Adree Edmo v. Corizon, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADREE EDMO, AKA Mason Edmo, No. 19-35017

Plaintiff-Appellee,

D.C. No.

v. 1:17-cv-00151-

BLW

CORIZON, INC.; SCOTT ELIASON;

MURRAY YOUNG; CATHERINE

WHINNERY,

Defendants-Appellants,

and

IDAHO DEPARTMENT OF

CORRECTIONS; AL RAMIREZ, in his

official capacity as warden of Idaho

State Correctional Institution; *

HENRY ATENCIO; JEFF ZMUDA;

HOWARD KEITH YORDY; RICHARD

CRAIG; RONA SIEGERT,

Defendants.

ADREE EDMO, AKA Mason Edmo, No. 19-35019

Plaintiff-Appellee,

*

Al Ramirez is substituted in his official capacity for his

predecessor, Howard Keith Yordy, pursuant to Rule 43(c)(2) of the

Federal Rules of Appellate Procedure.

2 EDMO V. CORIZON

v. D.C. No.

1:17-cv-00151-

IDAHO DEPARTMENT OF BLW

CORRECTIONS; AL RAMIREZ, in his

official capacity as warden of Idaho

State Correctional Institution; HENRY OPINION

ATENCIO; JEFF ZMUDA; HOWARD

KEITH YORDY; RICHARD CRAIG;

RONA SIEGERT,

Defendants-Appellants,

and

CORIZON, INC.; SCOTT ELIASON;

MURRAY YOUNG; CATHERINE

WHINNERY,

Defendants.

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted May 16, 2019

San Francisco, California

Filed August 23, 2019

Before: M. Margaret McKeown and Ronald M. Gould,

Circuit Judges, and Robert S. Lasnik, ** District Judge.

Per Curiam Opinion

**

The Honorable Robert S. Lasnik, United States District Judge for

the Western District of Washington, sitting by designation.

EDMO V. CORIZON 3

SUMMARY ***

Eighth Amendment / Prisoner Rights

The panel affirmed the district court’s entry of a

permanent injunction in favor of Idaho state prisoner Adree

Edmo, but vacated the injunction to the extent it applied to

defendants Corizon, Howard Yordy, Rona Siegert, Dr.

Young, Dr. Craig, and Dr. Whinnery, in their individual

capacities, in Edmo’s action seeking medical treatment for

gender dysphoria.

The district court concluded that Edmo had established

her Eighth Amendment claim. The district court further

concluded that gender confirmation surgery (“GCS”) was

medically necessary for Edmo, and ordered the State to

provide the surgery.

The panel credited the district court’s factual findings as

logical and well-supported, and held that the responsible

prison authorities were deliberately indifferent to Edmo’s

gender dysphoria, in violation of the Eighth Amendment.

The panel held that the record, as construed by the district

court, established that Edmo had a serious medical need, that

the appropriate medical treatment was GCS, and that prison

authorities had not provided that treatment despite full

knowledge of Edmo’s ongoing and extreme suffering and

medical needs. The panel rejected the State’s position that

there was a reasoned disagreement between qualified

medical professionals. The panel emphasized that its

***

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 EDMO V. CORIZON

analysis was individual to Edmo, and rested on the record of

this case.

Addressing further aspects of the appeal, the panel

rejected the State’s contention that the district court did not

make the Prison Litigation Reform Act’s requisite “need-

narrowness-intrusiveness” findings, causing the injunction

to automatically expire and mooting the appeal. The panel

held that the district court’s order, considered as a whole,

made all the findings required by 18 U.S.C. § 3626(a)(1)(A),

and Ninth Circuit precedent. The panel also held that the

permanent injunction that the district court entered had not

expired, and remained in place, albeit stayed. The panel

accordingly denied the State’s motion to dismiss.

The panel held that the district court did not err in

granting a permanent injunction. Specifically, the panel

held, based on the district court’s factual findings, that Edmo

established her Eighth Amendment claim and that she will

suffer irreparable harm – in the form of ongoing mental

anguish and possible physical harm – if GCS is not provided.

The State did not dispute that Edmo’s gender dysphoria was

a sufficiently serious medical need to trigger the State’s

obligations under the Eighth Amendment. The panel held

that the district court did not err in crediting the testimony of

Edmo’s experts that GCS was medically necessary to treat

Edmo’s gender dysphoria and that the State’s failure to

provide that treatment was medically unacceptable. The

panel further held that the district court did not err in

discrediting the State’s experts because aspects of their

opinions were illogical and unpersuasive. Also, the panel

held that the record demonstrated that Dr. Eliason acted with

deliberate indifference to Edmo’s serious medical needs.

The panel noted that its decision was in tension with the Fifth

Circuit’s decision in Gibson v. Collier, 920 F.3d 212 (5th

EDMO V. CORIZON 5

Cir. 2019), and the panel rejected that decision’s categorical

holding that denying GCS cannot, as a matter of law, violate

the Eighth Amendment.

The panel held that the district court did not err in finding

that Edmo would be irreparably harmed absent an

injunction. The panel rejected the State’s contentions as to

why the district court erred in this finding.

The panel next considered the State’s challenges to the

scope of the injunction. The panel held that the injunction

was properly entered against Dr. Eliason because he

personally participated in the deprivation of Edmo’s

constitutional rights. The panel also held that because Edmo

may properly pursue her Eighth Amendment claim for

injunctive relief against Attencio, Zmuda and Ramirez in

their official capacities, they were properly included within

the scope of the district court’s injunction. On remand, the

district court shall amend the injunction to substitute the

current warden as a party for Yordy. The panel vacated the

district court’s injunction to the extent it applied to Yordy,

Siegert, Dr. Young, Dr. Craig, and Dr. Whinnery in their

individual capacities because the evidence in the record was

insufficient to conclude that they were deliberately

indifferent to Edmo’s serious medical needs. The panel

vacated the injunction as to Corizon, and remanded with

instructions to the district court to modify the injunction to

exclude Corizon. Finally, the panel held that the injunctive

relief ordered was not overbroad.

The panel considered the State’s challenges to the

procedure used by the district court. The panel rejected the

State’s contention that the district court erroneously

converted the evidentiary hearing into a final trial on the

merits without giving proper notice. The panel held that the

State did receive notice, and in any event, the State had not

6 EDMO V. CORIZON

shown any prejudice. The panel also rejected the State’s

contention that the district court violated defendants’

Seventh Amendment right to a jury trial by converting the

evidentiary hearing into a trial on the merits. The panel held

that the State’s conduct waived its right to a jury trial with

respect to issues common to Edmo’s request for an

injunction ordering GCS and her legal claims.

COUNSEL

Brady J. Hall (argued), Special Deputy Attorney General;

Lawrence G. Wasden, Attorney General; Office of the

Attorney General, Boise, Idaho; Marisa S. Crecelius, Moore

Elia Kraft & Hall LLP, Boise, Idaho; for Defendants-

Appellants Idaho Department of Corrections, Henry

Atencio, Jeff Zmuda, Howard Keith Yordy, Richard Craig,

and Rona Siegert.

Dylan A. Eaton (argued), J. Kevin West, and Bryce Jensen,

Parsons Behle & Latimer, Boise, Idaho, for Defendants-

Appellants Corizon, Inc.; Scott Eliason; Murray Young; and

Catherine Whinnery.

Lori Rifkin (argued), Hadsell Stormer & Renick LLP,

Emeryville, California; Dan Stormer and Shaleen Shanbhag,

Hadsell Stormer & Renick LLP, Pasadena, California; Craig

Durham and Deborah Ferguson, Ferguson Durham PLLC,

Boise, Idaho; Amy Whelan and Julie Wilensky, National

Center for Lesbian Rights, San Francisco, California; for

Plaintiff-Appellee.

David M. Shapiro, Sheila A. Bedi, and Vanessa del Valle,

Roderick & Solange MacArthur Justice Center, Chicago,

Illinois; Molly E. Whitman, Akin Gump Strauss Hauer &

EDMO V. CORIZON 7

Feld LLP, Dallas, Texas; for Amici Curiae Andrea

Armstrong, Sharon Dolovich, Betsy Ginsberg, Michael B.

Mushlin, Alexander A. Reinert, Laura Rovner, and Margo

Schlanger.

Molly Kafka and Richard Alan Eppink, ACLU of Idaho

Foundation, Boise, Idaho; Devon A. Little and Derek

Borchardt, Walden Macht & Haran LLP, New York, New

York; Amy Fettig and Jennifer Wedekind, ACLU National

Prison Project, Washington, D.C.; Gabriel Arkles and Rose

Saxe, ACLU LGBT & HIV Project/ACLU Foundation, New

York, New York; for Amici Curiae Former Corrections

Officials.

Devi M. Rao and Jason T. Perkins, Jenner & Block LLP,

Washington, D.C., for Amici Curiae Medical and Mental

Health Professional Organizations.

Sharif E. Jacob, Ryan K. M. Wong, Kristin E. Hucek, and

Patrick E. Murray, Keker Van Nest & Peters LLP, San

Francisco, California, for Amicus Curiae Jody L. Herman.

Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr

LLP, New York, New York; Michael Posada, Wilmer Cutler

Pickering Hale and Dorr LLP, Washington, D.C.; Richard

Saenz, Lambda Legal Defense & Education Fund Inc., New

York, New York; A. Chinyere Ezie, Center for

Constitutional Rights, New York, New York; for Amici

Curiae Civil Rights & Non-Profit Organizations.

8 EDMO V. CORIZON

OPINION

PER CURIAM:

The Eighth Amendment prohibits “cruel and unusual

punishments.” U.S. Const. amend. VIII. “The Amendment

embodies broad and idealistic concepts of dignity, civilized

standards, humanity, and decency . . . .” Estelle v. Gamble,

429 U.S. 97, 102 (1976) (quotation omitted). Our society

recognizes that prisoners “retain the essence of human

dignity inherent in all persons.” Brown v. Plata, 563 U.S.

493, 510 (2011).

Consistent with the values embodied by the Eighth

Amendment, for more than 40 years the Supreme Court has

held that “deliberate indifference to serious medical needs”

of prisoners constitutes cruel and unusual punishment.

Estelle, 429 U.S. at 106. When prison authorities do not

abide by their Eighth Amendment duty, “the courts have a

responsibility to remedy the resulting . . . violation.” Brown,

563 U.S. at 511. We do so here.

Adree Edmo (formerly Mason Dean Edmo) is a male-to-

female transgender prisoner in the custody of the Idaho

Department of Correction (“IDOC”). Edmo’s sex assigned

at birth (male) differs from her gender identity (female). The

incongruity causes Edmo to experience persistent distress so

severe it limits her ability to function. She has twice

attempted self-castration to remove her male genitalia,

which cause her profound anguish.

Both sides and their medical experts agree: Edmo suffers

from gender dysphoria, a serious medical condition. They

also agree that the appropriate benchmark regarding

treatment for gender dysphoria is the World Professional

Association of Transgender Health Standards of Care for the

EDMO V. CORIZON 9

Health of Transsexual, Transgender, and Gender

Nonconforming People (“WPATH Standards of Care”).

And the State 1 does not seriously dispute that in certain

circumstances, gender confirmation surgery (“GCS”) can be

a medically necessary treatment for gender dysphoria. The

parties’ dispute centers around whether GCS is medically

necessary for Edmo—a question we analyze with deference

to the district court’s factual findings.

Following four months of intensive discovery and a

three-day evidentiary hearing, the district court concluded

that GCS is medically necessary for Edmo and ordered the

State to provide the surgery. Its ruling hinged on findings

individual to Edmo’s medical condition. The ruling also

rested on the finding that Edmo’s medical experts testified

persuasively that GCS was medically necessary, whereas

testimony from the State’s medical experts deserved little

weight. In contrast to Edmo’s experts, the State’s witnesses

lacked relevant experience, could not explain their

deviations from generally accepted guidelines, and testified

illogically and inconsistently in important ways.

The district court’s detailed factual findings were amply

supported by its careful review of the extensive evidence and

testimony. Indeed, they are essentially unchallenged. The

appeal boils down to a disagreement about the implications

of the factual findings.

Crediting, as we must, the district court’s logical, well-

supported factual findings, we hold that the responsible

1

In addition to IDOC, Edmo sued Corizon, Inc. (a private for-profit

corporation that provides health care to inmates in IDOC custody) and

various employees of IDOC and Corizon. The defendants briefed the

case jointly, and for ease of reference we refer to them collectively as

“the State.”

10 EDMO V. CORIZON

prison authorities have been deliberately indifferent to

Edmo’s gender dysphoria, in violation of the Eighth

Amendment. The record before us, as construed by the

district court, establishes that Edmo has a serious medical

need, that the appropriate medical treatment is GCS, and that

prison authorities have not provided that treatment despite

full knowledge of Edmo’s ongoing and extreme suffering

and medical needs. In so holding, we reject the State’s

portrait of a reasoned disagreement between qualified

medical professionals. We also emphasize that the analysis

here is individual to Edmo and rests on the record in this

case. We do not endeavor to project whether individuals in

other cases will meet the threshold to establish an Eighth

Amendment violation. The district court’s order entering

injunctive relief for Edmo is affirmed, with minor

modifications noted below.

Our opinion proceeds as follows. In Part I, we provide

background on gender dysphoria, the standard of care, and

the evidence considered and factual findings made by the

district court. Part II explains why this appeal complies with

the Prison Litigation Reform Act (“PLRA”) and is not moot.

In Part III, we turn to the gravamen of the appeal: Edmo’s

Eighth Amendment claim and showing of irreparable injury.

Part IV addresses the State’s challenges to the injunction’s

scope and narrows the injunction as to certain defendants.

Part V rejects the State’s objections to the procedure

employed by the district court. We conclude in Part VI.

EDMO V. CORIZON 11

I. Background 2

A. Gender Dysphoria and its Treatment

Transgender individuals have a “[g]ender identity”—a

“deeply felt, inherent sense” of their gender—that does not

align with their sex assigned at birth. 3 Am. Psychol. Ass’n,

Guidelines for Psychological Practice with Transgender

and Gender Nonconforming People, 70 Am. Psychologist

832, 834 (2015). Recent estimates suggest that

approximately 1.4 million transgender adults live in the

United States, or 0.6 percent of the adult population.

Andrew R. Flores et al., The Williams Inst., How Many

Adults Identify as Transgender in the United States?, at

2 (2016), http://williamsinstitute.law.ucla.edu/wp-content/

uploads/How-Many-Adults-Identify-as-Transgender-in-the-

United-States.pdf.

Gender dysphoria 4 is “[d]istress that is caused by a

discrepancy between a person’s gender identity and that

person’s sex assigned at birth (and the associated gender role

and/or primary and secondary sex characteristics).” World

Prof’l Ass’n for Transgender Health, Standards of Care for

the Health of Transsexual, Transgender, and Gender-

2

The following sections are derived from the district court’s factual

findings and the record on appeal.

3

At birth, infants are classified as male or female based on visual

observation of their external genitalia. This is a person’s “sex assigned

at birth,” but it may not be the person’s gender identity.

4

Until recently, the medical community commonly referred to

gender dysphoria as “gender identity disorder.” See Kosilek v. Spencer,

774 F.3d 63, 68 n.1 (1st Cir. 2014).

12 EDMO V. CORIZON

Nonconforming People 2 (7th ed. 2011) (hereinafter

“WPATH SOC”). The Fifth Edition of the American

Psychiatric Association’s Diagnostic and Statistical Manual

of Mental Disorders (“DSM-5”) sets forth two conditions

that must be met for a person to be diagnosed with gender

dysphoria. 5

First, there must be “[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

the following”:

(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”;

(5) “a strong desire to be treated as the other

gender”; or

5

Each expert in the case used these criteria to determine whether

Edmo has gender dysphoria.

EDMO V. CORIZON 13

(6) “a strong conviction that one has the

typical feelings and reactions of the other

gender.”

Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of

Mental Disorders 452 (5th ed. 2013) (hereinafter “DSM-5”).

Second, the person’s condition must be associated with

“clinically significant distress”—i.e., distress that impairs or

severely limits the person’s ability to function in a

meaningful way and has reached a threshold that requires

medical or surgical intervention, or both. Id. at 453, 458.

Not every transgender person has gender dysphoria, and not

every gender dysphoric person has the same medical needs.

Gender dysphoria is a serious but treatable medical

condition. Left untreated, however, it can lead to debilitating

distress, depression, impairment of function, substance use,

self-surgery to alter one’s genitals or secondary sex

characteristics, self-injurious behaviors, and even suicide.

The district court found that the World Professional

Association of Transgender Health Standards of Care for the

Health of Transsexual, Transgender, and Gender

Nonconforming People (“WPATH Standards of Care”) 6

“are the internationally recognized guidelines for the

treatment of individuals with gender dysphoria.” Edmo v.

Idaho Dep’t of Corr., 358 F. Supp. 3d 1103, 1111 (D. Idaho

2018). Most courts agree. See, e.g., De’lonta v. Johnson,

708 F.3d 520, 522–23 (4th Cir. 2013); Keohane v. Jones,

328 F. Supp. 3d 1288, 1294 (N.D. Fla. 2018), appeal filed,

6

The WPATH Standards of Care were formerly referred to as the

“Harry Benjamin Standards of Care” and were promulgated by WPATH

under its former name, the “Harry Benjamin International Gender

Dysphoria Association.” Kosilek, 774 F.3d at 70 & n.3.

14 EDMO V. CORIZON

No. 18-14096 (11th Cir. 2018); Norsworthy v. Beard, 87 F.

Supp. 3d 1164, 1170 (N.D. Cal.), appeal dismissed &

remanded, 802 F.3d 1090 (9th Cir. 2015); Soneeya v.

Spencer, 851 F. Supp. 2d 228, 231–32 (D. Mass. 2012). But

see Gibson v. Collier, 920 F.3d 212, 221 (5th Cir. 2019)

(“[T]he WPATH Standards of Care reflect not consensus,

but merely one side in a sharply contested medical debate

over [GCS].”); cf. Kosilek, 774 F.3d at 76–79 (recounting

testimony questioning the WPATH Standards of Care). And

many of the major medical and mental health groups in the

United States—including the American Medical

Association, the American Medical Student Association, the

American Psychiatric Association, the American

Psychological Association, the American Family Practice

Association, the Endocrine Society, the National

Association of Social Workers, the American Academy of

Plastic Surgeons, the American College of Surgeons, Health

Professionals Advancing LGBTQ Equality, the HIV

Medicine Association, the Lesbian, Bisexual, Gay and

Transgender Physician Assistant Caucus, and Mental Health

America—recognize the WPATH Standards of Care as

representing the consensus of the medical and mental health

communities regarding the appropriate treatment for

transgender and gender dysphoric individuals.

Each expert in this case relied on the WPATH Standards

of Care in rendering an opinion. As the State acknowledged

to the district court, the WPATH Standards of Care “provide

the best guidance,” and “are the best standards out there.”

“There are no other competing, evidence-based standards

that are accepted by any nationally or internationally

recognized medical professional groups.” Edmo, 358 F.

Supp. 3d at 1125.

EDMO V. CORIZON 15

“[B]ased on the best available science and expert

professional consensus,” the WPATH Standards of Care

provide “flexible clinical guidelines” “to meet the diverse

health care needs of transsexual, transgender, and gender

nonconforming people.” WPATH SOC at 1–2. Treatment

under the WPATH Standards of Care must be

individualized: “[w]hat helps one person alleviate gender

dysphoria might be very different from what helps another

person.” Id. at 5. “Clinical departures from the [WPATH

Standards of Care] may come about because of a patient’s

unique anatomic, social, or psychological situation; an

experienced health professional’s evolving method of

handling a common situation; a research protocol; lack of

resources in various parts of the world; or the need for

specific harm reduction strategies.” Id. at 2.

The WPATH Standards of Care identify the following

evidence-based treatment options for individuals with

gender dysphoria:

(1) “changes in gender expression and role

(which may involve living part time or full

time in another gender role, consistent with

one’s gender identity)”;

(2) “psychotherapy (individual, couple,

family, or group) for purposes such as

exploring gender identity, role, and

expression[,] addressing the negative impact

of gender dysphoria and stigma on mental

health[,] alleviating internalized

transphobia[,] enhancing social and peer

support[,] improving body image[,] or

promoting resilience”;

16 EDMO V. CORIZON

(3) “hormone therapy to feminize or

masculinize the body”; and

(4) “surgery to change primary and/or

secondary sex characteristics (e.g.,

breasts/chest, external and/or internal

genitalia, facial features, body contouring).”

Id. at 10. The WPATH Standards of Care state that many

individuals “find comfort with their gender identity, role,

and expression without surgery.” Id. at 54. For others,

however, “surgery is essential and medically necessary to

alleviate their gender dysphoria.” Id. That group cannot

achieve “relief from gender dysphoria . . . without

modification of their primary and/or secondary sex

characteristics to establish greater congruence with their

gender identity.” Id. at 55; see also Jae Sevelius & Valerie

Jenness, Challenges and Opportunities for Gender-

Affirming Healthcare for Transgender Women in Prison,

13 Int’l J. Prisoner Health 32, 36 (2017) (“Negative

outcomes such as genital self-harm, including autocastration

and/or autopenectomy, can arise when gender-affirming

surgeries are delayed or denied.”); George R. Brown &

Everett McDuffie, Health Care Policies Addressing

Transgender Inmates in Prison Systems in the United States,

15 J. Corr. Health Care 280, 287–88 (2009) (describing the

authors’ “firsthand knowledge of completed autocastration

and/or autopenectomy in six facilities in four states”).

The weight of opinion in the medical and mental health

communities agrees that GCS is safe, effective, and

medically necessary in appropriate circumstances. See, e.g.,

U.S. Dep’t of Health & Human Servs., No. A-13-87,

Decision No. 2576, (Dep’t Appeals Bd. May 30, 2014);

Randi Ettner, et al., Principles of Transgender Medicine and

EDMO V. CORIZON 17

Surgery 109–11 (2d ed. 2016); Jordan D. Frey, et al., A

Historical Review of Gender-Affirming Medicine: Focus on

Genital Reconstruction Surgery, 14 J. Sexual Med. 991, 991

(2017); Cynthia S. Osborne & Anne A. Lawrence, Male

Prison Inmates With Gender Dysphoria: When Is Sex

Reassignment Surgery Appropriate?, 45 Archives of Sexual

Behav. 1649, 1651–53 (2016); see also De’lonta, 708 F.3d

at 523 (“Pursuant to the Standards of Care, after at least one

year of hormone therapy and living in the patient’s identified

gender role, sex reassignment surgery may be necessary for

some individuals for whom serious symptoms persist. In

these cases, the surgery is not considered experimental or

cosmetic; it is an accepted, effective, medically indicated

treatment for [gender dysphoria].”).

The WPATH criteria for genital reconstruction surgery

in male-to-female patients include the following:

(1) “persistent, well documented gender

dysphoria”;

(2) “capacity to make a fully informed

decision and to consent for treatment”;

(3) “age of majority in a given country”;

(4) “if significant medical or mental health

concerns are present, they must be well

controlled”;

(5) “12 continuous months of hormone

therapy as appropriate to the patient’s gender

goals”; and

18 EDMO V. CORIZON

(6) “12 continuous months of living in a

gender role that is congruent with their

gender identity.”

WPATH SOC at 60. The parties’ dispute focuses on

whether Edmo satisfied the fourth and sixth criteria.

With respect to the fourth criterion, the WPATH

Standards of Care provide that coexisting medical or mental

health concerns unrelated to the person’s gender dysphoria

do not necessarily preclude surgery. Id. at 25. But those

concerns need to be managed prior to, or concurrent with,

treatment of a person’s gender dysphoria. Id. Coexisting

medical or mental health issues resulting from a person’s

gender dysphoria are not an impediment under the fourth

criterion. It may be difficult to determine, however, whether

mental or medical health concerns result from the gender

dysphoria or are unrelated.

The WPATH Standards of Care explain that the sixth

criterion—living for 12 months in an identity-congruent

role—is intended to ensure that the person experiences the

full range of “different life experiences and events that may

occur throughout the year.” Id. at 61. During that time, the

patient should present consistently in her desired gender

role. Id.

Scientific studies show that the regret rate for individuals

who undergo GCS is low, in the range of one to two percent.

See, e.g., Osborne & Lawrence, Male Prison Inmates With

Gender Dysphoria, 45 Archives of Sexual Behav. at 1660;

William Byne, et al., Report of the American Psychiatric

Association Task Force on Treatment of Gender Identity

Disorder, 41 Archives of Sexual Behav. 759, 780–81

(2012). The district court found, and the State does not

dispute on appeal, that Edmo does not have any of the risk

EDMO V. CORIZON 19

factors that would make her likely to regret GCS. See Edmo,

358 F. Supp. 3d at 1121.

The WPATH Standards of Care apply equally to all

individuals “irrespective of their housing situation” and

explicitly state that health care for transgender individuals

“living in an institutional environment should mirror that

which would be available to them if they were living in a

non-institutional setting within the same community.”

WPATH SOC at 67. The next update to the WPATH

Standards of Care will likewise apply equally to incarcerated

persons. The National Commission on Correctional Health

Care (“NCCHC”), a leading professional organization in

health care delivery in the correctional context, endorses the

WPATH Standards of Care as the accepted standards for the

treatment of transgender prisoners.

In summary, the broad medical consensus in the area of

transgender health care requires providers to individually

diagnose, assess, and treat individuals’ gender dysphoria,

including for those individuals in institutionalized

environments. Treatment can and should include GCS when

medically necessary. Failure to follow an appropriate

treatment plan can expose transgender individuals to a

serious risk of psychological and physical harm. The State

does not dispute these points; it contends that GCS is not

medically necessary for Edmo.

B. Edmo’s Treatment

Edmo is a transgender woman in IDOC custody. Her sex

assigned at birth was male, but she identifies as female. In

her words, “my brain typically operates female, even though

my body hasn’t corresponded with my brain.”

20 EDMO V. CORIZON

Edmo has been incarcerated since pleading guilty in

2012 to sexual abuse of a 15-year-old male at a house party.

Edmo was 21 years old at the time of the criminal offense.

Edmo is currently incarcerated at the Idaho State

Correctional Institution (“ISCI”). At the time of the

evidentiary hearing, she was 30 years old and due to be

released from prison in 2021.

Edmo has viewed herself as female since age 5 or 6. She

struggled with her gender identity as a child and teenager,

presenting herself intermittently as female, but around age

20 or 21 she began living fulltime as a woman.

Although she identified as female from an early age,

Edmo first learned the term “gender dysphoria” and the

contours of that diagnosis around the time of her

incarceration. Shortly thereafter, Corizon psychiatrist

Dr. Scott Eliason diagnosed her with “gender identity

disorder,” now referred to as gender dysphoria. Corizon

psychologist Dr. Claudia Lake confirmed that diagnosis.

While incarcerated, Edmo has changed her legal name to

Adree Edmo and the sex on her birth certificate to “female”

to affirm her gender identity. Throughout her incarceration,

Edmo has consistently presented as female, despite receiving

many disciplinary offense reports for doing so. For example,

when able to do so, Edmo has worn her hair in feminine

hairstyles and worn makeup, for which she has received

multiple disciplinary offense reports. 7 Medical providers

have documented Edmo’s feminine presentation since 2012.

7

Before the evidentiary hearing, Edmo tried to receive access to

female commissary items, such as women’s underwear. Most of her

requests were denied. On the eve of the evidentiary hearing, IDOC

EDMO V. CORIZON 21

Neither the parties nor their experts dispute that Edmo

suffers from gender dysphoria. That dysphoria causes Edmo

to feel “depressed,” “disgusting,” “tormented,” and

“hopeless.”

To alleviate Edmo’s gender dysphoria, prison officials

have, since 2012, provided hormone therapy. Edmo has

followed and complied with her hormone therapy regimen,

which helps alleviate her gender dysphoria to some extent.

The hormones “clear[] [her] mind” and have resulted in

breast growth, body fat redistribution, and changes in her

skin. Today, Edmo is hormonally confirmed, which means

that she has the hormones and secondary sex characteristics

(characteristics, such as women’s breasts, that appear during

puberty but are not part of the reproductive system) of an

adult female. Edmo has gained the maximum physical

changes associated with hormone treatment.

Hormone therapy has not completely alleviated Edmo’s

gender dysphoria. Edmo continues to experience significant

distress related to gender incongruence. Much of that

distress is caused by her male genitalia. Edmo testified that

she feels “depressed, embarrassed, [and] disgusted” by her

male genitalia and that this is an “everyday reoccurring

thought.” Her medical records confirm her disgust, noting

repeated efforts by Edmo to purchase underwear to keep, in

Edmo’s words, her “disgusting penis” out of sight.

In addition to her gender dysphoria, Edmo suffers from

major depressive disorder with anxiety and drug and alcohol

addiction, although her addiction has been in remission

amended its policy concerning the treatment of gender dysphoric

prisoners to increase transgender women’s access to female commissary

items.

22 EDMO V. CORIZON

while incarcerated. Edmo has taken her prescribed

medications for depression and anxiety. Prison officials

have also provided Edmo mental health treatment to help her

work through her serious underlying mental health issues

and a pre-incarceration history of trauma, abuse, and suicide

attempts. Edmo sees her psychiatrist when scheduled. But

Edmo does not see her treating clinician, Krina Stewart,

because Edmo does not believe Stewart is qualified to treat

her gender dysphoria. Edmo has attended group therapy

sessions inconsistently.

In September 2015, Edmo attempted to castrate herself

for the first time using a disposable razor blade. 8 Before

doing so, she left a note to alert officials that she was not

“trying to commit suicide,” and was instead “only trying to

help [her]self.” Edmo did not complete the castration,

though she continued to report thoughts of self-castration in

the following months.

On April 20, 2016, Dr. Eliason evaluated Edmo for GCS.

At the time, IDOC’s policy concerning the treatment of

gender dysphoric prisoners provided that GCS “will not be

considered for individuals within [IDOC], unless determined

medically necessary by” the treating physician. 9 Corizon’s

policy does not mention GCS.

In his evaluation, Dr. Eliason noted that Edmo reported

she was “doing alright.” He also noted that Edmo had been

on hormone replacement therapy for the last year and a half,

but that she felt she needed more. He reported that Edmo

8

She had previously reported thoughts of self-castration to

clinicians.

9

IDOC revised its policy shortly before the evidentiary hearing, but

its revised policy contains functionally identical language.

EDMO V. CORIZON 23

had stated that hormone replacement therapy helped

alleviate her gender dysphoria, but she remained frustrated

with her male anatomy.

Dr. Eliason indicated that Edmo appeared feminine in

demeanor and interaction style. He also indicated that Edmo

had previously attempted to “mutilate her genitalia” because

of the severity of her distress. Dr. Eliason later testified that,

at the time of his evaluation, he felt that Edmo’s gender

dysphoria “had risen to another level,” as evidenced by her

self-castration attempt.

But Dr. Eliason also flagged that he had spoken to prison

staff about Edmo’s behavior and they explained it was

“notable for animated affect and no observed distress.” He

similarly noted that he had personally observed Edmo and

did not see significant dysphoria; instead, she “looked

pleasant and had a good mood.”

As to GCS, Dr. Eliason explained in his notes that while

medical necessity for GCS is “not very well defined and is

constantly shifting,” in his view, GCS would be medically

necessary in at least three situations: (1) “congenital

malformations or ambiguous genitalia,” (2) “severe and

devastating dysphoria that is primarily due to genitals,” or

(3) “some type of medical problem in which endogenous

sexual hormones were causing severe physiological

damage.” Dr. Eliason concluded that Edmo “does not meet

any of those . . . criteria” and, for that reason, GCS is not

medically necessary for her.

Dr. Eliason instead concluded that hormone therapy and

supportive counseling suffice to treat Edmo’s gender

dysphoria for the time being, despite recognizing that Edmo

had attempted self-castration on that regimen. Dr. Eliason

24 EDMO V. CORIZON

indicated that he would continue to monitor and assess

Edmo.

Dr. Eliason staffed Edmo’s evaluation with Dr. Jeremy

Stoddart, Dr. Murray Young, and Jeremy Clark, who all

agreed with his assessment. They did not observe Edmo;

rather, they agreed with Dr. Eliason’s recommended

treatment as he presented it to them. The record is sparse on

the qualifications of Dr. Stoddart and Dr. Young, but Clark

has never personally treated anyone with gender dysphoria

and was not qualified under IDOC policy to assess whether

GCS would be appropriate for Edmo.

Dr. Eliason also discussed his evaluation with IDOC’s

Management and Treatment Committee (“MTC”), a multi-

disciplinary team composed of medical providers, mental

health clinicians, IDOC’s Chief Psychologist, and prison

leadership. The MTC meets periodically to evaluate and

address the unique medical, mental health, and housing

needs of prisoners with gender dysphoria. The committee

“does not make any individual treatment decisions

regarding” treatment for inmates with gender dysphoria.

“Those determinations are made by the individual clinicians

or the medical staff employed by Corizon.” The MTC

agreed with Dr. Eliason’s assessment.

Although not mentioned in his April 20, 2016 notes,

Dr. Eliason testified at the evidentiary hearing that he

considered the WPATH Standards of Care when

determining Edmo’s treatment. Citing those standards,

Dr. Eliason testified that he did not believe GCS was

appropriate for two reasons: (1) because mental health

issues separate from Edmo’s gender dysphoria were not

“fully in adequate control” and (2) because Edmo had not

lived in her identified gender role for 12 months outside of

prison. He explained that Edmo needed to experience

EDMO V. CORIZON 25

“living as a woman” around “her real social network – her

family and friends on the outside” so that she could

“determine whether or not she felt like that was her real

identity.”

Edmo was never evaluated for GCS again, but the MTC

considered her gender dysphoria and treatment plan during

later meetings. The MTC continues to believe that GCS is

not medically necessary or appropriate for Edmo.

In December 2016, Edmo tried to castrate herself for the

second time. A medical note from the incident reports that

Edmo said she no longer wanted her testicles. Edmo

reported to medical providers that she was “feeling

angry/frustrated that [she] was not receiving the help desired

related to [her] gender dysphoria. Inmate Edmo’s actions

were reported as a method to stop/cease testosterone

production in Edmo’s body. Edmo denied suicidal ideation

. . . .”

Edmo’s second attempt was more successful than the

first. She was able to open her testicle sac with a razor blade

and remove one testicle. She abandoned her attempt,

however, when there was too much blood to continue. She

then sought medical assistance and was transported to a

hospital, where her testicle was repaired. Edmo was

receiving hormone therapy both times she attempted self-

castration.

Edmo testified that she was disappointed in herself for

coming so close but failing to complete her self-castration

attempts. She also testified that she continues to actively

think about self-castration. To avoid acting on those

thoughts and impulses, Edmo “self-medicat[es]” by cutting

her arms with a razor. She says that the physical pain helps

26 EDMO V. CORIZON

to ease the “emotional torment” and mental anguish her

gender dysphoria causes her.

Edmo further testified that she expects GCS to help

alleviate some of her gender dysphoria. In particular, she

testified that she expects GCS to help her avoid having “as

much depression about myself and my physical body. I

don’t think I will be so anxious that people are always

knowing I’m different . . . .” Edmo recognizes, however,

that GCS “is not a fix-all”: “[i]t’s not a magic operation. . . .

I’m still going to have to face the same stressors that we all

face in everyday life . . . .”

C. Initiation of this Action

Edmo filed a pro se complaint on April 6, 2017. She also

moved for a temporary restraining order, a preliminary

injunction, and the appointment of counsel.

Edmo’s motion for appointment of counsel was granted

in part, and counsel for Edmo appeared in June and August

2017. Counsel withdrew Edmo’s pro se motion for

preliminary injunction shortly thereafter.

On September 1, 2017, Edmo filed an amended

complaint asserting claims under 42 U.S.C. § 1983, the

Eighth Amendment, the Fourteenth Amendment, the

Americans with Disabilities Act, the Affordable Care Act,

and for common law negligence. She named as defendants

IDOC, Henry Atencio (Director of IDOC), Jeff Zmuda

(Deputy Director of IDOC), Howard Keith Yordy (former

Warden of ISCI), Dr. Richard Craig (Chief Psychologist at

ISCI), Rona Siegert (Health Services Director at ISCI),

Corizon, Dr. Eliason, Dr. Young, and Dr. Catherine

Whinnery (Corizon employee).

EDMO V. CORIZON 27

Through counsel, Edmo filed a renewed motion for a

preliminary injunction on June 1, 2018. Among other relief,

Edmo sought an order requiring the State to provide her with

a referral to a qualified surgeon and access to GCS.

The State moved to extend the time to respond to Edmo’s

motion. After a status conference, the district court set an

evidentiary hearing for October 10, 11, and 12, 2018. The

court permitted the parties to undertake four months of

extensive fact and expert discovery in preparation for the

hearing.

D. The Evidentiary Hearing

At the evidentiary hearing, each side had eight hours to

present its case. The district court heard live testimony from

seven witnesses over three days. It also considered

thousands of pages of exhibits, including Edmo’s medical

records. With the parties’ agreement, the court also

permitted the State to submit declarations in lieu of live

testimony and permitted Edmo to impeach the declarations

with deposition testimony.

At the outset of the hearing, the district court noted that

“[w]e’re here on a hearing for a temporary injunction,” but

it explained that “it’s hard for me to envision this hearing

being anything but a hearing on a final injunction[,] at least

as to” the injunctive relief ordering GCS. The court stated

that it was unsure whether that made a difference, and it

asked the parties to address at some point whether the

hearing was for a preliminary injunction or a permanent

injunction. Notably, the State did not do so.

The district court heard testimony from three percipient

witnesses: Edmo, Dr. Eliason (the Corizon physician), and

Jeremy Clark (an IDOC clinician who did not meet IDOC’s

28 EDMO V. CORIZON

criteria to assess Edmo for GCS). Their relevant testimony

is largely recounted above.

It also heard testimony from four expert witnesses, two

each for Edmo and the State. Dr. Randi Ettner, Ph.D. in

psychology, testified first for Edmo. Dr. Ettner is one of the

authors of the current (seventh) version of the WPATH

Standards of Care. She has been a WPATH member since

1993 and chairs its Institutionalized Persons Committee. Dr.

Ettner has authored or edited many peer-reviewed

publications on the treatment of gender dysphoria and

transgender health care more broadly, including the leading

textbook used in medical schools on the subject. She also

trains medical and mental health providers on treating people

with gender dysphoria. Dr. Ettner has been retained as an

expert witness on gender dysphoria and its treatment in

many court cases, and she has been appointed as an

independent expert by one federal court to evaluate an

incarcerated person for GCS.

Dr. Ettner has evaluated, diagnosed, and treated between

2,500 and 3,000 individuals with gender dysphoria. She has

referred about 300 people for GCS. She has also refused to

recommend surgery for some patients who have requested it.

She believes that not everyone who has gender dysphoria

needs GCS. Dr. Ettner also has “[e]xtensive experience”

treating and providing post-operative care for patients who

have undergone GCS.

Dr. Ettner has assessed approximately 30 incarcerated

individuals with gender dysphoria for GCS and other

medical care, but she has not treated incarcerated patients.

She has not worked in a prison and she is not a Certified

Correctional Healthcare Professional.

EDMO V. CORIZON 29

Based on her evaluation of Edmo and a review of

Edmo’s medical records, Dr. Ettner diagnosed Edmo with

gender dysphoria, depressive disorder, anxiety, and suicidal

ideation. In Dr. Ettner’s opinion, GCS is medically

necessary for Edmo and should be immediately performed.

She explained that most patients with gender dysphoria do

not require GCS, but Edmo requires it because hormone

therapy has been inadequate for her and Edmo has attempted

to remove her own testicles. Dr. Ettner further explained that

GCS would give Edmo congruent genitalia, eliminating the

severe distress Edmo experiences due to her male anatomy.

Dr. Ettner further opined that Edmo meets the WPATH

criteria for GCS. She explained that Edmo has “persistent

and well-documented long-standing gender dysphoria”;

Edmo “has no thought disorders and no impaired reality

testing”; Edmo is the age of majority in this country;

although Edmo has depression and anxiety, those conditions

do not “impair her ability to undergo surgery” because they

are “as controlled as [they] can be”; Edmo has had six years

of hormone therapy; and Edmo has lived for more than one

year “as a woman to the best of her ability in a male prison.”

More specifically, as to the fourth criterion, Dr. Ettner

opined that Edmo does not have mental health concerns that

would preclude GCS. She explained that Edmo’s depression

and anxiety are as “controlled as can be” because Edmo “is

taking the maximum amount of medication that controls

depression.” Dr. Ettner noted that Edmo has complied with

taking her prescribed medications and that psychotherapy is

not “a precondition for surgery” under the WPATH

Standards of Care. She also flagged that Edmo has the

capacity to comply with her postsurgical treatment, as

evidenced by her compliance with her hormone therapy to

date.

30 EDMO V. CORIZON

As to the clinical significance of Edmo’s self-castration

attempts and cutting behaviors, Dr. Ettner explained that

neither behavior indicates that Edmo has inadequately

controlled mental health concerns. Rather, those behaviors

indicate “the need for treatment for gender dysphoria.”

Dr. Ettner explained that

when an individual who is not psychotic or

delusional attempts what we call surgical

self-treatment – because we don’t regard

removal of the testicles or attempted removal

of the testicles as either mutilation or self-

harm – we regard it as an intentional attempt

to remove the target organ that produces

testosterone, which, in fact, is the cure for

gender dysphoria.

In Dr. Ettner’s opinion, Edmo’s depression and anxiety “will

be attenuated post surgery.”

Dr. Ettner opined that Edmo satisfies the sixth criterion

because she has lived “as a woman to the best of her ability

in a male prison.” Dr. Ettner based her opinion on Edmo’s

“appearance . . . , her disciplinary records, which indicated

that she had attempted to wear her hair in a feminine

hairstyle and to wear makeup even though that was against

the rules and she was – received some sort of disciplinary

action for that, and her – the way that she was receiving

female undergarments and had developed the stigma of

femininity, the secondary sex characteristics, breast

development, et cetera.”

Dr. Ettner opined that if Edmo does not receive GCS,

“[t]he risks would be, as typical in inadequately treated or

untreated gender dysphoria, either surgical self-treatment,

emotional decompensation, or suicide.” Dr. Ettner

EDMO V. CORIZON 31

explained that Edmo “is at particular risk of suicide given

that she has a high degree of suicide ideation.” If, on the

other hand, Edmo receives surgery, Dr. Ettner opined that

[i]t would eliminate the gender dysphoria. It

would provide a level of wellbeing that she

hasn’t had previously. It would eliminate

80 percent of the testosterone in her body,

necessitating a lower dose of hormones going

forward, which would be particularly helpful

given that she has elevated liver enzymes.

And it would, I believe, eliminate much of the

depression and the attendant symptoms that

she is experiencing.

Dr. Ryan Gorton, M.D., also testified for Edmo.

Dr. Gorton is an emergency medicine physician. He also

works pro bono at a clinic serving uninsured patients or those

with Medicare or Medicaid. Many of those patients have

mental health conditions or have been in prison. He has

published peer-reviewed articles on the treatment of gender

dysphoria, and he has been qualified as an expert witness in

cases involving transgender health care. Dr. Gorton also

provides training on transgender health care issues to many

groups, is a member of WPATH, and serves on WPATH’s

Transgender Medicine and Research Committee and its

Institutionalized Persons Committee.

Dr. Gorton has been the primary care physician for about

400 patients with gender dysphoria. At the time of the

evidentiary hearing, Dr. Gorton was treating approximately

100 patients with gender dysphoria. Dr. Gorton has assessed

patients for gender dysphoria, initiated and monitored

hormone treatment, referred patients for mental health

treatment, and determined the appropriateness of GCS. At

32 EDMO V. CORIZON

the time of the evidentiary hearing, Dr. Gorton was

providing follow-up care for about 30 patients who had

vaginoplasty. Dr. Gorton has no experience treating

transgender inmates and is not a Certified Correctional

Healthcare Professional.

Based on his review of Edmo’s medical records and his

in-person evaluation of Edmo, Dr. Gorton opined that GCS

is medically necessary for Edmo and that she meets the

WPATH criteria for GCS. He explained that Edmo has

“persistent well-documented gender dysphoria,” as shown in

her prison medical records; she has the capacity “to make a

fully informed decision and to consent for treatment”

because “she didn’t seem at all impaired in her decision-

making capacity”; she is the age of majority; she has

depression and anxiety, “but they are not to a level that

would preclude her getting [GCS]”; she had 12 consecutive

months of hormone therapy; and she has been living in her

“target gender role . . . despite an environment that’s very

hostile to that and some negative consequences that she has

experienced because of that.”

Dr. Gorton further opined that if Edmo “is not provided

surgery, there is a very substantial chance she will try to

attempt self-surgery again. And that’s especially worrisome

given her attempts have been progressive. . . . So I think she

might be successful” on her next attempt. He predicted that

there is little chance that Edmo’s gender dysphoria will

improve without surgery. Conversely, Dr. Gorton

anticipated that Edmo is unlikely to regret surgery because

“her gender dysphoria is very genital-focused” and regret

rates among GCS patients are very low.

Dr. Gorton also opined that Edmo’s self-castration

attempts demonstrate “that she has severe genital-focused

gender dysphoria and that she is not getting the medically

EDMO V. CORIZON 33

necessary treatment to alleviate that.” He elaborated that

Edmo’s depression and anxiety are not driving Edmo’s self-

castration attempts: “there [are] a lot of people with

depression and anxiety who don’t remove their testicles.”

Finally, Dr. Gorton criticized Dr. Eliason’s evaluation of

Edmo. He explained that he disagreed with Dr. Eliason’s

conclusion that Edmo does not need GCS and he also

disagreed with the three “criteria” Dr. Eliason gave for when

GCS would be necessary. Dr. Gorton criticized Dr.

Eliason’s first criterion—that GCS could be needed where

there is “congenital malformation or ambiguous genitalia”—

because that situation “isn’t even germane to transgender

people”; rather, it relates to “people with intersex

conditions.” As to the second criterion—that GCS could be

needed when a patient is suffering from “severe and

devastating gender dysphoria that is primarily due to

genitals”—Dr. Gorton pointed out that the WPATH

Standards of Care for surgery require only “clear and

significant dysphoria.” And even applying Dr. Eliason’s

higher bar, Dr. Gorton explained that Edmo would still

qualify for GCS because she has twice attempted self-

castration, demonstrating “severe genital-focused

dysphoria.” Finally, Dr. Gorton characterized Dr. Eliason’s

third criterion—that GCS could be needed in situations when

“endogenous sexual hormones were causing severe

physiological damage”—as “bizarre.” Dr. Gorton could not

conjure “a clinical circumstance where that would be the

case that your hormones that your body produces are

attacking you . . . . I just don’t understand what [Dr. Eliason]

is talking about there.”

Dr. Keelin Garvey, M.D., testified for the State.

Dr. Garvey is a psychiatrist and Certified Correctional

Healthcare Professional. As the former Chief Psychiatrist of

34 EDMO V. CORIZON

the Massachusetts Department of Corrections, Dr. Garvey

chaired the Gender Dysphoria Treatment Committee. She

directly treated a “couple of patients” with gender dysphoria

earlier in her career as Deputy Medical Director, but she has

not done so in recent years. Prior to evaluating Edmo, Dr.

Garvey had never evaluated a patient in person to determine

whether that person needed GCS. Dr. Garvey has never

recommended a patient for GCS, and she has not done

follow-up care with a person who has received GCS.

Based on her evaluation of Edmo and a review of

Edmo’s medical records, Dr. Garvey diagnosed Edmo with

gender dysphoria, major depressive disorder, alcohol use

disorder, stimulant use disorder, and opioid use disorder.

She explained that the latter three are in remission.

Relying on the WPATH Standards of Care, Dr. Garvey

opined that GCS is not medically necessary for Edmo. 10 Dr.

Garvey first explained that Edmo does not meet the first

WPATH Standards of Care criterion—“persistent, well

documented gender dysphoria”—because of a lack of

evidence in pre-incarceration medical records that Edmo

presented as female before her time in prison. Dr. Garvey

acknowledged, however, that Edmo has been presenting as

female since 2012 and that she has been diagnosed with

gender dysphoria since that time.

Dr. Garvey then explained that Edmo does not meet the

fourth criterion—“medical/mental health concerns must be

well controlled”—because Edmo “is actively self-injuring.”

Dr. Garvey elaborated that “self-injury in any form is never

10

Dr. Garvey testified that she relies on the WPATH Standards of

Care and the NCCHC guidelines adopting those standards when treating

inmates with gender dysphoria.

EDMO V. CORIZON 35

considered a healthy or productive coping mechanism” and

that she would like to see Edmo “develop further coping

skills that she would be able to use following surgery so that

she is not engaging in self-injury after surgery.” Dr.

Garvey’s concern is that GCS is a “stressful undertaking”

and Edmo lacks “effective coping strategies” to deal with the

stress.

Finally, Dr. Garvey testified that Edmo does not meet the

sixth criterion—“12 continuous months of living in a gender

role that is congruent with gender identity”—because Edmo

has not presented as female outside of prison and “there [are]

challenges to using her time in a men’s prison as this real-

life experience because it doesn’t offer her the opportunity

to actually experience all those things she is going to go

through on the outside.”

Dr. Joel Andrade, Ph.D. in social work, also testified for

the State. He is a licensed clinical social worker and is a

Certified Correctional Healthcare Professional with an

emphasis in mental health. Dr. Andrade has over a decade

of experience providing and supervising the provision of

correctional mental health care, including directing and

overseeing the treatment of inmates diagnosed with gender

dysphoria in the custody of the Massachusetts Department

of Corrections in his roles as clinical director, chair of the

Gender Dysphoria Supervision Group, and member of the

Gender Dysphoria Treatment Committee.

As a member of the Gender Dysphoria Treatment

Committee, Dr. Andrade recommended GCS for two

inmates. But the recommendations were contingent on the

inmates living in a women’s prison for approximately

12 months before the surgery. The Massachusetts

Department of Corrections, like IDOC, houses prisoners

36 EDMO V. CORIZON

according to their genitals, so the inmates had not been

moved (nor had their surgery occurred).

Dr. Andrade has never directly treated patients with

gender dysphoria, nor has he been a treating clinician for a

patient who has had GCS. His “experience with gender

dysphoria comes almost exclusively from [his] participation

on the Massachusetts Department of Corrections[’] Gender

Dysphoria Treatment Committee and Supervision Group.”

Dr. Andrade did not qualify, under the IDOC gender

dysphoria policy in effect at the time of his assessment of

Edmo, to assess a person for GCS because he is neither a

psychologist nor a physician.

Based on his evaluation of Edmo and a review of her

medical records, Dr. Andrade diagnosed Edmo with “major

depressive disorder, recurrent, in partial remission,”

“generalized anxiety disorder,” “alcohol use disorder,

severe,” and gender dysphoria. Dr. Andrade also diagnosed

Edmo with borderline personality disorder. The district

court did not credit this diagnosis, however, because no other

person (including the State’s other expert, Dr. Garvey) has

ever diagnosed Edmo with borderline personality disorder

and Dr. Andrade was unable to identify his criteria for this

diagnosis. Edmo, 358 F. Supp. 3d at 1120. The record

amply supports the district court’s finding in this respect.

Dr. Andrade opined that Edmo does not meet the

WPATH criteria for GCS. He explained that, based on his

review of Edmo’s pre-incarceration records, Edmo did not

present as female or discuss her gender dysphoria before

incarceration. Dr. Andrade testified that he would like to see

Edmo live as female outside of a correctional setting before

receiving GCS, or, at the least, live in a women’s prison first.

IDOC, however, houses prisoners according to their

genitals. Dr. Andrade also explained that Edmo needs to

EDMO V. CORIZON 37

work through some of her trauma, particularly sexual abuse

that she suffered, and other mental health concerns before

receiving surgery. Dr. Andrade opined that Edmo’s mental

health issues will not be cured by GCS.

At the close of the hearing, the district court reiterated

that it was unsure “how we can hear [Edmo’s request for

GCS] on a preliminary injunction. . . . [I]f I order it, then it’s

done.” The court further suggested that the request for GCS

could “only be resolved in a final hearing” and noted that it

had, in effect, “treated this hearing as [a] final hearing on the

issue.”

The court, as it had done at the outset of the hearing,

asked the parties to address whether the hearing was for a

preliminary or permanent injunction. In response, Edmo

contended that the court could order GCS in a preliminary

injunction. The State did not address the court’s question. It

instead contended that the standard for a mandatory

injunction—which can be preliminary or permanent—

should apply.

E. The District Court’s Decision

The district court rendered its decision on December 13,

2018. After recounting the evidence and making extensive

factual findings, the district court began its analysis by

noting that it was unsure whether the standard for a

preliminary injunction or the standard for a permanent

injunction applied. The court noted that “the nature of the

relief requested in this case, coupled with the extensive

evidence presented by the parties over a 3-day evidentiary

hearing, [may have] effectively converted these proceedings

into a final trial on the merits of the plaintiff’s request for

permanent injunctive relief.” Edmo, 358 F. Supp. 3d at 1122

n.1. It also indicated that “both parties appear to have treated

38 EDMO V. CORIZON

the evidentiary hearing” as a final trial on the merits. Id. The

district court explained that the difference was immaterial,

however, because Edmo was entitled to relief under either

standard. Id.

On the merits, the district court concluded that Edmo had

established her Eighth Amendment claim. The district court

first held that Edmo suffers from gender dysphoria, which is

undisputedly “a serious medical condition.” Id. at 1124.

It then concluded that GCS is medically necessary to

treat Edmo’s gender dysphoria. See id. at 1124–26. In a

carefully considered, 45-page opinion, the district court

specifically found “credible the testimony of Plaintiff’s

experts Drs. Ettner and Gorton, who have extensive personal

experience treating individuals with gender dysphoria both

before and after receiving gender confirmation surgery,” and

who opined that GCS was medically necessary. Id. at 1125.

The court rejected the contrary opinions of the State’s

experts because “neither Dr. Garvey nor Dr. Andrade has

any direct experience with patients receiving gender

confirmation surgery or assessing patients for the medical

necessity of gender confirmation surgery,” and neither of the

State’s experts had meaningful “experience treating patients

with gender dysphoria other than assessing them for the

existence of the condition.” Id. The district court also noted

that the State’s “experts appear to misrepresent the WPATH

Standards of Care by concluding that Ms. Edmo, despite

presenting as female since her incarceration in 2012, cannot

satisfy the WPATH criteria because she has not presented as

female outside of the prison setting.” Id. As the district

court noted, “there is no requirement in the WPATH

Standards of Care that a patient live for twelve months in his

or her gender role outside of prison before becoming eligible

for” GCS. Id. (quotation omitted).

EDMO V. CORIZON 39

Finally, the district court explained that the State was

deliberately indifferent to Edmo’s gender dysphoria because

it “fail[ed] to provide her with available treatment that is

generally accepted in the field as safe and effective, despite

her actual harm and ongoing risk of future harm including

self-castration attempts, cutting, and suicidal ideation.” Id.

at 1126–27. The district court also stated that the evidence

“suggest[ed] that Ms. Edmo has not been provided gender

confirmation surgery because Corizon and IDOC have a de

facto policy or practice of refusing this treatment for gender

dysphoria to prisoners,” which amounts to deliberate

indifference. Id. at 1127.

After analyzing the merits, the district court concluded

that Edmo satisfied the other prerequisites to injunctive

relief. Id. at 1127–28. The district court found that, given

Edmo’s continuing emotional distress and self-castration

attempts, “Edmo is at serious risk of life-threatening self-

harm” if she does not receive GCS. Id. at 1128. The State,

on the other hand, had not shown that it would be harmed if

ordered to provide GCS, so the equities favored Edmo. Id.

Having concluded that Edmo was entitled to an

injunction, the court ordered the State “to provide Plaintiff

with adequate medical care, including gender confirmation

surgery.” Id. at 1129. It ordered the State to “take all actions

reasonably necessary to provide Ms. Edmo gender

confirmation surgery as promptly as possible and no later

than six months from the date of this order.” Id.

F. Appellate Proceedings

The State filed timely notices of appeal on January 9,

2019. It also asked the district court to stay its order pending

appeal. The district court denied the State’s motion on

March 4.

40 EDMO V. CORIZON

The State then filed in this court a motion to stay pending

appeal. A motions panel granted that motion. Edmo

subsequently moved to amend the stay to allow her to

undergo a previously scheduled pre-surgery consultation.

The motions panel granted that motion and amended the

stay.

On April 3, the State filed an “urgent motion” to dismiss

this appeal as moot. We indicated on April 5 that our court

would consider that motion with the merits, not on an urgent

basis.

After hearing oral argument on May 16, we ordered a

limited remand to the district court to clarify three points.

Relevant here, we asked the district court to clarify whether

it granted Edmo a permanent injunction in its December 13,

2018 order. The district court clarified that it “granted

permanent injunctive relief.” Edmo v. Idaho Dep’t of Corr.,

No. 1:17-CV-00151-BLW, 2019 WL 2319527, at *2 (D.

Idaho May 31, 2019). We also asked the district court to

clarify whether it had concluded that Edmo had succeeded

on the merits of her Eighth Amendment claim. The district

court responded that it had. Id.

Having received the district court’s response to our

limited remand order, we proceed to the issues on appeal.

The State challenges the district court’s grant of injunctive

relief to Edmo on multiple grounds. It contends that this

appeal is moot because the injunction did not comply with

the PLRA and has, for that reason, automatically expired. It

contends that the decision not to provide GCS to Edmo

reflects a difference of prudent medical opinion and cannot

support an Eighth Amendment claim. It contends that Edmo

will not be irreparably harmed absent an injunction. It

contends that the injunction is overbroad. Finally, it

contends that, to the extent the district court converted the

EDMO V. CORIZON 41

evidentiary hearing into a final trial on the merits of Edmo’s

request for GCS, it was provided inadequate notice and the

court violated its right to a jury trial.

II. Mootness

“We first address, as we must, the question of mootness

. . . .” Shell Offshore Inc. v. Greenpeace, Inc., 815 F.3d 623,

628 (9th Cir. 2016). An appeal is moot “[w]hen events

change such that the appellate court can no longer grant ‘any

effectual relief whatever to the prevailing party.’” Id.

(quoting City of Erie v. Pap’s A.M., 529 U.S. 277, 287

(2000)). In those circumstances, we “lack[] jurisdiction and

must dismiss the appeal.” Id.

The State contends that the injunction does not comply

with provisions of the PLRA and, for that reason, has

automatically expired under the terms of the statute.

Relevant here, the PLRA provides that a

court shall not grant or approve any

prospective relief unless the court finds that

such relief is narrowly drawn, extends no

further than necessary to correct the violation

of the Federal right, and is the least intrusive

means necessary to correct the violation of

the Federal right. The court shall give

substantial weight to any adverse impact on

public safety or the operation of a criminal

justice system caused by the relief.

18 U.S.C. § 3626(a)(1)(A). Courts often refer to this

provision as the “need-narrowness-intrusiveness” inquiry.

Graves v. Arpaio, 623 F.3d 1043, 1048 n.1 (9th Cir. 2010)

(per curiam) (quoting Pierce v. County of Orange, 526 F.3d

1190, 1205 (9th Cir. 2008)). The PLRA further provides that

42 EDMO V. CORIZON

any “[p]reliminary injunctive relief shall automatically

expire on the date that is 90 days after its entry, unless the

court makes the findings required under subsection (a)(1)

[quoted above] for the entry of prospective relief and makes

the order final before the expiration of the 90-day period.”

18 U.S.C. § 3626(a)(2).

The State contends that the district court did not make

the PLRA’s requisite need-narrowness-intrusiveness

findings or make its order final within 90 days, causing the

injunction to expire under 18 U.S.C. § 3626(a)(2).

Generally, the expiration of an injunction challenged on

appeal moots the appeal. See Kitlutsisti v. ARCO Alaska,

Inc., 782 F.2d 800, 801 (9th Cir. 1986); see also United

States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1228–29

(11th Cir. 2015). The State asserts separate, albeit

overlapping, contentions in their motion to dismiss this

appeal and in their briefing. We reject those arguments.

A. Need-Narrowness-Intrusiveness Findings

The State first contends that the district court did not

make the PLRA’s need-narrowness-intrusiveness findings,

causing the injunction to automatically expire and mooting

this appeal. 11 As we have explained in prior decisions, the

PLRA “has not substantially changed the threshold findings

and standards required to justify an injunction.” Gomez v.

Vernon, 255 F.3d 1118, 1129 (9th Cir. 2001). When

“determining the appropriateness of the relief ordered,”

appellate “courts must do what they have always done”:

11

We question whether the State’s need-narrowness-intrusiveness

challenge, properly understood, implicates mootness. But because the

result is the same, we accept the State’s framing for purposes of our

analysis.

EDMO V. CORIZON 43

“consider the order as a whole.” Armstrong v.

Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir. 2010).

District courts must make need-narrowness-intrusiveness

“findings sufficient to allow a ‘clear understanding’ of the

ruling,” but they need not “make such findings on a

paragraph by paragraph, or even sentence by sentence,

basis.” Id. (quotation omitted). “What is important, and

what the PLRA requires, is a finding that the set of reforms

being ordered—the ‘relief’—corrects the violations of

prisoners’ rights with the minimal impact possible on

defendants’ discretion over their policies and procedures.”

Id.

Here, the district court made the necessary need-

narrowness-intrusiveness findings. At the start of its

December 13, 2018 order, the district court explained that

any injunction must meet the PLRA’s need-narrowness-

intrusiveness requirement. See Edmo, 358 F. Supp. 3d at

1122. The district court then explained how the relief being

ordered, GCS, “corrects the violations of” Edmo’s rights.

See Armstrong, 622 F.3d at 1071. Specifically, the district

court explained that GCS is medically necessary to alleviate

Edmo’s gender dysphoria and that the State’s denial of GCS

amounts to deliberate indifference in violation of the Eighth

Amendment. See Edmo, 358 F. Supp. 3d at 1116–21, 1123–

27, 1129. The district court limited the relief ordered to have

“the minimal impact possible on [the State’s] discretion over

their policies and procedures.” See Armstrong, 622 F.3d at

1071. Specifically, the district court limited the relief to

“actions reasonably necessary” to provide GCS, cautioned

that its conclusion is based on “the unique facts and

circumstances presented” by Edmo, and noted that its

“decision is not intended, and should not be construed, as a

general finding that all inmates suffering from gender

dysphoria are entitled to [GCS].” Edmo, 358 F. Supp. 3d at

44 EDMO V. CORIZON

1110, 1129. Finally, the district court rejected the notion that

injunctive relief would have “any adverse impact on public

safety or the operation of a criminal justice system.”

18 U.S.C. § 3626(a)(1)(A). It explained that the State had

“made no showing that an order requiring them to provide”

GCS to Edmo “causes them injury.” Edmo, 358 F. Supp. 3d

at 1128. The district court’s order, considered as a whole,

made all the findings required by 18 U.S.C. § 3626(a)(1)(A)

and our precedent. See Armstrong, 622 F.3d at 1070.

B. Finality

The State next argues that the injunction has

automatically expired under the PLRA because the district

court did not make its order “final” within 90 days of

entering injunctive relief. See 18 U.S.C. § 3626(a)(2); see

also Sec’y, Fla. Dep’t of Corr., 778 F.3d at 1228–29

(holding that an appeal of a preliminary injunction was moot

because the district court “did not issue an order finalizing

its [preliminary-injunction] order,” and “[a]s a result, the

preliminary injunction expired by operation of law” 90 days

later). The PLRA provision cited by the State applies to

preliminary injunctive relief, not permanent injunctive

relief. See 18 U.S.C. § 3626(a)(2). The permanent

injunction that the district court entered has not expired. See

Edmo, 358 F. Supp. 3d at 1122 n.1 (concluding that Edmo is

“entitled to relief” under the permanent injunction standard);

see also Edmo, 2019 WL 2319527, at *2 (clarifying on

limited remand that the district court granted Edmo a

permanent injunction). It remains in place, albeit stayed.

EDMO V. CORIZON 45

There is a live controversy on appeal. 12 We accordingly

DENY the State’s motion to dismiss and proceed to the

merits of the appeal.

III. Challenges to the District Court’s Grant of

Injunctive Relief

An injunction is an “extraordinary remedy never

awarded as of right.” Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 24 (2008). “To be entitled to a permanent

injunction, a plaintiff must demonstrate: (1) actual success

on the merits; (2) that it has suffered an irreparable injury;

(3) that remedies available at law are inadequate; (4) that the

balance of hardships justify a remedy in equity; and (5) that

the public interest would not be disserved by a permanent

injunction.” 13 Indep. Training & Apprenticeship Program

12

Even construed as a preliminary injunction, the district court’s

December 13, 2018 order is not moot. On May 31, 2019, the district

court, incorporating its previous findings, renewed the injunction. See

Edmo, 2019 WL 2319527, at *2. Because the district court renewed the

injunction, we can consider its merits. See Mayweathers v. Newland,

258 F.3d 930, 935–36 (9th Cir. 2001) (holding that district courts may

renew preliminary injunctions under the PLRA while an appeal is

pending, and considering the merits of the renewed injunction). And we

have jurisdiction under 28 U.S.C. § 1292(a)(1) regardless of whether the

district court’s order is considered a preliminary or permanent

injunction. See Hendricks v. Bank of Am., N.A., 408 F.3d 1127, 1131

(9th Cir. 2005) (preliminary injunction); TransWorld Airlines, Inc. v.

Am. Coupon Exch., Inc., 913 F.2d 676, 680–81 (9th Cir. 1990)

(permanent injunction where the “district court retained jurisdiction to

determine damages” and to adjudicate a separate claim).

13

We agree with the State that the injunction is mandatory, as

opposed to prohibitory, because it requires the State to act. Based on that

distinction, the State argues that Edmo must satisfy a higher burden of

46 EDMO V. CORIZON

v. Cal. Dep’t of Indus. Relations, 730 F.3d 1024, 1032 (9th

Cir. 2013) (citing eBay Inc. v. MercExch., L.L.C., 547 U.S.

388, 391 (2006)).

We review for abuse of discretion the district court’s

decision to grant a permanent injunction. Ariz. Dream Act

Coal. v. Brewer, 855 F.3d 957, 965 (9th Cir. 2017). We

proof to be entitled to injunctive relief, and that the district court failed

to hold Edmo to that burden. On that point, we disagree.

The State errs by relying on cases that concern mandatory

preliminary injunctions. Because mandatory preliminary injunctions go

“well beyond simply maintaining the status quo [p]endente lite,” they are

“particularly disfavored” and “are not issued in doubtful cases.” Marlyn

Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879

(9th Cir. 2009) (alteration in original) (quoting Anderson v. United

States, 612 F.2d 1112, 1114–15 (9th Cir. 1980)). The calculus is

different in the context of permanent injunctions. A plaintiff must show

actual success on the merits, see Amoco Prod. Co. v. Village of Gambell,

480 U.S. 531, 546 n.12 (1987), so there is no concern that a mandatory

permanent injunction will upset the status quo only for a later trial on the

merits to show that the plaintiff was not entitled to equitable relief. As a

result, a plaintiff need not show that “extreme or very serious damage

will result,” as is required for mandatory preliminary injunctions.

As we have explained, the district court granted Edmo injunctive

relief under both the preliminary and permanent injunction standards.

See Edmo, 358 F. Supp. 3d at 1122 n.1; see also Edmo, 2019 WL

2319527, at *2. Because the standard for granting permanent injunctive

relief is higher (in that it requires actual success on the merits) and the

State contends in its opening brief that we should review the injunction

as a permanent injunction, we consider whether the district court erred

in granting Edmo permanent injunctive relief. But we would also affirm

under the mandatory preliminary injunction standard, because the district

court correctly applied the proper standard for mandatory preliminary

injunctive relief, and not the lower standard for prohibitory preliminary

injunctions. See Edmo, 358 F. Supp. 3d at 1122, 1128.

EDMO V. CORIZON 47

review “any determination underlying the grant of an

injunction by the standard that applies to that

determination.” Ting v. AT&T, 319 F.3d 1126, 1134–35 (9th

Cir. 2003). Accordingly, the district court’s factual findings

on Edmo’s Eighth Amendment claim are reviewed for clear

error. See Graves, 623 F.3d at 1048. Clear error exists if the

finding is “illogical, implausible, or without support in

inferences that may be drawn from the facts in the record.”

La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V.,

762 F.3d 867, 879 (9th Cir. 2014) (quoting Herb Reed

Enters., LLC v. Florida Entm’t Mgmt., Inc., 736 F.3d 1239,

1247 (9th Cir. 2013)). We review de novo the district court’s

“conclusion that the facts . . . demonstrate an Eighth

Amendment violation.” Hallett v. Morgan, 296 F.3d 732,

744 (9th Cir. 2002).

The State contends that the district court erred in

granting an injunction because (1) Edmo’s Eighth

Amendment claim fails and (2) Edmo has not shown that she

will suffer irreparable injury in the absence of an

injunction. 14 We disagree. We hold, based on the district

court’s factual findings, that Edmo established her Eighth

Amendment claim and that she will suffer irreparable

harm—in the form of ongoing mental anguish and possible

physical harm—if GCS is not provided.

A. The Merits of Edmo’s Eighth Amendment Claim

“[D]eliberate indifference to serious medical needs of

prisoners” violates the Eighth Amendment. Estelle,

429 U.S. at 104. Because “society takes from prisoners the

means to provide for their own needs,” Brown, 563 U.S.

14

Because the State does not contest the other injunction factors, we

do not address them.

48 EDMO V. CORIZON

at 510, the government has an “obligation to provide medical

care for those whom it is punishing by incarceration,”

Estelle, 429 U.S. at 103.

To establish a claim of inadequate medical care, a

prisoner must first “show a ‘serious medical need’ by

demonstrating that ‘failure to treat a prisoner’s condition

could result in further significant injury or the ‘unnecessary

and wanton infliction of pain.’” Jett v. Penner, 439 F.3d

1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith,

974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other

grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

Cir. 1997) (en banc)). Serious medical needs can relate to

“physical, dental and mental health.” Hoptowit v. Ray,

682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other

grounds by Sandin v. Conner, 515 U.S. 472 (1995).

The State does not dispute that Edmo’s gender dysphoria

is a sufficiently serious medical need to trigger the State’s

obligations under the Eighth Amendment. Nor could it.

Gender dysphoria is a “serious . . . medical condition” that

causes “clinically significant distress”—distress that impairs

or severely limits an individual’s ability to function in a

meaningful way. DSM-5 at 453, 458. As Edmo testified,

her gender dysphoria causes her to feel “depressed,”

“disgusting,” “tormented,” and “hopeless,” and it has caused

past efforts and active thoughts of self-castration. As this

and many other courts have recognized, Edmo’s gender

dysphoria is a sufficiently serious medical need to implicate

the Eighth Amendment. See Rosati v. Igbinoso, 791 F.3d

1037, 1039–40 (9th Cir. 2015); Kosilek, 774 F.3d at 86;

De’lonta, 708 F.3d at 525; Battista v. Clarke, 645 F.3d 449,

452 (1st Cir. 2011); Allard v. Gomez, 9 F. App’x 793, 794

(9th Cir. 2001); White v. Farrier, 849 F.2d 322, 325 (8th Cir.

1988); Meriwether v. Faulkner, 821 F.2d 408, 412 (7th Cir.

EDMO V. CORIZON 49

1987) (and cases cited therein); Norsworthy, 87 F. Supp. 3d

at 1187; Konitzer v. Frank, 711 F. Supp. 2d 874, 905 (E.D.

Wis. 2010).

If, as here, a prisoner establishes a sufficiently serious

medical need, that prisoner must then “show the [official’s]

response to the need was deliberately indifferent.” Jett,

439 F.3d at 1096. An inadvertent or negligent failure to

provide adequate medical care is insufficient to establish a

claim under the Eighth Amendment. Estelle, 429 U.S.

at 105–06; see also Farmer v. Brennan, 511 U.S. 825, 835

(1994) (“ordinary lack of due care” is insufficient to

establish an Eighth Amendment claim). In other words,

“[m]edical malpractice does not become a constitutional

violation merely because the victim is a prisoner.” Estelle,

429 U.S. at 106. To “show deliberate indifference, the

plaintiff must show that the course of treatment the [official]

chose was medically unacceptable under the circumstances

and that the [official] chose this course in conscious

disregard of an excessive risk to the plaintiff’s health.”

Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016)

(quoting Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir.

2012), overruled in part on other grounds by Peralta v.

Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc)).

1. The Medical Necessity of GCS for Edmo

The crux of the State’s appeal is that it provided adequate

and medically acceptable care to Edmo.

Accepted standards of care and practice within the

medical community are highly relevant in determining what

care is medically acceptable and unacceptable. See Allard v.

Baldwin, 779 F.3d 768, 772 (8th Cir. 2015); Henderson v.

Ghosh, 755 F.3d 559, 566 (7th Cir. 2014) (per curiam).

Typically, “[a] difference of opinion between a physician

50 EDMO V. CORIZON

and the prisoner—or between medical professionals—

concerning what medical care is appropriate does not

amount to deliberate indifference.” Snow, 681 F.3d at 987;

see also Gibson, 920 F.3d at 220. But that is true only if the

dueling opinions are medically acceptable under the

circumstances. See Toguchi v. Chung, 391 F.3d 1051, 1058

(9th Cir. 2004) (a mere “difference of medical opinion . . .

[is] insufficient, as a matter of law, to establish deliberate

indifference,” but not if the “chosen course of treatment ‘was

medically unacceptable under the circumstances’”

(alterations in original) (quoting Jackson v. McIntosh,

90 F.3d 330, 332 (9th Cir. 1996))).

“In deciding whether there has been deliberate

indifference to an inmate’s serious medical needs, we need

not defer to the judgment of prison doctors or

administrators.” Hunt v. Dental Dep’t, 865 F.2d 198, 200

(9th Cir. 1989). Nor does it suffice for “correctional

administrators wishing to avoid treatment . . . simply to find

a single practitioner willing to attest that some well-accepted

treatment is not necessary.” Kosilek, 774 F.3d at 90 n.12. In

the final analysis under the Eighth Amendment, we must

determine, considering the record, the judgments of prison

medical officials, and the views of prudent professionals in

the field, whether the treatment decision of responsible

prison authorities was medically acceptable.

Reviewing the record and the district court’s extensive

factual findings, we conclude that Edmo has established that

the “course of treatment” chosen to alleviate her gender

dysphoria “was medically unacceptable under the

circumstances.” Hamby, 821 F.3d at 1092 (quoting Snow,

681 F.3d at 988). This conclusion derives from the district

court’s factual findings, which are not “illogical,

implausible, or without support in inferences that may be

EDMO V. CORIZON 51

drawn from the facts in the record.” La Quinta Worldwide

LLC, 762 F.3d at 879 (quotation omitted).

In particular, and as we will explain, this is not a case of

dueling experts, as the State paints it. The district court

permissibly credited the opinions of Edmo’s experts that

GCS is medically necessary to treat Edmo’s gender

dysphoria and that the State’s failure to provide that

treatment is medically unacceptable. Edmo’s experts are

well-qualified to render such opinions, and they logically

and persuasively explained the necessity of GCS and applied

the WPATH Standards of Care—the undisputed starting

point in determining the appropriate treatment for gender

dysphoric individuals. On the other side of the coin, the

district court permissibly discredited the contrary opinions

of the State’s treating physician and medical experts. Those

individuals lacked expertise and incredibly applied (or did

not apply, in the case of the State’s treating physician) the

WPATH Standards of Care. In other words, the district court

did not clearly err in making its credibility determinations,

so it is not our role to reevaluate them. The credited

testimony establishes that GCS is medically necessary.

a. Expert Testimony

Turning first to the expert testimony offered, the district

court credited the testimony of Edmo’s experts that GCS is

medically necessary to treat Edmo’s gender dysphoria and

that the State’s failure to provide that treatment is medically

unacceptable. See Edmo, 358 F. Supp. 3d at 1120–21, 1125.

Dr. Ettner and Dr. Gorton opined that GCS is medically

necessary because Edmo’s current treatment has been

inadequate, as evidenced by her self-castration attempts.

They also opined that if Edmo does not receive GCS, there

is little chance that her gender dysphoria will improve and

she is at risk of committing self-surgery again, suicide, and

52 EDMO V. CORIZON

further emotional decompensation. On the other hand,

providing GCS to Edmo would, in the opinions of Dr. Ettner

and Dr. Gorton, align Edmo’s genitalia with her gender

identity, thereby eliminating the severe distress Edmo

experiences from her male genitalia.

In sharp contrast, the district court gave “virtually no

weight” to the opinions of the State’s experts. Edmo, 358 F.

Supp. 3d at 1126. Dr. Garvey and Dr. Andrade, who

purported to rely on the WPATH Standards of Care, opined

that GCS is not medically necessary for Edmo.

The district court did not err in crediting the testimony of

Edmo’s experts and discounting the testimony of the State’s

experts. Dr. Ettner and Dr. Gorton are well-qualified to

opine on the medical necessity of GCS. Both have

substantial experience treating individuals with gender

dysphoria. Dr. Ettner has evaluated, diagnosed, and treated

between 2,500 and 3,000 individuals with gender dysphoria,

while Dr. Gorton has been the primary care physician for

approximately 400 patients with gender dysphoria. Both

have substantial experience evaluating whether GCS is

medically necessary for patients. Dr. Ettner has evaluated

hundreds of people for GCS, referring approximately 300

while refusing others, and Dr. Gorton routinely determines

the appropriateness of GCS for patients. They also have

experience providing follow-up care for patients who have

undergone GCS. And both have published peer-reviewed

articles concerning the treatment of gender dysphoria.

The State’s experts, by contrast, have substantial

experience providing health care in institutional settings, but

lack meaningful experience directly treating people with

gender dysphoria. Dr. Garvey directly treated a “couple of

patients” with gender dysphoria early in her career, while

Dr. Andrade has never provided direct treatment for patients

EDMO V. CORIZON 53

with gender dysphoria. Moreover, prior to evaluating Edmo,

neither had ever evaluated someone in person to determine

the medical necessity of GCS. Relatedly, Dr. Garvey and

Dr. Andrade have never provided follow-up care for a person

who has received GCS. Indeed, Dr. Andrade did not even

qualify under IDOC policy to assess a person for GCS. And

neither Dr. Garvey nor Dr. Andrade has published a peer-

reviewed article concerning the treatment of gender

dysphoria.

Neither Dr. Ettner nor Dr. Gorton have treated prisoners

with gender dysphoria, nor are they Certified Correctional

Healthcare Professionals. But both serve on WPATH’s

Institutionalized Persons Committee, which “looks at the

care and the assessment of individuals who are incarcerated

and develops standards for treatment” of such individuals.

They are thus familiar with medical treatment in prison

settings. Moreover, Dr. Ettner has assessed approximately

30 incarcerated persons with gender dysphoria for GCS and

other medical care.

More to the point, the more relevant experience for

determining the medical necessity of GCS is having treated

individuals with gender dysphoria, having evaluated

individuals for GCS, and having treated them post-

operatively. Such experience lends itself to fundamental

knowledge of whether GCS is necessary and the potential

risks of providing or foregoing the surgery. Edmo’s experts

have the requisite experience; the State’s experts do not. For

that reason alone, the district court did not clearly err in

crediting the opinions of Edmo’s experts over those of the

State. 15 See Caro v. Woodford, 280 F.3d 1247, 1253 (9th

15

The State contends that neither Dr. Ettner nor Dr. Gorton was

qualified to offer expert opinions as to the appropriate medical care for

54 EDMO V. CORIZON

Cir. 2002) (explaining that we “must afford the District

Court considerable deference in its determination that the

witnesses were qualified to draw [their] conclusions”).

Independent of the experts’ qualifications, the district

court did not err in crediting the opinions of Edmo’s experts

over those of the State because aspects of Dr. Garvey’s and

Dr. Andrade’s opinions ran contrary to the established

standards of care in the area of transgender health care—the

WPATH Standards of Care—which they purported to

apply. 16 See Edmo, 358 F. Supp. 3d at 1125.

Edmo because neither is a psychiatrist. So far as we can discern, the

argument is that because a psychiatrist (Dr. Eliason) evaluated Edmo for

GCS, only other psychiatrists are qualified to opine as to the medical

necessity of GCS and to contradict his assessment. See Oral Arg.

at 10:00–10:30. We reject that contention. Edmo’s experts, as

explained, have significant experience evaluating patients for GCS—

precisely what Dr. Eliason did. On the basis of their medical experience

treating persons with gender dysphoria, they are well-qualified to render

an opinion on the medical necessity of GCS and whether failure to

provide the surgery is medically acceptable. See Fed. R. Evid. 702.

16

The State contends that the district court erred in requiring strict

adherence to the flexible WPATH Standards of Care and in concluding

that any deviation from those standards is medically unacceptable. But

the district court correctly recognized that the WPATH Standards of

Care are flexible, see Edmo, 358 F. Supp. 3d at 1111, and it appropriately

used them as a starting point to gauge the credibility of each expert’s

testimony, see id. at 1125–26. Tellingly, each expert for Edmo and the

State likewise used the WPATH Standards of Care as a starting point.

As the district court recognized: “There are no other competing,

evidence-based standards that are accepted by any nationally or

internationally recognized medical professional groups.” Id. at 1125.

And as the State acknowledged at the evidentiary hearing, the “WPATH

standards of care in the seventh edition do provide the best guidance”

and “are the best standards out there.” For these reasons, the WPATH

Standards of Care establish a useful starting point for analyzing the

EDMO V. CORIZON 55

For example, both Dr. Garvey and Dr. Andrade

expressed the view that Edmo does not meet the sixth

WPATH criterion, “12 continuous months of living in a

gender role that is congruent with gender identity.” WPATH

SOC at 60. They pointed out that Edmo has not presented

as female outside of prison and urged that she needs real-life

experiences in the community before undergoing GCS.

These opinions run head-on into the WPATH Standards

of Care. The WPATH standards, which the NCCHC

endorses as the accepted standards for the treatment of

transgender inmates, apply

in their entirety . . . to all transsexual,

transgender, and gender nonconforming

people, irrespective of their housing

situation. People should not be discriminated

against in their access to appropriate health

care based on where they live, including

institutional environments such as prisons

.... Health care for transsexual,

transgender, and gender nonconforming

people living in an institutional environment

should mirror that which would be available

to them if they were living in a non-

institutional setting within the same

community.

credibility and weight to be given to each expert’s opinion and whether

that opinion was consistent with established standards of care. The State

does not contest the district court’s finding that the WPATH Standards

of Care are the “internationally recognized guidelines for the treatment

of individuals with gender dysphoria.” Id. at 1111. They are the gold

standard on this issue.

56 EDMO V. CORIZON

All elements of assessment and treatment as

described in the [Standards of Care] can be

provided to people living in institutions.

Access to these medically necessary

treatments should not be denied on the basis

of institutionalization or housing

arrangements.

WPATH SOC at 67. Dr. Garvey and Dr. Andrade’s view—

that GCS cannot be medically indicated for transgender

inmates who did not present in a gender-congruent manner

before incarceration—contradicts these accepted standards.

Dr. Garvey and Dr. Andrade would deny GCS to a class of

people because of their “institutionalization,” which the

WPATH Standards of Care explicitly disavow. They

provide no persuasive explanation for their deviation. 17 And

nothing in the WPATH Standards of Care or the law

supports excluding an entire class of gender dysphoric

individuals from eligibility for GCS.

Both Dr. Garvey and Dr. Andrade also relied on Edmo’s

failure to attend psychotherapy sessions as an indication that

her mental health concerns are not well controlled. But

psychotherapy is not a precondition for surgery under the

WPATH Standards of Care. WPATH SOC at 28–29.

We acknowledge that the WPATH Standards of Care are

flexible, and a simple deviation from those standards does

not alone establish an Eighth Amendment claim. But the

17

In concluding that Edmo does not meet the sixth WPATH

criterion, Dr. Garvey expressed concern that there is a lack of evidence

regarding GCS in prison settings. That rationale acts as self-fulfilling

prophecy. If prisons and prison officials deny GCS to prisoners because

of a lack of data, the data will never be generated, and the cycle will

continue.

EDMO V. CORIZON 57

State’s experts purported to be applying those standards and

yet did so in a way that directly contradicted them. These

unsupported and unexplained deviations offer a further

reason why the district court did not clearly err in

discounting the testimony of the State’s experts. See Caro,

280 F.3d at 1253.

Finally, the district court did not err in discrediting the

State’s experts because aspects of their opinions were

illogical and unpersuasive. For example, Dr. Garvey and

Dr. Andrade expressed the view that Edmo does not meet the

first WPATH criterion—“persistent, well documented

gender dysphoria,” WPATH SOC at 60—because of a lack

of evidence from pre-incarceration records of Edmo

presenting as female. But both experts acknowledged that

Edmo has been diagnosed with and treated for gender

dysphoria since 2012—i.e., for six years as of the evidentiary

hearing. Neither Dr. Garvey nor Dr. Andrade questioned

Edmo’s diagnosis, and both agree that she currently suffers

gender dysphoria. There can be no doubt that Edmo has

“persistent, well documented gender dysphoria,” so their

opinion is inexplicable.

Dr. Garvey’s and Dr. Andrade’s opinions on this point

also ignore that individuals with gender dysphoria do not

always experience symptoms early in life or throughout their

life, or do not identify them as such. As Dr. Ettner testified,

“gender dysphoria intensifies with age.” And as with

treatment for any other medical condition, treatment for

gender dysphoria must be based on a patient’s current

situation.

The opinions of Edmo’s experts are notably devoid of

these flaws. Dr. Ettner and Dr. Gorton cogently and

persuasively explained why GCS is medically necessary for

Edmo and why Edmo meets the WPATH criteria for GCS.

58 EDMO V. CORIZON

For example, consistent with the WPATH Standards of

Care, Dr. Ettner explained that Edmo has lived for

“12 continuous months . . . in a gender role that is congruent

with gender identity” (the sixth WPATH criterion) because

she has lived “as a woman to the best of her ability in a male

prison.” In support of her opinion, Dr. Ettner cited Edmo’s

“appearance . . . , her disciplinary records, which indicated

that she had attempted to wear her hair in a feminine

hairstyle and to wear makeup even though that was against

the rules and she was – received some sort of disciplinary

action for that, and her – the way that she was receiving

female undergarments and had developed the stigma of

femininity, the secondary sex characteristics, breast

development, et cetera.” Dr. Gorton similarly explained that

Edmo satisfies the sixth WPATH criterion because she has

lived for years in her “target gender role . . . despite an

environment that’s very hostile to that and some negative

consequences that she has experienced because of that.”

Moreover, both Dr. Ettner and Dr. Gorton offered

reasoned explanations tying Edmo’s self-castration attempts

to her severe gender dysphoria. Dr. Ettner explained that

doctors regard “surgical self-treatment . . . as an intentional

attempt to remove the target organ that produces

testosterone, which, in fact, is the cure for gender

dysphoria.” As Dr. Gorton elaborated, Edmo’s self-

castration attempts demonstrate deficient treatment for

“severe genital-focused gender dysphoria.” He rejected the

notion that Edmo’s depression and anxiety drove her self-

castration attempts: “there [are] a lot of people with

depression and anxiety who don’t remove their testicles.”

In light of the experts’ backgrounds and experience, and

the reasonableness, consistency, and persuasiveness of their

opinions, the district court did not err in crediting the

EDMO V. CORIZON 59

opinions of Edmo’s experts and giving little weight to those

of the State’s experts. The district court carefully examined

the voluminous record, extensive testimony, and conflicting

expert opinions in this case and set forth clear reasons,

supported by the record, for relying on the testimony of

Edmo’s experts. See La Quinta Worldwide, 762 F.3d at 879

(a factual finding is clear error if it is “illogical, implausible,

or without support in inferences that may be drawn from the

facts in the record”); Caro, 280 F.3d at 1253; Beech Aircraft

Corp. v. United States, 51 F.3d 834, 838 (9th Cir. 1995) (per

curiam). The credited expert testimony established that GCS

is medically necessary to alleviate Edmo’s gender dysphoria.

b. Dr. Eliason’s Assessment

Turning from the expert testimony offered, the State

contends that Edmo’s experts, at most, created a dispute of

professional judgment with Edmo’s treating psychiatrist, Dr.

Eliason, who it urges reasonably concluded that GCS is

inappropriate for Edmo. If that is the case, the argument

goes, then Edmo’s Eighth Amendment claim fails because

the dispute is merely a “difference of opinion . . . between

medical professionals” about “what medical care is

appropriate.” Snow, 681 F.3d at 987. The problem for the

State is that Dr. Eliason’s decision “was medically

unacceptable under the circumstances.” Toguchi, 391 F.3d

at 1058 (quoting Jackson, 90 F.3d at 332).

In particular, as the district court found, Dr. Eliason did

not follow accepted standards of care in the area of

transgender health care. See Edmo, 358 F. Supp. 3d at 1126.

Dr. Eliason explained in his notes that, in his view, GCS is

medically necessary in three situations: “congenital

malformation or ambiguous genitalia,” “severe and

devastating dysphoria that is primarily due to genitals,” or

“some type of medical problem in which endogenous sexual

60 EDMO V. CORIZON

hormones were causing severe physiological damage.” The

conclusion of his notes—“[t]his inmate does not meet any of

those [three] criteria”—suggests that he views those as the

only three scenarios in which GCS would be medically

necessary, an impression he did not dispel during his

testimony. Those “criteria” (Dr. Eliason’s term), however,

bear little resemblance to the widely accepted, evidence-

based criteria set out in the WPATH’s Standards of Care. As

Dr. Eliason acknowledged, the NCCHC endorses the

WPATH Standards of Care as the accepted standards for the

treatment of transgender prisoners. And as the district court

found and the State does not contest, “[t]here are no other

competing, evidence-based standards that are accepted by

any nationally or internationally recognized medical

professional groups.” Id. at 1125. Dr. Eliason did not follow

these standards in rendering his decision.

The State challenges the district court’s finding that

Dr. Eliason “did not apply the WPATH Criteria,” id. at 1126,

on two grounds. First, citing Dr. Eliason’s testimony at the

evidentiary hearing, it urges that Dr. Eliason concluded that

GCS was not medically necessary for Edmo because Edmo’s

mental health issues were not well controlled (the fourth

WPATH criterion) and she had not consistently presented as

female outside of prison (the sixth).

The district court’s rejection of this post hoc explanation

was not clear error. Neither of the explanations offered by

Dr. Eliason during the evidentiary hearing appears in

Dr. Eliason’s notes. Nor did he give these reasons during his

deposition. Their absence is conspicuous, given that

Dr. Eliason took the time to indicate instances where, in his

opinion, GCS is appropriate and to explain that Edmo did

not satisfy his “criteria.”

EDMO V. CORIZON 61

Second, the State highlights that Dr. Eliason’s notes

recommend further “supportive counseling” for Edmo and

indicate that Edmo was up for parole. The State construes

these notes as shorthand for the fourth and sixth WPATH

criteria, respectively. The State’s proposed reading of

Dr. Eliason’s notes is unreasonable. His notes are clear that

GCS is not needed because Edmo did not meet his three

“criteria,” and the district court was well within its

factfinding discretion in rejecting the State’s strained

reading. We therefore conclude that the district court

reasonably found that Dr. Eliason “did not rely upon any

finding that Ms. Edmo did not meet the WPATH criteria in

concluding in his April 2016 assessment that she did not

meet the criteria for gender confirmation surgery.” Id.

at 1120.

Notably, neither Dr. Eliason nor the State has offered any

explanation or support for Dr. Eliason’s “criteria.”

Dr. Eliason testified that he could not recall where he came

up with them.

Nor has Dr. Eliason or the State contended that

Dr. Eliason’s criteria were a reasonable deviation or

modification of the WPATH Standards of Care. In any

event, we could not accept that argument. Dr. Eliason’s

criteria—apparently invented out of whole cloth—are so far

afield from the WPATH standards that we cannot

characterize his decision as a flexible application of or

deviation from those standards. Indeed, as Dr. Gorton

explained, two of Dr. Eliason’s criteria are inapplicable to

the care of transgender individuals. Dr. Eliason’s criterion

of “congenital malformation or ambiguous genitalia” “isn’t

. . . germane to transgender people.” His statement that GCS

could be needed when “endogenous sexual hormones were

causing severe physiological damage,” is, in Dr. Gorton’s

62 EDMO V. CORIZON

words, “bizarre. I can’t think of a clinical circumstance

where . . . your hormones that your body produces are

attacking you . . . . I just don’t understand what [Dr. Eliason]

is talking about there.”

Dr. Eliason, in short, did not follow the accepted

standards of care in the area of transgender health care, nor

did he reasonably deviate from or flexibly apply them.

Dr. Eliason did not apply the established standards, even as

a starting point, in his evaluation.

Putting to the side Dr. Eliason’s failure to follow or

reasonably deviate from the accepted standards of care, his

decision was internally contradictory in an important way.

His notes reflect that GCS would be medically necessary if

a person is suffering “severe and devastating gender

dysphoria that is primarily due to genitals.” At his

deposition, Dr. Eliason conceded that self-castration could

show gender dysphoria sufficiently severe to satisfy that

criterion. And at the evidentiary hearing, he acknowledged

that Edmo “does primarily meet that criteri[on].” Thus, even

under Dr. Eliason’s own criteria, Edmo should have been

provided GCS. Neither Dr. Eliason nor the State has

reconciled this important contradiction between

Dr. Eliason’s criteria and his determination.

In sum, Dr. Eliason’s evaluation was not an exercise of

medically acceptable professional judgment. Dr. Eliason’s

decision was based on inexplicable criteria far afield from

the recognized standards of care and, even applying

Dr. Eliason’s criteria, Edmo qualifies for GCS. Given the

credited expert testimony that GCS is necessary to treat

Edmo’s gender dysphoria, Dr. Eliason’s contrary

EDMO V. CORIZON 63

determination was “medically unacceptable under the

circumstances.” 18 Snow, 681 F.3d at 988.

2. Deliberate Indifference

The State next contends that even if the treatment

provided Edmo was medically unacceptable, no defendant

acted “in conscious disregard of an excessive risk to

[Edmo’s] health.” Hamby, 821 F.3d at 1092 (quoting Snow,

681 F.3d at 988). We disagree.

The record demonstrates that Dr. Eliason acted with

deliberate indifference to Edmo’s serious medical needs.

Dr. Eliason knew, as of the time of his evaluation, that Edmo

had attempted to castrate herself. He also knew that Edmo

suffers from gender dysphoria; he knew she experiences

“clinically significant” distress that impairs her ability to

function. He acknowledged that Edmo’s self-castration

attempt was evidence that Edmo’s gender dysphoria, in his

words, “had risen to another level.” Dr. Eliason nonetheless

continued with Edmo’s ineffective treatment plan.

Edmo then tried to castrate herself a second time, in

December 2016. Dr. Eliason knew of that nearly

18

Dr. Eliason was not alone in his decision. Dr. Stoddart,

Dr. Young, and Jeremy Clark agreed with his assessment, as did the

MTC. The State contends that such general agreement demonstrates that

Dr. Eliason’s decision was reasonable. But general agreement in a

medically unacceptable form of treatment does not somehow make it

reasonable. This is especially so in light of the limited review those

individuals performed: Dr. Stoddard, Dr. Young, and Jeremy Clark

agreed with Dr. Eliason’s recommended treatment as he presented it to

them and without personally evaluating Edmo, and the MTC “does not

make any individual treatment decisions regarding [gender dysphoric]

inmates. Those determinations are made by the individual clinicians or

the medical staff employed by Corizon,” like Dr. Eliason.

64 EDMO V. CORIZON

catastrophic event, but he did not reevaluate or recommend

a change to Edmo’s treatment plan, despite indicating in his

April 2016 evaluation that he would continue to monitor and

assess Edmo’s condition. Dr. Eliason continued to see Edmo

after that time, and he considered Edmo’s treatment as a

member of the MTC. At no point did Dr. Eliason change his

mind or the treatment plan regarding surgery. Under these

circumstances, we conclude that Dr. Eliason knew of and

disregarded the substantial risk of severe harm to Edmo.

Farmer, 511 U.S. at 837.

The State urges that neither Dr. Eliason nor any other

defendant acted with deliberate indifference because none

acted with “malice, intent to inflict pain, or knowledge that

[the] recommended course of treatment was medically

inappropriate.” The State misstates the standard. A prisoner

“must show that prison officials ‘kn[e]w [ ] of and

disregard[ed]’ the substantial risk of harm,’ but the officials

need not have intended any harm to befall the inmate; ‘it is

enough that the official acted or failed to act despite his

knowledge of a substantial risk of serious harm.’” Lemire v.

Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir.

2013) (alterations in original) (quoting Farmer, 511 U.S.

at 837, 842). Neither the Supreme Court nor this court has

ever required a plaintiff to show a “sinister [prison official]

with improper motives,” as the State would require. It is

enough that Dr. Eliason knew of and disregarded an

excessive risk to Edmo’s health by rejecting her request for

GCS and then never re-evaluating his decision despite

ongoing harm to Edmo.

The State also contends that because the defendants

provided some care to Edmo, no defendant could have been

deliberately indifferent. The provision of some medical

treatment, even extensive treatment over a period of years,

EDMO V. CORIZON 65

does not immunize officials from the Eighth Amendment’s

requirements. See Lopez v. Smith, 203 F.3d 1122, 1132 (9th

Cir. 2000) (en banc) (explaining that “[a] prisoner need not

prove that he was completely denied medical care” to make

out an Eighth Amendment claim); see also De’lonta,

708 F.3d at 526 (“[J]ust because [officials] have provided

De’lonta with some treatment consistent with the GID

Standards of Care, it does not follow that they have

necessarily provided her with constitutionally adequate

treatment.”). As the Fourth Circuit has aptly analogized,

imagine that prison officials prescribe a

painkiller to an inmate who has suffered a

serious injury from a fall, but that the

inmate’s symptoms, despite the medication,

persist to the point that he now, by all

objective measure, requires evaluation for

surgery. Would prison officials then be free

to deny him consideration for surgery,

immunized from constitutional suit by the

fact they were giving him a painkiller? We

think not.

De’lonta, 708 F.3d at 526. Here, although the treatment

provided Edmo was important, it stopped short of what was

medically necessary.

3. Out-of-Circuit Precedent

Our decision cleaves to settled Eighth Amendment

jurisprudence, which requires a fact-specific analysis of the

record (as construed by the district court) in each case. See

Patel v. Kent Sch. Dist., 648 F.3d 965, 975 (9th Cir. 2011)

(“Deliberate-indifference cases are by their nature highly

fact-specific . . . .”); see also Rachel v. Troutt, 820 F.3d 390,

394 (10th Cir. 2016) (“Each step of this [deliberate

66 EDMO V. CORIZON

indifference] inquiry is fact-intensive.” (quoting Hartsfield

v. Colburn, 491 F.3d 394, 397 (8th Cir. 2007))); Roe v.

Elyea, 631 F.3d 843, 859 (7th Cir. 2011) (“[I]nmate medical

care decisions must be fact-based with respect to the

particular inmate, the severity and stage of his condition, the

likelihood and imminence of further harm and the efficacy

of available treatments.”); Youmans v. Gagnon, 626 F.3d

557, 564 (11th Cir. 2010) (“Judicial decisions addressing

deliberate indifference to a serious medical need, like

decisions in the Fourth Amendment search-and-seizure

realm, are very fact specific.”); 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.”).

Several years ago, the First Circuit, sitting en banc,

employed that fact-based approach to evaluate a gender

dysphoric prisoner’s Eighth Amendment claim seeking

GCS. The First Circuit confronted the following record:

credited expert testimony disagreed as to whether GCS was

medically necessary; the prisoner’s active treatment plan,

which did not include GCS, had “led to a significant

stabilization in her mental state”; and a report and testimony

from correctional officials detailed significant security

concerns that would arise if the prisoner underwent GCS.

Kosilek, 774 F.3d at 86–96. “After carefully considering the

community standard of medical care, the adequacy of the

provided treatment, and the valid security concerns

articulated by the DOC,” a 3–2 majority of the en banc court

concluded that the plaintiff had not demonstrated GCS was

medically necessary treatment for her gender dysphoria. Id.

at 68.

EDMO V. CORIZON 67

Our approach mirrors the First Circuit’s, but the

important factual differences between cases yield different

outcomes. Notably, the security concerns in Kosilek, which

the First Circuit afforded “wide-ranging deference,” are

completely absent here. Id. at 92. The State does not so

much as allude to them. The medical evidence also differs.

In Kosilek, qualified and credited experts disagreed about

whether GCS was necessary. Id. at 90. As explained above,

the district court’s careful factual findings admit of no such

disagreement here. Rather, they unequivocally establish that

GCS is the safe, effective, and medically necessary treatment

for Edmo’s severe gender dysphoria.

We recognize, however, that our decision is in tension

with Gibson v. Collier. In that case, the Fifth Circuit held,

in a split decision, that “[a] state does not inflict cruel and

unusual punishment by declining to provide [GCS] to a

transgender inmate.” 920 F.3d at 215. It did so on a “sparse

record”—which included only the WPATH Standards of

Care and was notably devoid of “witness testimony or

evidence from professionals in the field”—compiled by a

pro se plaintiff. Id. at 220. Despite the sparse record, a 2–1

majority of the Gibson panel concluded that “there is no

consensus in the medical community about the necessity and

efficacy of [GCS] as a treatment for gender dysphoria. . . .

This on-going medical debate dooms Gibson’s claim.” Id.

at 221.

We respectfully disagree with the categorical nature of

our sister circuit’s holding. Most fundamentally, Gibson

relies on an incorrect, or at best outdated, premise: that

“[t]here is no medical consensus that [GCS] is a necessary

or even effective treatment for gender dysphoria.” Id. at 223.

As the record here demonstrates and the State does not

seriously dispute, the medical consensus is that GCS is

68 EDMO V. CORIZON

effective and medically necessary in appropriate

circumstances. The WPATH Standards of Care—which are

endorsed by the American Medical Association, the

American Medical Student Association, the American

Psychiatric Association, the American Psychological

Association, the American Family Practice Association, the

Endocrine Society, the National Association of Social

Workers, the American Academy of Plastic Surgeons, the

American College of Surgeons, Health Professionals

Advancing LGBTQ Equality, the HIV Medicine

Association, the Lesbian, Bisexual, Gay and Transgender

Physician Assistant Caucus, and Mental Health America—

recognize this fact. WPATH SOC at 54–55. Each expert in

this case agrees. As do others in the medical community.

See, e.g., U.S. Dep’t of Health & Human Servs., No. A-13-

87, Decision No. 2576; Bao Ngoc N. Tran, et al., Gender

Affirmation Surgery: A Synopsis Using American College of

Surgeons National Surgery Quality Improvement Program

and National Inpatient Sample Databases, 80 Annals Plastic

Surgery S229, S234 (2018); Frey, A Historical Review of

Gender-Affirming Medicine, 14 J. Sexual Med. at 991; see

also What We Know Project, Ctr. for the Study of

Inequality, Cornell Univ., What Does the Scholarly

Research Say About the Effect of Gender Transition on

Transgender Well-Being?, https://whatweknow.inequality.c

ornell.edu/topics/lgbt-equality/what-does-the-scholarly-rese

arch-say-about-the-well-being-of-transgender-people/ (last

visited July 10, 2019) (reviewing the available literature and

finding “a robust international consensus in the peer-

reviewed literature that gender transition, including medical

treatments such as hormone therapy and surgeries, improves

the overall well-being of transgender individuals”). The

Fifth Circuit is the outlier.

EDMO V. CORIZON 69

Gibson’s broad holding stemmed from a dismaying

disregard for procedure. As noted, the “sparse” summary

judgment record that the pro se plaintiff developed included

“only the WPATH Standards of Care.” Gibson, 920 F.3d at

221. Perhaps that factual deficiency doomed Gibson’s

Eighth Amendment claim. See id. at 223–24. But to reach

its broader holding that denying GCS cannot, as a matter of

law, violate the Eighth Amendment—in other words, to

reject every conceivable Eighth Amendment claim based on

the denial of GCS—the Fifth Circuit coopted the record from

Kosilek, a First Circuit decision that predates Gibson by four

years. Id. at 221–23. We doubt the analytical value of such

an anomalous procedural approach.

Worse yet, the medical opinions from Kosilek do not

support the Fifth Circuit’s categorical holding. Dr. Chester

Schmidt’s and Dr. Stephen Levine’s testimony in Kosilek,

which the Fifth Circuit relied on, do not support the

proposition that GCS is never medically necessary. Dr.

Schmidt and Dr. Levine testified that GCS was not necessary

in the factual circumstances of that case, that is, based on the

unique medical needs of the prisoner at issue. See Kosilek,

774 F.3d at 76–79.

The only suggestion in Kosilek that GCS is never

medically necessary is in the First Circuit’s recitation of the

testimony of Dr. Cynthia Osborne. See Gibson, 920 F.3d

at 221. The First Circuit recounted that Dr. Osborne testified

that she “did not view [GCS] as medically necessary in light

of the ‘whole continuum from noninvasive to invasive’

treatment options available to individuals with” gender

dysphoria. Kosilek, 774 F.3d at 77. To the extent this vague

portrait of Dr. Osborne’s testimony conveys her belief that

GCS is never medically necessary, she has apparently

changed her view in the more than ten years since she

70 EDMO V. CORIZON

testified in Kosilek. Like both sides and all four medical

experts who testified here, Dr. Osborne now agrees that GCS

“can be medically necessary for some, though not all,

persons with [gender dysphoria], including some prison

inmates.” Osborne & Lawrence, Male Prison Inmates With

Gender Dysphoria, 45 Archives of Sexual Behav. at 1651.

In her and her co-author’s words, “[GCS] is a safe, effective,

and widely accepted treatment for [gender dysphoria];

disputing the medical necessity of [GCS] based on assertions

to the contrary is unsupportable.” Id. The predicate medical

opinions that Gibson is premised upon, then, do not support

the Fifth Circuit’s view that GCS is never medically

necessary. The consensus is that GCS is effective and

medically necessary in appropriate circumstances. 19

Gibson is unpersuasive for several additional reasons. It

directly conflicts with decisions of this circuit, the Fourth

19

We do not suggest that every member of the medical and mental

health communities agrees that GCS may be medically necessary. There

are outliers. But when the medical consensus is that a treatment is

effective and medically necessary under the circumstances, prison

officials render unacceptable care by following the views of outliers

without offering a credible medical basis for deviating from the accepted

view. See Kosilek, 774 F.3d at 90 n.12 (explaining that it is not enough

for “correctional administrators wishing to avoid treatment . . . simply to

find a single practitioner willing to attest that some well-accepted

treatment is not necessary”); Hamilton v. Endell, 981 F.2d 1062, 1067

(9th Cir. 1992) (“By choosing to rely upon a medical opinion which a

reasonable person would likely determine to be inferior, the prison

officials took actions which may have amounted to the denial of medical

treatment, and the unnecessary and wanton infliction of pain.” (quotation

omitted)), overruled in part on other grounds as recognized in Snow,

681 F.3d at 986; cf. also Bragdon v. Abbott, 524 U.S. 624, 650 (1998)

(“A health care professional who disagrees with the prevailing medical

consensus may refute it by citing a credible scientific basis for deviating

from the accepted norm.”).

EDMO V. CORIZON 71

Circuit, and the Seventh Circuit, all of which have held that

denying surgical treatment for gender dysphoria can pose a

cognizable Eighth Amendment claim. Rosati, 791 F.3d at

1040 (alleged blanket ban on GCS and denial of GCS to

plaintiff with severe symptoms, including repeated self-

castration attempts, states an Eighth Amendment claim);

Fields v. Smith, 653 F.3d 550, 552–53, 558–59 (7th Cir.

2011) (law banning hormone treatment and GCS, even if

medically necessary, violates the Eighth Amendment);

De’lonta, 708 F.3d at 525 (alleged denial of an evaluation

for GCS states an Eighth Amendment claim). 20 Relatedly,

Gibson eschews Eighth Amendment precedent requiring a

case-by-case determination of the medical necessity of a

particular treatment. See, e.g., Colwell v. Bannister,

763 F.3d 1060, 1068 (9th Cir. 2014) (holding that the

“blanket, categorical denial of medically indicated surgery

solely on the basis of an administrative policy . . . is the

paradigm of deliberate indifference” (quotation omitted));

Roe, 631 F.3d at 859.

In this latter respect, Gibson also contradicts and

misconstrues the precedent it purports to follow: Kosilek.

According to the Gibson majority, “the majority in Kosilek

effectively allowed a blanket ban on sex reassignment

surgery.” 920 F.3d at 216. Not so. The First Circuit did

precisely what we do here: assess whether the record before

it demonstrated deliberate indifference to the plaintiff’s

20

The Fifth Circuit unpersuasively attempted to reconcile its

decision with Rosati and De’lonta, pointing out that those decisions

“allowed Eighth Amendment claims for [GCS] to survive motions to

dismiss, without addressing the merits.” Gibson, 920 F.3d at 223 n.8.

But if Gibson is correct that failing to provide GCS cannot amount to

deliberate indifference, then a plaintiff cannot state an Eighth

Amendment claim based on the denial of GCS. Rosati and De’lonta

would necessarily have been decided differently under Gibson’s holding.

72 EDMO V. CORIZON

gender dysphoria. On the record before it, the First Circuit

determined that either of two courses of treatment (one

included GCS and one did not) were medically acceptable.

Kosilek, 774 F.3d at 90. In light of those medically

acceptable alternatives, the First Circuit explained that it was

not its place to “second guess medical judgments or to

require that the DOC adopt the more compassionate of two

adequate options.” Id. (quotation omitted). It expressly

cautioned that the opinion should not be read to “create a de

facto ban against [GCS] as a medical treatment for any

incarcerated individual,” as “any such policy would conflict

with the requirement that medical care be individualized

based on a particular prisoner’s serious medical needs.” Id.

at 91 (citing Roe, 631 F.3d at 862–63). The Fifth Circuit

disregarded these words of warning. 21

***

In summary, Edmo has established that she suffers from

a “serious medical need,” Jett, 439 F.3d at 1096, and that the

treatment provided was “medically unacceptable under the

circumstances” and chosen “in conscious disregard of an

excessive risk” to her health, Hamby, 821 F.3d at 1092. She

established her Eighth Amendment claim of deliberate

indifference as to Defendant-Appellant Dr. Eliason.

21

Gibson’s final, originalist rationale—that it cannot be cruel and

unusual to deny a surgery that has only once been provided to an inmate,

920 F.3d at 226–28—warrants little discussion. Gibson’s originalist

understanding of the Eighth Amendment does not control; Estelle does,

and under Estelle a plaintiff establishes an Eighth Amendment claim by

demonstrating that prison officials were deliberately indifferent to a

serious medical need. 429 U.S. at 106. This standard protects the

evolving standards of decency enshrined in the Eighth Amendment.

EDMO V. CORIZON 73

B. Irreparable Harm

The State next contends that the district court erred in

finding that Edmo would be irreparably harmed absent an

injunction.

In reaching its conclusion, the district court found that

Edmo experiences ongoing “clinically significant distress,”

meaning “the distress impairs or severely limits [her] ability

to function in a meaningful way.” Edmo, 358 F. Supp. 3d

at 1110–11. This finding is supported by Edmo’s testimony

that her gender dysphoria causes her to feel “depressed,”

“disgusting,” “tormented,” and “hopeless”; that she actively

experiences thoughts of self-castration; and that she “self-

medicat[es]” by cutting her arms with a razor to avoid acting

on those thoughts and impulses. The district court also

found that in the absence of surgery, Edmo “will suffer

serious psychological harm and will be at high risk of self-

castration and suicide.” Id. at 1128. This finding is

supported by the credited expert testimony of Dr. Ettner and

Dr. Gorton, who detailed the escalating risks of self-surgery,

suicide, and emotional decompensation should Edmo be

denied surgery.

It is no leap to conclude that Edmo’s severe, ongoing

psychological distress and the high risk of self-castration and

suicide she faces absent surgery constitute irreparable harm.

See Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1324 n.5 (9th

Cir. 1994); Thomas v. County of Los Angeles, 978 F.2d 504,

511 (9th Cir. 1992); Chalk v. U.S. Dist. Ct. Cent. Dist. of

Cal., 840 F.2d 701, 709 (9th Cir. 1988). Moreover, the

deprivation of Edmo’s constitutional right to adequate

medical care is sufficient to establish irreparable harm. See

Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008) (“Unlike

monetary injuries, constitutional violations cannot be

adequately remedied through damages and therefore

74 EDMO V. CORIZON

generally constitute irreparable harm.”), rev’d and

remanded on other grounds, 562 U.S. 134 (2011).

The State offers three contentions as to why the district

court erred in finding that Edmo would be irreparably

injured in the absence of an injunction. None is persuasive.

First, the State argues that the “long delay” of “nearly a

year” between Edmo filing her Amended Complaint and her

preliminary injunction motion “implies a lack of urgency

and irreparable harm.” We disagree. The procedural history

demonstrates that Edmo did not sit on her rights. Proceeding

pro se, Edmo moved for preliminary injunctive relief when

she filed her original complaint. The court then appointed

counsel for Edmo, and shortly after appearing, appointed

counsel withdrew Edmo’s motion and filed an amended

complaint. To assess the urgency of surgery, Edmo’s

counsel promptly sought access to Edmo’s medical records,

which the State did not produce until more than six months

later. Edmo moved for injunctive relief shortly thereafter.

During that time, Edmo and her counsel diligently

investigated and compiled the necessary record to move for

injunctive relief. That it took them months to do their

diligence does not suggest that Edmo will not be harmed

absent an injunction.

Second, the State contends that Edmo has not established

irreparable injury because both she and her expert,

Dr. Gorton, agree that GCS is not an emergency surgery and

that the State should have six months to provide such

surgery. The State’s argument would preclude courts from

ordering non-emergent medical care, even if the Eighth

Amendment demands it. That is untenable. The State also

ignores the rationale for the six-month time period. As Dr.

Gorton explained, all patients who receive GCS “are seen,

they are evaluated, there is a process you have to go

EDMO V. CORIZON 75

through.” In his experience, that process typically concludes

within six months. That Edmo requested relief on a

reasonable timeline, based on the medical evidence, does not

undermine the strong evidence of irreparable injury.

Third, the State contends that Edmo has not established

irreparable harm because she “has not attempted suicide or

self-castration for years.” That argument overlooks the

profound, persistent distress Edmo’s gender dysphoria

causes, as well as the credited expert testimony that absent

GCS, Edmo is at risk of further attempts at self-castration,

and possibly suicide. The district court did not err in finding

that Edmo would be irreparably harmed in the absence of an

injunction.

IV. Challenges to the Scope of the Injunction

We turn to the State’s contentions that the district court’s

injunction was overbroad.

A. Individual Defendants

The State contends that the injunction should not apply

to Atencio, Zmuda, Yordy, Siegert, Dr. Young, Dr. Craig,

Dr. Eliason, or Dr. Whinnery because the district court did

not find that they, individually, were deliberately indifferent

to Edmo’s medical needs.

As explained in Section III.A, Edmo has established that

Dr. Eliason was deliberately indifferent to her serious

medical needs. The injunction was properly entered against

him because he personally participated in the deprivation of

Edmo’s constitutional rights. See Colwell, 763 F.3d at 1070.

Edmo sued Attencio, Zmuda, and Yordy in their official

capacities. An official-capacity suit for injunctive relief is

76 EDMO V. CORIZON

properly brought against any persons who “would be

responsible for implementing any injunctive relief.” Pouncil

v. Tilton, 704 F.3d 568, 576 (9th Cir. 2012). The State does

not contest that Attencio, as Director of IDOC, and Zmuda,

as Deputy Director of IDOC, would be responsible for

implementing any injunctive relief ordered. Edmo properly

named them as defendants to her Eighth Amendment claim

for injunctive relief, regardless of their personal

involvement. See Colwell, 763 F.3d at 1070–71 (director of

a state correctional system is a proper defendant in an

official-capacity suit seeking injunctive relief for Eighth

Amendment violations). Yordy is no longer the Warden of

ISCI, but, by operation of the Federal Rules, his successor,

Al Ramirez, is “automatically substituted as party” in his

official capacity. Fed. R. Civ. P. 25(d). Ramirez is properly

a defendant to Edmo’s Eighth Amendment claim for

injunctive relief, regardless of his personal involvement. See

Colwell, 763 F.3d at 1070–71 (warden is a proper defendant

in an official-capacity suit seeking injunctive relief for

Eighth Amendment violations). Because Edmo may

properly pursue her Eighth Amendment claim for injunctive

relief against Attencio, Zmuda, and Ramirez in their official

capacities, they are properly included within the scope of the

district court’s injunction. On remand, the district court shall

amend the injunction to substitute Al Ramirez (or the then-

current Warden of ISCI) as a party for Yordy.

Edmo also named Yordy as a defendant in his individual

capacity. She likewise named Siegert, Dr. Young, Dr. Craig,

and Dr. Whinnery as defendants in their individual

capacities (though she does not argue on appeal that the

injunction properly included them). We hold that the

evidence in the current record is insufficient to conclude that

they were deliberately indifferent to Edmo’s serious medical

needs. In particular, the record does not show what they

EDMO V. CORIZON 77

knew about Edmo’s condition and what role they played in

her treatment or lack thereof. Edmo has not established their

liability, and the district court improperly included them

within the scope of the injunction. We vacate the district

court’s injunction to the extent it applies to Yordy, Siegert,

Dr. Young, Dr. Craig, and Dr. Whinnery in their individual

capacities. See California v. Azar, 911 F.3d 558, 585 (9th

Cir. 2018) (vacating in part an overbroad injunction and

remanding to the district court). On remand, the district

court shall modify the injunction to exclude those defendants

from its scope.

B. Corizon

The State also contends that the injunction should not

apply to Corizon. It urges that Corizon does not have a

policy barring GCS and argues that such a policy is a

prerequisite to liability under Monell v. Department of Social

Services, 436 U.S. 658 (1978). We have not yet determined

whether Monell applies “to private entities acting on behalf

of state governments,” such as Corizon. Oyenik v. Corizon

Health Inc., 696 F. App’x 792, 794 n.1 (9th Cir. 2017). We

leave that issue for another day. Instead, we vacate the

injunction as to Corizon and remand with instructions to the

district court to modify the injunction to exclude Corizon.

See Azar, 911 F.3d at 585. Doing so still provides Edmo the

relief she seeks at this stage. 22

22

For similar reasons, we need not reach Edmo’s contention and the

district court’s finding that “Corizon and IDOC have a de facto policy or

practice of refusing” GCS to prisoners. Edmo, 358 F. Supp. 3d at 1127.

78 EDMO V. CORIZON

C. Relief Ordered

The State next contends that the injunctive relief ordered

is overbroad because it requires the State to provide Edmo

all “adequate medical care.” The State misconstrues the

district court’s order. The order, read in context, requires

defendants to provide GCS, as well as “adequate medical

care” that is “reasonably necessary” to accomplish that

end—not every conceivable form of adequate medical care.

Edmo, 358 F. Supp. 3d at 1129; see also id. at 1109

(“Plaintiff Adree Edmo alleges that prison authorities

violated her Eighth Amendment rights by refusing to provide

her with gender confirmation surgery. For the reasons

explained below, the Court agrees and will order defendants

to provide her with this procedure, a surgery which is

considered medically necessary under generally accepted

standards of care.”); id. at 1110 (“[F]or the reasons explained

in detail below, IDOC and Corizon will be ordered to

provide Ms. Edmo with gender confirmation surgery.”).

The State similarly contends that the injunctive relief

ordered is overbroad because it requires the State to provide

Edmo surgery even though the defendants are not surgeons

and no surgeon has evaluated Edmo. We reject this obtuse

reading of the district court’s order. The district court

ordered the State to “take all actions reasonably necessary to

provide Ms. Edmo gender confirmation surgery.” Edmo,

358 F. Supp. 3d at 1129. That means that the State must take

steps within its power to provide GCS to Edmo, such as

finding a surgeon and scheduling a surgical evaluation.

Indeed, we modified our stay of the district court’s order to

permit a surgical consultation, which went forward in April

2019. Oral Arg. at 12:00–12:10. The State cannot

reasonably understand the district court’s December 13,

2018 order to require that the defendants themselves provide

EDMO V. CORIZON 79

surgery. To the extent there are issues arising from a surgical

evaluation, the State can raise those issues with the district

court. 23

V. Challenges to the Procedure Used by the District

Court

Finally, the State contends that the district court

improperly converted an evidentiary hearing on a

preliminary injunction into a final trial on the merits of

Edmo’s Eighth Amendment claim for GCS without giving

them adequate notice and in violation of their Seventh

Amendment right to a jury trial. We address and reject each

contention.

A. Notice

We first address the State’s contention that the district

court erroneously converted the evidentiary hearing into a

final trial on the merits without giving the State “clear and

unambiguous notice.” Under Federal Rule of Civil

Procedure 65(a)(2), “[a] district court may consolidate a

preliminary injunction hearing with a trial on the merits, but

only when it provides the parties with clear and

unambiguous notice [of the intended consolidation] either

before the hearing commences or at a time which will afford

23

The State contends for the first time in its reply brief that the

injunctive relief ordered was inappropriate because the WPATH

Standards of Care require two referrals from qualified mental health

professionals who have independently assessed the patient before GCS

may be provided. It similarly contends for the first time in its reply in

support of its motion to dismiss that the order is overbroad because it

does not specify the type of GCS ordered. Because the State did not

present these arguments in its opening brief, we do not consider them.

See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

80 EDMO V. CORIZON

the parties a full opportunity to present their respective

cases.” Isaacson v. Horne, 716 F.3d 1213, 1220 (9th Cir.

2013) (second alteration in original) (quotation omitted).

“What constitutes adequate notice depends upon the facts of

the case.” Michenfelder v. Sumner, 860 F.2d 328, 337 (9th

Cir. 1988).

A party challenging consolidation must show not only

inadequate notice, but also “substantial prejudice in the

sense that [it] was not allowed to present material evidence.”

Michenfelder, 860 F.2d at 337; see also 11A Charles Alan

Wright et al., Federal Practice and Procedure § 2950 (3d

ed. Apr. 2019 update). “We have on occasion upheld a

district court’s failure to give any notice whatsoever before

finally determining the merits after only a preliminary

injunction hearing, where the complaining party has failed

to show how additional evidence could have altered the

outcome.” Michenfelder, 860 F.2d at 337.

At the outset, we note that the State was provided notice,

twice, that the district court considered the evidentiary

hearing a final trial on the merits of Edmo’s request for GCS.

At the beginning of the hearing, the district court explained

“it’s hard for me to envision this hearing being anything but

a hearing on a final injunction at least as to that part of the

relief requested [GCS],” and it asked the parties to address

by the end of the hearing whether it was for a permanent

injunction. At the close of the hearing, the district court

again questioned whether it could order GCS in a

preliminary injunction. It explained that it had, in effect,

“kind of treated this hearing as the final hearing” on Edmo’s

request for GCS, and it again asked the parties to address in

their oral closings or written briefs whether the hearing was

one for a permanent injunction. The State never answered

the court’s question or objected to consolidation, despite the

EDMO V. CORIZON 81

district court specifically noting it had treated the hearing as

final. Cf. Reilly v. United States, 863 F.2d 149, 160 (1st Cir.

1988) (“[W]hen a trial judge announces a proposed course

of action which litigants believe to be erroneous, the parties

detrimentally affected must act expeditiously to call the error

to the judge’s attention or to cure the defect, not lurk in the

bushes waiting to ask for another trial when their litigatory

milk curdles.”). This is not a case where the district court

gave no notice whatsoever.

Regardless, the State has not shown any prejudice. With

full awareness of the stakes, the district court permitted the

parties four months of discovery and held a three-day

evidentiary hearing. The parties called seven witnesses,

submitted declarations in lieu of live testimony for other

witnesses, and submitted thousands of pages of exhibits and

extensive pre- and post-trial briefing. Most importantly,

both parties put on extensive evidence concerning the

treatment provided to and withheld from Edmo and why it

was or was not appropriate—the key issue at the hearing.

When it comes to identifying prejudice, the State is

tellingly short on specifics. It indicates that it “would have

objected” to consolidation, but it failed to do so despite

repeated invitations—indeed, directives—to address the

issue. The State also urges that it would have requested that

the named defendants be able to testify live, but it

stipulated—knowing full well the stakes of the hearing—to

submit certain testimony via declaration “[i]n lieu of and/or

in addition to live testimony.” Moreover, the State fails to

identify what testimony those witnesses would have offered

or explain how presenting that testimony live, instead of via

declaration, “could have altered the outcome.”

Michenfelder, 860 F.2d at 337. The district court did not

82 EDMO V. CORIZON

commit reversible error in consolidating the evidentiary

hearing with a trial on the merits of Edmo’s request for GCS.

B. Seventh Amendment

We turn to the State’s related contention that the district

court violated the defendants’ Seventh Amendment right to

a jury trial by converting the evidentiary hearing into a trial

on the merits. We review that contention de novo. Palmer

v. Valdez, 560 F.3d 965, 968 (9th Cir. 2009).

The Seventh Amendment guarantees the right to a trial

by jury “[i]n Suits at common law, where the value in

controversy shall exceed twenty dollars.” U.S. Const.

amend. VII. In a case such as this, where legal claims are

joined with equitable claims, a party “has a right to jury

consideration of all legal claims, as well as all issues

common to both claims.” Plummer v. W. Int’l Hotels Co.,

656 F.2d 502, 504 n.6 (9th Cir. 1981) (citing Curtis v.

Loether, 415 U.S. 189, 196 n.11 (1974)). “Otherwise, the

court might limit the parties’ opportunity to try to a jury

every issue underlying the legal claims by affording

preclusive effect to its own findings of fact on questions that

are common to both the legal and equitable claims.” Lacy v.

Cook County, 897 F.3d 847, 858 (7th Cir. 2018).

Like other constitutional rights, the right to a jury trial in

civil suits can be waived. See United States v. Moore,

340 U.S. 616, 621 (1951). It is well established that “[a]

failure to object to a proceeding in which the court sits as the

finder of fact waives a valid jury demand as to any claims

decided in that proceeding, at least where it was clear that

the court intended to make fact determinations.” Fillmore v.

Page, 358 F.3d 496, 503 (7th Cir. 2004) (quotation omitted);

see also 9 Wright & Miller, Federal Practice and Procedure

§ 2321 (“The right to jury trial also may be waived as it has

EDMO V. CORIZON 83

in many, many cases, by conduct, such as failing to object to

or actually participating in a bench trial . . . .”).

For example, in White v. McGinnis, we held that “[a]

party’s vigorous participation in a bench trial, without so

much as a mention of a jury, . . . can only be ascribed to

knowledgeable relinquishment of the prior jury demand.”

903 F.2d 699, 703 (9th Cir. 1990) (en banc). We explained

that where a party chooses “to argue his case fully before the

district judge[,] it is not unjust to hold him to that

commitment.” Id. By contrast, we have held that “[w]hen a

party participates in [a] bench trial ordered by the trial court

while continuing to demand a jury trial, his ‘continuing

objection’ is ‘sufficient to preserve his right to appeal the

denial of his request for a jury.’” Solis v. County of Los

Angeles, 514 F.3d 946, 957 (9th Cir. 2008) (quoting United

States v. Nordbrock, 941 F.2d 947, 950 (9th Cir. 1991)).

“This is because the party in such a case is not seeking ‘two

bites at the procedural apple’ . . . . Rather, when a trial court

denies a party a jury trial despite the party’s continuing

demand, the party has little choice but to accede to the trial

court’s ruling and participate in the bench trial.” Id. (citation

omitted); see also Lovelace v. Dall, 820 F.2d 223, 228 (7th

Cir. 1987) (“Another policy justifying the jury demand

waiver rule is the view that it is unfair to permit a party to

have a trial, discover that it has lost, and then raise the jury

issue because it is unsatisfied with the result of the trial.”).

The State seeks a second bite at the apple. It vigorously

participated in the evidentiary hearing without ever raising

the right to a jury trial. The State remained silent in the face

of statements from the district court that it was considering

treating, and then that it had treated, the hearing as a final

trial on the merits, which made it clear that the court

“intended to make fact determinations.” Fillmore, 358 F.3d

84 EDMO V. CORIZON

at 503. It also remained silent despite the district court

asking twice whether the hearing was one for a permanent

injunction—as clear a time as any to raise any concerns

about a jury trial.

The State raised the issue of a jury trial for the first time

on appeal, after the district court ruled against it. Even after

the district court’s ruling, the State made no objection or

claim to a jury trial. This conduct waived the State’s right to

a jury trial with respect to issues common to Edmo’s request

for an injunction ordering GCS and her legal claims.

VI. Conclusion

We apply the dictates of the Eighth Amendment today in

an area of increased social awareness: transgender health

care. We are not the first to speak on the subject, nor will

we be the last. Our court and others have been considering

Eighth Amendment claims brought by transgender prisoners

for decades. During that time, the medical community’s

understanding of what treatments are safe and medically

necessary to treat gender dysphoria has changed as more

information becomes available, research is undertaken, and

experience is gained. The Eighth-Amendment inquiry takes

account of that developing understanding. See Estelle,

429 U.S. at 102–03.

We hold that where, as here, the record shows that the

medically necessary treatment for a prisoner’s gender

dysphoria is gender confirmation surgery, and responsible

prison officials deny such treatment with full awareness of

the prisoner’s suffering, those officials violate the Eighth

Amendment’s prohibition on cruel and unusual punishment.

EDMO V. CORIZON 85

***

We affirm the district court’s entry of an injunction for

Edmo. However, we vacate the injunction to the extent it

applies to Corizon, Yordy, Siegert, Dr. Young, Dr. Craig,

and Dr. Whinnery, in their individual capacities, and remand

to the district court to modify the injunction accordingly.

The district court shall also modify the injunction to

substitute Al Ramirez in his official capacity as Warden of

ISCI for Yordy.

Although we addressed this appeal on an expedited

basis, it has been more than a year since doctors concluded

that GCS is medically necessary for Edmo. We urge the

State to move forward. We emphatically do not speak to

other cases, but the facts of this case call for expeditious

effectuation of the injunction.

In light of the nature and urgency of the relief at issue,

we will disfavor any motion, absent extraordinary

circumstances or consent from all parties, to extend the

period to petition for rehearing or rehearing en banc. Our

stay of the district court’s December 13, 2018 order shall

automatically terminate upon issuance of the mandate.

Costs on appeal are awarded to Edmo.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.