Adree Edmo v. Corizon, Inc. , 935 F.3d 757 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADREE EDMO, AKA Mason Edmo, No. 19-35017
Plaintiff-Appellee,
D.C. No.
v. 1:17-cv-00151-
BLW
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.
ADREE EDMO, AKA Mason Edmo, No. 19-35019
Plaintiff-Appellee,
*
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.
2 EDMO V. CORIZON
v. D.C. No.
1:17-cv-00151-
IDAHO DEPARTMENT OF BLW
CORRECTIONS; AL RAMIREZ, in his
official capacity as warden of Idaho
State Correctional Institution; HENRY OPINION
ATENCIO; JEFF ZMUDA; HOWARD
KEITH YORDY; RICHARD CRAIG;
RONA SIEGERT,
Defendants-Appellants,
and
CORIZON, INC.; SCOTT ELIASON;
MURRAY YOUNG; CATHERINE
WHINNERY,
Defendants.
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.
EDMO V. CORIZON 3
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.
4 EDMO V. CORIZON
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 “need-
narrowness-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
EDMO V. CORIZON 5
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
6 EDMO V. CORIZON
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 Defendants-
Appellants 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 Defendants-
Appellants 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 &
EDMO V. CORIZON 7
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.
8 EDMO V. CORIZON
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-to-
female 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
EDMO V. CORIZON 9
Health of Transsexual, Transgender, and Gender
Nonconforming People (“WPATH Standards of Care”).
And the State 1 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, well-
supported 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.”
10 EDMO V. CORIZON
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.
EDMO V. CORIZON 11
I. Background 2
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-the-
United-States.pdf.
Gender dysphoria 4 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).
12 EDMO V. CORIZON
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.
EDMO V. CORIZON 13
(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.
14 EDMO V. CORIZON
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.
EDMO V. CORIZON 15
“[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”;
16 EDMO V. CORIZON
(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 Gender-
Affirming 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
EDMO V. CORIZON 17
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
18 EDMO V. CORIZON
(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
EDMO V. CORIZON 19
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.”
20 EDMO V. CORIZON
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
EDMO V. CORIZON 21
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.
22 EDMO V. CORIZON
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.
EDMO V. CORIZON 23
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
24 EDMO V. CORIZON
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 multi-
disciplinary 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
EDMO V. CORIZON 25
“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 self-
castration.
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
26 EDMO V. CORIZON
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).
EDMO V. CORIZON 27
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
28 EDMO V. CORIZON
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.
EDMO V. CORIZON 29
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.
30 EDMO V. CORIZON
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 self-
harm – 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
EDMO V. CORIZON 31
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
32 EDMO V. CORIZON
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 decision-
making 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
EDMO V. CORIZON 33
necessary treatment to alleviate that.” He elaborated that
Edmo’s depression and anxiety are not driving Edmo’s self-
castration 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 self-
castration, 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
34 EDMO V. CORIZON
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.
EDMO V. CORIZON 35
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 real-
life 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
36 EDMO V. CORIZON
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
EDMO V. CORIZON 37
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
38 EDMO V. CORIZON
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).
EDMO V. CORIZON 39
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 self-
harm” 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.
40 EDMO V. CORIZON
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
EDMO V. CORIZON 41
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
42 EDMO V. CORIZON
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.
EDMO V. CORIZON 43
“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 need-
narrowness-intrusiveness findings. At the start of its
December 13, 2018 order, the district court explained that
any injunction must meet the PLRA’s need-narrowness-
intrusiveness 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
44 EDMO V. CORIZON
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.
EDMO V. CORIZON 45
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
46 EDMO V. CORIZON
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.
EDMO V. CORIZON 47
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.
14Because the State does not contest the other injunction factors, we
do not address them.
48 EDMO V. CORIZON
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.
EDMO V. CORIZON 49
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
50 EDMO V. CORIZON
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
EDMO V. CORIZON 51
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
52 EDMO V. CORIZON
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
EDMO V. CORIZON 53
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 peer-
reviewed 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 post-
operatively. 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
54 EDMO V. CORIZON
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
EDMO V. CORIZON 55
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 non-
institutional 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.
56 EDMO V. CORIZON
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.
EDMO V. CORIZON 57
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.
58 EDMO V. CORIZON
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 self-
castration attempts demonstrate deficient treatment for
“severe genital-focused gender dysphoria.” He rejected the
notion that Edmo’s depression and anxiety drove her self-
castration 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
EDMO V. CORIZON 59
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
60 EDMO V. CORIZON
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, evidence-
based 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.”
EDMO V. CORIZON 61
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
62 EDMO V. CORIZON
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
EDMO V. CORIZON 63
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.
64 EDMO V. CORIZON
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,
EDMO V. CORIZON 65
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
66 EDMO V. CORIZON
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.
EDMO V. CORIZON 67
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
68 EDMO V. CORIZON
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-13-
87, 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 peer-
reviewed 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.
EDMO V. CORIZON 69
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
70 EDMO V. CORIZON
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.”).
EDMO V. CORIZON 71
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 self-
castration 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.
72 EDMO V. CORIZON
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.
EDMO V. CORIZON 73
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 “self-
medicat[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 self-
castration 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
74 EDMO V. CORIZON
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
EDMO V. CORIZON 75
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
76 EDMO V. CORIZON
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 then-
current 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
EDMO V. CORIZON 77
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.
78 EDMO V. CORIZON
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
EDMO V. CORIZON 79
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).
80 EDMO V. CORIZON
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
EDMO V. CORIZON 81
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
82 EDMO V. CORIZON
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
EDMO V. CORIZON 83
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
84 EDMO V. CORIZON
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.
EDMO V. CORIZON 85
***
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.