Zayre-Brown v. North Carolina Department of Adult Corrections

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

DOCKET NO. 3:22-cv-191-MOC-DCK

KANAUTICA ZAYRE-BROWN, )

)

Plaintiff, )

)

vs. ) ORDER

)

NORTH CAROLINA DEPARTMENT OF )

PUBLIC SAFETY, et al., )

)

Defendants. )

THIS MATTER is before the Court on the parties’ cross motions for summary

judgment. (Doc. Nos. 59, 62). The Court heard argument on the motions in November 2023.

Upon careful review of the pleadings, the Court finds unresolved questions of material fact and

will deny both summary judgment motions without prejudice. The Court will hold an evidentiary

hearing to resolve the disputed questions of fact identified in this order. After the evidentiary

hearing, the parties may renew their summary judgment motions.

I. BACKGROUND

Plaintiff, Kanautica Zayre-Brown, is a transgender woman. In 2010, Plaintiff was

diagnosed with gender dysphoria (“GD”).1 Since then, Plaintiff has lived socially as a woman,

received GD-related psychotherapy, and transitioned gender presentation and sex characteristics

to female. In 2012, Plaintiff started hormone therapy and began a course of surgeries related to

1 Gender Dysphoria is defined in the Diagnostic and Statistical Manual of Mental Disorders

(“DSM”) as “marked incongruence between one’s experienced/expressed gender and assigned

gender.” Gender Dysphoria, Diagnostic & Statistical Manual of Mental Disorders, 5th ed.

S2H14. The condition is characterized by “(1) a marked incongruence between an individual’s

sex assigned at birth and the individual’s gender identity, (2) strong cross-gender identification,

and (3) clinically significant distress or impairment of functioning.” (Doc. No. 63 at 2–3).

her transition process. Although these procedures somewhat alleviated Plaintiff’s GD, Plaintiff

remained dysphoric about the lower body. Plaintiff’s course of surgeries culminated—for the

time being—with a 2017 orchiectomy.2 Shortly after the orchiectomy, Plaintiff began a 119-

month sentence in the North Carolina Department of Adult Corrections (“DAC”). In December

2018, while in DAC custody, Plaintiff formally requested a gender-affirming genital surgery.

a. The DAC’s Review Process

The DAC reviews all inmate requests for surgery through its “utilization review process,”

which evaluates the medical necessity of the requested procedure. In 2019, the DAC established

its policy for the Evaluation and Management of Transgender Offenders (“ETMO Policy”). The

ETMO policy provides for a Division Transgender Accommodation Review Committee

(“DTARC”), which reviews transgender inmates’ requests for medical interventions. When

inmates suffering from GD request treatment from the DAC, the DTARC serves as the

utilization review authority with the power to approve or deny requested treatments.

The DTARC is comprised of clinical staff, including Arthur L. Campbell, M.D. (Chief

Medical Officer), Brian Sheitman, M.D. (Chief of Psychiatry), and Lewis Jonathan Peiper, Ph.D.

(Director of Behavioral Health), as well as non-clinical staff like the DAC’s Director of

Operations (Josh Panter) and Director of Rehabilitative Services (Sarah Cobb). Defendants

Panter and Cobb, and other non-clinical DTARC members, are not medical professionals and

have no experience treating GD. When it comes to clinical requests, the non-clinical members of

DTARC “generally defer to the clinical members.” (Doc. No. 60 at 4). Even the clinical DTARC

members, however, have limited training and experience with respect to GD.

The DTARC’s recommendations are subject to approval by the Director of Health and

2 An orchiectomy is the surgical removal of the testes.

Wellness Services (Defendant Junker) and Assistant Commissioner of Prisons (Defendant

Harris). Neither decisionmaker has experience or training in treating GD. The DAC does not

require such high-level approval for any procedure besides gender-affirming genital surgery.

Despite having received over thirty such requests, the DTARC has never recommended approval

of gender-affirming surgery for an inmate’s GD. (Doc. No. 60 at 5; Doc. No. 63 at 10).

Dr. Campbell, a DTARC member and the DAC’s Chief Medical Officer, authored a

document titled “DTARC medical necessity position statement on gender reassignment surgery.”

In the position statement, Dr. Campbell asserts that gender-affirming surgery is never medically

necessary to treat GD. Despite the document’s title, Defendants claim that “Dr. Campbell’s

position paper was never adopted by DTARC or the [DAC].” (Doc. No. 60 at 5).

b. The DAC’s Efforts to Treat Plaintiff’s GD

Following Plaintiff’s incarceration, DAC psychologist Susan Garvey confirmed

Plaintiff’s GD diagnosis. Plaintiff formally requested gender-affirming surgery in December

2018, and the facility referred that request to the DTARC in January 2019. During the pendency

of the DTARC review, Plaintiff experienced distress related to GD and the DTARC’s delays.

In mid-August 2019, the DTARC deferred Plaintiff’s surgical request. Plaintiff submitted

a request for reconsideration in early 2020. In response, the DTARC sought information from the

UNC Transgender Health Program (UNC THP) regarding the nature of the procedure, number of

visits required, and cost. Five months after Plaintiff submitted the reconsideration request, the

DTARC indicated it would only resolve Plaintiff’s request after an in-person consultation with

an OBGYN surgical specialist experienced in gender-affirming surgery. (Doc. No. 63 at 12).

Plaintiff’s first step towards in-person consultation—a telehealth interview with the UNC

THP coordinator—did not occur for twelve months. Between the DTARC’s May 2020 report

and Plaintiff’s May 2021 telehealth interview with UNC, Plaintiff’s mental health deteriorated.

In December 2020, Plaintiff expressed to DAC provider Dr. Patrician Hahn suicidal thoughts and

an urge to mutilate Plaintiff’s genitals. In April 2021, Plaintiff tied a band around the genitals,

which Dr. Hahn deemed a self-harm attempt designed to more quickly obtain gender-affirming

surgery. In May 2021, the DAC’s Director of Healthcare Administration (Defendant Terri

Catlett) forwarded an email to DAC mental health staff indicating Plaintiff had expressed a

desire to mutilate and kill herself.

On May 25, 2021, Plaintiff had a telehealth interview with the UNC THP Coordinator,

Nurse Katherine Croft. Ms. Croft concluded that weight loss was Plaintiff’s only obstacle to

surgery. Croft then informed the DAC that the next step in UNC THP’s surgical assessment

would be an in-person consultation. That assessment occurred in July 2021. Plaintiff was

evaluated by Dr. Bradley Figler, a surgeon selected by the DAC who has expertise in gender-

affirming surgery. Dr. Figler concluded that Plaintiff met the requirements for gender-affirming

genital surgery. Based on Plaintiff’s persistent GD, Dr. Figler further concluded that gender-

affirming surgery was medically necessary for Plaintiff.

Dr. Figler was not alone in concluding that Plaintiff was an appropriate candidate for

gender-affirming surgery and that such surgery was medically necessary. Dr. Donald Caraccio,

Plaintiff’s endocrinologist, wrote in a clinical encounter note that vulvoplasty was a “medically

necessary part of treatment for this patient.” (Doc. No. 60 at 8). Jennifer Dula, Plaintiff’s treating

therapist, wrote in a clinical note that Plaintiff met the criteria for gender-affirming surgery and

that surgery would “make significant progress in further treatment of [Plaintiff’s GD].” (Id.).3

3 Additionally, Dr. Hahn testified that she believed gender-affirming surgery was necessary from

a mental health perspective. (Doc. No. 63 at 20). And Dr. Marvella Bowman, a psychologist who

treated Plaintiff for six months beginning in August 2021, testified that Plaintiff was unlikely to

c. The 2022 DTARC Meeting and Case Summary

In Autumn 2021, Plaintiff met the weight loss goal. DAC healthcare providers submitted

a utilization review request for gender-affirming vulvoplasty.4 On February 17, 2022, the

DTARC met to consider Plaintiff’s request. Before the meeting, doctors Campbell, Sheitman,

and Peiper reviewed Plaintiff’s medical records. That review apparently included the

recommendations of Dr. Figler, Dr. Carccio, and Ms. Dula. During the meeting, doctors

Campbell, Sheitman, and Peiper provided input based on their pre-meeting review. No other

DTARC members reviewed Plaintiff’s medical records before the meeting: they deferred to

doctors Campbell, Sheitman, and Peiper. Doctors Sheitman and Peiper in turn deferred to Dr.

Campbell with respect to medical necessity. Nonetheless, Defendants maintain that the DTARC

did not rely on Dr. Campbell’s position paper concluding that gender-affirming surgery is never

medically necessary for the treatment of GD. (Doc. No. 60 at 5).

The DTARC ultimately recommended denial of Plaintiff’s request for two reasons. First,

the DTARC concluded that Plaintiff was well-adjusted and benefitting from existing treatment.

Specifically, the DTARC concluded that Plaintiff did not present a risk of self-harm or suicide

absent gender-affirming surgery. The DTARC dismissed contrary evidence (e.g., Plaintiff’s

statements regarding her desire to self-mutilate) as “an attempt to force the [DAC] to provide the

desired surgery.” (Doc. No. 60 at 13). Second, the DTARC found the medical literature was

mixed on the efficacy of gender-affirming surgery as treatment for GD. The DTARC largely

based this second conclusion on Dr. Campbell’s research and analysis. Dr. Campbell concluded

that the Standards of Care published by the World Professional Association for Transgender

stop experiencing GD absent surgery. (Id.).

4 A vulvoplasty is a genital reconstruction surgery that creates a neo-vulva but does not create a

vaginal cavity.

Health (“WPATH”)—according to which Doctor Figler assessed Plaintiff’s request—were not

evidence-based. The DTARC’s analysis was condensed into a Case Summary and provided to

Defendants Junker and Harris for final decision.

Dr. Campbell was the sole author of the medical analysis section of the Case Summary.

Dr. Campbell admitted that his medical analysis was based largely on his position statement.

Defendants Junker and Harris deferred to Dr. Campbell’s judgment on medical necessity.

In April 2022, Plaintiff received the DTARC’s denial of her request for gender affirming

surgery. This lawsuit followed.

d. Procedural History

Plaintiff filed this action in April 2022, raising claims under the U.S. and North Carolina

Constitutions, the Americans with Disabilities Act (“ADA”), and Section 504 of the

Rehabilitation Act (“RA”). Plaintiff moved for preliminary injunction on the Eighth Amendment

claim, requesting the Court order Defendants to “provide Ms. Zayre-Brown the gender-affirming

surgery that she urgently needs.” (Doc. No. 14). Both parties moved for summary judgment. This

Court heard argument on the parties’ cross motions in November 2023.

II. LEGAL STANDARD

The Court grants summary judgment “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a). A fact is “material” if it could affect the outcome of the suit under governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The movant for summary judgment bears the burden of persuasion. That burden requires

the movant to identify “those portions of the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted). For issues on which the non-movant bears the burden of proof, the

movant discharges the burden of persuasion by showing “that there is an absence of evidence to

support the nonmoving party’s case.” Id. at 325.

If the movant meets their burden, the burden shifts to the non-movant. To meet their

burden, the non-movant “must set forth specific facts showing that there is a genuine issue for

trial.” Id. at 322 n.3. More specifically, the non-movant must adduce sufficient evidence from

which “a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at

248; accord Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 818 (4th Cir. 1995). Naked

allegations or denials are insufficient. Celotex, 477 U.S. 317, 324.

Considering a motion for summary judgment, the Court views the evidence and any

inferences therefrom in the light most favorable to the non-movant. Anderson, 477 U.S. at 255.

“‘Where the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.’” Ricci v. DeStefano, 129 S. Ct. 2658, 2677

(2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

III. ANALYSIS

a. Eighth Amendment (Deliberate Indifference) Claim

The Eighth Amendment obligates states to “provide medical care for those whom it is

punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). States disappoint this

obligation where they act with “deliberate indifference” to inmates’ “serious medical needs.” Id.

at 103. The Eighth Amendment’s scope is not static but draws from “evolving standards of

decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 100–01

(1958). For that reason, before deciding whether a practice “comports with the fundamental

dignity that the Amendment protects,” courts must consider “objective evidence of contemporary

values.” Ford v. Wainwright, 477 U.S. 399, 406 (1986).

To state a deliberate indifference claim, Plaintiff must establish two elements. Thorpe v.

Clarke, 37 F.4th 926, 933 (4th Cir. 2022). First, she must show that she has a “serious medical

need.” DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018). Second, she must show that

officials knew of her need and related risks, but nevertheless disregarded them. Id.; see Farmer v.

Brennan, 511 U.S. 825, 837 (1994). The first prong of the test is objective; the second is

subjective. Hixson v. Moran, 1 F.4th 297, 302 (2021).

To satisfy the objective element, Plaintiff must show that Plaintiff has “suffered serious

or significant physical or mental injury as a result of” Defendants’ denial of the request for

gender-affirming surgery. Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993). Even

viewing the evidence in the light most favorable to Defendant, Plaintiff clears this hurdle

comfortably.5 That Defendant’s denial caused Plaintiff to suffer significant injury is beyond

genuine dispute.6

5 Defendants contend that “after her surgery request was not approved, [Plaintiff] repeatedly

denied having any concerns with sleep, appetite, energy level, or thoughts of self-harm or

suicidal ideation.” (Doc. No. 60 at 19). Plaintiff convincingly responds that Defendants cherry-

pick evidence: “while Plaintiff has at times felt better than others, she has repeatedly reported

severe anxiety, depression, and thoughts of self-harm and suicide.” (Doc. No. 66 at 4). Indeed,

Plaintiff could not have been diagnosed with GD unless she suffered “clinically significant

distress or impairment.” (Doc. No. 63 at 24). That is precisely why so many courts recognize GD

as an objectively serious medical need. De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013);

Edmo v. Corizon, Inc., 935 F.3d 757, 785 (9th Cir. 2019); Kosilek v. Spencer, 774 F.3d 63, 86

(1st Cir. 2014) (en banc); Soneeya v. Spencer, 851 F. Supp. 2d 228, 244–45 (D. Mass. 2012)

(citing De’lonta v. Angelone, 330 F.3d 360, 634 (4th Cir. 2003)). Viewing the evidence in the

light most favorable to Defendants does not require the Court to ignore contrary evidence that

favors Plaintiff’s case.

6 As the Ninth Circuit noted in Edmo, “[f]ailure to follow an appropriate treatment plan [for GD]

can expose transgender individuals to a serious risk of psychological and physical harm.” 935

To prevail on the subjective component of the Eighth Amendment claim, Plaintiff must

show that Defendants knew of and disregarded her objectively serious medical condition. See

De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (quoting Farmer, 511 U.S. at 837).

Where—as here—a deliberate indifference claim arises from prison officials’ decision not to

provide a course of treatment, “the essential test is one of medical necessity.” Bowring v.

Godwin, 551 F.2d 44, 48 (4th Cir. 1977). If prison officials knowingly refuse to provide

medically necessary treatment—even if they provide other treatment consistent with the

applicable standards of care—they fail to provide constitutionally adequate treatment. De’lonta,

708 F.3d at 526.7

Defendants knew the risks of denying Plaintiff’s request for gender-affirming care. Even

where prisoners have no symptoms—hardly the case here—“prison officials may not ignore

medical conditions that are ‘very likely to cause serious illness and needless suffering’ in the

future.” Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir. 2003) (quoting Helling v. McKinney,

509 U.S. 25, 33 (1993)).8 Defendants accept that (1) Plaintiff suffers from GD and (2) the DAC

is familiar with the WPATH Standards. The WPATH Standards dictate that GD—an objectively

serious medical condition—will in some cases not resolve without gender-affirming surgery.

Edmo v. Corizon, Inc., 935 F.3d 757, 770 (9th Cir. 2019) (quoting WPATH Standards of Care at

55). What’s more, Plaintiff’s medical records “document her history of distress, anxiety,

hopelessness, self-harm, and suicidal ideation.” (Doc. No. 63 at 26). Defendants reviewed those

F.3d at 771 (quoted in Williams v. Kincaid, 45 F.4th 759, 768 n.3 (4th Cir. 2022)).

7 Where prison officials deny, delay, or interfere with an inmate’s access to medical care, despite

their knowledge of the attendant risks posed by the inmates’ objectively serious medical needs,

they act with deliberate indifference. Estelle, 429 U.S. at 104–05; Sharpe v. S.C. Dep’t of Corr.,

621 Fed. App’x 732, 734 (4th Cir. 2015).

8 See Gordon v. Schilling, 937 F.3d 348, 359 (4th Cir. 2019) (“[I]t is inconsistent with the Eighth

Amendment for a prison official to withhold treatment from an inmate who suffers from a

serious, chronic disease until the inmate’s condition significantly deteriorates.”).

records, as well multiple expert recommendations concluding that gender-affirming surgery was

medically necessary for Ms. Zayre-Brown. No reasonable jury could find that Defendants lacked

subjective awareness that denying Ms. Zayre-Brown’s request carried some risk of harm.

Plaintiff’s deliberate indifference claim thus boils down to a single factual question:

whether gender affirming surgery was medically necessary. This dispositive question is subject

to two genuine disputes: (1) whether the DTARC applied the appropriate standard of care; and

(2) whether the DTARC’s medical necessity analysis afforded Plaintiff individualized

consideration. These disputes prevent the Court from granting summary judgment at this time.

Courts rely on “[a]ccepted standards of care and practice within the medical community”

to determine whether treatment is medically necessary. Edmo, 935 F.3d at 786; accord United

States v. Derbes, 369 F.3d 579, 583 (1st Cir. 2004); Campbell v. Kallas, 936 F.3d 536, 549 (7th

Cir. 2019). Accepted standards of care furnish the “objective evidence of contemporary values”

that courts must consider in evaluating deliberate indifference claims. See Ford, 477 U.S. at 406.

In the Fourth Circuit, requests for gender-affirming care are analyzed according to the WPATH

standards. De’lonta, 708 F.3d at 526.9 Where gender-affirming surgery is medically necessary

for an inmate according to the WPATH Standards, but a prison official consciously disregards

the risk of failing to provide that surgery, the prison official is deliberately indifferent. Id.10

Here, as in Edmo, a reasonable jury could find that Defendants did not credibly apply the

9 The Circuit more recently reaffirmed its recognition of the WPATH Standards as

“authoritative” in Grimm v. Gloucester Cnty. School Bd., 972 F.3d 586, 595. The Grimm Court

adopted the Ninth Circuit’s conclusion that besides WPATH, “[t]here are no other competing,

evidence-based standards that are accepted by any nationally or internationally recognized

medical professional groups.” Id. at 595–96 (quoting Edmo, 935 F.3d at 769); see also Williams

v. Kincaid, 45 F.4th 759, 768 n.3 (4th Cir. 2022).

10 See also Campbell, 936 F.3d at 553 (Wood, J., dissenting) (citing Rosati v. Igbinoso, 791 F.3d

1037, 1040 (9th Cir. 2015); De’lonta, 708 F.3d at 525–26); Edmo, 935 F.3d at 794; Clark v.

Quiros, 2023 WL 6050160, at *18 (D. Conn. 2023); Iglesias v. Federal Bureau of Prisons, 2021

WL 6112790 (S.D. Ill. 2021).

WPATH Standards. See 935 F.3d at 787. Dr. Campbell, a DTARC Member and the DAC’s

Chief Medical Officer, drafted the “DTARC medical necessity position statement on gender

reassignment surgery,” in which he concluded that gender-affirming surgery is never medically

necessary for GD patients. Dr. Campbell’s position is plainly at odds with the WPATH

Standards. While Defendants maintain that the DTARC did not rely on Dr. Campbell’s position

paper, a reasonable jury could disagree and find that the DTARC’s decision to deny gender-

affirming care to Ms. Zayre-Brown contradicted the WPATH Standards.

A reasonable jury could also find that the DAC’s ETMO policy, especially Dr.

Campbell’s role on the DTARC, operates in practice as an unconstitutional de facto ban on

gender-affirming surgery. The DTARC has denied every request for gender-affirming surgery it

has ever received—over thirty in total. Dr. Campbell’s conclusion, and DTARC members’

apparent deference thereto, that gender-affirming surgery is never medically necessary for GD

offers more evidence of a sub rosa ban. A “blanket, categorical denial of medically indicated

surgery . . . is the paradigm of deliberate indifference.” Colwell v. Bannister, 763 F.3d 1060,

1063 (9th Cir. 2014); see Gordon v. Schilling, 937 F.3d 348 (4th Cir. 2019).11 While the DTARC

purports to conduct individualized reviews of surgical requests, (Doc. No. 60 at 4–5), a

categorical ban need not be de jure to be unconstitutional. The Eighth Amendment is violated

where an administrative policy—though it could theoretically approve a surgery—functions in

practice as a de facto denial.12

11 Decisions regarding the medical necessity of gender-affirming surgery must be based on an

“individualized medical evaluation” and not a “blanket rule.” Kosilek, 221 F. Supp. 2d at 193

(quoting Allard v. Gomez, 9 F. App'x 793, 785 (9th Cir. 2001)); see Fields v. Smith, 653 F.3d

550 (7th Cir. 2011).

12 “The majority of Courts hold that a blanket policy (or de facto ban) [on gender-affirming care

for GD-afflicted inmates], which does not allow for the consideration of an inmate’s particular

medical needs, could violate the Eighth Amendment.” Fisher v. Federal Bureau of Prisons, 484

b. North Carolina Constitutional Claim

Article I, Section 27 of the North Carolina Constitution prohibits “cruel or unusual

punishments.” Section 27’s protection is at least as broad as the Eighth Amendment’s. State v.

Green, 348 N.C. 588, 603 (1998); State v. Kelliher, 2022-NCSC-77, ___ N.C. ___, ¶¶ 48, 51

(Jun. 17, 2022). But a direct cause of action under the North Carolina Constitution—known as a

Corum claim—arises only where the Plaintiff has no other “adequate state remedy.” Davis v.

Town of S. Pines, 116 N.C. App. 663, 675, 449 S.E.2d 240, 247 (1994); Corum v. UNC, 413

S.E.2d 276, 289 (N.C. 1992).

Plaintiff concedes that the State Tort Claims Act permits prisoners to sue North Carolina

in the Industrial Commission for ordinary negligence. (Doc. No. 66 at 31) (citing N.C. GEN.

STAT. § 143-291). But the Industrial Commission lacks jurisdiction over allegations of reckless

conduct. (Id.) (quoting Collins v. N.C. Parole Comm’n, 456 S.E.2d 333, 336 (N.C. Ct. App.

1995). The Supreme Court has long held that the subjective component of Eighth Amendment

deliberate indifference claims is assessed according to a recklessness standard. Farmer, 511 U.S.

at 836. Recognizing the recklessness standard applicable to deliberate indifference claims, the

Middle District of North Carolina found in Jarvis v. Joyner that a § 1983 deliberate indifference

claim would be jurisdictionally barred from the Industrial Commission. No. 1:14CV254, 2020

WL 956801, at *6 n.2 (M.D.N.C. Feb. 27, 2020). The same is true here.

c. Disability (ADA and RA) Claims

Title II ADA and Section 504 RA claims—like those brought by Plaintiff—“can be

combined for analytical purposes.” Seremeth v. Bd. of Cnty. Comm’rs Frederick Cnty., 673 F.3d

F. Supp. 3d 521, 543 (N. D. Ohio 2020) (citing Kosilek, 774 F.3d at 91; Fields, 653 F.3d at 550,

552, 556; Rosati, 791 F.3d at 1040; Keohane v. Fl. Dep’t of Corr. Sec’y, 952 F.3d. 1257, 1266–

67 (11th Cir. 2020)); see also Nosworthy v. Beard, 87 F. Supp. 3d 1164, 1191 (N.D. Cal. 2015);

Edmo, 358 F. Supp. 3d at 1127; Iglesias, 2021 WL 6112790 at *18–19, *27 (S.D. Ill. 2021).

333, 336 n.1 (4th Cir. 2012) (cleaned up). The ADA and RA prohibit public entities from

discriminating against individuals with disabilities or excluding disabled persons from the

benefits of services, programs, and activities to which they are otherwise entitled. Williams v.

Kincaid, 45 F.4th 759 (4th Cir. 2022), cert. denied, 143 S. Ct. 2414 (2023). GD is a disability,

and GD-afflicted persons are protected by the ADA. Id. at 766, 768.

There are three species of ADA claim: intentional discrimination, disparate impact, and

failure to accommodate. Richardson, 52 F.4th at 619. Each species of ADA claim includes an

element reducible to the disputed medical necessity question identified above. Consequently, the

Court will deny summary judgment on Plaintiff’s ADA claims.

To state an intentional discrimination claim, Plaintiff must show that “(1) they have a

disability; (2) they are otherwise qualified to receive the benefits of a public service, program, or

activity; and (3) they were denied the benefits of such service, program, or activity, or otherwise

discriminated against, on the basis of their disability.” Nat’l Fed’n of the Blind v. Lamone, 813

F.3d 494, 503 (4th Cir. 2016). Whether Plaintiff is being “denied” care or requesting treatment

for which she is “unqualified” boils down to the predicate question of medical necessity.

To state a disparate impact claim, Plaintiff must (i) “identify the challenged [] practice or

policy, (ii) demonstrate that the practice or policy had an adverse impact on the plaintiff with a

disability, and (iii) demonstrate a causal relationship between the identified practice and the

disparate impact.” Williams, 296 F. Supp. 3d at 789. Whether the DAC’s policy of subjecting

GD-specific healthcare requests to the DTARC as opposed to the mainstream utilization review

process—i.e., whether the ETMO policy constitutes a de facto ban on gender-affirming

surgery—likewise remains a disputed question of material fact.

Finally, to state a failure to accommodate claim, Plaintiff must “propose a reasonable

modification to the challenged public program that will allow them the meaningful access they

seek.” Lamone, 813 F.3d at 507. Defendants contend Plaintiff fails to establish that gender-

affirming surgery is necessary for Ms. Zayre-Brown to fully participate in prison life or services.

Defendants thus restate a key factual dispute: the medical necessity of gender-affirming surgery.

IV. CONCLUSION

Two disputes define this case. Although they preclude resolution on summary judgment,

a full bench trial on these narrow questions is unnecessary. Instead, in the interest of judicial

economy, the Court will hold an evidentiary hearing on February 20, 2024.13 The Court

identifies the questions presented for the hearing as follows:

1. Whether gender-affirming surgery is medically necessary for Ms. Zayre-Brown

according to the WPATH Standards of Care.14

2. Whether the ETMO policy, specifically the DTARC and Dr. Campbell’s role therein,

amounts to a de facto ban on gender-affirming surgery for GD patients.

North Carolina recognizes gender dysphoria as a mental disorder. It says that it further

recognizes that gender reassignment surgery can be medically necessary in some cases. In

determining medical necessity, it cannot then set up a sham process where the answer is always

no.

13 This procedural approach, originally adopted by the District of Idaho, was blessed by the

Ninth Circuit in Edmo.

14 Mere disagreement between prison officials and an inmate—or an inmate’s private doctor or

medical expert—falls short of deliberate indifference. Hixson v. Moran, 1 F.4th 297 at 303;

Jackson v. Lightsey, 775 F.3d at 174; Grimm, 972 F.3d at 596 n.2 (quoting Kosilek, 774 F.3d at

90). But the Eighth Amendment does not demand that courts defer to prison doctors or

administrators, nor does it allow a single dissenting medical opinion to carry the day for

Defendants. Edmo, 935 F.3d at 786; Kosilek, 774 F.3d at n.12. While “cases involving dueling

medical experts will typically not support an Eighth Amendment claim,” Fisher, 484 F. Supp. 3d

at 541, a district court may discredit “the contrary opinions of the State’s treating physician and

medical experts” who “lacked expertise and incredibly applied . . . the WPATH Standards of

Care.” Edmo 935 F.3d at 787.

After the evidentiary hearing, the Court will permit both sides to renew their summary

judgment motions. The Court will then assess Plaintiffs likelihood of success on the merits and

resolve her request for injunctive relief.

V. ORDER

IT IS, THEREFORE, ORDERED that the parties’ cross motions for summary

judgment, (Doc. Nos. 59, 62), are DENIED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the parties SHALL meet and confer, and no later

than February 13, 2024, file a consent motion stipulating to a procedure for the evidentiary

hearing in this matter.

The Clerk is respectfully instructed to set an evidentiary hearing in this matter for

February 20, 2024.

The Clerk is further instructed to continue the trial in this matter to the April 2024 Term.

i /

astevrnna

Max O. Cogburn Jr a i

United States District Judge Fey

15