On August 23, the Ninth Circuit Court of Appeals ordered the state of Idaho to provide and pay for a prisoner’s so-called gender transition surgery. According to The Daily Signal, the prisoner, “Adree Edmo is a convicted sex offender who is scheduled to be released from jail in 2021. Edmo was diagnosed with gender dysphoria in 2012, identifies as a woman, and is currently housed in a men’s prison.” 

Absurdly, the Court ruled that Edmo has a constitutional right to a free gender-transition surgery provided by the Idaho taxpayers. I’ve read the Constitution, and no where did I find that a prisoner has the constitutional right to a free ‘so-called’ sex change. 

Yet, the Ninth Circuit concocted this right out of the Eighth Amendment’s prohibition on cruel and unusual punishment. The Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 

The Court held 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 the gender-transition surgery is not provided.

Now, who honestly thinks that Congress meant to mandate a prisoner’s gender-transition surgery when they passed the Bill of Right’s Eighth Amendment’s prohibition on cruel and unusual punishment? I doubt anyone honestly thinks that, which highlights the ludicrous reasoning of this opinion. Indeed, the Court admits that they are rewriting the Eighth Amendment for all intents and purposes. “We apply the dictates of the Eighth Amendment today in an area of increased social awareness: transgender health care.” The phrase “increased social awareness” indicates that the Court knows the Founders never intended for the Eighth Amendment to mandate free so-called sex changes for prisoners.

Several other courts around the country, including the Fifth Circuit Court of Appeals have ruled that the Eighth Amendment does not require states to provide these surgeries to their prisoners. In a similar case earlier this year, the Fifth Circuit held that, “A state does not inflict cruel and unusual punishment by declining to provide sex reassignment surgery to a transgender inmate. Under established precedent, it can be cruel and unusual punishment to deny essential medical care to an inmate. But that does not mean prisons must provide whatever care an inmate wants. Rather, the Eighth Amendment ‘proscribes only medical care so unconscionable as to fall below society’s minimum standards of decency.’”

Idaho Gov. Brad Little should be given much credit as he stated that the ruling will be appealed to the United States Supreme Court. Gov. Little said in a statement, “The hardworking taxpayers of Idaho should not be forced to pay for a convicted sex offender’s gender reassignment surgery when it is contrary to the medical opinions of the treating physician and multiple mental health professionals. I intend to appeal this decision to the U.S Supreme Court. We cannot divert critical public dollars away from the higher priorities of keeping the public safe and rehabilitating offenders.” 

This order by the Ninth Circuit creates a circuit split, where some courts in an area of the country have ruled differently on this issue than other courts in a different part of the country. This split increases the likelihood that that Supreme Court will choose to hear the case in order to resolve the split and keep the law uniform across the country. So, the fight over this crazy case will continue, with hopefully a better judicial decision in the future. No Americans should be forced to pay for a criminal’s sex change.