Court rules transgender inmate and Shoshone-Bannock citizen needs sex reassignment surgery
Adree Edmo will be the first transgender inmate in the nation to receive sex reassignment surgery, or gender confirmation surgery, through a court order.
The 9th Circuit Court of Appeals ruled last Friday that the state of Idaho must provide the surgery to Edmo, a transgender woman and citizen of the Shoshone-Bannock Tribes.
The ruling could have important implications in western states and potentially across the nation, as prison officials grapple with the rights of transgender inmates and their medical needs.
The 9th Circuit Court opinion agreed with a lower federal court ruling from Judge B. Lynn Winmill in December 2018 that the “responsible prison officials were deliberately indifferent to Edmo’s gender dysphoria, in violation of the Eighth Amendment.” The panel of three judges ruled that denying her the surgery amounts to cruel and unusual punishment.
In a statement, Gov. Brad Little, R-Idaho, said the ruling is “extremely disappointing” and said the state would appeal the case to the U.S. Supreme Court.
Edmo’s case is, in one sense, simple: She argues that gender confirmation surgery is vital, life-saving treatment for her, and that denying it is a violation of the U.S. Constitution. The state and prison doctors contend that the surgery is not medically necessary and that Edmo does not meet criteria for the procedure.
Those surface arguments intersect with a tangled web of cultural and social factors at play: public perception versus medical perspective of gender confirmation surgery, public distaste toward sex offenders, and the fact that other circuit courts have ruled differently than the 9th Circuit Court. Those factors complicate Edmo’s story.
Edmo grew up in Fort Hall, Idaho, on the Shoshone-Bannock Reservation. She identifies as Two-Spirit and in court records, Edmo states she struggled with her identity as a young adult.
She was born with male anatomy, but described feeling like a girl as young as 5 or 6 years old. She felt closely bonded with her sister, played with Barbies growing up, and dated boys as a teenager.
Public records paint a picture of a difficult home environment for Edmo as a child. She was exposed to alcoholism and abuse. Edmo started getting in trouble with the law as a teenager, and she was convicted of driving under the influence and felony fraud, for writing checks on a closed bank account.
Medical records show that she attempted suicide multiple times. And at the age of 22, according to law enforcement reports, Edmo attempted to perform oral sex on a 15-year-old boy who was asleep on a couch at a house party. When the victim awoke, he pushed Edmo away. She pleaded guilty to sexual abuse of a minor under 16 and was sent to state prison for up to 10 years.
Edmo is incarcerated in an all-male facility near Boise, Idaho. She formally changed her name and gender marker on her birth certificate while within the Idaho Department of Correction.
In 2012, prison medical staff diagnosed Edmo with gender dysphoria, which is when someone’s external appearance doesn’t align with their gender identity, and can cause debilitating stress.
There are a number of ways to treat gender dysphoria — for some, stress is alleviated by dressing in their gender or by taking hormones. Others require more medically-intensive transition-related care, such as mastectomies or gender confirmation surgery. Not every transgender person experiences gender dysphoria.
Prison medical providers prescribed hormone treatment for Edmo after her diagnosis, but she said she still experienced dysphoria. She was particularly bothered by her male anatomy, and between 2013 and 2017 continually asked the prison for women’s undergarments to help tuck her genitalia. The prison denied her requests.
In 2015, while in prison, Edmo attempted to castrate herself using a razor blade. In 2016 she tried again. Both attempts were unsuccessful, but her second attempt sent her to a hospital emergency room, where her testicle was stitched back in.
From prison, Edmo has pleaded for support from her fellow tribal members as a Two-Spirit person.
“So where in Indian Country do I fit in?” Edmo wrote, in a letter printed in the Sho-Ban News earlier this year.
“Unfortunately, in today’s society, our young Native people are willingly following mainstream societal concepts of the binary gender system of male and female… As a transgender woman, I continue walking through these prison hallways/units subject to male prison inmates yelling obscenities, gawking and sometimes hurling immature, disrespectful remarks. The disturbing facts is some of these individuals are members of my own tribe.”
Edmo’s lawyers argue that her self-castration attempts were obvious signals that the prison was not meeting her medical needs. But the state of Idaho asserts that it isn’t medically necessary for Edmo.
The Supreme Court has ruled that prisoners have a constitutional right to medically necessary care, and numerous lower courts have held that transgender inmates have a right to other medical care like hormone treatment.
Edmo’s attorneys brought in expert medical witnesses who assessed Edmo and determined that she does need the surgery. But the prison doctor who evaluated her said other treatments were sufficient.
“That's medical judgment in and of itself,” argued Dylan Eaton, the attorney before the 9th Circuit Court for Corizon Inc., the prison’s private health care provider. “That's the heart of medical judgment. The treating doc needs to be able to make those decisions.”
But the 9th Circuit criticized the prison for not basing that evaluation from international standards of care for treatment of gender dysphoria and agreed with the lower court that Edmo’s medical witnesses were more credible.
“In contrast to Edmo’s experts, the State’s witnesses lacked relevant experience, could not explain their deviations from generally accepted guidelines, and testified illogically and inconsistently in important ways,” wrote the judges in an 85-page opinion.
Edmo believes that the surgery is key to relieving her dysphoria.
“I know that gender confirmation surgery is not a fix-all. It's not a magic operation,” she testified during the 2018 lower court hearing. “I’m still going to face the same stressors that we all face in everyday life, you know, medical, family, relationship issues. I just know that after having gotten the surgery, it's going to put me at a level a lot better to handle those types of situations than I am now."
The 9th Circuit ruling establishes an important standard for transgender inmates, but it doesn’t mean that the Idaho Department of Correction — or any prison — will have to provide gender confirmation surgery to all transgender inmates. However, it could make it easier for inmates to access the treatment when there’s a clear medical need.
Michael Mushlin, professor of law at the Elizabeth Haub School of Law at Pace University, said this opinion means that prisons need to take the medical needs of transgender prisoners seriously.
“That doesn't mean everyone is entitled to this surgery, but it means that you just can't say, ‘Well this person is transgender and is requesting the surgery and we're just not going to make that available,’ anymore than you can say to someone who has cancer, ‘Look we're not going to give you chemotherapy,’” Mushlin said.
Gov. Little wrote in a statement, “We cannot divert critical public dollars away from the higher priorities of keeping the public safe and rehabilitating offenders. 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.”
Thus far, the state of Idaho has paid $325,269.46 to litigate Edmo’s case.
The case has fomented ire from those who say the state shouldn’t foot the bill for gender confirmation surgery. An online petition has attracted thousands of signatures. “It effects the entire country [sic] sends the message go to prison for a free sex change surgery,” states the petition. “Idaho tax payers do Not [sic] need to foot the bill for this. This does Not [sic] need to happen.”
The Supreme Court takes only a slim margin of cases it reviews, but Edmo’s case could be timely, because other circuit courts have ruled differently than the 9th Circuit on the same issue. In particular, a split 5th Circuit Court decision in March 2019 said, “A state does not inflict cruel and unusual punishment by declining to provide sex reassignment surgery to a transgender inmate.” As the Supreme Court justices weigh which cases to hear, they look for discord between various circuit court rulings, as well as cases with national significance.
The state of Idaho has 90 days to appeal, and if the high court decides not to take the case, the state will have to move forward with Edmo’s surgery.
Edmo is scheduled for release in 2021 and is not eligible for parole.
Amanda Peacher is a reporter for the Mountain West News Bureau and host of the podcast LOCKED: a disturbing crime, a desperate act, and how one case could change the way prisons treat transgender inmates.