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8th Amendement Jurisprudence and Transgender Inmates - the WPATH to Evolving Standards of Decency

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EIGHTH AMENDMENT JURISPRUDENCE AND
TRANSGENDER INMATES: THE “WPATH” TO
EVOLVING STANDARDS OF DECENCY
Bryce T. Daniels*
2021 MICH. ST. L. REV. 255
TABLE OF CONTENTS
INTRODUCTION ............................................................................... 255
I. A BROAD OVERVIEW OF THE CIRCUIT SPLIT ........................... 258
A. Kosilek v. Spencer—First Circuit..................................... 259
B. Gibson v. Collier—Fifth Circuit ...................................... 262
C. Edmo v. Corizon, Inc.—Ninth Circuit ............................. 263
II. RELEVANT ISSUES .................................................................... 266
A. Defining the Standard of Minimum Care ........................ 267
1. Federal-Court Jurisprudence .................................... 267
2. The Standards of Society Through State Actions ...... 270
B. The Wayward “WPATH” ................................................ 278
1. Changing American Society at Breakneck Speeds .... 280
2. An Examination of the Substantive Errors of the
Standards of Care ...................................................... 283
a. Observed Medical-Community Disagreement ... 283
b. Sources of the Standards ..................................... 287
III. THE REQUIRED COURSE GOING FORWARD ............................. 290
CONCLUSION ................................................................................... 292
INTRODUCTION
In recent years, the challenges facing those with the mental
illness gender dysphoria have become apparent in the American legal

* Legal Assistant, Wiley Rein LLP; B.A., Economic History, University of
Pennsylvania (2019). I am incredibly grateful to Molly E. Whitman of Akin Gump
Strauss Hauer & Feld LLP who helped author an amicus brief in Edmo v. Corizon,
Inc. that inspired my ideas for this Article. I am further indebted to Cole Wintheiser
(Penn Law ‘20) for providing me with a sounding board to test all ideas foreign and
familiar. Finally, I know that this Article would be a pale image of what it is without
the insight, fastidiousness, and expertise of the editors at the Michigan State Law
Review.

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system.1 Disagreement regarding whether “sex” in civil-rights statutes
protects one’s chosen gender identity from discrimination receives the
most attention, but there is another challenge equally as daunting—
access to mental healthcare for inmates suffering from gender
dysphoria.2
An early manifestation of tension between medical treatment
that prisons provide and additional medical treatment that inmates
desire is found in Estelle v. Gamble.3 J. W. Gamble was an inmate of
the Texas Corrections Department when he “was injured on
November 9, 1973, while performing a prison work assignment.”4
Gamble saw medical personnel on “17 occasions during a 3-month
span [who] treated his injury and other problems.”5 However, an Xray, which Gamble felt was necessary to diagnose and treat his lowerback pain, was not ordered as part of his treatment.6 Still feeling pain
even after other treatments, Gamble initiated the district-court action
alleging medical indifference to his pain in violation of the Eighth
Amendment.7
A near-unanimous Court found that constitutionally violative
“deliberate indifference to serious medical needs” by prison officials
could be determined with a two-part test.8 The first part, a subjective
test, examines whether prison officials acted with more than “an
inadvertent failure to provide adequate medical care.”9 The
implication is, therefore, that “a complaint that a physician has been
negligent in diagnosing or treating a medical condition does not state
a valid claim of medical mistreatment under the Eighth
Amendment.”10 The second part, an objective test, requires “acts or
omissions sufficiently harmful to evidence deliberate indifference to
1. See AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS, 451–59 (5th ed. 2013).
2. See 42 U.S.C. § 2000e-(2) (“It shall be an unlawful employment practice
for an employer—(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.”); Bostock v. Clayton Cnty., Ga., 140 S. Ct.
1731, 1734 (2020).
3. 429 U.S. 97, 102–04 (1976).
4. Id. at 98.
5. Id. at 97.
6. See id.
7. See id.
8. Id. at 104.
9. Id. at 105.
10. Id. at 106.

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serious medical needs.”11 The implications of this test are that there
must exist both an objective sufficient harm and an objective serious
medical need that must be remedied with medically necessary
treatment.12
Inmates with gender dysphoria have applied this same
philosophy of prison officials’ response to the medical needs resulting
from gender dysphoria. The medical treatment that the subsequent
actions have sought as remedy is known as sex-reassignment surgery
(SRS). Three sister circuits and their respective cases, those of
Kosilek, Gibson, and Edmo, are examined below in their facts,
outcomes, and methodologies.13 While all cases have been disposed of
and denied certiorari by the Supreme Court,14 the stream of action still
flows—and the debate rages on.15
Issues critical to the debate are readily found in reviewing the
cases. A primary point of contention regarding whether prisons must
provide SRS to inmates with gender dysphoria is whether SRS is
medically necessary. The scope of “medical necessity” in regard to
Eighth Amendment requirements is medical care that provides the
“minimal civilized measure of life’s necessities.”16 Minimal standards
of society are noted by federal-court jurisprudence to be found in
comparative state legislation and action. The analyses of such
legislation and action, via regulation and administrative rules
regarding both prison guidelines and medical guidelines, indicate that
SRS is provided by states spottily at best, and therefore, does not reach
the “consensus” required to deem SRS a medically necessary
treatment.17
As with any well-reasoned, good-faith community
disagreement, there are a number of states, agencies, and federal
courts that disagree, and the source of their disagreement originates
from a manual for transgender healthcare published by the World
11. Id.
12. See id.
13. See infra Part I.
14. See generally Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014), cert.
denied, 135 S. Ct. 2059 (2015); Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019), cert.
denied, 140 S. Ct. 653 (2019); Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019),
cert. denied, No. 19-1280, 2020 WL 6037411 (U.S. Oct 13, 2020) (mem.).
15. See Idaho Dep’t of Corr. v. Edmo, 140 S. Ct. 2800, 2800 (2020) (mem.)
(denying request for stay although Justice Thomas and Justice Alito would grant the
application).
16. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)).
17. See infra Section II.A.

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Professional Association for Transgender Health (WPATH).18
However, a deep dive into the sources used by WPATH to propagate
its Standards of Care (Standards) reveals that the sources often
blatantly disagree with the WPATH interpretation.19 For a manual that
has been given almost controlling weight in many venues regarding
an issue of the utmost importance—mental health—this is alarming.
The findings of medical disagreement regarding SRS and the
incongruency between WPATH evidence and its guidelines lead to the
conclusion that scrutiny of the Standards is warranted.20
This Article in no way seeks to reinvent federal-court
jurisprudence—that is a task beyond the scope of these writings.
Rather, this Article uses existing jurisprudence to identify the
appropriate modes for remedying errant judicial application in future
decisions. The lives of Kosilek, Gibson, and Edmo are but three
examples of the intersection of law and the place of transgender people
within the law. The principles that undergird their Eighth Amendment
challenges as well as the constitutionally required path forward
structure the lives of thousands more transgender Americans seeking
repose under the protections of the United States Constitution.
I. A BROAD OVERVIEW OF THE CIRCUIT SPLIT
Naturally, one should endeavor to understand the law in the
context of the lives it affects. For inmates suffering from gender
dysphoria, the challenge of receiving desired medical care while
incarcerated has, at the least, proven difficult.21 Below are three
examples of instances transgender inmates have challenged their
respective penitentiaries for the relief of providing SRS in light of the
emotional distress caused by their biological genitalia.
While there are plenty more examples among federal circuit
courts, Kosilek, Gibson, and Edmo remain representative of the
fundamental ways that judges have tackled the Eighth Amendment
question in regard to gender-dysphoric inmates.22 These insightful
writings are necessary starting points for understanding the gravity of
the decisions that the Supreme Court could soon review.
18. See infra Section II.B.
19. See infra Section II.B.
20. See infra Section II.B, Part III.
21. See infra Sections I.A–C.
22. See 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. 1987).

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A. Kosilek v. Spencer—First Circuit
Robert Kosilek,23 now called Michelle Kosilek, “was convicted
of first-degree murder and sentenced to a term of life imprisonment”24
for “strangl[ing] with a rope and a wire” his then-wife, Cheryl
McCaul, in 1992.25 Kosilek sued the Massachusetts Department of
Corrections (MDOC) in 1992 for “failure to provide direct treatment”
for his gender dysphoria.26 From 1994 through the appeal, Kosilek had
been housed at the medium-security, all-male Massachusetts
Correctional Institute (MCI) at Norfolk.27 Kosilek was only receiving
“supportive therapy” to cope with the distress caused by his gender
dysphoria.28 Insufficient to quell his distress and having been denied
for SRS, Kosilek sued for “both damages and injunctive relief
requiring the DOC to provide h[im] with [SRS].” 29
In evaluating the standard ordained by Estelle v. Gamble, the
district court explored whether “(1) [Kosilek] has a serious medical
need; (2) which has not been adequately treated; (3) because of
[MDOC] deliberate indifference; and (4) that deliberate indifference
is likely to continue in the future.”30 The district court ultimately found
that Kosilek had established a serious medical need that had not been
adequately treated, though it did not find that the Commissioner of

23. For purposes of streamlining the inconsistent use of pronouns, and
deference to precedent, Kosilek, Gibson, and Edmo will be referred to by the pronouns
consistent with biological sex. See Farmer, 511 U.S. at 829–32 (using male pronouns
for a biologically male, preoperative transsexual who “projects feminine
characteristics”); see also HARRY BENJAMIN, THE TRANSSEXUAL PHENOMENON 73
(1966) (noting, as the primary source for transgender research and inspiring the laterdiscussed WPATH Standards of Care, “speaking of a ‘male’ when there are (or were)
testicles and a penis, and of a ‘female’ when there are (or were) ovaries and a vagina”).
24. Kosilek v. Spencer, 774 F.3d 63, 68 (1st Cir. 2014).
25. Commonwealth v. Kosilek, 668 N.E.2d 808, 811 (Mass. 1996).
26. See Kosilek, 774 F.3d at 68–69. The First Circuit uses the term “gender
identity disorder” to retain congruence with previous litigation in an effort to keep
clear a very fact-intensive endeavor. See id. at 69 n.1. As this Subsection is simply
summarizing the case, it will defer to the DSM-5 phraseology change of “replac[ing]
the diagnostic name ‘gender identity disorder’ with ‘gender dysphoria.’” See AM.
PSYCHIATRIC ASS’N, GENDER DYSPHORIA 1 (2013).
27. See Kosilek, 774 F.3d at 81 (weighing Commissioner Dennehy’s
contemplation that “housing Kosilek at MCI–Framingham would pose a significant
risk of destabilizing that environment” as part of the relief requested in the appeal by
Kosilek).
28. Id. at 69.
29. Id.
30. Kosilek v. Maloney, 221 F. Supp. 2d 156, 184 (D. Mass. 2002).

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MDOC was able to “infer[] that there would be a substantial risk of
serious harm to Kosilek.”31
However, MDOC enacted a concerted policy shift that would
allow prisoners to “receive additional treatment beyond the level of
that received before entering prison, when such care was medically
required.”32 Medical recommendations were made by the University
of Massachusetts Correctional Health Program, and Kosilek began
“significant ameliorative treatment.”33
Dr. Seil, overseeing Kosilek’s treatment, “recommended that
Kosilek be considered for SRS after one year of hormonal treatment”
and “real-life experience” as the desired sex consistent with the Harry
Benjamin Standards of Care.34 Having attempted suicide twice while
in holding for the district-court trial, Kosilek once again expressed a
desire to pursue suicide if he could not only have his male genitalia
removed but also have them replaced with female genitalia.35
MDOC then forwarded this recommendation to the institution’s
medical consultant, Dr. Cynthia Osborne.36 Dr. Osborne noted that
Kosilek had previously been diagnosed with antisocial personality
disorder and “expressed belief that threats of self-harm or suicide
should serve as a contraindication to surgery, and that such threats
were not a valid or clinically acceptable justification for surgery.”37
Dr. Osborne contradicted Dr. Seil’s assessment that such surgery was
medically necessary in part by consulting the Standards of Care used
to evaluate Kosilek.38 The Harry Benjamin Standards cite as part of

31. Id. at 162, 190 (adding that MDOC’s broad policy decision was at least
partially rooted in “sincere security concerns”).
32. Kosilek, 774 F.3d at 69.
33. Id. at 69–70 (detailing treatments “provid[ing] female, genderappropriate clothing and personal effects, and electrolysis was performed to
permanently remove h[is] facial hair. Kosilek also began a course of hormonal
treatments recommended by an endocrinologist. These treatments resulted in ‘breast
development and shrinkage of h[is] testicles.’ All of the treatments described continue
to be offered to Kosilek to the present day.”).
34. See id. at 70; Walter Meyer III et al., The Harry Benjamin International
Gender Dysphoria Association’s Standards of Care for World Professional
Association for Gender Identity Disorders, Sixth Version, 13 J. PSYCH. & HUM.
SEXUALITY 1, 3–4 (2001).
35. See Kosilek, 774 F.3d at 69, 71.
36. See id. at 71.
37. Id. at 72.
38. See id.

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the criteria for genital surgery “satisfactory control of problems such
as sociopathy, substance abuse, psychosis and suicidality.”39
Dr. Osborne was also not convinced that the “real life”
experience could be fulfilled given the vast social differences of
incarcerated life versus life outside of prison.40 As a result, security
and housing concerns were once again raised given conflicting reports
of Kosilek’s preparedness for such a consequential procedure.41 On
June 10, 2005, MDOC acknowledged safety and security concerns as
well as Dr. Osborne’s evaluation to the district court and noted that
while the “significant ameliorative treatment” would continue,
MDOC would not pursue SRS.42
After extensive testimony, the district court ruled that Kosilek
had a serious medical need and that MDOC was deliberately
indifferent to that need and simply used security and conflicting
medical concerns as a pretext to avoid public and political backlash.43
Believing MDOC would continue to deny Kosilek SRS, “the district
court granted an injunction requiring that the [M]DOC provide
Kosilek with SRS.”44
Thus, the case was appealed to the First Circuit, which found that
the Eighth Amendment proscribes medical care that falls below
American society’s minimum standards of decency—and the
extensive historical treatment of Kosilek’s illness precluded the
“deliberate indifference” claim.45 MDOC was to continue “significant
ameliorative treatment” as well as form contingency plans should
suicide ideation erupt—though providing SRS was not required of the
prison.46

39. Meyer III et al., supra note 34, at 19. It is important to note that Version
7 of the Standards of Care abandons these exemplified conditions. See Gennaro
Selvaggi et al., The 2011 WPATH Standards of Care and Penile Reconstruction in
Female-to-Male Transsexual Individuals, 2012 ADVANCES UROLOGY 1, 6, tbl.2
(2012) (noting that new to Version 7 “sociopathy, substance abuse, psychosis, and
suicidal tendencies” were removed as eligibility-disqualifying factors due to Version
7’s “[n]o difference between eligibility and readiness”).
40. See Kosilek, 774 F.3d at 72.
41. See id. at 73.
42. Id. at 69, 74.
43. See id. at 81–82.
44. Id.
45. See id. at 96 (citing Estelle v. Gamble, 429 U.S. 97, 102–05 (1976)).
46. See id.

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B. Gibson v. Collier—Fifth Circuit
Scott Lynn Gibson, now called Vanessa Lynn Gibson, was
convicted on two counts of aggravated robbery.47 While incarcerated,
Gibson further committed, and was convicted of, the additional crimes
of aggravated assault, possession of a deadly weapon, and murder.48
Gibson is slated to serve through May 2031 with eligibility for parole
in April 2021.49 During wardship under the Texas Department of
Criminal Justice (TDCJ), Gibson requested, beyond the hormone
therapy that the prison had acceded to, SRS and was denied.50 Gibson
claimed the TDCJ exercised deliberate indifference in this judgment
and commenced legal action.51
The Fifth Circuit “accept[ed] Gibson’s invitation to reach his
deliberate indifference claim on the merits, rather than reverse based
on any procedural defects in the district court proceedings” as it
“would be a waste of time and resources for everyone involved (and
give false hope to Gibson) to remand for procedural reasons.”52 The
standard to be met was identical to the standard in Kosilek: (1) “Gibson
must first demonstrate a serious medical need,” and (2) “show that the
Department acted with deliberate indifference to that medical need.”53
The State of Texas did not contest that Gibson had a serious
medical need “in light of his record of psychological distress, suicidal
ideation, and threats of self-harm.”54 As the existence of the medical
need was not in contest, Gibson then “must show that officials acted
with malicious intent—that is, with knowledge that they were
withholding medically necessary care.”55 Per Estelle, the deprivation
of care must manifest as an “unnecessary and wanton infliction of
pain.”56 The Fifth Circuit noted that no Eighth Amendment claim
invoking “an unnecessary and wanton infliction of pain” can be made
“if a genuine debate exists within the medical community about the

47. See Gibson v. Collier, 920 F.3d 212, 216–17 (5th Cir. 2019).
48. See id. at 217.
49. See Offender Information Details: Scott Lynn Gibson, TEX. DEP’T
CRIM. JUST., https://offender.tdcj.texas.gov/OffenderSearch/offenderDetail.action
?sid=05374437 [https://perma.cc/8PMN-PBKS] (last visited Jan. 11, 2021).
50. See Gibson, 920 F.3d at 217.
51. See id. at 218.
52. Id. at 218–19.
53. Id. at 219.
54. Id.
55. Id. at 220.
56. Id. at 219 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

OF

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necessity or efficacy of that care.”57 Gibson accepted this standard and
that “he must demonstrate ‘universal acceptance by the medical
community.’”58
The Fifth Circuit, however, permitted an easier burden for
Gibson to satisfy by quoting from Kosilek that “[n]othing in the
Constitution mechanically gives controlling weight to one set of
professional judgments.”59 The doctrinal consequence is “where, as
here, there is robust and substantial good faith disagreement dividing
respected members of the expert medical community, there can be no
claim under the Eighth Amendment.”60 Gibson acknowledged the
controversy within the medical community but “would prefer a policy
that provides [SRS].”61
The Fifth Circuit echoed the First Circuit in Kosilek: for the
correctional facility to “cho[ose] one of two alternatives—both of
which are reasonably commensurate with the medical standards of
prudent professionals . . . is a decision that does not violate the Eighth
Amendment.”62 Gibson persisted in requesting a remand so that he
may plead his individual case for the medical necessity of SRS per
WPATH Standards of Care.63 However, the Fifth Circuit noted that
individual need cannot be shown since a declaration of individual
necessity still falls victim to Gibson’s admission that SRS is
controversial within the medical community and therefore cannot be
considered a medically necessary standard of care.64
C. Edmo v. Corizon, Inc.—Ninth Circuit
Mason Edmo, now called Adree Edmo, was convicted in 2012
for sexually abusing a fifteen-year-old boy at a house party65—Edmo
was twenty-one years of age at the time of the criminal offense and is
57. Id. at 220.
58. Id.
59. Id. (quoting Kosilek v. Spencer, 774 F.3d 63, 96 (1st Cir. 2014)).
60. Id. (citing Kosilek, 774 F.3d at 96).
61. Id. (emphasis added) (internal quotation marks omitted).
62. Kosilek, 774 F.3d at 90.
63. These standards of care are similar to those previously referred to as the
“Harry Benjamin Standards of Care” in Kosilek. See Meyer III et al., supra note 34,
at 1. The organization formally changed its name starting with the 7th edition of the
Standards of Care. See WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, STANDARDS
OF CARE FOR HEALTH OF TRANSSEXUAL, TRANSGENDER, AND GENDERNONCONFORMING PEOPLE 1 (2012).
64. See Gibson, 920 F.3d at 224.
65. See Edmo v. Corizon, Inc., 935 F.3d 757, 772 (9th Cir. 2019).

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set to be released in July 2021.66 The Ninth Circuit began by noting
that Edmo was afflicted by gender dysphoria and “ha[d] twice
attempted self-castration to remove h[is] male genitalia.”67 A note of
particular importance in this case, and for the overall analysis to be
conducted later, is that both Edmo and the State of Idaho “agree[d]
that the appropriate benchmark regarding treatment for gender
dysphoria is the [WPATH Standards].”68 The State of Idaho and its
healthcare contractor, Corizon, Inc., also did “not seriously dispute
that in certain circumstances” SRS “can be a medically necessary
treatment for gender dysphoria.”69
The Ninth Circuit then detailed the WPATH guidelines for
diagnosing gender dysphoria and the congruence with Edmo’s
particular situation.70 Edmo has identified “as female since age 5 or 6”
and been so affirmed in this view to be willing to receive multiple
disciplinary actions for presenting as female.71 The prison provided,
since Edmo’s incarceration, hormone therapy that achieved hormonal
confirmation, meaning that the maximum effects of the hormones had
been realized (e.g., “breast growth, body fat redistribution, and
changes in h[is] skin.”).72
However, Edmo’s distress had not subsided.73 Also afflicted by
major depressive disorder, anxiety, drug and alcohol addiction,
trauma, and suicidality, Edmo saw a psychiatrist, though not his
treating clinician, as he did “not believe [the clinician] [was] qualified
to treat h[is] gender dysphoria.”74 Edmo subsequently attempted
castration in 2015 and reported continued thoughts of castration
afterward.75 In 2016, Edmo was evaluated for SRS.76 Given that he
“looked pleasant and had a good mood” to prison staff, the Idaho
Department of Corrections (IDOC) did not believe SRS was medically

66. See IDOC Offender Search Details: Mason Dean Edmo, IDAHO DEP’T OF
CORR.,
https://www.idoc.idaho.gov/content/prisons/offender_search/detail/94691
[https://perma.cc/M82T-DT4V] (last visited Jan. 11, 2021).
67. Edmo, 935 F.3d at 767.
68. Id.
69. See id.
70. See id. at 769–70.
71. See id. at 772.
72. See id.
73. See id.
74. See id. at 772–73.
75. See id. at 772.
76. See id. at 773.

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necessary in Edmo’s case.77 This decision was uniformly agreed upon
by four separate doctors for the facility.78
Later in 2016, Edmo once again attempted castration and was
“feeling angry/frustrated that []he was not receiving the help desired
related to h[is] gender dysphoria.”79 Edmo continued hormone-therapy
treatments and routinely practiced bodily mutilation as a “selfmedicat[ion].”80 On April 6, 2017, Edmo filed a pro se complaint
where the district court found that Edmo failed on an Eighth
Amendment claim—then, the Ninth Circuit reviewed.81
Using the Estelle criteria, the Ninth Circuit found that Edmo
succeeded on an Eighth Amendment claim as a matter of districtcourt-found fact.82 In its analysis, the Ninth Circuit noted that “[a]
difference of opinion between a physician and the prisoner—or
between medical professionals—concerning what medical care is
appropriate does not amount to deliberate indifference.”83 However,
the Ninth Circuit qualified this by creating an exception if the “chosen
course of treatment ‘was medically unacceptable under the
circumstances.’”84 Per the district-court findings, the course of
treatment provided by IDOC was insufficient to assuage Edmo of the
distress that plagued him, and Edmo should succeed on his Eighth
Amendment claim.85
After establishing this standard, the Ninth Circuit then ardently
compared its ruling against Gibson, where the most tension was
generated.86 The Ninth Circuit wrote that the Fifth Circuit in Gibson
“relies on an incorrect, or at best outdated, premise: that ‘[t]here is no
medical consensus that [SRS] is a necessary or even effective
treatment for gender dysphoria.’”87 The reason being, as the State of
Idaho had not opposed, that medical consensus is exemplified by the
77. See id.
78. See id. at 773–74 (nuancing that while four doctors agreed, one of the
doctors had never personally treated gender dysphoria and was therefore not qualified
by IDOC policy to assess Edmo’s appropriateness for SRS).
79. Id. at 774.
80. See id.
81. See id. at 775.
82. See id. at 802.
83. See id. at 786 (quoting Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir.
2012), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir.
2014)).
84. Edmo, 935 F.3d at 786 (quoting Jackson v. McIntosh, 90 F.3d 330, 332
(9th Cir. 1996)).
85. See id. at 786–87.
86. See id. at 794–97.
87. Id. at 795.

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WPATH Standards of Care deigning that SRS may be medically
necessary in “appropriate circumstances.”88 To the Ninth Circuit,
Edmo exemplified such a circumstance.89
II. RELEVANT ISSUES
There are a number of considerations to be gleaned from this
diverse set of circuit-court opinions. The First Circuit in Kosilek
painstakingly took to evaluating the various expert reports that MDOC
and Kosilek, via the doctors contracted with MDOC, used to justify
their respective claims.90 The crux of the problem was simple: The
clear medical disagreement among the professionals gave rise to
genuine safety and security concerns for the staff and inmates at MCINorfolk.91 Given the lack of consensus and sincere institutional
concern for safety, Kosilek had not succeeded in proving that MDOC
was “deliberately indifferent” to providing medically necessary care.92
A very different approach was taken by the Fifth Circuit in
Gibson. Judge Ho, writing for the Fifth Circuit, took to examining SRS
itself as medically necessary or not.93 However, the Fifth Circuit
reviewed meaningfully different facts than those of the First Circuit.94
Gibson had conceded that consensus regarding the medical need of a
treatment was paramount and that “universal acceptance by the
medical community” was a high burden.95 Though the Fifth Circuit did
not hold Gibson to this self-imposed standard, the sentiment regarding
consensus remained, Gibson conceded this point, and the Fifth Circuit
held that well-reasoned members of the medical community disagreed
on the necessity of SRS as seen in Kosilek.96 The result was a doctrinal
one: SRS generally understood as a medical treatment cannot ever be
medically necessary because it lacks medical-community consensus.97
The Ninth Circuit, just as the First Circuit, sought to resolve this
issue on a matter of fact. In determining the necessity of treatment, the
Ninth Circuit deferred to factual determinations at the district-court
88. See id.
89. See id. at 786 (examining the medical necessity of SRS for Edmo
specifically).
90. See Kosilek v. Spencer, 774 F.3d 63, 68 (1st Cir. 2014).
91. See id. at 74.
92. See id. at 91.
93. See Gibson v. Collier, 920 F.3d 212, 216 (5th Cir. 2019).
94. See id. at 216–18.
95. See id. at 220.
96. See id. at 220, 216.
97. See id.

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level to evaluate whether SRS was appropriate.98 Like the Fifth
Circuit, however, the Ninth Circuit then took to evaluating the given
facts through a doctrinal perspective that adjudicated the claim on the
basis of whether the inmate’s distress was eased as a result of the
treatment.99 The consequence of this, as the Ninth Circuit described of
the district court’s findings, was that if Edmo was not satisfied by the
treatment received, regardless of the objective nature of the treatment,
then Edmo could succeed on an Eighth Amendment claim through a
subjective valuation of the inmate’s desires that must have been met
in order to end the unconstitutional emotional distress of not having
one’s preferred treatment provided by one’s prison system.100
A. Defining the Standard of Minimum Care
As the judicial perspectives of Kosilek, Gibson, and Edmo would
entail, there are two crucial questions to be asked in evaluating the
Eighth Amendment claim: (1) how is the minimum-care standard
defined, and (2) is this definition of minimum standard of care met by
SRS?
1. Federal-Court Jurisprudence
The Eighth Amendment succinctly states that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and
98. See Edmo v. Corizon, Inc., 935 F.3d 757, 803 (9th Cir. 2019).
99. See id. at 767, 793, 797–98.
100. The Ninth Circuit engaged in a pas de deux with circular logic in an
attempt to conceal this conclusion. The court feigned an examination of the medical
community’s opinion on SRS in raising the WPATH Standards to dispositive weight
by virtue that they “are the best standards out there” while simultaneously
acknowledging that “[t]here are no other competing, evidence-based standards . . . .”
See id. at 769. Status as “the best” due to a lack of any alternative improperly gives
the Standards a monopoly over what medical remedies federal courts may be
obligated to provide as relief to petitioners. See id. Of course, this deduction is not an
exaggeration. It is dogma explicitly endorsed by the court. See id. at 787. The Ninth
Circuit decreed that the State of Idaho’s experts “lacked expertise and incredibly
applied (or did not apply, in the case of the State’s treating physician) the WPATH
Standards of Care,” and as such, were rightfully given “virtually no weight.” Id.
Elevating the WPATH Standards to determinative heights under the guise of
consensus while summarily dismissing opposing medical opinion for the grave sin of
not comporting with the Standards is inescapably contradictory. However, is it the
dance that must be done to justify the subjective, inmate-driven determination that
“[SRS] is medically necessary because Edmo’s current treatment has been
inadequate, as evidenced by h[is] self-castration attempts.” See id. (emphasis added).

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unusual punishments inflicted.”101 The latter clause is referred to as the
Cruel and Unusual Punishments Clause, and the Supreme Court has
repeatedly “read with the gloss of the experience of those who framed”
these words as implicating that “[t]he [Eighth] Amendment must draw
its meaning from the evolving standards of decency that mark the
progress of a maturing society.”102
In order for this clause to have any significance, however, it must
first apply to “punishments.” Defining “punishments” has proven to
be more contentious than one might first conceive. Thomas Landry
describes three contemporary definitions of punishments: (1)
“strictural” punishments refer only to the imposed penal sentence and
are devoid of events or conditions in prison, (2) “experiential”
punishments are anything a prisoner may experience—from the
formal sentencing to events and conditions in prison regardless of
governmental intention of those events and conditions, and (3)
“subjectivist” punishments, which include the terms of the formal
penal sentencing as well as events and conditions in prison so long as
they are attributable to the subjective intent of a governmental actor.103
It is beyond the realm of this Article to discuss the merits of these
definitions, and the Article instead continues, as the Supreme Court
has, with the subjectivist definition.104
Evolving standards in regard to medical care are among these
subjectivist conditions, and they are explicated most clearly in Estelle
v. Gamble.105 In Estelle, the majority held that “[i]t is but just that the
public be required to care for the prisoner, who cannot by reason of
the deprivation of his liberty, care for himself.”106 As the “deprivation
of his liberty” would inhibit the prisoner’s ability to obtain medical
treatment for “serious medical needs,” the conclusion was simply that
a lack of necessary medical care would constitute an impermissible
“unnecessary and wanton infliction of pain.”107
From this judicially prescribed right to medical treatment while
incarcerated bore a natural question on the behalf of those resistant to
101. U.S. CONST. amend. VIII, § 1, cl. 3.
102. United States v. Rabinowitz, 339 U.S. 56, 70 (1950) (Frankfurter, J.,
dissenting); Trop v. Dulles, 356 U.S. 86, 101 (1958).
103. See Thomas K. Landry, “Punishment” and the Eighth Amendment, 57
OHIO ST. L.J. 1607, 1610 (1996).
104. See id. (observing that the “[subjectivist] definition now commands a
majority on the Supreme Court”).
105. 429 U.S. 97, 104–07 (1976).
106. Id. at 104 (quoting Spicer v. Williamson, 132 S.E. 291, 293 (N.C. 1926)).
107. Id.; Gregg v. Georgia, 428 U.S. 153, 173 (1976).

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providing medical care for inmates: Why not just ignore the medical
problems so that no action on the right to medical treatment could
ensue? This avoidance is understood as “deliberate indifference.”108
The Court in Estelle graciously provided a nonexhaustive list of
exemplar behaviors that could constitute deliberate indifference to
“serious medical needs.”109 Among them: nonprofessionally rooted
judgements of medical treatment, intentionally denying or delaying
necessary medical care, and interfering with the treatment once
administered.110
In order to establish deliberate indifference, two distinct tests
must be met.111 The first test is a subjective metric.112 In elaborating on
the subjective test in Estelle as something more than “inadverten[ce],”
the Court in Wilson v. Seiter held that when “the pain inflicted is not
formally meted out as punishment by the statute or the sentencing
judge, some mental element must be attributed to the inflicting officer
before it can qualify [as a violation of the Eighth Amendment].”113
Using these parameters, the Court in Farmer v. Brennan defined the
subjective test as satisfied by more than negligence but less than
malice.114
The second test is an objective metric analogous to “the
deprivation of a single, identifiable human need such as food, warmth,
or exercise.”115 The Court in Rhodes v. Chapman restated that
“judgment[s] should be informed by objective factors to the maximum
possible extent.”116 The “objective indicia” that a court was to look for
could be “derived from history, the action of state legislatures, and the
sentencing by juries.”117 Additionally, the Court clearly indicated that
108. See Estelle, 429 U.S. at 104–05.
109. See id. at 104.
110. See id. at 104–05.
111. See Wilson v. Seiter, 501 U.S. 294, 298 (1991) (describing deliberate
indifference as requiring satisfaction of both a “subjective component” and an
“objective component”).
112. See Estelle, 429 U.S. at 105–06.
113. See id.; Wilson, 501 U.S. at 300.
114. See 511 U.S. 825, 826, (1994) (declaring “[d]eliberate indifference
entails something more than negligence, but is satisfied by something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm will
result”).
115. Wilson, 501 U.S. at 304–05 (nuancing that “[n]othing so amorphous as
‘overall conditions’ can rise to the level of cruel and unusual punishment when no
specific deprivation of a single human need exists”).
116. 452 U.S. 337, 346 (1981); see also Rummel v. Estelle, 445 U.S. 263,
274–75 (1980) (quoting Coker v. Georgia, 433 U.S. 584, 592 (1977)).
117. See Rhodes, 452 U.S. at 346–47.

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the nature of these objective measures could change over time—as
could the actions of state legislatures.118
These tests are further constrained by the limiting principle
espoused that prisons are only required “to meet prisoners’ basic
health needs” and that treatment does “not have [to] be[] the best that
money c[an] buy.” 119 The point of inquiry, then, is what constitutes the
“minimal civilized measure of life’s necessities.”120
The Estelle court also provides guidance in this regard. The
“contemporary standards of decency” that guide the Eighth
Amendment’s application are “manifested in modern legislation.”121
Simply put, the minimum standards of care that prison systems are
obligated to follow are ordained by a holistic analysis of state
governments. In the American dual-federalist system, then, it is
entirely possible, if there is no clear consensus, that there are fifty-one
different minimum standards of medical care.
2. The Standards of Society Through State Actions
Michael H. Slutsky noted in his 1975 review of the variety of
state laws establishing the standards of medical care in the states that
“on the whole, the coverage of such regulations is scanty . . . and thus
each prison facility is free to establish its own standards.”122 This was
the position adopted by the vast majority of states that Slutsky
documented and therefore positioned to be the defining standards of
medical care.123 However, the inquiry into the actual medical standards
propagated by the relevant administrative entities was hardly
pursued.124 To illustrate the incredibly high threshold of objective
minimal standards of care, let us first examine a clear example of lifeor-death medical need not meeting this test.

118. See id. at 347.
119. See Brown v. Plata, 563 U.S. 493, 501 (2011); Mayweather v. Foti, 958
F.2d 91, 91 (5th Cir. 1992); see also Brown v. Beck, 481 F. Supp. 723, 726 (S.D. Ga.
1980).
120. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)).
121. Estelle v. Gamble, 429 U.S. 97, 103 (1976) (citing state laws as the
evidence of this “modern legislation”).
122. Michael H. Slutsky, The Rights of Prisoners to Medical Care and the
Implications for Drug-Dependent Prisoners and Pretrial Detainees, 42 U. CHI. L.
REV. 705, 709 (1975).
123. See id.
124. See id. at 708–09.

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In January 2002, the California Department of Corrections (Cal
DOC) financed and conducted its first inmate heart transplant. 125 The
spokesman for Cal DOC referenced federal-court decisions regarding
deliberate indifference to serious medical needs and rationalized that
as the inmate would die without the heart transplant, Cal DOC was
obligated to provide the treatment.126 The reasoning was simple
enough: If there is a medical treatment, especially one that life and
death hinge upon, then an inmate has a constitutional right to that
medical treatment.127
However, this is a much different standard than the one
propagated by Estelle.128 The Court’s directive is not to “provide
[inmates] with the most sophisticated care that money can buy,” but
rather “that an inmate deserves adequate medical care.”129 As
illuminated by the Court in Rhodes, the measure of adequacy is
fulfilled by the objective “minimal civilized measure of life’s
necessities.”130 To evaluate this standard, as the Rhodes Court
suggests, let us once again turn to the acts of state legislatures.131
Contemporary with the 2002 Cal DOC heart transplant, a study from
1998 illustrated that only twenty-five of forty-nine states and the
Federal Bureau of Prisons even offered organ transplants broadly, not
speaking to hearts specifically.132 Undoubtably, the necessity of
cardiac functionality had not faded as a precondition to human life by
2002. Does this mean that half of the states in the nation were acting
unconstitutionally?
125. See Prisoner Gets $1M Heart Transplant, CBS NEWS (Jan. 31, 2002, 8:31
AM),
https://www.cbsnews.com/news/prisoner-gets-1m-heart-transplant/
[https://perma.cc/DT5J-Z7EP].
126. See id. (referencing the Court in Estelle and Jackson v. McIntosh, 90 F.3d
330 (9th Cir. 1996) (holding that the prison must provide the kidney transplant as the
withholding could be attributed to improper personal animus thereby constituting
deliberate indifference)).
127. See id.
128. See Carrie S. Frank, Must Inmates Be Provided Free Organ
Transplants?: Revisiting the Deliberate Indifference Standard, 15 G EO. MASON U.
CIV. RTS. L.J. 341, 345 (2005).
129. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987).
130. Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
131. See id. at 346–47.
132. See DEBORAH LAMB-MECHANICK & JULIANNE NELSON, PRISON HEALTH
CARE SURVEY: AN ANALYSIS OF FACTORS INFLUENCING PER CAPITA COSTS 50 (n.d.).
Many of the states’ relevant policies regarding organ transplants have remained
unchanged, so the proportion of states denying organ transplants should be considered
to be roughly equivalent as the Lamb-Mechanick and Nelson study shows. See, e.g.,
ILL. ADMIN. CODE tit. 20, § 415.80 (2005).

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Not necessarily, but why? The permissibility of prisons’ refusal
to fund medically necessary treatments, such as heart transplants, is
owed to the objective test for deliberate indifference.133 Cause for
deliberate indifference can only be found by deliberate denial of
treatments that fall within the purview of society’s minimum standards
of care.134 These objective standards of care, as the Rhodes Court
explicates, can be found in examining relevant state regulations, and,
in the case of organ transplants, only about half of the states’ prisons
financed organ transplants broadly.135 If every single one of these
states had provided heart transplants, then that would still leave the
standards of care regarding heart transplants split between obligatory
and not. As the Court stated in Estelle, “[T]he primary concern of the
drafters was to proscribe ‘torture[s]’ and other ‘barbar[ous]’ methods
of punishment.”136 By definition of the objective standard, depriving
inmates of medical treatments that do not reach society’s minimum
standards of care cannot be “tortur[ous]” and “barbar[ous]”—nor can
the deprivation constitute deliberate indifference.137
The same principle applies to SRS for gender-dysphoric
inmates.138 Of the fifty states, their respective correctional
administrative agencies, and Washington D.C., five states explicitly
acknowledge or provide a path for SRS upon exhibited medical need
based on “community standards.”139 Eight states provide for elective
133. See Fernandez v. United States, 941 F.2d 1488, 1493 (11th Cir. 1991)
(upholding the Federal Bureau of Prisons’s guideline of requiring a prisoner to
establish his ability to pay for an organ-transplant procedure prior to granting a
medical furlough).
134. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
135. See Rhodes, 452 U.S. at 347; LAMB-MECHANICK & NELSON, supra note
132, at 50.
136. See Estelle, 429 U.S. at 102.
137. See supra notes 116–117 and accompanying text.
138. See Kosilek v. Spencer, 774 F.3d 63, 96 (1st Cir. 2014); Gibson v.
Collier, 920 F.3d 212, 216 (5th Cir. 2019); White v. Farrier, 849 F.2d 322, 325 (8th
Cir. 1988) (noting that in regard to SRS that “the [Supreme] Court has expanded the
reach of the eighth amendment to parallel society’s evolving standards of
decency. Denial of medical care that results in unnecessary suffering in prison is
inconsistent with contemporary standards of decency and gives rise to a cause of
action . . . .”) (citation omitted).
139. See ALA. DEP’T OF CORR., ADMIN. REGUL. NO. 602 (2007) (“Sexual
Reassignment Therapy: A treatment for transsexuals in which hormone medications
or surgical procedures are utilized to alter a person’s physical appearance, in an
attempt to adopt the physical characteristics of the opposite gender.”); CAL. CORR.
HEALTH CARE SERVS., CCHCS/DHCS CARE G UIDE: TRANSGENDER 29 (2020)
(detailing criteria to be met for SRS to be considered); MASS. DEP’T OF CORR.,
IDENTIFICATION, TREATMENT, & CORR. MGMT. OF INMATES DIAGNOSED WITH GENDER

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therapies that by regulatory text do not disallow SRS.140 Two states
explicitly preclude SRS as an obligatory medical treatment.141 Thirtyfour states and D.C. institute policies describing that mental-health
services be made available for medical necessities, medical need, or
some other baseline equivalent guided by the minimal legal
obligation.142
DYSPHORIA § 652.09(A) (2016) (“[S]ex reassignment surgery, removal or
augmentation of breasts, removal of testicles, etc. shall be evaluated on a case-by-case
basis.”); MICH. DEP’T OF CORR., POL’Y DIRECTIVE NO. 04.06.184: GENDER DYSPHORIA
§ Q (2017) (“Surgical procedures for initiation, advancement, or maintenance of sex
reassignment shall be considered on a case by case basis.”); WIS. DIV. OF ADULT
INSTS., POL’Y & PROCS. NO. 500.70.27 § D (2018) (“Health care staff who receive an
initial request from an inmate for hormonal therapy or surgical procedures shall
forward the request to the PSU Supervisor.”). The state of New Jersey was excluded
in this survey for not having made public any policies indicative of mental health care
provided to inmates.
140. See COLO. DEP’T OF CORR., ADMIN. REGUL. § 700–03(IV)(C)(1) (2019)
(“Certain treatment services (e.g. elective therapy treatment, preventive treatment,
etc.) will be provided only in specific facilities where resources permit and all mental
health services must be ordered by a psychiatric provider or a mental health
clinician.”); ME. DEP’T OF CORR., POL’YS & PROCS. NO. 18.6 § (3)(e) (2013)
(“[E]lective therapy services and preventive treatment, where resources permit.”);
NEB. DEP’T OF CORR. SERVS., MENTAL HEALTH SERVS. §115.23(III)(A)(4) (2019)
(“Elective therapy services based on QMHP determination of level of care (LOC).”);
N.M. DEP’T OF CORR., POL’YS & PROCS. CD–180400 § B (2018) (“Elective therapy
services and preventive treatment where resources permit.”); N.Y. BD. OF CORR.,
ADMIN. CODE § 2–01(d) (“[E]lective therapy services and preventive treatment where
resources permit.”); OHIO DEP’T OF REHAB. & CORR., POL’YS: MENTAL HEALTH
TREATMENT NO. 67–MNH–15 § I(1)(e) (2020) (“Elective therapy services and
preventive treatment inclusive of various mental health treatment groups and
individual therapy.”); VA. DEP’T OF CORR., OPERATING PROC. NO. 730.1 § (IV)(2)(e)
(2018) (“Elective therapy services and preventive treatment where resources
permit.”); WYO. DEP’T OF CORR., POL’Y & PROC. NO. 4.313 § (IV)(A)(5) (2019)
(“[E]lective therapy (i.e., short-term individual, group therapy, etc.) and preventative
treatment where resources permit.”).
141. See CONN. DEP’T OF CORR., ADMIN. DIRECTIVE NO. 8.1 § 10(B) (2014)
(“Exclusions. The contracted health services provider shall be under no obligation to
provide or pay for the following types of services: . . . Sex change surgery.”); IOWA
DEP’T OF CORRS., POL’Y & PROCS. NO. HSP-704 § (IV)(C)(1)(B) (2020) (“The DOC
does not provide aesthetic or cosmetic surgical services.”).
142. See ALASKA DEP’T OF CORR., MED. & HEALTH CARE SERVS. NO.
807.13 § (V)(A) (2009); ARIZ. DEP’T OF CORR., MENTAL HEALTH TECH. MANUAL CH.
3 § 10(2.5.1.1) (2019) (“[C]linically appropriate treatment options to include:
Psychological treatment that addresses ambivalence and/or dysphoria regarding
gender.”); ARK. BD. OF CORR., ADMIN. RULES § 833(V) (1990); D.C. DEP’T OF CORR.,
POL’Y & PROCEDURE § 6000.3A(2) (2017); DEL. DEP’T OF CORR., CH. 11: BUREAU OF
HEALTHCARE, SUBSTANCE ABUSE, & MENTAL HEALTH SERVS. §§ A–01(V) (2020), G–
02(VI) (2019); FLA. DEP’T OF CORR., MENTAL HEALTH SERVS. RULE 33–404.102

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Of course, as the Fifth Circuit declared in Gibson, “universal
acceptance by the medical community” is not necessary to
demonstrate medical consensus.143 However, surely consensus
requires more than five states at worst, and thirteen states at best, to
demonstrate broad principles of the efficacy of SRS as a required
treatment on an individualized basis for inmates. Perhaps, then,
consensus can be found in organized medical administrations that
every state in the nation participates in.
The purpose of Medicaid is to “provid[e] health care to the
indigent in quantity and quality equivalent to the standard of care
available to the general population.”144 Medicaid coverage can
therefore exemplify society’s standard of care. As such, the contents
§§ 1, 5 (2018); GA. DEP’T OF CORR., MENTAL HEALTH RECEPTION SCREEN § 508.14(I)
(2019); HAW. DEP’T OF PUB. SAFETY, CORR. ADMIN. POL’Y & PROCS., CH. 10 § A.01
(2003); IDAHO DEP’T OF CORR., STANDARD OPERATING PROC. NO. 327 § 3 (2017); ILL.
DEP’T OF CORR., HEALTH CARE § 415.40 (2005); IND. DEP’T OF CORR., MANUAL OF
POL’YS & PROCS. NO. 01–02–101 § II (2018); KAN. DEP’T OF CORR., INTERNAL
MANAGEMENT POL’Y & PROC. § 10–122D (2015); KY. DEP’T OF CORR., POL’YS &
PROCS. NO. 13.13 § II (2020); LA. DEP’T OF CORR., INFORMATIONAL HANDBOOK FOR
FRIENDS & FAMILIES OF PEOPLE IN PRISON 27; MD. DEP’T OF PUB. SAFETY AND CORR.
SERVS., EXECUTIVE DIRECTIVE NO. OPS 131.0001 (2016); MINN. DEP’T OF CORR.,
POL’YS, DIRECTIVES, & INSTRUCTIONS MANUAL § 202.045(E) (2020); MISS. DEP’T OF
CORR., INMATE HANDBOOK CH. IV.I.A (2011); MO. DEP’T OF CORR ., THERAPY &
TREATMENT (n.d.); MONT. DEP’T OF CORR., HEALTH SERVS. OPERATIONAL PROC. MSP
HS G-04.0: MENTAL HEALTH SERVS. (2017); N.C. DEP’T OF PUB. SAFETY, PRISONS,
POL’Y & PROCS. § .0201 (2017); NEV. DEP’T OF CORR., ADMIN. REGUL. § 643.02
(2013); N.D. DEP’T OF CORR. & REHAB., CORR. FACILITY STANDARDS 19 (2021);
OKLA. DEP’T OF CORR., INMATE MED. MENTAL HEALTH & DENTAL CARE § 14I(A)
(2020) (“The purposes of health standards are to: Provide constitutionally required
health care for inmates.”); N.H. DEP’T OF CORR., ORG. RULES § 502.01(e); OR. DEP’T
OF CORR., ADULT IN CUSTODY SERVS. (n.d.); PA. DEP’T OF CORR., POL’Y
DIRECTIVE § 13.08.01 (2019); R.I. DEP’T OF CORR., POL’Y & PROC. § 18.43–3 (2019);
S.C. DEP’T OF CORR., CARE & CUSTODY OF TRANSGENDER INMATES & INMATES
DIAGNOSED WITH GENDER DYSPHORIA § 1 (2017); S.D. DEP’T OF CORR., INMATE
MEDICALLY NECESSARY HEALTH CARE NO. 1.4.E.2 §§ III–IV (2019); TENN. DEP’T OF
CORR., ADMIN. POL’YS & PROCS. § 113.30 (2018); TEX. DEP’T OF CRIM. JUST.,
OFFENDER HEALTH SERVS. PLAN 16 (2019); UTAH DEP’T OF CORR., INSTITUTIONAL
OPERATIONS DIVISION MANUAL §§ FD18/12.00–12.03 (2013); VT. DEP’T OF CORR.,
ADMIN. RULE § 05-049 (2005); WASH. DEP’T OF CORR., POL’YS NO. 630.500 (2017);
W. VA. DIV. OF CORR., OFFENDER ORIENTATION MANUAL 12 (2006).
143. See Gibson v. Collier, 920 F.3d 212, 220 (5th Cir. 2019).
144. Guzman v. Shewry, 552 F.3d 941, 951 (9th Cir. 2009); see also Three
Lower Cntys. Cmty. Health Servs., Inc. v. Maryland, 498 F.3d 294, 297 (4th Cir.
2007) (citing 42 U.S.C. § 1396) (“The purpose of the Medicaid program is to enable
States ‘to furnish . . . medical assistance on behalf of families with dependent children
. . . whose income and resources are insufficient to meet the costs of necessary medical
services.’”) (emphasis added).

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of the relevant states’ Medicaid policies illuminate whether SRS is
among those standards.
Seventeen states and D.C. require that Medicaid cover SRS in
cases of medical necessity.145 Four states prohibit the discrimination of
Medicaid coverage based on gender identity, though do not

145. See CAL. DEP’T OF HEALTH & HUMAN SERVS. AGENCY, ALL PLAN LETTER
13-011 (Sept. 25, 2013) (“[T]ransgender services are available to Medi-Cal
beneficiaries. The term ‘transgender services’ refers to the treatment of ‘gender
identity disorder’, which may include . . . gender reassignment surgery that is not
cosmetic in nature.”); COLO. DEP’T OF HEALTH CARE POL’Y & FIN., MED. ASSISTANCE
§ 8.735.5.E (Dec. 11, 2020); HUSKY HEALTH CONN., PROVIDER POL’YS & PROCS.:
GENDER AFFIRMATION SURGERY 1 (2015); D.C. DEP’T OF HEALTH CARE FIN.,
BULLETIN 13-IB-01-30/13 REVISED (2014) (“The benefits afforded to individuals
seeking treatment for gender dysphoria, including gender reassignment surgeries
should not be construed as newly-mandated Medicaid benefits.”); Press Release, Ill.
Dep’t of Healthcare & Family Servs., Fulfilling Gov. Pritzker’s commitment to
healthcare equity, Medicaid to provide for gender affirming surgery (Apr. 5, 2019);
ME. DEP’T OF HEALTH & HUMAN SERVS., MAINECARE BENEFITS MANUAL CH. 2
§§ 90.04–.05 (Sept. 16, 2019); MD. DEP’T OF HEALTH & MENTAL HYGIENE, MANAGED
CARE ORGANIZATIONS TRANSMITTAL NO. 110 (Mar. 10, 2016); MassHealth
Guidelines for Medical Necessity Determination for Gender Affirming Surgery,
MASS.GOV
https://www.mass.gov/guides/masshealth-guidelines-for-medicalnecessity-determination-for-gender-affirming-surgery
[https://perma.cc/4HLJ6Q7Q] (last visited Jan. 11, 2021); Provider Manual: Gender-Confirming Surgery,
MINN. DEP’T OF HUMAN SERVS. (Oct. 8, 2020), https://mn.gov/dhs/
[https://perma.cc/A5AM-BZTH] (choose “Policies and procedures” from the
“Partners and providers” dropdown; then select “Health care”; then select “MHCP
Provider Manual”; then select “Physician and Professional Services” from the “Table
of Contents”; finally, click on “Gender Conforming Surgery”); MONT. DEP’T OF PUB.
HEALTH & HUMAN SERVS., HEALTHCARE PROGRAM NOTICE (2017); NEV. DEP’T OF
HEALTH & HUMAN SERVS., WEB ANNOUNCEMENT 1532 (May 8, 2018); N.H. HEALTHY
FAMILY MEMBER SERVS., MEDICAID CARE MANAGEMENT PROGRAM MEMBER
HANDBOOK 56 (2019); N.Y. COMP. CODES R. & REGS. TIT. 18 § 505.2 (2016); PA.
DEP’T OF HUMAN SERVS., MED. ASSISTANCE BULLETIN NO. 99-16-11 (2016); R.I. OFF.
OF THE HEALTH INS. COMM’R, GUIDANCE REGARDING PROHIBITED DISCRIMINATION ON
THE BASIS OF GENDER IDENTITY OR EXPRESSION 1 (2015); DEP’T OF VT. HEALTH
ACCESS, GENDER AFFIRMATION SURGERY FOR THE TREATMENT OF GENDER DYSPHORIA
1 (2020); WASH. ADMIN. CODE § 182-531-1675 (2015); WIS. DEP ’T OF HEALTH
SERVS., FORWARD HEALTH: TRANSGENDER SURGERY POL’Y 1 (2019). It is worth
noting that because this Article is pursuing a question of communal standards that the
Wisconsin community originally forbad “[t]ranssexual surgery” until a federal court
ruled it violative of the Affordable Care Act’s prohibition of medical discrimination
in Medicaid based on sex. See Flack v. Wis. Dep’t of Health Servs., 328 F. Supp. 3d
931, 951 (W.D. Wis. 2019) (ruling that “plaintiffs have made a persuasive evidentiary
showing . . . that the Challenged Exclusion prevents them from getting medically
necessary treatments on the basis of both their natal sex and transgender status, which
surely amounts to discrimination on the basis of sex in violation of the ACA”).

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necessarily provide for SRS.146 Ten states explicitly forbid SRS from
being covered under Medicaid.147 Eighteen states have no explicit
policy regarding SRS and defer to generalized community standards
of care.148
Surely then, these ratios of providing to not providing SRS do
not command a consensus. Of course, the beauty of a dual-federalist
system is that states and the federal government are often free to have
differing policies for administering healthcare.149 However, even the
federal government has not consistently applied a policy on whether
SRS can be medically necessary.150
On May 30, 2014, the Department of Health and Human
Services (HHS) Department Appeals Board oversaw an appeal
regarding Medicare coverage of SRS.151 The board concluded that
“[t]he new evidence indicates that transsexual surgery is an effective
146. See HAW. REV. STAT. ANN. § 432D-26.3 (West 2016); MICH. DEP ’T
HEALTH & HUMAN SERVS., MEDICAID PROVIDER MANUAL OVERVIEW 14 (2021); S.
4568, 217th Leg. Assemb., 2d Ann. Sess. § (1)(b)(4)(a) (N.J. 2017) (prohibiting
discrimination of “health care services related to gender transition if coverage is
available for those services under the contract when the services are not related to
gender transition”); OR. HEALTH AUTH., OR. HEALTH PLAN HANDBOOK 21 (Jan. 2020).
147. See ALASKA ADMIN. CODE tit. 7, § 110.405 (2020); ARIZ. ADMIN. CODE
§ R9-22-205(B)(4) (2020); GA. DEP’T OF COMM. HEALTH, AMOUNT, DURATION, &
SCOPE OF MED. AND REMEDIAL CARE AND SERVS. PROVIDED TO THE CATEGORICALLY
NEEDY 1(c) § (7) (Aug. 1991); MO HEALTHNET, MO. PHYSICIAN’S MANUAL 226–28
(2019); NEB. DEP’T OF HEALTH & HUMAN SERVS., NEBRASKA MED. ASSISTANCE
PROGRAM SERVICES § 10-004.01; OHIO DEP’T OF MEDICAID, RULE 5160-2-03 § 7
(2015); TENN. DEP’T OF FIN. & ADMIN., TENNCARE MEDICAID § 1200-13-13-.10(3)(b)
(Apr. 2019); TEX. MEDICAID & HEALTHCARE P’SHIP, TEX. MEDICAID PROVIDER
PROCS. MANUAL § 1.12 (Nov. 2020); W. VA. DEP’T HEALTH & HUMAN SERVS.,
POLICY MANUAL CH. 100 - GENERAL INFORMATION 12–13; WYO. DEP’T OF HEALTH,
MEDICAID HANDBOOK 17; APPROPRIATIONS, 2019 Ia. Legis. Serv. Ch. 85 (H.F. 766)
(West) (allowing providers to choose whether to cover SRS).
148. See CHRISTY MALLORY & WILLIAM TENTINDO, MEDICAID COVERAGE FOR
GENDER-AFFIRMING CARE 6 (2019) (listing Alabama, Arkansas, Delaware, Florida,
Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, New Mexico, North
Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, and Virginia
among “states [that] have no express statute or administrative policy addressing
coverage for gender-affirming care under their Medicaid programs”). Other states in
this list were referenced for other categories discussed.
149. See Richard P. Nathan, Federalism and Health Policy, 24 HEALTH
AFFAIRS 1458, 1459 (2005).
150. See Daphna Stroumsa, The State of Transgender Health Care: Policy,
Law, and Medical Frameworks, 104 AM. J. PUB. HEALTH e31, e33–e34 (2014).
151. See DEP’T OF HEALTH & H UMAN SERVS., DEPARTMENTAL APPEALS BD.,
NCD 140.3, TRANSEXUAL SURGERY 1 (2014), https://www.hhs.gov/sites/default/files/
static/dab/decisions/board-decisions/2014/dab2576.pdf
[https://perma.cc/CG6KQZN8].

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treatment option in appropriate cases.”152 The Appeals Board arrived
at this decision primarily by consulting three doctors, Dr. Bowers, Dr.
Hsiao, and Dr. Ettner to “review[] five studies in the [aggrieved party]
exhibits.”153 These five studies were explicitly presented in rebuttal to
a 1981 aggregated research report that the three doctors considered
“outdated and irrelevant based on current medical practices and
procedures.”154
Crucial for dispelling one of the alleged reasons given by
Medicare providers for not providing SRS, that the surgery was
experimental, the Appeals Board relied on Dr. Ettner’s “state[ment]
that ‘there are numerous long-term follow-up studies on surgical
treatment demonstrating that surgeries are effective and have low
complication rates.’”155 In terms of the safety of SRS, the Appeals
Board relied on Dr. Ettner’s analysis of the studies brought by the
aggrieved party that “the complication rate is low and most
complications can be overcome by adequate correctional
interventions.”156 In regard to the question if SRS was efficacious in
treating gender dysphoria, Dr. Ettner noted that the studies showed
that “[m]any patients report a dramatic improvement in mental health
following surgery, and patients have been able to become productive
members of society, no longer disabled with severe depression and
gender dysphoria.”157 More is discussed regarding comparative
interpretive results in Subsection II.B.2.a.158
Additionally, on August 30, 2016, the Centers for Medicaid and
Medicare Services (CMS) released a Decision Memo regarding
Medicare coverage of SRS procedures and reviewed over thirty-three
studies of the effects and outcomes of SRS.159 Other peer analyses of
the studies ranged “from 1979 to 2015” and “[o]ver half of the studies
were published after 2005.”160 CMS determined that “there is not
152. See id. at 15.
153. See id. at 13. It is worth noting that this Dr. Ettner is the same Randi
Ettner referred to in the WPATH Standards of Care at supra note 63 on the cover page
listing writers of the Standards, as well as a caregiver and expert witness in the case
of Edmo.
154. Compare id. at 12, with infra Subsection II.B.2.b.
155. DEP’T OF HEALTH & HUMAN SERVS., supra note 151, at 18.
156. See id. at 14 (internal quotation marks omitted).
157. Id. at 16 (internal quotation marks omitted).
158. See infra Subsection II.B.2.a.
159. See TAMARA SYREK JENSEN ET AL., DECISION MEMO FOR GENDER
DYSPHORIA AND GENDER REASSIGNMENT SURGERY (CAG-00446N) 46 (2016)
[hereinafter CMS MEMO].
160. Id. at 8.

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enough high quality evidence to determine whether gender
reassignment surgery improves health outcomes for Medicare
beneficiaries with gender dysphoria and whether patients most likely
to benefit from these types of surgical intervention can be identified
prospectively.”161 While acknowledging the clear lack of consensus,
CMS left the research question open by acknowledging the possibility
that “[SRS] may be a reasonable and necessary service for certain
beneficiaries with gender dysphoria,” but that “[t]he current scientific
information is not complete,” and the subject warrants further
examination.162
These determinations occurred approximately two years apart
while HHS and CMS were controlled by the same political
administration, yet the agencies reached diametrically opposed results
regarding a bright-line SRS rule. Why? It is important to note that the
HHS Appeals Board limited the SRS inquiry to the studies brought by
the aggrieved party while the CMS Decision Memo analyzed a
plethora of studies without party-presentation limitation.163 Knowing
the different scopes of studies reviewed, the disparity in results is to
be expected, as petitioners are free to identify only studies that support
their position.164
The incongruences in state laws, administrative-agency
determinations, Medicaid allotment, and Medicare necessity
determinations, however, are clear indications that SRS is not a
consensus accepted by the medical community as a medically
necessary treatment for gender-dysphoric patients—failing the
objectivity test of Rhodes.
B. The Wayward “WPATH”
Even given this knowledge, there is a recurring theme regarding
the standards of care for patients, incarcerated or not, with gender
dysphoria. The World Professional Association for Transgender
Health, formerly known as the Harry Benjamin International Gender
Dysphoria Association, has been repeatedly cited from Kosilek to

161. Id. at 48.
162. See id. at 41 (emphasis added).
163. Compare id. at 6, with DEP’T OF HEALTH & HUMAN SERVS., supra note
151, at 13.
164. See DEP’T OF HEALTH & HUMAN SERVS., supra note 151, at 13 (describing
that the studies Dr. Hsiao reviewed that were part of the aggrieved party’s selected
exhibits).

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Edmo165—endeavoring to discover agreed-upon medical standards.
WPATH touts that “[t]he [Standards] are based on the best available
science and expert professional consensus.”166 The Standards have
also been cited by at least three states in helping determine their
respective correctional-healthcare guidelines.167 This reliance is
understandable as a primary function of the organization is to
“promote the highest standards of health care for individuals through
the articulation of Standards of Care (SOC) for the Health of
Transsexual, Transgender, and Gender Nonconforming People.”168
The highest standard of health care, however, is not the
constitutional mandate.169 Nor are these higher standards rooted in
standard practice. The Standards note that “Version 7, represents a
significant departure from previous versions . . . based upon
significant cultural shifts, advances in clinical knowledge, and
appreciation of the many health care issues that can arise for
transsexual, transgender, and gender-nonconforming people beyond
hormone therapy and surgery.”170 Version 6 of the Standards was
published in 2001 while Version 7 was published in 2012.
Approximately a decade for societal standards of care to change is a
rapid turnaround that warrants a closer examination of the changes,
165. See Kosilek v. Spencer, 774 F.3d 63, 77 (1st Cir. 2014); Gibson v.
Collier, 920 F.3d 212, 218 (5th Cir. 2019); Edmo v. Corizon, Inc., 935 F.3d 757, 768
(9th Cir. 2019); see also De’lonta v. Johnson, 708 F.3d 520, 522–23 (4th Cir. 2013)
(stating that WPATH standards of care “are the generally accepted protocols for the
treatment of GID”); Rosati v. Igbinoso, 791 F.3d 1037, 1040 (9th Cir. 2015)
(“Although Rosati lacks a medical opinion recommending SRS, []he plausibly alleges
that this is because the state has failed to provide h[im] access to a physician
competent to evaluate h[im] [according to WPATH Standards].”); Glenn v. Brumby,
724 F. Supp. 2d 1284, 1289 n.4 (N.D. Ga. 2010) (“[T]here is sufficient evidence that
statements of WPATH are accepted in the medical community.”).
166. WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 1.
167. See supra note 145 (referring to California, Massachusetts, and
Wisconsin). Arkansas, Delaware, Maryland, New Mexico, Pennsylvania, and Rhode
Island reference the National Commission on Correctional Health Care (NCCHC)
Standards, which rely heavily on the WPATH Standards for transgender-inmate
healthcare. See NAT’L COMM’N ON CORR. HEALTH CARE, POSITION STATEMENT:
TRANSGENDER AND GENDER DIVERSE HEALTH CARE IN CORRECTIONAL SETTINGS 2–5
(2020) (citing WPATH and outlining guidelines that are analogous to the WPATH
Standards).
168. WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 1
(emphasis added).
169. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)) (observing that a deliberate-indifference claim
must show deprivation of the “minimal civilized measure of life’s necessities”).
170. WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 1 n.2.

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but more importantly, an examination of the sources used to support
the most current Standards.171
1. Changing American Society at Breakneck Speeds
Among the changes between Version 6 and Version 7 is an
almost inconsequentially placed nuance to the eligibility criteria for
SRS. In Version 6, the “readiness criteria for genital
surgery . . . impl[y] satisfactory control of problems (such as
sociopathy, substance abuse, psychosis, or suicidality).”172 It is worth
noting that the identification of these exemplary comorbidities is the
precise evidence that Dr. Osborne in Kosilek used in making her
determination against SRS.173 Additionally, Version 7 continues to cite
to the very source detailing the Version 6 requirement as
substantiating the Version 7 criteria while a significant difference
between the versions persists.
Kosilek, Gibson, and Edmo were all exhibiting at least one of
“sociopathy, substance abuse, psychosis, or suicidality” before their
respective federal court dispositions.174 In fact, the existence of these
conditions—namely, suicidality—was instrumental for the petitioners
in arguing that SRS was medically necessary because without it they
would once again be drawn to suicidal tendencies.175 However, the
predecessor to the current Standards elicits that surgery would be
appropriate only if suicidality were controlled.176 The current
Standards accept this argument, in part, by explicitly ordaining that
“[i]f significant medical or mental health concerns are present, they
must be well controlled” as a criterion for breast, chest, or genital
surgery.177 However, the sample conditions from Version 6 did not

171.
172.

See generally Meyer III et al., supra note 34.
STAN MONSTREY ET AL., PRINCIPLES OF TRANSGENDER MEDICINE AND
SURGERY 98, 100 (Randi Ettner et al. eds., 2007).
173. See Kosilek v. Spencer, 774 F.3d 63, 79 (1st Cir. 2014).
174. See id. at 79 (noting that “given Kosilek’s high risk of suicide if denied
the surgery, SRS was the only adequate treatment plan”); Gibson v. Collier, 920 F.3d
212, 217 (5th Cir. 2019) (noting that “Gibson has averred that, if he does not receive
sex reassignment surgery, he will castrate himself or commit suicide”); Edmo v.
Corizon, Inc., 935 F.3d 757, 787 (9th Cir. 2019) (noting that “if Edmo does not receive
GCS, there is little chance that h[is] gender dysphoria will improve and []he is at risk
of committing self-surgery again, suicide, and further emotional decompensation”).
175. See supra note 174.
176. See supra note 172 and accompanying text.
177. WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 58–59.

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make their way into Version 7.178 Rather than facilitative of
petitioners’ arguments, the presence of extreme mental distress
leading to suicidality could terminate petitioners’ claims of SRS
necessity upon rational review of the very source writers that the
Standards consider authoritative.179 Another requirement change
between Version 6 and Version 7 is the “real-life experience”
component prior to genital surgery.180 Rather than a “real-life
experience,” Version 7 only requires that “patients have lived
continuously for at least 12 months in the gender role that is congruent
with their gender identity.”181 Within the prison setting, however, there
are reasons to believe “prisons cannot provide the range of services
mentally ill prisoners need in the necessary quantity and quality” such
as a “real-life experience.”182 Among them being that “[t]he stress of
incarceration can cause morbidity among [the mentally ill], resulting
in more severe symptoms and more disruptive behavior.”183 There is
additional reason to doubt that inmates may be able to “live[]
continuously for at least 12 months in the gender role that is congruent
with their gender identity” as prison protocol and safety concerns often
prevent complete congruence in the inmates’ preferred gender and
what the prisons can accommodate.184 A survey conducted by six
researchers notes that “[a]fter suicide, regret could be considered one
of the worst possible complications” of SRS and that a “[m]ain
178. See id. at 59 (excluding the list of contraindicative mental ailments).
179. See generally A.J. Kuiper & P.T. Cohen-Kettenis, Gender Role Reversal
Among Postoperative Transsexuals, 2 INT’L J. TRANSGENDERISM 10 (1998) (arguing
that “[h]ow can the risk of false-positive decisions [resulting in postoperative regret]
possibly be reduced? . . . [By] caution in the treatment of gender dysphoric individuals
if there is a combination of several risk factors such as stress-related late onset of the
gender conflict, fetishistic cross-dressing, psychological instability and/or social
isolation”) (emphasis added). Together, Kuiper and Cohen-Kettenis author twentyone of the sources cited in the WPATH Standards.
180. See Selvaggi et al., supra note 39, at 1, 6, tbl.2.
181. See WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 21.
182. See Jamie Fellner, A Corrections Quandary: Mental Illness and Prison
Rules, 41 HARV. C.R.-C.L. L. REV. 391, 394 (2006).
183. Kenneth L. Appelbaum et al., The Role of Correctional Officers in
Multidisciplinary Mental Health Care in Prisons, 52 PSYCHIATRIC SERVS. 1343, 1343
(2001); see also Selvaggi et al., supra note 39, at 8 (suggesting that the two terms are
intended to be similar: “[a]fter 1-2 years of ‘living in an identity congruent gender
role’ (named ‘real-life experience’ in the 6th version of the [Standards])).”
184. See WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 21;
Edmo v. Corizon, Inc., 935 F.3d 757, 776 (9th Cir. 2019) (showing “Edmo has lived
for more than one year ‘as a woman to the best of h[is] ability in a male prison’”);
Gibson v. Collier, 920 F.3d 212, 217 n.2 (5th Cir. 2019) (listing Gibson as an inmate
in a male prison, where women would not be).

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reason[] for regret” is the “‘real-life experience’ [being] mostly
skipped.”185
As a result, it is entirely possible that in the end, “medical staff
and facilities at prisons are universally and notoriously inadequate for
providing even minimally adequate care” that is necessary to treat
certain illnesses—even assuming that SRS qualifies as a medically
necessary treatment.186
The Standards’ version changes as well as the inevitable
confusion of them as “flexible clinical guidelines,” though yet treated
as sanctimoniously rigid guides to gender-dysphoric inmate healthcare
by petitioners, lead to further skepticism that the guides are based off
of communal standards of care.187 In the eleven-year gap between
these two publications, did the significance of assuaging severe,
comorbid mental distress such a suicidality and the significance of
encouraging a trial of what the patient would experience via the “reallife experience” “before undergoing irreversible surgery” fade?188
For the preponderance of states that simply defer to communally
accepted standards of care, a rational review of the breakneck speed
and contradictory source justifications for these standards yields a
whimpering no.189 As a result, one can arrive at the simple conclusion
that can help direct further litigation regarding inmates suffering from
gender dysphoria seeking SRS: The word of WPATH is not
dispositive and should be examined as critically as the relevant
medical testimony found in the facts of all of the cases presented in
this Article. As the First Circuit in Kosilek declared, and the Fifth
Circuit in Gibson echoed, “Nothing in the Constitution mechanically
gives controlling weight to one set of professional judgments.”190

185. See Marta R. Bizic et al., Gender Dysphoria: Bioethical Aspects of
Medical Treatment, 2018 BIOMED RSCH. INT’L 1, 4–5 (2018).
186. See Marc J. Posner, The Estelle Medical Professional Judgment
Standard: The Right of Those in State Custody to Receive High-Cost Medical
Treatments, 18 AM. J.L. & MED. 347, 366 (1992).
187. See WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 35.
188. See Selvaggi et al., supra note 39, at 8; WORLD PRO. ASS’N FOR
TRANSGENDER HEALTH, supra note 63, at 21.
189. See supra notes 139–142 and accompanying text.
190. See, e.g., Kosilek v. Spencer, 774 F.3d 63, 96 (1st Cir. 2014) (quoting
Cameron v. Tomes, 990 F.2d 14, 20 (1st Cir. 1993)); Gibson, 920 F.3d at 220 (quoting
Cameron, 990 F.2d at 20).

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2. An Examination of the Substantive Errors of the Standards of
Care
WPATH is no exception, particularly when the sources WPATH
cites for substantiating its positions often are not as efficacious as the
editors thought. There are two notable points in this regard: observed
medical-community disagreement and the sources of the Standards.
a. Observed Medical-Community Disagreement
SRS is a broad term that can indicate many different types of
procedures.191 It is worth noting, however, that the federal courts have
approached SRS as a one-size-fits-all term that encompasses all of
these surgeries.192 As such, it is not unreasonable to evaluate the merits
of the principle regarding SRS’s potential medical necessity through
analyses of the individual procedures.
As discussed, federal courts have been asked to determine
whether SRS is medically necessary, and via the objective test, this
task begins and ends with agreed-upon community standards of
care.193 WPATH states that the Standards “are based on the best
available science and expert professional consensus.”194 However,
well-established scientists who generally praise WPATH simply
disagree with the notion of professional consensus in regard to some
surgeries sanctioned by the Standards, and WPATH acknowledges
this broadly.195 Dr. Gennaro Selvaggi and Dr. James Bellringer write
that “[i]n female-to-male gender dysphoria, no technique is
recognized as the standard for penile reconstruction . . . .”196 As Table
191. WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 62–63
(listing examples of “orchiectomy, penectomy, vaginoplasty, clitoroplasty, and
labiaplasty[,]. . . . [h]ysterectomy, salpingo-oophorectomy, vaginectomy,
metoidioplasty, scrotoplasty, urethroplasty, placement of testicular prostheses, and
phalloplasty”).
192. See generally, e.g., Kosilek, 774 F.3d at 63 (using the term “SRS” one
hundred and ten times); Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019) (using the
term “sexual reassignment surgery” sixty-four times); Edmo v. Corizon, Inc., 935
F.3d 757 (9th Cir. 2019) (using the analogous term “GCS” for gender-confirmation
surgery one hundred and seventy-four times).
193. See supra Subsection II.A.2.
194. See WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 1.
195. See id. at 55 (noting that “[s]ome people, including some health
professionals, object on ethical grounds to surgery as a treatment for gender
dysphoria, because these conditions are thought not to apply”).
196. Gennaro Selvaggi & James Bellringer, Gender Reassignment Surgery:
An Overview, 8 NATURE REVS. UROLOGY 274, 281 (2011).

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Three of Dr. Selvaggi and three other doctors’ survey of female-tomale surgical techniques demonstrates, there are at least six different
techniques that can be used in penile reconstruction, each of varying
limitations and benefits.197
Among these listed techniques is a phalloplasty procedure
known as “radial forearm free-flap.”198 The limitations associated with
this technique are “[u]rinary tract problems[,] [m]ultiple stages[,]
[s]tiffener required, or permanent erection if bone is used[,] [d]onorsite morbidity[,] [and] [m]icrosurgical skills required.”199 This
operation is not a one-time surgery for the treatment of gender
dysphoria; it is simply the first treatment in the predictably long line
of others—a “surgery necessitating several steps and [a] high number
of revisions.”200 Donor-site morbidity is defined as “any event that
require[s] a modification of the postoperative management.”201
Examples of donor-site morbidity as it pertains to radial forearm freeflap surgery are “nerve injury, delayed wound healing, [] decreased
hand strength[,] [and] . . . skin graft failure.”202
The physical consequences of such a surgery cannot be
understated and informing patients of the potential complications is in
line with ethical medical practice.203 “If the patient’s goal is a
neophallus of good appearance, standing micturition, sexual
sensation, and/or coital ability, patients should be clearly informed
that surgery would require several separate stages, with technical
difficulties, and high likelihood of additional operations.”204 Of course,
this is the goal for female-to-male patients as:

197.
198.

See Selvaggi et al., supra note 39, at 9.
Corinne O’Keefe Osborn, Phalloplasty: Gender Confirmation Surgery,
HEALTHLINE,
https://www.healthline.com/health/transgender/phalloplasty
[https://perma.cc/B88B-GNT3] (Sept. 18, 2018) (“A phalloplasty is the construction
or reconstruction of a penis. The phalloplasty is a common surgical choice for
transgender and nonbinary people interested in gender confirmation surgery.”).
199. See Selvaggi et al., supra note 39, at 9.
200. See id. at 8.
201. O. Lauthe et al., The Indications and Donor-Site Morbidity of Tibial
Cortical Strut Autografts in the Management of Defects in Long Bones, 100-B BONE
& JOINT J. 667, 667 (2018).
202. Alexandra Kovar et al., Donor Site Morbidity in Phalloplasty
Reconstructions: Outcomes of the Radial Forearm Free Flap, 7 PLASTIC
RECONSTRUCTION SURGERY GLOB. OPEN 1, 1 (2019).
203. See Cruzan by Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261,
269 (1990) (observing that “[t]he informed consent doctrine has become firmly
entrenched in American tort law”).
204. See Selvaggi et al., supra note 39, at 8.

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[i]n gender reassignment, the aim is to restore health, intended as physical,
mental, and social well-being to transsexuals individuals; in order to restore
health, (genital) surgery is trying to restore function (i.e., urinating in a [sic]
the desired male or female manner, practicing sexual intercourse, possibly
achieving orgasm; (better) passibility in the preferred gender).205

As Dr. Selvaggi and his peers state, the most efficacious way to
achieve these goals is by the highly complicated, error-prone, and
lengthy process of surgical intervention.206 Though of course, which
surgery to intervene with is not agreed upon, but given Dr. Selvaggi’s
table of limitations and benefits and the motivations behind surgery,
the signs point to the most complicated—phalloplasty radial forearm
free-flap.207 If one is convinced that the signs do not point to the
notably complicated reconstructive surgeries, however, the Standards
indicate that as opposed to reconstructive surgery, “[a]esthetic or
cosmetic surgery is mostly regarded as not medically necessary.”208
Regardless, SRS fails to be a consensus-agreed-upon medically
necessary treatment. Further, it is worth noting that the follow-up
procedures to SRS are arguably largely aesthetic in nature and as such
would clearly, even by WPATH Standards, not be covered as
medically necessary, thereby depriving female-to-male genderdysphoric inmates of an important step in this procedure.209
The psychological consequences of reconstructive surgery also
cannot be understated. The likely avenue of thought for an advocate
of SRS in reading this now is: The goal of the surgery is to assuage
mental distress, and if the price of that is physical distress that the
patient is willing to assume, then that is permissible. However, there
is little reason to believe that psychological distress will dispel. Dr.
Selvaggi, Dr. Bellringer, and their associates also note that “[a]fter the
gender reassignment process has been completed, transsexual
individuals still need health assistance for life . . . [and] they might
eventually require corrective surgery or psychological assistance,
even long after the gender reassignment.”210
If the call of petitioners is to judicially require that SRS take
place so that petitioners may cease the burden of severe distress that
befalls them because of their born gender, what sense does it make to
grant such a request if the requested remedy has a significant chance
205.
206.
207.
208.
209.
210.

See id. at 10.
See id.
See id. at 9.
See WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 58.
See id. at 64.
See Selvaggi et al., supra note 39, at 8.

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of generating not only physical anguish but further psychological
distress? None. The likelihood that SRS has in generating additional
psychological burdens is further substantiated by statistics indicating
that “[e]x-prisoners with serious mental illness are two to three times
more likely to recidivate than other prisoners.”211 Dr. Selvaggi and
associates have acknowledged this effect, and the general uncertainty
regarding the procedure, as “scientific progress in penile
reconstruction is slow, with a lack of controlled studies, high loss to
followup, and lack of validated assessment measures.”212
This is an important example to give because it illustrates the
sheer uncertainty of at least some types of SRS surgery and indicates
why the Supreme Court defers to state standards of care—because for
many sizable groups of state and local leaders, these uncertainties and
conflicting medical advices do not warrant formal codification as
medical necessity.213
The prerogative of federal courts is to examine the communal
medical objectivity of SRS broadly214—not the individual medical
decisions regarding specific procedures—as “[c]ourts have uniformly
held that supervision of inmates of federal institutions rests with the
proper administrative authorities and that courts have no power to
supervise the management . . . of such institutions.”215 The discussed
individual procedures surely do not pass muster as communally
agreed-upon medical treatments, so the term aggregating the
individual procedures under one umbrella, SRS, surely does not either.

211. See David B. Kopel & Clayton E. Cramer, Reforming Mental Health Law
to Protect Public Safety and Help the Severely Mentally Ill, 58 HOW. L.J. 715, 751
(2015).
212. See Selvaggi et al., supra note 39, at 8.
213. See supra notes 140–142, 146–148.
214. See Gibson v. Collier, 920 F.3d 212, 225 (5th Cir. 2019).
An entire agency of the federal government—the Food and Drug
Administration—is devoted to making categorical judgments about what
medical treatments may and may not be made available to the American
people. So imagine an inmate seeks a form of medical treatment that
happens to be favored by some doctors, but has not (at least not yet) been
approved by the FDA. Could the inmate challenge this deprivation on the
ground that it is a categorical prohibition on medical treatment, rather than
an individualized assessment? Surely not.
Id.; Edmo v. Corizon, Inc., 935 F.3d 757, 797 (9th Cir. 2019) (citing Kosilek v.
Spencer, 774 F.3d 63, 90 (1st Cir. 2014)) (categorizing the First Circuit’s broad
adjudication reasoning in its determination that “either of two courses of treatment
(one included [SRS] and one did not) were medically acceptable”).
215. See Sutton v. Settle, 302 F.2d 286, 288 (8th Cir. 1962).

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b. Sources of the Standards
The unique situation that arises because of the clear medical
disagreement regarding, at the very least, some types of SRS begs the
question as to why WPATH chose to declare both consensus and then
that the consensus was on a single, notable side of the medical debate.
The instinct is then that perhaps, like Dr. Ettner in the HHS Appeals
Board opinion, that WPATH is operating off of a different set of
sources than other scholars and considering those definitive.216
Even though Dr. Ettner believed that medical data from 1981
and prior was flatly “outdated and irrelevant based on current medical
practices and procedures,”217 this evaluation of sources will not hold
the WPATH Standards’ pre-1982 sources to the same unforgiving
standard.218 Rather, the sources will be evaluated against the claims
that WPATH attributes to them.
Perhaps the most shocking of these incongruencies is found in a
series of studies by Michael G. Gelder, M.D. and Isaac M. Marks,
M.D. examining the effects of faradic, or electrical, aversion therapy
in male “[t]ranssexuals[,]” “[u]ncomplicated transvestites[,]”
“[s]adomasochists[,]” and “[f]etishists[.]”219 WPATH cited this report
as support for the claim that “[t]reatment aimed at trying to change a
person’s gender identity and expression to become more congruent
with sex assigned at birth has been attempted in the past without
success” and as a result “[s]uch treatment is no longer considered
ethical.”220
The actual study, however, found that “[a]ll except two patients
showed moderate to marked improvement in their deviant behavior at
the end of the treatment.”221 Gelder and Marks defined male “deviant
behavior” as “cross-dressing[,] . . . imagining . . . sadistic sexual
fantasies[,] . . . [and] transsexualism” with the improvement of these
deviations as the cessation of these acts and thoughts.222 The study
observed that “deviant sexual fantasies diminished in frequency or
216. See DEP’T OF HEALTH & HUMAN SERVS., supra note 151, at 22–23.
217. See id. at 12.
218. See id.
219. See Michael G. Gelder, M.D. & Isaac M. Marks, M.D., Aversion
Treatment in Transvestism and Transsexualism, in RICHARD GREEN, M.D. & JOHN
MONEY, PH.D, TRANSSEXUALISM AND SEX REASSIGNMENT 398 (1969); see also Isaac
Marks et al., Sexual Deviants Two Years After Electric Aversion, 117 BRIT. J.
PSYCHIATRY 173, 173 (1970).
220. See WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 16.
221. See Gelder et al., supra note 219, at 394.
222. See id. at 386–87, & 394.

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disappeared completely where previously they usually lasted for
hours . . . .”223
It is important to note, however, that the results for the most
extreme cases, manifesting as severe transsexualism, were less clear
cut.224 Marks, Gelder, and Bancroft considered two possibilities in a
later study. The first of which was “[t]he development of
transsexualism after some years of transvestist activity” indicating that
“transsexualism is an index of severity.”225 The alternate explanation
was that “transsexualism may indicate an additional and earlier
disturbance of gender identity formation in childhood” resulting from
“experiences learnt”—experiences that the study showed could be
persuaded against via electric aversion.226
The results were generally sustained as “occasional deviant
thoughts . . . were usually transient and accompanied by little sexual
feeling.”227 Additionally, Gelder and Marks note contrarily to the
“theoretical dangers of aversion treatment”—“decreas[ing] normal
heterosexual feelings and even produc[ing] impotence”—that “if a
change did occur following the treatment, it was a heightened
heterosexual feeling and performance.”228
Of course, these studies do not necessarily advocate for electric
aversion therapy as an active treatment, but in no part of the study
cited by WPATH is there any indication that electric aversion therapy
is necessarily “without success.”229 Academic honesty is an important
223. See id. at 394; see also Marks et al., supra note 219, at 184 (noting that
“[a]fter treatment, deviant acts and fantasies diminished considerably in transvestites,
fetishists and sadomasochists. Deviant attitudes changed correspondingly.”).
224. See Gelder et al., supra note 219, at 403 (summarizing that “faradic
aversion therapy is a valuable treatment for patients with transvestism, but is less
useful in patients in whom transsexualism is pronounced” due to “the lack of
motivation for psychic change shown by most transsexuals.”); see also Marks et al.,
supra note 219, at 184 (noting that “[i]mprovement was transient or absent in the
patients who had strong transsexual feelings.”). Given the WPATH concession that
only “[s]ome people experience gender dysphoria at such a level that the distress
meets criteria for a formal diagnosis that might be classified as a mental disorder,” it
would be inaccurate to say that those with diverse severities of gender dysphoria can
be monolithically grouped under the highest severity group observed by Marks. See
WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 5.
225. Marks et al., supra note 219, at 182.
226. See id. at 182–83.
227. Gelder et al., supra note 219, at 396 (reporting that “[o]ne transvestite
said: ‘As soon as I thought of cross-dressing it just went away; I was surprised. I had
expected sexual arousal but there wasn’t any.’”).
228. Id. (emphasis added).
229. WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 16.

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part of ordaining medical standards even if the “overall goal of the
[Standards] is to . . . assist transsexual, transgender, and gendernonconforming people with . . . achieving lasting personal comfort
with their gendered selves.”230 A goal opposed to the results of a cited
study is no excuse for misrepresenting that study.
Further, WPATH’s broad advice against “[t]reatment aimed at
trying to change a person’s gender identity and expression to become
more congruent with sex assigned at birth” does not comport with the
practice of Harry Benjamin, in honor of whom WPATH was originally
named.231 As a matter of good practice and principle, Benjamin:
feel[s] that is it wise to point out to the male transsexual how much trouble
he will save for himself if he succeeds in accepting himself in the role of his
anatomical sex, possibly with the help of some psychotherapy, and/or
hormonal treatment. In this way he would avoid an expensive major
operation, with the results always being uncertain. The same applies
analogously to the female transsexual.232

No less jarring is a research survey used by WPATH to
substantiate the very crucial claim, which has arisen before numerous
federal courts, that “for many [transsexual, transgender, and gendernonconforming people] surgery is essential and medically necessary
to alleviate their gender dysphoria.”233 The survey, conducted by J.
Joris Hage, M.D., Ph.D. and Refaat B. Karim, M.D., Ph.D. not only
finds, but also advocates that “[o]ne may rightly defend the view that
transgender behavior should be de-medicalized for the same reasons
that homosexuality was de-medicalized.”234 Demedicalization is the
process by which illnesses are taken out of the realm of medical
abnormalities and then treated as natural occurrences.235
The implications of this direction of medical care, or lack
thereof, compared to the position of WPATH are transformative. The
Standards advocate for the medical acceptance and medical necessity
230. Id. at 1.
231. Id. at 16.
232. Gelder et al., supra note 219, at 305.
233. See WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at 54.
234. See J. Joris Hage & Refaat B. Karim, Ought GIDNOS Get Nought?
Treatment Options for Nontranssexual Gender Dysphoria, 105 PLASTIC &
RECONSTRUCTIVE SURGERY 1222, 1224 (2000).
235. See Drew Halfmann, Recognizing Medicalization and Demedicalization:
Discourses, Practices, and Identities, 16 HEALTH 186, 187 (2011) (noting that
medicalization “mean[s] defining behavior as a medical problem or illness and
mandating or licensing the medical profession to provide some sort of treatment for
it,” and that “[m]ost scholars define demedicalization simply as the obverse of
medicalization”).

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of SRS, but the primary support for such a claim is a survey advocating
for the demedicalization of transgender behavior entirely.236 Hage and
Karim also note that this position is not to simply be overpowered by
the definitive weight of WPATH opinions.237 Rather, “the
medicalization of gender dysphoria is a subject of growing tension
between providers and consumers” with WPATH expected to follow
suit.238
If the very sources that WPATH uses to justify a claim of
medical necessity concede to “growing tension” between
medicalization and demedicalization, surely this tension does not
weigh in the favor of medical consensus on the necessity of SRS.
Additionally, if the trend is indeed heading toward the
demedicalization of gender dysphoria, then the WPATH Standards
indicating that for some “surgery is essential and medically necessary”
no longer hold up, and SRS is definitively not medically necessary nor
ever required by the Eighth Amendment’s Cruel and Unusual
Punishments Clause.239
III. THE REQUIRED COURSE GOING FORWARD
The evidence presented in this Article enables for five
determinative takeaways: (1) as illuminated by state action as
measured by administrative regulation and prison healthcare
administration, SRS does not reach the threshold of consensus; (2)
general-population standards of healthcare as exemplified in both
Medicaid and Medicare coverage show that SRS fails the objective
test of Estelle and cannot be considered a medically necessary
treatment fulfilling the minimum standards of care; (3) that the
236. See WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63, at
54–55.
237. See Hage & Karim, supra note 234, at 1224–25.
238. See id. at 1224 (emphasis added ); see also LOREN S. SCHECHTER &
BAUBACK SAFA, GENDER CONFIRMATION SURGERY 310 (2018) (positing that a genderdysphoria diagnosis may not even be a requirement in the 8th Version of the Standards
of Care as it has been argued that the exclusion of the surgery to medical need is not
in line with other surgeries which may be pursued simply by desire: “individuals
seek[ing] surgery to bring the body into alignment with the gender identity” while
“not experience[ing] gender dysphoria”).
239. See Dean Spade, Commentary, Resisting Medicine, Re/modeling Gender,
18 BERKELEY WOMEN’S L.J. 15, 23, 28–29 (2003) (stating as a transgender activist
and law professor that Spade’s “goal for trans law and policy remains
demedicalization”); WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, supra note 63,
at 54.

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whirlwind speeds at which the federal government has flatly declared
medically necessary and not medically necessary in regard to SRS
show that there is clearly not consensus regarding the indispensability
of SRS; (4) clear medical disagreement regarding at least some
individual treatments that may fall under the umbrella term “SRS” are
conceded to be debatable; and (5) that the Standards put forth by
WPATH are intellectually dishonest, founded on evidence that does
not comport with the Standards themselves, and openly motivated by
political considerations that have seemingly led to the latter two faults.
All of these findings indicate that SRS is not medically necessary
as it does not enjoy consensus within the medical community as
medically necessary and that the WPATH Standards, though treated
as dogma by numerous states, agencies, and federal judges, lack the
rigor and logical muster to be treated as such.240
How then, does the legal community proceed forward with these
findings in mind? The first is that federal courts defer to the states in
matters of ordaining the medical necessity of treatment. Of course,
deference does not mean, by established jurisprudence, that a state has
free reign to ordain jurisprudentially unusual low standards of care,
and when challenged, use the affirmative defense of “we are the state;
we make the standards.”
Rather, the totality of state action is a better metric in deciding
whether there is reasonable agreement regarding various
procedures.241 This measure is not a new idea and has been regularly
practiced by the Supreme Court.242 Deference to states, and not
WPATH, makes sense as “[o]ur Constitution principally entrusts
‘[t]he safety and the health of the people’ to the politically accountable
officials of the States ‘to guard and protect.’”243 Even when states
“‘undertake[] to act in areas fraught with medical and scientific
uncertainties,’ their latitude ‘must be especially broad.’”244

240. See supra note 165.
241. See supra note 116 and accompanying text.
242. See, e.g., Gregg v. Georgia, 428 U.S. 153, 175 (1976) (citing Furman v.
Georgia, 408 U.S. 238, 383 (1972) (Burger, C.J., dissenting)) (claiming “[t]his is true
in part because the constitutional test is intertwined with an assessment of
contemporary standards and the legislative judgment weighs heavily in ascertaining
such standards. ‘[I]n a democratic society legislatures, not courts, are constituted to
respond to the will and consequently the moral values of the people.’”).
243. S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613
(2020) (Roberts, C.J., concurring) (emphasis added) (citing Jacobson v.
Massachusetts, 197 U.S. 11, 38 (1905)).
244. Id. (quoting Marshall v. United States, 414 U.S. 417, 427 (1974)).

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Even when the inevitable next case regarding whether or not
prisons are required to provide and fund SRS arises, the unelected
federal judiciary “lacks the background, competence, and expertise to
assess public health and is not accountable to the people.”245
This judicial course–correction assumes that the medical
standards of care for gender-dysphoric patients do not succumb to the
growing calls for demedicalization of the condition.246 If such calls are
answered, then the contention over whether prisons must provide SRS
becomes moot, as gender dysphoria would no longer be within the
purview of medicine. Regardless, the jurisprudentially and critically
examined path forward is clear—the only legitimate arbiters of the
medical standards of care are the fifty states and the District of
Columbia.
CONCLUSION
For the lives affected by the struggle between genderdysphoric inmates’ medical requests and federal jurisprudence, the
outcome is a denial of SRS, and predictably so. As Justice Holmes
professed, “The law is the witness and external deposit of our moral
life.”247 In a dual-federalist society, it is unsurprising that the moral life
reflects differently among different states with people of different
ideas—it is simply diversity. The Eighth Amendment, even by its most
expansive construction, relies on the least common denominator
among the states, and the people of the various states are not aligned
behind SRS.
As the inspiration for the World Professional Association for
Transgender Health, once named after him, Harry Benjamin wrote,
“Legal reforms notoriously take place at a snail-like pace.”248 Yet, in
the fifty-year period between his writing and now, the lives of
transgender and gender-dysphoric Americans have changed
substantially.249 This change is likely due to what has been observed
by state action surveyed in this Article—local advocacy and policy
245. See id. at 1614 (citing Garcia v. San Antonio Metro. Transit Auth., 469
U.S. 528, 545 (1985)).
246. See supra notes 234–239 and accompanying text.
247. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459
(1897).
248. See HARRY BENJAMIN, THE TRANSSEXUAL PHENOMENON 81 (1966).
249. See Genny Beemyn, Transgender History in the United States, in LAURA
ERICKSON-SCHROTH, TRANS BODIES, TRANS SELVES 1, 40–41 (2014) (listing various
ways in which the understanding of the lives of transgender people have changed
throughout American history).

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change. Rarely are the artifices of our legal life administered from the
top-down.250 Rather, the instrumentality of local systems takes
precedence in creating reforms desired by interested groups.251
For transgender people and those with gender dysphoria, the
future of legal protections is entirely within control. State action is not
a one-way street. While this Article demonstrates, through states, that
SRS is not by “consensus” “medically necessary,” the very category
that damns SRS as a federal constitutional right—the state—can also
become the progenitor of new rights that grant protections indicative
of the “external deposit[ion] of our moral life.”252

250. See David Schleicher, Federalism and State Democracy, 95 TEX. L. REV.
763, 763 (2017) (observing that “[s]tate and local governments, it is said, are closer to
the people, promote more innovation, and produce outputs that are a better fit for the
diverse set of preferences that exist in a large nation”).
251. See generally JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND
THE MAKING OF AMERICAN CONSTITUTIONAL LAW 202 (2018) (opining that “[i]f
change is to come in [the balancing of state and federal legal relief], it’s likely to come
from the state courts, not the federal courts”).
252. See Holmes, supra note 247, at 459.

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