The left-leaning Ninth Circuit Court of Appeals has declined to rehear a three-judge ruling that mandated the state of Idaho provide a taxpayer funded “sex-change” for a male prisoner who believes he is a female. 

The prisoner seeking the free surgery is Adree Edmo who is a convicted sex offender scheduled to be released from jail in 2021. Edmo began living as a woman around age 21 and was diagnosed with gender dysphoria in 2012.

Prison officials have been providing Edmo with hormone therapy also since 2012. Due to the cross-sex hormones, Edmo has all of the secondary sex characteristics of a female. However, he still has male reproductive organs that, according to Edmo, “depress, embarrass and disgust” him. In 2015, he attempted to castrate himself.

Obviously, Edmo’s gender dysphoria is an extremely significant mental health problem, and his struggles are heartbreaking. In addition, these issues are complicated by Edmo’s major depressive disorder, anxiety and drug and alcohol addiction.

On August 23, 2019 a three-judge panel ruled that Edmo had a constitutional right to the sex change, since it was a “medically necessary treatment.” The panel had held that, “The medically necessary treatment for a prisoner’s gender dysphoria is gender confirmation surgery, and when 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.” 

In this new judgement from the Ninth Circuit, the court declined to rehear the case letting the three-judge panel’s decision stand. Ten judges, including six newly appointed Trump judges, dissented from the court’s decision not to rehear the case. 

Judge O’Scannlain, joined by eight other judges, said in dissent, “With its decision today, our court becomes the first federal court of appeals to mandate that a State pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment. The three-judge panel’s conclusion is as unjustified as it is unprecedented.” 

In response, Idaho Governor Brad Little issued a statement and vowed to appeal the judgment to the U.S. Supreme Court within 90 days.

“I am disappointed the majority of the Ninth Circuit declined to reverse its flawed decision,” Gov. Little said. “I am encouraged, however, that several judges recognized in dissenting opinions that the decision conflicts with decisions of multiple other circuits, goes well-beyond the Eighth Amendment’s text and original meaning, and is contrary to more than four decades of Supreme Court precedent. I remain committed to appealing this case to the U.S. Supreme Court — that effort is already under way — and to ensuring that Idaho taxpayers do not have to pay for a procedure that is not medically necessary.” 

The ruling by the Ninth Circuit creates a circuit split, meaning that different federal courts have ruled different ways on the same issue. This creates an imbalance in the application of the law, making it much more likely that the Supreme Court will feel obligated to take up the issue to restore equal application of the law.

In a nearly identical case before the Fifth Circuit Court of Appeals last year, the court held that the Eight Amendment is not violated when a state refuses to provide “sex-reassignment surgery” to individuals. Judge James Ho wrote, “A state does not inflict cruel and unusual punishment by declining to provide sex reassignment surgery to a transgender inmate. It cannot be cruel and unusual to deny treatment that no other prison has ever provided – to the contrary, it would only be unusual if a prison decided not to deny such treatment.”

The First Circuit Court of Appeals has also ruled on the issue, making the same decision that the Fifth Circuit did.

Let’s hope the Supreme Court accepts Idaho’s appeal, and rules that no taxpayer should be forced to pay for a so-called “sex-change” for prisoners.


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