Scott Gibson v. Bryan Collier

Case: 16-51148 Document: 00514894694 Page: 1 Date Filed: 03/29/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-51148

FILED

March 29, 2019

Lyle W. Cayce

SCOTT LYNN GIBSON, also known as Vanessa Lynn, Clerk

Plaintiff - Appellant

v.

BRYAN COLLIER; DR. D. GREENE,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before SMITH, BARKSDALE, and HO, Circuit Judges.

JAMES C. HO, Circuit Judge:

A state does not inflict cruel and unusual punishment by declining to

provide sex reassignment surgery to a transgender inmate. The only federal

court of appeals to decide such a claim to date has so held as an en banc court.

See Kosilek v. Spencer, 774 F.3d 63, 76–78, 87–89, 96 (1st Cir. 2014) (en banc).

The district court in this case so held. And we so hold today.

Under established precedent, it can be cruel and unusual punishment to

deny essential medical care to an inmate. But that does not mean prisons must

provide whatever care an inmate wants. Rather, the Eighth Amendment

“proscribes only medical care so unconscionable as to fall below society’s

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minimum standards of decency.” Id. at 96 (citing Estelle v. Gamble, 429 U.S.

97, 102–5 (1976)).

Accordingly, “mere disagreement with one’s medical treatment is

insufficient” to state a claim under the Eighth Amendment. Delaughter v.

Woodall, 909 F.3d 130, 136 (5th Cir. 2018). This bedrock principle dooms this

case. For it is indisputable that the necessity and efficacy of sex reassignment

surgery is a matter of significant disagreement within the medical community.

As the First Circuit has noted—and counsel here does not dispute—respected

medical experts fiercely question whether sex reassignment surgery, rather

than counseling and hormone therapy, is the best treatment for gender

dysphoria. See Kosilek, 774 F.3d at 76–78, 87 (surveying conflicting testimony

concerning medical efficacy and necessity of sex reassignment surgery).

What’s more, not only do respected medical experts disagree with sex

reassignment surgery—so do prisons across the country. That undisputed fact

reveals yet another fatal defect in this case. For it cannot be cruel and unusual

to deny treatment that no other prison has ever provided—to the contrary, it

would only be unusual if a prison decided not to deny such treatment.

The dissent correctly observes that no evaluation for sex reassignment

surgery was ever provided in this case, because Texas prison policy does not

authorize such treatment in the first place. The dissent suggests that a

blanket ban is unconstitutional—and that an individualized assessment is

required. But that defies common sense. To use an analogy: If the FDA

prohibits a particular drug, surely the Eighth Amendment does not require an

individualized assessment for any inmate who requests that drug. The

dissent’s view also conflicts with Kosilek—as both the dissent in Kosilek and

counsel here acknowledge, the majority in Kosilek effectively allowed a blanket

ban on sex reassignment surgery.

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In addition, the dissent would remand to correct certain alleged

procedural errors made by the district court. But counsel has asked us to reach

the merits, forfeiting any procedural objections that could have been brought.

And the dissent’s remaining procedural concerns are redundant of the

substantive debate over the proper interpretation of the Eighth Amendment.

We affirm. 1

I.

Scott Lynn Gibson is a transgender Texas prison inmate in the custody

of the Texas Department of Criminal Justice (TDCJ) in Gatesville. He was

originally convicted and sent to prison on two counts of aggravated robbery. In

prison, he committed the additional crimes of aggravated assault, possession

of a deadly weapon, and murder. He was convicted of those subsequent

offenses, and is now sentenced to serve through May 2031, and eligible for

parole in April 2021.

Gibson was born male. But as his brief explains, he has been diagnosed

as having a medical condition known today as “gender dysphoria” or “Gender

Identity Disorder” (GID). He has lived as a female since the age of 15 and calls

himself Vanessa Lynn Gibson. 2

1 In reaching this judgment, we express no opinion on the ongoing debate over the

medical necessity or efficacy of sex reassignment surgery, other than to acknowledge the

existence and vigor of that debate. Nor do we express any opinion as to what alternative

medical treatments, if any, Texas prison officials might voluntarily offer to Gibson, as a

matter of policy or compassion. We conclude only that the Constitution affords us no

authority, as a court of law, to make such decisions on behalf of Texas.

2 We use male pronouns, consistent with TDCJ policy—which Gibson does not appear

to challenge. Tex. Dep’t of Criminal Justice, OFFENDER INFORMATION DETAILS: SCOTT LYNN

GIBSON, https://offender.tdcj.texas.gov/OffenderSearch/offenderDetail.action?sid=05374437

(last visited Mar. 29, 2019) (listing Gibson as male and assigning him to male-only prison

facility). See also Farmer v. Brennan, 511 U.S. 825, 829, 832, 851 (1994) (using male

pronouns for transgender prisoner born male); id. at 852–54 (Blackmun, J., concurring)

(same); Praylor v. Texas Dep’t of Criminal Justice, 430 F.3d 1208, 1208–9 (5th Cir. 2005) (per

curiam) (same); cf. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (Brennan, J.) (plurality

op.) (“[S]ex . . . is an immutable characteristic determined solely by . . . birth.”).

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The American Psychiatric Association defines “gender dysphoria” in its

most recent Diagnostic and Statistical Manual of Mental Disorders (DSM-5)

as a “marked incongruence between one’s experienced/expressed gender and

assigned gender, of at least 6 months duration, as manifested by” at least two

of six factors, namely:

1. A marked incongruence between one’s experienced/expressed

gender and primary and/or secondary sex characteristics. . . . 2. A

strong desire to be rid of one’s primary and/or secondary sex

characteristics because of a marked incongruence with one’s

experienced/expressed gender. . . . 3. A strong desire for the

primary and/or secondary sex characteristics of the other gender.

4. A strong desire to be of the other gender (or some alternative

gender different from one’s assigned gender). 5. A strong desire

to be treated as the other gender (or some alternative gender

different from one’s assigned gender). 6. A strong conviction that

one has the typical feelings and reactions of the other gender (or

some alternative gender different from one’s assigned gender).

As the Manual further notes, “[t]he condition is associated with clinically

significant distress or impairment in social, occupational, or other important

areas of functioning.”

Gibson has averred acute distress. He is depressed, has attempted to

castrate or otherwise harm himself, and has attempted suicide three times

(though he says that gender dysphoria was not the sole cause of his suicide

attempts). His prison medical records reflect that he has consistently denied

any suicidal urges. But in this litigation, Gibson has averred that, if he does

not receive sex reassignment surgery, he will castrate himself or commit

suicide.

After he threatened to castrate himself, Gibson was formally diagnosed

with gender dysphoria and started mental health counseling and hormone

therapy. Since his formal diagnosis, Gibson has repeatedly requested sex

reassignment surgery, explaining that his current treatment regimen of

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counseling and hormone therapy helps, but does not fully ameliorate, his

dysphoria.

TDCJ Policy G-51.11 provides that transgender inmates must be

“evaluated by appropriate medical and mental health professionals and [have

their] treatment determined on a case by case basis,” reflecting the “[c]urrent,

accepted standards of care.” Although there is some dispute whether the Policy

forbids sex reassignment surgery or is merely silent about it, doctors have

denied Gibson’s requests because the Policy does not “designate [sex

reassignment surgery] . . . as part of the treatment protocol for Gender Identity

Disorder.” 3

II.

This appeal comes to us with an unusual procedural history. Proceeding

pro se, Gibson sued, inter alia, the Director of the TDCJ (now, Bryan Collier),

challenging TDCJ Policy G-51.11 as unconstitutional under the Eighth

Amendment, both facially and as applied. He argued that Policy G-51.11

amounts to systematic deliberate indifference to his medical needs, because it

prevents TDCJ from even considering whether sex reassignment surgery is

medically necessary for him. He demanded injunctive relief requiring TDCJ

to evaluate him for sex reassignment surgery. 4

The Director moved for summary judgment on two grounds: qualified

immunity and sovereign immunity. Notably, the Director did not move for

summary judgment on the merits of Gibson’s Eighth Amendment claim.

3 The dissent refers to a “clinic note” seeking to schedule Gibson for an individualized

assessment for sex reassignment surgery, but acknowledges that Gibson’s counsel does not

argue that the clinic note is relevant to this appeal. Diss. Op. at 17–18.

4 Gibson also sued “Dr. D. Greene” at the prison hospital, along with the Municipality

of Gatesville. The district court dismissed both of those defendants, and those claims are not

at issue in this appeal.

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Gibson nevertheless responded to the motion for summary judgment on

the merits. He argued that the Policy prohibits potentially necessary medical

care. To support his claim of medical necessity, he attached the Standards of

Care issued by the World Professional Association for Transgender Health

(WPATH). Those standards provide that, “for many [transgender people,] [sex

reassignment] surgery is essential and medically necessary to alleviate their

gender dysphoria.” WPATH, STANDARDS OF CARE FOR THE HEALTH OF

TRANSSEXUAL, TRANSGENDER, AND GENDER-NONCONFORMING PEOPLE 54 (7th

ed., 2011) (STANDARDS OF CARE).

The district court rejected the Director’s two immunity defenses—

denying qualified immunity because this is a suit for injunctive relief, not

damages, and denying sovereign immunity under Ex parte Young. But the

district court granted summary judgment for the Director on the merits of

Gibson’s Eighth Amendment claim.

Gibson appealed pro se. This court appointed experienced counsel to

advocate on Gibson’s behalf. With the assistance of able counsel, Gibson

declined to protest any procedural defect in these proceedings. Instead, Gibson

asks us to reverse solely on the basis of the merits of his Eighth Amendment

claim, and to remand for further proceedings accordingly.

We accept Gibson’s invitation to reach his deliberate indifference claim

on the merits, rather than reverse based on any procedural defects in the

district court proceedings. In doing so, we note that, had Gibson presented any

such procedural concerns, we might very well have remanded this case for

further proceedings. But he did not do so—as the dissent admits. See Diss.

Op. at 4 (admitting that “Gibson did not assert not being able to present

essential facts”); id. at 6 (admitting that “Gibson on appeal does not contest the

violation of this Rule”). And we presume he had good reason not to do so.

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Reasonable counsel might conclude that it would be a waste of time and

resources for everyone involved (and give false hope to Gibson) to remand for

procedural reasons. After all, Gibson is destined to lose on remand if he is

unable to identify any genuine dispute of material fact. That is the case here,

as we shall demonstrate.

III.

We review grants of summary judgment de novo, and ask whether “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). “‘[T]he substantive law

will identify which facts are material.’ This means ‘[o]nly disputes over facts

that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.’” Parrish v. Premier Directional

Drilling, L.P., 917 F.3d 369, 378 (5th Cir. 2019) (second alteration in original)

(citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). 5

The Eighth Amendment forbids cruel and unusual punishments. The

Supreme Court has construed this prohibition to include “deliberate

indifference to serious medical needs of prisoners.” Gamble, 429 U.S. at 104.

5 The dissent contends that we have somehow misapplied the standards governing

summary judgment. The contention is meritless. We all agree that summary judgment is

proper where there is no genuine dispute as to any material fact—and that the underlying

substantive law (here, the Eighth Amendment) dictates which facts are material. As we

explain below, Eighth Amendment precedent establishes that medical disagreement is not

actionable. Given the demonstrable medical disagreement over sex reassignment surgery,

we conclude—consistent with established precedent—that there are no material facts in

dispute here. In sum, the dissent’s disagreement concerns substantive Eighth Amendment

law, not the standards that govern summary judgment.

The dissent’s related complaint—that we have somehow misplaced the burden of

production on Gibson, rather than on TDCJ where it belongs—fails for similar reasons. To

recognize the futility of Gibson’s claim does not place the burden of production on him. It

simply follows from the established rule that summary judgment is proper in the absence of

a dispute over facts that might affect the outcome of the suit under the governing law.

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To establish deliberate indifference, Gibson must first demonstrate a

serious medical need. Gobert v. Caldwell, 463 F.3d 339, 345 n.12

(5th Cir. 2006) (citing Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187

(11th Cir. 1994)). Second, he must show that the Department acted with

deliberate indifference to that medical need. Herman v. Holiday, 238 F.3d 660,

664 (5th Cir. 2001) (citing Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir.

1999)).

Here, the State of Texas does not appear to contest that Gibson has a

serious medical need, in light of his record of psychological distress, suicidal

ideation, and threats of self-harm. Instead, the State disputes that it acted

with deliberate indifference to his medical needs.

“[D]eliberate indifference to serious medical needs of prisoners

constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the

Eighth Amendment.” Gamble, 429 U.S. at 104 (citation omitted) (quoting

Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality op.)). This is a demanding

standard.

Negligence or inadvertence is not enough. “[A] complaint that a

physician has been negligent in diagnosing or treating a medical condition does

not state a valid claim of medical mistreatment under the Eighth

Amendment.” Id. at 106. “[A]n inadvertent failure to provide adequate

medical care cannot be said to constitute ‘an unnecessary and wanton infliction

of pain’ or to be ‘repugnant to the conscience of mankind.’” Id. at 105–6.

Rather, the inmate must show that officials acted with malicious

intent—that is, with knowledge that they were withholding medically

necessary care. The plaintiff must show that officials “refused to treat him,

ignored his complaints, intentionally treated him incorrectly, or engaged in

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any similar conduct that would clearly evince a wanton disregard for any

serious medical needs.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).

There is no intentional or wanton deprivation of care if a genuine debate

exists within the medical community about the necessity or efficacy of that

care. “Disagreement with medical treatment does not state a claim for Eighth

Amendment indifference to medical needs.” Norton v. Dimazana, 122 F.3d

286, 292 (5th Cir. 1997) (collecting cases). There is no Eighth Amendment

claim just because an inmate believes that “medical personnel should have

attempted different diagnostic measures or alternative methods of treatment.”

Id. See also Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992) (prisoners are

not entitled to “the best [treatment] that money c[an] buy”).

Gibson seems to accept this standard. As his brief notes, to state an

Eighth Amendment claim, he must demonstrate “universal acceptance by the

medical community” that sex reassignment surgery treats gender dysphoria.

This is not to say, of course, that a single dissenting expert automatically

defeats medical consensus about whether a particular treatment is necessary

in the abstract. “Universal acceptance” does not necessarily require

unanimity. But where, as here, there is robust and substantial good faith

disagreement dividing respected members of the expert medical community,

there can be no claim under the Eighth Amendment. See, e.g., Kosilek, 774

F.3d at 96 (“Nothing in the Constitution mechanically gives controlling weight

to one set of professional judgments.”) (quoting Cameron v. Tomes, 990 F.2d

14, 20 (1st Cir. 1993)).

Accordingly, there is no genuine dispute of material fact as to deliberate

indifference under the Eighth Amendment where—as here—the claim

concerns treatment over which there exists on-going controversy within the

medical community. Indeed, Gibson himself admits as much.

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IV.

The district court concluded that Gibson failed to present a genuine

dispute of material fact concerning deliberate indifference. To quote: “Plaintiff

would prefer a policy that provides [sex reassignment surgery]. However, a

Plaintiff’s disagreement with the diagnostic decisions of medical professionals

does not provide the basis for a civil rights lawsuit.” Op. at 20. “Plaintiff

provides . . . no witness testimony or evidence from professionals in the field

demonstrating that the WPATH-suggested treatment option of [sex

reassignment surgery] is so universally accepted, that to provide some but not

all of the WPATH-recommended treatment amounts to deliberate

indifference.” Id. at 19. “Accordingly, Plaintiff fails to establish there is a

genuine issue of material fact as to whether the policy is unconstitutional on

its face or as applied to Plaintiff.” Id. at 20.

We agree. What’s more, the conclusion of the district court is further

bolstered by a recent ruling by one of our sister circuits. As the First Circuit

concluded in Kosilek, there is no consensus in the medical community about

the necessity and efficacy of sex reassignment surgery as a treatment for

gender dysphoria. At oral argument, Gibson’s counsel did not dispute that the

medical controversy identified in Kosilek continues to this day. This on-going

medical debate dooms Gibson’s claim.

A.

The sparse record before us includes only the WPATH Standards of Care,

which declares sex reassignment surgery both effective and necessary to treat

some cases of gender dysphoria. As the First Circuit has concluded, however,

the WPATH Standards of Care reflect not consensus, but merely one side in a

sharply contested medical debate over sex reassignment surgery.

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The en banc First Circuit considered whether a prison acted with

deliberate indifference when it failed to offer sex reassignment surgery to a

Massachusetts inmate. Kosilek, 774 F.3d at 68–96. Although the prison

denied the surgery, it offered “hormones, electrolysis, feminine clothing and

accessories, and mental health services.” Id. at 89.

As part of its deliberate-indifference analysis, the First Circuit

considered whether WPATH and its proponents reflect medical consensus. It

concluded that, notwithstanding WPATH, sex reassignment surgery is

medically controversial. Accordingly, Massachusetts prison officials were not

deliberately indifferent when they “chose[] one of two alternatives—both of

which are reasonably commensurate with the medical standards of prudent

professionals, and both of which provide [the plaintiff] with a significant

measure of relief.” Id. at 90. The court held that this choice between

treatments “is a decision that does not violate the Eighth Amendment.” Id.

To support its decision, the First Circuit exhaustively detailed the

underlying expert testimony in the case. That testimony is crucial because it

provides objective evidence that the medical community is deeply divided

about the necessity and efficacy of sex reassignment surgery. As the First

Circuit explained, respected doctors profoundly disagree about whether sex

reassignment surgery is medically necessary to treat gender dysphoria.

To begin with, Kosilek recounted the testimony of Dr. Chester Schmidt,

“a licensed psychiatrist and Associate Director of the Johns Hopkins School of

Medicine.” Id. at 76. He testified that “‘[t]here are many people in the country

who disagree with [WPATH] standards who are involved in the [gender

dysphoria] field.’” Id. (first alteration in original). As a result, “Dr. Schmidt

expressed hesitation to refer to the [WPATH] Standards of Care, or the

recommendation for [sex reassignment surgery], as medically necessary. He

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emphasized the existence of alternative methods and treatment plans accepted

within the medical community.” Id. at 76–77.

Next, the court summarized Cynthia Osborne’s testimony. Id. at 77. She

is “a gender identity specialist employed at the Johns Hopkins School of

Medicine who had experience working with other departments of correction

regarding [gender dysphoria] treatment.” Id. at 70. She testified that “she did

not view [sex reassignment surgery] as medically necessary in light of ‘the

whole continuum from noninvasive to invasive’ treatment options available to

individuals with [gender dysphoria].” Id. at 77. 6

Third, the First Circuit considered the opinions of an expert appointed

by the district court, “Dr. Stephen Levine, a practitioner at the Center for

Marital and Sexual Health in Ohio and a clinical professor of psychiatry at

Case Western Reserve University School of Medicine.” Id.

As the First Circuit pointed out, “Dr. Levine had helped to author the

fifth version of the [WPATH] Standards of Care.” Id. So it was notable that

Dr. Levine expressed concerns that later versions of WPATH were driven by

political considerations rather than medical judgment. His written report

“explain[ed] the dual roles that WPATH . . . plays in its provision of care to

individuals with GID.” Id. As the report stated:

WPATH is supportive to those who want sex reassignment surgery

(SRS). . . . Skepticism and strong alternate views are not well

tolerated. . . . The [Standards of Care are] the product of an

6 Schmidt and Osborne are not the only experts at the Johns Hopkins School of

Medicine who question the necessity and effectiveness of sex reassignment surgery. See, e.g.,

Paul McHugh, Transgender Surgery Isn’t the Solution, WALL ST. J. (May 13, 2016),

https://www.wsj.com/articles/paul-mchugh-transgender-surgery-isnt-the-solution-

1402615120; see also Amy Ellis Nutt, Long Shadow Cast by Psychiatrist on Transgender

Issues Finally Recedes at Johns Hopkins, WASH. POST (Apr. 5, 2017),

https://www.washingtonpost.com/national/health-science/long-shadow-cast-by-psychiatrist-

on-transgender-issues-finally-recedes-at-johns-hopkins/2017/04/05/e851e56e-0d85-11e7-

ab07-07d9f521f6b5_story.html?noredirect=on&utm_term=.062c67bae5fe.

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enormous effort to be balanced, but it is not a politically neutral

document. WPATH aspires to be both a scientific organization and

an advocacy group for the transgendered. These aspirations

sometimes conflict.

Id. at 78 (first alteration in original) (emphasis added).

Dr. Levine also expressed concerns that the support for sex reassignment

surgery expressed in the Standards of Care lacked medical support. “The

limitations of the [Standards of Care], however, are not primarily political.

They are caused by the lack of rigorous research in the field.” Id. “Dr. Levine

further emphasized that ‘large gaps’ exist in the medical community’s

knowledge regarding the long-term effects of [sex reassignment surgery] and

other [gender dysphoria] treatments in relation to its positive or negative

correlation to suicidal ideation.” Id. Dr. Levine ultimately agreed with Dr.

Schmidt’s testimony:

Dr. Schmidt’s view, however unpopular and uncompassionate in

the eyes of some experts in [gender dysphoria], is within prudent

professional community standards. Treatment stopping short of

[sex reassignment surgery] would be considered adequate by many

psychiatrists.

Id. And when asked to confirm if “prudent professionals can reasonably differ

as to what is at least minimally adequate treatment” for gender dysphoria, Dr.

Levine agreed: “Yes, and do.” Id. at 87.

Finally, the court noted that “Dr. Marshall Forstein, Associate Professor

of Psychiatry at Harvard Medical School . . . issued a written report, in which

he noted that ‘the question of the most prudent form of treatment is

complicated by the diagnosis of [gender dysphoria] being on the margins of

typical medical practice.’” Id. at 79.

To be sure, not all of the testimony was negative toward sex

reassignment surgery. See id. at 74–76, 77, 79. And not all of it was about sex

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reassignment surgery generally, as distinguished from the plaintiff’s

individual need for such surgery. But the unmistakable conclusion that

emerges from the testimony is this: There is no medical consensus that sex

reassignment surgery is a necessary or even effective treatment for gender

dysphoria. 7

We see no reason to depart from the First Circuit. To the contrary, we

agree with the First Circuit that the WPATH Standards of Care do not reflect

medical consensus, and that in fact there is no medical consensus at this time.

WPATH itself acknowledges that “this field of medicine is evolving.”

STANDARDS OF CARE 41. The record in Kosilek documents more than enough

dissension within the medical community to conclude that it is not deliberately

indifferent for Texas prison officials to decline to authorize sex reassignment

surgery.

Indeed, even one of the dissenters in Kosilek felt compelled to

acknowledge the “carefully nuanced and persuasive testimony that medical

science has not reached a wide, scientifically driven consensus mandating [sex

reassignment surgery] as the only acceptable treatment for an incarcerated

individual with gender dysphoria.” 774 F.3d at 114 (Kayatta, J., dissenting).

That admission is fatal to this case as well. 8

7 Nor is the Kosilek testimony alone in questioning the efficacy of sex reassignment

surgery. In August 2016, for example, the Center for Medicare & Medicaid Services at the

U.S. Department of Health and Human Services issued a “Decision Memo for Gender

Dysphoria and Gender Reassignment Surgery.” The memo surveyed the available medical

literature and found that there was insufficient expert medical evidence to support sex

reassignment surgery with respect to Medicare and Medicaid patients. See generally CMS,

Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (Aug. 30, 2016),

https://www.cms.gov/medicare-coverage-database/details/nca-decision-

memo.aspx?NCAId=282.

8 We are not aware of any circuit that has disagreed with Kosilek. The Fourth and

Ninth Circuits allowed Eighth Amendment claims for sex reassignment surgery to survive

motions to dismiss, without addressing the merits. See Rosati v. Igbinoso, 791 F.3d 1037,

1040 (9th Cir. 2015) (per curiam); De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013).

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B.

Gibson relies exclusively on the WPATH Standards of Care to support

his claim that failure to evaluate for sex reassignment surgery constitutes

deliberate indifference to his serious medical needs. Yet he too acknowledges

that WPATH’s conclusions are hotly contested.

When asked about Kosilek at oral argument, Gibson’s counsel did not

dispute that the Standards of Care are a matter of contention within the

medical community. In fact, counsel conceded as much, acknowledging that

the First Circuit in Kosilek “criticizes” WPATH and “doesn’t recognize

[WPATH] as having universal consensus.” Oral Arg. 10:50–11:33.

Gibson nevertheless asks this court to remand so that he can present

evidence of his individual need for sex reassignment surgery. Oral Arg. 11:35–

12:10; 13:27–16:22. We do not see how evidence of individual need would

change the result in this case, however. Any evidence of Gibson’s personal

medical need would not alter the fact that sex reassignment surgery is fiercely

debated within the medical community. Because Gibson does not dispute the

expert testimony assembled by the First Circuit concerning the medical debate

surrounding sex reassignment surgery, he cannot establish on remand that

such surgery is universally accepted as an effective or necessary treatment for

gender dysphoria. Nor can he contend that TDCJ has been deliberately

Moreover, various circuits, including our own, have rejected Eighth Amendment

claims for hormone therapy—never mind sex reassignment surgery—to treat gender

dysphoria, at least in individual cases. See Praylor, 430 F.3d at 1209 (“[W]e hold that, on

this record, the refusal to provide hormone therapy did not constitute the requisite deliberate

indifference.”); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (“[Prisoners do] not

have a right to any particular type of treatment, such as estrogen therapy.”); Supre v.

Ricketts, 792 F.2d 958, 963 (10th Cir. 1986) (“It was never established, however, that failing

to treat plaintiff with estrogen would constitute deliberate indifference to a serious medical

need. While the medical community may disagree among themselves as to the best form of

treatment for plaintiff’s condition, the [prison] made an informed judgment as to the

appropriate form of treatment and did not deliberately ignore plaintiff’s medical needs.”).

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indifferent to his serious medical needs—particularly where TDCJ continues

to treat his gender dysphoria through other means. See Brauner v. Coody, 793

F.3d 493, 500 (5th Cir. 2015) (“Deliberate indifference is not established when

‘medical records indicate that [the plaintiff] was afforded extensive medical

care by prison officials.’”) (alteration in original) (quoting Norton, 122 F.3d at

292).

In sum, Gibson has failed to present a genuine dispute of material fact.

There is no material fact dispute as to whether TDCJ was deliberately

indifferent to his medical needs. It is undisputed that TDCJ has provided him

with counseling and hormone therapy. And he acknowledges the on-going good

faith medical debate over the necessity and efficacy of sex reassignment

surgery.

C.

The dissent contends that we are not permitted to look at the record in

Kosilek. Although it might have been better practice for TDCJ to present its

own evidence, rather than borrow from Kosilek, we disagree that this warrants

reversal.

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. There is no reason why—as a matter of

either common sense or constitutional law—one state cannot rely on the

universally shared experiences and policy determinations of other states. 9

9Cf. City of Erie v. Pap’s A.M., 529 U.S. 277, 297 (2000) (plurality op.) (“Erie could

reasonably rely on the evidentiary foundation set forth in [City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986)] and [Young v. American Mini Theatres, Inc., 427 U.S. 50

(1976)] to the effect that secondary effects are caused by the presence of even one adult

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D.

The dissent also suggests that Kosilek allows a prison to deny sex

reassignment surgery only if the prison first makes an individualized

assessment of the inmate’s particular medical needs. Under this view, it would

be unconstitutional for a prison system to make a categorical policy judgment

not to wade into the controversial world of sex reassignment surgery—as TDCJ

did here.

There are a number of problems with this theory. To begin with,

Gibson’s own brief acknowledges that, if the logic of Kosilek is correct, it would

allow a “blanket refusal to provide SRS.” Counsel made the same

acknowledgment during oral argument. The court stated: “But your brief

acknowledges that the reasoning of the First Circuit is essentially allowing a

blanket ban.” Counsel responded: “And in fact, we do that by adopting the

dissent—you’re correct, your Honor—by adopting the dissent’s position,”

referring to the dissent in Kosilek. Oral Arg. 10:02–10:20.

Our dissenting colleague suggests that counsel subsequently retracted

this admission. But counsel’s original admission—made first in writing, and

then again at the podium—is consistent with the dissent in Kosilek, which

likewise construed the logic of the en banc majority to permit a blanket ban.

To quote the dissent: “[T]he majority in essence creates a de facto ban on sex

reassignment surgery for inmates in this circuit. . . . [T]he precedent set by

this court today will preclude inmates from ever being able to mount a

entertainment establishment in a given neighborhood.”); Nixon v. Shrink Missouri

Government PAC, 528 U.S. 377, 393 n.6 (2000) (“‘The First Amendment does not require a

city, before enacting . . . an ordinance, to conduct new studies or produce evidence

independent of that already generated by other cities, so long as whatever evidence the city

relies upon is reasonably believed to be relevant to the problem that the city addresses.’”)

(alteration in original) (quoting Playtime Theatres, 475 U.S. at 51–52).

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successful Eighth Amendment claim for sex reassignment surgery in the

courts.” Kosilek, 774 F.3d at 106–7 (Thompson, J., dissenting).

Moreover, putting Kosilek to one side, there is a more fundamental

problem with the dissent’s contention that the Eighth Amendment requires

individualized assessments, and thus forbids categorical judgments about the

necessity and efficacy of certain medical treatments. To illustrate: An entire

agency of the federal government—the Food and Drug Administration—is

devoted to making categorical judgments about what medical treatments may

and may not be made available to the American people. So imagine an inmate

seeks a form of medical treatment that happens to be favored by some doctors,

but has not (at least not yet) been approved by the FDA. Could the inmate

challenge this deprivation on the ground that it is a categorical prohibition on

medical treatment, rather than an individualized assessment? Surely not.

There is no basis in the text or original understanding of the Constitution—

nor in Supreme Court or Fifth Circuit precedent—to conclude that a medical

treatment may be categorically prohibited by the FDA, yet require

individualized assessment under the Eighth Amendment. The dissent seems

to acknowledge this, stating only that “[o]ther circuits have time and again held

that . . . a blanket policy . . . could constitute deliberate indifference.” Diss. Op.

at 20–21 (emphases added) (discussing examples from Fourth and Ninth

Circuits).

E.

Finally, the dissent does not dispute that no circuit has disagreed with

Kosilek. So the dissent relies primarily on a recent ruling by a federal district

court ordering the state of Idaho to provide sex reassignment surgery to an

inmate. See Edmo v. Idaho Dep’t of Corr., 2018 WL 6571203, *19 (D. Idaho

Dec. 13, 2018) (appeal pending).

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But Edmo did not even mention Kosilek. To the contrary, it held that

the Eighth Amendment requires “even controversial” procedures. Id. at *1.

Our circuit precedent, by contrast, rejects Eighth Amendment claims in cases

involving medical disagreement. See, e.g., Norton, 122 F.3d at 292. Yet that

is precisely what the district court in Edmo did. It took sides in an on-going

medical debate—much like the district court did in Kosilek. And just as the

district court in Kosilek was subsequently reversed by the First Circuit en banc,

so too the judgment of the district court in Edmo should not survive appeal.

After all, Edmo rejected the views of multiple medical experts who

disputed the efficacy of sex reassignment surgery for inmates—including Dr.

Campbell, the Idaho Department of Correction’s chief psychologist (and a

WPATH member). 2018 WL 6571203, at *6–7. The dissent points out that the

record in Edmo includes expert medical testimony disagreeing with two of the

doctors that the First Circuit credited in Kosilek. But that is not news—Kosilek

itself included the testimony of other medical experts—some who agreed, and

some who disagreed, with those doctors.

At bottom, our disagreement with the dissent concerns not the record

evidence in Kosilek or Edmo or any other case, but the governing constitutional

standard. We can all agree that sex reassignment surgery remains an issue of

deep division among medical experts. Indeed, that is precisely our point. We

see no basis in Eighth Amendment precedent—and certainly none in the text

or original understanding of the Constitution—that would allow us to hold a

state official deliberately (and unconstitutionally) indifferent, for doing

nothing more than refusing to provide medical treatment whose necessity and

efficacy is hotly disputed within the medical community.

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V.

As a matter of established precedent, Gibson’s claim plainly fails, due to

the undisputed medical controversy over sex reassignment surgery. But there

is an even more fundamental flaw with his claim, as a matter of constitutional

text and original understanding.

Lest we lose the forest for the trees, a prison violates the Eighth

Amendment only if it inflicts punishment that is both “cruel and unusual.”

U.S. CONST. amend. VIII (emphasis added). As the text makes clear, these are

separate elements. See, e.g., ANTONIN SCALIA & BRYAN A. GARNER, READING

LAW: THE INTERPRETATION OF LEGAL TEXTS 116 (2012) (“[I]n the well-known

constitutional phrase cruel and unusual punishments, the and signals that

cruelty or unusualness alone does not run afoul of the clause: The punishment

must meet both standards to fall within the constitutional prohibition.”); Akhil

Reed Amar, America’s Lived Constitution, 120 YALE L.J. 1734, 1778 (2011)

(“[W]hether hypothetical punishment X is ‘cruel’ as well as unusual is of course

a separate question.”).

Under the plain meaning of the term, a prison policy cannot be “unusual”

if it is widely practiced in prisons across the country. One of the nation’s

leading originalist scholars put the point simply: “‘[U]nusual’ should mean

what it says. . . . [S]o long as Congress routinely authorized a particular

punishment, it would be hard to say that the punishment, even if concededly

cruel, was ‘cruel and unusual.’” Amar, 120 YALE L.J. at 1778–79. 10

10 See also John F. Stinneford, The Original Meaning of “Unusual”: The Eighth

Amendment as a Bar to Cruel Innovation, 102 NW. U. L. REV. 1739, 1745 (2008) (“As used in

the Eighth Amendment, the word ‘unusual’ was a term of art that referred to government

practices that are contrary to ‘long usage’ or ‘immemorial usage.’ Under the common law

ideology that came to the founding generation through Coke, Blackstone, and various others,

the best way to discern whether a government practice comported with principles of justice

was to determine whether it was continuously employed throughout the jurisdiction for a

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This understanding of the term “unusual”—that widely accepted

practices, such as the denial of sex reassignment surgery, do not violate the

Eighth Amendment—is not just commanded by constitutional text. It is also

consistent with opinions issued by various members of the Supreme Court.

This is particularly notable considering that few constitutional provisions have

divided members of the Court more vigorously than the Eighth Amendment.

In Harmelin v. Michigan, 501 U.S. 957 (1991), for example, Justice

Scalia wrote that, “by forbidding ‘cruel and unusual punishments,’ the Clause

disables the Legislature from authorizing . . . cruel methods of punishment

that are not regularly or customarily employed.” Id. at 976 (op. of Scalia, J.)

(second emphasis added) (citations omitted). “[T]he word ‘unusual’” means

“‘such as [does not] occu[r] in ordinary practice,’ ‘[s]uch as is [not] in common

use.’” Id. (alterations in original) (quoting WEBSTER’S AMERICAN DICTIONARY

(1828); WEBSTER’S SECOND INTERNATIONAL DICTIONARY 2807 (1954)).

Similarly, in Stanford v. Kentucky, 492 U.S. 361 (1989), Justice Scalia

explained that “[t]he punishment is either ‘cruel and unusual’ (i. e., society has

set its face against it) or it is not. The audience for these arguments, in other

words, is not this Court but the citizenry of the United States. It is they, not

we, who must be persuaded. For as we stated earlier, our job is to identify the

‘evolving standards of decency’; to determine, not what they should be, but

what they are.” Id. at 378 (op. of Scalia, J.).

The specific holding of Stanford—that it is not cruel and unusual

punishment to impose capital punishment on 16 and 17-year-olds—was later

abrogated by Roper v. Simmons, 543 U.S. 551 (2005). But Simmons did not

abrogate Justice Scalia’s interpretation of “unusual.” To the contrary, the

very long time, and thus enjoyed ‘long usage.’ The opposite of a practice that enjoyed ‘long

usage’ was an ‘unusual’ practice, or in other words, an innovation.”) (footnotes omitted).

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majority in Simmons relied heavily on “[t]he evidence of national consensus

against the death penalty for juveniles” to support its holding. Id. at 564. “30

States prohibit the juvenile death penalty.” Id. And “even in the 20 States

without a formal prohibition on executing juveniles, the practice is infrequent.

Since Stanford, six States have executed prisoners for crimes committed as

juveniles. In the past 10 years, only three have done so: Oklahoma, Texas,

and Virginia.” Id. at 564–65. See also id. at 565 (“In December 2003 the

Governor of Kentucky decided to spare the life of Kevin Stanford, and

commuted his sentence to one of life imprisonment without parole, with the

declaration that ‘[w]e ought not be executing people who, legally, were

children.’ By this act the Governor ensured Kentucky would not add itself to

the list of States that have executed juveniles within the last 10 years even by

the execution of the very defendant whose death sentence the Court had upheld

in Stanford v. Kentucky.”) (alteration in original) (citation omitted).

Similarly, Justice Breyer has observed that “[t]he Eighth Amendment

forbids punishments that are cruel and unusual. Last year, in 2014, only seven

States carried out an execution. Perhaps more importantly, in the last two

decades, the imposition and implementation of the death penalty have

increasingly become unusual.” Glossip v. Gross, 135 S. Ct. 2726, 2772 (2015)

(Breyer, J., dissenting).

Gibson’s claim fails this fundamental principle. As his counsel has

acknowledged, only one state to date, California, has ever provided sex

reassignment surgery to a prison inmate. Oral Arg. 28:20–53. It did so in

January 2017, pursuant to the settlement of a federal lawsuit. Before that

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litigation, no prison in the United States had ever provided sex reassignment

surgery to an inmate. 11

Accordingly, Gibson cannot state a claim for cruel and unusual

punishment under the plain text and original meaning of the Eighth

Amendment, regardless of any facts he might have presented in the event of

remand.

***

Gibson acknowledges that sex reassignment surgery for prison inmates

was unheard of when proceedings in this case began—and that it was only

done for the first time, anywhere, a year later in California, in response to

litigation. Gibson nevertheless contends that what was unprecedented until

just recently—and done only once in our nation’s history—suddenly rises to a

constitutional mandate today. That is not what the Constitution requires. It

cannot be deliberately indifferent to deny in Texas what is controversial in

every other state. The judgment is affirmed.

11 See, e.g., Quine v. Beard, 2017 WL 1540758, *1 (N.D. Cal. Apr. 28, 2017) (“Under

the Agreement, [the California Department of Corrections and Rehabilitation] agreed to

provide sex reassignment surgery to Plaintiff.”); Kristine Phillips, A Convicted Killer Became

the First U.S. Inmate to get State-Funded Gender-Reassignment Surgery, WASH. POST (Jan.

10, 2017), https://www.washingtonpost.com/news/post-nation/wp/2017/01/10/a-transgender-

inmate-became-first-to-get-state-funded-surgery-advocates-say-fight-is-far-from-

over/?utm_term=.e236ac6bbd90 (“After a lengthy legal battle, a California transgender

woman became the first inmate in the United States to receive a government-funded gender-

reassignment surgery.”); see also Rosati, 791 F.3d at 1040 (“[T]he state acknowledged at oral

argument that no California prisoner has ever received SRS.”).

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RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:

The Director of the Texas Department of Criminal Justice (TDCJ)

was awarded summary judgment on a basis not urged by him; and, to make

matters far worse, in awarding judgment on the merits sua sponte, the district

court did not provide Gibson the required notice that it would consider such a

basis and allow Gibson to respond. Accordingly, as the majority notes

correctly, this appeal springs from this very unusual and improper procedure

and resulting sparse summary-judgment record, which is insufficient for

summary-judgment purposes. Therefore, this case should be remanded for

further proceedings. Accordingly, I must respectfully dissent from the

majority’s reaching the merits of this action, which concerns the Eighth

Amendment’s well-established requirements for medical treatment to be

provided prisoners.

I.

Gibson’s pro se complaint claimed: sex-reassignment surgery (SRS) is a

medically-necessary treatment for gender dysphoria; and the Director, in

violation of the Eighth Amendment, was deliberately indifferent to Gibson’s

serious medical need (gender dysphoria) by refusing to allow Gibson to even be

evaluated for SRS, due to a blanket ban on SRS instituted by TDCJ Policy No.

G-51.11. The Director moved for summary judgment on the basis of qualified

and Eleventh Amendment immunity. The district court denied immunity, but

then, sua sponte, improperly granted summary judgment on the merits,

without providing notice to Gibson—as required by Federal Rule of Civil

Procedure 56(f)—that it was considering a basis for granting summary

judgment not advanced by the Director in his motion and, concomitantly,

giving Gibson the opportunity to respond.

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II.

Procedurally, summary judgment was improperly granted for

several reasons, in violation of bedrock bases for ensuring fundamental due

process to the nonmovant in a summary-judgment proceeding. Substantively,

numerous reasons compel summary judgment’s not being granted, most

especially the requested medical relief’s not being considered based on Gibson’s

individual needs.

A.

Gibson proceeded pro se in district court. The procedure employed

by the district court in granting summary judgment against Gibson flies in the

face of fundamental fairness, which Rule 56 (summary judgment), and caselaw

concerning it, seek to ensure. Regrettably, the majority compounds the error.

1.

The Director moved for summary judgment based only on immunity:

qualified and Eleventh Amendment. When relief is sought against an official

in his individual capacity, in our considering entitlement vel non to qualified

immunity, the well-known, two-prong analysis is employed: first, “whether the

facts alleged, taken in the light most favorable to the party asserting the

injury, show that the [official’s] conduct violated a constitutional right”, Price

v. Roark, 256 F.3d 364, 369 (5th Cir. 2001) (citing Saucier v. Katz, 533 U.S.

194, 201 (2001); Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001)); and,

second, if the allegations show a constitutional violation, “whether the right

was clearly established—that is whether ‘it would be clear to a reasonable

[official] that his conduct was unlawful in the situation he confronted’”, id.

(quoting Saucier, 533 U.S. at 202). The district court did not address these two

prongs, instead denying qualified immunity because Gibson was only seeking

injunctive relief against the Director in his official capacity.

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But, in urging qualified immunity, the Director’s brief—which was

incorporated in his summary-judgment motion—addressed, inter alia, the

Eighth Amendment claim by discussing the first prong of the qualified-

immunity analysis. The Director asserted Gibson “failed to state an actionable

claim for medical deliberate indifference”. In support of this contention, the

Director claimed, inter alia, “[Gibson’s] disagreement with the course of

treatment pursued by prison medical staff does not constitute a viable claim

for deliberate indifference to serious medical needs under the Eight[h]

Amendment”.

Proceeding pro se, Gibson’s response to the Director’s immunity claims,

inter alia, necessarily addressed Gibson’s Eighth Amendment deliberate-

indifference claim in the context of the first prong of the qualified immunity

urged by the Director. Gibson contended SRS is not demanded, or even

requested; rather, Gibson requested an evaluation by a gender-dysphoria

specialist so that Gibson’s condition could be fully assessed, and a

determination made by a medical professional, based on Gibson’s

individualized needs, whether SRS would adequately treat Gibson’s gender

dysphoria. Gibson averred there was a genuine dispute of material fact as to:

whether Gibson had a serious medical condition; whether Gibson was entitled

to medical care that meets prudent professional standards, as opposed to being

denied medical care based on a blanket policy; and whether the Director was

deliberately indifferent to Gibson’s serious medical need.

The discussion for qualified-immunity purposes in the summary-

judgment motion and Gibson’s pro se response may be why the district court

improperly went beyond the summary-judgment motion, based only on

immunity, and addressed the merits of the Eighth Amendment claim. But, at

this very early stage of the proceeding, no discovery had been taken, and

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material facts were unavailable to Gibson. Gibson’s affidavit in opposition to

summary judgment stated TDCJ was enforcing a blanket ban and refusing to

allow doctors to fully evaluate medical needs. As a result, Gibson was unable

to prove SRS is medically necessary in this case, because TDCJ prevented

Gibson from even being evaluated for SRS.

Along that line, Rule 56(d) provides: “If a nonmovant [for a summary-

judgment motion] shows by affidavit or declaration that, for specified reasons,

it cannot present facts essential to justify its opposition [to summary

judgment], the court may: (1) defer considering the motion or deny it; (2) allow

time to obtain affidavits or declarations or to take discovery; or (3) issue any

other appropriate order”. Fed. R. Civ. P. 56(d). While Gibson did not assert

not being able to present essential facts, including because of not being aware

the court was considering a basis for judgment not advanced by the Director,

this Rule reflects the necessity of allowing a party opposing summary

judgment to garner such facts.

In addition, in Celotex Corp. v. Catrett, the Supreme Court explained that

summary judgment can be entered against a party which fails to show it will

be able to prove an essential element of its case “after adequate time for

discovery”. 477 U.S. 317, 322 (1986). Gibson was not allowed discovery.

Gibson filed requests for admissions, which the Director never answered,

instead filing a motion for a protective order based on his qualified-immunity

defense.

The court never ruled on the Director’s protective order, but ruled, in

granting summary judgment, that, although the Director did not have

immunity, Gibson had not shown a genuine dispute of material fact. For

instance, the court found, inter alia, “the record contain[ed] no evidence

addressing the security issues associated with adopting in full the WPATH

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standards in an institutional setting”. Gibson v. Livingston, No. 6:15-cv-190,

at 19 (W.D. Tex. 31 Aug. 2016). Notwithstanding the fact that the court

improperly placed the burden of showing security concerns on Gibson, the

record contained no evidence of security concerns because there had been no

discovery. Ruling on the merits without compelling the Director to respond to

Gibson’s discovery requests, after denying the Director’s qualified-immunity

defense, flies in the face of clear Supreme Court precedent.

More to the point concerning the district court’s addressing the merits

sua sponte, Rule 56(f) provides, inter alia: “After giving notice and a reasonable

time to respond, the court may . . . grant the [summary-judgment] motion on

grounds not raised by a party . . . .” Fed. R. Civ. P. 56(f)(2) (emphasis added).

Contrary to this Rule, the district court ruled on the merits without giving

Gibson any notice or opportunity to respond.

Regarding sua sponte grants of summary judgment, “we have vacated

summary judgments and remanded for further proceedings where the district

court provided no notice prior to granting summary judgment sua sponte, even

where ‘summary judgment may have been appropriate on the merits’”.

Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 28

F.3d 1388, 1398 (5th Cir. 1994) (emphasis added) (affirming district court’s sua

sponte grant of summary judgment because plaintiffs could not identify how

discovery would yield a genuine dispute of material fact) (citing Judwin

Properties, Inc. v. U.S. Fire Ins., 973 F.2d 432, 437 (5th Cir. 1992)). “Since a

summary judgment forecloses any future litigation of a case the district court

must give proper notice to [e]nsure that the nonmoving party had the

opportunity to make every possible factual and legal argument.” Id. (quoting

Powell v. United States, 849 F.2d 1576, 1579 (5th Cir. 1988)). “When there is

no notice to the nonmovant, summary judgment will be considered harmless if

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the nonmovant has no additional evidence or if all the nonmovant’s additional

evidence is reviewed by the appellate court and none of the evidence presents

a genuine [dispute] of material fact.” Id. (emphasis in original) (quoting

Resolution Trust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1398,

1403 n.7 (5th Cir. 1993)).

Gibson was not given every opportunity to present evidence and

contentions in opposing summary judgment on the basis for which it was

granted. Gibson, as an inmate, must rely on TDCJ or the court to allow an

evaluation to determine if SRS is necessary for Gibson. Accordingly, we have

not been able to evaluate all the evidence to determine if there are no genuine

disputes of material fact, as that evaluation has not been allowed. Although

Gibson on appeal does not contest the violation of this Rule, which exists to

ensure fundamental due process, it is one factor that should be considered in

evaluating this insufficient record.

The majority at 3 states Gibson has “forfeit[ed]” any procedural

objections because Gibson has now asked for a ruling on the merits. (In that

regard, the majority is inconsistent: it notes that Gibson has asked our court

to rule on the merits, but also states at 15 that Gibson has asked our court to

remand, so that evidence of Gibson’s individual need for SRS can be presented.)

But, just as a party cannot decide our standard of review, a party also cannot

decide an insufficient record is sufficient.

2.

The majority, as did the district court, consistently places the burden of

production on Gibson. But, at hand is a summary judgment. It may be granted

only when there is no genuine dispute of material fact and movant is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a). Because the Director,

not Gibson, moved for summary judgment, it was the Director’s burden to

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“demonstrate the absence of a genuine [dispute] of material fact”. Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citing Celotex,

477 U.S. at 323; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885–86 (1990)).

“If the [movant] fails to meet this initial burden, the motion must be denied,

regardless of the nonmovant’s response.” Id. Only if the Director met his

burden would the burden shift to Gibson to “go beyond the pleadings and

designate specific facts showing that there is a genuine [dispute] for trial”. Id.

(citing Celotex, 477 U.S. at 325).

Again, if a genuine dispute of material fact exists, we cannot hold movant

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see Johnson v.

Treen, 759 F.2d 1236, 1237 (5th Cir. 1985) (“Accordingly, on appeal we view all

materials in the light most favorable to [nonmovant] . . . to determine if there

is any [dispute] of material fact. If no such [dispute] exists, we must then

determine if [movant is] entitled to judgment as a matter of law.” (emphasis

added) (citation omitted)).

In moving for summary judgment only on the basis of immunity, the

Director provided the following evidence in support: Gibson’s grievance

records; Gibson’s medical records from January 2014-August 7, 2015; and

TDCJ Policy No. G-51.11. The Director submitted no evidence regarding the

medical necessity vel non of SRS in treating gender dysphoria.

In response, Gibson offered as evidence: Gibson’s affidavit, grievance

records, and psychiatric records from a psychiatric facility; literature on health

care and transgender individuals, including excerpts from a report detailing

the WPATH Standard of Care, which state “for many . . . surgery is essential

and medically necessary to alleviate their gender dysphoria”; a copy of TDCJ’s

policy on surgical castration for sex offenders; and copies of correspondence to

Gibson from TDCJ Correctional Managed Health Care.

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Therefore, because the Director did not provide evidence showing an

absence of a dispute as to the medical necessity of SRS in treating gender

dysphoria, he did not meet his burden; summary judgment was improper.

The majority does not address the Director’s failure to show an absence

of a dispute for a material fact, which was the Director’s burden, as movant,

under Rule 56(a). Instead, the majority, throughout its opinion, claims Kosilek

v. Spencer, 774 F.3d 63 (1st Cir. 2014) (en banc), shows there is no genuine

dispute of material fact in regard to the medical controversy surrounding SRS;

but, in district court, the Director did not even cite Kosilek, much less contend

the evidence presented in Kosilek was dispositive. Again, the majority can only

state that Gibson “has failed to present a genuine dispute of material fact”,

Maj. Opn. at 16, without citation to any facts presented to the district court by

the Director, without any citation for why it was Gibson’s burden at this stage,

and without citation for whether there is any proof regarding whether this

medical controversy—which it submits at 2 “dooms” Gibson’s claim—still

exists, over four years after Kosilek was decided. Nevertheless, the majority

at 7 note 5 states there is no merit to my contention that it is misplacing the

burden of production on Gibson.

Again, though, the majority is improperly taking evidence from another

case (Kosilek, decided by the first circuit over four years ago, and tried well

before then)—facts not presented in this case to the district court—and is

refusing to evaluate those facts in the requisite light most favorable to Gibson,

the nonmovant. See Johnson, 759 F.2d at 1237 (“The burden is on the moving

party to establish that there is no genuine issue of fact and the party opposing

the motion should be given the benefit of every reasonable inference in his

favor.” (citation omitted)).

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Instead, the majority contends at 7 note 5 that it is “recogniz[ing] the

futility of Gibson’s claim”; however, a review of relevant caselaw yielded no

precedent providing for the denial of remand based on futility when there is a

genuine dispute of material fact at the summary-judgment stage. The majority

is, in essence, skipping straight to the “judgment as a matter of law” prong for

summary judgment. That is improper, because, as noted supra, this court

must first determine there is no genuine dispute of material fact. Obviously, as

explained more fully infra, under the Eighth Amendment deliberate-

indifference standard, individualized medical assessment is required in each

case to determine the necessity of a particular treatment for a prisoner.

Because Gibson has not received the requested and physician-ordered

evaluation for SRS, there is a genuine dispute of material fact—whether SRS

is medically necessary in Gibson’s case.

The majority instead, in essence, is treating this Rule 56 summary-

judgment motion as a motion to dismiss for failure to state a claim, pursuant

to Rule 12(b)(6). See Maj. Opn. at 2, 8, 9, & 23 (“Accordingly, Gibson cannot

state a claim for cruel and unusual punishment under the plain text and

original meaning of the Eighth Amendment, regardless of any facts he might

have presented in the event of remand.” (first emphasis added)). Here, we are

not determining whether Gibson failed to state a claim (Gibson did state a

claim for deliberate indifference), but are instead determining whether, inter

alia, there are genuine disputes of material fact. Again, I emphasize, the only

facts presented to the district court regarding the medical necessity of SRS

were the WPATH Standards of Care. As much as it claims not to have, in its

zeal to interpret the original text of the Eighth Amendment (which, as

explained infra has already been done by the Supreme Court in Estelle v.

Gamble, 429 U.S. 97 (1976)), the majority has “missed the trees for the forest”

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by disregarding what stage of the proceeding we are evaluating and the

concomitant standards for it.

B.

The procedural errors that compel vacating the summary

judgment almost pale in comparison to the majority’s going far outside the

totally lacking summary-judgment record at hand in holding judgment was

properly granted. This is reflected in the majority’s refusing to consider

Gibson’s individual medical needs, which are in large part unknown because

Gibson has never received the requested evaluation for SRS, despite the

evaluation’s being ordered by a TDCJ doctor.

1.

Instead of looking to the summary-judgment record for evidence of the

claimed uncertainty in the medical community, the majority at 10–14 attempts

to create its own record, as noted, from the opinion in Kosilek (en banc) (which,

again, was not cited by the Director in the brief incorporated in his summary-

judgment motion), and from other outside sources, Maj. Opn. at 12 & 14 nn.6–

7. While we can, of course, look to other cases for legal analysis, we cannot

reconstruct the summary-judgment record in this case from the record in

another.

Moreover, this case is a far cry from Kosilek, which spanned over 20

years, had a very “expansive” record, and was not decided by summary

judgment. Kosilek, 774 F.3d at 68. Throughout Kosilek’s trial, testimony was

provided by numerous medical professionals—including gender-dysphoria

specialists who had evaluated Kosilek—regarding the medical necessity of SRS

in that case, and from multiple prison officials regarding safety concerns if

Kosilek were allowed SRS, neither of which is in issue for the summary

judgment at hand.

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Additionally, Kosilek, as noted, was decided more than four years ago,

which is not as “recent” as the majority claims at 10. In the last four years,

have there been any developments in the medical community regarding

treating gender dysphoria and determining the necessity for SRS? We do not

know because, in the instant summary-judgment record, we have no expert

testimony or any evidence as to the medical necessity outside of the WPATH

Standards of Care. (Somewhat along the line of relevant medical-community

developments, the majority at 3 note 2, in discussing why it uses male

pronouns for Gibson, cites Frontiero v. Richardson for the proposition that “sex

. . . is an immutable characteristic determined solely by . . . birth”. 411 U.S.

677, 686 (1973) (Brennan, J.) (plurality opinion). Frontiero, an equal-

protection challenge, confronted the disparate treatment of women; its being

cited by the majority is puzzling, to say the least. In any event, 46 years have

passed since 1973, when Frontiero was decided.)

A recent example of the disagreement over the requirement under the

Eighth Amendment to provide SRS in certain instances is the 13 December

2018 opinion in Edmo v. Idaho Department of Corrections. No. 1:17-cv-00151-

BLW, 2018 WL 6571203 (D. Idaho 13 Dec. 2018), concerning the court’s

granting Edmo’s motion for preliminary injunction and ordering the Idaho

Department of Corrections (IDOC) to provide Edmo with SRS. There, the

district court held Edmo had “satisfie[d] both elements of the deliberate-

indifference” standard: Edmo proved there was a serious medical need; and

IDOC and its medical provider, with full awareness of Edmo’s circumstances,

had refused to provide Edmo with SRS. Id. at *2. The district court went on

to state: “In refusing to provide that surgery, IDOC and [its medical provider]

have ignored generally accepted medical standards for the treatment of gender

dysphoria”. Id. The court also noted, as did the court in Kosilek, that its

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opinion was based on “the unique facts and circumstances” of Edmo’s case, and

“is not intended, and should not be construed, as a general finding that all

inmates suffering from gender dysphoria are entitled to” SRS. Id.

In so holding, the court found the “WPATH Standards of Care are the

accepted standards of care for treatment of transgender patients”, and “have

been endorsed by the [National Commission on Correctional Health Care

(NCCHC)] as applying to incarcerated persons”. Id. at *15. The court found

credible Edmo’s two experts, doctors “who have extensive personal experience

treating individuals with gender dysphoria both before and after receiving

[SRS]”. Id. at *15. One doctor testified “that [SRS] is the cure for gender

dysphoria” and would “eliminate” Edmo’s gender dysphoria, id. at *12; the

other, that “it is highly unlikely that [Edmo’s] severe gender dysphoria will

improve without” SRS, id.

The court also gave “virtually no weight” to IDOC’s experts, who had no

“experience with patients receiving [SRS] or assessing patients for the medical

necessity of [SRS]”. Id. at *15. IDOC and its medical provider were trained by

a doctor, id., whose testimony in Kosilek is relied on heavily by the majority at

12–13. The court found that doctor and another, who also testified in Kosilek

and is quoted by the majority at 12, were “outliers in the field of gender

dysphoria treatment”; “do not ascribe to the WPATH Standards of Care”; and

impose additional requirements on incarcerated individuals to receive SRS

that have no scientific support, have not been endorsed by any professional

organizations, and have not been adopted by the NCCHC. Id. at *16; see also

Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1188 (N.D. Cal. 2015) (finding the

above-referenced doctor who trained IDOC and its medical provider was not

credible because he testified as to “illogical inferences”, misrepresented the

WPATH Standards of Care, “overwhelmingly relie[d] on generalizations about

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gender dysphoric prisoners, rather than an individualized assessment”, and

“admittedly include[d] references to a fabricated anecdote”).

The record in Edmo contains more than, as the majority suggests at 19,

a disagreement with the doctors in Kosilek. The courts in Edmo and

Norsworthy found those doctors not credible in the light of their

misrepresentations and refusal to subscribe to the medically-accepted

standards of care—WPATH. See, e.g., Edmo, 2018 WL 6571203, at *16;

Norsworthy, 87 F. Supp. 3d at 1188.

2.

The majority at 9 and 15 also errs in stating Gibson’s “concessions”.

Gibson’s statement that the first circuit (which decided Kosilek en banc)

“doesn’t recognize [WPATH] as having universal consensus” is not equivalent

to a concession that WPATH is not universally accepted. And, contrary to the

majority’s statement at 15, Gibson does contest the expert testimony in Kosilek

refuting such “universal acceptance”. Although Gibson acknowledges that,

while proceeding pro se in district court, Gibson did not present evidence of

WPATH’s universal acceptance, Gibson asserts such acceptance could be

inferred as “[i]t is undisputed . . . that all reputable U.S. medical organizations

have recognized WPATH as the proper standard of care”.

In that regard, the majority rests on lack of “universal acceptance” of the

medical necessity of SRS, stating that, to constitute deliberate indifference, the

medical procedure must be “universally accepted”. E.g., Maj. Opn. at 9, 10, &

15. Tellingly, the majority provides no citation to any caselaw regarding this

universal-acceptance standard. In fact, the only citation for this point is to

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Gibson’s brief. Maj. Opn. at 9. Gibson’s brief seemingly quoted the following

statement from the district court’s order:

However, plaintiff provides as summary judgment evidence

only portions of the WPATH report, and no witness testimony or

evidence from professionals in the field demonstrating that the

WPATH-suggested treatment option of SRS is so universally

accepted, that to provide some but not all of the WPATH-

recommended treatment amounts to deliberate indifference.

Gibson, No. 6:15-cv-190, at 19 (emphasis added). But, the district court

did not cite any caselaw for this universal-acceptance standard either. And, a

review of relevant caselaw yields no precedent for this standard. It is,

therefore, improper to add this unfounded qualification to the well-known

deliberate-indifference standard.

In any event, again, it was not Gibson’s burden to show universal

acceptance, because the Director failed to present any evidence demonstrating

WPATH is not universally accepted. (The Kosilek court quoted Cameron v.

Tomes, 990 F.2d 14, 20 (1st Cir. 1993), for the proposition that security

concerns, as identified by prison administrators in Kosilek, are entitled to great

deference—not, as the majority states at 9, as support for the controversial

nature of SRS and the requirement of “universal consensus”. Kosilek, 774 F.3d

at 96.)

3.

The majority, at 12 and 14 notes 6–7, also cites three outside sources for

evidence of the claimed controversy surrounding SRS. In note 6, the majority

cites two news articles showing two doctors “are not the only experts at the

Johns Hopkins School of Medicine who question the necessity and effectiveness

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of [SRS]”. Johns Hopkins, however, has opened a transgender health service

and resumed providing SRS to transgender individuals, a program cancelled

by a former chief of psychiatry who felt SRS was not a viable treatment. Amy

Ellis Nutt, Long Shadow Cast by Psychiatrist on Transgender Issues Finally

Recedes at Johns Hopkins, Wash. Post (5 Apr. 2017),

https://www.washingtonpost.com/national/health-science/long-shadow-cast-

by-psychiatrist-on-transgender-issues-finally-recedes-at-johns-

hopkins/2017/04/05/e851e56e-0d85-11e7-ab07-

07d9f521f6b5_story.html?noredirect=on&utm_term=.062c67bae5fe.

The Decision Memo by the Centers for Medicare & Medicaid Services

(CMS), cited by the majority at 14 note 7, is also unpersuasive, and, in fact, if

anything, supports Gibson’s claim. The memo notes that CMS is not issuing a

national coverage determination (NCD) for SRS “for Medicare beneficiaries

with gender dysphoria because the clinical evidence is inconclusive for the

Medicare population”, but coverage determinations for SRS continue to be

made locally “on a case-by-case basis”. CMS, Decision Memo for Gender

Dysphoria and Gender Reassignment Surgery, at 2 (30 Aug. 2016),

https://www.cms.gov/medicare-coverage-database/details/nca-decision-

memo.aspx?NCAId=282 (emphasis added).

The memo goes on to acknowledge that, while SRS “may be a reasonable

and necessary service for certain beneficiaries with gender dysphoria”, “[t]he

current scientific information is not complete for CMS to make a NCD that

identifies the precise patient population for whom the service would be

reasonable and necessary”, and “[p]hysician recommendation is one of many

potential factors that the local [Medicare Administrative Contractors] may

consider when determining whether the documentation is sufficient to pay a

claim”. Id. at 40–41. A determination made on a case-by-case basis and

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supported by physician recommendation is precisely what Gibson has been

denied.

4.

It must also be noted that the Kosilek opinion is not nearly as

determinative on the issue of the necessity vel non for SRS as the majority

suggests. The majority in Kosilek stated: based on the evaluation of Kosilek

by numerous medical professionals, the court was convinced that both the

Massachusetts Department of Correction’s (DOC) course of treatment and SRS

could alleviate Kosilek’s symptoms. Kosilek, 774 F.3d at 90.

But, it was “not the place of [the] court to ‘second guess medical

judgments’ or to require that the DOC adopt the more compassionate of two

adequate options”. Id. (citations omitted). The first circuit warned that the

opinion was not meant to “create a de facto ban against SRS as a medical

treatment for any incarcerated individual”, as any such “blanket policy

regarding SRS” “would conflict with the requirement that medical care be

individualized based on a particular prisoner’s serious medical needs”. Id. at

90–91 (emphasis added) (citing Roe v. Elyea, 631 F.3d 843, 862–63 (7th Cir.

2011) (holding failure to conduct individualized assessment of prisoner’s needs

may violate Eighth Amendment)).

I agree the evidence in Kosilek encompassed both Kosilek’s individual

medical needs and the broader dispute about the efficacy of SRS; however, the

holding in Kosilek is based on Kosilek’s specific circumstances. Id. at 89–92.

Addressing the subjective prong of deliberate indifference, the Kosilek

court noted, “it is not the district court’s own belief about medical necessity

that controls, but what was known and understood by prison officials in

crafting their policy”. Id. at 91 (citation omitted). The court went on to

acknowledge that the DOC had “solicited the opinion of multiple medical

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professionals and was ultimately presented with two alternative treatment

plans, which were each developed by different medical experts to mitigate the

severity of Kosilek’s mental distress”. Id. (emphasis added). Inherent in that

analysis is the fact that Kosilek was evaluated by medical professionals, and

the DOC chose a course of treatment for Kosilek recommended by them.

And, contrary to the majority’s assertion at 17–18, the dissent in Kosilek

does not suggest anything else. The dissent does state: “the majority in

essence creates a de facto ban on sex reassignment surgery for inmates in [the

first] circuit”. Kosilek, 774 F.3d at 106–07 (Thompson, J. dissenting). This

was due, however, to the majority’s crediting “the divergence of opinion as to

Kosilek’s need for surgery”, which “only resulted from the DOC disregarding

the advice of Kosilek’s treating doctors and bringing in a predictable opponent

to [SRS]”. Id. at 107 (emphasis added). The dissent concluded: “So the

question remains, if Kosilek—who was time and again diagnosed as suffering

from severe gender identity disorder, and who was uniformly thought by

qualified medical professionals to require surgery—is not an appropriate

candidate for surgery, what inmate is”? Id.

The majority at 17 notes Gibson’s brief “acknowledges that, if the logic

of Kosilek is correct, it would allow a ‘blanket refusal to provide SRS’”. Gibson

stated at oral argument, however: to the extent the brief acknowledged the

blanket refusal, it was error; and Gibson does not take that position. Oral

Argument 09:54–10:47 (“When you read Kosilek, that is not what it says.”).

Gibson further stated “the Eighth Amendment claim, as this court’s precedents

say repeatedly, turns on . . . individualized medical assessments”. Oral

Argument 11:40–12:11.

In that regard, unlike Gibson, Kosilek was evaluated for SRS and denied

it based on security concerns, uncertainty in the medical community, and

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conflicting medical opinions regarding Kosilek’s individual needs. Gibson has

not even received a requested evaluation, even though the summary-judgment

record contains a “clinic note”, electronically signed by Dr. Greene, stating:

“Please schedule [Gibson] with unit MD for evaluation for referral for sex

change operation and evaluation for medical pass for gender identity disorder.”

(Emphasis added.) Moreover, the district court referenced this ordered referral

for SRS evaluation in its summary of the relevant summary-judgment

evidence. (At oral argument, neither party was aware of this evidence.)

Again, the evaluation ordered by Dr. Greene has never occurred. As

noted by the majority at 5, according to TDCJ, Gibson’s requests for evaluation

have been denied “because [TDCJ] Policy [No. G-51.11] does not ‘designate

[SRS] . . . as part of the treatment protocol for Gender Identity Disorder’”.

Gibson does not contend that TDCJ has refused a doctor’s orders based on the

ban per se, but Gibson does contend that requests for evaluations are denied

based on the ban, and not on medical advice or valid penological interests. In

any event, as our review is de novo, we are allowed to consider the entire

record, which shows that a doctor ordered an evaluation, which has not

occurred solely due to the ban. (The majority at 5 note 3 states: “Gibson’s

counsel does not argue that the clinic note is relevant to this appeal”. But, as

noted above, at oral argument neither party was aware it existed. Obviously,

Gibson can urge, and has urged, the requirement for an individualized medical

assessment of Gibson’s medical needs—as required by the Eighth

Amendment—without pointing out this clinic note. As also noted above, the

district court referenced the clinic note in its order.)

Gibson also moved in district court to add to the summary-judgment

record a news article in which the spokesman for TDCJ stated “it should be

noted that offenders cannot have gender reassignment surgery which would be

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considered elective and is not covered under the TDCJ offender health care

plan”, as further proof that TDCJ’s denial of SRS is based on a policy and not

on Gibson’s medical need. Gibson’s motion was denied summarily in the order

granting summary judgment.

In Gibson’s case, a TDCJ medical professional ordered evaluation for

SRS; but TDCJ, not due to a conflicting medical opinion, but instead based on

a blanket policy, refused to have Gibson evaluated. This is contrary to the

Eighth Amendment’s requirement that any denial of treatment be based on

medical judgment in the specific-fact scenario. See Delaughter v. Woodall, 909

F.3d 130, 138–39 & n.7 (5th Cir. 2018) (“We have previously suggested that a

non-medical reason for delay in treatment constitutes deliberate indifference.”

(citing Thibodeaux v. Thomas, 548 F. App’x 174, 175 (5th Cir. 2013))); Smith

v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003) (“[G]iven the fact-specific nature

of Eighth Amendment denial of medical care claims, it is difficult to formulate

a precise standard of ‘seriousness’ . . . ”. (quoting Gutierrez v. Peters, 111 F.3d

1364, 1372 (7th Cir. 1997))); Id. (“Just as the relevant ‘medical need’ can only

be identified in relation to the specific factual context of each case, the severity

of the alleged denial of medical care should be analyzed with regard to all

relevant facts and circumstances.” (citation omitted)).

A second dissent in Kosilek disagreed with the standard of review the

majority applied to what the dissent deemed were pure questions of fact. Id.

at 113–15 (Kayatta, J., dissenting). The dissenting judge stated that even

though he disagreed with the trial judge’s findings on the medical necessity of

SRS in Kosilek’s case, the judge did not clearly err in finding the medical

professionals who concluded SRS was necessary in Kosilek’s case were more

credible. Id. In stating why he would have found SRS was not medically

necessary, the judge noted he believed one expert “provided carefully nuanced

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and persuasive testimony that medical science has not reached a wide,

scientifically driven consensus mandating SRS as the only acceptable

treatment for an incarcerated individual with gender dysphoria”. Id. at 114.

The majority at 14 concludes that this “admission is fatal to this case”. That

the majority believes a statement by a dissenting judge as to how he personally

would have weighed the testimony in another case could somehow doom

Gibson’s case is wide of the mark. The majority apparently believes Gibson

was never entitled to due process for this claim because Kosilek, an out-of-

circuit opinion, has foreclosed any advancement in the law and medical

research in this area.

In addition, the majority’s analogies to drugs banned by the FDA at 2

and 18 are inapposite. First, SRS is not subject to FDA approval. CMS,

Decision Memo for Gender Dysphoria and Gender Reassignment Surgery, at 5–

6 (30 Aug. 2016), https://www.cms.gov/medicare-coverage-

database/details/nca-decision-memo.aspx?NCAId=282. Second, our focus in

deliberate-indifference cases is on the actions of prison officials in response to

treatment prescribed by medical professionals for serious medical needs of

prisoners.

5.

This blanket ban on even an evaluation for SRS is clearly contrary to

Kosilek’s holding. It even goes against TDCJ’s G-51.11 policy, which provides

that inmates with gender dysphoria are “evaluated by appropriate medical and

mental health professionals and treatment determined on a case by case basis

as clinically indicated”, according to the “[c]urrent, accepted standards of care”.

TDCJ has denied Gibson evaluation for SRS and having treatment determined

based on individualized needs, which is mandated under the “current, accepted

standards of care”—WPATH—relied on by TDCJ in crafting its policy. Other

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circuits have time and again held that refusal to treat, or evaluate for

treatment, based on a blanket policy and not medical judgment, could

constitute deliberate indifference. See, e.g., Rosati v. Igbinoso, 791 F.3d 1037

(9th Cir. 2015) (per curiam); Colwell v. Bannister, 763 F.3d 1060 (9th Cir.

2014); Fields v. Smith, 653 F.3d 550 (7th Cir. 2011).

More importantly, our precedent suggests a refusal to evaluate Gibson

for SRS or a decision to deny SRS not based on medical judgment could

constitute deliberate indifference. See, e.g., Delaughter, 909 F.3d at 138–39 &

n.7 (“We have previously suggested that a non-medical reason for delay in

treatment constitutes deliberate indifference.” (collecting cases)); see also

Estelle, 429 U.S. at 104–05 (“We therefore conclude that deliberate indifference

to serious medical needs of prisoners constitutes the ‘unnecessary and wanton

infliction of pain,’ proscribed by the Eighth Amendment. This is true whether

the indifference is manifested by prison doctors in their response to the

prisoner’s needs or by prison guards in intentionally denying or delaying access

to medical care or intentionally interfering with the treatment once

prescribed.” (internal citation and footnotes omitted)). If “intentionally

interfering with the treatment once prescribed” could constitute a violation of

the Eighth Amendment, surely a blanket refusal to be evaluated for treatment

could also constitute a claim.

6.

The majority at 14–15 note 8 states no circuit has disagreed with Kosilek;

however, that does not tell the full story. I am not aware of any circuit that

has considered another case regarding SRS which has gone through a full trial,

instead of being dismissed at the Rule 12(b)(6) or summary-judgment stages.

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See, e.g., Rosati, 791 F.3d 1037; De’lonta v. Johnson, 708 F.3d 520 (4th Cir.

2013).

As the majority notes, the fourth and ninth circuits have allowed Eighth

Amendment claims to survive motions to dismiss for failure to state a claim.

See Maj. Opn. at 14 note 8 (citing Rosati, 791 F.3d at 1040; De’lonta, 708 F.3d

at 526); see also De’lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003) (regarding

a request for hormone therapy). In doing so, the fourth and ninth circuits have

suggested the failure to provide medical care based on an administrative

policy, and not on medical judgment, could constitute deliberate indifference.

See Rosati, 791 F.3d at 1039–40 (citing Colwell, 763 F.3d at 1063 (“holding that

the ‘blanket, categorical denial of medically indicated surgery solely on the

basis of an administrative policy that one eye is good enough for prison inmates

is the paradigm of deliberate indifference’”)); De’lonta, 330 F.3d at 635 (“In fact,

[the doctor’s] response . . . which states that there was no gender specialist at

[the consulting medical facility] and that [the prison’s] policy is not to provide

hormone therapy to prisoners, supports the inference that [the] refusal to

provide hormone treatment to De’lonta was based solely on the Policy rather

than on a medical judgment concerning De’lonta’s specific circumstances.”

(emphasis added)).

Nor are the majority’s cited cases regarding hormone therapy

persuasive, because, as the majority states at 15 note 8, the holdings were

limited to the individual cases. In Praylor v. Texas Department of Criminal

Justice, our court held that, “on [that] record, the refusal to provide hormone

therapy did not constitute the requisite deliberate indifference”. 430 F.3d

1208, 1209 (5th Cir. 2005) (emphasis added). In Supre v. Ricketts, decided in

1986, the tenth circuit also held the failure to treat the plaintiff with hormone

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therapy did not rise to deliberate indifference. In so holding, the court

explained:

It is apparent from the record that there were a variety of

options available for the treatment of plaintiff’s psychological and

physical medical conditions. It was never established, however,

that failing to treat plaintiff with estrogen would constitute

deliberate indifference to a serious medical need. While the

medical community may disagree among themselves as to the best

form of treatment for plaintiff’s condition, the [prison] made an

informed judgment as to the appropriate form of treatment and did

not deliberately ignore plaintiff’s needs.

792 F.2d 958, 963 (10th Cir. 1986) (emphasis added).

Supre was examined by two endocrinologists and a psychiatrist, each of

whom considered estrogen therapy as a course of treatment. Id. at 960. Two

of the doctors advised against hormone therapy because of its dangers and

controversial nature at that time. Id. But, one of the endocrinologists

recommended hormone therapy. Id. The prison made “an informed judgment”

based on the recommendations of Supre’s doctors, not based on a policy. Id. at

963.

Finally, the majority at 15 note 8 cites Meriwether v. Faulkner,

decided by the seventh circuit in 1987. The Meriwether court, in allowing the

Eighth Amendment claim to survive a motion to dismiss, stated: “[Plaintiff]

does not have a right to any particular type of treatment, such as estrogen

therapy . . . .” 821 F.2d 408, 413 (7th Cir. 1987). In 2011, however, the seventh

circuit explained in Fields v. Smith that the Meriwether language was dicta,

and held “the evidence at trial indicated that plaintiffs could not be effectively

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treated without hormones”. 653 F.3d at 555–56. Therefore, the court affirmed

the district court’s ruling that the Wisconsin statute in question, “which

prohibit[ed] the Wisconsin Department of Corrections . . . from providing

transgender inmates with certain medical treatments”, id. at 552, was invalid,

both on its face and as applied to plaintiffs, as a violation of the Eighth

Amendment, id. at 559.

7.

The majority has missed the mark. The question is not whether

there is a broad medical controversy, but whether there is a disagreement

about the efficacy of the treatment for this particular prisoner, based on this

prisoner’s individual needs. Obviously, what is not medically necessary for one

person, may be medically necessary for another. See, e.g., Chance v.

Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“Whether a course of treatment

was the product of sound medical judgment, negligence, or deliberate

indifference depends on the facts of the case.”).

This fact-specific inquiry required by the Eighth Amendment is exactly

why we cannot rely solely on the record in Kosilek in determining the medical

necessity in Gibson’s case, unlike the procedure used in the below-described

First Amendment precedent relied on by the majority at 16–17 note 9.

Never mind that the Director did not “borrow from Kosilek” as the

majority suggests at 16; again, the Director did not even cite Kosilek in his

summary-judgment motion. Again, in this record, the only evidence of medical

necessity is the WPATH Standards of Care. Contrary to the majority’s above-

noted position at 16 and note 9, the need for individualized medical

determinations is obviously different from the general evidence required to

show a State’s compelling interest in protecting its citizens from corruption of

the political system by large campaign contributions or from the secondary

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effects caused by a strip club or adult theater. See, e.g., Nixon v. Shrink Mo.

Gov’t PAC, 528 U.S. 377 (2000); City of Erie v. Pap’s A.M., 529 U.S. 277 (2000);

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).

Even if the Director had cited Kosilek in district court, we are required,

at this summary-judgment stage, to view the evidence and draw all reasonable

inferences in the light most favorable to the nonmovant—Gibson. See Renwick

v. PNK Lake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (citations

omitted). The testimony in Kosilek, coupled with the WPATH Standards of

Care, when viewed in the light most favorable to Gibson, demonstrate a

genuine dispute of material fact on the medical necessity of SRS in general.

And, on this record, we cannot know if SRS is medically necessary for Gibson,

because Gibson has been denied the right to an evaluation and the due-process

right to make a record on this point of contention.

The majority consistently misconstrues the correct standard. At 2, the

majority quotes Delaughter, 909 F.3d at 136, stating: “‘[M]ere disagreement

with one’s medical treatment is insufficient’ to state a claim under the Eighth

Amendment.” See also Maj. Opn. at 9 (quoting Norton v. Dimazana, 122 F.3d

286, 292 (5th Cir. 1997)). This is correct; “mere disagreement with one’s

medical treatment is insufficient to show deliberate indifference”. Delaughter,

909 F.3d at 136 (citation omitted).

But, the majority at 2 goes on to claim that “[t]his bedrock principle

dooms this case” because of the broad medical controversy surrounding SRS.

This is incorrect. A prisoner’s mere disagreement with his medical treatment

is insufficient to show deliberate indifference when: the prisoner has, in fact,

been evaluated by a medical professional; the medical professional has

prescribed a course of treatment; and the prisoner then disagrees with that

course of treatment. See, e.g., Estelle, 429 U.S. at 107 (prisoner disagreed with

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diagnosis and treatment plan by medical professionals); Norton, 122 F.3d at

291–92 & n.1 (prisoner disagreed with medical treatment and asserted prison

should have tried alternative methods of treatment or different diagnostic

measures, but medical records showed prison officials followed medical

treatment prescribed by doctors and afforded prisoner extensive medical care);

Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (prisoner disagreed

with revocation of his “diet card” after medical personnel determined the

newly-built ramps in the dining hall made the diet card unnecessary).

Gibson, on the other hand, has been treated for SRS in the form of

hormone therapy. Gibson does not deny that. Gibson, however, avers the

hormone therapy is not adequate and SRS may be medically necessary to treat

Gibson’s gender dysphoria, and requests an evaluation for SRS. Ordinarily,

the majority would be correct in stating this would not be enough to show

deliberate indifference. But, the difference in this case is that a medical

professional ordered Gibson be evaluated for SRS. This evaluation has never

happened because of the prison’s ban on SRS, not because of any treatment

plan by a medical professional. See Maj. Opn. at 5.

I am not taking a position on whether Gibson’s claim constitutes

deliberate indifference. But, the Director’s refusal to have Gibson evaluated

for SRS, contrary to a medical professional’s order and based on a blanket ban,

could constitute deliberate indifference; and, Gibson should, as a matter of due

process, be allowed to conduct discovery and build a record on this claim,

including being evaluated by a medical professional to determine the medical

necessity of SRS in Gibson’s case.

8.

The majority goes to great lengths at 19–23 discussing the text and

original understanding of the Eighth Amendment’s “cruel and unusual

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punishment” standard. Its analysis is unnecessary; the standard has been long

established. In Estelle, the Supreme Court held “that deliberate indifference

to serious medial needs of prisoners constitutes the ‘unnecessary and wanton

infliction of pain’ proscribed by the Eighth Amendment”. 429 U.S. at 104

(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)); see, e.g., Easter v. Powell,

467 F.3d 459, 463 (5th Cir. 2006) (“A prison official violates the Eighth

Amendment’s prohibition against cruel and unusual punishment when his

conduct demonstrates deliberate indifference to a prisoner’s serious medical

needs, constituting an ‘unnecessary and wanton infliction of pain.’” (citation

omitted)); Barksdale v. King, 699 F.2d 744, 748 (5th Cir. 1983) (“‘[A]cts or

omissions sufficiently harmful to evidence deliberate indifference to serious

medical needs’ of inmates constitute cruel and unusual punishment.”

(alteration in original; second emphasis added) (quoting Ruiz v. Estelle, 679

F.2d 1115, 1149 (5th Cir.), vacated in part by 688 F.2d 266 (5th Cir. 1982) (this

portion of opinion vacated because parties entered into settlement before

original opinion issued without disclosing to court)); Dickson v. Colman, 569

F.2d 1310, 1311 (5th Cir. 1978) (“The Court [in Estelle] held that inadequate

medical care did not constitute cruel and unusual punishment cognizable

under section 1983 unless the mistreatment rose to the level of ‘deliberate

indifference to serious medical needs.’” (quoting Estelle, 429 U.S. at 106)).

We, therefore, are not at liberty to undertake the text-and-original-

understanding analysis. Instead, we must decide only: whether the prisoner

has a serious medical need (the Director has conceded Gibson does); and, if

there is a serious medical need, whether the prison has been deliberately

indifferent to that need. End of analysis.

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III.

The inadequate summary-judgment record does not provide any

evidence regarding the medical community’s current opinion on the necessity

of SRS in treating gender dysphoria in general, much less in regard to Gibson;

and we cannot base the medical community’s standards on evidence submitted

in a four-year-old case. Nor can we depart even further from the record and

caselaw to make our own record, ignoring the genuine disputes of material fact

at hand. This case does not call into question the “text [or] original

understanding” of the Eighth Amendment, see Maj. Opn. at 20; the controlling

medical-deliberate-indifference standard for prisoners is well-established.

Instead, at issue is fundamental fairness—the right to due process. Summary

judgment was improper; and, therefore, I must respectfully dissent.

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