The opinion
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’ renewed motions for summary
judgment. (Doc. Nos. 102, 110).
The question presented by this case is whether North Carolina’s process for assessing the
medical necessity of gender-affirming surgery for inmates suffering from gender dysphoria
violates the Eighth Amendment of the United States Constitution. North Carolina recognizes that
gender dysphoria is a serious mental disorder. North Carolina also recognizes that gender-
affirming surgery may sometimes be medically necessary to treat gender dysphoria. Thus, where
a gender dysphoric prisoner requests gender-affirming surgery, the State must afford their
request unbiased and individualized consideration. North Carolina failed to do so here.
I. Background
Plaintiff, diagnosed with gender dysphoria (“GD”) in 2010, is a prisoner in the custody of
the North Carolina Department of Public Safety (“DPS”). The North Carolina Department of
Adult Corrections (“DAC”) subjects inmates’ surgical requests to a “utilization review process”
that evaluates whether the requested procedure is medically necessary. Under the DAC’s
Evaluation and Management of Transgender Offenders (“EMTO”) policy, a specialized body
(the Division Transgender Accommodation Review Committee or “DTARC”) reviews
transgender inmates’ medical requests. Thus, when inmates suffering from GD request treatment
from the DAC, the DTARC serves as the utilization review authority with power to approve or
deny requested treatment. The DTARC reviewed and denied Plaintiff’s request for gender-
affirming surgery to treat GD.
Dr. Arthur Campbell is a DTARC member and Chief Medical Officer of the DAC. He is
one of only two medical doctors on the DTARC. Members of the DTARC without medical
training deferred to Dr. Campbell’s analysis of Plaintiff’s medical records. There is evidence that
even DTARC members with medical training deferred to Dr. Campbell’s assessment of whether
gender-affirming surgery was medically necessary in Plaintiff’s case.
Before the DTARC reviewed Plaintiff’s surgical request, Dr. Campbell authored a
document titled “DTARC Medical Necessity Position Statement on Gender Reassignment
Surgery.” In the position statement, Dr. Campbell asserted that gender-affirming surgery is never
medically necessary to treat GD. Further, Dr. Campbell requested the Committee adopt this
view, which is in conflict with the State’s position. The DTARC ultimately declined to adopt Dr.
Campbell’s position paper, but only after denying Plaintiff’s surgical request.
In April 2022, after the DTARC denied Plaintiff’s request for gender-affirming surgery,
Plaintiff sued. Plaintiff alleges violations of the United States and North Carolina Constitutions
and the Americans with Disabilities Act (“ADA”). In November 2023, the Court heard argument
on the parties’ cross motions for summary judgment. The Court denied both motions without
prejudice in light of two genuine disputes of material fact. (Doc. No. 92). Rather than proceed
directly to trial, the Court held an evidentiary hearing on those two questions, after which the
Court permitted the parties to renew their summary judgment motions. (Id.).
The evidentiary hearing occurred on February 20, 2024. The parties renewed their
summary judgment motions shortly thereafter. (Doc. Nos. 102, 110). Those motions are fully
briefed, and this matter is now ripe for disposition.
II. Legal Standard
Summary judgment is appropriate “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 only if it might 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 has the “initial responsibility of informing the district
court of the basis for its motion, and identifying 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). If the movant satisfies this burden, the
burden shifts to the non-movant. The nonmoving party “must set forth specific facts showing
that there is a genuine issue for trial.” Id. at 538 n.3. The non-movant may not rely upon mere
allegations or denials of allegations in his pleadings to defeat a motion for summary judgment
but must instead present evidence from which “a reasonable jury could return a verdict for the
nonmoving party.” Id. at 324; Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert
Cnty., Md., 48 F.3d 810, 818 (4th Cir. 1995).
Ruling on a summary judgment motion, the Court must view the evidence and any
inferences therefrom in the light most favorable to the nonmoving party. 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)).
Faced with cross-motions for summary judgment, the Court evaluates each motion
separately on its own merits using the standard set forth above. See Rossignol v. Voorhaar, 316
F.3d 516, 522 (4th Cir. 2003); accord Local 2-1971 of Pace Int’l Union v. Cooper, 364 F. Supp.
2d 546, 554 (W.D.N.C. 2005).
III. Discussion
The Eighth Amendment requires that prison administrators give “individualized medical
evaluation” to prisoners’ requests for treatment. See Allard v. Gomez, 9 F. App'x 793, 785 (9th
Cir. 2001); Fields v. Smith, 653 F.3d 550 (7th Cir. 2011); Keohane v. Fl. Dep’t of Corr. Sec’y,
952 F.3d. 1257, 1266–67 (11th Cir. 2020)); Nosworthy v. Beard, 87 F. Supp. 3d 1164, 1191
(N.D. Cal. 2015). Thus, a categorical denial of a particular course of medically necessary
treatment violates the Eighth Amendment. Colwell v. Bannister, 763 F.3d 1060, 1063 (9th Cir.
2014); Gordon v. Schilling, 937 F.3d 348, 360–62 (4th Cir. 2019). Such a blanket ban is
unconstitutional even if it is not explicit: “The majority of Courts hold that a blanket policy (or
de facto ban) . . . 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 F. Supp.
3d 521, 543 (N.D. Ohio 2020) (citing Kosilek v. Spencer, 774 F.3d 63, 91 (1st Cir. 2014); Fields,
653 F.3d at 550, 552, 556; Rosati v. Igbinoso, 791 F.3d 1037, 1040 (9th Cir. 2015); Keohane v.
Fl. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1266–67 (11th Cir. 2020)).
Plaintiff’s Eighth Amendment claim boils down to a single question: is Dr. Campbell’s
testimony credible? Because Defendants are not entitled to trial by jury on Plaintiff’s request for
equitable relief under the Eighth Amendment, the Court is authorized to assess Dr. Campbell’s
credibility at the summary judgment stage.
At the February 2024 evidentiary hearing before this Court, Dr. Campbell testified that,
despite authoring a position paper to the contrary, the DTARC would under certain
circumstances approve gender-affirming surgery as medically necessary for an inmate suffering
from gender dysphoria. He gave no examples of what he might consider a medical necessity.
Despite receiving more than thirty such requests, the DTARC has never approved gender-
affirming surgery as medically necessary to treat gender dysphoria. Dr. Campbell has impressive
qualifications and has served this country admirably for several decades. But considering Dr.
Campbell’s authorship of the position statement, other DTARC members’ deference to his
medical judgment, and the DTARC’s track record of denying dysphoric prisoners’ requests for
gender-affirming surgery, the Court cannot credit Dr. Campbell’s testimony.
A judge sharing Dr. Campbell’s views would be expected to recuse themselves from this
case. A juror holding those same views would be excused for cause. Even taking the evidence in
the light most favorable to the Defendants, no reasonable factfinder could conclude that
Defendants afforded Plaintiff’s surgical request the “individualized medical evaluation” our
Constitution requires. Allard, 9 F. App'x at 785; Schilling, 937 F.3d at 360–62.
The Court’s decision remains value neutral as to Dr. Campbell’s apparent views. This
case is about process, not substance. While this case involves a transgender prisoner, it is not a
case about transgender issues. It is certainly not a case about whether states should or should not
be required to pay for transgender healthcare. Instead, this case is about whether states can
permit prison officials’ personal views to determine the medical care available to prisoners.
The Court will award injunctive relief on Plaintiff’s Eighth Amendment claim. To be
entitled to injunctive relief, Plaintiff must show (1) actual success on the merits; (2) irreparable
injury; (3) the inadequacy of legal remedies; (4) that the “balance of hardships” favors
injunction; and (5) that injunction would not disserve the public interest. See Amoco Prod. Co. v.
Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987); eBay Inc. v. MercExchange, L.L.C., 547 U.S.
388, 391 (2006). Plaintiff satisfies all five factors. The Court finds that Defendants’ review of
Plaintiff’s accommodation request violated Plaintiff’s Eighth Amendment rights insofar as
Defendants denied Plaintiff the individualized medical evaluation the Eighth Amendment
requires. And a violation of constitutional rights “constitutes irreparable harm for purposes of
equitable jurisdiction.” Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987). Legal remedies are
inadequate where, as here, the constitutional violation is ongoing. And the balance of the equities
favors Plaintiff because a state is not harmed by injunctive relief preventing the state from acting
unconstitutionally. Leaders of a Beautiful Struggle v. Baltimore Police Dep't, 2 F.4th 330, 346
(4th Cir. 2021). Finally, injunctive relief vindicating a party’s constitutional rights is clearly in
the public interest. Legend Night Club v. Miller, 637 F.3d 291, 303 (4th Cir. 2011).
The Court offers Defendants a choice between two means of remedying their Eighth
Amendment violation. Defendants may either (1) give Plaintiff the surgery that Plaintiff’s
experts contend remains medically necessary; or (2) within 30 days from entry of this order form
a new committee, subject to this Court’s approval, to re-assess Plaintiff’s accommodation
request, that committee to contain at least two medical doctors with gender dysphoria expertise.
The Court makes no finding as to medical necessity. The Court finds only that the
process by which Defendants assessed medical necessity was flawed. The Court will not,
because of this finding, uncritically credit Plaintiff’s medical necessity argument. At this stage,
taking the evidence in the light most favorable to either party, a reasonable jury could find for
either party on the question of medical necessity.
If Defendants accommodate Plaintiff’s surgical request, Plaintiff’s Eighth Amendment
claim will be moot. While Plaintiff’s ADA and Corum claims may remain viable, Defendants are
entitled to trial by jury on those damages claims. Thus, if Defendants accommodate Plaintiff’s
surgical request, and Plaintiff’s ADA and Corum claims proceed to trial, then the question of
medical necessity will be put to the jury.
If Defendants instead form a new committee to re-evaluate Plaintiff’s surgical request,
and that committee finds the surgery medically unnecessary, the Court will re-review
Defendants’ medical necessity determination on Plaintiff’s motion.
ORDER
IT IS, THEREFORE, ORDERED that Defendants’ renewed summary judgment
motion (Doc. No. 110) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s renewed summary judgment motion (Doc.
No. 102) is GRANTED IN PART and DENIED IN PART. Plaintiff’s motion is DENIED
with respect to Plaintiff’s ADA and Corum claims. Plaintiff’s renewed summary judgment
motion is further DENIED insofar as the Court declines to adopt Plaintiff’s medical necessity
argument. Plaintiff’s motion is GRANTED insofar as the Court finds that Defendants’
accommodation review process violated Plaintiff’s Eighth Amendment rights.
INJUNCTION
Upon their receipt of actual notice of this Order, DPS is hereby ENJOINED to, within
30 days, either
(1) Notify the Court of DPS’ intention to accommodate Plaintiff’s surgical request; or
(2) Form a new committee containing two medical doctors with gender dysphoria expertise
to re-assess Plaintiff's accommodation request and submit a roster of the reconstituted
committee to this Court for approval.
SO ORDERED.
Signed: April 16, 2024
Korine.
Max O. Cogburn i
United States District Judge he