the panel effectively constitutionalized a set of guidelines subject to ongoing debate and inaugurated yet another circuit split. And by diluting the requisite state of mind from “deliberate indifference” to negligence, the panel effectively held that—contrary to Supreme Court precedent—medical malpractice does become a constitutional violation merely because the victim is a prisoner.

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ORDER
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of nonrecused active judges in favor of en banc consideration. Fed R. App. P. 35.
The petition for rehearing en banc is DENIED. An opinion respecting denial of rehearing en banc, prepared by Judge O’Scannlain, and dissents from denial of rehearing en banc prepared by Judge Collins and Judge Bumatay are filed concurrently with this order.

O’SCANNLAIN, Circuit Judge,* with whom CALLAHAN, BEA, IKUTA, R. NELSON, BADE, BRESS, BUMATAY, and VANDYKE, Circuit Judges, join, respecting the denial of rehearing en banc:
With its decision today, our court becomes the first federal court of appeals to mandate that a State pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment. The three-judge panel’s conclusion— that any alternative course of treatment would be “cruel and unusual punishment”—is as unjustified as it is unprecedented. To reach such a conclusion, the court creates a circuit split, substitutes the medical conclusions of federal
* As a judge of this court in senior status, I no longer have the power to vote on calls for rehearing cases en banc or formally to join a dissent from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. P. 35(a). Following our court’s general orders, however, I may participate in discussions of en banc proceedings. See Ninth Circuit General Order 5.5(a).

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judges for the clinical judgments of prisoners’ treating physicians, redefines the familiar “deliberate indifference” standard, and, in the end, constitutionally enshrines precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.
Respectfully, I believe our court’s unprecedented decision deserved reconsideration en banc.
I
A
In 2012, Adree Edmo (then known as Mason Dean Edmo) was incarcerated for sexually assaulting a sleeping 15-year-old boy. By all accounts, Edmo is afflicted with profound and complex mental illness. She1 suffers from major depressive disorder, anxiety, alcohol addiction, and drug addiction. At least two clinicians have concluded that she shares the traits of borderline personality disorder. She abused alcohol and methamphetamines every day for many years, stopping only upon her incarceration. A victim of sexual abuse at an early age, she attempted suicide three times before her arrest for sexual assault—twice by overdose and once by cutting.
A new diagnosis was added in 2012: gender dysphoria. Two months after being transferred to the Idaho State Correctional Institution (a men’s prison), Edmo sought to speak about hormone therapy with Dr. Scott Eliason, the Board-certified director of psychiatry for Corizon, Inc. (the prison’s medical care provider). In Dr. Eliason’s view,
1 Though Edmo was born a male, Edmo has legally changed the sex listed on her birth certificate to female. I therefore use feminine pronouns throughout, just as the panel does.

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Edmo met the criteria for gender dysphoria.2 After the diagnosis was confirmed by another forensic psychiatrist and the prison’s Management and Treatment Committee, Edmo was prescribed hormone therapy. She soon changed her legal name and the sex listed on her birth certificate. As a result of four years of hormone therapy, Edmo experienced physical changes, including breast development, redistribution of body fat, and a change in body odor. She now has the same circulating hormones as a typical adult female.

In April 2016, at Edmo’s request, Dr. Eliason evaluated her for sex-reassignment surgery.3 Ultimately, Dr. Eliason decided to maintain the current course of hormones and supportive counseling instead of prescribing surgery. He staffed Edmo’s case with Dr. Jeremy Stoddart (a psychiatrist) and Dr. Murray Young (a physician who served as the Regional Medical Director for Corizon), as well as Jeremy Clark, a clinical supervisor and member of the World Professional Association for Transgender Health (“WPATH”). He also presented the evaluation and vetted it

2 Gender dysphoria is a diagnosis introduced in the latest, fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. It replaces the now-obsolete “gender identity disorder” used in the previous edition. The gender dysphoric patient experiences “clinically significant distress or impairment in social, occupational, or other important areas of functioning” that is associated with the feeling of incongruence between perceived gender identity and phenotypic sex. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 453 (5th ed. 2013).
3 The panel adopts the question-begging term “gender confirmation surgery,” which is preferred by Edmo and her lawyers. I will continue to use the neutral “sex-reassignment surgery.”

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before the regular meeting of the multidisciplinary Management Treatment Committee.
Dr. Eliason, supported by Dr. Stoddart, Dr. Young, and Clark, opted not to recommend sex-reassignment surgery for several reasons, some of which are described in his chart notes and others of which were elaborated in their testimony. First, Dr. Eliason noted that Edmo reported that the hormone therapy had improved her dysphoria and Eliason “did not observe significant dysphoria.” In the absence of more severe distress, Dr. Eliason could not justify the risks of pursuing the most aggressive—and permanent—treatment through surgery. Second, Dr. Eliason observed that Edmo’s comorbid conditions—major depressive disorder and alcohol use disorder, among others—were not adequately controlled. Edmo had refused to attend therapy consistently in prison. She also engaged in self harm (including cutting and attempted castration) and exhibited co-dependency and persistently poor sexual boundaries with other prisoners. In Dr. Eliason’s view, Edmo’s other mental health disorders were not sufficiently stabilized to handle the stressful process of surgery and transition. Finally, Dr. Eliason observed that Edmo—who was parole-eligible and due to be released in 2021—had not lived among her out-of-prison social network as a woman. He noted the high suicide rates for postoperative patients and was concerned that Edmo might be at greater risk of suicide given the potential lack of support from family, friends, coworkers, and neighbors during her transition. Dr. Eliason did not rule out the possibility of Edmo receiving sex-reassignment surgery at some later point. As Dr. Eliason put it in his notes on his consultation with Edmo, “Medical Necessity for Sexual Reassignment Surgery is not very well defined and is constantly shifting.” Citing the changing nature of the

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science and the contingent nature of his evaluation of Edmo, his recommendations were merely “for the time being.”
B
About a year after her evaluation, Edmo filed this § 1983 lawsuit against Dr. Eliason, the Idaho Department of Corrections, Corizon, and several other individuals, alleging that the prison doctors’ treatment choice violated her right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments. She then moved for a preliminary injunction to require the prison to provide her with sex-reassignment surgery.
The district court held an evidentiary hearing on the motion. At the outset of the hearing, the court commented that it was hard “to envision” how a request to mandate sexreassignment surgery could be granted through anything other than a permanent injunction. Nonetheless, the district court evaluated Edmo’s motion under the preliminary injunction standard and, only out of “an abundance of caution,” provided a footnote evaluating whether an injunction was merited under the more demanding standard for a permanent injunction (which the court erroneously described as “no more rigorous than that applicable to a claim for preliminary mandatory relief”). Edmo v. Idaho Dep’t of Corr., 358 F. Supp. 3d 1103, 1122 n.1 (D. Idaho 2018); see Edmo v. Corizon, Inc., 935 F.3d 757, 784 n.13 (9th Cir. 2019) (“[T]he standard for granting permanent injunctive relief is higher (in that it requires actual success on the merits) . . . .”).
In addition to testimony from Edmo, Dr. Eliason, and Jeremy Clark, the evidentiary hearing featured testimony from four expert witnesses. Edmo presented Dr. Randi Ettner, a psychologist, and Dr. Ryan Gorton, an emergency

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room physician. Dr. Ettner is one of the authors of the World Professional Association of Transgender Health’s Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People and chairs WPATH’s Committee for Institutionalized Persons. Dr. Gorton serves on that committee too. WPATH—formerly the Harry Benjamin International Gender Dysphoria Association— describes itself as a “professional association” devoted “to developing best practices and supportive policies worldwide that promote health, research, education, respect, dignity, and equality for transsexual, transgender, and gender nonconforming people in all cultural settings.” World Prof’l Ass’n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and GenderNonconforming People 1 (7th ed. 2011) (“WPATH Standards”). One of WPATH’s central functions is to promulgate Standards of Care, which offer minimalist treatment criteria for several possible approaches to gender dysphoria, from puberty-blocking hormones to sexreassignment surgery.
In addition to Dr. Eliason and Mr. Clark, the State presented Dr. Keelin Garvey, the Chief Psychiatrist of the Massachusetts Department of Corrections and chair of its Gender Dysphoria Treatment Committee, and Dr. Joel Andrade, a clinical social worker who served as clinical director for the Massachusetts Department of Corrections and served on its Gender Dysphoria Treatment Committee. Each set of experts had gaps in their relevant experience. Edmo’s experts had never treated inmates with gender dysphoria, while the State’s experts had never conducted long-term follow-up care with a patient who had undergone sex-reassignment surgery.

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Edmo’s experts testified that, in their opinion, Edmo needs sex-reassignment surgery. They based their conclusion on the latest edition of WPATH Standards of Care, which contain six criteria for sex-reassignment surgery:
(1) “persistent, well documented gender dysphoria,”
(2) “capacity to make a fully informed decision and to consent for treatment,”
(3) “age of majority,”
(4) “if significant medical or mental health concerns are present, they must be well controlled,”
(5) “12 continuous months of hormone therapy as appropriate to the patient’s gender goals,”
(6) “12 continuous months of living in a gender role that is congruent with their gender identity.”
Id. at 60. In the opinion of Edmo’s experts, Edmo met all six criteria and was unlikely to show further improvement in her gender dysphoria without such surgery.
The State’s experts disagreed on three main grounds. First, they did not regard the WPATH Standards as definitive treatment criteria, let alone medical consensus. In their analysis, the evidence underlying the WPATH Standards is not sufficiently well developed, particularly when it comes to the treatment of gender dysphoric prisoners. Therefore, they opined that a prudent, competent doctor might rely on clinical judgment that differs from the (already ambiguous) WPATH Standards. Second, the State’s experts testified that, even under WPATH, Edmo failed to meet the fourth

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criterion for surgery, which requires that the patient’s other mental health concerns be well controlled in order to reduce the risks associated with transitioning. In the view of the State’s experts, her mental health raised the concern that she would have trouble transitioning. For their part, Edmo’s experts argued that Edmo’s depression and addiction were controlled enough for surgery and that some current symptoms (such as self-cutting) stem from her gender dysphoria and therefore can be alleviated with surgery. Finally, the State’s experts testified that Edmo also failed to meet the WPATH Standards’ sixth criterion for surgery, which requires that Edmo live as a woman for twelve months before surgery. In their view, it was essential that Edmo live those twelve months outside of prison—that is, within her social network—in order to be adequately sure that she and her social network are ready for the challenges posed by transitioning. Edmo’s experts disagreed, noting that WPATH says treatment in prisons should “mirror” treatment outside of prisons.
C
Although this appeal is from a grant of a preliminary injunction, at some point the evidentiary hearing on the motion for a preliminary injunction was consolidated into a final bench trial on the merits. It is hard to know when (or if) the parties were given the requisite “clear and unambiguous notice” of consolidation. See Isaacson v. Horne, 716 F.3d 1213, 1220 (9th Cir. 2013); see also Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).
The district court applied the Supreme Court’s oft-cited rule that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v.

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Georgia, 428 U.S. 153, 173 (1976)). The State agreed that gender dysphoria is a serious medical need, so the only question on the merits is whether Dr. Eliason and his team were “deliberately indifferent” as a matter of law.
The district court concluded that the State’s experts were “unconvincing” and gave their opinions “virtually no weight.” Edmo, 358 F. Supp. 3d at 1125–26. Once such expert testimony was set aside, the district court held that any decision not to prescribe sex-reassignment surgery would be “medically unacceptable under the circumstances” and would therefore violate the Eighth Amendment. Id. at 1127. Accordingly, the district court entered an injunction ordering the State to “take all actions reasonably necessary to provide Ms. Edmo gender confirmation surgery as promptly as possible.” Id. at 1129.
D
The panel has now affirmed the injunction. See Edmo, 935 F.3d at 803. Concluding that sex-reassignment surgery was “medically necessary” and that the prison officials chose a different course of treatment “with full awareness of the prisoner’s suffering,” the panel holds that Dr. Eliason and the other prison officials “violate[d] the Eighth Amendment’s prohibition on cruel and unusual punishment.” Id.
To reach its conclusion that sex-reassignment surgery was medically necessary, the panel spends most of its lengthy opinion extolling and explaining the WPATH Standards of Care. Because Dr. Eliason failed to “follow” or “reasonably deviate from” the WPATH Standards, the panel concluded that his treatment choice was “medically unacceptable under the circumstances.” Id. at 792. To reach the ultimate conclusion—that Dr. Eliason had a deliberately

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indifferent state of mind and was consequently in violation of the Eighth Amendment—the panel posited that Dr. Eliason’s awareness of the risks that Edmo would attempt to castrate herself or feel “clinically significant” distress “demonstrates that Dr. Eliason acted with deliberate indifference.” Id. at 793. Each conclusion was legal error.

II

“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). It is, after all, under governing precedent one form of the “unnecessary and wanton infliction of pain” that is the sine qua non of an Eighth Amendment violation. Estelle, 429 U.S. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Simply put, Edmo must prove that Dr. Eliason’s chosen course of treatment was the doing of a criminally reckless—or worse—state of mind. Farmer v. Brennan, 511 U.S. 825, 839 (1994).

We have stated that a deliberately indifferent state of

mind may be inferred when “the course of treatment the

doctors chose was medically unacceptable under the

circumstances” and “they chose this course in conscious

disregard of an excessive risk to plaintiff’s health.” Jackson

v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Yet even

most objectively unreasonable medical care is not

deliberately indifferent.

“[M]ere ‘indifference,’

‘negligence,’ or ‘medical malpractice’” is not enough to

constitute deliberate indifference. Lemire v. Cal. Dep’t of

Corr. & Rehab., 726 F.3d 1062, 1082 (9th Cir. 2013)

(quoting Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th

Cir. 1980)). “Even gross negligence is insufficient to

establish deliberate indifference . . . .” Id. Likewise, “[a]

difference of opinion between a physician and the prisoner—

or between medical professionals—concerning what

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medical care is appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc). Although the panel organizes its opinion according to the dictum we first articulated in Jackson, it so contorts the standard as to render deliberate indifference exactly what we have said it is not: a constitutional prohibition on good-faith disagreement between medical professionals.
A
The panel first, and fundamentally, errs by misunderstanding what it means for a chosen treatment to be medically “unacceptable” for purposes of the Eighth Amendment. As did the district court, the panel concludes that the decision to continue hormone treatment and counseling instead of sex-reassignment surgery for Edmo was “medically unacceptable under the circumstances” because, in short, Dr. Eliason failed to “follow” or “reasonably deviate from” the WPATH Standards of Care. Edmo, 935 F.3d at 792. Yet such an approach to the Eighth Amendment suffers from three essential errors. First, contrary to the panel’s suggestion, constitutionally acceptable medical care is not defined by the standards of one organization. Second, the panel relies on standards that were promulgated by a controversial self-described advocacy group that dresses ideological commitments as evidence-based conclusions. Third, once the WPATH Standards are put in proper perspective, we are left with a “case of dueling experts,” compelling the conclusion that Dr. Eliason’s treatment choice was indeed medically acceptable.

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1
A mere professional association simply cannot define what qualifies as constitutionally acceptable treatment of prisoners with gender dysphoria. In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court rejected the argument that prison conditions must reflect those set forth in the American Public Health Association’s Standards for Health Services in Correctional Institutions, the American Correctional Association’s Manual of Standards for Adult Correctional Institutions, or the National Sheriffs’ Association’s Handbook on Jail Architecture. Id. at 543 n.27. According to the Court, “the recommendations of these various groups may be instructive in certain cases, [but] they simply do not establish the constitutional minima.” Id. After all, even acclaimed, leading treatment criteria only represent the “goals recommended by the organization in question” and the views of the promulgating physicians,4 and so, without more, a physician’s disagreement with such criteria is simply the “‘difference of medical opinion’ . . . [that is] insufficient, as a matter of law, to establish deliberate indifference.” Id.; Jackson, 90 F.3d at 332 (quoting Sanchez, 891 F.2d at 242); accord Snow, 681 F.3d at 987; see also Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996) (“[N]othing in the Eighth Amendment prevents prison doctors from exercising their independent medical judgment.”).
In its discussion of the role of treatment standards, the panel fails to cite a single case in which a professional organization’s standards of care defined the line between medically acceptable and unacceptable treatment. Instead, the panel cites two cases, one from the Seventh Circuit and

4 Although, as we will see, only half of the committee that promulgates the WPATH Standards are physicians.

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one from the Eighth, for the proposition that professional organizations’ standards of care are “highly relevant in determining what care is medically acceptable and unacceptable.” Edmo, 935 F.3d at 786 (emphasis added). That may be. But as those two cases demonstrate, the range of medically acceptable care is defined by qualities of that care (or of its opposite) and not by professional associations. Medically unacceptable care is “grossly incompetent or inadequate care,” Allard v. Baldwin, 779 F.3d 768, 772 (8th Cir. 2015), or care that constitutes “such a substantial departure from accepted professional judgment to demonstrate that the person responsible did not base the decision on . . . [accepted professional] judgment,” Henderson v. Ghosh, 755 F.3d 559, 566 (7th Cir. 2014) (original parenthetical) (quoting McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013) (stipulating that “medical professionals . . . are ‘entitled to deference in treatment decisions unless no minimally competent professional would have so responded’”)). For its part, the First Circuit holds in its own sex-reassignment-surgery case that medical care does not violate the Eighth Amendment so long as it is “reasonably commensurate with the medical standards of prudent professionals.” Kosilek v. Spencer, 774 F.3d 63, 90 (1st Cir. 2014) (en banc). The panel is alone in its insistence that a professional association’s standards add up to the constitutional minima.5

5 Far from countering such assertions, the panel’s concession that “deviation from [WPATH] standards does not alone establish an Eighth Amendment claim” is just a truism that recognizes that the Eighth Amendment also contains a subjective element. Edmo, 935 F.3d at 789. Moreover, such a statement serves simply to repeat the panel’s faulty premise that the WPATH Standards are the appropriate reference point in any analysis of medical acceptability.

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2
In the words of the panel, speaking for our court, the WPATH Standards are “the gold standard,” the “established standards” for evaluations of the necessity of sexreassignment surgery, the “undisputed starting point in determining the appropriate treatment for gender dysphoric individuals.” Edmo, 935 F.3d at 787–88, 788 n.16. But such overwrought acclaim is just the beginning of the panel’s thorough enshrinement of the WPATH Standards. The district court chose which expert to rely on by looking at which expert hewed most closely to the WPATH Standards of Care. See Edmo, 358 F. Supp. 3d at 1124–26. And the panel uncritically approves such an approach, calling the WPATH Standards “a useful starting point for analyzing the credibility and weight to be given to each expert’s opinion.” Edmo, 935 F.3d at 788 n.16. By rejecting any expert not (in the court’s view) appropriately deferential to WPATH, the district court and now the panel have effectively decided ab initio that only the WPATH Standards could constitute medically acceptable treatment.6

6 In enshrining the WPATH Standards as the “gold standard” for determining when to provide surgery to a prisoner with gender dysphoria, the panel makes much of the State’s comment in its opening statement before the evidentiary hearing that the WPATH Standards are the “best standards out there.” Edmo, 935 F.3d at 769, 788 n.16. The panel even goes so far as to insist that “[b]oth sides . . . agree that the appropriate benchmark regarding treatment for gender dysphoria is the World Professional Association of Transgender Health Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People.” Id. at 767. But, contrary to the panel’s suggestion, the State’s admission that the WPATH Standards are more refined than any alternative hardly means that the State agrees—or the Eighth Amendment requires—that a medical provider must base treatment decisions on WPATH’s criteria. Indeed, before the district

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One would be forgiven for inferring from the panel’s opinion that its bold assertions about the WPATH Standards are uncontroverted truths. But, as the Fifth Circuit has recognized, “the WPATH Standards of Care reflect not consensus, but merely one side in a sharply contested medical debate over sex reassignment surgery.” Gibson v. Collier, 920 F.3d 212, 221 (5th Cir. 2019). For its part, the First Circuit, sitting en banc, has likewise held that “[p]rudent medical professionals . . . do reasonably differ in their opinions regarding [WPATH’s] requirements.” Kosilek, 774 F.3d at 88. Our court should have done the same.
The WPATH Standards are merely criteria promulgated by a controversial private organization with a declared point of view. According to Dr. Stephen Levine, author of the WPATH Standards’ fifth version, former Chairman of WPATH’s Standards of Care Committee, and the courtappointed expert in Kosilek, WPATH attempts to be “both a scientific organization and an advocacy group for the transgendered. These aspirations sometimes conflict.” Id. at 78. Sometimes the pressure to be advocates wins the day. As Levine put it, “WPATH is supportive to those who want sex reassignment surgery. . . . Skepticism and strong alternate views are not well tolerated. Such views have been known to be greeted with antipathy from the large numbers of nonprofessional adults who attend each [of] the organization’s biennial meetings . . . .” Id. (ellipses and

court and before our court, the State clearly rejected the notion that any particular treatment criteria defines what is medically acceptable, stating that Dr. Eliason’s choice “should be ratified as long as it is a reasonable choice.” The panel erroneously construes the State’s refusal to concede that it violated the WPATH Standards as a concession that such standards are the “benchmark” of legally acceptable medical care.

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brackets original). WPATH’s own description of its drafting process makes this clear. Initially, the sections of the sixth version were each assigned to an individual member of WPATH who then published a literature review with suggested revisions. WPATH Standards, supra, at 109. The suggested revisions were then discussed and debated by a thirty-four-person Revision Committee, all before a subcommittee drafted the new document. Id. at 109–11. Only about half of the Revision Committee possesses a medical degree. The rest are sexologists, psychotherapists, or career activists, with a sociologist and a law professor rounding out the group. Id. at 111.
The pressure to be advocates appears to have won the day in the WPATH Standards’ recommendations regarding institutionalized persons. Recall that one central point of contention between the State’s witnesses and Edmo’s was over whether Edmo’s time undergoing hormone therapy in prison provides sufficient guarantee that she could live well outside of prison as a woman without having ever done so before. The district court resolved the debate by citing the WPATH Standards’ section on institutionalized persons, see Edmo, 358 F. Supp. 3d at 1125, which tersely stipulates that institutionalized persons should not be “discriminated against” on the basis of their institutionalization, WPATH Standards, supra, at 67. Such a recommendation is not supported by any research about the similarity between prisoners’ experiences with sex-reassignment surgery and that of the general public. Indeed, as Edmo’s expert witness and WPATH author, Dr. Randi Ettner, admits, there is only one known instance of a person undergoing sexreassignment surgery while incarcerated—leaving medical knowledge about how such surgery might differ totally undeveloped.

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Instead, WPATH’s recommendation for institutionalized persons merely expresses a policy preference. The article from which the recommendations are adapted stipulates upfront that, because WPATH’s “mission” is “to advocate for nondiscriminatory” care, it presumes that treatment choices should be the same for all “demographic variables, unless there is a clinical indication to provide services in a different fashion.” George R. Brown, Recommended Revisions to the World Professional Association for Transgender Health’s Standards of Care Section on Medical Care for Incarcerated Persons with Gender Identity Disorder, 11 Int’l J. of Transgenderism 133, 134 (2009). Unable to make an evidentiary finding from a sample size of one, the article concludes that its presumption should set the standard of care and then proceeds to recommend revisions with the express purpose of influencing how courts review gender dysphoria treatments under the Eighth Amendment. Id. at 133, 135. As a later peer-reviewed study by Dr. Cynthia Osborne and Dr. Anne Lawrence put it, WPATH’s institutionalized-persons recommendations follow from an “ethical principle,” not “extensive clinical experience.” Cynthia S. Osborne & Anne A. Lawrence, Male Prison Inmates With Gender Dysphoria: When Is Sex Reassignment Surgery Appropriate?, 45 Archives of Sexual Behav. 1649, 1651 (2016).
Even apart from the concerns over WPATH’s ideological commitments, its evidentiary basis is not sufficient to justify the court’s reliance on its strict terms. The WPATH Standards seem to suggest as much. In its own words, the WPATH Standards are simply “flexible clinical guidelines,” which explicitly allow that “individual health professionals and programs may modify them.” WPATH Standards, supra, at 2. Indeed, the most recent WPATH Standards “represents a significant departure from previous

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versions” in part due to significant changes in researchers’ conclusions over the preceding decade. Id. at 1 n.2. Moreover, the WPATH Standards lack the evidence-based grading system that characterizes archetypal treatment guidelines, such as the Endocrine Society’s hormone therapy guidelines. Lacking evidence-based grading, the WPATH Standards leave practitioners in the dark about the strength of a given recommendation. See William Byne et al., Report of the American Psychiatric Association Task Force on Treatment of Gender Identity Disorder, 41 Archives of Sexual Behav. 759, 783 (2012) (concluding that “the level of evidence” supporting WPATH’s Standards’ criteria for sex-reassignment surgery “was generally low”). For these reasons, the Centers for Medicare & Medicaid Services, an agency of the United States Department of Health and Human Services, decided, “[b]ased on a thorough review of the clinical evidence,” that providers may consult treatment criteria other than WPATH, including providers’ own criteria. Ctrs. for Medicare & Medicaid Servs, Proposed Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (June 2, 2016); Ctrs. for Medicare & Medicaid Servs, Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (Aug. 30, 2016).
3
The panel’s disposition results from its failure to put the WPATH Standards in proper perspective. Had the district court understood that Edmo’s experts’ role in WPATH marks them not with special insight into the legally acceptable care, but rather as mere participants in an ongoing medical debate, they would have acknowledged this case for what it is: a “case of dueling experts.” Edmo, 935 F.3d at 787. Instead of giving Drs. Garvey and Andrade (to say nothing of Dr. Eliason) “no weight” due to their insufficient

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fealty to WPATH, the district court should have recognized them as legitimate, experienced participants in that debate. And had the State’s experts’ criticisms of and interpretation of the WPATH Standards been given proper weight—any weight at all—the district court would have had to conclude that the State’s disagreement with Edmo’s experts was a mere “difference of medical opinion,” not a constitutional violation. Jackson, 90 F.3d at 332.
So too with its assessment of Dr. Eliason’s treatment choice. It is instructive that the worst the district court can say about Dr. Eliason is that he “did not apply the WPATH criteria.” Edmo, 358 F. Supp. 3d at 1126. Focusing the analysis not on whether Dr. Eliason applied the standards of a professional association but rather on whether the treatment choice was within that of a prudent, competent practitioner, the cautious treatment selected by Dr. Eliason is plainly constitutionally acceptable.
As Drs. Garvey and Andrade explain, it is medically acceptable to offer Edmo a treatment of hormone therapy and psychotherapy but not sex-reassignment surgery. The practitioners’ fear that sex-reassignment surgery would exacerbate Edmo’s other mental illnesses and increase the risk of surgery was a genuine and sound fear. As Dr. Garvey put it, “[b]ased on her current coping strategies, I would be concerned about her suicide risk after surgery.” Although the measured “regret rate,” which refers to the proportion of postoperative patients who regret their surgery, is “low,” see Edmo, 935 F.3d at 771, the district court and the panel failed to acknowledge detailed testimony that those studies neglected to follow up with such a high proportion of the observed sample that the stated figure does not “represent the full picture.” In Dr. Andrade’s opinion, “I think there are things she needs to work out in therapy in the short and long

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term before she can make a really well-informed decision about surgery.” He raised the concern that Edmo is particularly at risk because of “unresolved trauma” that may stem, not from gender dysphoria, but instead from past sexual abuse.
Dr. Eliason’s view that Edmo needed to have lived as a woman outside of prison in order to ensure that she would be able to adapt well after the surgery was also legitimate. Indeed, under the peer-reviewed treatment criteria developed by Drs. Osborne and Lawrence, Edmo was not eligible for sex-reassignment surgery for these exact reasons. Acknowledging the lack of evidence concerning the effects of sex-reassignment surgery on inmates, the unique challenges imposed by the correctional setting, and the significant risk of patient regret, Drs. Osborne and Lawrence proposed criteria that require a prospective patient have “a satisfactory disciplinary record and demonstrated capacity to cooperate” and “a long period of expected incarceration after [surgery],” among others. Osborne & Lawrence, supra, at 1661. This latter criterion helps to ensure that male-tofemale patients have “a longer period of time to consolidate one’s feminine gender identity and gender role.” Id. at 1660; see also id. at 1656 (“[I]nmates with [gender dysphoria] who attempt to live in female-typical gender roles within men’s prisons . . . could not effectively prepare” for life after surgery.) The district court disregarded such additional, peer-reviewed treatment criteria because they “are not part of the WPATH criteria and are in opposition to the WPATH Standards of Care.” Edmo, 358 F. Supp. 3d at 1126. Had the district court taken a step back and considered not whether Osborne and Lawrence were WPATH-compliant but rather whether a competent physician could rely on their reasoning, it would have had to conclude that Dr. Eliason’s treatment choice was that of a competent, prudent physician.

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Perhaps recognizing such problems with the district court’s definition of medical unacceptability, the panel concludes its medical-unacceptability analysis by changing the subject. Instead of considering whether Dr. Eliason’s choice of treatment was medically unacceptable, the panel fixates on Dr. Eliason’s chart notes, which sets forth three general categories in which he believes sex-reassignment surgery may be required: (1) “Congenital malformation or ambiguous genitalia,” (2) “Severe and devastating dysphoria that is primarily due to genitals,” (3) or “Some type of medical problem in which endogenous sexual hormones were causing severe physiological damage.” According to the panel, such categories “bear little resemblance” to the WPATH Standards and therefore “Dr. Eliason’s evaluation was not an exercise of medically acceptable professional judgment.” Edmo, 935 F.3d at 791–92. In the first place, Dr. Eliason’s categories are not meant to substitute for treatment standards. Such categories describe three broad pools of eligible patients; whether a particular patient belongs in a certain pool—by having dysphoria sufficiently severe to require sex-reassignment surgery, for instance— would be resolved by more detailed evaluative criteria. In the second place, conformity to WPATH is not the test of constitutionally acceptable treatment of gender dysphoria. But more broadly, the panel simply asks the wrong question. Deliberate indifference may be inferred when “the course of treatment the doctors chose was medically unacceptable under the circumstances,” not when the doctors’ contemporaneous explanation of the choice is incomplete. Jackson, 90 F.3d at 332 (emphasis added); see also Snow, 681 F.3d at 988; Toguchi, 391 F.3d at 1058; Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (all referring to the “course of treatment,” not the rationale). It does not matter that Dr. Eliason’s testimony justifies his treatment choice in ways not explicit in his chart notes such that the

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panel calls his testimony a “post hoc explanation.” Edmo, 935 F.3d at 791. So long as the ultimate treatment choice was medically acceptable, our precedents tell us, we cannot infer “the unnecessary and wanton infliction of pain” that violates the Eighth Amendment.
B
Even were the panel correct that the only medically acceptable way to approach a gender dysphoric patient’s request for sex-reassignment surgery is to apply the WPATH Standards of Care, we still could not infer a constitutional violation from these facts. As the Supreme Court has explained, the Eighth Amendment simply proscribes categories of punishment, and punishment is “a deliberate act intended to chastise or deter.” Wilson v. Seiter, 501 U.S. 294, 299–300 (1991). “[O]nly the ‘unnecessary and wanton infliction of pain’ implicates the Eighth Amendment.” Id. at 297 (quoting Estelle, 429 U.S. at 104) (emphasis original). Hence the commonplace deliberate-indifference inquiry, which is a culpability standard equivalent to criminal recklessness. Farmer, 511 U.S. at 839–40. Simply put, unless the official “knows of and disregards an excessive risk to inmate health and safety,” he does not violate the Eighth Amendment. Id. at 837.
1
With little explanation, the panel castigates Dr. Eliason for having “disregarded” risks that he directly and forthrightly addressed. Edmo, 935 F.3d at 793. Far from disregarding the risk that Edmo would attempt to castrate herself, Dr. Eliason investigated the causes of such a risk and took concrete steps to mitigate it. Edmo’s self-harm (including her castration attempts) followed closely after her disciplinary infractions and other severe stressors.

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Identifying this causal connection, Dr. Eliason prescribed and encouraged regular counseling to address Edmo’s acting out and her ability to cope. Dr. Eliason also sought to further deter self-castration by explaining to Edmo that she will need to have intact genitals for any eventual surgery, something Edmo now understands and articulated in her testimony. Likewise, contrary to the panel’s conclusion that he disregarded the risk of continued distress, Dr. Eliason opted for a treatment of continued hormone therapy and more regular supportive counseling precisely because hormone therapy had already substantially ameliorated the distress from the dysphoria.
Furthermore, the panel errs by fixating on such individual risks. Physicians ministrate to whole individuals with whole diseases. Thus, individual risks may—and frequently do—persist for the sake of the overall health of the person. Dr. Eliason and his staff clearly believed their treatment choice would mitigate overall risk, including grave risks the panel downplays. Given Edmo’s long-term struggles with severe depression and addiction, coupled with the fact that she had not lived as a woman within her social network, Eliason and the other doctors with whom he staffed the evaluation were concerned that she would have trouble adjusting after surgery, which could lead to regret, relapse, or new mood disorders. Ultimately, they worried that she might attempt suicide again. Such risks are not trifling and, in light of them, Dr. Eliason’s willingness to accept some risk that Edmo would try to castrate herself or would continue to feel the distress of gender dysphoria (while taking steps to mitigate such risks) is anything but deliberately indifferent.

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2
None of this is to acquiesce in the straw-man argument set up by the panel: that, so long as officials provide some care, they are immunized from an Eighth Amendment claim. One may assume that some medical care is indeed so obviously inadequate that, without any direct evidence of the defendant’s state of mind, we may infer that the defendant was deliberately indifferent. See Farmer, 511 U.S. at 842 (remarking that deliberate indifference is “subject to demonstration in the usual ways, including inference from circumstantial evidence” and may be inferred “from the very fact that the risk was obvious”).7 But that is not this case.
Even in a legal universe in which the WPATH Standards define adequate care, Dr. Eliason’s deviations were not deliberately indifferent. He selected a course of treatment that, in light of the complex of diagnoses, the grave risks, and the rapidly evolving nature of the medical research, was

7 It should, however, be noted that the panel fails to identify a precedent of ours in which we have inferred a physician’s deliberate indifference solely from the inadequate nature of the treatment and the persistence of known risks. In the nearest cases, some other circumstantial evidence has suggested the obviousness of the inadequacy such that the physician must have been aware of the inadequacy. E.g., Snow, 681 F.3d at 988 (non-specialist refused the recommendation of a treating specialist); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992) (same); Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (same); Hunt v. Dental Dep’t, 865 F.2d 198, 201 (9th Cir. 1989) (refusal to replace the dentures prisoner had been prescribed); Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006) (prisoner not referred to specialist for reasons unrelated to the prisoner’s medical needs and medical records were manipulated); Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014) (reliance on arbitrary prison policy). I do not doubt that mere inadequacy may raise the inference of deliberate indifference, but we seem to leave such an inference for cases of genuine quackery.

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not obviously inadequate. Cf. Lemire, 726 F.3d at 1075 (“A prison official’s deliberately indifferent conduct will generally ‘shock the conscience’ so long as the prison official had time to deliberate before acting . . . .”). He subjected his assessment to a review process intended to surface any possibility he was not considering, a review process that included several doctors and a full committee. And far from being an “unjustifiable” or “gross” deviation from the WPATH Standards, he departed from WPATH by raising the Standards’ own concerns for the presence of comorbid conditions and the patient’s limited experience as a woman. See Farmer, 511 U.S. at 839 (incorporating the Model Penal Code’s definition of criminal recklessness); Model Penal Code § 2.02(2)(c) (1985) (stating that the criminally reckless individual “disregards a substantial and unjustifiable risk” and that such disregard “involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”). Indeed, the panel concludes that his deviations were simply not “reasonable”—the test for negligent malpractice, not deliberate indifference. Edmo, 935 F.3d at 792. “Eighth Amendment liability requires ‘more than ordinary lack of due care . . . .’” Farmer, 511 U.S. at 835 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).
III
The panel’s novel approach to Eighth Amendment claims for sex-reassignment surgery conflicts with every other circuit to consider the issue. The panel acknowledges such a circuit split with the Fifth Circuit’s opinion in Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019), but tries—and fails—to distinguish the First Circuit’s en banc opinion in Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014). See Edmo, 935 F.3d at 794–95. The panel does not even address a third

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decision: the Tenth Circuit’s opinion in Lamb v. Norwood, 899 F.3d 1159 (10th Cir. 2018).
Just as in this case, the First Circuit considered an appeal of an injunction mandating sex-reassignment surgery. But, unlike our court, the First Circuit reversed. Though the panel attempts to downplay the direct conflict between its opinion and Kosilek by pointing to minor differences between the factual circumstances in each case,8 the decisive differences are matters of law. As to whether the care was medically unacceptable, the First Circuit held that medically acceptable treatment of gender dysphoric prisoners is not synonymous with the demands of WPATH. Kosilek first reversed the district court’s finding that one of the State’s experts was “illegitimate” because the district court “made a significantly flawed inferential leap: it relied on its own— non-medical—judgment” and put too much “weight” on the WPATH Standards. Kosilek, 774 F.3d at 87–88. With that expert now taken seriously, the First Circuit held that the denial of Kosilek’s sex-reassignment surgery was medically

8 The differences between the circumstances in Kosilek and those in this case are not substantial enough to distinguish the holdings. The clinical judgments in each case were motivated by concerns about coexisting mental health conditions and the risk of suicide. Kosilek, 774 F.3d at 72. Just as in this case, Kosilek surfaced expert opinions that the WPATH Standards are best applied flexibly, that in-prison experience in the newly assigned gender is not a sufficient guarantee of ability to transition, and that practitioners face a “dearth of empirical research” on sex-reassignment surgery. Id. at 72–73, 76. The “security concerns” over how to house a potential postoperative Kosilek, which the panel considers the foremost difference between the two cases, was not even essential to Kosilek’s holding. See Edmo, 935 F.3d at 794; Kosilek, 774 F.3d at 91–92 (concluding that the officials’ “choice of a medical option . . . does not exhibit a level of inattention or callousness to a prisoner’s needs rising to a constitutional violation” before even analyzing the security concerns).

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acceptable because it was within the bounds of “the medical standards of prudent professionals.” Id. at 90. On the question of deliberate indifference, the First Circuit applied a test, which, unlike the panel’s inference from the practitioners’ mere knowledge that a course of treatment carried risks, asked whether the practitioners “knew or should have known” that course of treatment was medically unacceptable. Id. at 91.
For its part, the Fifth Circuit has held that good faith denial of sex-reassignment surgery never violates the Eighth Amendment. Recognizing “large gaps” in medical knowledge and a “robust and substantial good faith disagreement dividing respected members of the expert medical community,” the Fifth Circuit concluded that “there can be no claim [for sex-reassignment surgery] under the Eighth Amendment.” Gibson, 920 F.3d at 220, 222. Indeed, Texas’s refusal to even evaluate the inmate for sexreassignment surgery is, in the words of the Fifth Circuit, not “so unconscionable as to fall below society’s minimum standards of decency” and permit an Eighth Amendment claim. Id. at 216 (quoting Kosilek, 774 F.3d at 96).
Finally, the Tenth Circuit has upheld the entry of summary judgment against a prisoner’s Eighth Amendment claim for sex-reassignment surgery. See Lamb, 899 F.3d at 1163. As in this case, the doctor who evaluated the prisoner in Lamb determined that “surgery is impractical and unnecessary in light of the availability and effectiveness of more conservative therapies.” Id. Adopting Kosilek’s subjective standard—that an Eighth Amendment violation would take place “only if prison officials had known or should have known” that “sex reassignment surgery [was] the only medically adequate treatment”—the Tenth Circuit held that “prison officials could not have been deliberately

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indifferent by implementing the course of treatment recommended by a licensed medical doctor.” Id. at 1163 & n.11 (citing Kosilek, 774 F.3d at 91).
Although I am not aware of any other circuits to have directly addressed the questions posed in this case,9 for its part, the Seventh Circuit has held that it is at least not “clearly established” that there is a constitutional right to gender-dysphoria treatment beyond hormone therapy. Campbell v. Kallas, 936 F.3d 536, 549 (7th Cir. 2019). Nor is it “clearly established” that a prison medical provider is prohibited from denying sex-reassignment surgery on the basis of the patient’s status as an institutionalized person. Id. at 541, 549.
With this decision, our circuit sets itself apart.
IV
I do not know whether sex-reassignment surgery will ameliorate or exacerbate Adree Edmo’s suffering. Fortunately, the Constitution does not ask federal judges to put on white coats and decide vexed questions of psychiatric medicine. The Eighth Amendment forbids the “unnecessary and wanton infliction of pain,” not the “difference of opinion between a physician and the prisoner—or between medical

9 The Seventh and Fourth Circuits (along with our own circuit) have also held that arbitrary blanket bans on certain gender dysphoria treatments can violate the Eighth Amendment—an issue not presented here because Idaho evaluates prisoner requests for sex-reassignment surgery on a case-by-case basis. See Rosati v. Igbinoso, 791 F.3d 1037, 1040 (9th Cir. 2015); De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013); Fields v. Smith, 653 F.3d 550, 556 (7th Cir. 2011).

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professionals.” Snow, 681 F.3d at 985, 987 (quoting Estelle, 429 U.S. at 104).
Yet today our court assumes the role of Clinical Advisory Committee. Far from rendering an opinion “individual to Edmo” that “rests on the record,” Edmo, 935 F.3d at 767, the panel entrenches the district court’s unfortunate legal errors as the law of this circuit. Instead of permitting prudent, competent patient care, our court enshrines the WPATH Standards as an enforceable “medical consensus,” effectively putting an ideologically driven private organization in control of every relationship between a doctor and a gender dysphoric prisoner within our circuit. Instead of reserving the Eighth Amendment for the grossly, unjustifiably reckless, the panel infers a culpable state of mind from the supposed inadequacy of the treatment.
We have applied the traditional deliberate-indifference standard to requests for back surgery, kidney transplant, hip replacement, antipsychotic medication, and hernia surgery. Yet suddenly the request for sex-reassignment surgery—and the panel’s closing appeal to what it calls the “increased social awareness” of the needs and wants of transgender citizens—effects a revolution in our law! Id. at 803. The temptation to stand at what we are told is society’s next frontier and to invent a constitutional right to state-funded sex-reassignment surgery does not justify the revision of previously universal principles of Eighth Amendment jurisprudence.
Dr. Eliason and the State’s other practitioners were not deliberately indifferent—far from it. And they certainly were not guilty of violating the Eighth Amendment. They confronted the serious risks to Edmo’s health, especially the gravest one. They considered the knotty quandary posed by her overlapping illnesses and the vicissitudes of her life.

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Mindful of the dictate “first do no harm,” these doctors determined that the appropriate treatment would be more cautious and more reversible than the one the patient desired. And they did so in the shadow of the ongoing debate about when the surgical replacement of the genitals is curative and when it is not.
Surely this was not cruel and unusual punishment.

COLLINS, Circuit Judge, dissenting from the denial of rehearing en banc:
The Supreme Court has held that a prisoner claiming that his or her medical treatment is so inadequate that it constitutes “cruel and unusual punishment” in violation of the Eighth Amendment must make the demanding showing that prison officials acted with “deliberate indifference” to the prisoner’s “serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). As judges of an “inferior Court[],” see U.S. Const. art. III, § 1, we are bound to apply that standard, but as Judge Bumatay explains, the panel here effectively waters it down into a “mere negligence” test. See infra at 47–48 (Bumatay, J., dissenting from denial of rehearing en banc). That is, by narrowly defining the range of “medically acceptable” options that the court believes a prison doctor may properly consider in a case such as this one, and by then inferring deliberate indifference from Dr. Eliason’s failure to agree with that narrow range, the district court and the panel have applied standards that look much more like negligence than deliberate indifference. Id. at 45–48. Whether Dr. Eliason was negligent or not (a question on which I express no opinion), his treatment decisions do not amount to “cruel and unusual punishment,” and we have thus strayed far from any proper understanding

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of the Eighth Amendment. I therefore join Part II of Judge Bumatay’s dissent, and I respectfully dissent from our failure to rehear this case en banc.

BUMATAY, Circuit Judge, with whom CALLAHAN, IKUTA, R. NELSON, BADE, and VANDYKE, Circuit Judges, join, and with whom COLLINS, Circuit Judge, joins as to Part II, dissenting from the denial of rehearing en banc:
Like the panel and the district court, I hold great sympathy for Adree Edmo’s medical situation. And as with all citizens, her constitutional rights deserve the utmost respect and vigilant protection. As the district court rightly stated,
The Rule of Law, which is the bedrock of our legal system, promises that all individuals will be afforded the full protection of our legal system and the rights guaranteed by our Constitution. This is so whether the individual seeking that protection is black, white, male, female, gay, straight, or, as in this case, transgender.1
Adree Edmo is a transgender woman suffering from gender dysphoria—a serious medical condition. While incarcerated in Idaho’s correctional facilities, she asked that her gender dysphoria be treated with sex-reassignment
1 Edmo v. Idaho Dep’t of Corr., 358 F. Supp. 3d 1103, 1109 (D. Idaho 2018), order clarified, No. 1:17-CV-00151-BLW, 2019 WL 2319527 (D. Idaho May 31, 2019), and aff’d in part, vacated in part, remanded sub nom. Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019).

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surgery (“SRS”). After consultation with a prison doctor, her request was denied. She then sued under the Eighth Amendment.2
I respect Edmo’s wishes and hope she is afforded the best treatment possible. But whether SRS is the optimal treatment for Edmo’s gender dysphoria is not before us. As judges, our role is not to take sides in matters of conflicting medical care. Rather, our duty is to faithfully interpret the Constitution.
That duty commands that we apply the Eighth Amendment, not our sympathies. Here, in disregard of the text and history of the Constitution and precedent, the panel’s decision elevates innovative and evolving medical standards to be the constitutional threshold for prison medical care. In doing so, the panel minimizes the standard for establishing a violation of the Eighth Amendment.
After today’s denial of rehearing en banc, the Ninth Circuit stands alone in finding that a difference of medical opinion in this debated area of treatment amounts to “cruel and unusual” punishment under the Constitution. While this posture does not mean we are wrong, it should at least give us pause before embarking on a new constitutional trajectory. This is especially true given the original meaning of the Eighth Amendment.
Because the panel’s opinion reads into the Eighth Amendment’s Cruel and Unusual Clause a meaning in conflict with its text, original meaning, and controlling

2 Because Judge O’Scannlain thoroughly recites the relevant facts in his opinion respecting the denial of the rehearing en banc, which I join in full, I do not reiterate them here.

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precedent, I respectfully dissent from the denial of rehearing en banc.
I.
In holding that Idaho3 violated the Eighth Amendment, the panel opined that the Constitution’s text and original meaning merited “little discussion.” See Edmo, 935 F.3d at 797 n.21. I disagree.
As inferior court judges, we are bound by Supreme Court precedent. Yet, in my view, judges also have a “duty to interpret the Constitution in light of its text, structure, and original understanding.” NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring). While we must faithfully follow the Court’s Eighth Amendment precedent as articulated in Estelle v. Gamble, 429 U.S. 97 (1976), and its progeny, “[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.” Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff’d in part, rev’d in part and remanded, 561 U.S. 477 (2010).
Accordingly, the Eighth Amendment’s history and original understanding are of vital importance to this case.
A.
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend.

3 For simplicity, I collectively refer to Defendants below and Appellants here as “Idaho.”

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VIII. Even just a cursory review of the amendment’s original meaning shows that Edmo’s claims fall far below a constitutional violation as a matter of text and original understanding.
At the time of the Eighth Amendment’s ratification, “cruel” meant “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting.” Bucklew v. Precythe, 139 S. Ct. 1112, 1123 (2019) (citing 1 Samuel Johnson, A Dictionary of the English Language (4th ed. 1773); 1 Noah Webster, An American Dictionary of the English Language (1828) (“Disposed to give pain to others, in body or mind; willing or pleased to torment, vex or afflict; inhuman; destitute of pity, compassion or kindness.”)). Even today, “cruel” punishments have been described as “inhumane,” Farmer v. Brennan, 511 U.S. 825, 838 (1994), involving the “unnecessary and wanton infliction of pain,” Whitley v. Albers, 475 U.S. 312, 319 (1986) (emphasis added) (citations omitted), or involving the “superadd[ition] of terror, pain, or disgrace.” Bucklew, 139 S. Ct. at 1124 (emphasis added) (internal quotation marks and citations omitted).
In the 18th Century, a punishment was “unusual” if it ran contrary to longstanding usage or custom, or had long fallen out of use. Bucklew, 139 S. Ct. at 1123 (citing 4 William Blackstone, Commentaries on the Laws of England 370 (1769); Stuart Banner, The Death Penalty: An American History 76 (2002); Baze v. Rees, 553 U.S. 35, 97 (2008) (Thomas, J., concurring); John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–71, 1814 (2008)). This early understanding comports with the plain meaning of “unusual,” which has changed little from our

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Nation’s founding. See Harmelin v. Michigan, 501 U.S. 957, 976 (1991) (comparing Webster’s American Dictionary (1828) definition of “unusual” as that which does not “occu[r] in ordinary practice” with Webster’s Second International Dictionary 2807 (1954) as that which is not “in common use.”).
Conversely, customs enjoying a long history of usage were described as “usual” practices. Stinneford, supra, at 1770. James Wilson, a key contributor to the Constitution, stated that “long customs, approved by the consent of those who use them, acquire the qualities of a law.” 2 James Wilson, Collected Works of James Wilson 759 (Kermit L. Hall & Mark David Hall eds., Indianapolis, Liberty Fund 2007); see also Stinneford, supra, at 1769. Likewise, early American courts construing the term “cruel and unusual” (generally, as used in state constitutions) upheld punishments that were not “unusual” in light of common law usage. Stinneford, supra, at 1810–11 (citing Barker v. People, 20 Johns. 457, 459 (N.Y. Sup. Ct. 1823), aff’d, 3 Cow. 686 (N.Y. 1824); Commonwealth v. Wyatt, 27 Va. 694, 701 (Va. Gen. Ct. 1828); People v. Potter, 1 Edm. Sel. Cas. 235, 245 (N.Y. Sup. Ct. 1846)). Thus, “[u]nder the plain meaning of the term, a prison policy cannot be ‘unusual’ if it is widely practiced in prisons across the country.” Gibson v. Collier, 920 F.3d 212, 226 (5th Cir. 2019).
Finally, various views have been proposed with respect to the original meaning of “punishment” in the Eighth Amendment. Some view the word as being inapplicable to conditions of confinement. See, e.g., Farmer, 511 U.S. at 837 (“The Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual ‘punishments.’”) (Souter, J.). Some have even suggested

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that “punishment” refers only to sentences imposed by a judge or jury. See Hudson v. McMillian, 503 U.S. 1, 18 (1992) (Thomas, J., dissenting); but see Helling v. McKinney, 509 U.S. 25, 40 (1993) (Thomas, J., dissenting) (recognizing that the “evidence is not overwhelming” on this question). Others believe the term was originally understood to encompass more than sentences called for by statute or meted out from the bench or jury box, but it required deliberate intent. See, e.g., Wilson v. Seiter, 501 U.S. 294, 300 (1991) (“The infliction of punishment is a deliberate act intended to chastise or deter. This is what the word means today; it is what it meant in the eighteenth century.”) (Scalia, J.) (quoting Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985)); see also Celia Rumann, Tortured History: Finding Our Way Back to the Lost Origins of the Eighth Amendment, 31 Pepp. L. Rev. 661, 675, 677 (2004) (presenting historical evidence that the word punishment was “understood at the time to include torturous interrogation”) (citing 4 William Blackstone, Commentaries on the Laws of England; 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 447–48).
B.
While the foregoing overview does not provide the full contours of the original understanding of the Cruel and Unusual Clause, it demonstrates that Idaho’s actions are far from a constitutional violation based on the clause’s text and original meaning. Idaho’s actions simply do not amount to the “barbarous” or “inhuman” treatment so out of line with longstanding practice as to be forbidden by the Eighth Amendment.

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No longstanding practice exists of prison-funded SRS.4 Indeed, the medical standards at the heart of Edmo’s claim are innovative and evolving. The standards of care relied on by Edmo were promulgated by the World Professional Association for Transgender Health (“WPATH”) in 2011— only about five years before Edmo’s lawsuit. WPATH, Standard of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People (7th ed. 2011) (“WPATH standards”). As the standards themselves note, this “field of medicine is evolving.” The WPATH standards also call for flexibility, individual tailoring, and wide latitude in treatment options.

Likewise, as recognized by numerous federal courts, the WPATH standards are not accepted as medical consensus. The first circuit court to address the issue ruled that the WPATH standards did not foreclose alternative treatment options, and that a doctor’s decision to choose a nonWPATH treatment did not violate the Eighth Amendment. Kosilek v. Spencer, 774 F.3d 63, 90 (1st Cir. 2014). The Fifth Circuit also found that the WPATH standards remained controversial and did not reflect a consensus. Gibson, 920 F.3d at 223. Similarly, after reciting the WPATH standard’s recommended treatment options for gender dysphoria, the Tenth Circuit rejected a claim that prison officials acted with deliberate indifference “by implementing [an alternative] course of treatment recommended by a licensed medical doctor,” rather than

4 See, e.g., Quine v. Beard, No.14-cv-02726-JST, 2017 WL 1540758, at *1 (N.D. Cal. Apr. 28, 2017), aff’d in part, vacated in part, rev’d in part sub nom. Quine v. Kernan, 741 F. App’x 358 (9th Cir. 2018); Kristine Phillips, A Convicted Killer Became the First U.S. Inmate to Get State-Funded Gender-Reassignment Surgery, Wash. Post (Jan. 10, 2017), https://wapo.st/2S21zP3.

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SRS. Lamb v. Norwood, 899 F.3d 1159, 1163 (10th Cir. 2018), cert. denied, 140 S. Ct. 252 (2019).5
The debate about the WPATH standards continues even outside prison walls. The Centers for Medicare and Medicaid Services (“CMS”) declined to adopt the WPATH standards due to inadequate scientific backing, and instead gives providers discretion to apply either the WPATH standards or their own standards. CMS, Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (August 30, 2016), available at https://go.cms.gov/36yMrx X. Similarly, the American Psychiatric Association expressed concern about the scientific evidence undergirding the WPATH standards. And as recently as 2017, WPATH requested that Johns Hopkins University conduct an evidence-based review of the standards, a review that, at the time of Edmo’s lawsuit, was ongoing.
Idaho’s actions reflect the uncertainty regarding the WPATH standards throughout the medical field, and do not, under the record, reflect a want of compassion. See supra O’Scannlain, J., dissenting at 22–29. Given the lack of medical consensus, Dr. Eliason’s decision to pursue an alternative treatment, rather than SRS, cannot constitute the “barbarous” or “inhuman” conduct prohibited by the Eighth Amendment. See Bucklew, 139 S. Ct. at 1123. Nothing in the record reflects that Dr. Eliason’s diagnosis and treatment of Edmo was tainted by malice or animosity. Notably, Dr. Eliason concluded that Edmo had coexisting mental

5 In the non-SRS context, the Tenth Circuit also found no Eighth Amendment violation where a doctor prescribed lower hormonal treatment levels for a gender dysphoric inmate than those suggested by the WPATH standards. Druley v. Patton, 601 F. App’x 632, 635 (10th Cir. 2015).

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health issues that required treatment and counseling prior to considering SRS. The district court itself found Edmo’s reluctance to address those issues “troubling.” Edmo, 358 F. Supp. 3d at 1121. Additionally, Idaho had no blanket policy prohibiting SRS, and Dr. Eliason never definitively ruled it out. Dr. Eliason committed to monitoring Edmo’s candidacy for SRS after deciding that Edmo did not meet the criteria for the procedure in 2016. In sum, Dr. Eliason’s decision to pursue an alternative treatment to SRS suggests a tailored evaluation of potential risks and does not reflect the hardhearted or barbarous treatment proscribed by the text of the Constitution.
Given the facts of this case, Dr. Eliason’s treatment cannot rise to the infliction of cruel and unusual punishment—not in a sense that bears any resemblance to the original meaning of that phrase. This is not to say that the WPATH standards are not a medically acceptable standard. But the innovative, contested, and evolving nature of the WPATH standards, the lack of medical consensus, and the particular circumstances of this case make clear that no constitutional violation occurred under the Constitution’s text and original understanding.
II.
In addition to being inconsistent with the original understanding of the Eighth Amendment, I, like Judge O’Scannlain, believe that the panel decision departs from precedent.
A.
Since Estelle v. Gamble, the Supreme Court has recognized claims for inadequate medical treatment under the Eighth Amendment when prison officials act with

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“deliberate indifference to serious medical needs of prisoners.” 429 U.S. at 104. The test for such a claim involves “both an objective standard—that the deprivation was serious enough to constitute cruel and unusual punishment—and a subjective standard—deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled on other grounds by Peralta v. Dillard, 774 F.3d 1076 (9th Cir. 2014). Under Ninth Circuit precedent, if a defendant’s treatment decision was “medically acceptable,” then the court need go no further: the plaintiff cannot show deliberate indifference as a matter of law. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citing Estelle, 429 U.S. at 107–08).
Deliberate indifference is a high bar, involving an “unnecessary and wanton infliction of pain” or conduct that is “repugnant to the conscience of mankind.” Estelle, 429 U.S. at 104, 105–06 (citations omitted). An inadvertent failure to provide adequate medical care is neither, so it cannot support an Eighth Amendment claim. Id; see also Farmer, 511 U.S. at 835 (explaining that deliberate indifference requires “more than ordinary lack of due care for the prisoner’s interests or safety”) (citation omitted).
A prison official acts with deliberate indifference only where he “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837 (emphasis added). As Justice Thomas describes it, this is the secondhighest standard of subjective culpability under the Court’s Eighth Amendment jurisprudence—short only of “malicious and sadistic action for the very purpose of causing harm.” Id. at 861 (Thomas, J., concurring) (internal quotation marks and citations omitted). Such a stringent culpability requirement “follows from the principle that ‘only the unnecessary and wanton infliction of pain implicates the

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Eighth Amendment.’” Id. at 834 (quoting Wilson, 501 U.S. at 294).
Our precedent has consistently emphasized the challenging threshold for showing deliberate indifference.6 Rightfully so, too. In the 44 years since Estelle, an unbroken line of Supreme Court cases reaffirmed that mere negligence, inadvertence, or good-faith error cannot establish an Eighth Amendment claim.7
B.
The panel’s decision here dilutes the otherwise stringent deliberate indifference standard. The panel begins by finding Edmo’s gender dysphoria to be a “serious medical
6 See Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (explaining that “[a] difference of opinion between a physician and the prisoner—or between medical professionals—concerning what medical care is appropriate does not amount to deliberate indifference,” and reiterating the “high legal standard” for showing an Eighth Amendment violation) (citations omitted); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004); Hallett v. Morgan, 296 F.3d 732, 745 (9th Cir. 2002); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
7 See Minneci v. Pollard, 565 U.S. 118, 130 (2012) (noting that “to show an Eighth Amendment violation a prisoner must typically show that a defendant acted, not just negligently, but with ‘deliberate indifference’”) (citing Farmer, 511 U.S. at 825, 834); Ortiz v. Jordan, 562 U.S. 180, 190 (2011) (restating Farmer’s articulation of the deliberate indifference standard); Wilson, 501 U.S. at 297 (“[A]llegations of ‘inadvertent failure to provide adequate medical care,’ or of a ‘negligent . . . diagnosis,’ simply fail to establish the requisite culpable state of mind.”) (internal citations and alterations omitted); Whitley, 475 U.S. at 319 (“To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care . . . . It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause[.]”).

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need.” Edmo, 935 F.3d at 785. It then determines, based solely on the WPATH standards, that Dr. Eliason’s failure to recommend SRS was medically unacceptable. Id. at 786– 92. From there, the panel leaps to conclude that Dr Eliason was “deliberately indifferent” precisely because it viewed his treatment as “ineffective” and “medically unacceptable” under the panel’s reading of the WPATH standards. Id. at 793. Thus, under the panel’s approach, compliance with the court-preferred medical standards (in this case, the WPATH standards) is the beginning and the end of the inquiry. This is not the deliberate indifference inquiry required by precedent.
As an initial matter, and as Judge O’Scannlain aptly points out, the panel errs in holding up one medically accepted standard, i.e., the WPATH guidelines, as the constitutional “gold standard,” thereby precluding any further debate on the matter. See supra O’Scannlain, J., dissenting at 15–22. As discussed above, the WPATH standards do not establish a definitive medical consensus and judges applying Eighth Amendment standards should not and need not take sides in this debate.
More fundamentally though, the panel’s analysis effectively erases the subjective deliberate indifference requirement with its circular reasoning. Nowhere does the panel consider any direct evidence of Dr. Eliason’s subjective mental state. Cf. Jett v. Penner, 439 F.3d 1091, 1098 & n.2 (9th Cir. 2006) (concluding that a doctor’s medical note stating “I reviewed xrays which showed no obvious fracture malalignment,” written after reviewing a radiology report which specifically indicated a deformity, could evidence deliberate indifference) (alteration in original). Nor does the panel consider the many reasons underlying Dr. Eliason’s decision to decline SRS treatment.

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See supra O’Scannlain, J., dissenting at 15–22. Once those reasons are swept aside, the panel circularly infers deliberate indifference based on its prior determination that Dr. Eliason’s treatment plan was “ineffective” or “medically unacceptable” under the WPATH standards. See Edmo, 935 F.3d at 793–94 (finding Dr. Eliason deliberately indifferent because his treatment “stopped short of what was medically necessary”).
Such an approach is particularly troublesome because, if replicated, deliberate indifference could be inferred solely from a finding of a “medically unacceptable” treatment. For Eighth Amendment claims like Edmo’s, a plaintiff must first show the “medically unacceptable” treatment of a “serious medical need[]” and, second, that the doctor’s treatment decision reflected “deliberate indifference” to the medical need. Jackson, 90 F.3d at 332. The panel’s analysis collapses this two-part inquiry into one circular step. If courts follow the panel’s reasoning, in every case of medically unacceptable treatment, courts could automatically infer deliberate indifference.
Worse still, because “medical acceptability” is an objective negligence inquiry, the ultimate effect of the panel’s analysis is to dilute the heightened, subjective culpability required for deliberate indifference, see Farmer, 511 U.S. at 839–40, into mere negligence, which the Supreme Court has repeatedly warned falls short of an Eighth Amendment violation. See, e.g., Estelle, 429 U.S. at 105–06. By denying rehearing en banc in this case, we relegate federal judges to the role of referee in medical disputes. This is not what the Constitution or precedent envisions.

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* * *
The Eighth Amendment’s history and text entreat us to hold the line on the heightened standards for a constitutional deprivation found in our precedent. As Justice Thomas rightly observed, “[t]he Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” Hudson, 503 U.S. at 28 (Thomas, J., dissenting). By judicially mandating an innovative and evolving standard of care, the panel effectively constitutionalizes a set of guidelines subject to ongoing debate and inaugurates yet another circuit split. And by diluting the requisite state of mind from “deliberate indifference” to negligence, the panel effectively holds that—contrary to Supreme Court precedent—“[m]edical malpractice [does] become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106 (altered). I respectfully dissent from the denial of rehearing en banc.

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A convicted killer became the first U.S. inmate to get state-funded genderreassignment surgery
washingtonpost.com/news/post-nation/wp/2017/01/10/a-transgender-inmate-became-first-to-get-state-funded-surgery-advocates-say-fight-is-far-from-over By Kristine Phillips Reporter

No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020
After a lengthy legal battle, a California transgender woman became the first inmate in the United States to receive a governmentfunded gender-reassignment surgery. Convicted murderer Shiloh Quine, who is serving a life sentence for her role in a deadly 1980 incident in Los Angeles, is currently recovering from the surgery, according to the Transgender Law Center, which represented Quine in a federal civil rights lawsuit against California prison officials. Advocates say it’s a significant step that sets a precedent in recognizing transgender people’s constitutional rights behind bars, particularly on issues of medical treatment. But they also caution that the fight for transgender rights in prisons is far from over. “The work is in no way finished,” attorney Flor Bermudez, detention project director for the Transgender Law Center, told The Washington Post. While Quine’s case led to the creation of transgender-friendly policies in California prisons, implementing those policies in a way that benefits transgender inmates is another matter, Bermudez said. Quine’s success also makes her a minority, as transgender inmates who request gender-reassignment surgeries still often get denied, advocates say.
https://www.washingtonpost.com/news/post-nation/wp/2017/01/10/a-transgender-inmate-became-first-to-get-state-funded-surgery-advocates-say-figh...

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“Medical needs for trans people are rejected out of hand, or not even treated as medical issues; they’re treated as a political issue,” said Harper Jean Tobin, director of policy for the National Center for Transgender Equality.
In what advocates called a historic settlement, the California Department of Corrections and Rehabilitation agreed in 2015 to pay for Quine’s gender-reassignment surgery and to transfer her to a women’s facility. The agency also agreed to change its policies so that transgender inmates can wear clothes and have commissary items consistent with their gender identity.
“For too long, institutions have ignored doctors and casually dismissed medically necessary and life-saving care for transgender people just because of who they are — with devastating consequences to our community,” Kris Hayashi, executive director for the Northern California-based Transgender Law Center, said in a statement. “With this surgery, the state is fulfilling one part of a landmark settlement that was a victory not only for Shiloh and transgender people in prison, but for all transgender people who have ever been denied the medical care we need.”
A spokeswoman for the California Correctional Health Care Services declined to say where and when Quine had her surgery, citing medical privacy laws. The 57-year-old inmate’s attorneys told the Associated Press that the procedure was performed at a San Francisco hospital.
Quine, currently listed as an inmate at Mule Creek State Prison in Ione, Calif., about 50 miles southeast of Sacramento, is serving a life sentence without parole for murder. She sued prison officials in federal court in 2014 after her requests for surgery and a transfer to a women’s facility were denied. A settlement was reached in August 2015.
Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation, told the AP that the state is constitutionally required to provide inmates, including those who have been diagnosed with gender dysphoria, with “medically necessary treatment for medical and mental health conditions.”
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 Quine, who was born in Los Angeles and grew up in Northern California and Arizona, has identified as a female since she was 9 and
has been taking hormones since adolescence, according to court records. Raised as a man, Quine was married — and divorced — twice and had two daughters with her second wife.
AD Quine said in court records that she attempted suicide multiple times in the past, once by slitting her wrist and again by attempting to hang herself. In 1978, she said she tried to castrate herself.
While in prison, she was receiving treatment for depression and was diagnosed with gender dysphoria, formerly called gender identity disorder, which manifests in feelings of distress, anxiety and depression. A psychologist who examined her determined her to be a good candidate for gender-reassignment surgery “on the basis of medical necessity,” and that the procedure is “reasonable and necessary to alleviate severe pain,” according to the psychologist’s report.
In an interview with the Transgender Law Center after the 2015 ruling, Quine said allowing her to have the surgery meant she was “getting closer to being comfortable” with herself.
“It shows the world is evolving, and starting to understand different viewpoints and perspectives better than in the past,” she said. “People are learning to recognize the humanity in everybody. It’s been a long time coming.”
But Bermudez, the Transgender Law Center’s detention project director, said that while Quine’s success in court was a step toward the right direction, she has received at least 30 letters from other transgender people who said they’ve been denied surgery.
Liz Gransee, a spokeswoman for the California Correctional Health Care Services, said the state has so far received 64 requests from prisoners for gender-reassignment surgery. Of those requests, two male-to-female and two female-to-male surgery requests have been approved.
Thirteen are still waiting for decisions, while 51 — about 80 percent of the requests — have been denied, Gransee said.
There are 475 transgender inmates in California prisons.
Quine was arrested and charged with robbery, kidnapping and murder in 1980, after she and an accomplice killed 33-year-old

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Shahid Ali Baig, a father of three, in downtown Los Angeles, the AP reported.
Baig’s daughter, who fought Quine’s request in court, said knowing that taxpayers funded surgery for her father’s killer was “a slap in the face.”
“My dad begged for his life,” Farida Baig told the AP. “It just made me dizzy and sick. I’m helping pay for his surgery; I live in California.”
The cost of Quine’s surgery is unknown.
Gransee, the California Correctional Health Care Services spokeswoman, said she could not discuss an inmate’s health care. But depending on individual circumstances, she said, costs for gender-reassignment surgery could reach up to $100,000, including counseling and other treatments and medications before, during and after a procedure.
The Transgender Law Center, however, said that figure is an overestimation.
Marci Bowers, a transgender obstetrician and gynecologist in California, and Fred Ettner, an Illinois physician who works with people going through the transition, told The Post’s Lenny Bernstein in 2015 that a male-to-female surgery costs between $40,000 and $50,000. A female-to-male procedure costs at least $75,000.
One of the highest-profile cases in California involved a transgender inmate named Michelle-Lael Norsworthy, who was abruptly released from prison in 2015 after a federal judge granted her request for gender-reassignment surgery, the Los Angeles Times reported.
Last year, the U.S. Army agreed to pay for hormone treatments for Chelsea Manning, the former intelligence analyst who was
cited in Edmo v. Corzon, Inc. imprisoned in 2013 for leaking government files to WikiLeaks, the AP reported. Manning’s lawyers announced in September that No. 19-35017 archived on February 4, 2020 they’d been assured the government will provide gender-reassignment surgery, according to USA Today.
In 2012, a judge ordered Massachusetts to pay for the surgery of an inmate, but that decision was overturned on appeal, the AP reported.
Tobin, of the National Center for Transgender Equality, said she believes there will be more cases in which the government will “resist” paying for gender-reassignment surgeries.
“More courts will have to step in and remind the government of those responsibilities,” Tobin said.

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Decision Memo for GENDER Dysphoria and GENDER REASSIGNMENT SURGERY (CAG00446N)
Links in PDF documents are not guaranteed to work. To follow a web link, please use the MCD Website.
Decision Summary
Currently, the local Medicare Administrative Contractors (MACs) determine coverage of gender reassignment surgery on a case-by-case basis. We received a complete, formal request to make a national coverage determination on surgical remedies for gender identity disorder (GID), now known as gender dysphoria. The Centers for Medicare & Medicaid Services (CMS) is not issuing a National Coverage Determination (NCD) at this time on gender reassignment surgery for Medicare beneficiaries with gender dysphoria because the clinical evidence is inconclusive for the Medicare population.
In the absence of a NCD, coverage determinations for gender reassignment surgery, under section 1862(a)(1)(A) of the Social Security Act (the Act) and any other relevant statutory requirements, will continue to be made by the local MACs on a case-by-case basis. To clarify further, the result of this decision is not national non-coverage rather it is that no national policy will be put in place for the Medicare program. In the absence of a national policy, MACs will make the determination of whether or not to cover gender reassignment surgery based on whether gender reassignment surgery is reasonable and necessary for the individual beneficiary after considering the individual’s specific circumstances. For Medicare beneficiaries enrolled in Medicare Advantage (MA) plans, the initial determination of whether or not surgery is reasonable and necessary will be made by the MA plans.
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 Consistent with the request CMS received, the focus of this National Coverage Analysis (NCA) was gender
reassignment surgery. Specific types of surgeries were not individually assessed. We did not analyze the clinical evidence for counseling or hormone therapy treatments for gender dysphoria. As requested by several public commenters, we have modified our final decision memorandum to remove language that was beyond the scope of the specific request. We are not making a national coverage determination related to counseling, hormone therapy treatments, or any other potential treatment for gender dysphoria.
While we are not issuing a NCD, CMS encourages robust clinical studies that will fill the evidence gaps and help inform which patients are most likely to achieve improved health outcomes with gender reassignment surgery, which types of surgery are most appropriate, and what types of physician criteria and care setting(s) are needed to ensure that patients achieve improved health outcomes.
Decision Memo
To: Administrative File: CAG #00446N
From: Tamara Syrek Jensen, JD Director, Coverage and Analysis Group
Joseph Chin, MD, MS Deputy Director, Coverage and Analysis Group
James Rollins, MD, PhD Director, Division of Items and Devices
Elizabeth Koller, MD Lead Medical Officer
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Linda Gousis, JD Lead Analyst
Katherine Szarama, PhD Analyst
Subject: Final Decision Memorandum on Gender Reassignment Surgery for Medicare Beneficiaries with Gender Dysphoria
Date: August 30, 2016
I. Decision
Currently, the local Medicare Administrative Contractors (MACs) determine coverage of gender reassignment surgery on a case-by-case basis. We received a complete, formal request to make a national coverage determination on surgical remedies for gender identity disorder (GID), now known as gender dysphoria. The Centers for Medicare & Medicaid Services (CMS) is not issuing a National Coverage Determination (NCD) at this time on gender reassignment surgery for Medicare beneficiaries with gender dysphoria because the clinical evidence is inconclusive for the Medicare population.
In the absence of a NCD, coverage determinations for gender reassignment surgery, under section 1862(a)(1)(A) of the Social Security Act (the Act) and any other relevant statutory requirements, will continue to be made by the local MACs on a case-by-case basis. To clarify further, the result of this decision is not national non-coverage rather it is
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 that no national policy will be put in place for the Medicare program. In the absence of a national policy, MACs will
make the determination of whether or not to cover gender reassignment surgery based on whether gender reassignment surgery is reasonable and necessary for the individual beneficiary after considering the individual’s specific circumstances. For Medicare beneficiaries enrolled in Medicare Advantage (MA) plans, the initial determination of whether or not surgery is reasonable and necessary will be made by the MA plans.
Consistent with the request CMS received, the focus of this National Coverage Analysis (NCA) was gender reassignment surgery. Specific types of surgeries were not individually assessed. We did not analyze the clinical evidence for counseling or hormone therapy treatments for gender dysphoria. As requested by several public commenters, we have modified our final decision memorandum to remove language that was beyond the scope of the specific request. We are not making a national coverage determination related to counseling, hormone therapy treatments, or any other potential treatment for gender dysphoria.
While we are not issuing a NCD, CMS encourages robust clinical studies that will fill the evidence gaps and help inform which patients are most likely to achieve improved health outcomes with gender reassignment surgery, which types of surgery are most appropriate, and what types of physician criteria and care setting(s) are needed to ensure that patients achieve improved health outcomes.
II. Background
Below is a list of acronyms used throughout this document.
AHRQ - Agency for Healthcare Research and Quality AIDS - Acquired Immune Deficiency Syndrome ANOVA - Analysis of Variance
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APA - American Psychiatric Association

APGAR - Adaptability, Partnership Growth, Affection, and Resolve test

BIQ - Body Image Questionnaire

BSRI - Bem Sex Role Inventory

CCEI - Crown Crips Experimental Index

CDC – Centers for Disease Control

CHIS - California Health Interview Survey

CI - Confidence Interval

CMS - Centers for Medicare & Medicaid Services

DAB - Departmental Appeals Board

DSM - Diagnostic and Statistical Manual of Mental Disorders

EMBASE - Exerpta Medica dataBASE

FBeK - Fragebogen zur Beurteilung des eigenen Korpers

FDA - Food and Drug Administration

FPI-R - Freiburg Personality Inventory

FSFI - Female Sexual Function Index

GAF - Global Assessment of Functioning

GID - Gender Identity Disorder

GIS - Gender Identity Trait Scale

GRS - Gender Reassignment Surgery

GSI - Global Severity Indices

HADS - Hospital Anxiety Depression Scale

HHS - U.S. Department of Health and Human Services

HIV - Human Immunodeficiency Virus IIP - Inventory of Interpersonal Problems IOM - Institute of Medicine KHQ - King’s Health Questionnaire
cited in LGB - Lesbian, Gay, and Bisexual No. 19-35017 LGBT - Lesbian, Gay, Bisexual, and Transgender
MAC - Medicare Administrative Contractor

aErdcmhiovevd.

ConorFzeobnr,uIanrcy.

4,

2020

MMPI - Minnesota Multiphasic Personality Inventory

NCA - National Coverage Analysis

NCD - National Coverage Determination

NICE - National Institute for Health Care Excellence

NIH - National Institutes of Health

NZHTA - New Zealand Health Technology Assessment

PIT - Psychological Integration of Trans-sexuals

QOL - Quality of Life

S.D. - Standard Deviation

SADS - Social Anxiety Depression Scale

SCL-90R - Symptom Check List 90-Revised

SDPE - Scale for Depersonalization Experiences

SES - Self Esteem Scale

SF - Short Form

SMR - Standardized Mortality Ratio SOC – Standards of Care

STAI-X1 - Spielberger State and Trait Anxiety Questionnaire

STAI-X2 - Spielberger State and Trait Anxiety Questionnaire

TSCS - Tennessee Self-Concept Scale

U.S. - United States

VAS - Visual Analog Scale

WHOQOL-BREF - World Health Organization Quality of Life - Abbreviated version of the WHOQOL-100

WPATH - World Professional Association for Transgender Health

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A. Diagnostic Criteria
The criteria for gender dysphoria or spectrum of related conditions as defined by the American Psychiatric Association (APA) in the Diagnostic and Statistical Manual of Mental Disorders (DSM) has changed over time (See Appendix A).
Gender dysphoria (previously known as gender identity disorder) is a classification used to describe persons who experience significant discontent with their biological sex and/or gender assigned at birth. Although there are other therapeutic options for gender dysphoria, consistent with the NCA request, this decision only focuses on gender reassignment surgery.
B. Prevalence of Transgender Individuals
For estimates of transgender individuals in the U.S., we looked at several studies.
The Massachusetts Behavior Risk Factor Surveillance Survey (via telephone) (2007 and 2009) identified 0.5% individuals as transgender (Conron et al., 2012).
Derivative data obtained from the 2004 California Lesbian Gay Bisexual and Transgender (LGBT) Tobacco Survey (via telephone) and the 2009 California Health Interview Survey (CHIS) (via telephone) suggested the LGB population constitutes 3.2% of the California population and that transgender subjects constitute approximately 2% of the California LGBT population and 0.06% of the overall California population (Bye et al., 2005; CHIS 2009; Gates,
cited in Edmo v. Corzon, Inc. 2011). No. 19-35017 archived on February 4, 2020 Most recently, the Williams Institute published a report that utilized data from the Centers for Disease Control’s
(CDC) Behavioral Risk Factor Surveillance System (BRFSS). Overall, they found that 0.6% or 1.4 million U.S. adults identify as transgender. The report further estimated 0.7% of adults between the ages of 18-25 identify as transgender, 0.6% of adults between the ages of 25-65 identify as transgender, and 0.5% of adults age 65 or older identify as transgender (Flores et al., 2016).
In a recent review of Medicare claims data, CMS estimated that in calendar year 2013 there were at least 4,098 transgender beneficiaries (less than 1% of the Medicare population) who utilized services paid for by Medicare, of which 90% had confirmatory diagnosis, billing codes, or evidence of a hormone therapy prescription. The Medicare transgender population is racially and ethnically diverse (e.g., 74% White, 15% African American) and spans the entire country. Nearly 80% of transgender beneficiaries are under age 65, including approximately 23% ages 45-54. (CMS Office of Minority Health 2015).
For international comparison purposes, recent estimates of transgender populations in other countries are similar to those in the United States. New Zealand researchers, using passport data, reported a prevalence of 0.0275% for male-to-female adults and 0.0044% female-to-male adults (6:1 ratio) (Veale, 2008). Researchers from a centers of transgender treatment and reassignment surgery in Belgium conducted a survey of regional plastic surgeons and reported a prevalence of 0.008% male-to-female and 0.003% female-to-male (ratio 2.7:1) surgically reassigned transsexuals in Belgium (De Cuypere et al., 2007). Swedish researchers, using national mandatory reporting data on those requesting reassignment surgery, reported secular changes over time in that the number of completed reassignment surgeries per application increased markedly in the 1990s; the male-to- female/female-to-male sex ratio changed from 1:1 to 2:1; the age of male-to-female and female-to-male applicants was initially similar, but increased by eight years for male-to-female applicants; and the proportion of foreign born applicants increased (Olsson and Moller 2003).
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III. History of Medicare Coverage

Date August 1, 1989
May 30, 2014

Action
CMS published the initial NCD, titled “140.3, Transsexual Surgery" in the Federal Register. (54 Fed. Reg. 34,555, 34,572)
The HHS Departmental Appeals Board (DAB) determined that the NCD denying coverage for all transsexual surgery was not valid. As a result, MACs determined coverage on a case-by-case basis.

CMS does not currently have a NCD on gender reassignment surgery.

A. Current Request

On December 3, 2015, CMS accepted a formal complete request from a beneficiary to initiate a NCA for gender reassignment surgery.

CMS opened this National Coverage Analysis (NCA) to thoroughly review the evidence to determine whether or not gender reassignment surgery may be covered nationally under the Medicare program.

B. Benefit Category

MwfUUonnieltldddhoeeiwicnrrain§§orgen11e88ais16roe21af(st(dshtS)eaecft(iounDsptteeeaedfstiounbaftietorPineoraienlaryftpiotdpAfpNel)MirfcoiUoaengndbe.rdildace1eambrt9loe.§a-ncFc1n3eoio8dtf5rvei3tOea20dcrtnaa1h(gStiie7tneecreg:omHaoEpereroidaecrolsmthfshaeiPovsSraveeroivtrcudveB.tilc)itConeoesno)bderFiznceoothvbneer,ruAeIdcant.rbcyyF.ot4rhe,ge2Mn0edde2irc0arereaspsrigognrmaemn,t

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Under §1861(s)(1) (Physicians’ Services)

This may not be an exhaustive list of all applicable Medicare benefit categories for this item or service.

IV. Timeline of Recent Activities

Timeline of Medicare Coverage Policy Actions for Gender Reassignment Surgery

Date December 3, 2015 January 2, 2016
June 2, 2016
July 2, 2016

Action CMS accepts an external request to open a NCD. A tracking sheet was posted on the web site and the initial 30 day public comment period commenced.
Initial comment period closed. CMS received 103 comments.
Proposed Decision Memorandum posted on the web site and the final 30 day public comment period commenced. Final comment period closed. CMS received 45 comments.

V. FDA Status

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Surgical procedures per se are not subject to the Food and Drug Administration’s (FDA) approval.
Inflatable penile prosthetic devices, rigid penile implants, testicular prosthetic implants, and breast implants have been approved and/or cleared by the FDA.

VI. General Methodological Principles

In general, when making national coverage determinations, CMS evaluates relevant clinical evidence to determine whether or not the evidence is of sufficient quality to support a finding that an item or service is reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member. (§ 1862 (a)(1)(A)). The evidence may consist of external technology assessments, internal review of published and unpublished studies, recommendations from the Medicare Evidence Development & Coverage Advisory Committee (MEDCAC), evidence-based guidelines, professional society position statements, expert opinion, and public comments.

The overall objective for the critical appraisal of the evidence is to determine to what degree we are confident that: 1) specific clinical question relevant to the coverage request can be answered conclusively; and 2) the extent to which we are confident that the intervention will improve health outcomes for patients.

A detailed account of the methodological principles of study design the agency staff utilizes to assess the relevant

literature on a therapeutic or diagnostic item or service for specific conditions can be found in Appendix B. In

general, features of clinical studies relevant cohort, the consistent use reference test results.

VII. Evidence

No.

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and

A. Introduction

Below is a summary of the evidence we considered during our review, primarily articles about clinical trials published in peer- reviewed medical journals. We also considered articles cited by the requestor, articles identified in public comments, as well as those found by a CMS literature review. Citations are detailed below.

B. Literature Search Methods

CMS staff extensively searched for primary studies for gender dysphoria. The emphasis focused less on specific surgical techniques and more on functional outcomes unless specific techniques altered those types of outcomes.

The reviewed evidence included articles obtained by searching literature databases and technology review databases from PubMed (1965 to current date), EMBASE, the Agency for Healthcare Research and Quality (AHRQ), the Blue Cross/Blue Shield Technology Evaluation Center, the Cochrane Collection, the Institute of Medicine, and the National Institute for Health and Care Excellence (NICE) as well as the source material for commentary, guidelines, and formal evidence-based documents published by professional societies. Systematic reviews were used to help locate some of the more obscure publications and abstracts.

Keywords used in the search included: Trans-sexual, transgender, gender identity disorder (syndrome), gender
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dysphoria and/or hormone therapy, gender surgery, genital surgery, gender reassignment (surgery), sex reassignment (surgery) and/or quality of life, satisfaction-regret, psychological function (diagnosis of mood disorders, psychopathology, personality disorders), suicide (attempts), mortality, and adverse events-reoperations. After the identification of germane publications, CMS also conducted searches on the specific psychometric instruments used by investigators.
Psychometric instruments are scientific tools used to measure individuals' mental capabilities and behavioral style. They are usually in the form of questionnaires that numerically capture responses. These tools are used to create a psychological profile that can address questions about a person’s knowledge, abilities, attitudes and personality traits. In the evaluation of patients with gender dysphoria, it is important that both validity and reliability be assured in the construction of the tool (validity refers to how well the tool actually measures what it was designed to measure, or how well it reflects the reality it claims to represent, while reliability refers to how accurately results of the tool would be replicated in a second identical piece of research). Reliability and validity are important because when evaluating patients with gender dysphoria most of the variables of interest (e.g., satisfaction, anxiety, depression) are latent in nature (not directly observed but are rather inferred) and difficult to quantify objectively.
Studies with robust study designs and larger, defined patient populations assessed with objective endpoints or validated test instruments were given greater weight than small, pilot studies. Reduced consideration was given to studies that were underpowered for the assessment of differences or changes known to be clinically important. Studies with fewer than 30 patients were reviewed and delineated, but excluded from the major analytic framework. Oral presentations, unpublished white papers, and case reports were excluded. Publications in languages other than English were excluded. The CMS initial internal search for the proposed decision memorandum was limited to articles published prior to March 21, 2016. The CMS internal search for the final decision memorandum continued through
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 articles published prior to July 22, 2016.
Included studies were limited to those with adult subjects. Review and discussion of the management of children and adolescents with the additional considerations of induced pubertal delay are outside the scope of this NCD. In cases where the same population was studied for multiple reasons or where the patient population was expanded over time, the latest and/or most germane sections of the publications were analyzed. The excluded duplicative publications are delineated.
CMS also searched Clinicaltrials.gov to identify relevant clinical trials. CMS looked at trial status including early termination, completed, ongoing with sponsor update, and ongoing with estimated date of completion. Publications on completed trials were sought. For this final decision, CMS also reviewed all evidence submitted via public comment.
C. Discussion of Evidence
The development of an assessment in support of Medicare coverage determinations is based on the same general question for almost all national coverage analyses (NCAs): "Is the evidence sufficient to conclude that the application of the item or service under study will improve health outcomes for Medicare patients?" For this specific NCA, CMS is interested in answering the following question:
Is there sufficient evidence to conclude that gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria?
The evidence reviewed is directed towards answering this question.
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1. Internal Technology Assessment CMS conducted an extensive literature search on gender reassignment related surgical procedures and on facets of gender dysphoria that provide context for this analysis. The latter includes medical and environmental conditions. CMS identified numerous publications related to gender reassignment surgery. A large number of these were case reports, case series with or without descriptive statistics, or studies with population sizes too small to conduct standard parametric statistical analyses. Others addressed issues of surgical technique. CMS identified and described 36 publications on gender reassignment surgery that included health outcomes. Because the various investigators at a site sometimes conducted serial studies on ever-enlarging cohort populations, studied sub-populations, studied different outcomes, or used different tools to study the same outcomes, not all study populations were unique. To reduce bias from over-lapping populations, only the latest or most germane publication(s) were described. Subsumed publications were delineated. Of these 36 publications, two publications used different assessment tools on the same population, and, so for the purposes of evaluation, were classified as one study (Udeze et al., 2008; Megeri and Khoosal, 2007). A total of 33 studies were reviewed (See Figure 1). Appendices C, D, and F include more detail of each study. The publications covered a time span from 1979 to 2015. Over half of the studies were published after 2005. Figure 1. Studies of Gender Reassignment Surgery (GRS)
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020
ANOVA=Analysis of Variance Normative=Psychometric Tests with known normative for large populations Figure 1 Legend: The studies in Figure 1 are categorized into three groups. The first group, depicted by the colored
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boxes (red, blue, and green), had explicit controls. There was a single randomized study. The remainder in the first group were observational studies. These were subdivided into longitudinal studies and cross-sectional studies. The second group, depicted by black boxes (starting with the surgery only population box) consisted of surgical series. The third group, depicted by black boxes (starting with mixed population), was composed of patients whose treatment could involve a variety of therapeutic interventions, but who were not stratified by that treatment.
When looking at the totality of studies, the 33 studies could be characterized by the following research design groups:
a. Observational, mixed population of surgical and non-surgical patients without stratification
Asscheman H, Giltay EJ, Megens JA, de Ronde WP, van Trotsenburg MA, Gooren LJ. A long-term follow-up study of mortality in transsexuals receiving treatment with cross-sex hormones. Eur J Endocrinol. 2011 Apr;164(4):635-42. Epub 2011 Jan 25.
Asscheman et al. conducted a retrospective, non-blinded, observational study of mortality using a longitudinal design to assess a mixed population treated with hormones, as well as, reassignment surgery in comparison to a population-based cohort. The study was not designed to assess the specific impact of gender reassignment surgery on clinical outcomes.
The investigators assessed mortality in patients who (a) were from a single-center, unspecified, Dutch university specialty clinic, (b) had initiated cross-sex hormone treatment prior to July 1, 1997, and (c) had been followed (with
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 or without continued hormone treatment) by the clinic for at least one year or had expired during the first year of
treatment. The National Civil Record Registry (Gemeentelijke Basis Administratie) was used to identify/confirm deaths of clinic patients. Information on the types or hormones used was extracted from clinic records, and information on the causation of death was extracted from medical records or obtained from family physicians. Mortality data for the general population were obtained through the Central Bureau of Statistics of the Netherlands (Centraal Bureau voor Statistiek). Mortality data from Acquired Immune Deficiency Syndrome (AIDS) and substance abuse were extracted from selected Statistics Netherlands reports. The gender of the general Dutch population comparator group was the natal sex of the respective gender dysphoric patient groups.
A total of 1,331 patients who met the hormone treatment requirements were identified (365 female-to-male [27.4%]; 966 male- to-female [72.6%]; ratio 1:2.6). Of these, 1,177 (88.4%) underwent reassignment surgery (343 [94.0% of female-to-male entrants]; 834 [86.3% of male-to-female entrants]; ratio difference 1:2.4 with a pvalue p<0.0001). Later calculations did not distinguish between those with hormone therapy alone versus those with hormone therapy plus reassignment surgery. The mean age at the time of hormone initiation in female-to-male and male-to-female patients was 26.1±7.6 (range 16–56) years and 31.4±11.4 (range 16–76) years respectively, although the male-to-female subjects were relatively older (p<0.001). The mean duration of hormone therapy in female-to-male and male-to-female patients was 18.8±6.3 and 19.4±7.7 years respectively.
There were a total of 134 deaths in the clinic population using hormone therapy with or without surgical reassignment. Of these patients, 12 (3.3%) of the 365 female-to-male patients and 122 (12.6%) of the 966 male-tofemale patients died. All-cause mortality for this mixed population was 51% higher and statistically significant (Standardized Mortality Ratio [SMR] 95% confidence interval [CI]) 1.47-1.55) for males-to-females when compared to males in the general Dutch population. The increase in all-cause mortality (12%) for females-to-males when compared to females in the general Dutch population was not statistically significant (95% CI 0.87-1.42).
Ischemic heart disease was a major disparate contributor to excess mortality in male-to-female patients but only in older patients (n=18, SMR 1.64 [95% CI 1.43-1.87]), mean age [range]: 59.7 [42-79] years. Current use of a
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particular type of estrogen, ethinyl estradiol, was found to contribute to death from myocardial infarction or stroke (Adjusted Hazard Ratio 3.12 [95% CI 1.28-7.63], p=0.01). There was a small, but statistically significant increase in lung cancer that was thought to possibly be related to higher rates of smoking in this cohort.
Other contributors to the mortality difference between male-to-female patients and the Dutch population at large were completed suicide (n=17, SMR 5.70 [95% CI 4.93-6.54]), AIDS (n=16, SMR 30.20 [95% CI 26.0-34.7]), and illicit drug use (n=5, SMR 13.20 [95% CI 9.70-17.6]). An additional major contributor was “unknown cause” (n=21, SMR 4.00 [95% CI 3.52-4.51]). Of the 17 male-to-female hormone treated patients who committed suicide, 13 (76.5%) had received prior psychiatric treatment and six (35.3%) had not undergone reassignment surgery because of concerns about mental health stability.
Overall mortality, and specifically breast cancer and cardiovascular disease, were not increased in the hormonetreated female-to-male patients. Asscheman et al. reported an elevated SMR for illicit drug use (n=1, SMR 25 [6.0032.5]). This was the cause of one of the 12 deaths in the cohort.
This study subsumes earlier publications on mortality (Asscheman et al. 1989 [n=425]; Van Kesteren et al. 1997 [n=816]).
Gómez-Gil E, Zubiaurre-Elorza L, Esteva I, Guillamon A, Godás T, Cruz Almaraz M, Halperin I, Salamero M. Hormonetreated transsexuals report less social distress, anxiety and depression. Psychoneuroendocrinology. 2012 May;37(5):662-70. Epub 2011 Sep 19.
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 Gómez-Gil et al. conducted a prospective, non-blinded observational study using a cross-sectional design and non-
specific psychiatric distress tools in Spain. The investigators assessed anxiety and depression in patients with gender dysphoria who attended a single-center specialty clinic with comprehensive endocrine, psychological, psychiatric, and surgical care. The clinic employed World Professional Association for Transgender Health (WPATH) guidelines. Patients were required to have met diagnostic criteria during evaluations by 2 experts. Investigators used the Hospital Anxiety and Depression Scale (HADS) and the Social Anxiety and Distress Scale (SADS) instruments. The SADS total score ranges from 0 to 28, with higher scores indicative of more anxiety. English language normative values are 9.1±8.0. HAD-anxiety and HAD-depression total score ranges from 0 to 21, with higher scores indicative of more pathology. Scores less than 8 are normal. ANOVA was used to explore effects of hormone and surgical treatment.
Of the 200 consecutively selected patients recruited, 187 (93.5% of recruited) were included in the final study population. Of the final study population, 74 (39.6%) were female-to-male patients; 113 (60.4%) were male-tofemale patients (ratio 1:1.5); and 120 (64.2%) were using hormones. Of those using hormones, 36 (30.0%) were female-to-male; 84 (70.0%) were male-to-female (ratio 1:2.3). The mean age was 29.87±9.15 years (range 15-61). The current age of patients using hormones was 33.6±9.1 years (n=120) and older than the age of patients without hormone treatment (25.9±7.5) (p=0.001). The age at hormone initiation, however, was 24.6±8.1 years.
Of those who had undergone reassignment surgery, 29 (36.7%) were female-to-male; 50 (63.3%) were male-tofemale (ratio 1:1.7). The number of patients not on hormones and who had undergone at least one gender-related surgical procedure (genital or non-genital) was small (n=2). The number of female-to-male patients on hormones who had undergone such surgery (mastectomy, hysterectomy, and/or phalloplasty) was 28 (77.8%). The number of male-to-female patients on hormones who had undergone such surgery (mammoplasty, facial feminization, buttock feminization, vaginoplasty, orchiectomy, and/or vocal feminization (thyroid chondroplasty) was 49 (58.3%).
Analysis of the data revealed that although the mean scores HAD-Anxiety, HAD-Depression, and SADS were statistically lower (better) in those on hormone therapy than in those not on hormone therapy, the mean scores for
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HAD-Depression and SADS were in the normal range for gender dysphoric patients not using hormones. The HADAnxiety score was 9 in transsexuals without hormone treatment and 6.4 in transsexuals with hormone treatment. The mean scores for HAD-Anxiety, HAD- Depression, and SADS were in the normal range for gender dysphoric patients using hormones. ANOVA revealed that results did not differ by whether the patient had undergone a gender related surgical procedure or not.
Gómez-Gil E, Zubiaurre-Elorza L, de Antonio I, Guillamon A, Salamero M. Determinants of quality of life in Spanish transsexuals attending a gender unit before genital sex reassignment surgery. Qual Life Res. 2014 Mar;23(2):66976. Epub 2013 Aug 13.
Gómez-Gil et al. conducted a prospective, non-blinded observational study using a non-specific quality of life tool. There were no formal controls for this mixed population ± non-genital reassignment surgery undergoing various stages of treatment.
The investigators assessed quality of life in the context of culture in patients with gender dysphoria who were from a single-center (Barcelona, Spain), specialty and gender identity clinic. The clinic used WPATH guidelines. Patients were required to have met diagnostic criteria during evaluations by both a psychologist and psychiatrist. Patients could have undergone non-genital surgeries, but not genital reassignment surgeries (e.g., orchiectomy, vaginoplasty, or phalloplasty). The Spanish version of the World Health Organization Quality of Life-Abbreviated version of the WHOQOL-100 (WHOQOL- BREF) was used to evaluate quality of life, which has 4 domains (environmental, physical, psychological, and social) and 2 general questions. Family dynamics were assessed with the Spanish version of the Family Adaptability, Partnership Growth, Affection, and Resolve (APGAR) test. Regression analysis was used to
cited in Edmo v. Corzon, Inc. explore effects of surgical treatment. No. 19-35017 archived on February 4, 2020 All consecutive patients presenting at the clinic (277) were recruited and, 260 (93.9%) agreed to participate. Of this
number, 59 of these were excluded for incomplete questionnaires, 8 were excluded for prior genital reassignment surgery, and 193 were included in the study (the mean age of this group was 31.2±9.9 years (range 16-67). Of these, 74 (38.3%) were female-to-male patients; 119 (61.7%) were male-to-female patients (ratio1:1.6). Of these, 120 (62.2%) were on hormone therapy; 29 (39.2%) of female-to-male patients had undergone at least 1 nongenital, surgical procedure (hysterectomy n=19 (25.7%); mastectomy n=29 (39.2%)); 51 (42.9%) of male-tofemale patients had undergone at least one non-genital surgical procedure with mammoplasty augmentation being the most common procedure, n=47 (39.5%), followed by facial feminization, n=11 (9.2%), buttocks feminization, n=9 (7.6%), and vocal feminization (thyroid chondroplasty), n=2 (1.7%).
WHOQOL-BREF domain scores for gender dysphoric patients with and without non-genital surgery were: “Environmental” 58.81±14.89 (range 12.50-96.88), “Physical” 63.51±17.79 (range 14.29-100), “Psychological” 56.09+16.27 (range 16.67- 56.09), “Social” 60.35±21.88 (range 8.33-100), and “Global QOL and Health” 55.44+27.18 (range 0-100 with higher score representing better QOL). The mean APGAR family score was 7.23±2.86 (range 0-10 with a score of 7 or greater indicative of family functionality).
Regression analysis, which was used to assess the relative importance of various factors to WHOQOL-BREF domains and general questions, revealed that family support was an important element for all four domains and the general health and quality- of-life questions. Hormone therapy was an important element for the general questions and for all of the domains except “Environmental.” Having undergone non-genital reassignment surgery, age, educational levels, and partnership status, did not impact domain and general question results related to quality of life.
Hepp U, Kraemer B, Schnyder U, Miller N, Delsignore A. Psychiatric comorbidity in gender identity disorder. J Psychosom Res. 2005 Mar;58(3):259-61.
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Hepp et al. conducted a single-site (Zurich, Switzerland) prospective, non-blinded, observational study using a crosssectional design. There was some acquisition of retrospective data. The investigators assessed current and lifetime psychiatry co-morbidity using structured interviews for diagnosis of Axis 1 disorders (clinical syndromes) and Axis 2 disorders (developmental or personality disorders) and HADS for dimensional evaluation of anxiety and depression. Statistical description of the cohort and intra-group comparisons was performed. Continuous variables were compared using t-tests and ANOVA.
A total of 31 patients with gender dysphoria participated in the study: 11 (35.5%) female-to-male; 20 (64.5%) male-to-female (ratio 1:1.8). The overall mean age was 32.2±10.3 years. Of the participants, seven had undergone reassignment surgery, 10 pre- surgical patients had been prescribed hormone therapy, and 14 pre-surgical patients had not been prescribed hormone therapy. Forty five and one half percent of female-to-male and 20% of male-tofemale patients did not carry a lifetime diagnosis of an Axis 1 condition. Sixty three and six tenths percent of femaleto-male and 60% of male-to-female patients did not carry a current diagnosis of an Axis 1 condition. Lifetime diagnosis of substance abuse and mood disorder were more common in male-to-female patients (50% and 55% respectively) than female-to-male patients (36.4% and 27.3% respectively). Current diagnosis of substance abuse and mood disorder were present in male-to-female patients (15% and 20% respectively) and absent in female-tomale patients. One or more personality disorders were identified 41.9%, but whether this was a current or lifetime condition was not specified. Of the patients, five (16.1%) had a Cluster A personality disorder (paranoid-schizoid), seven (22.6%) had a Cluster B personality disorder (borderline, anti-social, histrionic, narcissistic), six (19.4%) had a Cluster C personality disorder (avoidant, dependent, obsessive-compulsive), and two (6.5%) were not otherwise classified.
HADS scores were missing for at least one person. The HADS test revealed non-pathologic results for depression
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 (female-to-male: 6.64±5.03; male-to-female: 6.58±4.21) and borderline results for anxiety (female-to-male:
7.09±5.11; male-to-female: 7.74±6.13, where a result of 7-10 = possible disorder). There were no differences by natal gender. The investigators reported a trend for less anxiety and depression as measured by HADS in the patients who had undergone surgery.
Johansson A, Sundbom E, Höjerback T, Bodlund O. A five-year follow-up study of Swedish adults with gender identity disorder. Arch Sex Behav. 2010 Dec;39(6):1429-37. Epub 2009 Oct 9.
Johansson et al. conducted a two center (Lund and Umeå, Sweden) non-blinded, observational study using a semicross-sectional design (albeit over an extended time interval) using a self-designed tool and Axis V assessment. The study was prospective except for the acquisition of baseline Axis V data. There were no formal controls in this mixed population with and without surgery.
The investigators assessed satisfaction with the reassignment process, employment, partnership, sexual function, mental health, and global satisfaction in gender-reassigned persons from two disparate geographic regions. Surgical candidates were required to have met National Board of Health and Welfare criteria including initial and periodic psychiatric assessment, ≥1 year of real-life experience in preferred gender, and ≥1 year of subsequent hormone treatment. In addition, participants were required to have been approved for reassignment five or more years prior and/or to have completed surgical reassignment (e.g., sterilization, genital surgery) two or more years prior. The investigators employed semi-structured interviews covering a self-designed list of 55 pre-formulated questions with a three or five point ordinal scale. Clinician assessment of Global Assessment of Functioning (GAF; Axis V) was also conducted and compared to initial finding during the study. Changes or differences considered to be biologically significant were not pre- specified except for GAF, which pre-specified a difference to mean change ≥5 points. Statistical corrections for multiple comparisons were not included. There was no stratification by treatment.
Of the pool of 60 eligible patients, 42 (70.0% of eligible) (17 [40.5 %] female-to-male; 25 [59.5%] male-to-female;
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ratio 1:1.5) were available for follow-up. Of these, 32 (53.3% of eligible) (14 [43.8%] female-to-male; 18 [56.2%] male-to-female [ratio 1:1.3]) had completed genital gender reassignment surgery (not including one post mastectomy), five were still in the process of completing surgery, and five (one female-to-male; four male- tofemale; ratio 1:4) had discontinued the surgical process prior to castration and genital surgery.
The age (ranges) of the patients at entry into the program, reassignment surgery, and follow-up were 27.8 (18-46), 31.4 (22- 49), and 38.9 (28-53) years in the female-to-male group respectively and 37.3 (21-60), 38.2 (22-57), and 46.0 (25.0-69.0) years in the male- to-female group respectively. The differences in age by cohort group were statistically significant. Of participants, 88.2% of all enrolled female-to-male versus 44.0% of all enrolled female-tomale patients had cross-gender identification in childhood (versus during or after puberty) (p<0.01).
Although 95.2% of all enrolled patients self-reported improvement in GAF, in contrast, clinicians determined GAF improved in 61.9% of patients. Clinicians observed improvement in 47% of female-to-male patients and 72% of male-to- female patients. A ≥5 point improvement in the GAF score was present in 18 (42.9%). Of note, three of the five patients who were in the process of reassignment and five of the five who had discontinued the process were rated by clinicians as having improved.
Of all enrolled 95.2% (with and without surgery) reported satisfaction with the reassignment process. Of these 42 patients, 33 (79%) identified themselves by their preferred gender and nine (21%) identified themselves as transgender. None of these nine (eight male-to-female) had completed reassignment surgery because of ambivalence secondary to lack of acceptance by others and dissatisfaction with their appearance. Of the patients who underwent genital surgery (n=32) and mastectomy only (n=one), 22 (66.7%) were satisfied while four (three
cited in Edmo v. Corzon, Inc. female-to-male) were dissatisfied with the surgical treatment. No. 19-35017 archived on February 4, 2020 Regarding relationships after surgery, 16 (38.1%) (41.2% of female- to-male; 36.0% of male-to-female patients)
were reported to have a partner. Yet more than that number commented on partner relationships: (a) 62.2 % of the 37 who answered (50.0% of female- to- male; 69.6% of male-to-female patients) reported improved partner relationships (five [11.9%] declined to answer.); (b) 70.0% of the 40 who answered (75.0% of female-to-male; 66.7% of male-to-female patients) reported an improved sex life. Investigators observed that reported postoperative satisfaction with sex life was statistically more likely in those with early rather than late cross-gender identification. In addition 55.4% self-reported improved general health; 16.1% reported impaired general health; 11.9% were currently being treated with anti-depressants or tranquilizers.
This study subsumes earlier work by Bodlund et al. (1994, 1996). The nationwide mortality studies by Dhejne et al. (2011) may include all or part of this patient population.
Leinung M, Urizar M, Patel N, Sood S. Endocrine treatment of transsexual persons: extensive personal experience. Endocr Pract. 2013 Jul-Aug;19(4):644-50. (United States study)
Leinung et al. conducted a single-center (Albany, New York) a partially prospective, non-blinded, observational study using a cross-sectional design and descriptive statistics. There were no formal controls. The investigators assessed employment, substance abuse, psychiatric disease, mood disorders, Human Immunodeficiency Virus (HIV) status in patients who had met WPATH guidelines for therapy, and who had initiated cross-sex hormone treatment.
A total of 242 patients treated for gender identity disorder in the clinic from 1992 through 2009 inclusive were identified. The number of those presenting for therapy almost tripled over time. Of these patients, 50 (20.7%) were female-to-male; 192 (79.3%) male-to-female (ratio 1:3.8).
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The age of female-to-male and male-to-female patients with gender dysphoria at the time of clinic presentation was 29.0 and 38.0 years respectively.
The female-to-male and male-to-female patients with gender dysphoria at the time of hormone initiation were young: 27.5 and 35.5 years old respectively (p<0.5). Of the male-to-female cohort, 19 (7.8%) had received hormone therapy in the absence of physician supervision; Of the patient population, 91 (37.6%) had undergone gender-reassignment surgery (32 female-to-male [64.0% of all female-to- male; 35.2% of all surgical patients]; 59 male-to-female [30.7% of all male-to-female; 64.8% of all surgical patients]; ratio 1:1.8).
Psychiatric disease was more common in those who initiated hormone therapy at an older age (>32 years) 63.9% versus 48.9% at a younger age and by natal gender (48.0% of female-to-male; 58.3% male-to-female). Mood disorders were more common in those who initiated hormone therapy at an older age (>32 years) 52.1% versus 36.0% at a younger age and this finding did not differ by natal gender (40.0% of female-to-male; 44.8% male-tofemale). The presence of mood disorders increased the time to reassignment surgery in male-to-female patients.
Motmans J , Meier P, Ponnet K, T'Sjoen G. Female and male transgender quality of life: socioeconomic and medical differences. J Sex Med. 2012 Mar;9(3):743-50. Epub 2011 Dec 21.
Motmans et al., conducted a prospective, non-blinded, observational study using a cross-sectional design and a nonspecific quality of life tool. No concurrent controls were used in this study. Quality of life in this Dutch-speaking population was assessed using the Dutch version of a SF-36 (normative data was used). Participants included subjects who were living in accordance with the preferred gender and who were from a single Belgian university
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 specialty clinic at Ghent. The Dutch version of the SF-36 questionnaire along with its normative data were used.
Variables explored included employment, pension status, ability to work, being involved in a relationship. Also explored, was surgical reassignment surgery and the types of surgical interventions. Intragroup comparisons by transgender category were conducted, and the relationships between variables were assessed by analysis of variance (ANOVA) and correlations.
The age of the entire cohort (n=140) was 39.89±10.21 years (female-to-male: 37.03±8.51; male-to-female: 42.26±10.39). Results of the analysis revealed that not all female-to-male patients underwent surgical reassignment surgery and, of those who did, not all underwent complete surgical reassignment. The numbers of female-to-male surgical interventions were: mastectomy 55, hysterectomy 55, metaoidplasty eight (with five of these later having phalloplasty), phalloplasty 40, and implantation of a prosthetic erectile device 20. The frequencies of various maleto-female surgical interventions were: vaginoplasty 48, breast augmentation 39, thyroid cartilage reduction 17, facial feminization 14, and hair transplantation three.
The final number of subjects with SF-36 scores was 103 (49 [47.6%] female-to-male; 54 [52.4%] male-to-female; ratio 1:1.1). For this measure, the scores for the vitality and mental health domains for the final female-to-male cohort (n= 49 and not limited to those having undergone some element of reassignment surgery) were statistically lower: 60.61±18.16 versus 71.9±18.31 and 71.51±16.40 versus 79.3±16.4 respectively. Scores were not different from the normative data for Dutch women: vitality: 64.3±19.7 or mental health 73.7±18.2. None of the domains of the SF-36 for the final male-to-female cohort (n=54 and not limited to those having undergone some element of reassignment surgery) were statistically different from the normative data for Dutch women.
Analysis of variance indicated that quality of life as measured by the SF-36 did not differ by whether female-to-male patients had undergone genital surgery (metaoidoplasty or phalloplasty) or not. Also, ANOVA indicated that quality of life as measured by the SF-36 did not differ by whether male-to-female patients had undergone either breast augmentation or genital surgery (vaginoplasty) or not.
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Whether there is overlap with the Ghent populations studied by Heylens et al. or Weyers et al. is unknown.
Newfield E, Hart S, Dibble S, Kohler L. Female-to-male transgender quality of life. Qual Life Res. 2006 Nov;15(9):1447-57. Epub 2006 Jun 7. (United States study)
Newfield et al. conducted a prospective, observational internet self-report survey of unknown blinding status using a cross- sectional design and a non-specific quality of life tool in a mixed population with and without hormone therapy and/or reassignment surgery. There were no formal controls.
The investigators recruited natal female participants identifying as male using email, internet bulletin boards, and flyers/postcards distributed in the San Francisco Bay Area. Reduction of duplicate entries by the same participant was limited to the use of a unique user name and password.
The investigators employed the Short-Form 36 (SF-36) Version 2 using U.S. normative data. They reported using both male and female normative data for the comparator SF-36 cohort. Data for the eight domains were expressed as normative scoring. The Bonferroni correction was used to adjust for the risk of a Type 1 error with analyses using multiple comparisons.
A total of 379 U.S. respondents classified themselves as males-or-females to males with or without therapeutic intervention. The mean age of the respondents who classified themselves as male or female-to-male was 32.6±10.8 years. Of these 89% were Caucasian, 3.6% Latino, 1.8% African American, 1.8% Asian, and 3.8% other. Of these, 254 (67.0%) reported prior or current testosterone use while 242 (63.8%) reported current testosterone use. In
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 addition, 136 (36.7%) reported having had “top” surgery and 11 (2.9%) reported having “bottom” surgery.
Complete SF-36 data were available for 376 U.S. respondents. For the complete, non-stratified U.S. cohort the Physical Summary Score (53.45±9.42) was statistically higher (better) than the natal gender unspecified SF-36 normative score (50±10) (p=<0.001), but was within one standard deviation of the normative mean. The Mental Summary Score (39.63±12.2) was statistically lower (worse) than the natal gender unspecified SF-36 normative score (50±10) (p<0.001), but was well within two standard deviations of the normative mean. Subcomponents of this score: Mental Health (42.12±10.2), Role Emotional (42.42±11.6), Social Functioning (43.14±10.9), and Vitality (46.22±9.9) were statistically lower (worse) than the SF-36 normative sub-scores, but well within one standard deviation of the normative sub- score means. Interpretive information for these small biologic differences in a proprietary assessment tool was not provided.
Additional intragroup analyses were conducted, although the data were not stratified by type of therapeutic intervention (hormonal, as well as, surgical). Outcomes of hormone therapy were considered separately and dichotomously from reassignment surgery. The Mental Summary Score was statistically higher (better) in those who had “Ever Received Testosterone” (41.22±11.9) than those with “No Testosterone Usage” (36.08±12.6) (p=0.001). The Mental Summary Scores showed a trend towards statistical difference between those who “Ever Received Top Surgery” (41.21±11.6) and those without “Top Surgery” (38.01±12.5) (p=0.067). These differences were well within one standard deviation of the normative mean. Interpretive information for these small biologic differences in a proprietary assessment tool was not provided.
b. Observational, surgical series, without concurrent controls
Blanchard R, Steiner BW, Clemmensen LH. Gender dysphoria, gender reorientation, and the clinical management of transsexualism. J Consult Clin Psychol. 1985 Jun; 53(3):295-304.
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Blanchard et al. conducted a single-center (Ontario, Canada), prospective, non-blinded, cross-sectional study using a self-designed questionnaire and a non- specific psychological symptom assessment with normative data. The investigators assessed social adjustment and psychopathology in patients with gender dysphoria and who were at least one year post gender reassignment surgery. Reassignment surgery was defined as either vaginoplasty or mastectomy/construction of male chest contour with or without nipple transplants, but did not preclude additional procedures. Partner preference was determined using Blanchard’s Modified Androphilia-Gynephilia Index, and the nature and extent of any psychopathology was determined with the Symptom Check List 90-Revised (SCL-90R). Differences in test scores considered to be biologically significant were not pre-specified in the methods.
Of the 294 patients (111 natal females and 183 natal males, ratio: 1:1.65) initially evaluated, 263 were diagnosed with gender dysphoria. Of these 79 patients participated in the study (38 female-to-male; 32 male-to-female with male partner preference; 9 male-to-female with female partner preference). The respective mean ages for these 3 groups were 32.6, 33.2, and 47.7 years with the last group being older statistically (p=0.01).
Additional surgical procedures in female-to-male patients included: oophorectomy/hysterectomy (92.1%) and phalloplasty (7.9%). Additional surgical procedures in male-to-female patients with male partner preference included facial hair electrolysis 62.5% and breast implantation (53.1%). Additional procedures in male-to-female patients with female partner preference included facial hair electrolysis (100%) and breast implantation (33.3%). The time between reassignment surgery and questionnaire completion did not differ by group.
Psychopathology as measured by the Global Severity Index of the SCL-90R was absent in all three patient groups. Interpretation did not differ by the sex of the normative cohort.
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 Of participants, 63.2% of female-to-male patients cohabitated with partners of their natal gender; 46.9% of male-to-
female patients with male partner preference cohabitated with partners of their natal gender; and no male-to-female patients with female partner preference cohabitated with partners of their natal gender.
Of participants, 93.7% reported that they would definitely undergo reassignment surgery again. The remaining 6.3% (one female-to-male; one male-to-female with male partner preference; three male-to-female with female partner preference) indicated that they probably would undertake the surgery again. Post hoc analysis suggested that the more ambivalent responders had more recently undergone surgery. Of responders, 98.7% indicated that they preferred life in the reassigned gender. The one ambivalent subject was a skilled and well compensated tradesperson who was unable to return to work in her male dominated occupation.
Eldh J, Berg A, Gustafsson M. Long-term follow up after sex reassignment surgery. Scand J Plast Reconstr Surg Hand Surg. 1997 Mar;31(1):39-45.
Eldh et al. conducted a non-blinded, observational study using a prospective cross-sectional design with an investigator designed questionnaire and retrospective acquisition of pre-operative data. The investigators assessed economic circumstances, family status, satisfaction with surgical results, and sexual function in patients who had undergone gender reassignment surgery.
Of the 175 patients who underwent reassignment surgery in Sweden, 90 responded. Of this number, 50 were female-to-male and 40 were male-to-female (ratio: 1:0.8). Patients reportedly were generally satisfied with the appearance of the reconstructed genitalia (no numbers provided). Of the patients who had undergone surgery prior to 1986, seven (14%) were dissatisfied with shape or size of the neo-phallus; eight (16%) declined comment. There were 14 (35%), with 12 having surgery prior to 1986 and two between 1986 and 1995 inclusive, were moderately satisfied because of insufficient vaginal volume; 8 (20%) declined comment. A neo-clitoris was not constructed until the later surgical cohort. Three of 33 reported no sensation or no sexual sensation. Eight had difficulties
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comprehending the question and did not respond.
A total of nine (18%) patients had doubts about their sexual orientation; 13 (26%) declined to answer the question. The study found that two female-to- male patients and two male-to-female patients regretted their reassignment surgery and continued to live as the natal gender, and two patients attempted suicide.
Hess J, Rossi Neto R, Panic L, Rübben H, Senf W. Satisfaction with male-to-female gender reassignment surgery. Dtsch Arztebl Int. 2014 Nov 21;111(47):795-801.
Hess at al. conducted a prospective, blinded, observational study using a cross-sectional design and a self-designed anonymous questionnaire. The investigators assessed post-operative satisfaction in male-to-female patients with gender dysphoria who were followed in a urology specialty clinic (Essen, Germany). Patients had met the ICD-10 diagnostic criteria, undergone gender reassignment surgeries including penile inversion vaginoplasty, and a Likertstyle questionnaire with 11 elements. Descriptive statistics were provided.
There were 254 consecutive eligible patients who had undergone surgery between 2004 and 2010 identified and sent surveys, of whom 119 (46.9%) responded anonymously. Of the participants, 13 (10.9%) reported dissatisfaction with outward appearance and 16 (13.4%) did not respond; three (2.5%) reported dissatisfaction with surgical aesthetics and 25 (21.0%) did not respond; eight (6.7%) reported dissatisfaction with functional outcomes of the surgery and 26 (21.8%) did not respond; 16 (13.4%) reported they could not achieve orgasm and 28 (23.5%) did not respond; four (3.4%) reported feeling completely male/more male than female and 28 (23.5%) did not respond; six (5.0%) reported not feeling accepted as a woman, two (1.7%) did not understand the question, and 17 (14.3%)
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 did not respond; and 16 (13.4%) reported that life was harder and 24 (20.2%) did not respond.
Lawrence A. Patient-reported complications and functional outcomes of male-to-female sex reassignment surgery. Arch Sex Behav. 2006 Dec;35(6):717-27. Epub 2006 Nov 16. (United States study)
Lawrence conducted a prospective, blinded observational study using a cross-sectional design and a partially selfdesigned quality of life tool using yes/no questions or Likert scales. The investigator assessed sexual function, urinary function, and other pre/post-operative complications in patients who underwent male-to-female gender reassignment surgery. Questions addressed core reassignment surgery (neo-vagina and sensate neo-clitoris) and related reassignment surgery (labiaplasty, urethral meatus revision, vaginal deepening/widening, and other procedures), use of electrolysis, and use of hormones.
Questionnaires were designed to be completed anonymously and mailed to 727 eligible patients. Of those eligible, 232 (32%) returned valid questionnaires. The age at the time reassignment surgery was 44±9 (range 18-70) years and mean duration after surgery was 3±1 (range 1-7) years.
Happiness with sexual function and the reassignment surgery was reported to be lower when permanent vaginal stenosis, clitoral necrosis, pain in the vagina or genitals, or other complications such as infection, bleeding, poor healing, other tissue loss, other tissue necrosis, urinary incontinence, and genital numbness were present. Quality of life was impaired when pain in the vagina or genitals was present.
Satisfaction with sexual function, gender reassignment surgery, and overall QOL was lower when genital sensation was impaired and when vaginal architecture and lubrication were perceived to be unsatisfactory. Intermittent regret regarding reassignment surgery was associated with vaginal hair and clitoral pain. Vaginal stenosis was associated with surgeries performed in the more distant past; whereas, more satisfaction with vaginal depth and width was present in more recent surgical treatment.
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Salvador J, Massuda R, Andreazza T, Koff WJ, Silveira E, Kreische F, de Souza L, de Oliveira MH, Rosito T, Fernandes BS, Lobato MI. Minimum 2-year follow up of sex reassignment surgery in Brazilian male-to-female transsexuals. Psychiatry Clin Neurosci. 2012 Jun; 66(4):371-2. PMID: 22624747.
Salvador et al. conducted a single center (Port Alegre, Brazil) prospective, non-blinded, observational study using a cross-sectional design (albeit over an extended time interval) and a self-designed quality of life tool. The investigators assessed regret, sexual function, partnerships, and family relationships in patients who had undergone gender reassignment surgery at least 24 months prior.
Out of the 243 enrolled in the clinic over a 10 year interval, 82 underwent sex reassignment surgery. There were 69 participants with a minimum 2-year follow up, of whom 52 patients agreed to participate in the study. The age at follow-up was 36.3±8.9 (range 15-58) years with the time to follow-up being 3.8±1.7 (2-7) years. A total of 46 participants reported pleasurable neo-vaginal sex and post-surgical improvement in the quality of their sexual experience. The quality of sexual intercourse was rated as satisfactory to excellent, average, unsatisfactory, or not applicable in the absence of sexual contact by 84.6%, 9.6%, 1.9%, and 3.8% respectively. Of the participants, 78.8% reported greater ease in initiating and maintaining relationships; 65.4% reported having a partner; 67.3% reported increased frequency of intercourse; 36.8% reported improved familial relationships. No patient reported regret over reassignment surgery. The authors did not provide information about incomplete questionnaires.
Tsoi WF. Follow-up study of transsexuals after sex-reassignment surgery. Singapore Med J. 1993 Dec; 34(6):515-7.
Tsoi conducted a single-center (Singapore) prospective, non-blinded, observational study using a cross-sectional
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 design and a self-designed quality of life tool. The investigator assessed overall life satisfaction, employment, partner
status, and sexual function in gender-reassigned persons who had undergone gender reassignment surgery between 1972 and 1988 inclusive and who were approximately 2 to 5 years post-surgery. Acceptance criteria for surgery included good physical health, good mental health, absence of heterosexual tendencies, willingness to undergo hormonal therapy for ≥6 months, and willingness to function in the life of the desired gender for ≥6 months. Tsoi also undertook retrospective identification of variables that could predict outcomes.
The size of the pool of available patients was not identified. Of the 81 participants, 36 (44.4%) were female-to-male and 45 (55.6%) were male-to-female (ratio 1:1.25).
The mean ages at the time of the initial visit and operation were: female-to-male 25.4±4.4 (range 14-36) and 27.4 ±4.0; (range 14-36); male-to-female 22.9±4.6 (range 14-36) and 24.7±4.3 (14-36) years respectively. Of all participants, 14.8% were under age 20 at the time of the initial visit. All were at least 20 at the time of gender reassignment surgery. The reported age of onset was 8.6 years for female-to-male patients and 8.7 years for maleto-female patients.
All participants reported dressing without difficulty in the reassigned gender; 95% of patients reported good or satisfactory adjustment in employment and income status; 72% reported good or satisfactory adjustment in relationships with partners. Although the quality of life tool was self-designed, 81% reported good or satisfactory adjustment to their new gender, and 63% reported good or acceptable satisfaction with sexual activity. Of the female-to-male patients, 39% reported good or acceptable satisfaction with sex organ function in comparison to 91% of male-to-female patients (p<0.001). (The author reported that a fully functioning neo-phallus could not be constructed at the time.) The age of non-intercourse sexual activity was the only predictor of an improved outcome.
Weyers S, Elaut E, De Sutter P, Gerris J, T'Sjoen G, Heylens G, De Cuypere G, Verstraelen H. Long-term assessment of the physical, mental, and sexual health among transsexual women. J Sex Med. 2009 Mar;6(3):752-60. Epub 2008 Nov 17.
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Weyers at al. (2009) conducted a prospective, non-blinded, observational study using a cross-sectional design and several measurement instruments including a non-specific quality of life tool and a semi-specific quality of life tool (using normative data) along with two self-designed tools.
The investigators assessed general quality of life, sexual function, and body image from the prior four weeks in Dutch-speaking male-to-female patients with gender dysphoria who attended a single-center (Ghent, Belgium), specialized, comprehensive care university clinic. Investigators used the Dutch version of the SF-36 and results were compared to normative data from Dutch women and U.S. women. The 19 items of the Dutch version of the Female Sexual Function Index (FSFI) were used to measure sexual desire, function, and satisfaction. A self-designed seven question visual analog scale (VAS) was used to measure satisfaction with gender related body traits and appearance perception by self and others. A self-designed survey measured a broad variety of questions regarding personal medical history, familial medical history, relationships, importance of sex, sexual orientation, gynecologic care, level of regret, and other health concerns. For this study, hormone levels were also obtained.
The study consisted of 50 (71.5% of the eligible recruits) participants. Analysis of the data revealed that the patient’s average age was 43.1 ±10.4 years, and all of the patients had vaginoplasty. This same population also had undergone additional feminization surgical procedures (breast augmentation 96.0%, facial feminization 36.0%, vocal cord surgery 40.0%, and cricoid cartilage reduction 30.0%). A total of two (4.0%) participants reported “sometimes” regretting reassignment surgery and 23 (46.0%) were not in a relationship. For the cohort, estradiol, testosterone, and sex hormone binding globulin levels were in the expected range for the reassigned gender. The SF-36 survey revealed that the subscale scores of the participants did not differ substantively from those of Dutch and U.S. women. VAS scores of body image were highest for self-image, appearance to others, breasts, and vulva/vagina (approximately 7 to 8 of 10). Scores were lowest for body hair, facial hair, and voice characteristics (approximately 6
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 to 7 of 10).
The total FSFI score was 16.95±10.04 out of a maximal 36. The FSFI scores averaged 2.8 (6 point maximum): satisfaction 3.46±1.57, desire 3.12+1.47, arousal 2.95±2.17, lubrication 2.39±2.29, orgasm 2.82±2.29, and pain 2.21±2.46. Though these numbers were reported in the study, data on test population controls were not provided.
A post hoc exploration of the data suggested the following: perceived improvement in general health status was greater in the subset that had undergone reassignment surgery within the last year; sexual orientation impacted the likelihood of being in a relationship; SF-36 scores for vitality, social functioning, and mental health were nominally better for those in relationships, but that overall SF-36 scores did not differ by relationship status; sexual orientation and being in a relationship impacted FSFI scores; and reported sexual function was higher in those with higher satisfaction with regards to their appearance.
Wierckx K, Van Caenegem E, Elaut E, Dedecker D, Van de Peer F, Toye K, Weyers S, Hoebeke P, Monstrey S, De Cuypere G, T'Sjoen G. Quality of life and sexual health after sex reassignment surgery in transsexual men. J Sex Med. 2011 Dec;8 (12):3379-88. Epub 2011 Jun 23.
Wierckx at al. conducted a prospective, non-blinded, observational study using a cross-sectional design and several measurement instruments (a non-specific quality of life tool with reported normative data along with three selfdesigned tools). The investigators assessed general quality of life, sexual relationships, and surgical complications in Dutch-speaking female-to-male patients with gender dysphoria who attended a single-center, specialized, comprehensive care, university clinic (Ghent, Belgium). Investigators used the Dutch version of the SF-36 with 36 questions, eight subscales, and two domains evaluating physical and mental health. Results were compared to normative data from Dutch women and Dutch men. Self -designed questionnaires to evaluate aspects of medical history, sexual functioning (there were separate versions for those with and without partners), and surgical results were also used. The Likert-style format was used for many of the questions.
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A total of 79 female-to-male patients with gender dysphoria had undergone reassignment surgery were recruited; ultimately, 47 (59.5%) chose to participate. Three additional patients were recruited by other patients. One of the 50 participants was later excluded for undergoing reassignment surgery within the one year window. The age of patients was: 30±8.2 years (range 16 to 49) at the time of reassignment surgery and 37.1 ±8.2 years (range 22 to 54) at the time of follow-up. The time since hysterectomy, oopherectomy, and mastectomy was 8 years (range 2 to 22). The patient population had undergone additional surgical procedures: metaidoiplasty (n=9; 18.4%), phalloplasty (n=8 after metaidoiplasty, 38 directly; 93.9% total), and implantation of erectile prosthetic device (n=32; 65.3%). All had started hormonal therapy at least two years prior to surgery and continued to use androgens.
The SF-36 survey was completed by 47 (95.9%) participants. The “Vitality” and the “Mental Health” scales were lower than the Dutch male population: 62.1±20.7 versus 71.9±18.3 and 72.6±19.2 versus 79.3±16.4 respectively. These subscale scores were equivalent to the mean scores of the Dutch women.
None of the participants were dissatisfied with their hysterectomy-oopherectomy procedures; 4.1% were dissatisfied with their mastectomies because of extensive scarring; and 2.2% were dissatisfied with their phalloplasties. Of the participants, 17.9% were dissatisfied with the implantation of an erectile prosthetic device; 25 (51.0%) reported at least one post-operative complication associated with phalloplasty (e.g., infection, urethrostenosis, or fistula formation); 16 (50.0% of the 32 with an erectile prosthetic device) reported at least one post-operative complication associated with implantation of an erectile prosthetic (e.g., infection, leakage, incorrect positioning, or lack of function).
A total of 18 (36.7%) participants were not in a relationship; 12.2% reported the inability to achieve orgasm with
cited in Edmo v. Corzon, Inc. self-stimulation less than half the time; 12.2% did not respond to the question. Of those participants with partners, No. 19-35017 archived on February 4, 2020 28.5% reported the inability to achieve orgasm with intercourse less than half the time and 9.7% did not respond to
this question. Also, 61.3% of those with partners reported (a) no sexual activities (19.4%) or (b) activities once or twice monthly (41.9%), and there were 12.9% who declined to answer.
c. Observational, surgical patients, cross-sectional, with controls
Ainsworth TA, Spiegel JH. Quality of life of individuals with and without facial feminization surgery or gender reassignment surgery. Qual Life Res. 2010 Sep;19(7):1019-24.
Ainsworth and Spiegel conducted a prospective, observational study using a cross-sectional design and a partially self-designed survey tool. The blind status is unknown. Treatment types served as the basis for controls.
The investigators, head and neck surgeons who provided facial feminization services, assessed perception of appearance and quality of life in male-to-female subjects with self-reported gender dysphoria. Patients could have received no therapeutic intervention, hormone therapy, reassignment surgery, and/or facial feminization surgery and an unrestricted length of transition. (Transition refers to the time when a transgender person begins to live as the gender with which they identify rather than the gender assigned at birth.) Criteria for the various types of interventions were not available because of the survey design of the study. Patients were recruited via website or at a 2007 health conference. Pre-specified controls to eliminate duplicate responders were not provided. The investigators employed a self-designed Likert-style facial feminization outcomes evaluation questionnaire and a “San Francisco 36” health questionnaire. No citations were provided for the latter. It appears to be the Short-form (SF) 36-version 2. Changes or differences considered to be biologically significant were not pre-specified. Power corrections for multiple comparisons were not provided.
The investigators reported that there were 247 participants. (The numbers of incomplete questionnaires was not reported.) Of the 247 participants, 25 (10.1%) received only primary sex trait reassignment surgery, 28 (11.3%)
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received facial surgery without primary sex trait reassignment surgery, 47 (19.0%) received both facial and primary sex trait reassignment surgery, and 147 (59.5%) received neither facial nor reassignment surgery.
The mean age for each of these cohorts was: 50 years (no standard deviation [S.D.]) only reassignment surgery, 51 years (no S.D.) only facial surgery, 49 years (no S.D.) both types of surgery, and 46 years (no S.D.) (neither surgery). Of the surgical cohorts: 100% of those who had undergone primary sex trait reassignment surgery alone used hormone therapy, 86% of those who had undergone facial feminization used hormone therapy, and 98% of those who had undergone both primary sex trait reassignment surgery and facial feminization used hormone therapy. In contrast to the surgical cohorts, 66% of the “no surgery” cohort used hormonal therapy, and a large proportion (27%) had been in transition for less than one year.
The investigators reported higher scores on the facial outcomes evaluation in those who had undergone facial feminization. Scores of the surgical cohorts for the presumptive SF-36 comprehensive mental health domain did not differ from the general U.S. female population. Scores of the “no surgery” cohort for the comprehensive mental health domain were statistically lower than those of the general U.S. female population, but within one standard deviation of the normative mean. Mean scores of all the gender dysphoric cohorts for the comprehensive physical domain were statistically higher than those of the general female U.S. population, but were well within one standard deviation of the normative mean. Analyses of inter-cohort differences for the SF-36 results were not conducted. Although the investigators commented on the potential disproportionate impact of hormone therapy on outcomes and differences in the time in “transition”, they did not conduct any statistical analyses to correct for putative confounding variables.
cited in Edmo v. Corzon, Inc. Kraemer B, Delsignore A, Schnyder U, Hepp U. Body image and transsexualism. Psychopathology. 2008;41(2):96No. 19-35017 archived on February 4, 2020 100. Epub 2007 Nov 23.
Kraemer et al. conducted a single center (Zurich, Switzerland) prospective, non-blinded, observational study using a cross-sectional design comparing pre-and post- surgical cohorts. Patients were required to meet DSM III or DSM IV criteria as applicable to the time of entry into the clinic. Post-surgical patients were from a long-term study group (Hepp et al., 2002). Pre-surgical patients were recent consecutive referrals. The assessment tool was the Fragebogen zur Beurteilung des eigenen Korpers (FBeK) which contained three domains.
There were 23 pre-operative patients: 7 (30.4%) female-to-male and 16 (69.6%) male-to-female (ratio 1:2.3). There were 22 post-operative patients: 8 (36.4 %) female-to-male and 14 (63.6%) male-to-female (ratio 1:1.8). The mean ages of the cohorts were as follows: pre-operative 33.0±11.3 years; post-operative 38.2±9.0 years. The mean duration after reassignment surgery was 51±25 months (range 5-96).
The pre-operative groups had statistically higher insecurity scores compared to normative data for the natal sex: female-to-male 9.0±3.8 versus 5.1±3.7; male-to-female 8.1±4.5 versus 4.7±3.1 as well as statistically lower selfconfidence in one’s attractiveness: female-to-male 3.1±2.9 versus 8.9±3.1; male-to-female 7.0±2.9 vs 9.5±2.6.
Mate-Kole C, Freschi M, Robin A. Aspects of psychiatric symptoms at different stages in the treatment of transsexualism. Br J Psychiatry. 1988 Apr;152: 550-3.
Mate-Kole at al. conducted a single site (London, United Kingdom) prospective non-blinded, observational study using a cross-sectional design and two psychological tests (one with some normative data). Concurrent controls were used in this study design. The investigators assessed neuroticism and sex role in natal males with gender dysphoria. Patients at various stages of management, (i.e., under evaluation, using cross-sex hormones, or post reassignment surgery [6 months to 2 years]) were matched by age of cross-dressing onset, childhood neuroticism, personal psychiatric history, and family psychiatric history. Both a psychologist and psychiatrist conducted assessments. The
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instruments used were the Crown Crisp Experiential Index (CCEI) for psychoneurotic symptoms and the Bem Sex Role Inventory. ANOVA was used to identify differences between the three treatment cohorts.
For each cohort, investigators recruited 50 male-to-female patients from Charing Cross Hospital. The mean ages of the three cohorts were as follows: 34 years for patients undergoing evaluation; 35 years for wait-listed patients; and 37 years for post-operative patients. For the cohorts, 22% of those under evaluation, 24% of those on hormone treatment only, and 30% of those post-surgery had prior psychiatric histories, and 24%, 24%, while 14% in each cohort, respectively, had a history of attempted suicide. More than 30% of patients in each cohort had a first degree relative with a history of psychiatric disease.
The scores for the individual CCEI domains for depression and somatic anxiety were statistically higher (worse) for patients under evaluation than those on hormone treatment alone. The scores for all of the individual CCEI domains (free floating anxiety, phobic anxiety, somatic anxiety, depression, hysteria, and obsessionality) were statistically lower in the post-operative cohort than in the other two cohorts.
The Bem Sex Role Inventory masculinity score for the combined cohorts was lower than for North American norms for either men or women. The Bem Sex Role Inventory femininity score for the combined cohorts was higher than for North American norms for either men or women. Those who were undergoing evaluation had the most divergent scores from North American norms and from the other treatment cohorts. Absolute differences were small. All scores of gender dysphoric patients averaged between 3.95 and 5.33 on a 7 point scale while the normative scores averaged between 4.59 and 5.12.
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 Wolfradt U, Neumann K. Depersonalization, self-esteem and body image in male-to-female transsexuals compared to
male and female controls. Arch Sex Behav. 2001 Jun;30(3):301-10.
Wolfradt and Neumann conducted a controlled, prospective, non-blinded, observational study using a cross-sectional design. The investigators assessed aspects of personality in male-to-female patients who had undergone vocal cord surgery for voice feminization and in healthy non-transgender volunteers from the region. The patients had undergone gender reassignment surgery 1 to 5 years prior to voice surgery. The volunteers were matched by age and occupation.
The primary hypothesis was that depersonalization, with the sense of being detached from one’s body or mental processes, would be more common in male-to- female patients with gender dysphoria. German versions of the Scale for Depersonalization Experiences (SDPE), the Body Image Questionnaire (BIQ), a Gender Identity Trait Scale (GIS), and the Self-Esteem Scale (SES) were used in addition to a question regarding global satisfaction. Three of the assessments used a 5 point scale (BIQ, GIS, and SDPE) for questions. One used a 4 point scale (SES). Another used a 7 point scale (global satisfaction). The study consisted of 30 male-to-female patients, 30 healthy female volunteers, and 30 healthy male volunteers. The mean age of study participants was 43 years (range 29- 67).
Results of the study revealed that there were no differences between the three groups for the mean scores of measures assessing depersonalization, global satisfaction, the integration of masculine traits, and body-imagerejected (subset). Also, the sense of femininity was equivalent for male-to-female patients and female controls and higher than that in male controls. The levels of self-esteem and body image-dynamic (subset) were equivalent for male-to-female patients and male controls and higher than that in female controls, and none of the numeric differences between means exceeded 0.61 units.
Kuhn A, Bodmer C, Stadlmayr W, Kuhn P, Mueller M, Birkhäuser M. Quality of life 15 years after sex reassignment surgery for transsexualism. Fertil Steril. 2009 Nov;92(5):1685-1689.e3. Epub 2008 Nov 6.
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Kuhn et al. conducted a prospective, non-blinded, observational study using a cross-sectional design and semimatched control cohort. The investigators assessed global satisfaction in patients who were from gynecology and endocrinology clinic (Bern, Switzerland), and who had undergone some aspect of gender reassignment surgery in the distant past, but were still receiving cross-sex hormones from the clinic. The quality of life assessment tools included a VAS and the King’s Health Questionnaire (KHQ), which consists of eight domains with scores between zero and five or one and five, with lower scores indicating higher preference. The KHQ and the numerical change/difference required for clinical significance (≥5 points in a given domain, with higher scores being more pathologic) were included in the publication. Twenty healthy female controls from the medical staff who had previously undergone an abdominal or pelvic surgery were partially matched by age and body mass index (BMI), but not sex. No corroborative gynecologic or urologic evaluations were undertaken.
Of the 55 participants, three (5.4%) were female-to-male and 52 (94.5%) were male-to-female (ratio 1:17.3). Reassignment surgery had been conducted 8 to 23 years earlier (median 15 years). The median age of the patients at the time of this study was 51 years (range 39-62 years). The patients had undergone a median of nine surgical procedures in comparison to the two undergone by controls. Reassignment patients were less likely to be married (23.6% versus 65%; p=0.002); partnership status was unknown in five patients. The scores of VAS global satisfaction (maximal score eight) were lower for surgically reassigned patients (4.49±0.1 SEM) than controls (7.35±0.26 SEM) (p<0.0001).
The abstract stated that quality of life was lower in reassignment patients 15 years after surgery relative to controls. One table in the study, Table 2, delineated statistically and biologically significant differences for four of the eight KHQ domains between the patients and controls: physical limitation: 37.6±2.3 versus 20.9±1.9 (p<0.0001), personal limitation: 20.9±1.9 versus 11.6±0.4 (p<0.001), role limitation: 27.8+2.4 versus 34.6+1.7 (p=0.046), and
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 general health: 31.7±2.2 versus 41.0±2.3 (p<0.02). There is a related paper by Kuhn et al. 2006.
Haraldsen IR, Dahl AA. Symptom profiles of gender dysphoric patients of transsexual type compared to patients with personality disorders and healthy adults. Acta Psychiatr Scand. 2000 Oct;102(4):276-81.
Haraldsen and Dahl conducted a single-center (Oslo, Norway) partially prospective, non-blinded, observational study using a cross-sectional design and a non-specific psychometric test. There was a control group, but it was not concurrent.
In the germane sub-study, the investigator assessed psychopathology in patients with gender dysphoria. Patients, who were independently evaluated by two senior psychiatrists, were required to meet DSM III-R or DSM IV diagnostic criteria and the Swedish criteria for reassignment surgery. The Norwegian version of the SCL-90 was used. The testing was conducted from 1987 to 1989 for those who had undergone reassignment surgery between 1963 and 1987 and from 1996 to 1998 for pre- surgical patients who had applied for reassignment surgery between 1996 and 1998. In addition, Axis I, Axis II, and Axis V (Global Functioning) was assessed.
Of 65 post–surgical and 34 pre-surgical patients, 59 post-surgical and 27 pre-surgical patients ultimately entered the study. The combined cohorts consisted of 35 (40.7%) female-to-male patients and 51 (59.3%) male-to-female patients (ratio 1:1.5). The ages were female-to-male 34±9.5 years and female-to-male 33.3±10.0 years. The other control group consisted of patients with personality disorder. Of these, 101 (27 men (33.9±7.3 years) and 74 women (31.6±8.2) were tested during a treatment program. One year later, 98% were evaluated. A total of 28 (32.5%) of the pre- and post- reassignment surgery patients had an Axis I diagnosis compared to 100 (99.0%) of those with personality disorders. Depression and anxiety were the most common diagnoses in both groups, but were approximately three to four times more common in the personality disorder cohort. Seventeen (19.8%) of the preand post-reassignment surgery patients had an Axis II diagnosis whereas the mean number of personality disorders in the personality disorder cohort was 1.7±1. The Global Assessment of Function was higher (better) in the gender
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dysphoric groups (78.0±8.9) than in the personality disorder cohort (53.0±9.0).
Global Severity Indices (GSI) were highest for those with personality disorder regardless of gender and exceeded the cut-point score of 1.0. The GSI scores for females-to-males and males-to-females were 0.67±57 and 0.56±0.45. Although they were nominally higher than the healthy normative controls (males: 0.32±0.36 and females 0.41±0.43), they were well within the non- pathologic range. The same was true for the subscales.
SCL-90 GSI scores did not differ substantively between pre- and post-surgical patients, nor did the SCI subscale scores differ substantively between pre- and post-surgical patients. Any small non-significant differences tracked with the age and sex differences.
Beatrice J. A psychological comparison of heterosexuals, transvestites, preoperative transsexuals, and postoperative transsexuals. J Nerv Ment Dis. 1985 Jun;173(6):358-65. (United States study)
Beatrice conducted a prospective, non-blinded, observational study using a cross-sectional design and control cohorts in the U.S. The investigator assessed psychological adjustment and functioning (self-acceptance) in male-tofemale patients with gender dysphoria (with and without GRS), transvestites from two university specialty clinics, and self-identified heterosexual males recruited from the same two universities. The criteria to qualify for the study included being known to the clinic for at least one year, cross-dressing for at least one year without arrest, attendance at 10 or more therapy sessions, emotionally self-supporting, and financially capable of payment for reassignment surgery, and all of these criteria were met by the pre-operative cohort as well as the post-operative cohort. The cohorts were matched to the post-operative cohort (age, educational level, income, ethnicity, and prior
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 heterosexual object choice). The post-operative cohort was selected not on the basis of population representation,
but on the basis of demographic feasibility for a small study. The instruments used were the Minnesota Multiphasic Personality Inventory (MMPI) and the Tennessee Self-Concept Scale (TSCS). Changes or differences considered to be biologically significant were not pre-specified.
Of the initial 54 recruits, ten subjects were left in each of the cohorts because of exclusions identified due to demographic factors. The mean age of each cohort were as follows: pre-operative gender dysphoric patients 32.5 (range 27-42) years, postoperative patients 35.1 (30-43) years old, transvestite 32.5 (29-37) years old, and heterosexual male 32.9 (28-38) years old. All were Caucasian. The mean age for cross-dressing in pre-operative patients (6.4 years) and post-operative patients (5.8 years) was significantly lower than for transvestites (11.8 years).
The scores for self-acceptance did not differ by diagnostic category or surgical status as measured by the TSCS instrument. As measured by the T-scored MMPI instrument (50±10), levels of paranoia and schizophrenia were higher for post-operative (GRS) patients (63.0 and 68.8) than transvestites (55.6 and 59.6) and heterosexual males (56.2 and 51.6). Levels of schizophrenia were higher for pre-operative patients (65.1) than heterosexual males (51.6). There were no differences between patients with gender dysphoria. Scores for the Masculine-Feminine domain were equivalent in those with transvestitism and gender dysphoria with or without surgery, but higher than in heterosexual males. The analysis revealed that despite the high level of socio-economic functioning in these highly selected subjects, the MMPI profiles based on the categories with the highest scores were notable for antisocial personality, emotionally unstable personality, and possible manic psychosis in the pre-operative GRS patients and for paranoid personality, paranoid schizophrenia, and schizoid personality in the post-operative GRS patients. By contrast, the same MMPI profiling in heterosexual males and transvestites was notable for the absence of psychological dysfunction.
d. Observational, surgical patients, longitudinal, with controls
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Dhejne C, Lichtenstein P, Boman M, Johansson A, Långström N, Landén M. Long-term follow-up of transsexual persons undergoing sex reassignment surgery: cohort study in Sweden. PLoS One. 2011;6(2):e16885. Epub 2011 Feb 22.
Dhejne et al. conducted a retrospective, non-blinded, observational study of nation-wide mortality using a longitudinal and a population-based matched cohort. The investigators assessed conditions such as, but not limited to, mortality, suicide attempts, psychiatric hospitalization, and substance abuse in gender-reassigned persons and randomly selected unexposed controls matched by birth year and natal sex (1:10) as well as by birth year and the reassigned gender (1:10). Data were extracted from national databases including the Total Population Register (Statistics Sweden), the Medical Birth Register, the Cause of Death Register (Statistics Sweden), the Hospital Discharge Register (National Board of Health and Welfare), the Crime Register (National Council of Crime), and those from the Register of Education for highest educational level. The criteria required to obtain the initial certificate for reassignment surgery and change in legal status from the National Board of Health and Welfare were the 2002 WPATH criteria and included evaluation and treatment by one of six specialized teams, name change, a new national identity number indicative of gender, continued use of hormones, and sterilization/castration. Descriptive statistics with hazard ratios were provided.
Investigators identified 804 patients with gender identity disorder (or some other disorder) in Sweden during the period from 1973 to 2003 inclusive. Of these patients, 324 (40.3%) underwent gender-reassignment surgery (133 female-to-male [41.0%]; 191 male-to-female [59.0%]; ratio 1:1.4). The average follow-up time for all-cause mortality was 11.4 years (median 9.1). The average follow-up time for psychiatric hospitalization was 10.4 years (median 8.1).
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 The mean ages in female-to-male and male-to-female reassigned patients were: 33.3±8.7 (range 20–62) and 36.3±
10.1 (range 21–69) years, respectively. Immigrant status was two times higher in reassigned patients (n=70, 21.6%) than in either type of control (birth [natal] sex matched n=294 [9.1%] or reassigned gender matched n=264 [8.1%]). Educational attainment (10 or more years) was somewhat lower for reassigned patients (n=151 [57.8%]) than in either type of control (birth sex matched n=1,725 [61.5%] or reassigned gender matched n=1804 [64.3%]) (cohort data were incomplete). The biggest discordance in educational attainment was for female-to-male reassigned patients regardless of the control used. Prior psychiatric morbidity (which did not include hospitalization for gender dysphoria) was more than four times higher in reassigned patients (n=58, 17.9%) than in either type of control (birth sex matched n=123 [3.8%] or reassigned gender matched n=114 [3.5%]).
All-cause mortality was higher for patients who underwent gender reassignment surgery (n=27 [8.3%]) than in controls (hazard ratio 2.8 [CI 1.8-4.3]) even after adjustment for covariants (prior psychiatric morbidity and immigration status). Divergence in the survival curves began at 10 years. Survival rates at 20 year follow-up (as derived from figure 1) were: female control 97%, male controls 94%, female-to-male patients 88%, and male-tofemale patients 82%. The major contributor to this mortality difference was completed suicide (n=10 [3.1%]; adjusted hazard ratio 19.1 [CI 5.8-62.9]). Mortality due to cardiovascular disease was modestly higher for reassigned patients (n=9 [2.8%]) than in controls (hazard ratio 2.5 [CI 1.2-5.3]).
Suicide attempts were more common in patients who underwent gender reassignment surgery (n= 29 [9.0%] than in controls (adjusted hazard ratio 4.9 [CI 2.9–8.5]). Male-to-female patients were at higher adjusted risk for attempted suicide than either control whereas female-to-male patients were at higher adjusted risk compared to only male controls and maintained the female pattern of higher attempted suicide risk. Hospitalizations for psychiatric conditions (not related to gender dysphoria) were more common in reassigned persons n= 64 [20.0%] than in controls (hazard ratio 2.8 [CI 2.0–3.9]) even after adjusting for prior psychiatric morbidity. Hospitalization for substance abuse was not greater than either type of control.
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The nationwide mortality studies by Dhejne et al. (2011) includes much, if not all, of the Landén (1998) patient population and much of the Dhejne et al. (2014) population.
Dhejne C, Öberg K, Arver S, Landén M. An analysis of all applications for sex reassignment surgery in Sweden, 19602010: prevalence, incidence, and regrets. Arch Sex Behav. 2014 Nov;43(8):1535-45. Epub 2014 May 29 and Landén M, Wålinder J, Hambert G, Lundström B. Factors predictive of regret in sex reassignment. Acta Psychiatr Scand. 1998 Apr;97(4):284 (Dhejne et al., 2014; Landén et al., 1998) Sweden-All
Dhejne et al. conducted a non-blinded, observational study that was longitudinal for the capture of patients with “regret” in a national database. This same group (Landén et al., 1998) conducted a similar study along with retrospective acquisition of clinical data to explore the differences between the cohorts with and without regret. There were no external controls; only intra- group comparisons for this surgical series.
The investigators assessed the frequency of regret for gender reassignment surgery. Data were extracted from registries at the National Board of Health and Welfare to which patients seeking reassignment surgery or reversal of reassignment surgery make a formal application and which has maintained such records since a 1972 law regulating surgical and legal sex reassignment. The investigators reviewed application files from 1960 through 2010. The specific criteria to qualify for gender surgery were not delineated. Patients typically underwent diagnostic evaluation for at least one year. Diagnostic evaluation was typically followed by the initiation of gender confirmation treatment including hormonal therapy and real-life experience. After two years of evaluation and treatment, patients could make applications to the national board. Until recently sterilization or castration were the required minimal surgical procedures (Dhejne et al., 2011). Secular changes in this program included consolidation of care to limited sites,
ceTtohxh-apefneeregmrieewasnleecirn;eerap7ach6tcai7oespea1t,p:e1pad.nli6dcd)aia.fnagTtmnshoeiflsoyntriNucslumecopgrbpai.teloe1rrartio9na.fd,-ca3asiptnu5epdrl0gdicpi1cariano7nlvtsriasEediaorodscnusmhbioglfienovndmeoveenda.n-cgtCohe(n2note8itrnF9azlye[os3eubn7arrr.,g7ueiI% nrantye]rc,ryf.eve.am4gl .a,s,ltem2a-r0attois2n-tgme0ciatnolem1a9yn8dd1u.4r7in8g[t6h2e.3r% ea]l-mliafele-
Of the applicants, 88.8% or 681 (252 [37.0%] female-to-male and 429 [63.0%] male-to-female; ratio 1:1.7] had undergone surgery and changed legal status by June 30, 2011. This number included eight (four [50.0%] female-tomale and four [50.0%] male to female; ratio 1:1) people who underwent surgery prior to the 1972 law. This number appears to include 41 (two [4.9%] female-to-male and 39 [95.1%] male-to-female; ratio 1:19.5) people who underwent surgery abroad at their own expense (usually in Thailand or the U.S.). This cohort (6% of 681) includes one person who was denied reassignment surgery by Sweden.
Twenty-five (3.3%) of the applications were denied with the two most common reasons being an incomplete application or not meeting the diagnostic criteria. An additional 61(8.0%) withdrew their application, were wait-listed for surgery, postponed surgery (perhaps in hopes of the later revocation of the sterilization requirement), or were granted partial treatment.
The formal application for reversal of the legal gender status, the “regret rate”, was 2.2%. No one who underwent sex- reassignment surgery outside of Sweden (36 of these 41 had surgery after 1991) has requested reversal. The authors noted, however, that this preliminary number may be low because the median time interval to reversal request was eight years-only three of which had elapsed by publication submission- and because it was the largest serial cohort. This number did not include other possible expressions of regret including suicide (Dhejne et al., 2011).
Dhejne et al. in 2014 reported that the female-to-male (n=5): male-to-female (n=10) ratio among those who made formal applications for reversal was 1:2. The investigators also reported that the female-to-male applicants for reversal were younger at the time of initial surgical application (median age 22 years) than the complete female-to-
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male cohort at the time of surgical application (median age 27 years). By contrast the male-to-female applicants for reversal were older at the time of initial surgical application (median age 35 years) than the complete male-tofemale cohort at the time of initial surgical application (median age 32 years). Other clinical data to explore the differences between the cohorts with and without regret were not presented in this update publication.
In their earlier publication, in addition to determining a regret rate (3.8%), Landén et al. extracted data from medical records and government verdicts. Pearson Chi-square testing with Yates’ correction for small sample sizes was used to identify candidate variables predictive of regret. They observed that: (a) 25.0% of the cohort with regrets and 11.4% of the cohort without regrets were unemployed, (b) 16.7% of the cohort with regrets and 15.4% of the cohort without regrets were on “sick benefit”, (c) 15.4% of the cohort with regrets and 13.9% of the cohort without regrets had problems with substance abuse, (d) 69.2% of the cohort with regrets and 34.6% of the cohort without regrets had undergone psychiatric treatment, (e) 15.4% of the cohort with regrets and 8.8% of the cohort without regrets had a mood disorder, and (f) 15.4% of the cohort with regrets and 1.5% of the cohort without regrets had a psychotic disorder.
The putative prognostic factors that were statistically different between the cohorts with and without regret included prior psychiatric treatment, a history of psychotic disorder, atypical features of gender identity, and poor family support. Factors that trended towards statistical difference included having an unstable personality, sexual orientation and transvestitism. Univariate regression analyses further clarified the most important variables. These variables were tested with logistic regression. Initial modeling included the variable “history of psychotic disorder”. Although this variable was predictive, it was excluded from future analyses because it was already a contraindication to reassignment surgery. Additional multivariate regression analyses identified poor family support as the most predictive variable and atypical features of gender identity as the second most important variable. Presence of both
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 variables had a more than additive effect.
The nationwide mortality studies by Dhejne et al. (2011) includes much, if not all, of the Landén (1998) patient population and most of the Dhejne (2014) population. There is a related paper by Landén et al. 1998b that included the criteria to qualify for surgical intervention at that time.
Heylens G, Verroken C, De Cock S, T'Sjoen G, De Cuypere G. Effects of different steps in gender reassignment therapy on psychopathology: a prospective study of persons with a gender identity disorder. J Sex Med. 2014 Jan;11(1):119-26. Epub 2013 Oct 28.
Heylens et al. conducted a prospective, non-blinded observational study using a longitudinal design in which patients served as their own controls. They used a non-specific psychiatric test with normative data along with two selfdesigned questionnaires. The investigators assessed psychosocial adjustment and psychopathology in patients with gender identity disorders. Patients were to be sequentially evaluated prior to institution of hormonal therapy, then 3 to 6 months after the start of cross-sex hormone treatment, and then again one to 12 months after reassignment surgery. The Dutch version of the SCL-90R with eight subscales (agoraphobia, anxiety, depression, hostility, interpersonal sensitivity, paranoid ideation/psychoticism, and sleeping problems) and a global score (psychoneuroticism) was used serially. A seven parameter questionnaire was used serially to assess changes in social function. Another cross-sectional survey assessed emotional state. The cohorts at each time point consisted of patients who were in the treatment cohort at the time and who had submitted survey responses.
Ninety of the patients who applied for reassignment surgery between June 2005 and March 2009 were recruited. Fifty seven entered the study. Forty-six (51.1% of the recruited population) underwent reassignment surgery. Baseline questionnaire information was missing for 3 patients. Baseline SCL-90 scores were missing for 1 patient but included SCL-90 scores from some of the 11 recruits who had not yet undergone reassignment surgery. Time point 2 (after hormone therapy) SCL-90 information was missing for 10, but included SCL-90 scores from some of the 11
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recruits who had not yet undergone reassignment surgery. At time point 3, 42 (91.3% of those who underwent reassignment surgery) patients completed some part of the SCL-90 survey and the psychosocial questionnaires. Some questionnaires were incomplete. The investigators reported response rates of 73.7% for the psychosocial questionnaires and 82.5% for the SCL-90.
Of those who responded at follow-up after surgery, 88.1% reported having good friends; 52.4% reported the absence of a relationship; 47.6% had no sexual contacts; 42.9% lived alone; 40.5% were unemployed, retired, students, or otherwise not working; 2.4% reported alcohol abuse; and 9.3% had attempted suicide. The frequency of these parameters reportedly did not change statistically during the study interval, but there was no adjustment for the inclusion of patients who did not undergo surgery.
In a cross-sectional, self-report mood survey, of the 42 study entrants who completed the entire treatment regimen including reassignment surgery and the final assessment (refers to the initial 57) reported improved body-related experience (97.6%), happiness (92.9%), mood (95.2%), and self-confidence (78.6%) and reduced anxiety (81.0%). Of participants, 16.7% reported thoughts of suicide. Patients also reported on the intervention phase that they believed was most helpful: hormone initiation (57.9%), reassignment surgery (31.6%), and diagnosticpsychotherapy phase (10.5%).
The global “psycho-neuroticism” SCL-90R score, along with scores of 7 of the 8 subscales, at baseline were statistically more pathologic than the general population. After hormone therapy, the score for global “psychoneuroticism” normalized and remained normal after reassignment surgery. More specifically the range for the global score is 90 to 450 with higher scores being more pathologic. The score for the general population was 118.3±32.4.
TaeKDifhoettehceck;err1oreh6tshotpor(Gem6r,mc)ot:Fio5nvan1eehe1rts-nhtc2reeoe2rrra.aeEtpsmMyf.,eoTnarrtntahdoner1sssNv2uea7xror.giu9o.ia±cu1la3ssl97gwt.r-ec2he3nioaatd5tefhemt0ardeevr1dneisy7tnusndproagEihdterodurcnrynimohc.dtiTceovdohrigehfefvooedsn.rrcte.soCorswneouserrgFrfzeoeeorr1ybnt5:h7r,eau.7Igfan±oelrc4nloy9.ew.r48a-ul,appt2osip0ntuui2tdliaa0ytl.iopAnrrecashnednStetahxteioBnsec,ho1ar1ve.9s.1a79f±t8e37r2.1
Kockott and Fahrner conducted a single center (Munich, Germany) prospective, observational study using a longitudinal design. Treatment cohorts were used as controls, and patients served as their own controls. The investigators assessed psychosocial adjustment in patients with gender identity issues. Patients were to have met DSM III criteria. Trans-sexuality, transvestitism, and homosexuality were differentiated. The criteria required for patients to receive hormone therapy and/or reassignment surgery were not delineated. After receiving hormone therapy, patients were later classified by surgical reassignment status (pre-operative and post-operative) and desire for surgery (unchanged desire, hesitant, and no longer desired).
The first investigative tool was a semi-structured in-person interview consisting of 125 questions. The second investigative tool was a scale that organized the clinical material into nine domains which were then scored on a scale. The Psychological Integration of Trans-sexuals (PIT) instrument developed according to the scale used by Hunt and Hampson (1980) for assessment of 17 post-operative patients. There were 15 interviews and two separate interviewers. There were 80 patients identified, but 58 (72.5%) patients (26 pre-operative; 32 post-operative) were ultimately included in the analysis. The duration of follow-up was longer for post-operative patients (6.5 years) than for pre-operative patients (4.6 years) (including time for one patient subsequently excluded). The mean age of the post-operative patients was 35.5±13.1 years, and the age of the patients who maintained a continued desire for surgery was 31.7±10.2 years. The age of the patients who hesitated about surgery was somewhat older, 40.3±9.4 years. The age of the patients who were no longer interested in surgery was 31.8±6.5 years. All were employed or in school at baseline. Patients with hesitation were financially better-off, had longer-standing relationships even if unhappy, and had a statistical tendency to place less value on sex than those with an unchanged wish for surgery.
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Post-operative patients more frequently reported contentment with the desired gender and the success of adaption to the gender role than the pre-operative patients with a persistent desire for surgery. Post-operative patients more frequently reported sexual satisfaction than pre-operative patients with a continuing desire for surgery. Postoperative patients also more frequently reported financial sufficiency and employment than pre-operative patients with a persistent desire for surgery. Suicide attempts were stated to be statistically less frequent in the post-surgical cohort.
Psychosocial adjustment scores were in the low end of the range with “distinct difficulties” (19-27) at the initial evaluation for the post-operative patients (19.7), the pre-operative patients with a persistent wish for surgery (20.2), and the hesitant patients (19.7). At initial evaluation, psychosocial adjustment scores for patients no longer wanting surgery were at the high end of the range with “few difficulties” (10-18). At the final evaluation, Psychosocial adjustment scores were at the high end of the range “few difficulties” (10-18) for the post-operative patients (13.2) and the patients no longer wanting surgery (16.5). Psychosocial adjustment scores at the final evaluation were in the borderline range between “few difficulties” (10-18) and “distinct difficulties” (19-27) for both the pre-operative patients with a persistent desire for surgery (18.7), and the hesitant patients (19.1).
The changes in the initial score and the final follow-up score within each group were tracked and reported to be statistically significant for the post-operative group, but not for the other groups. Statistical differences between groups were not presented. Moreover, the post-operative patients had an additional test immediately prior to surgery. The first baseline score (19.7) would have characterized the patients as having “distinct difficulties” in psychosocial adjustment while the second baseline score (16.7) would have categorized the patients as having “few difficulties” in psychosocial adjustment despite the absence of any intervention except the prospect of having
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Meyer and Reter conducted a single-center (Baltimore, Maryland, U.S.) prospective, non-blinded, observational study using a longitudinal design and retrospective baseline data. Interview data were scored with a self-designed tool. There were treatment control cohorts, and patients served as their own controls. The investigators assessed patients with gender dysphoria. The 1971 criteria for surgery required documented cross-sex hormone use as well as living and working in the desired gender for at least one year in patients subsequently applying for surgery. Clinical data including initial interviews were used for baseline data. In follow-up, the investigators used extensive two to four hour interviews to collect information on (a) objective criteria of adaptation, (b) familial relationships and coping with life milestones, and (c) sexual activities and fantasies. The objective criteria, which were the subject of the publication, included employment status (Hollingshead job level), cohabitation patterns, and need for psychiatric intervention. The investigators designed a scoring mechanism for these criteria and used it to determine a global adjustment score. The score value or the change score that was considered to be biologically significant was not prespecified in the methods.
The clinic opened with 100 patients, but when the follow-up was completed, 52 patients were interviewed and 50 gave consent for publication. Of these, 15 (four female-to-male, 11 male-to-female; ratio 1:2.8) were part of the initial operative cohort, 14 (one female-to-male; 13 male-to-female; ratio 1:13) later underwent reassignment surgery at the institution or elsewhere, and 21 (five female-to-male; 16 male-to-female; ratio 1:3.2) did not undergo surgery. The mean ages of these cohorts were 30.1, 30.9, and 26.7 years respectively. The mean follow-up time was 62 months (range 19-142) for those who underwent surgery and 25 months (range 15-48) for those who did not. Socioeconomic status was lowest in those who subsequently underwent reassignment surgery.
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Of patients initially receiving surgery, 33% had some type of psychiatric contact prior to the initial clinic evaluation and 8% had psychiatric contact during the follow-up. Of the patients who had not under gone surgery or who had done so later, 72% had some type of psychiatric contact prior to the initial clinic evaluation and 28% had psychiatric contact during follow-up. There was a single female-to-male patient with multiple surgical complications who sought partial reassignment surgery reversal.
The adjustment scores improved over time with borderline statistical significance for the initial operative group and with statistical significance for the never operated group. The absolute score value at follow-up was the same for both groups (1.07+1.53 and 1.10+1.97 respectively). By contrast, the adjustment scores did not improve for those who were not in the cohort initially approved for surgery, but who subsequently underwent surgery later. This was particularly true if the surgery was performed elsewhere. The absolute score value at follow-up was 0.21+1.89.
Related papers include Meyer et al. (1971), Meyer et al. (1974a-d), and Derogatis et al. (1978) along with commentary response by Fleming et al. (1980).
Rakic Z, Starcevic V, Maric J, Kelin K. The outcome of sex reassignment surgery in Belgrade: 32 patients of both sexes. Arch Sex Behav. 1996 Oct;25(5):515-25.
Rakic et al. single-center (Belgrade, Yugoslavia) conducted a prospective, non-blinded, observational study using a cross-sectional design and an investigator- designed quality of life tool that asked longitudinal (pre- and posttreatment) questions. Patients served as their own controls. The authors state that the study was not designed to assess the predictors of poor outcomes.
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 The investigators assessed global satisfaction, body image, relationships, employment status, and sexual function in
patients with gender dysphoria who underwent reassignment surgery between 1989 and 1993 and were at least six months post-operative. The criteria to qualify for gender surgery were delineated (1985 standards from the Harry Benjamin International Gender Dysphoria Association) and included cross-gender behavior for at least one year and sexual orientation to non-natal sex. The questionnaire consisted of 10 questions using yes/no answers or Likert-type scales. Findings were descriptive without statistical analysis. As such, changes or differences considered to be biologically significant were not pre-specified, and there were no adjustments for multiple comparisons.
Of the 38 patients who had undergone reassignment surgery, 34 were eligible for the study and 32 participated in the study (two were lost to follow-up and four were in the peri-operative period) - 10 (31.2%) female-to-male and 22 (68.8%) male-to-female (ratio 1:2.2). The duration of follow-up was 21.8 ±13.4 months (range 6 months to 4 years). The age was female-to-male 27.8±5.2 (range 23-37) and male-to-female 26.4±7.8 (range 19-47).
Using an investigator-designed quality of life tool, all patients reported satisfaction with having undergone the surgery. Of the total participants, four (12.5%) (all male-to-female) and eight (25%) (87.5% male-to-female) reported complete dissatisfaction or partial satisfaction with their appearance. Regarding relationships, 80% of female-to-male and 100% of male-to-female patients were dissatisfied with their relationships with others prior to surgery; whereas, no female-to-male patients and 18.1% of male-to-female patients were dissatisfied with relationships after surgery. Regarding sexual partners, 60% of female-to-male and 72.7% of male-to-female patients reported not having a sexual partner prior to surgery; whereas, 20% of female-to-male patients and 27.3% of maleto-female patients did not have a sexual partner after surgery. Of those with partners at each time interval, 100% of female-to-male and 50% of male-to-female patients reported not experiencing orgasm prior to surgery; whereas, 75% of female-to-male and 37.5% of male-to-female patients reported not experiencing orgasm after surgery.
Ruppin U, Pfäfflin F. Long-term follow-up of adults with gender identity disorder. Arch Sex Behav. 2015 Jul;44(5):1321-9. Epub 2015 Feb 18.
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Ruppin and Pfafflin conducted a single-center (Ulm, Germany) partially prospective, non-blinded, observational study using a longitudinal design and non-specific psychometric tests and a self-designed interview tool and questionnaire. Patients served as their own controls.
The investigators assessed psychological symptoms, interpersonal difficulties, gender role stereotypes, personality characteristics, societal function, sexual function, and satisfaction with new gender role in patients with gender dysphoria. Patients were required to have met the ICD-10 criteria for trans-sexualism, been seen by the clinic by prior to 2001, and completed an official change in gender including name change prior to 2001. Assessment tools included German versions of standardized surveys with normative data: the SCL 90R, the Inventory of Interpersonal Problems (IIP), Bem Sex Role Inventory (BSRI), and the Freiburg Personality Inventory (FPI-R), along with semistructured interviews with self-designed questionnaires. The prospective survey results were compared to retrospective survey results. Changes or inter-group differences considered to be biologically significant were not pre-specified. Diagnostic cut points were not provided. Statistical corrections for multiple comparisons were not included.
Overall, 140 patients received recruitment letters and then 71 (50.7%) agreed to participate. Of these participants, 36 (50.7%) were female-to-male; 35 (49.3%) were male-to-female (ratio 1:0.97). The ages of the patients were: 41.2±5.78 years (female-to-male) and 52.9±10.82 years (male-to-female). The intervals for follow-up were 14.1±1.97 years and 13.7±2.17 years, respectively.
All female-to-male patients had undergone mastectomy; 91.7% had undergone oopherectomy and/or hysterectomy; 61.1% had undergone radial forearm flap phalloplasty or metaoidioplasty. Of male-to-female patients, 94.3% had
cited in Edmo v. Corzon, Inc. undergone vaginoplasty and perhaps an additional procedure (breast augmentation, larynx surgery, or vocal cord No. 19-35017 archived on February 4, 2020 surgery). Two male-to-female patients had not undergone any reassignment surgery, but were still included in the
analyses.
A total of 68 patients ranked their well-being as 4.35±0.86 out of five (three patients did not respond to this question). Of respondents, 40% reported not being in a steady relationship. Regular sexual relationships were reported by 57.1% of 35 female- to-male respondents and 39.4% of 33 male-to-female respondents (three patients did not respond to this question). A total of 11 patients reported receiving out-patient psychotherapy; 69 did not express a desire for gender role reversal (two did not respond to this question). The response rate was less than 100% for most of the self-designed survey questions.
Changes from the initial visit to the follow-up visit were assessed for the SCL-90R in 62 of 71 patients. The effect size was statistically significant and large only for the “Interpersonal Sensitivity” scale (one of 10 parameters). The absolute magnitude of mean change was small: from 0.70±0.67 to 0.26±0.34 (scale range 0-4). The duration of follow-up did not correlate with the magnitude of change on the various scales. Differences in baseline SCL-90R scores of 62 participants were compared with the score of 63 of the 69 eligible recruits who declined to enter the study and were notable for higher “Depression” scores for the latter.
Changes from the initial visit to the follow-up visit were assessed for the IIP in 55 of 71 patients. The effect size was statistically significant and large only for the “Overly Accommodating” scale (one of eight parameters). The absolute magnitude of mean change was small: from 11.64±5.99 to 7.04±4.73 (scale range 0-32). The duration of follow-up did not correlate with the magnitude of change on the various scales.
Changes from the initial visit to the follow-up visit were assessed for the FPI-R in 58 of 71 patients. The effect size was statistically significant and large only for the “Life Satisfaction” scale (one of 12 parameters). The absolute magnitude of mean change was substantive: from 4.43±2.99 to 8.31±2.63 (scale range 0-12). The duration of follow-up did not correlate with the magnitude of change on the various scales.
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Changes from the initial visit to the follow-up visit were assessed for the BSRI in 16 of 36 female to male patients and 19 of 35 male to female patients. The “Social Desirability” score increased for the female-to-male respondents. At endpoint, both categories of respondents reported androgynous self-images.
This current report is an update of prior publications by Pfafflin including work with Junge which was published in a variety of formats and initially in German.
Smith YL, Van Goozen SH, Kuiper AJ, Cohen-Kettenis PT. Sex reassignment: outcomes and predictors of treatment for adolescent and adult transsexuals. Psychol Med. 2005 Jan;35(1):89-99.
Smith et al. conducted a single-center (Amsterdam, Netherlands) prospective, non-blinded, observational study using a longitudinal design and psychological function tools. Patients served as their own control prior to and after reassignment surgery. The investigators assessed gender dysphoria, body dissatisfaction, physical appearance, psychopathology, personality traits, and post-operative function in patients with gender dysphoria. Patients underwent some aspect of reassignment surgery. The test instruments included the Utrecht Gender Dysphoria Scale (12 items), the Body Image Scale adapted for a Dutch population (30 items), Appraisal of Appearance Inventory (3 observers, 14 items), the Dutch Short MMPI (83 items), the Dutch version of the Symptom Checklist (SCL)(90 items), and clinic-developed or modified questionnaires. Pre-treatment data was obtained shortly after the initial interview. Post- surgery data were acquired at least one year post reassignment surgery.
Three hundred twenty five consecutive adolescents and adults were screened for the study. One-hundred three (29 [28.2%] female-to-male patients and 74 [71.8%] male-to-female patients [ratio 1:2.6]) never started hormone
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 therapy; 222 (76 [34.2%] female-to-male patients and 146 [65.8%] male-to-female patients [ratio 1:1.9]) initiated
hormone therapy. Of the patients who started hormone therapy, 34 (5 [14.7%] female-to-male patients and 29 [85.3%] male-to-female patients [ratio 1:5.8]) discontinued hormone therapy.
Subsequently, the study analysis was limited to adults. One hundred sixty-two (58 [35.8%] female-to-male and 104 [64.2%] male-to-female [ratio 1:1.8]) were eligible and provided pre-surgical test data, and 126 (77.8% of eligible adults) (49 [38.9%] female-to-male and 77 [61.1%] male-to-female [ratio 1:1.6]) provided post-surgical data. For those patients who completed reassignment, the mean age at the time of surgical request was 30.9 years (range 17.7-68.1) and 35.2 years (range 21.3-71.9) years at the time of follow-up. The intervals between hormone treatment initiation and surgery and surgery and follow-up were 20.4 months (range 12 to 73) and 21.3 months (range 12 to 47) respectively.
Of the 126 adults who provided post-surgical data, 50 (40.0%) reported having a steady sexual partner, three (2.3%) were retired, and 58 (46.0%) were unemployed. Regarding regret, six patients expressed some regret regarding surgery, but did not want to resume their natal gender role, and one male-to-female had significant regret and would not make the same decision.
Post-surgery Utrecht dysphoria scores dropped substantially and approached reportedly normal values. The patients’ appearance better matched their new gender. No one was dissatisfied with his/her overall appearance at follow-up. Satisfaction with primary sexual, secondary sexual, and non-sexual body traits improved over time. Male-to-female patients, however, were more dissatisfied with the appearance of primary sex traits than female-to-male patients. Regarding mastectomy, 27 of 38 (71.1%) female-to-male respondents (not including 11 non-respondents) reported incomplete satisfaction with their mastectomy procedure. For five of these patients, the incomplete satisfaction was because of scarring. Regarding vaginoplasty, 20 of 67 (29.8%) male-to-female respondents (not including 10 nonrespondents) reported incomplete satisfaction with their vaginoplasty.
Most of the MMPI scales were already in the normal range at the time of initial testing and remained in the normal
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range after surgery. SCL global scores for psycho- neuroticism were minimally elevated before surgery 143.0±40.7 (scoring range 90 to 450) and normalized after surgery 120.3±31.4. (An analysis using patient level data for only the completers was not conducted.)
Udeze B, Abdelmawla N, Khoosal D, Terry T. Psychological functions in male-to- female people before and after surgery. Sexual and Relationship Therapy. 2008 May; 23(2):141-5. (Not in PubMed) and Megeri D, Khoosal D. Anxiety and depression in males experiencing gender dysphoria. Sexual and Relationship Therapy. 2007 Feb; 22(1):77-81. (Not in PubMed)
Udeze et al. conducted a single-center (Leicester, United Kingdom) prospective, non-blinded, longitudinal study assessing a randomized subset of patients who had completed a non-specific psychological function tool prior to and after male-to-female reassignment surgery. Patients served as their own controls. The investigators used the WPATH criteria for patient selection. Psychiatric evaluations were routine. All patients selected for treatment were routinely asked to complete the self-administered SCL-90R voluntarily on admission to the program and post-operatively. A post-operative evaluations (psychiatric and SCL-90R assessment) were conducted within six months to minimize previously determined loss rates. The patient pool was domestic and international. There were 546 gender dysphoric patients from all over the United Kingdom and abroad, of whom 318 (58.2%) progressed to surgery. Of these, 127 were from the local Leicester area in the United Kingdom and 38 (29.9%) progressed to surgery. The mean age for the selected male-to-female patients at the time of study was 47.33±13.26 years (range 25 to 80) and reflected an average wait time for surgery of 14 months (range 2 months to 6 years). For this investigation, 40 male-to-female subjects were prospectively selected.
cited in Edmo v. Corzon, Inc. The raw SCL-90 global scores for psycho-neuroticism were unchanged over time: 48.33 prior to surgery and 49.15 No. 19-35017 archived on February 4, 2020 after surgery. If the scale was consistent with T-scoring, the results were non-pathologic. No psychiatric disorders
were otherwise identified prior to or after surgery.
Investigators from the same clinical group (Megeri, Khoosal, 2007) conducted additional testing to specifically address anxiety and depression with the Beck Depression Inventory, General Health Questionnaire (with 4 subscales), HADS, and Spielberger State and Trait Anxiety Questionnaire (STAI-X1 and STA-X2). The test population and study design appear to be the same. No absolute data were presented. Only changes in scores were presented. There were no statistically significant changes.
e. Randomized, surgical patients, longitudinal, with controls
Mate-Kole C, Freschi M, Robin A. A controlled study of psychological and social change after surgical gender reassignment in selected male transsexuals. Br J Psychiatry. 1990 Aug;157:261-4.
Mate-Kole at al. conducted a prospective, non-blinded, controlled, randomized, longitudinal study using investigatordesigned patient self-report questionnaires and non-specific psychological tests with some normative data. The investigators assessed neuroticism and sex role in natal males with gender dysphoria who had qualified for male-tofemale reassignment surgery at a single-center specialty clinic (London, United Kingdom). Forty sequential patients were alternately assigned to early reassignment surgery or to standard wait times for reassignment surgery. Patients were evaluated after acceptance and 2 years later. The criteria used to qualify for gender surgery were the 1985 standards from the Harry Benjamin International Gender Dysphoria Association. These included a ≥2 year desire to change gender, a ≥1 year demonstrable ability to live and be self-supporting in the chosen gender, and psychiatric assessment for diagnosis and reassessment at six months for diagnostic confirmation and exclusion of psychosis.
Reassignment surgery was defined as orchidectomy, penectomy, and construction of a neo-vagina. The instruments used were the CCEI for psychoneurotic symptoms and the Bem Sex Role Inventory along with an incompletely
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described investigator- designed survey with questions about social life and sexual activity.
The mean age and range of the entire cohort was 32.5 years (21-53). Members of the early surgery cohort had a history of attempted suicide (one patient), psychiatric treatment for non-gender issues (six patients), and first degree relatives with psychiatric histories (four patients). Members of the standard surgery cohort were similar, with a history of attempted suicide (two patients), psychiatric treatment for non-gender issues (five patients), and first degree relatives with psychiatric histories (six patients). The early surgery group had surgery approximately 1.75 years prior to the follow-up evaluation. In both groups, cross-dressing began at about age 6.
At baseline, the Bem Sex Role Inventory femininity scores were slightly higher than masculinity scores for both cohorts and were similar to Bem North American female normative scores. The scores did not change in either group over time.
At baseline, the scores for the CCEI individual domains (free floating anxiety, phobic anxiety, somatic anxiety, depression, hysteria, and obsessionality) were similar for the cohorts. The total CCEI scores for the two cohorts were consistent with moderate symptoms (Birchnell et al. 1988). Over the two year interval, total CCEI scores increased for standard wait group and approached the relatively severe symptom category. During the same interval, scores dropped into the asymptomatic rage for the post-operative patients.
The investigator-designed survey assessed changes in social and sexual activity of the prior two years, but the authors only compared patients in a given cohort to themselves. Though the researchers did not conduct statistical
saSa2tlce.lut,xEidvtuxiyieattpsileeeirtsnson.toeacfrloesmTsoetpcciaaahlrlsenoaotcihltnoiecvgridteyiiaeffAsseesrsdesuN.necBcshoesyas.mcsb1oesen9npttwto-rcsar3eitstes5ten,(0dpst1ohreile7on-otowapEreorgdrccarmoohtiuhviopvoe)ret,pvsdad,.tatiCoenhncenoitynsrgFdzd,iiedoddbinrnneri,opnutogIanirntorccuiyrn.te,ca4rvsei,easis2tteihn0deg2iprp0apuratbirsct,iipcaiapntaidotinvoinsinitinisnogtmhoeets,hebeurst.not
a. CMS did not request an external technology assessment (TA) on this issue.
b. There were no AHRQ reviews on this topic.
c. There are no Blue Cross/Blue Shield Health Technology Assessments written on this topic within the last three years.
d. There were two publications in the COCHRANE database, and both were tangentially related. Both noted that there are gaps in the clinical evidence base for gender reassignment surgery. Twenty Years of Public Health Research: Inclusion of Lesbian, Gay, Bisexual, and Transgender Populations Boehmer U. Am J Public Health. 2002; 92: 1125–30.
“Findings supported that LGBT issues have been neglected by public health research and that research unrelated to sexually transmitted diseases is lacking.”
A systematic review of lesbian, gay, bisexual and transgender health in the West Midlands region of the UK compared to published UK research. West Midlands Health Technology Assessment Collaboration. Health Technology Assessment Database. Meads, et al., 2009. No.3.
“Further research is needed but must use more sophisticated designs with comparison groups. This systematic review demonstrated that there are so many gaps in knowledge around LGBT health that a wide variety of studies are needed.”
e. There were no National Institute for Health and Care Excellence (NICE) reviews/guidance documents on this
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f. There was a technology assessment commissioned by the New Zealand Ministry of Health and conducted by New Zealand Health Technology Assessment (NZHTA) (Christchurch School of Medicine and the University of Otago).

Tech Brief Series: Transgender Re-assignment Surgery Day P. NZHTA Report. February 2002;1(1). http://nzhta.chmeds.ac.nz/publications/trans_gender.pdf

The research questions included the following: 1. Are there particular subgroups of people with transsexualism who have met eligibility criteria for gender reassignment surgery (GRS) where evidence of effectiveness of that surgery exists?

2. If there is evidence of effectiveness, what subgroups would benefit from GRS?”

The authors concluded that there was not enough evidence to answer either of the research questions.

3. Medicare Evidence Development & Coverage Advisory Committee (MEDCAC) Meeting

CMS did not convene a MEDCAC meeting.

4. Evidence-Based Guidelines

aTHC2.h0oeo1mAau1lmtmg,hehiNtrCtioAcae.Caree5nOo1GfCn2oor.dHlOlTieedrbaganslenttohesotgtfCheGOaanryvbdenesectfraeoontIrlNr.nyiUdc2oneii0avvd.1niied1ds1ru;esa9a1nenl1c-crsd8ve3:ie-:tGC5b1edyoa40dWnms51ee4omicd7-nmo8igtl.eotaEuengired;dicseTOtmhlshipnie(iovenAsAeiCovmodOn.neGCrot)ihcnoiasnrFtzoCeopoiblncle,r,gutheIaneoyrcfy.dOib4ds,htea2tvr0eic2itah0nesfoalnlodwGinygnedcoocluomgisetnst.:Dec
“Questions [on patient visit records] should be framed in ways that do not make assumptions about gender identity, sexual orientation, or behavior. It is more appropriate for clinicians to ask their patients which terms they prefer. Language should be inclusive, allowing the patient to decide when and what to disclose. The adoption and posting of a nondiscrimination policy can also signal health care providers and patients alike that all persons will be treated with dignity and respect. Assurance of confidentiality can allow for a more open discussion, and confidentiality must be ensured if a patient is being referred to a different health care provider. Training staff to increase their knowledge and sensitivity toward transgender patients will also help facilitate a positive experience for the patient.”

b. American Psychiatric Association

Report of the American Psychiatric Association Task Force on Treatment of Gender Identity Disorder. Byne, W, Bradley SJ, Coleman E, Eyler AE, Green R, Menvielle EJ, Meyer-Bahlburg HFL, Richard R. Pleak RR, Tompkins DA. Arch Sex Behav. 2012; 41:759–96.

The American Psychiatric Association (APA) was unable to identify any Randomized Controlled Trials (RTCs) regarding mental health issues for transgender individuals.

"There are some level B studies examining satisfaction/regret following sex reassignment (longitudinal follow-up after an intervention, without a control group); however, many of these studies obtained data retrospectively and without a control group (APA level G). Overall, the evidence suggests that sex reassignment is associated with an
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improved sense of well-being in the majority of cases, and also indicates correlates of satisfaction and regret. No studies have directly compared various levels of mental health screening prior to hormonal and surgical treatments on outcome variables; however, existing studies suggest that comprehensive mental health screening may be successful in identifying those individuals most likely to experience regrets."
Relevant Descriptions of APA Evidence Coding System/Levels:
[B] Clinical trial. A prospective study in which an intervention is made and the results of that intervention are tracked longitudinally. Does not meet standards for a randomized clinical trial.”
[G] Other. Opinion-like essays, case reports, and other reports not categorized above.”
c. Endocrine Society
Endocrine Treatment of Transsexual Persons: an Endocrine Society Clinical Practice Guideline.
Hembree WC, Cohen-Kettenis P, Delemarre-van de Waal HA, Gooren LJ, Meyer WJ 3rd, Spack NP, Tangpricha V, Montori VM; Endocrine Society. J Clin Endocrinol Metab. 2009; 94:3132-54.
This guideline primarily addressed hormone management and surveillance for complications of that management. A
s“aldoTmn.whdWaisolEolrverslavvedelicudPrteaiyrontonilcofoeenwas-d.sb(”diGaorsRneeAasdslDeAgEdsu)sisdsouyecrsligiatneetNeirmoywnoata.ofnosd1drde9Tfeosrv-ccuae3rnniiltbo5dsegep0tdeeht1ndheide7nuqessuriatEnarHrgeldiectnaytmghhlttoeihhofvG(eoeWrvvfadir.PddeAeiCocnnTogncHomeo)rmFfztoReeonebbncdeora,ulmtoIioawnmn.rcesy.nad4nad,tiot2hn0es,2qAu0saslietsysomf eenvti,deDnecvee,lowphmicehntw, as
Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People (Version 7). Coleman E, Bockting W, Botzer M, Cohen-Kettenis P, DeCuypere G, Feldman J, Fraser L, Green J, Knudson G, Meyer WJ, Monstrey S, Adler RK, Brown GR, Devor AH, Ehrbar R, Ettner R, Eyler E, Garofalo R, Karasic DH, Lev AI, Mayer G, Meyer-Bahlburg H, Hall BP, Pfäfflin F, Rachlin K, Robinson B, Schechter LS, Tangpricha V, van Trotsenburg M, Vitale A, Winter S, Whittle S, Kevan R. Wylie KR, Zucker K. www.wpath.org/_files/140/files/Standards%20of%20Care,%20V7%20Full%20Book.pdf Int J Transgend. 2011;13:165–232.
The WPATH is “an international, multidisciplinary, professional association whose mission is to promote evidencebased care, education, research, advocacy, public policy, and respect in transsexual and transgender health.”
WPATH reported, “The standards of care are intended to be flexible in order to meet the diverse health care needs of transsexual, transgender, and gender-nonconforming people. While flexible, they offer standards for promoting optimal health care and guiding the treatment of people experiencing gender dysphoria—broadly defined as discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth (and the associated gender role and/or primary and secondary sex characteristics) (Fisk, 1974; Knudson, De Cuypere, & Bockting, 2010b).”
The WPATH standards of care (SOC) “acknowledge the role of making informed choices and the value of harm-
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reduction approaches.”
The SOC noted, “For individuals seeking care for gender dysphoria, a variety of therapeutic options can be considered. The number and type of interventions applied and the order in which these take place may differ from person to person (e.g., Bockting, Knudson, & Goldberg, 2006; Bolin, 1994; Rachlin, 1999; Rachlin, Green, & Lombardi, 2008; Rachlin, Hansbury, & Pardo, 2010). Treatment options include the following:
• Changes in gender expression and role (which may involve living part time or full time in another gender role, consistent with one’s gender identity);
• Hormone therapy to feminize or masculinize the body; • Surgery to change primary and/or secondary sex characteristics (e.g., breasts/chest, external and/or internal
genitalia, facial features, body contouring); • Psychotherapy (individual, couple, family, or group) for purposes such as exploring gender identity, role, and
expression; addressing the negative impact of gender dysphoria and stigma on mental health; alleviating internalized transphobia; enhancing social and peer support; improving body image; or promoting resilience.”
e. American Psychological Association
Suggested citation until formally published in the American Psychologist: American Psychological Association. (2015): Guidelines for Psychological Practice with Transgender and Gender Nonconforming People Adopted by the Council of Representatives, August 5 & 7, 2015. www.apa.org/practice/guidelines/transgender.pdf
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 “The purpose of the Guidelines for Psychological Practice with Transgender and Gender Nonconforming People
(hereafter Guidelines) is to assist psychologists in the provision of culturally competent, developmentally appropriate, and trans-affirmative psychological practice with TGNC people.”
“These Guidelines refer to psychological practice (e.g., clinical work, consultation, education, research, training) rather than treatment.”
5. Other Reviews
a. Institute of Medicine (IOM)
The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding. Robert Graham (Chair); Committee on Lesbian, Gay, Bisexual, and Transgender Health Issues and Research Gaps and Opportunities. (Study Sponsor: The National Institutes of Health). Issued March 31, 2011. http://www.nationalacademies.org/hmd/Reports/2011/The-Health-of-Lesbian-Gay-Bisexual-and- TransgenderPeople.aspx
“To advance understanding of the health needs of all LGBT individuals, researchers need more data about the demographics of these populations, improved methods for collecting and analyzing data, and an increased participation of sexual and gender minorities in research. Building a more solid evidence base for LGBT health concerns will not only benefit LGBT individuals, but also add to the repository of health information we have that pertains to all people.”
“Best practices for research on the health status of LGBT populations include scientific rigor and respectful involvement of individuals who represent the target population. Scientific rigor includes incorporating and monitoring culturally competent study designs, such as the use of appropriate measures to identify participants and
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implementation processes adapted to the unique characteristics of the target population. Respectful involvement refers to the involvement of LGBT individuals and those who represent the larger LGBT community in the research process, from design through data collection to dissemination.”
b. National Institutes of Health (NIH)
National Institutes of Health Lesbian, Gay, Bisexual, and Transgender (LGBT) Research Coordinating Committee. Consideration of the Institute of Medicine (IOM) report on the health of lesbian, gay, bisexual, and transgender (LGBT) individuals. Bethesda, MD: National Institutes of Health; 2013. http://report.nih.gov/UploadDocs/LGBT%20Health%20Report_FINAL_2013-01-03-508%20compliant.pdf
In response to the IOM report, the NIH LBGT research Coordinating Committee noted that most of the health research for this set of populations is “focused in the areas of Behavioral and Social Sciences, HIV (human immunodeficiency virus)/AIDS, Mental Health, and Substance Abuse. Relatively little research has been done in several key health areas for LGBT populations including the impact of smoking on health, depression, suicide, cancer, aging, obesity, and alcoholism.”
6. Pending Clinical Trials
ClinicalTrials.gov There is one currently listed and recently active trial directed at assessment of the clinical outcomes pertaining to individuals who have had gender reassignment surgery. The study appears to be a continuation of work conducted
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 by investigators cited in the internal technology assessment.
NCT01072825 (Ghent, Belgium sponsor) European Network for the Investigation of Gender Incongruence (ENIGI) is assessing the physical and psychological effects of the hormonal treatment of transgender subjects in two years prior to reassignment surgery and subsequent to surgery. This observational cohort study started in 2010 and is still in progress.
7. Consultation with Outside Experts
Consistent with the authority at 1862(l)(4) of the Act, CMS consulted with outside experts on the topic of treatment for gender dysphoria and gender reassignment surgery.
Given that the majority of the clinical research was conducted outside of the United States, and some studies either took place in or a suggested continuity-of-care and coordination-of-care were beneficial to health outcomes, we conducted expert interviews with centers across the U.S. that provided some form of specialty-focused or coordinated care for transgender patients. These interviews informed our knowledge about the current healthcare options for transgender people, the qualifications of the professionals involved, and the uniqueness of treatment options. We are very grateful to the organizations that made time to discuss treatment for gender dysphoria with us.
From our discussions with the all of the experts we spoke with, we noted the following practices in some centers: (1) specialized training for all staff about transgender healthcare and transgender cultural issues; (2) use of an intake assessment by either a social worker or health care provider that addressed physical health, mental health, and other life factors such as housing, relationship, and employment status; (3) offering primary care services for transgender people in addition to services related to gender-affirming therapy/treatments; (4) navigators who connected patients with name-change information or other legal needs related to gender; (5) counseling for individuals, groups, and families; (6) an informed-consent model whereby individuals were often referred to as
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“clients” instead of “patients,” and (7) an awareness of depression among transgender people (often measured with tools such as the Adult Outcomes Questionnaire and the Patient Health Questionnaire).
8. Public Comments
We appreciate the thoughtful public comments we received on the proposed decision memorandum. In CMS’ experience, public comments sometimes cite the published clinical evidence and give CMS useful information. Public comments that give information on unpublished evidence such as the results of individual practitioners or patients are less rigorous and therefore less useful for making a coverage determination. CMS uses the initial public comments to inform its proposed decision. CMS responds in detail to the public comments on a proposed decision when issuing the final decision memorandum. All comments that were submitted without personal health information may be viewed in their entirety by using the following link: https://www.cms.gov/medicare-coveragedatabase/details/nca-view-public-comments.aspx?NCAId=282&ExpandComments=n#Results
a. Initial Comment Period: December 3, 2015 – January 2, 2016
During the initial comment period, we received 103 comments. Of those, 78% supported coverage of gender reassignment surgery, 15% opposed, and 7% were neutral. The majority of comments supporting coverage were from individuals and advocacy groups.
b. Second Comment Period: June 2, 2016 – July 2, 2016
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 During the second 30-day public comment period, we received a total of 45 public comments, 7 of which were not
posted on the web due to personal health information content. Overall, 82% supported coverage of gender reassignment surgery, 11% opposed, and 7% were neutral or silent in their comment whether they supported or opposed coverage. Half of the comments were submitted by individuals who expressed support for coverage of gender reassignment surgery (51%). We also received comments from physicians, providers, and other health professionals who specialize in healthcare for transgender individuals (17%). We received one comment from a municipality, the San Francisco Department of Public Health. Associations (American Medical Association, American College of Physicians, American Academy of Nursing, American Psychological Association, and LBGT PA Caucus) and advocates (Center for American Progress with many other signatories, Jamison Green & Associates) also submitted comments.
Below is a summary of the comments CMS received. In some instances, commenters identified typographical errors, context missed, and opportunities for CMS to clarify wording and classify articles for ease of reading in the memorandum. As noted earlier, when appropriate and to the extent possible, we updated the decision memorandum to reflect those corrections, improved the context, and clarified the language. In light of public comments, we reevaluated the evidence and our summaries. We updated our summaries of the studies and clarified the language when appropriate.
1. Contractor Discretion and National Coverage Determination
Comment: Some commenters, including advocates, associations, and providers, supported CMS’ decision for MAC contractor discretion/case-by-case determination for gender reassignment surgery. One stakeholder stated, “We agree with the conclusion that a NCD is not warranted at this time.”
Response: We appreciate the support and understanding among stakeholders for our proposed decision to have the MACs determine coverage on a case-by-case basis. We have clarified in this final decision memorandum that
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coverage is available for gender reassignment surgery when determined reasonable and necessary and not otherwise excluded by any other relevant statutory requirements by the MAC on a case-by-case basis. “The case-by-case model affords more flexibility to consider a particular individual’s medical condition than is possible when the agency establishes a generally applicable rule.” (78 Fed. Reg. 48165 (August 7, 2013)).
Comment: Some commenters cautioned that CMS’ choice to not issue a NCD at this time must not be interpreted as a national non-coverage determination or used in any way to inappropriately restrict access to coverage for transgender Medicare beneficiaries or other transgender individuals. Multiple commenters indicated their disappointment that CMS did not propose a National Coverage Determination (NCD) and, instead, chose to continue to have local MACs make the coverage decisions on a case-by-case basis. Commenters stated this could result in variability in coverage.
Response: We appreciate the comments. We are not issuing a NCD at this time because the available evidence for gender reassignment surgery provides limited data on specific health outcomes and the characteristics of specific patient populations that might benefit from surgery. In the absence of a NCD, the MAC’s use the same statutory authority as NCDs, section 1862(a)(1)(A) of the Social Security Act (the Act). Under section 1862(a)(1)(A) an item or service must be reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member. While CMS did not have enough evidence to issue a NCD, we believe the MACs will be able to make appropriate coverage decisions on a case-by-case basis taking into account individual characteristics of the Medicare beneficiary.
Comment: Some commenters sought a NCD that would establish guidelines for coverage and include elements such
cited in Edmo v. Corzon, Inc. as a prescribed set of surgeries and a shared decision making element. No. 19-35017 archived on February 4, 2020 Response: For the reasons stated above, we are not issuing a NCD at this time and, therefore, are not establishing
specific gender reassignment surgery coverage guidelines for the Medicare program. We generally agree that shared decision-making is a fundamental approach to patient-centered health care decisions and strongly encourage providers to use these types of evidence based decision aids. We have not found a shared decision aid on GRS and encourage the development of this necessary element to conduct formal shared-decision making.
Comment: Some commenters expressed concern that there is a misunderstanding of transgender individuals as having a disorder or being abnormal. Some commenters indicated a history of bias and discrimination within society as a whole that has occurred when transgender individuals have sought health care services from the medical community. Some commenters are concerned that the decision not to make a NCD will subject individuals seeking these services to corporate bias by Medicare contractors.
Response: We acknowledge the public comments and that there has been a transformation in the treatment of individuals with gender dysphoria over time. In this NCA, we acknowledge that gender dysphoria is a recognized Diagnostic and Statistical Manual of Mental Disorders (DSM) condition. With respect to the concern about potential bias by Medicare contractors, we have no reason to expect that the judgments made on specific claims will be influenced by an overriding bias, hostility to patients with gender dysphoria, or discrimination. Moreover, the Medicare statue and our regulations provide a mechanism to appeal an adverse initial decision if a claim is denied and those rights may include the opportunity for judicial review. We believe the Medicare appeals process would provide an opportunity to correct any adverse decision that was perceived to have been influenced by bias.
Comment: Commenters mentioned the cost of gender reassignment surgery could influence MAC decision making.
Response: The decisions on whether to cover gender reassignment surgery in a particular case are made on the basis of the statutory language in section 1862 of the Social Security Act that establish exclusions from coverage and
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would not depend on the cost of the procedure.

2. Coverage with Evidence Development and Research

Comment: In our proposed decision memorandum, we specifically invited comments on whether a study could be developed that would support coverage with evidence development (CED). One organization commented, “We strongly caution against instituting a CED protocol.” Commenters were opposed to coverage limited in clinical trials, suggesting that such coverage would restrict access to care. Several commenters provided suggested topics for clinical research studies for the transgender population. For example, one commenter suggested a study of nonsurgical treatment for transgender children prior to puberty.

Response: While we appreciate the comments supporting further research, in general, for gender reassignment surgery, we agree that CED is not the appropriate coverage pathway at this time. While CED is an important mechanism to support research and has the potential to be used to help address gaps in the current evidence, we are not aware of any available, appropriate studies, ongoing or in development, on gender reassignment surgery for individuals with gender dysphoria that could be used to support a CED decision.

3. Gender Reassignment Surgery as Treatment

Comment: One group of commenters requested that CMS consider that, “The established medical consensus is that

GRS is a safe, effective, and medically necessary treatment for many individuals with gender dysphoria, and for

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with the

Comment: Several commenters stated that gender reassignment surgery should be covered as long as it was determined to be necessary, or medically necessary by a beneficiary’s physician.

Response: Physician recommendation is one of many potential factors that the local MAC may consider when determining whether the documentation is sufficient to pay a claim.

5. WPATH Standards of Care

Comment: Several commenters suggested that CMS should recommend the WPATH Standards of Care (WPATH) as the controlling guideline for gender reassignment surgery. They asserted it could satisfy Medicare's reasonable and necessary criteria for determining coverage on a case-by-case basis.

Response: Based on our review of the evidence and conversations with the experts and patient advocates, we are aware some providers consult the WPATH Standards of Care, while others have created their own criteria and requirements for surgery, which they think best suit the needs of their patients. As such, and given that WPATH acknowledges the guidelines should be flexible, we are not in the position to endorse exclusive use of WPATH for coverage. The MACs, Medicare Advantage plans, and Medicare providers can use clinical guidelines they determine useful to inform their determination of whether an item or service is reasonable and necessary. When making this
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determination, local MACs may take into account physician’s recommendations, the individual’s clinical characteristics, and available clinical evidence relevant to that individual.
6. Scope of the NCA Request
Comment: One commenter stated that CMS did not address the full scope of the NCA request.
Response: The formal request for a NCD is publicly available on our tracking sheet. ( https://www.cms.gov/Medicare/Coverage/DeterminationProcess/downloads/id282.pdf) The letter did not explicitly seek a national coverage determination related to counseling or hormone therapies, but focused on surgical remedies. CMS is aware that beneficiaries with gender dysphoria use a variety of therapies.
Comment: Other commenters stated the scope of the proposed decision is unnecessarily broad because it discussed therapies other than surgery. They suggested this discussion could lead to the unintended consequence of restricting access to those services for transgender Medicare beneficiaries and other transgender individuals.
Response: As we noted in our proposed decision, our decision focused only on gender reassignment surgery. In the course of reviewing studies related to those surgeries, occasionally authors discussed other therapies that were mentioned in our summaries of the evidence. To the extent possible, we have modified our decision to eliminate the discussion of other therapies which were not fully evaluated in this NCA.
7CR.oem NspCmoAneQsnetu::eSTshotiemopnehcroamsinmgenotfetrhNseeorxe.psr1eea9srsc-ceh3idt5qecu0oden1scit7neiornnaEiarsdcbcmohouintovsteihsvtede. npCoht nrwoaisrtFizhneogmbnoorf,suttIhanNeCrcqyA.use4as,ntido2n0wie2n 0btheilsievNeCAit.is appropriate.
8. Evidence Summary and Analysis
Comment: Several commenters disagreed with our summary of the clinical evidence and analysis. A few commenters contended that the overall tone of the review was not neutral and seemed biased or flawed. One commenter noted that the Barrett publication was available on the Internet.
Response: We appreciate the comments that identified technical errors, and we made the necessary revisions to this document. However, we disagree with the contention that our evidence review was not neutral and seemed biased or flawed. We believe that the summary and analysis of the clinical evidence are objective. As with previous NCAs, our review of the evidence was rigorous and methodical. Additionally, we reviewed the Barrett publication, but it did not meet our inclusion criteria to be included in the Evidence section.
9. Evidence Review with Transgender Experts
Comment: Several commenters requested that CMS re-review the clinical evidence discussed in the proposed decision memorandum with outside experts in the field of transgender health and transition/gender reassignmentrelated surgeries. Several offered the expertise within their organization to assist in this effort.
Response: We appreciate these comments and the transgender health community’s willingness to participate. For
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this NCA we discussed gender reassignment surgery protocols with experts, primarily in coordinated care settings. Additionally, the public comment periods provide opportunities for expert stakeholder input. According to our process for all NCAs, we do not jointly review evidence with external stakeholders but have carefully reviewed the very detailed comments submitted by a number of outside experts in transgender health care.
10. Previous Non-Coverage NCD
Comment: One commenter noted that they thought research studies for gender reassignment surgery could not take place when the old NCD that prohibited coverage for gender reassignment surgery was in effect.
Response: CMS does not directly conduct clinical studies or pay for research grants. Some medical services are noncovered by Medicare; however, national non-coverage does not preclude research via a number of avenues and other funding entities such as the National Institutes of Health. In this instance, the previous NCD did not preclude interested parties from funding research for gender reassignment surgery that could have been generalizable to the Medicare population.
11. How the Medicare Population Differs from the General Population
Comment: One commenter questioned how the Medicare population differed from the general population, and why any differences would be important in our decision-making.
cited in Edmo v. Corzon, Inc. Response: The Medicare population is different from the general population in age (65 years and older) and/or No. 19-35017 archived on February 4, 2020 disability as defined by the Social Security Administration. Due to the biology of aging, older adults may respond to
health care treatments differently than younger adults. These differences can be due to, for example, multiple health conditions or co-morbidities, longer duration needed for healing, metabolic variances, and impact of reduced mobility. All of these factors can impact health outcomes. The disabled Medicare population, who are younger than age 65, is different from the general population and typical study populations due to the presence of the causes of disability such as psychiatric disorders, musculoskeletal health issues, and cardiovascular issues.
12. Medicare Evidence Development & Coverage Advisory Committee (MEDCAC)
Comment: One commenter suggested CMS should have convened a MEDCAC for this topic.
Response: We appreciate the comment. Given the limited evidence, we did not believe a MEDCAC was warranted according to our guidance document entitled "Factors CMS Considers in Referring Topics to the Medicare Evidence Development & Coverage Advisory Committee" (https://www.cms.gov/Regulations-andGuidance/Guidance/FACA/MEDCAC.html).
13. §1557 of the Affordable Care Act (ACA)
Comment: Some commenters asserted that by not explicitly covering gender reassignment surgery at the national level, CMS was discriminating against transgender beneficiaries in conflict with Section 1557 of the Accountable Care Act (ACA).
Response: This decision does not affect the independent obligation of covered entities, including the Medicare program and MACs, to comply with Section 1557 in making individual coverage decisions. In accordance with Section 1557, MACs will apply neutral nondiscriminatory criteria when making case-by-case coverage determinations related
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to gender reassignment surgery.

14. Medicaid

Comment: Some commenters observed that some states cover gender reassignment surgery through Medicaid or require commercial insurers operating in the state to cover the surgery.

Response: We appreciate the information about Medicaid and state requirements; however, State decisions are separate from Medicare coverage determinations. We make evidence-based determinations based on our statutory standards and processes.

15. Commercial Insurers

Comment: In several instances, commenters told us that the healthcare industry looks to CMS coverage determinations to guide commercial policy coverage.

Response: CMS makes evidence-based national coverage determinations based on our statutory standards and

processes as defined in the Social Security Act, which may not be the same standards that are used in commercial

insurance policies or by other health care programs. In addition as noted above, the Medicare population is different

(e.g., Medicare covers 95% of adults 65 and older) than the typical population under commercial insurers. We do not

issue coverage decisions to drive policy for other health organizations’ coverage in one way or the other.

16. Healthcare for Transgender

Comment: Numerous professional

transgender individuals.

No.

1Ians9sd-coi3vcitii5aedt0udioa1nli7ssnwaErordctemhtioovCevMd.SCotonoerFxzpeolabninr,utIhanerciry.su4p,p2or0t 2fo0r access

to

healthcare

for

Response: CMS recognizes that transgender beneficiaries have specific healthcare needs. Many health care

treatments are available. We encourage all beneficiaries to utilize their Medicare benefits to help them achieve their

best health.

17. Intended Use of the Decision Memorandum

Comment: Several commenters expressed concern that the analysis provided in the proposed and final decision memorandums may be used by individuals, entities, or payers for purposes unrelated to Medicare such as denial of coverage for transgender-related surgeries.

Response: The purpose of the decision memoranda is to memorialize CMS’ analysis of the evidence, provide responses to the public comments received, and to make available the clinical evidence and other data used in making our decision consistent with our obligations under the § 1862 of the Act. The NCD process is open and transparent and our decisions are publicly available. Congress requires that we provide a clear statement of the basis for our determinations. The decision memoranda are an important part of the record of the NCD. Our focus is the Medicare population which, as noted above, is different than the general population in a number of ways. Other entities may conduct separate evidence reviews and analyses that are suited for their specific populations.

18. Cost Barriers to Care and Effects

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Comment: A few commenters stated that without Medicare coverage, surgery is difficult to afford and there may be a risk of negative consequences for the individual. One commenter suggested that CMS should consider priorauthorization for these surgeries.
Response: CMS is aware that paying out-of-pocket for medical care is a strain on a beneficiary’s finances. We are also aware of beneficiaries’ hesitancy to undergo surgery prior to knowing whether or not Medicare will pay the claim. Gender reassignment surgeries are not the only procedures whereby payment is not determined until after the provider submits the claim to Medicare. Importantly, documentation for the claims need to be explicit about what procedures were performed and include the appropriate information in the documentation to justify using the code or codes for surgery. Of note, CMS has claims data that indicate Medicare has paid for gender reassignment surgeries in the recent past. Determining which services are designated for prior-authorization is outside of the scope of the NCA process.
19. Surgical Risks and Benefits
Comment: A number of commenters conveyed the benefits of gender reassignment surgery, while other commenters expressed concern that gender reassignment surgery was harmful.
Response: We appreciate these comments.
20. Expenditure of Federal Funds
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 Comment: Some commenters opposed spending Medicare program funds on gender reassignment surgery for a
variety of reasons. For example, some commenters believe it is an “elective” procedure. Other commenters suggested that funds should first be spent on other priorities such as durable medical equipment (DME) or mobility items such as power chairs; increasing reimbursement to providers; or that spending should be limited to the proportion to the transgender adult population in the Medicare program.
Response: The purpose of this NCA is to determine whether or not CMS should issue a NCD to cover surgery for patients who have gender dysphoria. NCAs do not establish payment amounts or spending priorities and, therefore, these comments are outside the scope of this consideration.
VIII. CMS Analysis
National coverage determinations are determinations by the Secretary with respect to whether or not a particular item or service is covered nationally under § 1862(l)(6) of the Act. In general, in order to be covered by Medicare, an item or service must fall within one or more benefit categories contained within Part A or Part B and must not be otherwise excluded from coverage.
Moreover, in most circumstances, the item or service must be reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member (§1862(a)(1)(A)). The Supreme Court has recognized that “[t]he Secretary’s decision as to whether a particular medical service is ‘reasonable and necessary’ and the means by which she implements her decision, whether by promulgating a generally applicable rule or by allowing individual adjudication, are clearly discretionary decisions.” Heckler v. Ringer, 466 U.S. 602, 617 (1984). See also, 78 Fed. Reg. 48,164, 48,165 (August 7, 2013)
When making national coverage determinations, we consider whether the evidence is relevant to the Medicare
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beneficiary population. In considering the generalizability of the results of the body of evidence to the Medicare population, we carefully consider the demographic characteristics and comorbidities of study participants as well as the provider training and experience. This section provides an analysis of the evidence, which included the published medical literature and guidelines pertaining to gender dysphoria, that we considered during our review to answer the question:
Is there sufficient evidence to conclude that gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria?
CMS carefully considered all the studies listed in this decision memorandum to determine whether they answered the question posed in this NCA. While there appears to be many publications regarding gender reassignment surgery, it became clear that many of the publications did not meet our inclusion/exclusion criteria as explained earlier in the decision memorandum.
Thirty-three papers were eligible based on our inclusion/exclusion criteria for the subsequent review (Figure 1). All studies reviewed had potential methodological flaws which we describe below.
A. Quality of the Studies Reviewed
Overall, the quality and strength of evidence were low due to mostly observational study designs with no comparison groups, subjective endpoints, potential confounding (a situation where the association between the intervention and outcome is influenced by another factor such as a co-intervention), small sample sizes, lack of validated assessment
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 tools, and considerable lost to follow-up (Appendices C and F). The impact of a specific therapeutic intervention can
be difficult to determine when there are multiple serial treatments such as psychotherapy, hormone treatment and surgery. To reduce confounding, outcome assessment just prior to and after surgery such as in a longitudinal study would be helpful. The objective endpoints included psychiatric treatment, attempted suicide, requests for surgical reversal, morbidity (direct and indirect adverse events), and mortality (Appendix F). CMS agrees with the utility of these objective endpoints. Quality of life, while important, is more difficult to measure objectively (Appendix E).
Of the 33 studies reviewed, published results were conflicting – some were positive; others were negative. Collectively, the evidence is inconclusive for the Medicare population. The majority of studies were non-longitudinal, exploratory type studies (i.e., in a preliminary state of investigation or hypothesis generating), or did not include concurrent controls or testing prior to and after surgery. Several reported positive results but the potential issues noted above reduced strength and confidence. After careful assessment, we identified six studies that could provide useful information (Figure 1). Of these, the four best designed and conducted studies that assessed quality of life before and after surgery using validated (albeit non-specific) psychometric studies did not demonstrate clinically significant changes or differences in psychometric test results after GRS. (Heylens et al., 2014; Ruppin, Pfafflin, 2015; Smith et al., 2005; Udeze et al., 2008) (Appendix C Panel A and Appendix G.)
Two studies (three articles) assessed functional endpoints (request for surgical reassignment reversal and morbidity/mortality) (Dhejne et al., 2011; Dhejne et al., 2014 along with Landén et al., 1998) (Figure 1 and Appendix C, Panel A and Appendix G). Although the data are observational, they are robust because the Swedish national database is comprehensive (including all patients for which the government had paid for surgical services) and is notable for uniform criteria to qualify for treatment and financial coverage by the government. Dhejne et al. (2014) and Landén et al. (1998) reported cumulative rates of requests for surgical reassignment reversal or change in legal status of 3.3% while Dhejne et al. (2014) reported 2.2%. The authors indicated that the later updated calculation had the potential to be an underestimate because the most recent surgical cohorts were larger in size and had shorter periods of follow-up.
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Dhejne et al., (2011) tracked all patients who had undergone reassignment surgery (mean age 35.1 years) over a 30 year interval and compared them to 6,480 matched controls. The study identified increased mortality and psychiatric hospitalization compared to the matched controls. The mortality was primarily due to completed suicides (19.1-fold greater than in control Swedes), but death due to neoplasm and cardiovascular disease was increased 2 to 2.5 times as well. We note, mortality from this patient population did not become apparent until after 10 years. The risk for psychiatric hospitalization was 2.8 times greater than in controls even after adjustment for prior psychiatric disease (18%). The risk for attempted suicide was greater in male-to-female patients regardless of the gender of the control. Further, we cannot exclude therapeutic interventions as a cause of the observed excess morbidity and mortality. The study, however, was not constructed to assess the impact of gender reassignment surgery per se.
We believe at minimum study designs should have a pre-test/post-test longitudinal design accompanied by characterization of all patients lost to follow-up over the entire treatment series as well as those patients who did not complete questionnaires, and the use of psychometric quality-of-life tools which are well validated with linkage to “hard” (objective) patient outcomes in this particular patient population (Trentacosti 2007, PRO 2009) (Appendices C and D).
Patient Care
Clinical evidentiary questions regarding the care of patients with gender dysphoria remain. Many of the publications focused on aspects of surgical technique as opposed to long-term patient outcomes. The specific type(s) of gender/sex reassignment surgery (e.g., genital, non-genital) that could improve health outcomes in adults remain(s) uncertain because most studies included patients who had undertaken one or more of a spectrum of surgical
cited in Edmo v. Corzon, Inc. procedures or did not define the specific types of surgical procedures under study. Furthermore, surgical techniques No. 19-35017 archived on February 4, 2020 have changed significantly over the last 60 years and may not reflect current practice (Bjerrome Ahlin et al., 2014;
Doornaert, 2011; Green, 1998; Pauly, 1968; Selvaggi et al., 2007; Selvaggi, Bellringer, 2011; Tugnet et al., 2007; Doornaert, 2011).
The WPATH care recommendations present a general framework and guidance on the care of the transgender individual. The standards of care are often cited by entities that perform gender reassignment surgery. WPATH notes, “More studies are needed that focus on the outcomes of current assessment and treatment approaches for gender dysphoria.” Appendix D in the WPATH Standards of Care briefly describes their evidence base and acknowledges the historical problems with evidentiary standards, the preponderance of retrospective data, and the confounding impact of multiple interventions, specifically distinguishing the impact of hormone therapy from surgical intervention.
Additionally, CMS met with several stakeholders and conducted several interviews with centers that focus on healthcare for transgender individuals in the U.S. Primary care rather than gender reassignment surgery was often the main focus. Few of the U.S.-based reassignment surgeons we could identify work as part of an integrated practice, and few provide the most complex procedures.
Psychometric Tools
CMS reviewed psychometric endpoints because gender dysphoria (inclusive of prior nomenclature) describes an incongruence between the gender assigned at birth and the gender(s) with which the person identifies.
The psychometric tools used to assess outcomes have limitations. Most instruments that were specific for gender dysphoria were designed by the investigators themselves or by other investigators within the field using limited populations and lacked well documented test characterization. (Appendices E and F) By contrast, test instruments with validation in large populations were non-specific and lacked validation in the gender dysphoric patient populations. (Appendices E and F). In addition, the presentation of psychometric results must be accompanied by
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enough information about the test itself to permit adequate interpretation of test results. The relevant diagnostic cutpoints for scores and changes in scores that are clinically significant should also be scientifically delineated for interpretation.
Generalizability
It is difficult to generalize these study results to the current Medicare population. Many of the studies are old given they were conducted more than 10 years ago. Most of these studies were conducted outside of the U.S. in very different medical systems for treatment and follow-up. Many of the programs were single-site centers without replication elsewhere. The study populations were young and without significant physical or psychiatric co-morbidity (Appendix D). As noted earlier, psychiatric co-morbidity may portend poor outcomes (Asscheman et al., 2011; Landén et al., 1998).
Knowledge Gaps
This patient population faces complex and unique challenges. The medical science in this area is evolving. This review has identified gaps in the evidentiary base as well as recommendations for good study designs. The Institute of Medicine, the National Institutes of Health, and others also identified many of the gaps in the data. (Boehmer, 2002; HHS-HP, 2011; IOM, 2011; Kreukels-ENIGI, 2012; Lancet, 2011; Murad et al., 2010; NIH-LGBT, 2013) The current or completed studies listed in ClinicalTrials.gov are not structured to assess these gaps. These gaps have been delineated as they represent areas in which patient care can be optimized and are opportunities for much
nBFwthoe.eeuerHrdeseeisnpadtgruletrldehdeiesoADesmsaiiiisarnncpncahlanus.rttdiluytedideCysianwufeocraremsiCaanthNiion(onBe.esoaen1t(r9rTiac-csec3oii,ait5,1el 19o0d98r195ei73;nth)M.naEeAicryddcebdmrhai,tciiRoovknegetavredol.rur,eCno1sdn9eo.a7TrFr9zhc;eehoNbpnisear,wnrutIfeiianceeildrcpdyea.edn4ttisna,li.tn2,h0it2sh02ea00r6teh)ar..eAellUo.fSt.hbeapseadrtisctiupdanietss in
C. Summary
Based on an extensive assessment of the clinical evidence as described above, there is not enough high quality evidence to determine whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria and whether patients most likely to benefit from these types of surgical intervention can be identified prospectively.
The knowledge on gender reassignment surgery for individuals with gender dysphoria is evolving. Much of the available research has been conducted in highly vetted patients at select care programs integrating psychotherapy, endocrinology, and various surgical disciplines. Additional research of contemporary practice is needed. To assess long-term quality of life and other psychometric outcomes, it will be necessary to develop and validate standardized psychometric tools in patients with gender dysphoria. Further, patient preference is an important aspect of any treatment. As study designs are completed, it is important to include patient-centered outcomes.
Because CMS is mindful of the unique and complex needs of this patient population and because CMS seeks sound data to guide proper care of the Medicare subset of this patient population, CMS strongly encourages robust clinical studies with adequate patient protections that will fill the evidence gaps delineated in this decision memorandum. As the Institute of Medicine (IOM, 2011) importantly noted: “Best practices for research on the health status of LGBT populations include scientific rigor and respectful involvement of individuals who represent the target population.
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Scientific rigor includes incorporating and monitoring culturally competent study designs, such as the use of appropriate measures to identify participants and implementation processes adapted to the unique characteristics of the target population. Respectful involvement refers to the involvement of LGBT individuals and those who represent the larger LGBT community in the research process, from design through data collection to dissemination.”
IX. Decision
Currently, the local Medicare Administrative Contractors (MACs) determine coverage of gender reassignment surgery on a case-by-case basis. We have a received a complete, formal request to make a national coverage determination on surgical remedies for gender identity disorder (GID), now known as gender dysphoria. The Centers for Medicare & Medicaid Services (CMS) is not issuing a National Coverage Determination (NCD) at this time on gender reassignment surgery for Medicare beneficiaries with gender dysphoria because the clinical evidence is inconclusive for the Medicare population.
In the absence of a NCD, coverage determinations for gender reassignment surgery, under section 1862(a)(1)(A) of the Social Security Act (the Act) and any other relevant statutory requirements, will continue to be made by the local MACs on a case-by-case basis. To clarify further, the result of this decision is not national non-coverage rather it is that no national policy will be put in place for the Medicare program. In the absence of a national policy, MACs will make the determination on whether or not to cover gender reassignment surgery based on whether gender reassignment surgery is reasonable and necessary for the individual beneficiary after considering the individual’s specific circumstances. For Medicare beneficiaries enrolled in Medicare Advantage (MA) plans, the initial determination of whether or not surgery would be reasonable and necessary will be made by the MA plans.
No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020 Consistent with the request CMS received, the focus of this National Coverage Analysis (NCA) was gender
reassignment surgery. Specific types of surgeries were not individually assessed. We did not analyze the clinical evidence for counseling or hormone therapy treatments for gender dysphoria. As requested by several public commenters, we have modified our final decision memorandum to remove language that was beyond the scope of the specific request. We are not making a national coverage determination relating to counseling, hormone therapy treatments, or any other potential treatment for gender dysphoria.
While we are not issuing a NCD, CMS encourages robust clinical studies that will fill the evidence gaps and help inform which patients are most likely to achieve improved health outcomes with gender reassignment surgery, which types of surgery are most appropriate, and what types of physician criteria and care setting(s) are needed to ensure that patients achieve improved health outcomes.

A. Appendix A

Diagnostic & Statistical Manual of Mental Disorders (DSM) Criteria for Disorders of Gender Identity since 1980

DSM Version

Condition Name

Criteria

Criteria

Comments

DSM III

Trans-

Required A (cross- Sense of discomfort and

Further

1980

sexualism

gender

inappropriateness about one’s

characterization by

Chapter:

302.5x [Gender identification) and anatomic sex. Wish to be rid of sexual orientation

Psychosexual

Identity

B (aversion to

one’s own genitals and to live as a Distinguished from

Disorders

Disorder of

one’s natal

member of the other sex. The

Atypical Gender

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Child-hood

gender) criteria disturbance has been continuous Identity Disorder

(302.6)]

Dx excluded by (not limited to periods of stress) 302.85

physical intersex for at least 2 years.

condition

Dx excluded by

another mental

disorder, e.g.,

schizophrenia

DSM III-Revised Trans-

Required A and B Persistent discomfort and sense of Further

1987

sexualism

criteria

inappropriateness about one’s

characterization by

TS classified as an (TS) (302.50)

assigned sex. Persistent

sexual orientation

Axis II dx

[GID of C]

(personality disorders

preoccupation for at least 2 years Distinguished from with getting rid of one’s 1o and 2o Gender Identity

and mental

sex characteristics and acquiring Disorder of

retardation) in a

the sex characteristics of the other Adolescence or

different chapter. GID

sex. Has reached puberty

Adulthood, Non-

included under

trans-sexual Type

Disorders Usually

• e.g., cross-

First Evident in

dressing not for the

Infancy, Childhood,

purposes of sexual

Adolescence

excitement

Gender Identity

Disorder Not

No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020

Otherwise Specified 302.6 • e.g., intersex conditions Gender Identity Disorder Not Otherwise Specified 302.85

• e.g., persistent

preoccupation with

castration or

penectomy w/o

desire to acquire the

sex traits of the

other sex

GID of adulthood, non-transsexual type, added

DSM IV

Gender

Required A and B

1994

Identity

criteria

Chapter: Sexual & Disorder in Dx excluded by

Gender Identity

Adolescents

physical intersex

Disorders

and Adults

condition

(302.85)

(Separate

criteria & code

for children, but

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Cross-gender identification • e.g., Stated desire to be another sex • e.g., Desire to live or be treated as a member of the other sex • e.g., conviction that he/she has the typical feelings and reactions of the other sex

Further characterization by sexual orientation Distinguished from Gender Identity Disorder Not Otherwise Specified 302.6 • e.g., intersex

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same name)

• e.g., frequent passing as the conditions

other sex

• e.g., stress

Persistent discomfort with his/her related cross-

sex or sense of inappropriateness dressing

in the gender role of that sex.

• e.g., persistent

• e.g., belief the he/she was preoccupation with

born the wrong sex

castration or

• e.g., preoccupation with getting rid of 1o and 2o sex

penectomy w/o desire to acquire the

characteristics &/or acquiring

sex traits of the

sexual traits of the other sex

other sex

• Clinically significant distress or

impairment in social, occupational,

or other important areas of

functioning

DSM IV-Revised 2000 Chapter: Sexual & Gender Identity Disorders

Gender

Required A & B Cross-gender identification

Outcome may

Identity

criteria

• e.g., stated desire to be the depend on time of

Disorder

Dx excluded by other sex

onset

(Term trans- physical intersex • e.g., desire to live or be

Further

sexual-ism

condition

treated as the other sex

characterization by

eliminated)

• e.g., conviction that he/she sexual orientation

has the typical feelings &

Distinguished from

reactions of the other sex

Gender Identity

No.

19-c3it5e0d1i7n

aErdcmhiovevd.•oPhineteCoahrrpnseosepirse.rrFtgsxozee.peno,OxrtfbinRradert,siqeuseInucannoeesmrcsneyst.foopin4frat,stwhs2ieint0hgg2ehan0sisdteohrre role of that sex • e.g., belief the he/she was

born the wrong sex

Disorder Not Otherwise Specified 302.6 • e.g., intersex conditions • e.g., stress related crossdressing

• e.g., preoccupation with getting rid of 1o and 2o sex

• e.g., persistent preoccupation with

characteristics &/or acquiring

castration or

sexual traits of the other sex

penectomy w/o

Clinically significant distress or desire to acquire the

impairment in social, occupational, sex traits of the

or other important areas of

other sex

functioning

DSM V 2013 Separate Chapter from Sexual Dysfunctions & Paraphilic Disorders

Gender Dysphoria (302.85)

Gender nonconformity

• Marked discordance between Includes diagnosis

natal 1o and 2o sex

for post transition

itself not

characteristics* and

state to permit

considered to be a experienced/expressed gender continued treatment

mental disorder • Conviction that he/she has the access

typical feelings & reactions of the

The dysphoria

other sex (or some alternative

Includes disorders

associated with gender)

of sexual

the gender

• Marked desire to be the other development such

incongruence is sex (or some alternative gender) as congenital

• Marked desire to desire be

hyperplasia and

Eliminates A & B treated as the other sex (or some androgen

criteria

alternative gender)

insensitivity

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• Marked desire to be rid of

syndromes

Considers gender natal 1o and 2o sex

incongruence to be a spectrum

characteristics** • Marked desire to acquire 1o and 2o sex characteristics of the

Considers

other sex (or some alternative

intersex/

gender)

“disorders of sex Clinically significant distress or

development” to impairment in social, occupational,

be a subsidiary or other important areas of

and not

functioning

exclusionary to dx * or in young adolescents, the

of GD

anticipated 2o sex characteristics

** or in young adolescents,

prevent the development of the anticipated 2o sex characteristics

≥ 6 month marked discordance

between natal gender &

experienced/expressed gender as

demonstrated by ≥ 6 criteria:

• Strong desire to be of the

other gender or an insistence that

one is of another gender.

No.

19-c3it5e0d1i7n

aErdcmhiovevd.•g•to•oteCoyhnnseodSSS,rertttgFgrrrrzaoooereomnnnnobgggndleeers,spppru,rrr.Iieeeonanfffreeermcarrry.eeecatnnnk4icccve,eeei-tbi2fffeeooos0lrrrieo2tcvhfr0eoethspsel-ay.
playmates of the other gender. • In boys, strong preference for

cross-dressing; in girls, strong

preference for wearing masculine

clothing

• In boys, rejection of

masculine toys, games, activities,

avoidance of rough and tumble

play; in girls, rejection of feminine

toys, games, and activities.

Unspecified Gender Dysphoria (302.6) (F64.9)

This category applies to presentations in which sx c/w gender dysphoria that cause clinically significant distress or impairment, but do not meet the full criteria for gender dysphoria & the reason for not meeting the criteria is not provided.

Specified

If the reason that the presentation

Gender Dysphoria

does not meet the full criteria is provided then this dx should be

302.6 (F64.8)

used

C/W=consistent with Dx=diagnosis GD=gender dysphoria Sx=symptoms TS=transsexual 1o=primary 2o=secondary

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B. Appendix B
1. General Methodological Principles of Study Design
When making national coverage determinations, CMS evaluates relevant clinical evidence to determine whether or not the evidence is of sufficient quality to support a finding that an item or service is reasonable and necessary. The overall objective for the critical appraisal of the evidence is to determine to what degree we are confident that: 1) the specific assessment questions can be answered conclusively; and 2) the intervention will improve health outcomes for patients.
We divide the assessment of clinical evidence into three stages: 1) the quality of the individual studies; 2) the generalizability of findings from individual studies to the Medicare population; and 3) overarching conclusions that can be drawn from the body of the evidence on the direction and magnitude of the intervention’s potential risks and benefits.
The methodological principles described below represent a broad discussion of the issues we consider when reviewing clinical evidence. However, it should be noted that each coverage determination has its unique methodological aspects.
Assessing Individual Studies
cited in Edmo v. Corzon, Inc. Methodologists have developed criteria to determine weaknesses and strengths of clinical research. Strength of No. 19-35017 archived on February 4, 2020 evidence generally refers to: 1) the scientific validity underlying study findings regarding causal relationships
between health care interventions and health outcomes; and 2) the reduction of bias. In general, some of the methodological attributes associated with stronger evidence include those listed below:
• Use of randomization (allocation of patients to either intervention or control group) in order to minimize bias. • Use of contemporaneous control groups (rather than historical controls) in order to ensure comparability
between the intervention and control groups. • Prospective (rather than retrospective) studies to ensure a more thorough and systematical assessment of
factors related to outcomes. • Larger sample sizes in studies to demonstrate both statistically significant as well as clinically significant
outcomes that can be extrapolated to the Medicare population. Sample size should be large enough to make chance an unlikely explanation for what was found. • Masking (blinding) to ensure patients and investigators do not know to which group patients were assigned (intervention or control). This is important especially in subjective outcomes, such as pain or quality of life, where enthusiasm and psychological factors may lead to an improved perceived outcome by either the patient or assessor.
Regardless of whether the design of a study is a randomized controlled trial, a non-randomized controlled trial, a cohort study or a case-control study, the primary criterion for methodological strength or quality is the extent to which differences between intervention and control groups can be attributed to the intervention studied. This is known as internal validity. Various types of bias can undermine internal validity. These include:
• Different characteristics between patients participating and those theoretically eligible for study but not participating (selection bias).
• Co-interventions or provision of care apart from the intervention under evaluation (performance bias). • Differential assessment of outcome (detection bias).
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• Occurrence and reporting of patients who do not complete the study (attrition bias).
In principle, rankings of research design have been based on the ability of each study design category to minimize these biases. A randomized controlled trial minimizes systematic bias (in theory) by selecting a sample of participants from a particular population and allocating them randomly to the intervention and control groups. Thus, in general, randomized controlled studies have been typically assigned the greatest strength, followed by nonrandomized clinical trials and controlled observational studies. The design, conduct and analysis of trials are important factors as well. For example, a well-designed and conducted observational study with a large sample size may provide stronger evidence than a poorly designed and conducted randomized controlled trial with a small sample size. The following is a representative list of study designs (some of which have alternative names) ranked from most to least methodologically rigorous in their potential ability to minimize systematic bias:
Randomized controlled trials Non-randomized controlled trials Prospective cohort studies Retrospective case control studies Cross-sectional studies Surveillance studies (e.g., using registries or surveys) Consecutive case series Single case reports
When there are merely associations but not causal relationships between a study’s variables and outcomes, it is
cited in Edmo v. Corzon, Inc. important not to draw causal inferences. Confounding refers to independent variables that systematically vary with No. 19-35017 archived on February 4, 2020 the causal variable. This distorts measurement of the outcome of interest because its effect size is mixed with the
effects of other extraneous factors. For observational, and in some cases randomized controlled trials, the method in which confounding factors are handled (either through stratification or appropriate statistical modeling) are of particular concern. For example, in order to interpret and generalize conclusions to our population of Medicare patients, it may be necessary for studies to match or stratify their intervention and control groups by patient age or co-morbidities.
Methodological strength is, therefore, a multidimensional concept that relates to the design, implementation and analysis of a clinical study. In addition, thorough documentation of the conduct of the research, particularly study selection criteria, rate of attrition and process for data collection, is essential for CMS to adequately assess and consider the evidence.
Generalizability of Clinical Evidence to the Medicare Population
The applicability of the results of a study to other populations, settings, treatment regimens and outcomes assessed is known as external validity. Even well-designed and well-conducted trials may not supply the evidence needed if the results of a study are not applicable to the Medicare population. Evidence that provides accurate information about a population or setting not well represented in the Medicare program would be considered but would suffer from limited generalizability.
The extent to which the results of a trial are applicable to other circumstances is often a matter of judgment that depends on specific study characteristics, primarily the patient population studied (age, sex, severity of disease and presence of co-morbidities) and the care setting (primary to tertiary level of care, as well as the experience and specialization of the care provider). Additional relevant variables are treatment regimens (dosage, timing and route of administration), co-interventions or concomitant therapies, and type of outcome and length of follow-up.
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The level of care and the experience of the providers in the study are other crucial elements in assessing a study’s external validity. Trial participants in an academic medical center may receive more or different attention than is typically available in non-tertiary settings. For example, an investigator’s lengthy and detailed explanations of the potential benefits of the intervention and/or the use of new equipment provided to the academic center by the study sponsor may raise doubts about the applicability of study findings to community practice.

Given the evidence available in the research literature, some degree of generalization about an intervention’s potential benefits and harms is invariably required in making coverage determinations for the Medicare population. Conditions that assist us in making reasonable generalizations are biologic plausibility, similarities between the populations studied and Medicare patients (age, sex, ethnicity and clinical presentation) and similarities of the intervention studied to those that would be routinely available in community practice.

A study’s selected outcomes are an important consideration in generalizing available clinical evidence to Medicare coverage determinations. One of the goals of our determination process is to assess health outcomes. These outcomes include resultant risks and benefits such as increased or decreased morbidity and mortality. In order to make this determination, it is often necessary to evaluate whether the strength of the evidence is adequate to draw conclusions about the direction and magnitude of each individual outcome relevant to the intervention under study. In addition, it is important that an intervention’s benefits are clinically significant and durable, rather than marginal or short-lived. Generally, an intervention is not reasonable and necessary if its risks outweigh its benefits.

If key health outcomes have not been studied or the direction of clinical effect is inconclusive, we may also evaluate

the strength and adequacy of indirect evidence linking intermediate or surrogate outcomes to our outcomes of

iAGonfestessnereeevrsseastrli.lanyl,gcaotnhnsienidtReeerrvalaetitnoitvnioseniMnisadgneNontetiortrmu.edai1nsei9onong-cfa3iwbRt5elhies0edkat1hnsi7ednarnnaaEednrcdceBitmsheesmniaoveryeofvirdtif.ssieCtorsvnoricirsFezksieosobnruer,tauwIsaneoinrcgayh.bil4tes,ab2ned0nen2fei0tcse.sHsaerayl.thCoMuStcpolmaceess

are one greater

emphasis on health outcomes actually experienced by patients, such as quality of life, functional status, duration of

disability, morbidity and mortality, and less emphasis on outcomes that patients do not directly experience, such as

intermediate outcomes, surrogate outcomes, and laboratory or radiographic responses. The direction, magnitude,

and consistency of the risks and benefits across studies are also important considerations. Based on the analysis of

the strength of the evidence, CMS assesses the relative magnitude of an intervention or technology’s benefits and

risk of harm to Medicare beneficiaries.

Appendix C

Patient Population: Enrolled & Treated with Sex Reassignment Surgery Loss of Patients & Missing Data

Panel A (Controlled Studies)

Author Study Type

Recruitment Pool

Enrolled % GRS

Dhejne 2011

Longitudinal Controlled

804 w GD

324

324 (100%)

Dhejne Longitudinal for test 767 applied for SRS 681

2014

variable

25 applications denied.

Landén Controlled

61 not granted full

legal status

Created on 02/05/2020. Page 55 of 110

681 (100%)

Completion -
NA: Clinical data extracted retrospectively in earlier paper

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15 formal applications
for surgical reversal

Heylens Longitudinal Controlled

90 applicants for SRS 33 excluded 11 later excluded had not yet received SRS by study close.

57 (→46)

46 (80.7%) Only those w SRS evaluated

Psycho-social survey missing data for 3 at baseline & 4 after SRS. SCL90 not completed by 1 at baseline, 10 after hormone tx, & 4 after SRS →missing data for another 1.1% to 11.1%.

Kockott

Longitudinal Controlled

80 applicants for SRS 59 21 excluded

32 (54.2%) went to surgery

1 preoperative patient was later excluded b/c lived completely in aspired gender w/o SRS. Questions on financial sufficiency not answered by 1 surgical pt. Questions on sexual satisfaction & gender contentment not answered by 1 & 2 patients awaiting surgery respectively.

Mate-Kole Longitudinal

1990

Controlled

Meyer

Longitudinal Controlled

40 sequential patients 40

20 (50%) went to -

of accepted patients.
No.TawR5vh01eaaecs9wirlnuna-ecuio3brtimetmlt5eesebe0ppdxenae1crttcliuii7pinenfdoineetoaEtdhdl:rp.e.dco1moh0l0iove5vd0.

ConorFzeosbunrr,gueIanryrcy. 4, 2020

15 (30%) had

The assessments

undergone surgery complete

14 (28%)

of

all

were

underwent surgery

later

Rakic

Longitudinal Controlled

92 were evaluated

32

54 were excluded from

surgery

2 post SRS were lost to

follow-up

2 post SRS were

excluded for being in

the peri-operative

period

32 (100%)

Questionnaire completed by all.

Ruppin

Longitudinal Controlled

The number in the

71

available patient pool

was not specified.

140 received

recruitment letters.

69 were excluded

69 (97.2%)

The SCL-90, BSRI, FPI-R, & IPP tests were not completed by 9, 34, 13, &16 respectively. Questions about romantic relationships, sexual relationships, friendships, & family relationships were not answered by 1, 3, 2, & 23 respectively.

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Questions regarding gender security & regret & were not answered by 1& 2 respectively.

Smith

Longitudinal Controlled

The number in the

162

available adult patient

pool was not specified.

325 adult & adolescent

applicants for SRS

were recruited.

103 were excluded

from additional tx

162 (100%)

36 to 61 (22.2%-37.6% of those adults w pre-SRS data) did not complete various post-SRS tests.

Udeze Megeri

Longitudinal Controlled

International patient w 40

40 (100%)

-

GD 546 & post SRS

318.

40 M to F subjects

were prospectively

selected.

Ainsworth Internet/convention Number of incomplete 247

72 (29.1%)

-

Survey

questionnaires not

75 (30.6%) facial

Cross-sectional

reported

147 (59.5%) had

Controlled

received neither

Beatrice Cross-sectional Controlled
Haraldsen Cross-sectional

No.1drRee41eamc9serooxu-cngci3tilsrmtu5aedpe0edhnd1itcif7pnomoroaaElt:rcdch9mhi9nigove48vd06.

ConorFzeofrs1aebun0carr,igs(au2seIli5anrgny%nrocymr.) e4n,t
59 (68.6%)

2020
The assessments completed by all
-

were

Controlled

Kraemer Cross-sectional

The number in the

45

22 (48.9%)

-

Controlled

available patient pool

was not specified.

Kuhn

Cross-sectional

The number in the

75

55 (73.3%)

-

Controlled

available patient pool

was not specified.

Mate-Kole Cross-sectional

150 in 3 cohorts.

150

50 (66.7%)

-

1988

Controlled

Matched on select

traits. The number in

the available patient

pool was not specified.

Wolfradt Cross-sectional

The number in the

90

30 (33.3%)

-

Controlled

available patient pool

was not specified.

Panel B (Surgical Series: No Concurrent Controls)

Author Study Type

Recruitment Pool

Enrolled % GRS Completion

Blanchard Cross-sectional 294 clinic patients w GD 79

79(100%) -

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et al.

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Control:

had completed study

Normative test questionnaire

data

116 authorized for GRS.

103 completed GRS & 1

yr post-operative.

24 excluded

Weyers et Cross-sectional >300 M to F patients 50

al.

Control:

had undergone GRS

Normative test 70 eligible patients

data

recruited

20 excluded

50 (100%) SF-26 not completed by 1

Wierckx et Cross-sectional 79 F to M patients had 49

al.

except for recall undergone GRS & were

questions

recruited.

Control:

Normative test 3 additional non-clinic

data

patients were recruited

by other patients.

32 excluded initially; 1

later.

49 (100%) SF-36 test not completed by 2. Questions regarding sexual relationship, sex function, & surgical satisfaction were answered by as few as 27, 28, 32 respectively.

Eldh et al. Cross-sectional 136 were identified.

90

90 (100%) Questions regarding gender iden-

except for 1

46 excluded

tity, sex life, acceptance, & overall

Hess et al.

variable Control: Self for 1 variableemploy-ment Cross-sectional
No control

N2pida5oet4n.ietc1niofti9nesds-cpe3&ioct5suestt0ediGvn1eRti7nSeliaEgirbdclemhiov1e1v9d.

ConorFzeobnr,uIanrcy. 119 (100%)

satisfaction were not answered by
4, 2020 13, 14, 14 & 16 respectively.
Employment data missing for 11.
Questions regarding the esthetics, functional, and social outcomes of GRS were not answered by 16 to 28

surveys.

patients.

135 excluded.

Lawrence Cross-sectional 727 eligible patients

232

No control

were recruited.

495 were excluded

232

-

(100%)

Salvador et al.

Cross-sectional No control

243 had enrolled in the 52 clinic 82 completed GRS 69 eligible patients were identified. 17 excluded.

52 (100%) -

Tsoi

Cross-sectional The number in the

81

No control

available patient pool

was not specified.

81 (100%) -

Panel C (Mixed Treatment Series: No Direct Control Groups)

Author

Study Type

Gómez-Gil Cross-sectional et al. 2012 No direct control:
Analysis of variance

Recruitment Pool
200 consecutive patients were recruited.

Created on 02/05/2020. Page 58 of 110

Enrolled % GRS

187

79 (42.2%)

Completion See prior box.

Case: 19-35017, 02/10/2020, ID: 11590647, DktEntry: 105-2, Page 62 of 113
13 declined participation or were excluded for incomplete questionnaires.

Hepp et al. Cross-sectional

The number in the

31

No direct control:

available patient pool

Analysis of variance was not specified.

7 (22.6%)

HADS test not completed by 1

Motmans et Cross-sectional

255 with GD were

al.

No direct control:

identified.

Analysis of variance & 77 were excluded.

regression

148 ( →140)

Not clearly stated. At least 103 underwent some form of GRS.

8 later excluded for incomplete SF-36 tests. 37 w recent GRS or hormone initiation were excluded from analysis of SF-36 results→103.

Newfield et Internet survey

Number of incomplete 376

139 to 150 (37.0- -

al.

Cross-sectional

questionnaires not

(U.S.) 39.9%) in U.S.

No direct control:

reported

Analysis of variance 446 respondents; 384

U.S respondents

62 non-U.S.

respondents excluded

from SF-36 test results

Gomez-Gil et al. 2014

8 U.S. respondents excluded
CNAnrooadslysir-sesiscetcwtcioornengtarrloeNls:soio.n1Taw229vh75a-cae7s3eiiltnxwn5aecuobe0ldmtlure1edsbippe7rneaedertccaEiiirenfurindecitttdhmehp.edoi.ovoel vd.

2→Co51n2o9(3rF)zeobnr,8gue0Iann(irc4tya1.l.44su%,rg)2en0roy2n0-

59 were excluded for incomplete questionnaires. See prior box.

Asscherman Longitudinal

The number in the

1331

1177 (88.4%) -

No analysis by tx

available patient pool

status

was not specified.

Johansson Cross-sectional

60 eligible patients

42

et al.

except for 1 variable 18 excluded.

No analysis by tx

status except for 1

question

32 (76.2% of

-

enrolled & 53.3%

of eligible)

(genital surgery)

Leinung et al.

Cross-sectional
No analysis by tx status

242 total clinic patients 242

91 (37.6%)

Employment status data missing for 81 of all patients

*Data obtained via a survey on a website and distributed at a conference B/C=because BSRI=Bem Sex Role Inventory F=Female FP-R=Freiberg Personality Inventory GD=Gender dysphoria GID=Gender identity disorder HADS=Hospital Anxiety & Depression Scale

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IPP=Inventory of Interpersonal Problems M=Male NA=Not applicable SCL-90=Symptom Checklist-90 SF-36=Short Form 36 GRS=Sex reassignment surgery Tx=Treatment W/o=without

Appendix D

Demographic Features of Study Populations

Panel A (Controlled Studies)

Author

Age (years; mean, S.D., range)

Gender

Race

Ainsworth Only reassignment surgery:50 (no S.D.)

247 M to F

-

Only facial surgery: 51 (no S.D.)

Both types of surgery: 49 (no S.D.)

Neither surgery: 46 (no S.D.)

Beatrice
Dehjne 2011 Dhejne 2014 Landén

Pre-SRS M to F: 32.5 (27-42), Post-SRS: 35.1 20 M to F plus 20 M controls

(30-43) Post-SRS: all 35.1±9.7 (20-69), F to M
3FMFM3tttt.oooo3+MMFF8SSaa.pp7RRppSS(ll2iicccc0aaoo–nnhh6ttooNss2rrtt)ffo::,oo.rrMmmrr1eeeetddo9vviieeaaF-crrnn3ssi3taa5aa6ellgg.::0d3eemm1+23iee7n721dd0iiaEaa.1nnrd(caa2mhgg1ee–iov632e952v)d.

Co1F7n;36o37rraFz(at4eipoo1pbn.1l0ir,c:% u1aI.nan)4trscFy.ftoo4rMl,e,g21a09l/12su0(r5g9i.c0a%l )
reassignment 289 (37.7%) F to M, 478 (62.3%) F; ratio 1:1.6

M M

to to

681 post SRS & legal change

252 (37.0%) F to M, 429 (63.0%) M to

F; ratio 1:1.7

15 applicants for reversal

5 (33.3%) F to M, 10 (66.7%) M to F;

ratio 1:2

100% Caucasian -
-

Haraldsen

Pre-SRS & Post-SRS: F to M 34±9.5, F to M 33.3±10.0 Post-SRS cohort reportedly older. No direct data provided.

Pre & Post SRS 35 (40.7%) F to M, 51 (59.3%) M to F; ratio 1:1.5

Heylens

-

11 (19.3% of 57) F to M, 46 (80.7%); ratio 1:4.2 (80.7% underwent surgery)

Kockott

Pre-SRS (continued wish for surgery): 31.7±10.2 Post-SRS: 35.5±13.1

Pre-SRS (continued wish for surgery) 3 (25%) F to M, 9 (75%) M to F; ratio 1:3 Post SRS: 14 (43.8%) F to M, 18 (56.2%) M to F; ratio 1:1.3

Kraemer Pre-SRS: 33.0±11.3, Post-SRS: 38.2±9.0
Created on 02/05/2020. Page 60 of 110

Pre-SRS 7 F to M (30.4%), 16 M to F (69.6%); ratio 1:2.3 Post-SRS 8 F to M (36.4%), 14 M to F

Case: 19-35017, 02/10/2020, ID: 11590647, DktEntry: 105-2, Page 64 of 113
(63.6%); ratio 1:1.8

Kuhn

All post SRS: median (range): 51 ( 39-62) (long-term follow-up)

3 (5.4%) F to M, 52 (94.5%) M to F; ratio 1:17.3.

Mate-Kole Initial evaluation: 34, Pre-SRS: 35, Post-SRS: 150 M to F

-

1988

37

Mate-Kole Early & Usual wait SRS: 32.5 years (21-53) 40 M to F

-

1990

Meyer

Pre-SRS: 26.7 Delayed, but completed SRS: 30.9 Post-SRS: 30.1

Pre-SRS: 5 (23.8%) F to M, 16 (76.2%) 86%

M to F; ratio 1:3.2

Caucasian

Delayed, but completed SRS: 1 (7.1%)

F to M, 13 (92.9%) M to F; ratio 1:13

Post-SRS: 4 (26.7%) F to M, 11

(73.3%) M to F; ratio 1:2.8

Rakic

All: 26.8±6.9 (median 25.5, range 19-47),

10 (31.2%) F to M, 22 (68.8%) M to F; -

F to M: 27.8±5.2 (median 27, range 23-37), M ratio 1:2.2

to F: 26.4±7.8 (median 24, range 19-47).

Ruppin

All: 47.0±10.42 (but 2 w/o SRS) (13.8±2.8 yrs 36 (50.7%) F to M, 35 (49.3%) M to F; post legal name change) (long-term follow-up) ratio 1:0.97 F to M: 41.2±5.78, M to F 52.9±10.82

Smith

Time of surgical request for post-SRS: 30.9 Pre-SRS: 162: 58 (35.8%) F to M, 104 -

(range 17.7-68.1)

[64.2%] M to F; ratio 1:1.8

*UMWDdeoaegltfzaerearoidbttainedT2MPai1mvtt.ioi3aee-nF7aot:1fss4.fu9&o7r)l.vlc3oeo3wyn±-tour1Nonp3ls.oaf2:o.6wr41ep3(rbo9a(ssrn-citat3-geinSte5geRae20nSd5d:21-9i38d7n-50is6.)atE72.r)irb(d.crumahtneigdoveeavtd.aCocP(43co6noo00on1nsrMMf.ttFe1z-rSor% ettoelooRsnbn)S.FFcrM:,eup1ISltanu2oDs6rcF=y:3.;S04r4t9aaF,tn(ico32do8a0n1.rt:9d2r1%o0.dl6se) vpFilauttosioM3n0,

77 M

-

Panel B (Surgical Series: No Concurrent Controls)

Author

Age (years; mean, S.D., range)

Gender

Caucasian

Blanchard et al.

F to M: 32.6, M to F w M partner preference: 33.2, F to M w F partner preference: 47.7 years

Post-GRS: 47 (45.6%) F to M, 56

-

(54.4%) M to F; ratio 1:1.19.

In study: 38 (48.1%) F to M, 32 (40.5%)

M to F w M partner preference, 9

(11.4%)

M to F w F partner preference; ratio

1:0.8: 0.2

Weyers et Post-GRS M to F: 43.1 ±10.4 (long-term 50 M to F

-

al.

follow-up)

Wierckx et Time of GRS: 30±8.2 years (range 16 to 49 M to F

-

al.

49)

Time of follow-up: 37.1 ±8.2.4 years (range

22 to 54)

Eldh et al. -

50 (55.6%) F to M, 40 (44.4%) M to F; ratio 1:0.8 There is 1 inconsistency in the text

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suggesting that these should be
reversed.

Hess et al. -

119 M to F

-

Lawrence Time of GRS: 44±9 (range 18-70)

232 M to F

-

Salvador et Time of follow-up for post-GRS: 36.28±8.94 52 M to F

-

al.

(range 18-58)

(Duration of follow-up: 3.8±1.7 [2-7])

Tsoi

Time of initial visit: All: 24.0±4.5, F to M: 25.4±4.4 (14-36), M to F: 22.9±4.6 (1436). Time of GRS: All: 25.9±4.14, F to M: 27.4±4.0 (20-36), M to F: 24.7+4.3 (2036).

36 (44.4%) F to M, 45 (55.6%) M to F; ratio 1:1.25

0% 100% Asian

Panel C (Mixed Treatment Series: No Direct Control Groups)

Author

Age (years; mean, S.D., range)

Gender

Caucasian

Gómez-Gil W & W/O GRS: All: 29.87±9.15 (range 15-61), W/O hormone tx: 38 (56.7%) F to -

et al. 2012 W/O hormone tx: 25.9±7.5, W current

M, 29 (43.3%) M to F; ratio 1:0.8.

hormone tx: 33.6±9.1. (At hormone initiation: W hormone tx: 36 (30.0%) F to M,

24.6±8.1).

84 (70.0%) M to F; ratio 1:2.3.

Post-GRS: 29 (36.7%) F to M, 50

Hepp et al.
Motmans et al.

WWM:&&37WW.0//OO±8GG.5RR,SSM:: 3ANt2lolo.(2F.n:±=14112094..-c3303±)it51:e003d.914.i97n±aE10rdc.2mh, iFovteovd.

Co(W26n0o3&(r.F63zW4%eo./5b)nO%rM,Gu)IRtanoMSrcF:yt.;o1r14Fa;,t(i3ro2a5t10.i5:o21%1.07):1.F.8to. M;
W & W/O GRS: N=140 63(45.0%) F to M, 77 (55.0%) M to F; ratio 1:1.2 N=103 49 (47.6%) F to M; 54 (52.4%) M toF; ratio 1:1.1

-

Newfield et W & W/O GRS: U.S.+ non-U.S. : 32.8±11.2,

al.

U.S. 32.6±10.8

W & W/O GRS: U.S.+ non-U.S.: F to 89% of 336

M, 438, U.S.: F to M: 376

respondents

Caucasian

Gomez-Gil, W & W/O Non-genital GRS: 31.2±9.9 (range W & W/O Non-genital GRS: 74

-

et al. 2014 16-67).

(38.3%) F to M, 119 (61.7%) M to

F; ratio1:1.6.

Asscherman Time of hormone tx: F to M: 26.1±7.6 (16–56), M to F: 31.4±11.4 (16–76)

Met hormone tx requirements: 365 (27.4%) F to M, 966 (72.6%) M to F; ratio 1:2.6. Post-GRS: 343 (29.1%) F to M, 834 (70.9%) M to F; ratio 1:2.4.

Johanssen

Time of initial evaluation: F toM: 27.8 (18-46), Approved for GRS: 21 (35%) F to M, -

M to F 37.3 (21-60). Time of GRS: F to M: 31.4 39 (65%) M to F; ratio 1:1.9)

(22-49), M to F 38.2 (22-57). Time of follow-up Post GRS: 14 (43.8%) F to M; 18

for post-GRS: F to M: 38.9 (28-53), M to F

(56.2%) M to F; ratio 1:1.3)

46.0 (25-69) (Long-term follow-up)

Leinung et Time of hormone initiation : F to M: 27.5, M to W & W/O GRS: 50 (20.7%) F to M, -

al.

F 35.5

192 M to F (79.3%); ratio 1:3.8.

Post-GRS: 32 F to M (35.2%); 59

(64.8%) M to F; ratio 1:1.8.

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Appendix E

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Psychometric and Satisfaction Survey Instruments

Instrument Name and Developer

Development and Validation Information

APGAR Family

Published in 1978

Adaptability, Partner-ship Initial data: 152 families in the U.S.

Growth, Affection, and

A “friends” component was added in 1983.

Resolve

Utility has challenged by many including Gardner 2001

Smilkstein

Beck Depression Inventory Beck, Ward, Mendelson, Mock, & Erbaugh

Published initially in 1961 with subsequent revisions It was initially evaluated in psychiatric patients in the U.S.A. Salkind (1969) evaluated its use in 80 general outpatients in the UK. Itis copyrighted and requires a fee for use

Bem Sex Role Inventory Bem

Published 1974 Initial data: 100 Stanford Undergraduates 1973 update: male 444; female 279 1978 update: 470; female 340

Body Image Questionnaire Clement & Lowe
Body Image Scale Lindgren & Pauly (Kuiper, Dutch adaptation 1991)

NVPs1Iinonto9auip.O7ltdiidu5ar1eileltan9gydttois-acosn,3ttniaut25::ed040y18d061ps5iup7mnpobasrlaEilytsesrchdchaseomtnhdusdido1ov1em9en69vatd6fts.eic(mCoGpnaeoalrtemriFeztanreonatbsnn),sr,1sueI4anx1urcmay.lep4dai,ctia2eln0ts20

Crown Crisp Experiential Developed circa 1966

Index

Manual published 1970

(formerly Middlesex Hospital Initial data: 52 nursing students while in class in the UK

Questionnaire)

Crown & Crisp

(2nd) European Quality of Published in 2007

Life Survey Anderson,

The pilot survey was tested in the UK and Holland with

Mikuliç, Vermeylen, Lyly-

200 interviews. The survey was revised especially for

Yrjanainen, & Zigante,

non-response questions. Another version was tested in

25 persons of each of the 31 countries to be surveyed.

Sampling methods were devised. 35,634 Europeans

were ultimately surveyed.

Additional updates

Female Sexual Function Index Rosen, Brown, Heiman, Leiblum, Meston, Shabsigh, Ferguson, D’Agostino Wiegel, Meston, & Rosen

Published in 2000 Initial data: 131 normal controls & 128 age-matched subjects with female sexual arousal disorder from 5 U.S. research centers. Updated 2005: the addition of those with hypoactive sexual desire disorder, female sexual orgasm disorder, dyspareunia/vaginismus, & multiple sexual dysfunctions (n=568), plus more controls (n=261).

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Fragebogen zur

Published 1996 (German)

Beurteilung des eigenen

Korpers

Strauss

Freiberg Personality

7th edition published 2001, 8th edition in 2009

Inventory

(Not in PubMed)

Fahrenberg, Hampel, & Selg German equivalent of MMPI

“gender identity disorder in childhood” Smith, van Goozen, Kuiper, & Cohen-Kettenis

11 items derived from the Biographical Questionnaire for Trans-sexuals (Verschoor Poortinga 1988) (Modified by authors of the Smith study)

Gender Identity Trait Scale Altstotter-Gleich

Published 1989 (German)

General Health Questionnaire Goldberg & Blackwell (initial study) Goldberg & Williams (manual)

Initial publication 1970 Manual published ?1978, 1988 (Not in PubMed) Initial data: 553 consecutive adult patients in a single UK primary care practice were assessed. Sample of 200 underwent standardized psychiatric interview. Developed to screen for hidden psychological morbidity. Proprietary test. Now 4 versions.

Hospital Anxiety & Depression Scale Zigmond & Snaith
Inventory of Interpersonal Problems Horowitz

Published in 1983
NIc>PIp(onnKlusi1iinya.btt0iiicilcaas01ihsselloh9prdditena-aachPdt3tteetiiaaethrr15::emane90ptP1d8asUya018;nK;t3iei72nesnponrtaaEmetetsf-rieudeScbsnampehatntasliwstovF.iaeereb1eanvosdnnt.tusc1t5iCops60tocnooos&ct)uroF6znpm5esdopyeibnancrhgrr,oeuooudI-antttphrcoaey.tr2iaen4pnd,yt5200. 20
Proprietary test

King’s Health

1997

Questionnaire

Initial data: 293 consecutive women referred for urinary

Kelleher, Cardozo, Khullar, & incontinence evaluation in London

Salvatore

Comparison to SF-36

Minnesota Multi-phasic Personality Inventory Hathaway & McKinley Butcher, Dahlstrom, Graham, & Tellegen

Published in 1941 Updated in 1989 with new, larger, more diverse sample. MMPI-2: 1,138 men & 462 women from diverse communities & several geographic regions in the U.S.A. The test is copyrighted.

Modified AndrophiaGynephilia Index

Neither the underlying version or the Blanchard modified version could be located in PubMed (Designed by the author of the Blanchard et al. study)

“post-operative functioning 13 items” Doorn, Kuiper, Verschoor, Cohen-Kettenis

Published 1996 (Dutch) (Not in PubMed) (Designed by 1 of the authors of the Smith study)

“post-operative functioning 21 items” Doorn, Kuiper, Verschoor,

Published 1996 (Dutch) (Not in PubMed) (Designed by 1 of the authors of the Smith study)

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Cohen-Kettenis

Scale for Depersonalization Experiences Wolfradt

Unpublished manuscript 1998 (University of Halle) (Designed by 1 of the authors of the Wolfradt study)

“sex trait function” Cohen-Kettenis & van Goozen

Published 1997 Assessed in 22 adolescents (Designed by 1 of the authors of the Smith Study)

Self-Esteem Scale Rosenberg

Published 1965 (Not in PubMed) Initial data: 5,024 high-school juniors & seniors from 10 randomly selected New York schools

Short-Form 36 RAND Ware & Sherbourne1992 McHorney, Ware, & Raczek 1993

Originally derived from the Rand Medical Outcomes Study (n=2471 in version 1; 6742 in version 2 1989). The earliest test version is free. Alternative scoring has been developed. There is a commercial version with a manual.

Social Anxiety & Distress Scale Watson & Friend

Initial publication in1969 Requires permission for use

Social Support Scale Van Tilburg 1988

Published 1988 (Dutch) (Not in PubMed)

Spielberger State & Trait Anxiety Questionnaire Spielberger, Gorsuch, Lushene, Vagg, & Jacobs
Symptom Checklist-90 Derogatis, Lipman, Covi Derogatis & Cleary

NCPPR(oirueuno.bpr-prlo1i&ersrinhte9oette-ucdadf3torliy-ytri5pnemwta0ed1atitsi19tehti7n7pnn3tu)oba&Er&lmirsd1cnha9mhoet7irdvi7moveineadvld1as.9tuaCo8b3fjnooercrFtpzsseoiynbnchtr,hiuaeItanrUircc.yS.p.a4t,ie2nt0s 20

Has undergone a revision

Requires qualification for use

Tennessee Self-Concept Scale Fitts & Warren

In use prior to 1988 publication. Initial data: 131 psychiatric day care patients. Updated manual published 1996. Update population >3000 with age stratification. No other innformation available. Requires qualification for use

Utrecht Gender Dysphoria Published in 1997

Scale

Initial population: 22 transgender adolescents who

Cohen-Kettenis & van

underwent reassignment surgery.

Goozen

(Designed by 1 of the authors of the Smith study)

WHO-Quality of Life (abbreviated version) Harper for WHO group

Field trial version released 1996 Tested in multiple countries. The Seattle site consisted of 192 of the 8294 subjects tested). Population not otherwise described. The minimal clinically important difference has not been determined. Permission required

Althof et al., 1983; Greenberg, Frank, 1965; Gurtman, 1996; Lang, Vernon, 1977; Paap et al., 2012; Salkind et al., 1969; Vacchiano, Strauss, 1968.
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Appendix F

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Endpoint Data Types and Sources

Panel A (Controlled Studies)

Author

Instrument

Instrument w w/o Substan-

National Substantive tive &/or

Data

Normative

Accessible

Data

Normative

Data

InvestigatorOther
designed

Other

Dhejne Yes

-

-

2011

-

-

Mortality (Suicide,

Cardiovascular Disease

[possible adverse events

from Hormone Tx],

Cancer), Psych hx &

hospitalization, Suicide

attempts

Dhejne Yes Landén
Beatrice Haraldsen -

-

-

-

Includes

Education, Employment,

demographics* Formal application for

reversal of status, Psych

MMPI TSCS

fNorom.R1, 9-c3-it5e0d1i7n

aErdcmhiove-vd.

ConorFzeobnr,uIanrcy. 4, 2020
Demographic

dx & tx, Substance abuse** More elements in earlier paper
Education, Income, Relationships

SCL-90/90R -

-

Demographic DSM Axis 1, II, V (GAF),

Substance abuse

Heylens -

SCL-90

-

Yes-2

Demographic

Employment, Relationships, Substance abuse, Suicide attempts

Ainsworth -

Likely SF-

-

36v2*

Yes-1

Demographic -

Ruppin -

SCL-90R

BSRI, FPI-R, IIP Yes-2

Demographic

Adverse events from surgery, Employment, Psych tx, Relationships, Substance abuse

Smith

-

MMPI-short, SCL-90?R

BIS, UGDS,

Yes-1 or 2

? Cohen-

Kettenis’,

Doorn’s x2, (Gid-

c, SSS)

Demographic

Adverse events from surgery, Employment, Relationships

Udeze

-

SCL-90R

BDI, GHQ,

-

-

Psych eval & ICD-10 dx

Megeri

HADS,STAI-X1,

STAI-X2

Kuhn

-

-

KHQ

Yes-1

Demographic Relationships

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Mate-Kole 1990
Wolfradt -
Kraemer Mate-Kole 1988 Kockott -

Meyer

-

Rakic

-

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-

BSRI, CCEI

Yes-1

Demographic Employment (relative

change), Psych hx,

Suicide hx

-

BIQ, GITS, SDE, Yes-1

-

-

SES

-

FBeK

-

Demographic -

-

BSRI, CCEI

-

Demographic Employment, Psych hx,

Suicide hx,

-

-

Yes-1

Demographic

Employment, Income, Relationships, Suicide attempts

-

-

Yes-1

Demographic

Education, Employment, Income, Psych tx, Phallus removal request

-

-

Yes-1

Demographic Employment, Relationships

Panel B (Surgical Series: No Concurrent Controls)

Author Weyers

National Data
-

Instrument w/o Sub-

Instrument w

stantive &/or

Investigator-

Substantive

Other

Other

Accessible Normative designed

Normative Data Data

SF-36
No.

19-c3it5e0d1FSi7nFIaErdcmhiovevd.

ConorFzeobnYre,usI-an2rcy.

4,

2020 Demographic

Hormone levels, Adverse events from surgery, Relationships

Blanchard -

SCL-90R

(AG)

Yes-1

Demographic Education, Employment, Income, Relationships, Suicide (Incidental finding)

Wierckx -

SF-36

-

Yes-3

Demographic Hormone levels, Adverse events from surgery, Relationships

Eldh

-

-

-

Yes-1

-

Adverse events from surgery, Employment, Relationships, Suicide attempts

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Hess

-

Lawrence -

Salvador -

Tsoi

-

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-

-

Yes-1

-

-

-

-

Yes-4

Demographic Adverse events from surgery

-

-

Yes-1

Demographic Relationships

-

-

Yes-1

Demographic Education, Employment, Relationships (relative change)

Panel C (Mixed Treatment Series: No Direct Control Groups)

Author

Instrument w

National Substantive

Data

Normative

Data

Instrument w/o Sub-stantive &/or Accessible Normative Data

Investigatordesigned

Other

Other

Asscheman et al.
Yes

Motmans et

al.

-

Newfield et -
al.
Gómez-Gil et al. 2014 -

-

-

-

Demographic Mortality (HIV,

Possible adverse

events from Hormone

Tx, Substance abuse,

Suicide)

SF36 EQOLS (2 nd)
SWFH-3ON6QvOo2L.-B1R9E-cF3it5e-A0dP1Gi7nARaErdcmhiovevd.

Co--norFzeobnr,uIanrcy.
Yes-1

4D,em2o0g2ra0phic
Demographic Demographic

Education, Employment, Income, Relationships Income
Education, Employment,

Relationships

Gómez-Gil

-

et al. 2012 -

HADS, SADS

-

Demographic Education, Employment, Living arrangements

Hepp et al.

-

-

HADS

-

Demographic DSM Axis 1& II Psych dx

Johansson

-

-

et al.

-

Yes-1

Demographic Axis V change (Pt & Clinician) Employment (relative change) Relationship (relative change)

Leinung et -

-

-

al.

-

Demographic Employment,

Disability, DVT, HIV

status, Psych dx

*Listed as San Francisco-36 in manuscript ** From medical charts & verdicts ?=Possibly self-designed AG=Androphilia-Gynephilia Index (investigator designed 1985) (used more for classification) APGAR=Family Adaptability, Partnership growth, Affection, and Resolve BDI=Beck Depression Inventory

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Case: 19-35017, 02/10/2020, ID: 11590647, DktEntry: 105-2, Page 72 of 113
BIQ=Body Image Questionnaire BIS=Body Image Scale BSRI=Bem Sex Role Inventory CCEI=Crown Crisp Experiential Index Cohen-Kettenis’= Sex trait function (An author helped design) Dorn’s x2= Post-operative functioning 13 items (An author helped design)
Post-operative functioning 21 items (An author helped design) EQOLS (2nd)=2nd European Quality of Life Survey FBeK=Fragebogen zur Beurteilung des eigenen Korpers FPI-R=A version of the Freiberg Personality Inventory FSFI+Female Sexual Function Index GHQ=General Health Questionnaire Gid-c=Gender identity disorder in childhood (used more for predictors) (An author helped design) GITS=Gender Identity Trait Scale HADS=Hospital Anxiety Depression Scale IIP=Inventory of Interpersonal Problems KHQ=King’s Health Questionnaire MMPI=Minnesota Multi-phasic Personality Inventory SADS=Social Anxiety & Distress Scale SCL-90 (±R)=A version of the Symptom Checklist 90 SDE=Scale for Depersonalized Experiences (An author designed)
SSSSTUWSEFSTGH-CASSD3OIS==S6-Q=SXS=O(Te1oUvlLec,f2t-in-Sra)BEen=lTRsceSASthEseuIhtsF-epoe=XGmper2Weto=SnSrFotdeScorlaeSlrpfdmlr-iceeCaHD-lolb3eyene6asc(r(plegutvhhpeseNoetrrOrdsSSioraiogctm.aanaStol21nceer)ai9ezalae-cnfto3d(iiorAt5neTnp-0rdrQaae1iuudti7taniAchltinotoaEyxrrrishdeoc)etfmyhlLpiQieofvedueev(ddsa.etbisCoboignrneonnv)arFiizarteeoebdnr,vueIransrcioy.n)4, 2020
Appendix G.

Longitudinal Studies Which Used Patients as Their Own Controls and Which Used Psychometric Tests with Extensive Normative Data or Longitudinal Studies Which Used National Data Sets

Author

Test

Patient and Data Loss Results

Psychometric Test

Heylens et al. SCL-90R 90 applicants for SRS

At t=0, the mean global

Belgium 2014

were recruited. • 8 (8.9%) declined

“psychoneuroticism” SCL-90R score, along with scores of 7 of

participation.

8 subscales, were statistically

• 12 (13.3%) excluded more pathologic than the

b/c GID-NOS dx.

general population.

• 12 (13.3%) did not

complete the treatment After hormone tx, the mean

sequence b/c of

score for global

psychiatric/physical co- “psychoneuroticism”

morbidity, personal decision for no tx, or

normalized & remained normal after reassignment surgery.

personal decision for only

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hormone tx. • 1 (1.1%) committed suicide during follow-up. 57 (63.3% of recruited) entered the study. • 1 (12.2% of initial recruits) had not yet received SRS by study close. →46 (51.1% of recruited) underwent serial evaluation • The test was not completed by 1 at t=0, 10 at t=1 (after hormone tx), & 4 at t=2 (after SRS) →missing data for another 1.1% to 11.1%.

Ruppin,Pfafflin, Germany 2015

SCL-90R The number in the

At t=0, the “global severity

available patient pool was index “SCL-90R score was

not specified.

0.53±0.49. At post-SRS follow-

1l•rd•ieneNi4tesct0tdreoiu21t.rru.iset((t.mc110ioe..e9ni47vna% % -cetl3diiz)lteo5eerwtfed0tdacte.h1rsruosi7n)istemhaEawerddnictthmhiu0Tdasovirhip.gf2eefenvet8dohirs±.ffeeicc0Conolais.mrtnn3ceofoc6isrtrer.oFeezwmdgeoehibvrbaoneeidnor,nseludotItgeaaanhctinecrcirsoye.rttaiahc4sneaegr,ldl,ey2btoou0ft20

• 5 (3.6%) were ill.

the score for this scale: 0-4.

• 8 (5.7%) did not

have time.

In the same way, all of the

• 8 (5.7%) stated that subscale scores were

GD was no longer an

statistically different, but the

issue.

effect size was reported as

• 8 (5.7%) provided no large only for “interpersonal

reason.

sensitivity”: 0.70±0.67 at t=0

• 28 (20.0%) declined and 0.26±0.34 post-SRS.

further contact.

• 9 (6.4%) were lost to

follow-up.

→71 (50.7%) agreed

to participate.

• 2 (1.4%) had not

undergone SRS

• The test was not

completed by 9.

→missing data for

another 6.4%.

Smith et al. Holland

MMPI The number in the SCL-90 available adult patient

Most of the MMPI scales were already in the normal range at

Created on 02/05/2020. Page 70 of 110

2005
Udeze, et al. 2008 Megeri, Khoosal 2007 UK
Dehjne Sweden 2011

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pool was not specified. the time of initial testing.

325 adult & adolescent

applicants for SRS were At t=0, the global

recruited.

“psychoneuroticism” SCL-90

• 103 (31.7%) were score, which included the drop-

not eligible to start

outs, was 143.0±40.7.

hormone tx & real-life At post SRS-follow-up, the

experience.

score had decreased to

• 34 (10.7%)

120.3±31.4.

discontinued hormone tx

162 (an unknown

The scores were statistically

percentage of the initial different from one another, but

recruitment) provided

are of limited biologic

pre-SRS test data.

significance given the range of

• 36 to 61 (22.2%- the score for this scale: 90 to

37.6% of those adults 450, with higher scores

w pre-SRS data) did consistent with more

not complete post-SRS psychological instability.

testing.

SCL-90R The number in the

available patient pool was At t=0, the mean raw global

not specified.

score was 48.33. At post-SRS

40 subjects were

follow-up, the mean score was

National Dp•wmplaoNrrtasooeassnvsobPptircao.hoaeoussstcn1esettdt-ls9isoyvou.-ecpcmd3lteiyeetir5tnedasei0temdrwilmv1eiieztici7hnnetteieendadEs.6tridncgmhi4Tsgsovuihl9goebe.nvb1srdiae5.cfila.cCowslaecennsoort.rerFeczhneooaornbnsfgrot,eaursItaainsinntrciyyct.ahol4eflyt,h2e 020

Swedish 804 with GID in Sweden All cause mortality was higher

National 1973 to 2003 were

(n=27[8%]) than in controls

Records identified.

(H.R 2.8 [1.8-4.3]) even after

• 480 (59.7%) did not adjustment for covariants.

apply or were not

Divergence in survival curves

approved for SRS 324 was observed after 10 years.

(40.3%) underwent SRS. The major contributor was

• All were followed.

completed suicide (n=10 [3%];

adjusted H.R. 19.1 [5.8-62.9]).

3240 controls of the natal

sex and 3240 controls of

the reassigned gender Suicide attempts were more

were randomly selected common ( n= 29 [9%]) than in

from national records

controls (adjusted H.R. 4.9

[2.9–8.5]).

Created on 02/05/2020. Page 71 of 110

Hospitalizations for psychiatric conditions (not related to gender dysphoria) were more common n= 64 [20%] than in controls (H.R. 2.8 [2.0–3.9]) even after adjusting for prior

Case: 19-35017, 02/10/2020, ID: 11590647, DktEntry: 105-2, Page 75 of 113
psychiatric morbidity.

Dhejne et al. 2014 Landén et al. 1998 Sweden

Swedish 767 applied for SRS/legal 15 formal applications for

National status (1960-2010)

reversal to natal/original

Registry • 25 (3.3%)

gender (2.2% of the SRS

applications denied.

population) were identified

• 61 (8.0%) not

thus far (preliminary number).

granted full legal status (Does not reflect other

681 (88.7%) underwent manifestations of regret such

SRS.

as suicide.)

• All were followed.

GID-NOS=Gender Identity Disorder-Not Otherwise Specified HR=Hazard Ratio SRS=Sex reassignment surgery Tx=Treatment

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González I, Hernando V, Soriguer F. Effect of long-term administration of cross-sex hormone therapy on serum and urinary uric acid in transsexual persons. J Clin Endocrinol Metab. 2008 Jun;93(6):2230-3. Epub 2008 Mar 18. PMID: 18349066.
Yik Koon, T. (2002). The Mak Nyahs: Malaysian Male to Female Transsexuals. (Chapter 4) Eastern Universities Press.
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Zigmond AS, Snaith RP. The hospital anxiety and depression scale. Acta Psychiatr Scand. 1983 Jun;67(6):361-70. PMID: 6880820.
Zimmermann A, Zimmer R, Kovacs L, Einödshofer S, Herschbach P, Henrich G, Tunner W, Biemer E, Papadopulos N. [Transsexuals' life satisfaction after gender transformation operations]. Chirurg. 2006 May;77(5):432-8. German. Erratum in Chirurg. 2006 Jun;77(6):530. PMID: 16437228.
Zoni AC, González MA, Sjögren HW. Syphilis in the most at-risk populations in Latin America and the Caribbean: a systematic review. Int J Infect Dis. 2013 Feb;17(2):e84-92. Epub 2012 Oct 12. PMID: 23063547.
Zucker KJ, Bradley SJ, Hughes HE. Gender dysphoria in a child with true hermaphroditism. Can J Psychiatry. 1987 Oct;32(7):602-9. PMID: 3676994.
A-Zucker KJ, Bradley SJ, Kuksis M, Pecore K, Birkenfeld-Adams A, Doering RW, Mitchell JN, Wild J. Gender constancy judgments in children with gender identity disorder: evidence for a developmental lag. Arch Sex Behav. 1999
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Case: 19-35017, 02/10/2020, ID: 11590647, DktEntry: 105-2, Page 113 of 113
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No. 19-c3it5e0d1i7n aErdcmhiovevd. ConorFzeobnr,uIanrcy. 4, 2020
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 No. ______

In

the

Supreme Court of the United
__________________

States

THE IDAHO DEPARTMENT OF CORRECTION; HENRY ATENCIO, in his official capacity as Director of the IDOC; JEFF ZMUDA, in his official capacity as Deputy Director of the IDOC; AL RAMIREZ, in his official capacity as Warden of the Idaho State Correctional
Institution; and SCOTT ELIASON, M.D., Petitioners,
v.

ADREE EDMO, aka Mason Edmo, Respondent.
__________________

On Petition for Writ of Certiorari to the
United States Co_u_r_t_o_f__A_p_p_e_a__ls__fo_r__the Ninth Circuit

PETITION F__O_R___W__R_I_T__O__F__C_E_ RTIORARI

DYLAN A. EATON J. KEVIN WEST BRYCE JENSEN PARSONS BEHLE & LATIMER 800 West Main Street Suite 1300 Boise, Idaho 83702 Counsel for Petitioner Scott Eliason, M.D.
May 6, 2020

LAWRENCE G. WASDEN Attorney General State of Idaho
BRIAN KANE Assistant Chief Deputy
MEGAN A. LARRONDO Deputy Attorney General
BRADY J. HALL Special Deputy Attorney General Counsel of Record
MOORE ELIA KRAFT & HALL, LLP P.O. Box 6756 Boise, Idaho 83707 (208) 336-6900 brady@melawfirm.net
Counsel for Petitioners the Idaho Department of Correction and Henry Atencio, Jeff Zmuda, and Al Ramirez, in their official capacities

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i
QUESTIONS PRESENTED The Ninth Circuit became the first circuit in the nation to conclude that the Eighth Amendment mandates the provision of sex reassignment surgery when it held that prison psychiatrist Dr. Scott Eliason inflicted cruel and unusual punishment on transgender inmate Adree Edmo by recommending in good faith that Edmo’s gender dysphoria be treated conservatively with hormone therapy and counseling, and not sex reassignment surgery. The panel reached this result by adopting an advocacy group’s treatment guidelines as constitutional requirements. The panel then held that Dr. Eliason was deliberately indifferent because he deviated from those guidelines; it failed to properly consider the subjective reasoning underlying his decision. The district court has ordered Idaho to provide Edmo’s surgery, which, if it occurs, will be the second such surgery ever performed on an inmate in this country. Ten circuit judges disagreed with the panel’s decision and would have granted the petition for rehearing en banc. The questions presented are as follows: 1. Whether the Ninth Circuit erred in concluding that the guidelines set by an advocacy organization constitute the constitutional minima for inmate medical care under the Eighth Amendment, when the First, Fifth, Tenth, and Eleventh Circuits have all concluded that they do not. 2. Whether the Ninth Circuit’s holding that a prison health care provider’s individualized medical decision was unreasonable and therefore constituted deliberate indifference, regardless of his subjective

ii reasoning, conflicts with Estelle v. Gamble, 429 U.S. 97 (1976) (holding that mere negligence does not establish deliberate indifference), and Farmer v. Brennan, 511 U.S. 825 (1994) (holding the provider must have known of and disregarded a substantial risk of serious harm to find deliberate indifference).

iii
PARTIES TO THE PROCEEDING BELOW The Idaho Department of Correction (“IDOC”); Henry Atencio, in his official capacity as Director of the IDOC; Jeff Zmuda, in his official capacity as Deputy Director of the IDOC; Al Ramirez, in his official capacity as Warden of the Idaho State Correctional Institution; and Scott Eliason, M.D., were the appellants in the proceeding below and are the Petitioners here. Corizon, Inc., Murray Young, Catherine Whinnery, Howard Keith Yordy, Richard Craig, and Rona Siegert were also appellants in the proceeding below. Adree Edmo was the appellee in the court below and is the Respondent here.
DIRECTLY RELATED PROCEEDINGS United States Court of Appeals (9th Cir.):
Adree Edmo (a/k/a/ Mason Edmo) vs. Idaho Department of Correction, et al., and Corizon, Inc., et al., No. 19-35552 (Judgment has not been entered)

iv
TABLE OF CONTENTS QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i PARTIES TO THE PROCEEDING BELOW . . . . . iii DIRECTLY RELATED PROCEEDINGS . . . . . . . . iii TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . vii OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 3
A. Dr. Eliason treated Edmo for gender dysphoria in prison; in 2016, he made the medical decision not to recommend sex reassignment surgery for Edmo.. . . . . . . . . . . 3
B. Edmo filed a lawsuit alleging her treatment for gender dysphoria was constitutionally inadequate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. The district court issued an injunction ordering Idaho to provide Edmo with sex reassignment surgery . . . . . . . . . . . . . . . . . . 11
D. The Ninth Circuit panel affirmed the injunction issued by the district court . . . . . 12

v
E. The Ninth Circuit denied Defendants’ request for rehearing en banc, despite the disagreement of ten circuit judges . . . . . . . . 15
REASONS FOR GRANTING THE PETITION . . . 17 I. Certiorari is warranted on the First Question
Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 A. The Ninth Circuit’s adoption of guidelines set by an advocacy organization creates a circuit split with the First, Fifth, Tenth, and Eleventh Circuits . . . . . . . . . . . . . . . 17 B. The Ninth Circuit’s adoption of guidelines set by an advocacy organization conflicts with this Court’s precedents . . . . . . . . . . 22
II. Certiorari is warranted on the Second Question Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 A. The Ninth Circuit’s deliberate indifference analysis conflicts with Estelle v. Gamble by imposing liability for what could, at most, be mere medical negligence . . . . . . . . . . . . . . . . . . . . . . . . . 25 B. The Ninth Circuit’s deliberate indifference analysis conflicts with Farmer v. Brennan by ignoring the subjective component of deliberate indifference. . . . . . . . . . . . . . . . . . . . . . . . 30 C. The Questions Presented involve recurring issues of national importance . 33
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

vi
APPENDIX Appendix A Order Denying Petition for Rehearing
En Banc in the United States Court of Appeals for the Ninth Circuit (February 10, 2020) . . . . . . . . . . . App. 1 Appendix B Per Curiam Opinion in the United States Court of Appeals for the Ninth Circuit (August 23, 2019) . . . . . . . . . . . . App. 53 Appendix C Order in the United States District Court for the District of Idaho (May 31, 2019). . . . . . . . . . . . . . App. 147 Appendix D Findings of Fact, Conclusions of Law, and Order in the United States District Court for the District of Idaho (December 13, 2018) . . . . . . . . . App. 152

vii
TABLE OF AUTHORITIES Cases Armstrong v. Mid-Level Prac. John B. Connally
Unit, No. SA-18-CV-00677-XR, 2020 WL 230887 (W.D. Tex. Jan. 15, 2020) . . . . . . . . . . . . . . . . . . 36 Atkins v. Parker, 412 F. Supp. 3d 761 (M.D. Tenn. 2019) . . . . . . . 35 Avilez v. Barr, No. 19-cv-08296-CRB, 2020 WL 570987 (N.D. Cal. Feb. 5, 2020) . . . . . . . . . . . . . . . . . . . 36 Bell v. Wolfish, 441 U.S. 520 (1979). . . . . . . . . . . 17, 22, 23, 24, 35 Campbell v. Kallas, 936 F.3d 536 (7th Cir. 2019). . . . . . . . . . . . . . . . 19 Clark v. LeBlanc, No. 3:19-00512-BAJ-RLB, 2019 WL 5085425 (M.D. La. Oct. 10, 2019) . . . . . . . . . . . . . . . . . . . 36 Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001). . . . . . . . . . . . . . . . . . . . . . . . 26 Dana v. Tewalt, No. 1:18-cv-00298-DCN, 2020 WL 1545786 (D. Idaho Apr. 1, 2020) . . . . . . . . . . . . . . . . . . . . 36 Druley v. Patton, 601 Fed. App’x 632 (10th Cir. 2015). . . . . . . 21, 33 Estelle v. Gamble, 429 U.S. 97 (1976). . . . . . . . . . . . . . . . . . . . passim

viii
Farmer v. Brennan, 511 U.S. 825 (1994). . . . . . . . . . . . . . . . . . . passim
Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019), cert. denied, 140 S. Ct. 653 (2019) . . 19, 23, 27, 37
Gonzales v. Cal. Dep’t of Corrs. & Rehab., No. 1:19-cv-01467BAM (PC), 2020 WL 1847491 (E.D. Cal. Apr. 13, 2020). . . . . . . . . . . . . . . . . . . 36
Hope v. Pelzer, 536 U.S. 730 (2002). . . . . . . . . . . . . . . . . . . . . . . 25
Jackson v. Kallas, No. 17-cv-350-bbc, 2020 WL 1139769 (W.D. Wis. Mar. 9, 2020) . . . . . . . . . . . . . . . . . . 36
Keohane v. Florida Department of Corrections Secretary, 952 F.3d 1257 (11th Cir. 2020). . . . . 21, 22, 29, 35
Keohane v. Jones, 328 F. Supp. 3d 1288 (N.D. Fla. 2018). . . . . . . . 22
Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014), cert. denied, Kosilek v. O’Brien, 135 S. Ct. 2059 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Lamb v. Norwood, 262 F. Supp. 3d (D. Kan. 2017) . . . . . . . . . . 20, 21
Lamb v. Norwood, 899 F.3d 1159 (10th Cir. 2018), cert. denied, 140 S. Ct. 252 (2019) . . . . . 21, 29, 37

ix Minneci v. Pollard,
565 U.S. 118 (2012). . . . . . . . . . . . . . . . . . . . . . . 25 Monroe v. Baldwin,
No. 18-CV-00156-NJR-MAB, 2019 WL 6918474 (S.D. Ill. Dec. 19, 2019) . . . . . . . . . . . . . . . . . . . . 36 Monroe v. Meeks, No. 18-cv-00156-NJR, 2020 WL 1048770 (S.D. Ill. Mar. 4, 2020) . . . . . . . . . . . . . . . . . . . . 36 Murillo v. Godfrey, No. 2:18-cv-02342-JGB-JC, 2020 WL 1139811 (C.D. Cal. Mar. 9, 2020) . . . . . . . . . . . . . . . . . . . 36 Ortiz v. Jordan, 562 U.S. 180 (2011). . . . . . . . . . . . . . . . . . . . . . . 31 Porter v. Crow, No. 18-CV-0472-JED-FHM, 2020 WL620284 (N.D. Okla. Feb. 10, 2020) . . . . . . . . . . . . . . . . . 36 Rhodes v. Chapman, 452 U.S. 337 (1981). . . . . . . . . . . . . . . . . . . . . . . 35 Woodcock v. Correct Care Solutions, LLC, No. 3:16-cv-00096-GFVT, 2020 WL 556391 (E.D. Ky. Feb. 4, 2020) . . . . . . . . . . . . . . . . . . . . 35 Constitutional Provisions U.S. Const. amend. VIII. . . . . . . . . . . . . . . . . . passim
Statutes 28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

x
Other Authorities William Byne et al., Report of the American
Psychiatric Association Task Force on Treatment of Gender Identity Disorder, 41 Archives of Sexual Behav. 759 (2012) . . . . . . . . . . . . . . . . 9, 24 California murder convict becomes first U.S. inmate to have state-funded sex reassignment surgery, L.A. TIMES (Jan. 6, 2017), https://www.latimes .com/local/lanow/la-me-ln-inmate-sexreassignment-20170106-story.html . . . . . . . . . 4, 5 CMS, DECISION MEMO FOR GENDER DYSPHORIA AND GENDER REASSIGNMENT SURGERY (Aug. 30, 2016), https://go.cms.gov/36yMrxX . . . . . 9, 23, 37 Anthony F. Granucci, “Nor Cruel and Unusual Punishment Inflicted:” The Original Meaning, 57 Cal. L. Rev. 839 (1969) . . . . . . . . . . . . . . . . . . . . 34 WPATH, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (7th ed. 2011) . . . . passim

1
OPINIONS BELOW The Ninth Circuit’s opinion is reported at 935 F.3d 757 (9th Cir. 2019) and is reprinted in the Appendix to the Petition (“App.”) at 53-146. The initial opinion of the district court is reported at 358 F. Supp. 3d 1103 (D. Idaho 2018) and reprinted at App. 152-202. The district court’s clarifying order on limited remand from the Ninth Circuit is unreported but available at 2019 WL 2319527 and is reprinted at App. 147-51.
JURISDICTION The Court of Appeals entered its judgment in this matter on August 23, 2019 and denied rehearing en banc on February 10, 2020. App. 1-5, 53-146. Ten circuit judges would have granted rehearing en banc. Id. 5-52. This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED This case involves U.S. Constitution Amendment VIII, which states “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
INTRODUCTION The Ninth Circuit held that prison psychiatrist Dr. Scott Eliason violated the Eighth Amendment’s prohibition against cruel and unusual punishments when he recommended treating inmate Adree Edmo’s gender dysphoria with hormone therapy and counseling but not sex reassignment surgery, a

2 controversial and uncommon procedure that, at the relevant time, had never before been performed in a prison setting and, to date, has only been performed once in a prison setting. The Ninth Circuit is the first circuit in the nation to reach this conclusion, which it did by adopting the guidelines of an advocacy group as the constitutional minima for the treatment of gender dysphoria, creating a conflict with the First, Fifth, Tenth, and Eleventh Circuits.
The Ninth Circuit’s decision also directly conflicts with this Court’s binding precedent. In Estelle v. Gamble, 429 U.S. 97 (1976), this Court clearly established that a provider’s mere negligence in treatment decisions does not violate the Eighth Amendment. But the Ninth Circuit applied a mere negligence standard to determine whether there was a constitutional violation here. And in Farmer v. Brennan, 511 U.S. 825 (1994), this Court clarified that a provider only acts with deliberate indifference to serious medical needs, the standard required to violate the Eighth Amendment, if he subjectively knows of and disregards an excessive risk to inmate health or safety. Yet the Ninth Circuit only considered Dr. Eliason’s reasoning in the context of finding his treatment decision unreasonable. The Ninth Circuit failed to evaluate whether Dr. Eliason knew his treatment decision was medically unacceptable, nor did it consider that Dr. Eliason was balancing the significant risk of sex reassignment surgery to Edmo with his informed treatment decision.
If left unchecked, the Ninth Circuit’s decision threatens to have an immediate detrimental and

3 destabilizing effect on prisons nationwide. It diminishes this Court’s deliberate indifference standard into a negligence determination that is controlled by the goals of advocacy groups and that places the federal judiciary in the role of a prison medical review committee, with grave consequences.
Ten Ninth Circuit judges would have granted Petitioners’ request for rehearing en banc based on the issues discussed in this petition. The petition for a writ of certiorari should be granted.
STATEMENT OF THE CASE A. Dr. Eliason treated Edmo for gender
dysphoria in prison; in 2016, he made the medical decision not to recommend sex reassignment surgery for Edmo. Dr. Scott Eliason is a board-certified psychiatrist who is experienced and trained in treating prisoners, including those with gender dysphoria. ER1 797 (Tr. 401:4-25), ER 802 (Tr. 406:3-6, 16-21), ER 816 (Tr. 420:8-13). He is the Regional Psychiatric Director for Corizon, a company that provides certain medical services for inmates in Idaho Department of Correction (“IDOC”) custody. App. 61 n.1; ER 797 (Tr. 401:3-4). In 2012, Dr. Eliason was assigned a new patient, Adree Edmo (who was then known as Mason Edmo), who had recently pled guilty to sexually assaulting a sleeping 15 year-old boy. App. 73; ER 1513. Well before
1 All citations to “ER” are to the Excerpt of Record filed in the Ninth Circuit by the Defendants-Appellants.

4 her 2012 incarceration, Edmo suffered from abuse, trauma, and profound mental illness and was repeatedly non-compliant with treatment. App. 75; ER 880, 882, 884-86. Edmo attempted suicide at least twice in the years prior to her arrest. App. 75; ER 602 (Tr. 206:14-16).
Dr. Eliason diagnosed Edmo with gender identity disorder, now known as gender dysphoria, in June 2012. App. 73. Shortly after, prison doctors started Edmo on hormone therapy. Id. 74. She now has the same circulating hormones and secondary sexual characteristics as an adult female. Id. 74-75. The hormones have “alleviate[ed] her gender dysphoria to some extent.” Id. 74.
Dr. Eliason and other prison providers also recommended that Edmo participate in mental health treatment and counseling to reduce her gender-related dysphoria and co-existing mental health conditions. Id. 75, 182. However, Edmo repeatedly refused to attend treatment and declined to fully participate in counseling, which the district court found “troubling.” Id.
Dr. Eliason met with Edmo regularly following her diagnosis. ER 811 (Tr. 415:4-12). In April 2016, Dr. Eliason evaluated Edmo for sex reassignment surgery. App. 76. At that time, no prisoner in the United States had ever received such a surgery.2
2 As of the 2018 evidentiary hearing, only one other prisoner in the U.S. had received sex reassignment surgery. ER 208 (Tr. 514:9-11), ER 1088 (Tr. 110:9-12); California murder convict becomes first

5
Dr. Eliason noted that Edmo reported she was “doing alright.” App. 76. Edmo reported that hormone therapy had improved her dysphoria, but she remained frustrated by her genitalia; she had attempted selfcastration months earlier. Id. Dr. Eliason correctly indicated in his charting that “Medical Necessity for Sexual Reassignment Surgery is not very well defined and is constantly shifting.” Id. 77; ER 1730. He noted that one indicator of medical necessity for sex reassignment surgery was “severe and devastating dysphoria that is primarily due to genitals[.]” App. 76. Dr. Eliason “did not see significant dysphoria” at his April 2016 evaluation of Edmo. Id. 76-77. “[I]nstead, she ‘looked pleasant and had a good mood.’” Id. 77. Dr. Eliason also spoke to prison staff, who confirmed Edmo had “animated affect and no observed distress.” Id. Dr. Eliason was concerned, in the absence of more severe distress, about the risks of pursuing the most aggressive—and permanent—gender dysphoria treatment: surgery. ER 1730; ER 189 (Tr. 495:10-12); ER 826-28 (Tr. 430:22-432:11); ER 229 (Tr. 535:1-13).
There were two additional reasons underlying Dr. Eliason’s decision.3 App. 78, 179. First, Dr. Eliason concluded that Edmo’s separate mental health conditions—including major depressive disorder and
U.S. inmate to have state-funded sex reassignment surgery, L.A. TIMES (Jan. 6, 2017), https://www.latimes.com/local/lanow/la-meln-inmate-sex-reassignment-20170106-story.html.
3 The Ninth Circuit suggested that these were post-hoc explanations, but the district court made no such finding and only determined that Dr. Eliason did not follow the advocacy group’s treatment guidelines. App. 118, 180.

6
substance abuse—were not adequately controlled. Id. 78. Dr. Eliason was concerned about Edmo’s ability to cope with the stressful process of the life-changing surgery and transition. ER 180-81 (Tr. 486:5-487:11); ER 237 (Tr. 543:1-11); ER 827-28 (Tr. 431:3-432:11).
Second, Dr. Eliason was concerned that Edmo had not yet had an opportunity to live as a woman in an out-of-prison social setting. App. 78. Dr. Eliason was aware of reports of high suicide rates for postoperative patients and concerned that Edmo might be at a greater risk of suicide given the potential lack of support from family, friends, and her social network during her transition. ER 827-28 (Tr. 431:3-432:11). He knew Edmo would be parole eligible in 2016 and would soon have the opportunity to live as a woman in her community before undergoing the irreversible procedure; Dr. Eliason was gravely concerned that “it was not doing Ms. Edmo any service to rush through getting gender reassignment surgery in that current social situation.”4 Id.; ER 180 (Tr. 486:6-13), ER 827 (Tr. 431:3-6); App. 179.
Prior to making a final decision, Dr. Eliason researched how entities like Medicare and Medicaid handled sex reassignment surgery and he sought input from providers and mental health colleagues with different backgrounds and viewpoints. ER 821 (Tr.
4 Edmo has not been granted parole due to her refusal to complete Sex Offender Treatment Programming and significant disciplinary history, which includes multiple offenses for assault, theft, and sexual contact. ER 3149-51; ER 1113 (Tr. 135:12-18); ER 3401. Edmo will complete her current sentence in July 2021 and will be released at that time. ER 626 (Tr. 230:2-10); ER 3401.

7 425:2-5), ER 823 (Tr. 427:20-24). Dr. Eliason staffed the evaluation with Dr. Jeremy Stoddart (for another psychiatric viewpoint) and Dr. Murray Young, Corizon’s Regional Medical Director (for a medical perspective), as well as Jeremy Clark, an IDOC clinical supervisor and member of the World Professional Association for Transgender Health (“WPATH”) (for a WPATH perspective). App. 77; ER 821 (Tr. 425:7-14); ER 717 (Tr. 321:17-22). He also presented the evaluation to the prison Management and Treatment Committee (“MTC”), a multi-disciplinary team of medical, mental health, and security professionals that regularly discusses how best to meet the unique needs of prisoners diagnosed with gender dysphoria. App. 78. There was universal agreement with Dr. Eliason’s treatment plan. Id. 77-78.
Ultimately, Dr. Eliason decided not to refer Edmo for sex reassignment surgery and to maintain the treatment that had already been helpful for Edmo, including hormone therapy and counseling. Id. He left the door open to revisit the decision. Id. To deter any future self-castration attempts, Dr. Eliason explained to Edmo the importance of having intact genitals for any future sex reassignment surgery. ER 818 (Tr. 422:21-24).
By September 2016, Dr. Eliason had stopped treating Edmo because she had moved off the Behavioral Health Unit. ER 798-99 (Tr. 402:22-403:5), ER 811 (Tr. 415:6-12), ER 186 (Tr. 492:21-493:3); ER 1759. Edmo continued to be monitored by the MTC and treated by other providers and clinicians. ER 186-87 (Tr. 492:21-493:3). Dr. Eliason reviewed her case in the

8
context of the MTC meetings, but he was never asked to reevaluate her for sex reassignment surgery. ER 187 (Tr. 493:3-9).
Edmo attempted self-castration for a second time in December 2016. App. 79. Dr. Eliason felt Edmo’s selfcastration attempts were reflective of her poor coping response to stressors, such as discipline, rather than indicia of an immediate need for sex reassignment surgery. ER 180-81 (Tr. 486:22-487:11). His informed medical opinion continues to be that if sex reassignment surgery is ever indicated, doing so “on the outside [of prison] would best suit Ms. Edmo.” ER 180 (Tr. 486:12-13).
B. Edmo filed a lawsuit alleging her treatment for gender dysphoria was constitutionally inadequate.
About a year after the 2016 evaluation, Edmo filed suit under 42 U.S.C. § 1983 against Dr. Eliason, the IDOC, Corizon, and several other prison medical providers and staff, alleging that the denial of sex reassignment surgery had, among other things, violated her Eighth Amendment right to be free from cruel and unusual punishment. App. 80. She filed a motion for a preliminary injunction to compel the provision of sex reassignment surgery. Id. 81.
In October 2018, following four months of discovery, the district court held an evidentiary hearing on the requested preliminary injunction. Id. Dr. Eliason, Clinician Clark, and Edmo testified at the hearing. Id. 82. Four expert witnesses also testified at the hearing. Id.

9
Edmo’s experts were Dr. Randi Ettner, a psychologist, and Dr. Ryan Gorton, an emergency room physician. Id. 82, 85. Both doctors are heavily involved in WPATH. Id. 82, 86.
WPATH is an advocacy organization dedicated to “developing best practices and supportive policies worldwide that promote health, research, education, respect, dignity, and equality for transsexual, transgender, and gender nonconforming people in all cultural settings.” ER 2938 (WPATH, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, 1 (7th ed. 2011) (“Standards”)). WPATH promulgates guidelines, which it calls “Standards of Care” (referred to herein as “Standards”), that provide treatment recommendations.5 See App. 66, 158.
The term “Standards of Care” is a misnomer. The WPATH Standards do not reflect accepted standards of care in the medical community. The Centers for Medicare and Medicaid Services (“CMS”) have refused to adopt them as controlling and at least one medical group has expressed concern regarding their scientific underpinnings. CMS, DECISION MEMO FOR GENDER DYSPHORIA AND GENDER REASSIGNMENT SURGERY (Aug. 30, 2016), https://go.cms.gov/36yMrxX; see also ER 54481 (William Byne et al., Report of the American Psychiatric Association Task Force on Treatment of
5 While Petitioners use the shorthand “Standards” to refer to the WPATH Standards to be consistent with the terminology used by the courts of appeal, they do not concede that the WPATH Standards equate with a medically-accepted and endorsed standard of care.

10 Gender Identity Disorder, 41 Archives of Sexual Behav. 759, 783 (2012)). Even WPATH itself states that the Standards are intended to be “flexible clinical guidelines” from which providers may deviate. App. 68.
The WPATH Standards set forth six suggested criteria for male-to-female sex reassignment surgery:
(1) persistent, well documented gender dysphoria;
(2) capacity to make a fully informed decision and to consent for treatment;
(3) age of majority. . .; (4) if significant medical or mental health
concerns are present, they must be well controlled; (5) 12 continuous months of hormone therapy as appropriate to the patient’s gender goals; and (6) 12 continuous months of living in a gender role that is congruent with their gender identity. Id. 70-71 (quoting Standards at 60 (ER 2997)) (internal quotation marks omitted). Dr. Ettner and Dr. Gorton testified that, in their opinions, Edmo needed sex reassignment surgery, in part, because she met the suggested criteria for sex reassignment surgery in the Standards and because she was unlikely to have further improvement in her gender dysphoria without surgery. Id. 83-87. Defendants’ experts were Dr. Keelin Garvey, M.D., the former Chief Psychiatrist of the Massachusetts

11
Department of Correction (MADOC) and Chair of its Gender Dysphoria Treatment Committee, and Dr. Joel Andrade, Ph.D., a clinical social worker who served as MADOC’s Clinical Director and member of the same Gender Dysphoria Treatment Committee. Id. 88, 90.
Dr. Garvey and Dr. Andrade disagreed with Edmo’s experts. Dr. Garvey testified that she did not regard the WPATH Standards as definitive treatment criteria, let alone reflective of medical consensus. ER 225-28 (Tr. 531:5-534:7). She testified the evidence underlying the Standards was not sufficiently developed, particularly as to the treatment of gender dysphoric prisoners. Id. Dr. Garvey opined Dr. Eliason had used “his clinical judgment to apply decision-making[.]” ER 221 (Tr. 527:5-7).
Both Dr. Garvey and Dr. Andrade agreed with Dr. Eliason that sex reassignment surgery was not appropriate for Edmo. App. 89-92. They raised concerns that she would have problems transitioning after surgery because her co-existing mental health concerns were not well controlled. Id. And they were concerned that she had not yet lived as a woman outside of prison, meaning that she did not yet know if she and her social network were ready for the post-surgery challenges. Id.
C. The district court issued an injunction ordering Idaho to provide Edmo with sex reassignment surgery.
The district court analyzed the evidence in the context of a motion for preliminary injunction. See App. 184-86.

12
In analyzing Edmo’s likelihood of success on the merits, the district court first looked at whether sex reassignment surgery was medically necessary for Edmo. Id. 191-95. As a critical threshold issue, the district court found the WPATH Standards to be the standard of care for the treatment of gender dysphoria in incarcerated patients. Id. 191. Using the Standards as its touchstone, the district court found the State’s experts “unconvincing” and gave their opinions “virtually no weight.” Id. 191-95. The district court then found the “Defendants” as a whole had been deliberately indifferent to Edmo’s medical needs (focusing on findings it felt suggested bias by IDOC and Corizon against providing sex reassignment surgery). Id. 195-97.
The district court never found or concluded that Dr. Eliason himself was deliberately indifferent, nor did it find that Dr. Eliason was not credible. See id. 156-200. The district court’s only conclusion specific to deliberate indifference by Dr. Eliason was that, in the court’s view, he “did not apply the WPATH criteria” or his evaluation “failed to accurately apply the WPATH” guidelines. Id. 195. The district court granted Edmo’s motion for preliminary injunction and ordered Defendants to provide Edmo with sex reassignment surgery. Id. 201. In a footnote, the district court suggested it had “effectively converted” the evidentiary hearing into a final trial on the merits. Id. 185-86 n.1.
D. The Ninth Circuit panel affirmed the injunction issued by the district court.
The Defendants timely appealed the district court’s decision to the Ninth Circuit. Before issuing its opinion,

13
the panel remanded the case to the district court on the limited question of whether the injunction was preliminary or permanent. Id. 147-48. In response, the district court issued an order stating it had granted permanent injunctive relief and that it had found Edmo succeeded on the merits of her Eighth Amendment claim. Id. 149-51.
Three months later, the Ninth Circuit panel issued its opinion affirming the district court’s finding that Dr. Eliason violated Edmo’s Eighth Amendment rights and the order instructing Idaho prison officials to provide Edmo with sex reassignment surgery. Id. 13132, 145.6
The Ninth Circuit applied the following test to determine whether there was deliberate indifference: (1) whether “the course of treatment the [official] chose was medically unacceptable under the circumstances” and (2) whether “the [official] chose this course in conscious disregard of an excessive risk to the plaintiff’s health.” Id. 105-06.
To answer the first question, the Ninth Circuit affirmed the district court’s expert credibility determinations, using compliance with the WPATH Standards as its touchstone. Id. 107-08, 111-16 (“the
6 The panel reversed and vacated the injunction as to all Defendants named in their individual capacities, other than Dr. Eliason, as there was insufficient evidence to conclude they were deliberately indifferent. App. 136. The panel affirmed the injunction against several IDOC officials named in their official capacities whom the panel held would be responsible for implementing the injunction. Id. 135-36.

14 district court did not err in crediting the opinions of Edmo’s experts over those of the State because aspects of Dr. Garvey’s and Dr. Andrade’s opinions ran contrary to the established standards of care in the area of transgender health care—the WPATH Standards”). The panel approved the district court’s decision to “credit[] the opinions of Edmo’s experts” because it agreed their testimony was the most consistent with the WPATH Standards. Id. 111-16. And it refused to give any deference to the judgment of the prison doctors. Id. 106. With that baseline, the panel concluded the “credited expert testimony established that [sex reassignment surgery] is medically necessary to alleviate Edmo’s gender dysphoria.” Id. 116.
The panel then held that Dr. Eliason’s decision not to recommend sex reassignment surgery was unreasonable because he “did not follow” or “reasonably deviate” from the WPATH Standards. Id. 117-21 (“Dr. Eliason did not follow accepted standards of care in the area of transgender health care . . . . [The criteria he applied bore] little resemblance to the widely accepted, evidence-based criteria set out in the WPATH’s Standards . . . “; “Dr. Eliason’s criteria . . . are so far afield from the WPATH standards that we cannot characterize his decision as a flexible application of or deviation from those standards.”). The panel discounted the agreement of Dr. Stoddart, Dr. Young, and Clinician Clark and the MTC with Dr. Eliason’s assessment because “general agreement in a medically unacceptable form of treatment does not somehow make it reasonable.” Id. 121 n.18.

15
In applying the second part of its test—whether the treatment was chosen in conscious disregard to an excessive risk to Edmo’s health—the panel held that Dr. Eliason was deliberately indifferent simply because he “knew . . . that Edmo had attempted to castrate herself” and “continued with Edmo’s . . . treatment plan” and he knew of Edmo’s second attempt at selfcastration in December 2016 but did not “change his mind or the treatment plan regarding surgery.” Id. 121-22. The panel did not discuss whether Dr. Eliason knew his treatment decision was medically unacceptable, nor did it consider that Dr. Eliason stopped being Edmo’s treating physician prior to Edmo’s second self-castration attempt. Further, the panel did not consider that Dr. Eliason took steps to avert the risk of self-castration, or that Dr. Eliason’s treatment decision was the result of his effort to balance multiple risks to Edmo’s well-being.
E. The Ninth Circuit denied Defendants’ request for rehearing en banc, despite the disagreement of ten circuit judges.
The Defendants timely petitioned for rehearing en banc, but the Ninth Circuit denied the petition. Id. 5.
Judge O’Scannlain, joined by eight other judges, opined in a statement respecting the denial of rehearing en banc that the panel first erred in analyzing what it meant for medical treatment to be “unacceptable” under the Eighth Amendment by (1) defining “constitutionally acceptable medical care” by the “standards of one organization”; (2) adopting the guidelines of “a controversial self-described advocacy group that dresses ideological commitments as

16 evidence-based conclusions”; and (3) failing to recognize the case was one of “dueling experts.” Id. 16. Even if this were not error, Judge O’Scannlain continued, the panel erred in its deliberate indifference inquiry by disregarding risks that Dr. Eliason addressed and by fixating on just one risk when Dr. Eliason made a considered treatment choice in a complex situation that he believed “would mitigate overall risk.” Id. 30 (emphasis omitted). Judge O’Scannlain warned that the panel’s approach had created a circuit split. Id. 32.
Judge Collins dissented from the denial of rehearing en banc, opining that the panel failed to apply this Court’s binding precedent in Estelle v. Gamble by watering the analysis down to a “mere negligence” test. Id. 37-38.
Finally, Judge Bumatay, joined by five other judges in full and six in part, also dissented from rehearing en banc, and opined that Dr. Eliason’s conduct was not a violation of the Eighth Amendment based on the text and original understanding of the Constitution because of the yet unproven, contested, and evolving nature of the WPATH Standards, the lack of medical consensus, and the particular circumstances of the case. Id. 38-47. Judge Bumatay further maintained that the panel’s decision had departed from this Court’s precedent by diluting the deliberate indifference standard to mere negligence and erasing the subjective component of the deliberate indifference standard through circular reasoning. Id. 47-52.

17
REASONS FOR GRANTING THE PETITION I. Certiorari is warranted on the First Question
Presented. The Ninth Circuit elevated the WPATH Standards to constitutional canon and found Dr. Eliason deliberately indifferent merely because he did not adhere to the advocacy organization’s guidelines. As Judge O’Scannlain, joined by eight other judges, identified, the Ninth Circuit’s “novel approach . . . conflicts with every other circuit to consider the issue.” App. 32. The Ninth Circuit’s decision also conflicts with this Court’s precedent, which established that the views of professional organizations and special interest groups do not set constitutional requirements for prison conditions. See Bell v. Wolfish, 441 U.S. 520 (1979). This Court should grant certiorari to resolve the circuit split and to issue a definitive answer to this important question. A. The Ninth Circuit’s adoption of guidelines
set by an advocacy organization creates a circuit split with the First, Fifth, Tenth, and Eleventh Circuits. Five courts of appeals have directly addressed the question of what constitutes cruel and unusual punishment in the context of gender dysphoria treatment in prison. Four of those courts, the First, Fifth, Tenth, and Eleventh Circuits, have rejected efforts to chain the determination of whether prison officials and providers acted with deliberate indifference to an inmate’s serious medical needs to their adherence to the treatment guidelines set by the

18
advocacy organization WPATH and its predecessors. The Ninth Circuit stands alone.
1. As Judge O’Scannlain explained, the Ninth Circuit “enshrine[d] the WPATH Standards as an enforceable ‘medical consensus,’ effectively putting an ideologically driven private organization in control of every relationship between a doctor and a gender dysphoric prisoner within [the Ninth] circuit.” App. 36. The Ninth Circuit held that prison psychiatrist Dr. Eliason was deliberately indifferent because, it concluded, Dr. Eliason’s medical decision not to recommend sex reassignment surgery did not follow or “reasonably deviate” from the WPATH Standards. Id. 117-22. The Ninth Circuit reached its conclusion by affirming the district court’s decision to discount any testimony that did not adhere to the WPATH Standards. Id. 108-17. To quote Judge O’Scannlain, “[b]y rejecting any expert not (in the court’s view) appropriately deferential to WPATH, the district court and . . . the panel . . . effectively decided ab initio that only the WPATH Standards could constitute [constitutionally] . . . acceptable treatment.”7 App. 1920.
7 The panel incorrectly stated that the parties agreed that the appropriate benchmark for treatment of gender dysphoria was the WPATH Standards. See App. 61. Defendants never contended or admitted that prison medical providers were required to base their treatment decisions on the WPATH Standards. See id. 20 n.6 (“[B]efore the district court and before our court, the State clearly rejected the notion that any particular treatment criteria defines what is medically acceptable[.]”). In fact, Defendants presented evidence of significant deficiencies in the WPATH Standards. See ER 225-28 (Tr. 531:3-534:7), ER 544-81.

19 2. The Ninth Circuit’s decision is in direct conflict with the decisions of the First, Fifth, Tenth, and Eleventh Circuits, which have declined to adopt the advocacy organization’s guidelines as the constitutional minima for medical treatment under the Eighth Amendment. Just months before the Ninth Circuit issued its decision, the Fifth Circuit held it could never be deliberate indifference to deny sex reassignment surgery as treatment for gender dysphoria. In Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019), cert. denied, 140 S. Ct. 653 (2019), the Fifth Circuit rejected a transgender inmate’s argument, which relied exclusively on the WPATH Standards, that prison doctors were deliberately indifferent when they denied the inmate’s request for sex reassignment surgery. Id. at 218, 221-23. Unlike the Ninth Circuit, the Fifth Circuit refused to conclude the advocacy organization’s guidelines were constitutional mandates, stating “the WPATH Standards . . . reflect not consensus, but merely one side in a sharply contested medical debate over sex reassignment surgery.” Id. at 221. “The [Fifth Circuit] panel majority . . . wasn’t prepared to accept the [WPATH] Standards as authoritative.” Campbell v. Kallas, 936 F.3d 536, 547 n.3 (7th Cir. 2019) (citing Gibson, 920 F.3d at 221-24). The Ninth Circuit has acknowledged that “its decision is in tension” with the Fifth Circuit’s decision. App. 125. Similarly, in Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014), cert. denied, Kosilek v. O’Brien, 135 S. Ct. 2059 (2015), the First Circuit rejected the argument that the “only constitutionally sufficient treatment

20
regimen [was] to adhere to the Standards of Care’s [treatment] sequence in full, including the provision of [sex reassignment surgery].”8 Id. at 86. There, a transgender inmate with gender dysphoria (then called gender identity disorder) was treated with conservative therapies, including mental health therapy and hormones, but she was denied sex reassignment surgery. Id. at 68-74. Like the district court here, the district court in Kosilek discounted the evidence of the providers who did not adhere to its interpretation of the WPATH Standards. Id. at 76-77, 81, 87-88. For example, the trial court refused to credit the prison’s expert psychiatrist’s testimony in large part because he did not “follow” the guidelines that preceded the WPATH Standards. Id. at 76-77, 81, 87-88. Unlike the Ninth Circuit, the First Circuit deemed this error, concluding that the district court put too much “weight” on the WPATH Standards and substituted its own beliefs for multiple medical experts. Id. at 87-88. The First Circuit ultimately “held that medically acceptable treatment of gender dysphoric prisoners is not synonymous with the demands of WPATH.” App. 33.
The Tenth Circuit has also twice refused to adopt the WPATH Standards as constitutionally mandated. In Lamb v. Norwood, 262 F. Supp. 3d 1151, 1156-57 (D. Kan. 2017), an inmate claimed that prison medical
8 In Kosilek, the court was asked to apply an earlier version of the Standards issued by WPATH’s predecessor, the Harry Benjamin International General Dysphoria Association. See Kosilek, 774 F.3d at 70 n.3. The treatment options in the earlier version of the Standards are essentially the same as the version of the WPATH Standards at issue here. Id. at 70 n.4; App. 68-69.

21 providers and officials violated “her Eighth Amendment rights by treating her in a manner that [fell] short of WPATH standards” and that she was entitled to a number of gender dysphoria treatments, including sex reassignment surgery. Contrary to this case, the district court concluded that the prison medical provider’s medical judgment that weighed the costs and benefits of sex reassignment surgery against more conservative therapies precluded a finding of deliberate indifference, in spite of the provider’s deviation from the WPATH Standards. Id. at 1157-59. The Tenth Circuit affirmed, implicitly adopting the district court’s refusal to enshrine the WPATH Standards as constitutional minima. See Lamb v. Norwood, 899 F.3d 1159, 1163 (10th Cir. 2018), cert. denied, 140 S. Ct. 252 (2019). Moreover, three years prior, the Tenth Circuit, in an unpublished opinion, affirmed the district court’s denial of a preliminary injunction sought by an inmate ordering the prison defendants to raise her hormone levels to the levels recommended by the WPATH Standards. See Druley v. Patton, 601 Fed. App’x 632, 633 (10th Cir. 2015). The Tenth Circuit concluded that simple deviation from the WPATH Standards, without more, was insufficient to even demonstrate a substantial likelihood of success on the merits of the deliberate indifference claim. Id. at 635.
Most recently, the Eleventh Circuit similarly refused to find that the WPATH Standards set the constitutional minima for medical care for transgender inmates. In Keohane v. Florida Department of Corrections Secretary, 952 F.3d 1257 (11th Cir. 2020), a transgender inmate diagnosed with gender dysphoria

22
sought social transitioning—“in particular, to wear long hair, makeup, and female undergarments.” Id. at 1262. Just like the district court here, the district court in Keohane erroneously refused to credit medical testimony that did not follow the WPATH Standards. See Keohane v. Jones, 328 F. Supp. 3d 1288, 1312 (N.D. Fla. 2018). It found deliberate indifference, in part, because the prison did not apply the WPATH Standards. Id. at 1316. The Eleventh Circuit rejected the district court’s reasoning, implicitly concluding that the failure to adhere to the WPATH Standards did not render the denial of sex reassignment surgery cruel and unusual punishment. Keohane, 952 F.3d at 1277, 1278 n.15. The dissent pointed out the split with the Ninth Circuit, citing the Ninth Circuit’s decision for the proposition that other courts “have found” the WPATH Standards “authoritative for treating gender dysphoria in prison” and using the Ninth Circuit’s decision to “highlight[] the ways the majority ha[d] gone wrong.” Id. at 1296, 1300 (Wilson, J., dissenting) (citations omitted).
The above decisions demonstrate that a clear circuit split exists as to whether an advocacy organization’s guidelines constitute constitutional mandates.
B. The Ninth Circuit’s adoption of guidelines set by an advocacy organization conflicts with this Court’s precedents.
The Ninth Circuit’s decision to adopt the guidelines of an advocacy organization as the constitutional minima for prison medical care also conflicts with this Court’s precedent. In Bell v. Wolfish, this Court refused to adopt the correctional standards issued by various

23 advocacy and special interest groups as constitutional requirements for the purposes of an Eighth Amendment challenge to the space provided to pretrial detainees. 441 U.S. at 543 n.27. “[R]ather, they establish goals recommended by the organization in question.” Id.
This Court’s reasoning compels the conclusion that the WPATH Standards similarly do not establish the constitutional requirements for the treatment of inmates with gender dysphoria. WPATH is “an advocacy group for the transgendered” and the Standards are “not a politically neutral document.” Kosilek, 774 F.3d at 78. As the Fifth and First Circuits have recognized, “the WPATH Standards . . . reflect not consensus, but merely one side in a sharply contested medical debate over sex reassignment surgery.” Gibson, 920 F.3d at 221 (discussing the First Circuit’s conclusions in Kosilek). Reflective of this, CMS declined to adopt the WPATH Standards due to inadequate scientific backing. CMS, DECISION MEMO FOR GENDER DYSPHORIA AND GENDER REASSIGNMENT SURGERY (Aug. 30, 2016), https://go.cms.gov/36yMrxX.
Judge O’Scannlain correctly identified that “[t]he pressure to be advocates appears to have won the day in the WPATH Standards’ recommendations regarding institutionalized persons,” as demonstrated by the fact that WPATH recommends sex reassignment surgery for inmates who have no experience living as their chosen gender outside of prison despite the “totally undeveloped” “medical knowledge about how such surgery might differ [for incarcerated persons].” App. 22. The evidentiary basis for the WPATH Standards is

24
insufficient to justify constitutionally mandated compliance. For example, the Standards “lack the evidence-based grading system that characterizes archetypal treatment guidelines[.]” Id. 23-24 (citing William Byne et al., Report of the American Psychiatric Association Task Force on Treatment of Gender Identity Disorder, 41 Archives of Sexual Behav. 759, 783 (2012) (concluding that “the level of evidence” supporting WPATH Standards’ criteria for sex reassignment surgery “was generally low”)).
This Court should grant certiorari to resolve the circuit split as to whether an advocacy group’s aspirations for medical treatment set constitutional requirements for medical treatment in prison and to clarify that the principle established in Bell holds in the context of medical treatment for prisoners. II. Certiorari is warranted on the Second
Question Presented. This Court should also grant certiorari because the Ninth Circuit’s decision stands in direct defiance of Estelle v. Gamble and Farmer v. Brennan. Estelle definitively established that mere medical negligence cannot amount to deliberate indifference, and Farmer definitively established that deliberate indifference has a subjective component. The Ninth Circuit’s decision contravenes both principles and therefore warrants review by this Court.

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A. The Ninth Circuit’s deliberate indifference analysis conflicts with Estelle v. Gamble by imposing liability for what could, at most, be mere medical negligence.
As Judge Bumatay, joined by six other judges, and Judge Collins identified in their dissents to the denial of rehearing en banc, the Ninth Circuit disregarded this Court’s precedent in Estelle by watering down Estelle’s deliberate indifference standard into a “mere negligence” test. App. 37, 51. The Ninth Circuit’s decision is squarely in conflict with Estelle.
1. In Estelle, the Court held that deliberate indifference by prison doctors in responding to the serious medical needs of prisoners was proscribed by the Eighth Amendment. Estelle, 429 U.S. at 104 (citation omitted). However, the Court held, “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Id. at 106. The “inadvertent failure to provide adequate medical care” is not “an unnecessary and wanton infliction of pain” or “repugnant to the conscience of mankind.” Id. at 10506.
In the years since Estelle and later Farmer v. Brennan (discussed further below), this Court has repeatedly reaffirmed that mere negligence, inadvertence or good-faith error cannot establish deliberate indifference. See Hope v. Pelzer, 536 U.S. 730, 738 (2002); Minneci v. Pollard, 565 U.S. 118, 130 (2012) (“[T]o show an Eighth Amendment violation a prisoner must typically show that a defendant acted,

26 not just negligently, but with ‘deliberate indifference.’” (Citation omitted.)); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73 (2001) (discussing how the heightened deliberate indifference standard set by Estelle and Farmer “would make it considerably more difficult for respondent to prevail than on a theory of ordinary negligence”).
The facts of the Estelle decision demonstrate how deliberate indifference differs from ordinary negligence. There, the inmate was treated for a back injury by multiple doctors and with multiple modalities. Estelle, 429 U.S. at 107. Yet, he contended additional treatment should have been provided and that his condition had worsened absent that treatment. Id. at 107; id. at 109 (Stevens, J., dissenting). The court of appeals agreed, concluding that additional testing could have led to an appropriate diagnosis and treatment. Id. at 107. But this Court disagreed, holding that “[a] medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most, it is medical malpractice[.]” Id. Whether additional “forms of treatment is indicated is a classic example of a matter of medical judgment.” Id. Treatment decisions derived from an exercise of medical judgment do not amount to cruel and unusual punishment. Id.
2. Contrary to Estelle, the Ninth Circuit found deliberate indifference based solely on Dr. Eliason’s decision not to recommend the course of treatment that the district court and the panel found preferable. App. 106-24. Dr. Eliason recommended treating Edmo with hormone therapy and counseling, but, based on his

27
medical judgment, Dr. Eliason did not recommend sex reassignment surgery. Id. 76-78, 176-79. At worst, Dr. Eliason made a mistaken judgment; Estelle teaches that this is not cruel and unusual punishment.
At the time of his 2016 evaluation, Dr. Eliason concluded in his chart note that the medical necessity for sex reassignment surgery was “not very well defined and [was] constantly shifting[.]”9 Id. 77. He noted that hormone therapy had resulted in an improvement in Edmo’s gender dysphoria and that she did not exhibit significant distress. Id. 76-77. He, joined by other clinicians and mental health staff, felt Edmo had other mental health conditions that were not well controlled and which were not sufficiently stabilized to handle the life-changing surgery. Id. 75, 78, 178. Given that Edmo would soon be parole eligible, Dr. Eliason strongly believed that it was in Edmo’s best interests to wait until she had experience living as a woman outside of prison before deciding to undergo surgery. Id. 179; ER 827-28 (Tr. 431:3-432:11), ER 180 (Tr. 486:6-13). Dr. Eliason researched how other organizations handled the issue and consulted with multiple professionals with multiple backgrounds, who universally agreed with his assessment. ER 821 (Tr. 425:2-5), ER 823 (Tr. 427:20-24); App. 77-78, 177. Dr. Eliason’s medical judgment was also supported by
9 Sex reassignment surgery is so controversial and the medical necessity and efficacy of the procedure so disputed that the Fifth Circuit has held that the Eighth Amendment does not require the performance of the procedure in any circumstance. Gibson, 920 F.3d at 223; see also Kosilek, 774 F.3d at 79 (noting “the treatment of [gender dysphoria] [is] an evolving field, in which practitioners could reasonably differ in their preferred treatment methods”).

28
expert testimony and studies. See, e.g., ER 221 (Tr. 527:5-7).
In short, Dr. Eliason arrived at an individualized medical judgment that analyzed the risks inherent in the potential treatments available and decided that the conservative approach was most appropriate for Edmo’s particular circumstances. He also took action to investigate the risk of self-harm by Edmo and took action to mitigate it. ER 818 (Tr. 422:21-24). Yet, because the courts found Dr. Eliason deviated from the controversial WPATH Standards, the Ninth Circuit affirmed the finding that Dr. Eliason was deliberately indifferent.
In so doing, the Ninth Circuit replicated the mistake from the Estelle decision. As Judge Collins recognized, the Ninth Circuit did just what Estelle proscribed: “by narrowly defining the range of ‘medically acceptable’ options that the court believe[d] a prison doctor may properly consider in a case such as this one, and by then inferring deliberate indifference from Dr. Eliason’s failure to agree with that narrow range, the district court and the panel . . . applied standards that look much more like negligence than deliberate indifference.” App. 37-38 (citation omitted). At bottom, the Ninth Circuit analyzed the reasonableness of Dr. Eliason’s decision. This amounts to a negligence standard and is foreclosed by this Court’s decision in Estelle.
That the Ninth Circuit actually applied a negligence standard is confirmed by the court’s repeated express references to reasonableness. See, e.g., App. 120 (Dr. Eliason did not “reasonably deviate from” the WPATH

29 Standards), 121 n.18 (the Ninth Circuit discounted the agreement of Dr. Stoddart, Dr. Young, Clinician Clark and the MTC with Dr. Eliason’s assessment with the statement that “general agreement in a medically unacceptable form of treatment does not somehow make it reasonable” (emphasis added)), 129 n.19 ( “By choosing to rely upon a medical opinion which a reasonable person would likely determine to be inferior, the prison officials took actions which may have amounted to . . . the unnecessary and wanton infliction of pain.” (Emphasis added) (internal quotation marks omitted)).
The decisions of the First, Tenth, and Eleventh Circuits discussed above illustrate how grievously the Ninth Circuit deviated from this Court’s precedent. These decisions adhered to Estelle by requiring more than just negligence to find deliberate indifference. As the First Circuit explained, “[t]he law is clear that where two alternative courses of medical treatment exist, and both alleviate negative effects within the boundaries of modern medicine, it is not the place of our court to ‘second guess medical judgments’ or to require that the [Department of Correction] adopt the more compassionate of two adequate options.” Kosilek, 774 F.3d at 90 (citations omitted); see also Keohane, 952 F.3d at 1277-78 (holding that arguably subpar medical care provided to an inmate by prison providers who did not have particularized experience or training in treatment for gender dysphoria did not violate the Eighth Amendment); Lamb, 899 F.3d at 1162 (finding no deliberate indifference when the prison provider exercised his medical judgment to determine a course of treatment).

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The Ninth Circuit’s disregard of this Court’s binding precedent in Estelle warrants the requested grant of certiorari.
B. The Ninth Circuit’s deliberate indifference analysis conflicts with Farmer v. Brennan by ignoring the subjective component of deliberate indifference.
The Ninth Circuit’s decision also squarely conflicts with the Court’s seminal decision in Farmer, as multiple judges identified in the statement and dissents from the denial of rehearing en banc. App. 2829, 48-50.
1. In Farmer, the Court clarified the subjective component of deliberate indifference: a prison official only acts with deliberate indifference when “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837 (emphasis added). The course of treatment must have been criminally reckless or worse. Id. at 839-40. Anything less, such as “an official’s failure to alleviate a significant risk that he should have perceived but did not, . . . cannot under our cases be condemned as the infliction of punishment.” Id. at 838.
For this reason, deliberate indifference cannot solely be “premised on obviousness or constructive notice.” Id. at 841 (citation omitted). To support a finding of deliberate indifference based on an obvious risk, there must have been strong evidence suggestive of risk

31 available to the provider and the provider must have deliberately refused to confirm it. Id. at 842-43 n.8. “It is not enough merely to find that a reasonable person would have known, or that the defendant should have known[.]” Id.
This Court has affirmed that Farmer’s deliberate indifference standard is still good law. See Ortiz v. Jordan, 562 U.S. 180, 190 (2011) (restating Farmer’s articulation of the deliberate indifference standard and noting that Farmer’s deliberate indifference standard was not in controversy).
2. The deliberate indifference analysis that the Ninth Circuit employed plainly contradicts this binding precedent. As Judge Bumatay, joined by six other judges, identified, “the panel’s analysis effectively erases the subjective deliberate indifference requirement with its circular reasoning.” App. 50.
Neither the district court nor the panel examined whether Dr. Eliason subjectively knew he was making a medically unacceptable choice.10 The district court’s sole conclusion related to Dr. Eliason’s subjective deliberate indifference was that Dr. Eliason failed to apply the WPATH criteria. Id. 195. Implicitly acknowledging the insufficiency of this analysis, the Ninth Circuit applied a different (also insufficient) analysis that analyzed Dr. Eliason’s reasoning only in the context of concluding that Dr. Eliason made a subpar medical choice. See id. 117-22. The Ninth Circuit did not conclude that Dr. Eliason was
10 There is not a single explicit finding in the district court’s opinion as to Dr. Eliason’s state of mind. App. 195-97.

32 deliberately indifferent because he knew that the only appropriate treatment for Edmo was sex reassignment surgery, nor did it conclude that Dr. Eliason deliberately avoided that knowledge. Id. 121-22. “Such an approach is particularly troublesome because” it infers deliberate indifference “solely from a finding of a ‘medically unacceptable’ treatment.” Id. 51.
Second, the Ninth Circuit concluded its analysis by finding that Dr. Eliason knew there was a risk of selfcastration and dysphoria inherent in the course of treatment he had chosen. Id. 121-22. But as Judge O’Scannlain correctly pointed out, the Ninth Circuit fixated on just one risk when Dr. Eliason made a considered treatment choice in a complex situation that he believed “would mitigate overall risk.” Id. 30. As discussed above, Dr. Eliason made an informed medical decision to opt for a more conservative approach to treating Edmo’s gender dysphoria in light of Edmo’s particular circumstances. As to the risk of selfcastration, he considered this risk, he took steps to avert further self-castration attempts, and he continues to believe Edmo, as a whole person, would be best served by undergoing surgery after her release.
Despite the Ninth Circuit’s fig-leaf citation to Farmer, the standard the Ninth Circuit actually applied was, at most, the very “should have known” negligence standard that this Court explicitly rejected in Farmer. Farmer, 511 U.S. at 843 n.8. As Judge Bumatay warned, “the ultimate effect of the panel’s analysis is to dilute the heightened, subjective culpability required for deliberate indifference, into

33
mere negligence[.]” App. 51-52 (first citing Farmer, 511 U.S. at 839-40; then citing Estelle, 429 U.S. at 105-06).
Again, the decisions by other circuits that have adhered to this Court’s precedent demonstrate how badly the Ninth Circuit erred. As the First Circuit has aptly stated, “a later court decision—ruling that the prison [officials] were wrong in their estimation of the treatment’s reasonableness—does not somehow convert that choice into one exhibiting the sort of obstinacy and disregard required to find deliberate indifference.” Kosilek, 774 F.3d at 92 (citation omitted); see also Druley, 601 Fed. App’x. at 635 (rejecting a gender dysphoric inmate’s argument that her constitutional rights would be violated if she was not treated with the hormone levels suggested by WPATH because the inmate presented no evidence that the defendants “failed to consider the WPATH’s flexible guidelines, failed to make an informed judgment as to the hormone levels appropriate for her, or otherwise deliberately ignored her serious medical needs”).
The Ninth Circuit’s disregard of this Court’s binding precedent in Farmer separately warrants review.
C. The Questions Presented involve recurring issues of national importance.
This petition raises questions of vital importance to prison systems, medical and mental health providers, administrators, governments, and inmates nationwide.
Under the Ninth Circuit’s interpretation, the views of advocacy organizations and judicial post-hoc determinations of optimal treatment are enough to establish an Eighth Amendment violation. This

34 amounts to a deeply troubling expansion of the Eighth Amendment’s Cruel and Unusual Punishments clause. “[T]he primary concern of the drafters [of the Eighth Amendment] was to proscribe ‘torture(s)’ and other ‘barbar(ous)’ methods of punishment.” Estelle, 429 U.S. at 102 (quoting Anthony F. Granucci, “Nor Cruel and Unusual Punishment Inflicted:” The Original Meaning, 57 Cal. L. Rev. 839, 842 (1969)). While this Court has recognized that the Amendment proscribes more than just barbarous treatment, the Eighth Amendment still does not prohibit mere negligence and medical malpractice.
Yet, if the Ninth Circuit’s decision is allowed to stand, inmates will be free to pursue state-law negligence claims disguised as constitutional claims. This will not just contravene the fundamental holdings in Estelle and Farmer, but it will allow inmates an endrun around the state-law tort claim requirements that govern every other litigant. Qualified medical professionals will be deterred from working in prisons by the constant threat of litigation.
Further, the Ninth Circuit’s analysis impermissibly inserts the federal courts into the day-to-day treatment decisions of prison medical and mental health providers, who are already tasked with the very challenging job of treating prisoners experiencing complex and co-existing health conditions within the prison environment. Despite this Court having stressed that judicial inquiries into cruel and unusual punishment claims “spring from constitutional requirements and . . . judicial answers to them must reflect that fact rather than a court’s idea of how best

35 to operate a detention facility,” the federal judiciary now holds the role of prison medical committee in the Ninth Circuit. Rhodes v. Chapman, 452 U.S. 337, 351 (1981) (quoting Bell, 441 U.S. at 539).
The Ninth Circuit’s flawed analysis will affect prison medical care claims in all contexts. For example, similar arguments are playing out across the nation in the context of treatment for Hepatitis C in prisons, where inmates are arguing that the guidelines set by the American Association for the Study of Liver Disease and Infectious Disease Society of America set the constitutional requirements for the treatment of their condition. See, e.g., Atkins v. Parker, 412 F. Supp. 3d 761, 782 (M.D. Tenn. 2019); Woodcock v. Correct Care Solutions, LLC, No. 3:16-cv-00096-GFVT, 2020 WL 556391, at *5-6 (E.D. Ky. Feb. 4, 2020).
The Ninth Circuit’s decision threatens to have a detrimental and destabilizing effect on the administration of prisons in other ways. This Court, as well as the First and Eleventh Circuits, have acknowledged that the medical treatment provided to inmates, particularly transgender inmates, impacts the administration of prisons. See Farmer, 511 U.S. at 84849 (summarizing evidence that a prison’s refusal to provide segregated housing to a pre-operative male-tofemale transsexual could pose significant safety concerns); Kosilek, 774 F.3d at 93 (“[r]ecognizing that reasonable concerns would arise regarding a postoperative, male-to-female transsexual being housed with male prisoners takes no great stretch of the imagination”); Keohane, 952 F.3d at 1275 (“an inmate dressed and groomed as a female would inevitably

36
become a target for abuse in an all-male prison”). By constitutionalizing a right to controversial medical treatments with complex practical ramifications, the Ninth Circuit has tied the hands of prison providers and administrators.
Even if the import of this case were limited to the treatment of gender dysphoria in prison (and it is not), the issue of constitutionally appropriate treatment for gender dysphoric inmates is arising with increasing frequency across the country. The First Circuit addressed this question in 2014 and, in just the last two years, four more courts of appeals have faced this question. The issue continues to reoccur. Subsequent to the Ninth Circuit’s decision alone, the district courts have seen a flurry of cases alleging deliberate indifference related to gender dysphoria treatment, including a putative class action.11
11 See, e.g., Clark v. LeBlanc, No. 3:19-00512-BAJ-RLB, 2019 WL 5085425, at *2 (M.D. La. Oct. 10, 2019); Monroe v. Baldwin, No. 18-CV-00156-NJR-MAB, 2019 WL 6918474, at *17 (S.D. Ill. Dec. 19, 2019), on recon. in part sub nom. Monroe v. Meeks, No. 18-cv00156-NJR, 2020 WL 1048770 (S.D. Ill. Mar. 4, 2020); Armstrong v. Mid-Level Prac. John B. Connally Unit, No. SA-18-CV-00677XR, 2020 WL 230887, at *5 (W.D. Tex. Jan. 15, 2020); Avilez v. Barr, No. 19-cv-08296-CRB, 2020 WL 570987, at *4 (N.D. Cal. Feb. 5, 2020); Porter v. Crow, No. 18-CV-0472-JED-FHM, 2020 WL 620284, at *9 (N.D. Okla. Feb. 10, 2020); Murillo v. Godfrey, No. 2:18-cv-02342-JGB-JC, 2020 WL 1139811, at *14 (C.D. Cal. Mar. 9, 2020); Jackson v. Kallas, No. 17-cv-350-bbc, 2020 WL 1139769, at *2 (W.D. Wis. Mar. 9, 2020); Dana v. Tewalt, No. 1:18-cv-00298DCN, 2020 WL 1545786, at *9 (D. Idaho Apr. 1, 2020); Gonzales v. Cal. Dep’t of Corrs. & Rehab., No. 1:19-cv-01467BAM (PC), 2020 WL 1847491, at *6 (E.D. Cal. Apr. 13, 2020).

37 A clear split in the circuits now exists, meaning that the constitutional rights of a gender dysphoric inmate include tax-payer funded sex reassignment surgery when he is housed in Idaho, for example, but not when that same inmate is housed in a state such as Texas. Just as absurd, the constitutional rights of an inmate housed within the Ninth Circuit’s domain encompass treatment consistent with the WPATH Standards, including sex reassignment surgery, but U.S. citizens on Medicare are not guaranteed treatment consistent with the WPATH Standards. See CMS, DECISION MEMO FOR GENDER DYSPHORIA AND GENDER REASSIGNMENT SURGERY (Aug. 30, 2016), https://go.cms. gov/36yMrxX. This case is an ideal vehicle for resolving the circuit split and the issues discussed above. Unlike in many prison litigation cases, the Plaintiff in this case has been represented by counsel from nearly the start. The district court allowed the parties to conduct several months of discovery and held a multi-day hearing before issuing its decision. Thus, the factual record is more developed in this case than in many others, and it is ripe for review. Compare App. 53-146, with Lamb, 899 F.3d at 1163 (noting the “sparseness of the summary judgment record”) and Gibson, 920 F.3d at 221-23 (relying on the record created in the First Circuit’s decision in Kosilek).

38 CONCLUSION The petition for writ of certiorari should be granted.
Respectfully submitted,

DYLAN A. EATON J. KEVIN WEST BRYCE JENSEN PARSONS BEHLE & LATIMER 800 West Main Street Suite 1300 Boise, Idaho 83702
Counsel for Petitioner Scott Eliason, M.D.

LAWRENCE G. WASDEN Attorney General State of Idaho
BRIAN KANE Assistant Chief Deputy
MEGAN A. LARRONDO Deputy Attorney General
BRADY J. HALL Special Deputy Attorney General Counsel of Record
MOORE ELIA KRAFT & HALL, LLP P.O. Box 6756 Boise, Idaho 83707 (208) 336-6900 brady@melawfirm.net

May 6, 2020

Counsel for Petitioners the Idaho Department of Correction and Henry Atencio, Jeff Zmuda, and Al Ramirez, in their official capacities