United States Court of Appeal for the Ninth Circuit (Photo: Jason Doiy/ALM)

The U.S. Court of Appeals for the Ninth Circuit on Monday announced that it will not rehear a case that affirmed a preliminary injunction requiring a prison to provide Adree Edmo, an incarcerated trans woman in Idaho, sex reassignment surgery. A group of dissenting judges on the court, however, criticized the lower court's decision to mandate "an evolving standard of care."

Ninth Circuit Judges M. Margaret McKeown and Ronald Gould and U.S. District Judge Robert Lasnik of the Western District of Washington, sitting by designation, denied the petitions for rehearing.

But Ninth Circuit Senior Judge Diarmuid O'Scannlain wrote that the decision made the Ninth Circuit "the first federal court of appeals to mandate that a State pay for and provide sex reassignment surgery to a prisoner under the Eighth Amendment."

O'Scannlain, who can no longer participate in en banc votes or formally join a dissent from denial to rehear en banc as a judge who recently took on senior status, still wrote an opinion in the matter, which was joined by Judges Consuelo Callahan, Carlos Bea, Sandra Ikuta, Ryan Nelson, Bridget Bade, Daniel Bress, Patrick Bumatay and Lawrence VanDyke, but not Judge Danielle Hunsaker, a former O'Scannlain clerk who assumed his seat last year. O'Scannlain called the panel's finding that an alternative treatment would be cruel and unusual punishment "as unjustified as it is unprecedented."

"The panel first, and fundamentally, errs by misunderstanding what it means for a chosen treatment to be medically 'unacceptable' for purposes of the Eighth Amendment," O'Scannlain wrote in the statement.

The judge took issue with the court's reliance on criteria for sex-reassignment surgery created by the World Professional Association for Transgender Health, an organization devoted to the treatment of the gender dysphoria, or distress around the mismatch between gender identity and biological sex, often experienced by trans men and women.

"A mere professional association simply cannot define what qualifies as constitutionally acceptable treatment of prisoners with gender dysphoria," he wrote, pointing to the fact that only about half of the committee members who agree on the criteria have medical degrees, with the rest made up of sexologists, psychotherapists, activists, sociologists and law professors.

Had the court recognized WPATH experts as "mere participants in an ongoing medical debate" they would have "acknowledged this case for what it is: a 'case of dueling experts,'" he wrote.

Judge Diarmuid O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit attending the Federalist Society's annual lawyers convention at the Mayflower Hotel in Washington on Nov. 14, 2019.

O'Scannlain also noted the panel's decision on the Eighth Amendment claims conflict with every other circuit that has encountered the issue.

"I do not know whether sex-reassignment surgery will ameliorate or exacerbate Adree Edmo's suffering. Fortunately, the Constitution does not ask federal judges to put on white coats and decide vexed questions of psychiatric medicine," he wrote. "The Eighth Amendment forbids the 'unnecessary and wanton infliction of pain,' not the "difference of opinion between a physician and the prisoner—or between medical professionals."

The departure from the traditional deliberate-indifference standard, which is used to help determine Eighth Amendment violations, comes during what the lower court called an "increased social awareness," the judge said.

"The temptation to stand at what we are told is society's next frontier and to invent a constitutional right to state-funded sex-reassignment surgery does not justify the revision of previously universal principles of Eighth Amendment jurisprudence," he said.

Dissenting from the denial of the petition to rehear the case en banc, Collins said the prison's decision to deny the surgery was not cruel and unusual punishment.

Collins also joined part of Bumatay's longer dissent, which argued that the decision waters down the deliberate-indifference standard.

Bumatay wrote that the panel's analysis allows future courts to infer deliberate indifference where they find "medically unacceptable" treatment, the second part of the test to determine cruel and unusual punishment, creating "one circular step" that dilutes deliberate indifference to mere negligence.

"By denying rehearing en banc in this case, we relegate federal judges to the role of referee in medical disputes," he wrote.