BOISE — By Tuesday, an Idaho transgender woman, currently housed in a men’s prison, must receive the first presurgical treatment in preparation for full gender confirmation surgery, a federal district judge ordered Thursday, almost a year after the judge ordered the surgery to take place.
In making that decision, U.S. District Judge B. Lynn Winmill was simply reinstating an order he made to the Idaho Department of Correction and its healthcare partner in October. That order required the first treatment be completed by Nov. 8, but the order was later vacated. Attorneys for the department and Corizon had asked the judge to stay the order before it was vacated. In vacating the motion, the judge also ruled the matter would be decided at Thursday’s hearing.
Thursday’s decision was significant because it gave the Idaho Department of Correction and its healthcare partner, Corizon Health, another hard deadline to provide the first preliminary treatment to 32-year-old Adree Edmo, a transgender woman incarcerated until 2021. That treatment is a hair removal according to court documents.
Edmo is a transgender woman incarcerated until 2021, and convicted of sexually abusing a 15-year-old boy in 2011. Prison doctors in 2012 diagnosed her with gender dysphoria, a condition in which the dissonance between a person’s gender at birth and the gender with which they identify is significant, distressing and hurtful.
In court in 2018, Edmo testified she cuts herself when the dysphoria is especially bad and has tried to castrate herself twice in prison. She has attempted suicide more than once in her lifetime, according to court documents. Gender confirmation surgery is an accepted treatment for extreme cases of gender dysphoria, but Edmo’s doctors in prison denied her request for surgery.
In 2017, she sued the Idaho Department of Correction and Corizon Health as a result of their decision. In December, Winmill ordered the two entities to provide the surgery within six months.
In response, those entities appealed the case to the 9th Circuit Court of Appeals, which, in August, also ruled Edmo should receive the surgery. Later, the department and Corizon asked the 9th Circuit for an “en banc” review — which means a panel of 11 judges in the circuit would hear the case at once, rather than the three-judge panel that made the August decision.
The 9th Circuit Court has not yet decided if it will grant the motion for the en banc review. While the court receives roughly 1,500 such requests each year, according to its website, it usually grants between 15 to 20 requests.
Idaho Gov. Brad Little has since vowed to take the case to the U.S. Supreme Court if necessary to block the surgery.
Since the 9th Circuit Court’s decision, the case has largely been on hold as attorneys filed paperwork trying to work out specific details. In October, the 9th Circuit Court allowed Winmill to order Edmo must receive treatments in preparation for the surgery, even though the surgery itself is still legally in question. The last month has seen more motions, replies and reports as the Idaho Department of Correction and Corizon asked for clarification on certain issues.
8th AMENDMENT RIGHTS
The recent delay was something Lori Rifkin, one of Edmo’s attorneys, appeared exasperated in court Thursday, at the James A. McClure Federal Building and U.S. Courthouse in Boise.
“You cannot continue to litigate cases for years and years and years while there is a real human being who is suffering. … We have spent an entire month chasing our tails,” Rifkin told Winmill.
In court Thursday, attorneys Brady Hall and Dylan Eaton, representing IDOC and Corizon, respectively, pointed out more than one type of gender confirmation surgery is available. Edmo never asked for a specific procedure, they said. According to case law, prison inmates — through their Eighth Amendment protection against cruel and unusual punishment — have a right to adequate medical treatment. They don’t, however, get to choose which treatment they receive if there are two equally adequate options available, Hall said.
“I think my clients, who are the medical providers, are asking some real reasonable questions, which is why I raise these questions with Your Honor,” Eaton told Winmill. “They said, ‘Which surgery are we supposed to provide?’”
According to a court document Edmo submitted Wednesday, in April she had met with the department’s chosen surgeon and specified which type of surgery she wanted. One option for surgery would simply remove her male genitalia without creating female genitalia, she wrote. In court, Hall and Eaton said the Idaho Department of Correction and Corizon would likely choose that option for surgery. In Wednesday’s court document, Edmo wrote, she did not want to undergo that procedure, because she did not feel it would adequately address her gender dysphoria or allow her to live as a woman, she wrote.
Because she is incarcerated, however, Edmo does not have the constitutional right to decide which surgery she receives while in prison, Eaton said.
In court, Rifkin said the case was less about transgender rights and more broadly about rights to medical care for people in prison.
“This case is about the constitutional requirement that prisons and their doctors provide medically adequate treatment for serious medical conditions … regardless of whether people find it distasteful or not,” Rifkin said.
‘AN UNTRUE STATEMENT’
Rifkin also claimed that, for months after Winmill’s December order to provide surgery, the Idaho Department of Correction and Corizon did not speak with a surgeon for Edmo — even though, in a status report to the court, they claimed they had.
“Defendants did not contact (the surgeon they chose to perform the surgery) for months,” Rifkin said. “Defendants did not contact any other surgeon for months. That is an untrue statement and it was represented again and again before this court.”
Edmo’s attorneys wrote in a March 19 court document that IDOC and Corizon claimed on Jan. 15 that they had spoken to a possible surgeon for Edmo.
The department and Corizon ultimately selected Dr. Geoffrey Stiller as the surgeon who would perform the surgery.
“On February 11, 2019, Plaintiffs’ counsel learned that no one from either IDOC or Corizon had contacted Dr. Stiller’s office or spoken with Dr. Stiller (or anyone else at his office) to schedule Ms. Edmo’s surgery or to inquire about pre-surgical and post-surgical requirements,” according to the document.
“Defendants have delayed compliance with the order,” Rifkin said, according to a transcript of a March conference call between Winmill and the case’s attorneys. “And a lot of the representations made by Mr. Hall and Mr. Eaton about what the surgeon requires are inaccurate. And our information is that they have never, in fact, spoken with the surgeon directly.”
In court Thursday, Eaton pushed back against those assertions.
“Ms. Rifkin doesn’t know what steps we took … to try to comply with the order to talk to surgeons,” he said. He later added, “We were working hard to try to comply with the order.”
Attorneys in the case are waiting to see if the 9th Circuit Court of Appeals will agree to hear the case en banc, Deborah Ferguson, another of Edmo’s attorneys, said Friday. Until that happens, the clock has stopped on the obligation of the Idaho Department of Correction and Corizon to provide Edmo with a full surgery.
But Ferguson said she was glad to see Winmill decide Edmo could begin presurgical appointments.
“We were glad to see the court had issued that order. … Defendants began with their flurry of appeals and motions, so now we’re back where we were, with a date set to begin appointments,” Ferguson told the Idaho Press after the hearing.
In court, Rifkin said simply beginning treatment would psychologically benefit Edmo.
Hall said he could not speak with the media about pending litigation.
“Truly, time is of the essence in this matter … simply because we have an inmate who is not only at great risk of self-harm, but even suicide,” Winmill said at the close of a hearing. “To allow the proceedings to move along without recognition of that reality is, I think, inappropriate.”