Medically unnecessary

Idaho Gov. Brad Little said last week he will appeal to the U.S. Supreme Court over a ruling requiring his state to provide sex-change surgery to a transgender inmate convicted of sexually abusing a child.

“The court’s decision is extremely disappointing,” Little, a Republican, said hours after a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled the denial of surgery to inmate Adree (formerly Mason Dean) Edmo amounted to cruel and unusual punishment. “The hardworking taxpayers of Idaho should not be forced to pay for a convicted sex offender’s gender reassignment surgery when it is contrary to the medical opinions of the treating physician and multiple mental health professionals.”

The inmate is a convicted male rapist who identifies as female.

Edmo, 31 was found guilty of raping a 15-year-old boy at a house party in 2012. Doctors diagnosed him with gender dysphoria shortly after he arrived in prison. Edmo sued the Idaho Department of Correction in 2017, claiming its refusal to pay for sex-change surgery caused him severe distress and violated the Eighth Amendment to the U.S. Constitution. Court documents said Edmo had twice tried to castrate himself using a razor blade in his prison cell and was a suicide risk without the surgery.

Late last year, U.S. District Judge B. Lynn Winmill sided with Edmo, ruling that failure to treat his gender dysphoria with sex-change surgery could result in further injury or the unnecessary infliction of pain. Winmill gave Idaho six months to provide Edmo with the surgery, but the court stayed the order when the state appealed the decision.

Experts have different opinions about whether Edmo—or anyone else—needs sex-change surgery.

Medical experts for the Idaho Department of Correction testified in federal court that the surgery was not medically necessary for Edmo. The appeals court dismissed the claim, saying the state’s witnesses “lacked relevant experience, could not explain their deviations from generally accepted guidelines, and testified illogically and inconsistently in important ways.”

The court instead affirmed the claims of Edmo’s medical experts, who said the inmate has a serious medical need that is best treated with sex-change surgery. They said prison authorities have not provided the treatment “despite full knowledge of Edmo’s ongoing and extreme suffering and medical needs.” His attorney compared the situation to prison officials refusing to treat an inmate with cancer or diabetes.

In March, the 5th Circuit ruled the denial of sex-change surgery does not violate the Eighth Amendment. But the 9th Circuit argued the 5th Circuit decision relied on the premise that there is no medical consensus about whether sex-change surgery is a necessary or effective treatment for gender dysphoria, a conclusion the 9th Circuit called “incorrect, or at best outdated.”

But the medical consensus is far from established. In 2016, the Centers for Medicare and Medicaid Services (CMS) under the Obama administration declined to mandate coverage of sex-change surgery, stating the “clinical evidence is inconclusive.” CMS said it analyzed 33 studies published between 1979 and 2015 and concluded the quality and strength of evidence was low and the best-designed studies did not demonstrate clinically significant changes in transgender individuals after sex-change surgery. One study from Sweden found patients who had undergone sex-change surgery still committed suicide at a rate 19 times higher than the general population.

Sex change surgery has proven ineffective at helping people with gender dysphoria.

Paul McHugh, the former psychiatrist-in-chief at Johns Hopkins Hospital in Baltimore, has written extensively about his experience pioneering sex-change surgery there. He eventually stopped offering the treatment in the 1970s after finding it offered no significant benefit to patients.

“Transgendered men do not become women, nor do transgendered women become men,” wrote McHugh in a 2015 article for Public Discourse. “All (including Bruce Jenner) become feminized men or masculinized women, counterfeits or impersonators of the sex with which they ‘identify.’ In that lies their problematic future. When ‘the tumult and shouting dies,’ it proves not easy nor wise to live in a counterfeit sexual garb.”

McHugh argued gender dysphoria is a psychological disorder and “treatment should not be directed at the body as with surgery and hormones any more than one treats obesity-fearing anorexic patients with liposuction.”

Idaho has 90 days to appeal the ruling to the U.S. Supreme Court. The disagreement between the 5th and 9th circuits could mean the case has a better chance of getting a hearing before the high court. Edmo is scheduled for release from prison in 2021.