When the U.S. Court of Appeals for the Ninth Circuit on Friday ruled that prison officials in Idaho must provide a transgender inmate with gender confirmation surgery, the three-judge panel set up a stark split with the Fifth Circuit—and offered a withering critique of their sister circuit's recent holding.

The two cases had similar facts: male-to-female transgender prisoners who suffer from severe gender dysphoria, where their sex assigned at birth (male) differs from their gender identity (female).

The Idaho inmate, Adree Edmo, twice attempted self-castration. The Texas inmate, Scott Gibson, also known as Vanessa Gibson, said she copes by tying a string around her testicles "until they turn purple.… I do this to stop the testosterone from entering my body."

Both prisoners requested gender confirmation surgery, arguing that the treatment was medically necessary, and that to deny it would violate the Eighth Amendment's ban on cruel and unusual punishment.

On Aug. 23, the Ninth Circuit broke new ground in approving the surgery for Edmo. "[W]e hold that the responsible prison authorities have been deliberately indifferent to Edmo's gender dysphoria, in violation of the Eighth Amendment," the panel ruled. "In so holding, we reject the state's portrait of a reasoned disagreement between qualified medical professionals. We also emphasize that the analysis here is individual to Edmo and rests on the record in this case."

But on March 29, a divided Fifth Circuit panel refused surgery for Gibson. "[I]t cannot be cruel and unusual to deny treatment that no other prison has ever provided," wrote James Ho, who was co-chair of Gibson, Dunn & Crutcher's appellate group before he was appointed to the bench by President Trump in 2018.

In writing for the majority, Ho asserted that "the necessity and efficacy of sex reassignment surgery is a matter of significant disagreement within the medical community," and therefore the state has no obligation to provide it.

How the cases were litigated may in part explain such divergent results.

The Fifth Circuit inmate, Gibson, was pro se at the district court level. She was never even evaluated for sex reassignment surgery because Texas prison policy does not authorize such treatment. Suffice to say there were no expert witnesses.

"The court is effectively ruling that because plaintiff is transgender she isn't entitled to medical care," Gibson pleaded to no avail.

On appeal, Gibson was represented by Stephen Braga, the director of clinical programs at the University of Virginia School of Law. The case attracted no amicus briefs.

The Ninth Circuit inmate, Edmo, was represented by court-appointed pro bono counsel from Ferguson Durham soon after she filed her initial complaint in federal court in Idaho.

Her district court legal team grew to eight lawyers, including Lori Rifkin, who left the Department of Justice's Civil Rights Division in 2013 to launch a solo civil rights boutique; Dan Stormer and Shaleen Shanbhag of civil rights firm Hadsell Stormer & Renick; and Amy Whelan, Alexander Chen and Julie Wilensky from the National Center for Lesbian Rights.

That's not all. On appeal, lawyers from Wilmer Cutler Pickering Hale and Dorr; Jenner & Block; Akin Gump Strauss Hauer & Feld and Keker, Van Nest & Peters, along with counsel from the ACLU, Lambda Legal Defense & Education Fund, Inc. and the Center for Constitutional Rights submitted a total of five amicus briefs supporting Edmo, including one by former prison officials.

The state of Idaho received no amicus backing.

And then there were the judges.

The Fifth Circuit panel was all Republican appointees—Ho was joined in his opinion by Judge Jerry Smith, a Ronald Reagan pick. Judge Rhesa Hawkins Barksdale, a George W. Bush appointee, dissented. The now-retired district court judge whose decision the majority upheld, Walker Smith Jr., was also a Reagan appointee.

The Ninth Circuit panel—M. Margaret McKeown, Ronald Gould and Robert S. Lasnik—were all appointed by Bill Clinton, as was the Idaho district court judge, B. Lynn Winmill, whose decision they upheld.

In an 85-page per curiam opinion, the Ninth Circuit panel explained at length why they think the Fifth Circuit got it wrong.

Both circuits claim to be in harmony with 2014 en banc decision from the First Circuit, Kosilek v. Spencer. In a 3-2 holding, the First Circuit concluded the plaintiff failed to demonstrate that surgery was medically necessary treatment for her gender dysphoria.

The way Ho reads it, "[T]he majority in Kosilek effectively allowed a blanket ban on sex reassignment surgery." The Fifth Circuit was just following along.

But the Ninth Circuit panel points out that the First Circuit looked at specific facts—that prisoner Michelle Kosilek's non-surgical treatment plan had "led to a significant stabilization in her mental state," that qualified experts disagreed about the best course of action for her personally, and that there were "significant security concerns" about where she would be incarcerated after surgery.

"Our approach mirrors the First Circuit's, but the important factual differences between cases yield different outcomes," the Ninth Circuit panel wrote.

The Fifth Circuit, on the other hand, based its decision on a bare-bones record compiled by a pro se plaintiff.

The Ninth Circuit panel slammed the Fifth for relying "on an incorrect, or at best outdated, premise"—that there's no medical consensus whether surgery can be a necessary or effective way to treat people with gender dysphoria.

In what feels like an in-your-face move, the Ninth Circuit panel lists a full page of organizations starting with the American Medical Association, the American Psychiatric Association and the American Psychological Association that endorse the standards (known as WPATH) laying out when surgery is the appropriate treatment for gender dysphoria.

It's a really long list.

The Fifth Circuit's "broad holding stemmed from a dismaying disregard for procedure," the Ninth Circuit continued, noting that the rival panel didn't have the benefit of fresh expert testimony. Instead, it simply "co-opted the record from Kosilek…We doubt the analytical value of such an anomalous procedural approach."

Ho justified the shortcut, writing for the Fifth Circuit panel that "No legal authority compels the state, every time a prison inmate demands sex reassignment surgery, to undertake the time and expense of assembling a record of medical experts, pointing out what we already know—that sex reassignment surgery remains one of the most hotly debated topics within the medical community today."

Unless maybe it's not actually something you already know. You just think you know it.

According to the Ninth Circuit, the only doctor in the Kosilek case who specifically said gender confirmation surgery was never medically necessary was Dr. Cynthia Osborne.

Turns out that in the intervening 10 years since she testified, Osborne's views have changed. Now she writes that surgery "can be medically necessary for some, though not all, persons with [gender dysphoria], including some prison inmates."

"The predicate medical opinions that Gibson is premised upon, then, do not support the Fifth Circuit's view," the Ninth Circuit found.

As for Ho's other contention—that punishment must be cruel AND unusual to violate the Eighth Amendment—the Ninth Circuit panel was nothing short of disdainful, addressing it only in a footnote.

"Gibson's final, originalist rationale—that it cannot be cruel and unusual to deny a surgery that has only once been provided to an inmate—warrants little discussion," the Ninth Circuit judges wrote. "Gibson's originalist understanding of the Eighth Amendment does not control; [Estelle v. Gamble] does, and under Estelle a plaintiff establishes an Eighth Amendment claim by demonstrating that prison officials were deliberately indifferent to a serious medical need. This standard protects the evolving standards of decency enshrined in the Eighth Amendment."