The U.S. Supreme Court this week declined to take up a case from Texas where a transgender inmate sued the state for sex reassignment surgery, which could have implications for a similar case out of Idaho.

Vanessa Lynn Gibson has been in a Texas prison since 1995 after she was convicted of aggravated robbery and later murdered a fellow inmate. Gibson was born male, but has identified as a woman since she was 15. 

Her lawyer argues that not giving her the surgery would violate the 8th Amendment, which protects against cruel and unusual punishment. 

The 5th Circuit Court of Appeals said its denial wasn’t cruel and unusual punishment because the surgery’s “necessity and efficacy” are disputed within the medical community. 

But dozens of studies show transgender patients report a better quality of life after getting some type of treatment — including surgery.

The 5th Circuit decision is in direct contrast with a case from 9th Circuit Court of Appeals that told Idaho it had to provide the surgery to Adree Edmo, who was diagnosed with gender dysphoria in prison.

Gender dysphoria is a condition where those who suffer from it experience significant distress because their biological sex doesn’t match their gender identity. For example, Edmo has attempted to castrate herself twice while in prison, which she says is due to her gender dysphoria.

Courtney Joslin, a professor at University of Californi, Davis School of Law, said the U.S. Supreme Court’s choice to not hear Gibson’s case might not necessarily foreshadow a loss for Edmo.

While the 9th Circuit ruled differently than its sister court, Joslin said the decision in Edmo’s case was narrowly tailored based on her own individual circumstances.

“That decision did not necessarily mean, though, that every transgender prisoner going forward is entitled to the same type of medical treatment,” Joslin said.

The U.S. Supreme Court is also pretty busy. It only accepts 1-2% of the thousands of cases that are appealed every year.

Edmo just received her first round of court-ordered, pre-surgical treatment last month, namely hair removal treatment.

The Idaho Department of Correction and Corizon, the state’s private healthcare provider, have continued to object to providing Edmo with these treatments in court filings. They have asked for the entire 9th Circuit to hear the case again.

Should that fail, Idaho Gov. Brad Little (R) has said he will appeal Edmo’s case to the U.S. Supreme Court. But Joslin says Monday’s denial of the Gibson case could signal that the nation’s highest court thinks it’s not the right time to weigh in on these issues.

If the Supreme Court did deny an appeal in Edmo’s case, she would become the first transgender inmate in the country to receive sex reassignment surgery through a court order.

Edmo was convicted of sexually abusing a 15-year-old boy when she was 22. She’s eligible for release in July 2021.

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The Supreme Court on Monday declined to hear a convicted murderer’s appeal to receive gender reassignment surgery, leaving in place a lower court’s ruling in favor of the Texas prison officials who refused the inmate the procedure.

The court rejected the appeal of a Fifth Circuit Court of Appeals ruling by transgender inmate Vanessa Lynn Gibson, formerly known as Scott Gibson, who claimed the prison’s refusal to grant the surgery violates the Constitution’s Eighth Amendment, which bans cruel and unusual punishment.

Gibson, 41, who was born male but has lived as a woman since age 15, was convicted and sent to prison for aggravated assault in 1995 and two years later convicted of murdering another inmate.

The inmate, who is eligible for parole in 2021, has engaged in self-harm and has attempted suicide three times, stemming in part from gender dysphoria, which Gibson was diagnosed with in 2014.

Gibson was provided with hormone therapy but denied a request to be considered for gender reassignment surgery. Lawyers for Gibson argued in court filings that the gender dysphoria, which causes their client to feel like a woman trapped in a man’s body, is life-threatening in this case. However, Texas does not have a policy governing “irreversible surgical intervention” for inmates, the state said.

“A state does not inflict cruel and unusual punishment by declining to provide sex reassignment surgery to a transgender inmate,” Judge James Ho said in the Fifth Circuit’s decision, adding that “the necessity and efficacy of sex reassignment surgery is a matter of significant disagreement within the medical community.”

Ho also noted “no other prison has ever provided” gender reassignment surgery.

Democratic presidential candidates including Massachusetts Senator Elizabeth Warren and former 2020 candidate Senator Kamala Harris have advocated for spending taxpayer dollars on sex-reassignment surgery for prison inmates.

The Supreme Court did not comment on its decision not to consider the case.

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The evangelical-led Trump administration has been waging a war against transgender people since 2016, but the way they responded to a Supreme Court case involving anti-trans discrimination may be the most horrifying defense of bigotry yet.

The case in question involves Aimee Australia Stephens, a transgender woman, who spent six years working as a funeral director and embalmer in Detroit. In 2013, she told her colleagues and employers at RG & GR Harris Funeral Home that she would go through sex-reassignment surgery so that her outward appearance matched her true gender.

The proper response would have been, “We wish you the best.” Or maybe “We can’t wait to have you back at work!” Or maybe “This is none of my goddamn business, but more power to you.”

Instead, owner Thomas F. Rost fired her.

Stephens later filed a lawsuit against her employer with two specific allegations: that the company violated Title VII of the Civil Rights Act of 1964 by firing her for being transgender, and that they violated sex discrimination laws by saying she was fired for refusing to wear a suit (which was required of all maleemployees). The first allegation was rejected altogether because a court said discrimination on the basis of gender identity was not banned by Title VII, so you couldn’t argue otherwise. The second one has been the basis of a lengthy legal battle.

In 2016, a federal judge said the funeral home didn’t violate the law by firing an employee who wanted to dress as a woman. While discrimination could be argued, the judge said, the employer’s religious rights allowed for it under the law. To put it another way, the employers’ faith, which compelled them to make men wear suits at work, was deemed more important than the right of a female employee to not wear a suit.

An appeals court later (thankfully) overturned that ruling. They said Stephens was a victim of discrimination and that her wanting to wear a dress didn’t burden her employers enough that the religious trump card kicked in.

Now the Supreme Court’s going to weigh in, and the Trump administration issued a brief calling for SCOTUS to overturn the ruling. They want religious business owners to have the right to fire transgender employees. Just because. But they’re going even further by calling for the Supreme Court to make sex discrimination legal regardless of what Title VII says.

In short, the government is saying that when Title VII prohibits sex discrimination, it really means “biological sex.” So firing trans people at will ought to be totally fine.

Dominic Holden at BuzzFeed explains that this is all coming from the Christian Right’s playbook:

The administration’s argument against LGBTQ rights matches the advocacy of conservative Christian groups, which claim Congress only intended to ban discrimination because someone is male or female — saying the sexes cannot be treated differently. Their argument says interpreting the term “sex” more broadly effectively rewrites the law, and only Congress, not courts, has that license.

The counterargument from LGBTQ advocates and several lower courts, however, is that the intent of lawmakers does not limit a law’s reach, but rather its meaning is defined by the statute’s plain text. They say anti-transgender discrimination can result from a person defying traditional sex stereotypes or because the person transitioned from one sex to another — and thus, it is inherently a type of sex discrimination.

That latter argument makes sense. Stephens was fired for, say, wanting to wear a dress, but a cis woman who wanted to wear a dress would still have a job. Stephens was fired, then, for not fitting a gender-based stereotype. That’s sex discrimination. It’s like firing a woman for having short hair.

If the government gets its wish — which is to say, if white evangelical Christians get their wish — then it could become open season for Christian business owners to fire transgender people for the crime of merely existing. (In which case the rest of us should openly refuse to do business with bigoted owners — and to make sure the world knows which businesses are run by those people.)

If all that wasn’t enough, a separate brief filed by the Christian hate group Alliance Defending Freedom took a “sky is falling” approach to what the country would look like if you couldn’t fire trans people.

“It will deny women and girls fair opportunities to compete in sports, to ascend to the winner’s podium, and to receive critical scholarships,” the ADF brief states. “It will also require domestic-abuse shelters to allow men to sleep in the same room as female survivors of rape and violence. And it may dictate that doctors and hospitals provide transition services even in violation of their religious beliefs.”

The people who have earned a reputation for not giving a damn about anyone who doesn’t think just like they do want you to believe they now care about the whole world. (Also, I assure you no trans person has ever forced a doctor to perform a transition service against his or her will. That sounds… like a horrible idea.)

The oral arguments for this case and two others that involve similar issues will occur in early October. Given the Court’s makeup, there’s no reason to be optimistic about what the justices will do.

Never vote for a Republican. The GOP’s only policy goal is to inflict pain on people who disagree with them. LGBTQ people will suffer more than most, and this is just the latest example of it.

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When the U.S. Supreme Court in 1994 decided a case involving a transgender individual’s rights, it looked to the American Medical Association to medically define the plaintiff who asked the court to protect her.

Dee Farmer was assigned at birth male, but identified as female. She wore women’s clothing, underwent estrogen therapy, received silicone breast implants and underwent an unsuccessful “black market” testicle-removal surgery. Farmer, who was serving a federal sentence for credit card fraud, sued federal prison officials for violating her Eighth Amendment rights to not be subjected to cruel and unusual punishment while in prison.

Farmer had continued hormone therapy and presented as female in prison, according to court records. She was generally separated from the male population at the first prison she was housed, in part for behavior and in part for safety. After being transferred to another prison, she was placed in a general population where she said she was beaten and raped.

The Bureau of Prison’s medical personnel had diagnosed Farmer as transsexual and justices in their opinion turned to the AMA’s 1989 Encyclopedia of Medicine for the medical definition quoting that it was “[a] rare psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex,” and who typically seeks medical treatment, including hormonal therapy and surgery, to bring about a permanent sex change.

The Litigation Center of the American Medical Association and State Medical Societies and 10 other medical organizations noted that this definition was out of date in an amicus brief they filed in a 2017 case, Adams v. School Board of St. Johns County, Florida.

“It is now understood that being transgender implies no impairment in a person’s judgment, stability, or general social or vocational capabilities,” the brief stated. “Gender dysphoria is a condition characterized by clinically significant distress and impairment of function resulting from the incongruence between one’s gender identity and the sex assigned at birth.”

The court in Farmer v. Brennan sent the case back to the lower court for further consideration of whether prison officials knew the risk, with the high court justices ruling that prison officials could be found liable for denying an inmate humane conditions if they knew of or disregarded an excessive risk to the inmate’s health or safety.

Farmer ultimately lost the case during the retrial, but the Supreme Court ruling was precedent-setting.

AMA Litigation Center gets involved

Since 1994, the AMA on numerous occasions has stood up for transgendered individuals’ rights in court, with the Litigation Center filing friend-of-the court briefs.

The AMA Litigation Center gets involved in cases when the AMA has policy on an issue. The Association has a number of policies involving LGBQT rights, including that public and private health insurers cover treatment of gender dysphoria as recommended by the patient’s physician. Policy the House of Delegates adopted at the 2018 AMA Interim Meeting calls on the Association to, among other things, oppose any efforts to deny an individual’s right to determine their stated sex marker or gender identity and to affirm that gender for many individuals may differ from the sex assigned at birth.

Advocating in Penn., Wisc.

In 2018, the AMA Litigation Center joined other health care organizations in filing an amicus brief asking the 3rd U.S. Circuit Court of Appeals to uphold a policy that allows Pennsylvania high school students to use a bathroom or locker room that matches their gender identity rather than their sex assigned at birth can be left in place.

The appellate court in its ruling in Doe v. Boyertown Area School District upheld the policy. The students who filed the lawsuit seeking to have the policy thrown out are now asking the U.S. Supreme Court to consider the case.

The AMA Litigation Center also advocated on behalf of transgender individuals’ rights in 2011 when it joined with other health care organizations in filing an amicus brief in the 7th U.S. Circuit Court of Appeals in a case that asked whether a Wisconsin law prohibiting prison doctors from using hormonal therapy or sex reassignment surgery to treat inmates with gender identity disorder was legal.

In Fields v. Smith, the 7th Circuit upheld a lower court decision that withholding treatment was cruel and unusual punishment under the Eighth Amendment and deprived inmates of equal protection guaranteed under the 14th Amendment.

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