Mark A. Campbell v. Kevin Kallas ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2075
MARK A. CAMPBELL,
Plaintiff-Appellee,
v.
KEVIN KALLAS, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 16-cv-261-jdp — James D. Peterson, Chief Judge.
____________________
ARGUED OCTOBER 26, 2018 — DECIDED AUGUST 19, 2019
____________________
Before WOOD, Chief Judge, and SYKES and SCUDDER,
Circuit Judges.
SYKES, Circuit Judge. Mark Campbell, also known as
Nicole Rose Campbell, is an inmate in the Wisconsin prison
system. In 2007 Campbell pleaded guilty to first-degree
sexual assault of a child and is now serving a 34-year sen-
tence. Campbell has been diagnosed with gender dysphoria;
she is biologically male but identifies as female. Department
2 No. 18-2075
of Corrections (“DOC”) medical staff are treating Campbell’s
condition with cross-gender hormone therapy.
Beginning in September 2013, Campbell repeatedly re-
quested a more radical intervention: sex-reassignment
surgery. National standards of care recommend that patients
undertake one year of “real life” experience as a person of
their self-identified gender before resorting to irreversible
surgical options. That preparatory period presents challeng-
es for officials charged with the administration of sex-
segregated prisons. DOC officials consulted an outside
expert, who determined that Campbell was a potential
surgical candidate. But the expert’s cautious conclusion was
conditioned on DOC officials developing a safe, workable
solution to the real-life-experience dilemma. Citing these
concerns and DOC policy, officials denied Campbell’s re-
quest.
After filing grievances and exhausting administrative
appeals, Campbell sued Dr. Kevin Kallas, the DOC Mental
Health Director, and a host of other prison officials under
42 U.S.C. § 1983. She alleged that the defendants were
deliberately indifferent to her serious medical needs in
violation of the Eighth Amendment and sought damages
and injunctive relief. Both sides moved for summary judg-
ment, and the defendants also claimed qualified immunity.
The district court denied the motions. As relevant here, the
judge rejected the claim of qualified immunity, concluding
that caselaw clearly established a constitutional right to
effective medical treatment.
We reverse. Qualified immunity shields a public official
from suit for damages unless caselaw clearly puts him on
notice that his action is unconstitutional. The judge’s ap-
No. 18-2075 3
proach to the qualified-immunity question was far too
general. The Eighth Amendment requires prison healthcare
professionals to exercise medical judgment when making
decisions about an inmate’s treatment. And they cannot
completely deny the care of a serious medical condition. But
cases recognizing those broad principles could not have
warned these defendants that treating an inmate’s gender
dysphoria with hormone therapy and deferring considera-
tion of sex-reassignment surgery violates the Constitution.
Moreover, it’s doubtful that a prisoner can prove a case of
deliberate indifference when, as here, prison officials fol-
lowed accepted medical standards. The defendants are
immune from damages liability.
I. Background
A. Standards of Care
Campbell suffers from gender dysphoria, an acute form
of mental distress stemming from strong feelings of incon-
gruity between one’s anatomy and one’s gender identity. See
AM. PSYCHIATRIC ASS’N, DIAGNOSTIC & STATISTICAL MANUAL
OF MENTAL DISORDERS 451 (5th ed. 2013). To “provide clinical
guidance for health professionals,” the World Professional
Association for Transgender Health established national
standards of care for transsexual, transgender, and gender-
nonconforming individuals. WORLD PROFESSIONAL ASS’N FOR
TRANSGENDER HEALTH, STANDARDS OF CARE FOR THE HEALTH
OF TRANSSEXUAL, TRANSGENDER, & GENDER NONCONFORMING
PEOPLE 1 (7th version 2011) (“the Standards”),
https://www.wpath.org/media/cms/Documents/SOC%20v7/
Standards%20of%20Care_V7%20Full%20Book_English.pdf.
The parties cite the Standards extensively and treat them as
4 No. 18-2075
authoritative. “While flexible,” these clinical guidelines
“offer standards for promoting optimal health care.” Id. at 2.
The Standards outline a range of treatment options for in-
dividuals with gender dysphoria. Patients may be encour-
aged to alter their “gender expression” by living
continuously or part-time in another gender role. Id. at 9.
Hormone therapy, which can “feminize or masculinize the
body,” is appropriate for some patients. Id. The Standards
provide four criteria for hormone-therapy eligibility:
1. Persistent, well-documented gender dyspho-
ria;
2. Capacity to make a fully informed decision
and to consent for treatment;
3. Age of majority in a given country … ; [and]
4. If significant medical or mental health con-
cerns are present, they must be reasonably
well-controlled.
Id. at 34. Psychotherapy is not an “absolute” prerequisite for
hormone therapy or surgery but is “highly recommended.”
Id. at 28.
Surgery is “the last and the most considered step in the
treatment process,” and not all gender-dysphoric patients
are surgical candidates. Id. at 54. The Standards outline
several surgical approaches. Id. at 57–61. Some modify
secondary sex characteristics via breast reduction or aug-
mentation, and facial- and voice-feminization surgery. Id. at
57. The Standards don’t require hormonal interventions or
extensive preparatory periods for these surgeries, though
12 months of feminizing hormone therapy is recommended
No. 18-2075 5
for male-to-female patients. Id. at 58–59. Surgeries altering a
patient’s reproductive organs carry stricter eligibility criteria.
Id. at 59–61. A patient meets the criteria for a hysterectomy
and ovariectomy (removal of the uterus and ovaries) or an
orchiectomy (removal of the testicles) if he or she satisfies
the hormone-therapy criteria and has completed a year of
continuous hormone therapy. Id. at 60.
For operations commonly referred to as sex-reassignment
surgeries—surgeries that replace an individual’s existing
genitals with approximations of those of the opposite sex—
the Standards add yet another requirement. In addition to a
year of hormone therapy, the Standards require patients to
have “12 continuous months of living in a gender role that is
congruent with their gender identity.” Id. The World Profes-
sional Association for Transgender Health justifies this
requirement by citing an “expert clinical consensus that this
experience provides ample opportunity for patients to
experience and socially adjust in their desired gender role[]
before undergoing irreversible surgery.” Id. at 60. The one-
year preparatory period helps patients adjust to the “pro-
found personal and social consequences” of adjusting one’s
gender expression. Id. at 61. The Standards don’t include an
exception to the real-life-experience requirement for patients
living in institutional settings. Id. at 67–68. The World Pro-
fessional Association for Transgender Health explicitly states
that the Standards can be utilized effectively under those
conditions. Id.
B. DOC Policies and Procedures
The DOC established policies to address the unique chal-
lenges posed by the incarceration of transgender inmates.
The Gender Dysphoria Committee (the “Committee”) is
6 No. 18-2075
charged with handling medical treatment and accommoda-
tion requests by an inmate with gender dysphoria. Several of
the defendants are current and former committee members;
Dr. Kallas serves as DOC Mental Health Director and chairs
the Committee.
DOC Policy 500.70.27 lays out the protocol for trans-
gender inmates. Wisconsin Department of Corrections,
Division of Adult Institutions, Policy and Procedures, Policy
No. 500.70.27 (Nov. 11, 2017) at Separate Appendix of
Defendants–Appellants at 64–73, Campbell v. Kallas,
No. 18-2075 (7th Cir. July 18, 2018), ECF No. 17. An inmate
may self-identify as transgender at any point during his
incarceration, making him eligible for several accommoda-
tions. Id. at 66. The inmate may order “clothing, shoes,
undergarments[,] and prescription eyeglass frames … that
correspond to the desired gender.” Id. at 73. Undergarments
matching the inmate’s gender identity are also allowed,
provided “they are not visible to others when leaving the
cell” or worn in a “disruptive or provocative” manner. Id.
Makeup is unavailable for an inmate in male facilities, but an
inmate may purchase feminine shower products and request
a hair-removal product. Id.
In addition to these lifestyle accommodations, the DOC
offers several forms of medical treatment. Once an inmate
self-identifies as transgender, prison medical staff or an
outside consultant may assign a clinical diagnosis of gender
dysphoria. Id. at 66. A clinically diagnosed inmate is entitled
to appropriate psychological treatment, psychiatric care,
hormone therapy (under certain circumstances), and “[o]ther
treatment determined to be medically necessary by the
Transgender Committee.” Id. at 68.
No. 18-2075 7
Requests for new hormonal or surgical interventions are
processed by a hierarchy of prison medical officials who
review the inmate’s condition. Id. at 69–70. When an inmate
first requests hormone therapy or surgery, the Supervisor of
the Psychological Services Unit is notified. Id. at 69. The
Supervisor assigns a staff member to determine whether to
diagnose the patient with gender dysphoria and whether a
“more specialized evaluation” by a gender-dysphoria con-
sultant is needed. Id. The Psychological Services Unit report
is forwarded to the Mental Health Director, who may call in
a gender-dysphoria consultant for further evaluation. Id. If
the consultant recommends hormone therapy or surgery, the
Director reviews the report. The consultant’s recommenda-
tions are not binding and can either be approved or denied
by the Director in consultation with the Committee. Id. at 69–
70. Finally, the policy notes: “Due to the limitations inherent
in being incarcerated, a real-life experience for the purpose
of gender-reassignment therapy is not possible for inmates
who reside within a correctional facility. However, treatment
and accommodations may be provided to lessen gender
dysphoria.” Id. at 70.
C. Campbell’s Course of Treatment
Campbell is currently incarcerated at the Racine Correc-
tional Institution. Prior to her incarceration, she self-
administered hormone treatments. Although she considered
sex-reassignment surgery, she never discussed it with a
physician.
Campbell raised gender-identity concerns with a prison
psychologist in January 2012. The Committee hired Cynthia
Osborne to evaluate Campbell. Osborne is a gender-
dysphoria expert and has consulted on numerous cases for
8 No. 18-2075
prison systems around the country. In August 2012 Osborne
diagnosed Campbell with gender dysphoria but stopped
well short of recommending sex-reassignment surgery.
Osborne explained that the 12-month real-life experience
required by the World Professional Association for
Transgender Health could not be fully implemented in the
prison setting. She noted that Campbell had “never had the
opportunity to meaningfully consolidate [her] preferred
female identity into a successful life” and would “not be able
to do such consolidation in the restrictive environment of
incarceration.” Given that challenge, as well as Campbell’s
“comorbid psychiatric conditions and vulnerabilities,”
Osborne determined that “only reversible interventions
should be considered” and that “[s]ex[-]reassignment sur-
gery [was] wholly contraindicated.” Osborne recommended
hormone therapy, counseling, and “that the DOC consider
what feminizing allowances might be made,” even though
“[s]uch accommodations are rarely if ever medically neces-
sary.”
The Committee adopted Osborne’s recommendations,
initiating hormone therapy and permitting Campbell to don
feminine clothing and glasses and use feminine shower
products. On September 5, 2013, Campbell submitted a
request for sex-reassignment surgery. Dr. Kallas, following
the Committee’s recommendation, denied Campbell’s re-
quest, citing Osborne’s finding that “surgical interventions
were contraindicated.” Dr. Kallas explained that DOC
“policy does not prohibit surgical intervention,” but he and
the Committee recognized “the inherent difficulty for any
inmate to meet eligibility requirements for gender reassign-
No. 18-2075 9
ment surgery while in prison—specifically, the need for a
valid real-life experience in the desired gender role.”
Campbell continued to file surgery requests, and DOC
officials again consulted with Osborne. She reviewed
Campbell’s file, talked with the treating psychologist, and
met with Campbell face to face. On August 4, 2014, Osborne
submitted her second report. Echoing themes from her first
report, Osborne described the Standards as imperfect guides
for treating gender dysphoria in prison. On the possibility of
surgery, Osborne explained that given “the persistent pres-
ence of severe anatomic dysphoria[,] inmate Campbell may
be a candidate for” sex reassignment. The length of
Campbell’s sentence and her track record of cooperating
with medical personnel bolstered the case for surgery.
Turning to the “real life experience” requirement,
Osborne explained that “[m]any gender dysphoria experts
believe that the challenges of completing a valid real-life
experience … in the context of incarceration present a formi-
dable obstacle to” sex-reassignment surgery. She noted that
“there is no empirical evidence on which the DOC can rely
in its efforts to predict outcomes, prevent harm[,] and main-
tain safety” in developing a real-life experience for
Campbell. Thus, the DOC’s “[r]eluctance to embark on a
social experiment” was “understandable and prudent.” For
inmates with lengthy sentences, however, Osborne ques-
tioned “whether the [real-life experience] as traditionally
understood” should be required. Modifying or eliminating
the requirement would carry risks for Campbell, but the
DOC should undertake “an examination of the [real-life
experience] concept in order to determine whether there is a
workable approach for inmates.” Still, given these challeng-
10 No. 18-2075
es, she concluded that “conservative approaches … for
incarcerated individuals are wholly warranted.”
Summarizing her conclusions, Osborne explained that
Campbell had not undergone a valid real-life experience
while incarcerated, despite Campbell’s claim to the contrary.
Departing from the requirement “may be justifiable in rare
circumstances in correctional settings”—including Camp-
bell’s case. Osborne stated that Campbell could be a surgical
candidate but conditioned her assessment on the DOC’s
development of “a safe and reasonable approach to resolv-
ing the [real-life experience] conundrum.”
On September 29, 2014, Campbell filed another request
seeking approval for a real-life experience and sex-
reassignment surgery. Dr. Kallas responded on October 23,
assuring Campbell that “the DOC is continuing to look at
how we can provide at least some elements of a real-life
experience.” Nevertheless, “providing a true or full real-life
experience that will help to determine future suitability for
surgical interventions remain[ed] problematic in an incar-
cerated setting.” Referring to Osborne’s second report,
Dr. Kallas, with the Committee’s recommendation, denied
Campbell’s request. Campbell sent additional letters on
March 15 and April 4, 2015, but Dr. Kallas again denied the
requests for surgery citing the “considerable limitations in
what [officials could] provide for a real-life experience.”
Dr. Kallas also rejected Campbell’s request for electrolysis for
hair removal and “light makeup,” neither of which was
“currently permitted” in the prison.
In the wake of these denials, Campbell filed four admin-
istrative grievances reiterating her arguments for sex-
reassignment surgery, electrolysis, and makeup. All were
No. 18-2075 11
denied. In response to the electrolysis and makeup requests,
DOC officials determined that “makeup is not a medically
necessary accommodation” and “[a]lternatives to electroly-
sis” were readily available.
D. District-Court Proceedings
In April 2016 Campbell filed suit under 42 U.S.C. § 1983
alleging that DOC officials were deliberately indifferent to
her serious medical needs in violation of the Eighth
Amendment. 1 The suit seeks damages and injunctive relief
ordering “necessary medical care, including [sex-
reassignment surgery], and other appropriate treatment,
including light makeup, electrolysis, breast augmentation,
and voice therapy.”
Both sides moved for summary judgment, introducing
dueling expert opinions on Campbell’s suitability for sur-
gery. Dr. Kathy Oriel, one of Campbell’s experts, determined
that “no physician with adequate expertise and experience
in gender medicine would” dispute Campbell’s need for sex-
reassignment surgery. Dr. Chester W. Schmidt, the defense
expert, opined that sex-reassignment surgery was not medi-
cally necessary.
Campbell argued that because DOC officials “imple-
mented and enforce[d] a blanket ban on medically necessary
treatment … and applied it to Campbell,” they “acted with
deliberate indifference as a matter of law.” The defendants
sought qualified immunity, arguing that their treatment
1 Campbell later amended her complaint to bring an equal-protection
claim under the Fourteenth Amendment. That claim is not at issue in this
appeal.
12 No. 18-2075
decisions were not a substantial departure from accepted
professional judgment.
The district judge denied the motions for the most part.
Because DOC officials knew about Campbell’s gender
dysphoria and admitted its status as a serious medical
condition, the judge saw one key remaining question:
whether sex-reassignment surgery was medically necessary.
On that issue Dr. Oriel’s expert testimony generated a
factual dispute, so the judge held that “Campbell ha[d]
adduced evidence sufficient to show deliberate indiffer-
ence,” precluding summary judgment. The medical necessi-
ty of sex-reassignment surgery in Campbell’s case would be
determined at a bench trial.
The judge also addressed Campbell’s requests for elec-
trolysis and makeup, articulating a preliminary determina-
tion that providing those accommodations “would offer
more effective treatment” for Campbell’s gender dysphoria
and finding “no apparent medical reason to deny” them. But
Campbell hadn’t moved for summary judgment on those
claims, so the judge gave the defendants notice and an
opportunity to respond under Rule 56(f) of the Federal Rules
of Civil Procedure. They replied with two arguments: First, a
ruling on electrolysis and makeup prior to a ruling on
surgery would be premature. Second, they cited the lack of
record evidence that Campbell, “on an individualized basis,
has a medical need for electrolysis and makeup.” The judge
postponed further consideration of the issue until trial.
The judge’s discussion of qualified immunity was brief
and framed the inquiry at a high level of generality. He
ruled that because the Eighth Amendment does not permit
state officials to deny effective treatment for the serious
No. 18-2075 13
medical needs of prisoners, the “[d]efendants had fair notice
that denying effective treatment” for Campbell’s gender
dysphoria would violate the Constitution. The judge re-
buffed the defendants’ request for a more fact-specific
analysis focusing on sex-reassignment surgery.
II. Discussion
A. Appellate Jurisdiction
The defendants appeal the denial of qualified immunity.
“[P]retrial orders denying qualified immunity generally fall
within the collateral order doctrine.” Plumhoff v. Rickard,
572 U.S. 765, 772 (2014) (citation omitted). Campbell’s suit
seeks damages and injunctive relief, and the case will pro-
ceed to trial on the claim for injunctive relief even if the
defendants are entitled to qualified immunity on the damag-
es claim. Campbell argues that we should therefore decline
to exercise jurisdiction over this interlocutory appeal.
That position cannot be squared with Supreme Court and
circuit precedent. It has long been clear that an order deny-
ing qualified immunity, “to the extent that it turns on an
issue of law, is an appealable ‘final decision’ within the
meaning of 28 U.S.C. § 1291 notwithstanding the absence of
a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530
(1985). Qualified immunity is a form of immunity from
suit—that is, the trial process and attendant burdens—not
merely immunity from damages. Id. at 526–27.
The Supreme Court has not had occasion to decide
whether an order denying qualified immunity may be
immediately appealed when the suit also seeks injunctive
relief. Id. at 520 n.5. We have done so, however. In Scott v.
Lacy, 811 F.2d 1153 (7th Cir. 1987), the plaintiff sought
14 No. 18-2075
money damages and injunctive relief in a suit against public
university officials. Id. at 1154. He argued that the collateral-
order doctrine is inapplicable to suits seeking injunctive
relief as well as damages because the case could still proceed
to trial regardless of the outcome of an interlocutory appeal
of a qualified-immunity ruling. Id. at 1153.
Acknowledging a circuit split on this question, we fol-
lowed the majority rule and held “that a pending request for
an injunction does not defeat jurisdiction of interlocutory
appeals based on claims of immunity.” Id. We restated the
reasoning in Forsyth and added that “if a request for an
injunction prevented appeal on the question of immunity,
plaintiffs who wished to harass officials to travail would
need only demand equitable relief.” Id. at 1154.
Every circuit to address this question agrees. See Acierno
v. Cloutier, 40 F.3d 597 (3d Cir. 1994) (en banc); Schopler v.
Bliss, 903 F.2d 1373 (11th Cir. 1990); DiMartini v. Ferrin,
889 F.2d 922 (9th Cir. 1989); Giacalone v. Abrams, 850 F.2d 79
(2d Cir. 1988); DeVargas v. Mason & Hanger-Silas Mason Co.,
844 F.2d 714 (10th Cir. 1988); Drake v. Scott, 812 F.2d 395 (8th
Cir. 1987); Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.
1986); de Abadia v. Izquierdo Mora, 792 F.2d 1187 (1st Cir.
1986). The Fourth Circuit—the outlier when we decided
Scott—has since reversed course. See Young v. Lynch,
846 F.2d 960 (4th Cir. 1988).
As we’ve noted, the Supreme Court hasn’t squarely re-
visited the question left open in Forsyth. But in Behrens v.
Pelletier, 516 U.S. 299 (1996), the Court came quite close to
embracing the rule we adopted in Scott. The plaintiff there
raised multiple claims, including Bivens claims against
which the defendant unsuccessfully sought qualified im-
No. 18-2075 15
munity. Id. at 302–03. The plaintiff argued that the defend-
ant’s interlocutory appeal was inappropriate because he
would still “be required to endure discovery and trial on
matters separate from the claims against which immunity
was asserted.” Id. at 311. The Court clarified that a qualified-
immunity appeal “cannot be foreclosed by the mere addition
of other claims to the suit.” Id. at 312 (emphasis added). Then,
venturing beyond the specific facts of the case, the Court
expressed the same concern we identified in Scott: under the
plaintiff’s reasoning, “the qualified-immunity right not to be
subjected to pretrial proceedings” or “to trial itself [would]
be eliminated, so long as the complaint seeks injunctive
relief.” Id. (emphasis added). Behrens represents a variation
on Scott—the case concerned multiple substantive claims
rather than multiple forms of relief—but the variation was
so slight that the Court saw fit to cite Scott in support of its
conclusion. Id. at 312 n.5.
Campbell urges us to reconsider Scott, a step that would
revive a long-dormant circuit split and come close to contra-
dicting Behrens. We need “compelling reasons” to overrule
circuit precedent. Russ v. Watts, 414 F.3d 783, 788 (7th Cir.
2005). We may do so when “our position remains a minority
one among other circuits, when the Supreme Court issues a
decision on an analogous issue that compels us to reconsider
our position, or when an intracircuit conflict exists.” Glaser v.
Wound Care Consultants, Inc., 570 F.3d 907, 915 (7th Cir. 2009)
(citations omitted). None of those conditions are satisfied
here. And while Campbell claims that she “is not asking this
[c]ourt to reconsider qualified-immunity jurisprudence writ
large,” each of her arguments does just that. She argues that
Scott rests on misperceptions about the efficacy of qualified
immunity as a shield against the burdens of litigation. She
16 No. 18-2075
cites recent scholarship criticizing qualified immunity and
marshals policy arguments focused on judicial resources.
And she draws our attention to separate opinions by some
Supreme Court justices raising questions about the doctrine.
We have no authority to depart from the Supreme
Court’s qualified-immunity jurisprudence. And while some
justices have questioned qualified immunity, those misgiv-
ings haven’t stopped the Court from vigorously applying
the doctrine. See, e.g., District of Columbia v. Wesby, 138 S. Ct.
577 (2018). Campbell’s fallback argument asks us to carve
out an exception to Scott for cases involving a substantial
risk of harm. But in true emergencies, a plaintiff can seek
preliminary injunctive relief. See Wheeler v. Wexford Health
Sources, Inc., 689 F.3d 680, 681–83 (7th Cir. 2012). We proceed
to the merits.
B. Qualified Immunity
We review qualified-immunity questions independently.
Green v. Newport, 868 F.3d 629, 632 (7th Cir. 2017).
The Eighth Amendment’s protection against cruel and
unusual punishment includes the right of prisoners to be
free from “pain and suffering [that] no one suggests would
serve any penological purpose.” Estelle v. Gamble, 429 U.S.
97, 103 (1976). As applied in the context of prison medical
care, “deliberate indifference to a prisoner’s serious illness or
injury states a cause of action under § 1983” for violation of
the Eighth Amendment. Id. We evaluate deliberate-
indifference claims by “first examining whether a plaintiff
suffered from an objectively serious medical condition[] and
then determining whether the individual defendant was
deliberately indifferent to that condition.” Petties v. Carter,
No. 18-2075 17
836 F.3d 722, 728 (7th Cir. 2016) (en banc). The parties agree
that gender dysphoria is a serious medical condition. See
Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997) (describing
gender dysphoria as a “serious psychiatric disorder”).
To prove deliberate indifference, “mere negligence is not
enough. … [A] plaintiff must provide evidence that an
official actually knew of and disregarded a substantial risk of
harm.” Petties, 836 F.3d at 728. The linchpin is a lack of
professional judgment. “A medical professional is entitled to
deference in treatment decisions unless ‘no minimally
competent professional would have so responded under
those circumstances.’” Sain v. Wood, 512 F.3d 886, 894–95 (7th
Cir. 2008) (quoting Collignon v. Milwaukee County, 163 F.3d
982, 988 (7th Cir. 1998)). A prison medical professional faces
liability only if his course of treatment is “such a substantial
departure from accepted professional judgment, practice, or
standards[] as to demonstrate that the person responsible
actually did not base the decision on such a judgment.” Id. at
895 (quoting Collignon, 163 F.3d at 988).
Qualified immunity protects government officials from
damages liability “insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.” Estate of Clark v.
Walker, 865 F.3d 544, 549–50 (7th Cir. 2017) (quoting Pearson
v. Callahan, 555 U.S. 223, 231 (2009)). We evaluate “(1) wheth-
er the facts, taken in the light most favorable to the plain-
tiff[], show that the defendants violated a constitutional
right; and (2) whether that constitutional right was clearly
established at the time of the alleged violation.” Gonzalez v.
City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009). The latter
18 No. 18-2075
inquiry is often dispositive and may be addressed first.
Pearson, 555 U.S. at 236. We do so here.
To be “clearly established,” a constitutional right “must
have a sufficiently clear foundation in then-existing prece-
dent.” Wesby, 138 S. Ct. at 589. The principle of fair notice
pervades the doctrine. Qualified immunity applies unless
the specific contours of the right “were sufficiently definite
that any reasonable official in the defendant’s shoes would
have understood that he was violating it.” Plumhoff, 572 U.S.
at 778–79.
Given this emphasis on notice, clearly established law
cannot be framed at a “high level of generality.” Ashcroft v.
al-Kidd, 563 U.S. 731, 742 (2011). As the Supreme Court
recently reminded us, “[a] rule is too general if the unlaw-
fulness of the officer’s conduct ‘does not follow immediately
from the conclusion that [the rule] was firmly established.’”
Wesby, 138 S. Ct. at 590 (quoting Anderson v. Creighton,
483 U.S. 635, 641 (1987) (second alteration in original)).
Existing caselaw must “dictate the resolution of the parties’
dispute,” Comsys, Inc. v. Pacetti, 893 F.3d 468, 472 (7th Cir.
2018), so while “a case directly on point” isn’t required,
“precedent must have placed the … constitutional question
beyond debate,” White v. Pauly, 137 S. Ct. 548, 551 (2017)
(quotation marks omitted); see also Kisela v. Hughes, 138 S. Ct.
1148, 1152–53 (2018). Put slightly differently, a right is
clearly established only if “every reasonable official would
have understood that what he is doing violates that right.”
Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Reichle
v. Howards, 566 U.S. 658, 664 (2012)) (emphasis added).
The Supreme Court’s message is unmistakable: Frame
the constitutional right in terms granular enough to provide
No. 18-2075 19
fair notice because qualified immunity “protects all but the
plainly incompetent or those who knowingly violate the
law.” Kisela, 138 S. Ct. at 1152 (quotation marks omitted).
Here the judge framed the qualified-immunity question
in very broad terms, asking whether it was clearly estab-
lished that “denying effective treatment” for Campbell’s
medical condition violates the Eighth Amendment. That
formulation—which is basically a highly conceptualized
version of the deliberate-indifference standard—is far too
general. On appeal Campbell likewise frames the issue at too
high a level of generality, arguing that the defendants violat-
ed clearly established law by failing to exercise individual-
ized medical judgment and persisting in an ineffective
course of treatment. These broad principles have support in
our caselaw, but neither has been applied in a factual context
specific enough to provide fair notice to the defendants that
their conduct was unconstitutional.
Campbell relies on Roe v. Elyea, 631 F.3d 843 (7th Cir.
2011), and Fields v. Smith, 653 F.3d 550 (7th Cir. 2011), but
neither case clearly establishes that the conduct at issue here
was unconstitutional. In Elyea, Illinois inmates with hepatitis
requested antiviral drugs but were denied medication
because a prison policy barred that treatment for inmates
with fewer than 18 months of incarceration remaining.
631 F.3d at 850. We explained that “inmate medical care
decisions must be fact-based with respect to the particular
inmate” rather than the product of categorical rules and that
administrative considerations cannot trump “reasonable
medical judgment.” Id. at 859, 863 (emphasis omitted).
Treatment protocols are permissible, but in “an individual
case, … prison officials still must make a determination that
20 No. 18-2075
application of the protocols result[s] in adequate medical
care.” Id. at 860.
In Fields we considered a facial Eighth Amendment
challenge to a Wisconsin statute that flatly prohibited DOC
officials from providing sex-reassignment surgery or hormone
therapy to inmates. 653 F.3d at 552–53. The district court held
that the “defendants acted with deliberate indifference in
that [they] knew of [plaintiffs’] serious medical need but
refused to provide hormone therapy because of” the statute.
Id. at 555. We affirmed, but we did not specifically address
the issue of sex-reassignment surgery because the plaintiffs’
request was limited to hormone therapy. Id. at 556.
Campbell argues that Elyea and Fields clearly establish a
right to individualized medical judgment. But to accept that
framing would contradict the Supreme Court’s instruction to
eschew broad generalities. When considering deliberate-
indifference claims challenging the medical judgment of
prison healthcare personnel, qualified-immunity analysis
requires us to frame the legal question with reasonable
specificity.
The proper inquiry is whether then-existing caselaw
clearly established a constitutional right to gender-dysphoria
treatment beyond hormone therapy. This framing is specific
enough to ensure that “the unlawfulness of the officer’s
conduct … follow[s] immediately from the conclusion that
[the rule] was firmly established.” Wesby, 138 S. Ct. at 590
(quotation marks omitted) (second alteration in original).
And in this fact-intensive area of constitutional law, a broad-
er formulation would violate the Supreme Court’s instruc-
tion that the specific contours of the right must be
“sufficiently definite that any reasonable official … would
No. 18-2075 21
have understood that he was violating it.” Plumhoff, 572 U.S.
at 779.
Neither Elyea nor Fields provides the required level of
specificity. Elyea amounts to a general admonition that
officials must exercise medical judgment rather than me-
chanically apply categorical rules. And Fields doesn’t place
“beyond debate” the proposition that medical professionals
violate the Eighth Amendment when they provide hormone
therapy but decide—after extensive deliberation and consul-
tation with an outside expert—to deny sex-reassignment
surgery. White, 137 S. Ct. at 551. In both cases prison officials
refused to provide any treatment for serious diseases based
solely on categorical rules. That simply didn’t occur here.
These DOC officials consulted an expert in the field and,
facing a gray area of professional opinion, decided to deny
the “last and … most considered step” of gender-dysphoria
treatment.
No case in the Federal Reporter could have warned these
DOC officials that their treatment choice was unconstitu-
tional. When the defendants were making these decisions,
only one federal appellate decision had addressed the merits
of a deliberate-indifference claim involving sex-
reassignment surgery: Kosilek v. Spencer, 774 F.3d 63 (1st Cir.
2014) (en banc). 2 There the First Circuit concluded that
2 In De’lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013), the Fourth Circuit
reversed a district-court order dismissing a gender-dysphoric inmate’s
Eighth Amendment challenge at screening under 28 U.S.C. § 1915A.
Even setting aside that difference in procedural posture, De’lonta bears
no resemblance to this case. Unlike the defendants here, in De’lonta the
Virginia Department of Corrections officials “never allowed [the plain-
tiff] to be evaluated by a [gender-dysphoria] specialist in the first place.”
Id. at 526 n.4; see also id. at 523 (explaining that the plaintiff had “never
22 No. 18-2075
prison officials who provided hormone therapy and lifestyle
accommodations but denied a request for surgery did not
violate the Eighth Amendment. 3 See id. at 90, 96.
Campbell next argues that then-existing caselaw clearly
established that prison officials cannot abandon medical
judgment by “persist[ing] in a course of treatment known to
be ineffective.” Greeno v. Daley, 414 F.3d 645, 655 (7th Cir.
2005). It’s true that we’ve identified this species of
deliberate-indifference claim. See Petties, 836 F.3d at 729–30.
But we’ve never applied that general principle to facts
resembling these. Campbell’s lightly developed argument
does not convince us that this right was “established not as a
broad general proposition but in a particularized sense so
that the contours of the right are clear to a reasonable offi-
cial.” Dibble v. Quinn, 793 F.3d 803, 808 (7th Cir. 2015) (quota-
tion marks omitted).
We’ve previously noted that “[f]or purposes of qualified
immunity, [the Eighth-Amendment] duty” to treat prison-
been evaluated by a [gender-dysphoria] specialist concerning her need
for sex reassignment surgery”). Rosati v. Igbinoso, 791 F.3d 1037 (9th Cir.
2015), is similar. There the Ninth Circuit reversed an order dismissing a
gender-dysphoric inmate’s Eighth Amendment challenge at screening.
Unlike the defendants here, in Rosati the defendants applied a blanket
policy against sex-reassignment surgery and never allowed the plaintiff
to be evaluated by a gender-dysphoria specialist. Id. at 1039–40.
3 A divided panel of the Fifth Circuit recently announced agreement with
Kosilek. Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019). The panel majority
focused on the ongoing debate over the efficacy of sex-reassignment
surgery in general and wasn’t prepared to accept the World Professional
Association of Transgender Health’s Standards as authoritative. Id. at 221–
24. We don’t need to venture beyond the record and address that wider
debate to decide this appeal.
No. 18-2075 23
ers’ serious medical conditions “need not be litigated and
then established disease by disease or injury by injury.”
Estate of Clark, 865 F.3d at 553. Campbell seizes on this
aphorism and argues that by the same token, “rights need
not be established treatment by treatment.”
That argument overlooks the nature of this deliberate-
indifference claim. In Estate of Clark, the prison official
“chose to do nothing” in response to a known risk of sub-
stantial harm to the prisoner. Id. When prison officials
utterly fail to provide care for a serious medical condition,
the constitutional violation is obvious and qualified immuni-
ty offers little protection. See Orlowski v. Milwaukee County,
872 F.3d 417, 422 (7th Cir. 2017) (denying qualified immuni-
ty where, in the face of clear symptoms, officers “chose to do
nothing”).
To be sure, the constitutional concern in cases involving
no treatment at all is not disease- or injury-specific. But
prisons aren’t obligated to provide every requested treat-
ment once medical care begins. In a deliberate-indifference
case challenging the medical judgment of prison healthcare
professionals who actually diagnose and treat an inmate’s
medical condition (as opposed to ignoring it), we necessarily
evaluate those discrete treatment decisions. And we defer to
those decisions “unless no minimally competent profession-
al would have” made them. Sain, 512 F.3d at 895 (quotation
marks omitted). Deciding whether a particular treatment
plan was a “substantial departure from accepted profession-
al judgment, practice, or standards”—a necessary predicate
to establish an Eighth Amendment violation—requires a
close examination of professional standards and the specific
choices made by care providers. Id. (quotation marks omit-
24 No. 18-2075
ted). Given the fact-specific nature of these claims, the notice
aspect of qualified-immunity doctrine is crucial.
Campbell also relies on our recent decision in Mitchell v.
Kallas, 895 F.3d 492 (7th Cir. 2018), another gender-dysphoria
case involving a Wisconsin inmate, Osborne, and Dr. Kallas.
In that case Dr. Kallas denied a prisoner’s request for hor-
mone therapy despite Osborne’s unequivocal endorsement
of the treatment. He cited a DOC policy requiring at least six
remaining months of incarceration to initiate a hormone
regimen. Id. at 497. The inmate raised deliberate-indifference
claims based on a “fail[ure] to provide [recommended] care
for a non-medical reason” and “inexplicable delays.” Id. at
498.
Because prisons around the country applied varied eval-
uation periods for hormone-therapy eligibility, we held that
“Dr. Kallas was not on notice that a 13-month evaluation
would violate” the Eighth Amendment. Id. at 500. To the
extent that the claim was based on the length of time it took
to complete the assessment, we concluded that qualified
immunity protected Dr. Kallas from damages liability.
But we rejected the immunity defense to the failure-to-
treat claim. We framed the question as “whether a prison
doctor would have known that it was unconstitutional never
to provide” hormone therapy. Id. at 499. Interpreting the
refusal to begin hormone therapy as a complete denial of
care, we observed that “[p]rison officials have been on notice
for years that leaving serious medical conditions, including
gender dysphoria, untreated can amount to unconstitutional
deliberate indifference.” Id. Given our decision in Fields,
“circuit precedent clearly established that a total absence of
No. 18-2075 25
treatment for the serious medical needs created by gender
dysphoria is unconstitutional.” Id. (emphasis added).
We hadn’t decided Mitchell when DOC officials were
making decisions about Campbell’s care, so it has little
relevance to the qualified-immunity analysis here. Moreo-
ver, Mitchell illustrates the difference between a complete
denial of care and context-specific judgment calls. A plausi-
ble interpretation of the record in Mitchell was that the DOC
offered the inmate no treatment whatsoever. As we’ve
explained, our caselaw clearly establishes that regardless of
the disease or injury at issue, utterly failing to treat a serious
medical condition constitutes deliberate indifference.
Campbell, by contrast, received extensive treatment in the
form of hormone therapy, counseling, and various lifestyle
accommodations.
Deciding whether to provide additional medical inter-
ventions—especially when the inmate’s preferred course of
treatment poses considerable challenges to prison admin-
istration—is not the same as deciding to provide no treat-
ment at all. Denying a specific therapy in a particular case
might amount to a constitutional violation, but qualified
immunity applies absent reasonably specific notice to prison
officials.
In short, when the defendants denied Campbell’s request
for sex-reassignment surgery, no case clearly established a
right to gender-dysphoria treatment beyond hormone
therapy. As for Campbell’s requests for electrolysis and
makeup, our cases offer no indication that denying arguably
nonmedical cosmetic accommodations violates the Eighth
Amendment.
26 No. 18-2075
Qualified-immunity analysis also asks whether “the facts,
taken in the light most favorable to the plaintiff[], show that
the defendants violated a constitutional right.” Gonzalez,
578 F.3d at 540. Because no case clearly establishes that
denying treatment beyond hormone therapy is unconstitu-
tional, qualified immunity applies regardless. So it’s enough
to note that a factfinder may infer deliberate indifference
only where a prison medical professional makes “a medical
decision that has no support in the medical community” and
provides “a suspect rationale … for making it.” Petties,
836 F.3d at 729 n.2. And “even admitted medical malpractice
does not automatically give rise to a constitutional viola-
tion”; only “sub-minimal competence … crosses the thresh-
old into deliberate indifference.” Id. at 729. Prison healthcare
providers necessarily exercise medical judgment—and thus
by definition do not act with deliberate indifference—when
they base treatment decisions on accepted national stand-
ards and the advice of an expert.
III. Conclusion
Because clearly established law did not require
Wisconsin prison officials to provide Campbell with gender-
dysphoria treatment beyond hormone therapy, the defend-
ants are immune from damages liability. The district court’s
decision to the contrary is
REVERSED
No. 18-2075 27
WOOD, Chief Judge, dissenting. The Supreme Court has
pounded home the point that when deciding whether quali‐
fied immunity applies, lower courts cannot view the law at a
“high level of generality.” Ashcroft v. al‐Kidd, 563 U.S. 731, 742
(2011). Nonetheless, while “a case directly on point” may be
sufficient, it is not necessary. White v. Pauly, 137 S. Ct. 548, 551
(2017). The majority opinion in the case before us recognizes
this distinction, admitting that “‘[f]or purposes of qualified
immunity, [the Eighth‐Amendment] duty’ to treat prisoners’
serious medical conditions ‘need not be litigated and then es‐
tablished disease by disease or injury by injury.’” Ante at 22
(quoting Estate of Clark v. Walker, 865 F.3d 544, 553 (7th Cir.
2017)). The Eighth Amendment applies whether the serious
condition is Type I diabetes, paraplegia, congestive heart fail‐
ure, or a broken leg, even though the treatments for those con‐
ditions are quite different. Yet the majority fails to follow this
rule. Instead, it states that Campbell must show a clearly es‐
tablished right specific to her condition—gender dysphoria—
and to the particular way the medical profession addresses it.
Ante at 20. With respect, that is the wrong question, and so it
leads to the wrong answer. I therefore dissent.
Before outlining my disagreement with the majority, I
should emphasize my agreement with much of what it says. I
join in full Part II.A of the majority’s opinion, which addresses
our jurisdiction over this interlocutory appeal. Like my col‐
leagues, I see no reason to break with our sister circuits, over‐
rule Scott v. Lacy, 811 F.2d 1153 (7th Cir. 1987), and decline
jurisdiction because of Campbell’s outstanding request for in‐
junctive relief. My disagreement is limited to the majority’s
application of the qualified immunity inquiry to this case.
Even there, I have no quarrel with much of the reasoning. As
the majority notes, the relevant Eighth Amendment inquiry is
28 No. 18‐2075
whether Kallas and the other defendants were deliberately in‐
different to Campbell’s serious medical condition. Ante at 16.
As the majority recognizes, gender dysphoria is a serious
medical condition for which prison officials must provide
treatment. Ante at 17 (citing Maggert v. Hanks, 131 F.3d 670,
671 (7th Cir. 1997)). We diverge only on the description of the
clearly established right and whether Campbell has presented
enough evidence to show (if believed by a trier of fact) that
Kallas violated that right.
I
This case comes to us from the denial of qualified immun‐
ity by the district court. That means our review is limited. We
must answer only two questions: whether defendants vio‐
lated a constitutional right, and whether that constitutional
right was clearly established at the time defendants acted.
Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009). This means not only
that we must take the facts in the light most favorable to the
plaintiff, Tolan v. Cotton, 572 U.S. 650, 656–57 (2014), but also—
as is the case any time there are disputed issues of material
fact—that we have no jurisdiction to resolve any factual dis‐
putes. Johnson v. Jones, 515 U.S. 304, 313 (1995). We thus ap‐
proach the facts in much the same way as we would if we
were reviewing a motion to dismiss or a grant of summary
judgment. See, e.g., Tolan, 572 U.S. at 657 (vacating the grant
of qualified immunity because “[i]n holding that Cotton’s ac‐
tions did not violate clearly established law, the Fifth Circuit
failed to view the evidence at summary judgment in the light
most favorable to Tolan”).
Some 22 years ago, this court stated that because prisoners
were “entitled only to minimum care,” they were not entitled
No. 18‐2075 29
to sexual‐reassignment surgery (“SRS”)1 or hormone therapy,
because the minimal record before the court indicated that
those treatments were expensive and “esoteric medical treat‐
ment that only the wealthy can afford ….” Maggert, 131 F.3d
at 671–72. But that was not our last word on this issue. In Fields
v. Smith, 653 F.3d 550 (7th Cir. 2011), we evaluated a claim that
the total denial of either medically necessary hormones or
medically necessary SRS violated the Eighth Amendment.
Unlike in Maggert, in Fields we had the benefit of a full trial
record. Id. at 555. We determined that time and the crucible of
trial had disproven the “empirical assumptions” on which
Maggert relied. Id. Both hormones and SRS were, for example,
significantly cheaper than other treatments and surgeries that
the Wisconsin Department of Corrections had provided in re‐
cent years. Id.
Despite the majority’s contention, ante at 20, while the
bulk of our discussion in Fields focused on hormone therapy,
we also specifically addressed the Fields plaintiffs’ attempt to
strike down Wisconsin’s surgery ban. On this point, we up‐
held the district court’s enjoining of Wisconsin’s surgery ban,
because that statute forbade “even the consideration of … sur‐
gery” regardless of whether SRS was medically necessary for
1 I recognize that the term “sexual‐reassignment surgery” is now con‐
sidered an outdated and inaccurate descriptor of this procedure. This sur‐
gical treatment is now more commonly referred to as gender confirmation
surgery. See, e.g., Gender Confirmation Surgery, UNIVERSITY OF MICHIGAN
SCHOOL OF MEDICINE, https://www.uofmhealth.org/conditions‐treat‐
ments/gender‐confirmation‐surgery (last visited July 26, 2019) (explaining
the available options for gender confirmation surgery in the University of
Michigan Health System). For the sake of consistency, however, I use the
term “SRS” here, as it is the label given to this surgery by the majority, the
parties, and the WPATH Standards.
30 No. 18‐2075
an individual prisoner. Id. at 558–59. We concluded that “[i]t
is well established that the Constitution’s ban on cruel and
unusual punishment does not permit a state to deny effective
treatment for the serious medical needs of prisoners. … Re‐
fusing to provide effective treatment for a serious medical
condition serves no valid penological purpose and amounts
to torture.” Id. at 556. Our bottom line was simple: “Just as the
legislature cannot outlaw all effective cancer treatments for
prison inmates, it cannot outlaw the only effective treatment
for a serious condition like [gender dysphoria].” Id. at 557.
Recently, in Estate of Clark, we recognized that “[t]he Su‐
preme Court has long held that prisoners have an Eighth
Amendment right to treatment for their ‘serious medical
needs,’” 865 F.3d at 553, and thus that this right is clearly es‐
tablished. “For purposes of qualified immunity, that legal
duty need not be litigated and then established disease by dis‐
ease or injury by injury.” Id. The majority opinion now seems
to walk back the latter statement. But in doing so it confuses
the legal definition of the clearly established right with the
factual question of the medical necessity of a particular treat‐
ment for a particular patient.
Our inquiry should be simple: first, we must determine
whether Campbell suffers from a medical need that is clearly
established as objectively serious; second, we must determine
whether, as a subjective matter, it was clear to the defendants
that they were being deliberately indifferent to Campbell’s
objectively serious medical need.
The first half of this inquiry is easy. We recognized in 1997
that “[g]ender dysphoria … is a serious psychiatric disorder.”
Maggert, 131 F.3d at 671. It has thus been established for more
than 20 years that gender dysphoria is a serious medical need;
No. 18‐2075 31
commendably, the defendants in this litigation do not con‐
tend that it is not. See also Fields, 653 F.3d at 554–55; Meri‐
whether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (holding
that “plaintiff’s complaint [asserting that she received no
treatment for her gender dysphoria] does state a ‘serious
medical need’”).
That takes us to the second inquiry: whether the defend‐
ants were deliberately indifferent in refusing Campbell’s re‐
quests for surgery. Because the deliberate indifference inquiry
is a subjective one, it necessarily “turns on [a defendant’s]
mental state, and it is well established what the law requires
in that regard.” Zaya v. Sood, 836 F.3d 800, 807 (7th Cir. 2016).
If a defendant “consciously disregard[s] the risks of [denying
an inmate’s medical care], then his conduct violates clearly es‐
tablished law under the Eighth Amendment.” Id. at 807–08.
Proving someone’s state of mind is always difficult. See
Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc)
(“Rarely if ever will an official declare, ‘I knew this would
probably harm you, and I did it anyway!’”). But it is not im‐
possible: circumstantial evidence pointing to deliberate indif‐
ference can be gathered in medical cases just as in others. See
id. The obvious case is a defendant who sees a suffering in‐
mate and ostentatiously does nothing to help her. See, e.g.,
Mitchell v. Kallas, 895 F.3d 492, 499 (7th Cir. 2018) (“Prison of‐
ficials have been on notice for years that leaving serious med‐
ical conditions, including gender dysphoria, untreated can
amount to unconstitutional deliberate indifference.”). None‐
theless, that is the beginning, not the end, of the deliberate‐
indifference inquiry. See Zaya, 836 F.3d at 805 (“[W]e have
also made clear that an inmate need not show that he was ‘lit‐
erally ignored’ to prevail on a deliberate‐indifference claim.”).
32 No. 18‐2075
A plaintiff may prove deliberate indifference through evi‐
dence that the defendant’s treatment was far outside of med‐
ical norms. “[I]f the defendant’s chosen ‘course of treatment’
departs radically from ‘accepted professional practice,’ a jury
may infer from the treatment decision itself that no exercise
of professional judgment actually occurred.” Id. (quoting
Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014)). Similarly, it
has long “been established that the choice of an ‘easier and
less efficacious treatment’ can demonstrate that the actor dis‐
played ‘deliberate indifference … rather than an exercise of
professional judgment.’” Roe v. Elyea, 631 F.3d 843, 861 (7th
Cir. 2011) (internal citation omitted) (quoting Estelle v. Gamble,
429 U.S. 97, 104 n.10 (1976)). Finally, “[a]nother situation that
might establish a departure from minimally competent med‐
ical judgment is where a prison official persists in a course of
treatment known to be ineffective.” Petties, 836 F.3d at 729–30.
Importantly, whether a defendant had a deliberately indif‐
ferent state of mind is not a legal question; it is a factual one.
See Zaya, 836 F.3d at 808 (“As we’ve explained, that’s [i.e.
whether the defendant was deliberately indifferent] a ques‐
tion of fact that needs to be resolved by a jury.”); Petties, 836
F.3d at 728 (“We must determine what kind of evidence is ad‐
equate for a jury to draw a reasonable inference that a prison
official acted with deliberate indifference.” (emphasis
added)). We can thus resolve this case now only if there is no
disputed issue of material fact on this point.
The question whether a particular course of treatment for
an objectively serious medical condition amounts to deliber‐
ate indifference can be answered only with evidence from the
medical community. For that reason, courts cannot look to
outdated factual evidence from past cases to determine
No. 18‐2075 33
whether some course of treatment is within acceptable
boundaries. If the medical community uniformly decides that
a recent advance is the only proper course of treatment, a de‐
fendant cannot rely on a case from before that advance oc‐
curred to say that her outdated treatment choice was reason‐
able. A court’s role is only to determine whether a plaintiff has
put forward sufficient evidence to allow a factfinder to con‐
clude that the treatment she received was so far outside the
bounds of medical professional judgment that it amounted to
deliberate indifference.
II
What, then, is the evidence about treatments for gender
dysphoria? Is it undisputed that responsible doctors might
choose the course that Wisconsin followed, or is there evi‐
dence that, if believed by a jury, would show that Wisconsin’s
choice was so far out of line with accepted practice that it
amounted to deliberate indifference? We do not write here on
a clean slate. In Fields, the district court “addressed both hor‐
mone therapy and sex reassignment surgery,” and we upheld
its finding that banning either treatment despite its medical
necessity violated the Eighth Amendment. Fields, 653 F.3d at
558–59. While no other court of appeals has dealt with a pris‐
oner’s claim for SRS in the context of qualified immunity, our
sister circuits are largely in accord about whether the denial
of SRS can violate the Eighth Amendment: It can. See Rosati v.
Igbinoso, 791 F.3d 1037, 1040 (9th Cir. 2015) (holding that the
denial of SRS stated a claim under the Eighth Amendment);
De’lonta v. Johnson, 708 F.3d 520, 525–26 (4th Cir. 2013) (same).
The cases denying a plaintiff’s claim for SRS do so not because
the denial of SRS can never be deliberate indifference, but be‐
cause the factual record before them did not contain evidence
34 No. 18‐2075
that, if believed, would show that only SRS would be appro‐
priate for that plaintiff. See Lamb v. Norwood, 899 F.3d 1159,
1162–63 (10th Cir. 2018). In Lamb, the court noted that the
“sparseness of the summary judgment record precludes a rea‐
sonable fact‐finder from inferring deliberate indifference.” Id.
It also relied on the fact that “Paul Corbier, M.D. stated under
oath that Michelle’s existing treatment has proven beneficial
and that surgery is impractical and unnecessary in light of the
availability and effectiveness of more conservative therapies.”
Id. Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) (en banc), is
similar. There the First Circuit rejected Kosilek’s plea for SRS,
but it went out of its way to say that “this case presents unique
circumstances; we are simply unconvinced that our decision
on the record before us today will foreclose all litigants from
successfully seeking SRS in the future. Certain facts in this
particular record—including the medical providers’ non‐uni‐
form opinions regarding the necessity of SRS, Kosilek’s crim‐
inal history, and the feasibility of postoperative housing—
were important factors impacting the decision.” Id. at 91. It is
also noteworthy that the First Circuit decided Kosilek only af‐
ter a lengthy trial. Id. at 74–81 (describing the trial record);
Kosilek v. Spencer, 889 F. Supp. 2d 190, 212 (D. Mass. 2012)
(making findings of fact after “a 28‐day trial”).
The one court of appeals to foreclose SRS entirely said that
it was doing so based on a lack of record evidence. See Gibson
v. Collier, 920 F.3d 212, 220–21 (5th Cir. 2019). In Gibson, the
Fifth Circuit held that Gibson could not survive summary
judgment because she had provided no evidence that SRS was
the only medically acceptable treatment option for her. Id. She
“did not dispute that the medical controversy” over SRS—
which the Fifth Circuit found existed based on Kosilek—“con‐
tinues to this day.” Id. at 221. Campbell, by contrast, has
No. 18‐2075 35
produced precisely the evidence that the Fifth Circuit wanted.
As the majority opinion notes, Campbell’s experts have testi‐
fied that SRS is both medically necessary for her and uncon‐
troversial within the medical community. Indeed, Dr. Kathy
Oriel opined that “‘no physician with adequate expertise and
experience in gender medicine would’ dispute Campbell’s
need for sex‐reassignment surgery.” Ante at 11. If the trier of
fact credited that testimony, Campbell could prevail.
The majority attempts to distinguish De’lonta because it
was an appeal of a motion to dismiss under 28 U.S.C. § 1915A,
and because the plaintiff there had not yet been evaluated by
a gender‐identity medical specialist. Ante at 21 n.2. But just as
in a motion‐to‐dismiss posture, in a qualified immunity inter‐
locutory appeal we must draw inferences and resolve factual
disputes in the plaintiff’s favor. And the fact that the defend‐
ants in De’lonta had not yet allowed De’lonta to see a specialist
has no bearing on the legal question whether refusing to pro‐
vide universally accepted surgery would violate the Eighth
Amendment. As the Fourth Circuit recognized, a surgical
consultation was merely one step toward curing the potential
constitutional violation. See De’lonta, 708 F.3d at 526 & n.4.
The Ninth Circuit’s decision in Rosati, which rests on a
procedural and factual posture similar to that in De’lonta, is
also instructive. There the court held that Rosati stated an
Eighth Amendment claim despite prison officials having en‐
gaged a medical consultant, because the consultant was “a
physician’s assistant with no experience in transgender med‐
icine.” Rosati, 791 F.3d at 1040. While Cynthia Osborne, the
defendants’ outside consultant in our case, does specialize in
gender identity issues, she is not a doctor. And Campbell has
adduced significant evidence that Osborne’s opinion about
36 No. 18‐2075
the need for surgery is not only incorrect, it is also well out‐
side the bounds accepted by the medical community. This
presents a question of fact for a trial, where the trier of fact
will decide whether to accept or reject Campbell’s views.
As the district court recognized, when viewed in the light
most favorable to Campbell, the evidence shows that despite
being treated with hormones, Campbell’s gender dysphoria
has not improved. She has continued to threaten self‐castra‐
tion and to experience suicidal ideation. The defendants are
aware of Campbell’s continued suffering and have neverthe‐
less refused her further treatment. Campbell’s experts have
opined that no reasonable medical professional would recom‐
mend any course of treatment in her case except surgery. The
majority opinion swipes this evidence away. Instead it
chooses to reach its own conclusion that, despite members of
the medical community swearing to the contrary, SRS is not
so well‐established that Kallas could be deliberately indiffer‐
ent by refusing to provide it. But that is a conclusion of fact
that lies outside our competence. It also rests on the flawed
legal basis of an “injury by injury” determination of clearly
established law.
I respectfully dissent.