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In a surprise order on Thursday, the U.S. Supreme Court refused to grant the state of Idaho’s request to block gender reassignment surgery for a transgender inmate, which lower courts affirmed is her right to obtain under the Eighth Amendment of the U.S. Constitution.
The one-page order indicates the state’s request was submitted to U.S. Associate Justice Elena Kagan, who referred the matter to the entire court. The application for a stay, however, was denied.
It would have taken a majority vote of at least five justices to have granted the stay, but the vote isn’t recorded. According to the order, U.S. Associate Justices Clarence Thomas and Samuel Alito “would grant the application” to halt the procedure.
The request was filed in the case of Edmo v. Idaho Department of Correction, which was filed by Adree Edmo, a Native American transgender woman who’s been the custody of the Idaho Department of Correction since April 2012.
Her case led the U.S. 9th Circuit of Court of Appeals to confirm denying gender reassignment surgery requested by a prison inmate is the denial of medically necessary treatment, which is cruel and unusual punishment and against the Eighth Amendment to the U.S. Constitution.
Previously, U.S. District Judge Lynn Winmill in Idaho ruled in December 2018 requiring the Idaho Department of Correction and its medical provider Corizon to the surgery to Edmo with six months, although that surgery has yet to take place as that litigation has continued.
Although the 9th Circuit affirmed that decision, it had placed a stay on the injunction requiring the surgery under its mandate was handed down. That occurred in February, which led Idaho to seek a stay from the Supreme Court to halt the procedure.
The litigation on behalf of Edmo was filed by National Center for Lesbian Rights along with Rifkin Law Office, Hadsell Stormer and Renick LLP, and Ferguson Durham, PLLC.
Lori Rifkin, lead attorney for Edmo, said in a statement the Supreme Court “appropriately declined the state’s request for a stay that would have prevented Ms. Edmo from getting the care she needs.”
“Because the lower court decisions applied settled Eighth Amendment precedent to the facts of this case, there is no basis for further review of those careful and detailed decisions,” Rifkin said.
Amy Whelan, senior staff attorney for the National Center for Lesbian Rights, said in a statement Edmo will now “get medically necessary surgery that she has needed for years.”
“The lower courts found, based on extensive evidence and proof, that the Idaho Department of Corrections and Corizon Health are violating Ms. Edmo’s constitutional rights by withholding this critical medical care,” Whelan said. “Today’s decision means that the state can no longer delay in providing care that is essential to Ms. Edmo’s health, safety, and well-being.”
Prior to the order being handed down, attorneys for Edmo filed a brief before the Supreme Court insisting the procedure for Edmo is necessary on an emergency basis.
“As every court to consider this case has found, the balance of hardships swings heavily in one direction: each day applicants withhold necessary medical treatment, Adree Edmo suffers irreparable harm,” the brief says. “After two attempts at self-castration — including one in which Ms. Edmo ‘was able to open her testicle sac with a razor blade and remove one testicle’ before ‘abandon[ing] her attempt…when there was too much blood to continue,’…Edmo is finally scheduled to receive the surgery she needs in July 2020.”
Idaho Attorney General Lawrence Wasden, on the same day the order was handed down, filed a brief before the Supreme Court urging justices to grant the stay, calling arguments from Edmo’s attorneys “a facade of cherry-picked statements, mischaracterized facts and misread cases.”
“Respondent cites to the possibility of self-harm, as well as daily distress until receiving surgery,” Wasden wrote. “But, it remains undisputed that staying the surgery will not foreclose respondent from undergoing the surgery in the near future if this court affirms the injunction or, alternatively, upon her release from prison next year. A delay in implementation of the injunction does not constitute irreparable harm.”
A Wasden spokesperson declined to comment on the Supreme Court order that was issued against the state.
Although the Supreme Court denying Idaho’s request for a stay, the state’s petition to review the case remains pending before justices. It’s hard to see the basis for which the litigation could continue if Edmo receives gender reassignment surgery now that the stay against the order is lifted.
The Supreme Court declined to block transgender surgery as the issue over whether the procedure is constitutionally required for inmates who request it remains continues to percolate. It seems likely the Supreme Court will soon take up a vehicle to decide the issue once-and-for all at a national level.
The 9th Circuit is not the only circuit to have affirmed denying gender reassignment surgery to prisoners is contrary to the Eighth Amendment. However, 1st, 5th and 11th Circuits have ruled the other way and determined prison systems can deny the procedure to inmates. (A three-judge panel on the 1st Circuit initially ruled in favor of granting transgender surgeries to inmates, but that was overturned December 2014 in an “en banc” decision.)
It’s not the first time the U.S. Supreme Court has acted on gender reassignment surgery for transgender inmates, although previously it went the other way. In May 2015, the Supreme Court refused to hear the case of Michelle Kosilek, a transgender inmate who was denied surgery by the Massachusetts Department of Corrections.
This article originally appeared in the Washington Blade and is made available in partnership with the National LGBT Media Association.