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; HENRY ATENCIO;

JEFF ZUMDA; HOWARD KEITH

YORDY; AL RAMIREZ, Warden;

RICHARD CRAIG; RONA SIEGERT,

Defendants.

2 EDMO V. CORIZON

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

Plaintiff-Appellee,

D.C. No.

v. 1:17-cv-00151-

BLW

IDAHO DEPARTMENT OF

CORRECTIONS; HENRY ATENCIO;

JEFF ZUMDA; HOWARD KEITH ORDER

YORDY; AL RAMIREZ, Warden;

RICHARD CRAIG; RONA SIEGERT,

Defendants-Appellants,

and

CORIZON, INC.; SCOTT ELIASON;

MURRAY YOUNG; CATHERINE

WHINNERY,

Defendants.

Filed February 10, 2020

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

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

Order;

Statement by Judge O’Scannlain;

Dissent by Judge Collins;

Dissent by Judge Bumatay

*

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

the Western District of Washington, sitting by designation.

EDMO V. CORIZON 3

SUMMARY **

Prisoner Civil Rights

The panel denied a petition for panel rehearing and

denied a petition for rehearing en banc on behalf of the court,

in a case in which the panel affirmed the district court’s entry

of a permanent injunction in favor of an Idaho state prisoner,

but vacated the injunction to the extent it applied to certain

defendants in their individual capacities, in the prisoner’s

action seeking medical treatment for gender dysphoria.

Respecting the denial of rehearing en banc, Judge

O’Scannlain, joined by Judges Callahan, Bea, Ikuta,

R. Nelson, Bade, Bress, Bumatay and VanDyke, stated that

with its decision not to rehear this case en banc, this court

became the first federal court of appeals to mandate that a

State pay for and provide sex-reassignment surgery to a

prisoner under the Eighth Amendment. Judge O’Scannlain

stated that the three-judge panel’s conclusion—that any

alternative course of treatment would be “cruel and unusual

punishment”—is as unjustified as it is unprecedented. To

reach such a conclusion, the court created a circuit split,

substituted the medical conclusions of federal judges for the

clinical judgments of prisoners’ treating physicians,

redefined the familiar “deliberate indifference” standard,

and, in the end, constitutionally enshrined precise and

partisan treatment criteria in what is a new, rapidly changing,

and highly controversial area of medical practice.

**

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

Dissenting from the denial of rehearing en banc, Judge

Collins stated that whether the defendant doctor was

negligent or not (a question on which Judge Collins

expressed no opinion), his treatment decisions did not

amount to “cruel and unusual punishment,” and the court

thus strayed far from any proper understanding of the Eighth

Amendment.

Dissenting from the denial of rehearing en banc, Judge

Bumatay, joined by Judges Callahan, Ikuta, R. Nelson, Bade

and VanDyke, and by Judge Collins as to Part II, stated that

by judicially mandating an innovative and evolving standard

of care, the panel effectively constitutionalized a set of

guidelines subject to ongoing debate and inaugurated yet

another circuit split. And by diluting the requisite state of

mind from “deliberate indifference” to negligence, the panel

effectively held that—contrary to Supreme Court

precedent—medical malpractice does become a

constitutional violation merely because the victim is a

prisoner.

EDMO V. CORIZON 5

ORDER

The full court was advised of the petition for rehearing

en banc. A judge requested a vote on whether to rehear the

matter en banc. The matter failed to receive a majority of

the votes of nonrecused active judges in favor of en banc

consideration. Fed R. App. P. 35.

The petition for rehearing en banc is DENIED. An

opinion respecting denial of rehearing en banc, prepared by

Judge O’Scannlain, and dissents from denial of rehearing en

banc prepared by Judge Collins and Judge Bumatay are filed

concurrently with this order.

O’SCANNLAIN, Circuit Judge, * with whom CALLAHAN,

BEA, IKUTA, R. NELSON, BADE, BRESS, BUMATAY,

and VANDYKE, Circuit Judges, join, respecting the denial

of rehearing en banc:

With its decision today, our court becomes the first

federal court of appeals to mandate that a State pay for and

provide sex-reassignment surgery to a prisoner under the

Eighth Amendment. The three-judge panel’s conclusion—

that any alternative course of treatment would be “cruel and

unusual punishment”—is as unjustified as it is

unprecedented. To reach such a conclusion, the court creates

a circuit split, substitutes the medical conclusions of federal

*

As a judge of this court in senior status, I no longer have the power

to vote on calls for rehearing cases en banc or formally to join a dissent

from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. P.

35(a). Following our court’s general orders, however, I may participate

in discussions of en banc proceedings. See Ninth Circuit General Order

5.5(a).

6 EDMO V. CORIZON

judges for the clinical judgments of prisoners’ treating

physicians, redefines the familiar “deliberate indifference”

standard, and, in the end, constitutionally enshrines precise

and partisan treatment criteria in what is a new, rapidly

changing, and highly controversial area of medical practice.

Respectfully, I believe our court’s unprecedented

decision deserved reconsideration en banc.

I

A

In 2012, Adree Edmo (then known as Mason Dean

Edmo) was incarcerated for sexually assaulting a sleeping

15-year-old boy. By all accounts, Edmo is afflicted with

profound and complex mental illness. She 1 suffers from

major depressive disorder, anxiety, alcohol addiction, and

drug addiction. At least two clinicians have concluded that

she shares the traits of borderline personality disorder. She

abused alcohol and methamphetamines every day for many

years, stopping only upon her incarceration. A victim of

sexual abuse at an early age, she attempted suicide three

times before her arrest for sexual assault—twice by overdose

and once by cutting.

A new diagnosis was added in 2012: gender dysphoria.

Two months after being transferred to the Idaho State

Correctional Institution (a men’s prison), Edmo sought to

speak about hormone therapy with Dr. Scott Eliason, the

Board-certified director of psychiatry for Corizon, Inc. (the

prison’s medical care provider). In Dr. Eliason’s view,

1

Though Edmo was born a male, Edmo has legally changed the sex

listed on her birth certificate to female. I therefore use feminine

pronouns throughout, just as the panel does.

EDMO V. CORIZON 7

Edmo met the criteria for gender dysphoria. 2 After the

diagnosis was confirmed by another forensic psychiatrist

and the prison’s Management and Treatment Committee,

Edmo was prescribed hormone therapy. She soon changed

her legal name and the sex listed on her birth certificate. As

a result of four years of hormone therapy, Edmo experienced

physical changes, including breast development,

redistribution of body fat, and a change in body odor. She

now has the same circulating hormones as a typical adult

female.

In April 2016, at Edmo’s request, Dr. Eliason evaluated

her for sex-reassignment surgery. 3 Ultimately, Dr. Eliason

decided to maintain the current course of hormones and

supportive counseling instead of prescribing surgery. He

staffed Edmo’s case with Dr. Jeremy Stoddart (a

psychiatrist) and Dr. Murray Young (a physician who served

as the Regional Medical Director for Corizon), as well as

Jeremy Clark, a clinical supervisor and member of the World

Professional Association for Transgender Health

(“WPATH”). He also presented the evaluation and vetted it

2

Gender dysphoria is a diagnosis introduced in the latest, fifth

edition of the American Psychiatric Association’s Diagnostic and

Statistical Manual of Mental Disorders. It replaces the now-obsolete

“gender identity disorder” used in the previous edition. The gender

dysphoric patient experiences “clinically significant distress or

impairment in social, occupational, or other important areas of

functioning” that is associated with the feeling of incongruence between

perceived gender identity and phenotypic sex. See Am. Psychiatric

Ass’n, Diagnostic and Statistical Manual of Mental Disorders 453 (5th

ed. 2013).

3

The panel adopts the question-begging term “gender confirmation

surgery,” which is preferred by Edmo and her lawyers. I will continue

to use the neutral “sex-reassignment surgery.”

8 EDMO V. CORIZON

before the regular meeting of the multidisciplinary

Management Treatment Committee.

Dr. Eliason, supported by Dr. Stoddart, Dr. Young, and

Clark, opted not to recommend sex-reassignment surgery for

several reasons, some of which are described in his chart

notes and others of which were elaborated in their testimony.

First, Dr. Eliason noted that Edmo reported that the hormone

therapy had improved her dysphoria and Eliason “did not

observe significant dysphoria.” In the absence of more

severe distress, Dr. Eliason could not justify the risks of

pursuing the most aggressive—and permanent—treatment

through surgery. Second, Dr. Eliason observed that Edmo’s

comorbid conditions—major depressive disorder and

alcohol use disorder, among others—were not adequately

controlled. Edmo had refused to attend therapy consistently

in prison. She also engaged in self harm (including cutting

and attempted castration) and exhibited co-dependency and

persistently poor sexual boundaries with other prisoners. In

Dr. Eliason’s view, Edmo’s other mental health disorders

were not sufficiently stabilized to handle the stressful

process of surgery and transition. Finally, Dr. Eliason

observed that Edmo—who was parole-eligible and due to be

released in 2021—had not lived among her out-of-prison

social network as a woman. He noted the high suicide rates

for postoperative patients and was concerned that Edmo

might be at greater risk of suicide given the potential lack of

support from family, friends, coworkers, and neighbors

during her transition. Dr. Eliason did not rule out the

possibility of Edmo receiving sex-reassignment surgery at

some later point. As Dr. Eliason put it in his notes on his

consultation with Edmo, “Medical Necessity for Sexual

Reassignment Surgery is not very well defined and is

constantly shifting.” Citing the changing nature of the

EDMO V. CORIZON 9

science and the contingent nature of his evaluation of Edmo,

his recommendations were merely “for the time being.”

B

About a year after her evaluation, Edmo filed this § 1983

lawsuit against Dr. Eliason, the Idaho Department of

Corrections, Corizon, and several other individuals, alleging

that the prison doctors’ treatment choice violated her right to

be free from cruel and unusual punishment under the Eighth

and Fourteenth Amendments. She then moved for a

preliminary injunction to require the prison to provide her

with sex-reassignment surgery.

The district court held an evidentiary hearing on the

motion. At the outset of the hearing, the court commented

that it was hard “to envision” how a request to mandate sex-

reassignment surgery could be granted through anything

other than a permanent injunction. Nonetheless, the district

court evaluated Edmo’s motion under the preliminary

injunction standard and, only out of “an abundance of

caution,” provided a footnote evaluating whether an

injunction was merited under the more demanding standard

for a permanent injunction (which the court erroneously

described as “no more rigorous than that applicable to a

claim for preliminary mandatory relief”). Edmo v. Idaho

Dep’t of Corr., 358 F. Supp. 3d 1103, 1122 n.1 (D. Idaho

2018); see Edmo v. Corizon, Inc., 935 F.3d 757, 784 n.13

(9th Cir. 2019) (“[T]he standard for granting permanent

injunctive relief is higher (in that it requires actual success

on the merits) . . . .”).

In addition to testimony from Edmo, Dr. Eliason, and

Jeremy Clark, the evidentiary hearing featured testimony

from four expert witnesses. Edmo presented Dr. Randi

Ettner, a psychologist, and Dr. Ryan Gorton, an emergency

10 EDMO V. CORIZON

room physician. Dr. Ettner is one of the authors of the World

Professional Association of Transgender Health’s Standards

of Care for the Health of Transsexual, Transgender, and

Gender Nonconforming People and chairs WPATH’s

Committee for Institutionalized Persons. Dr. Gorton serves

on that committee too. WPATH—formerly the Harry

Benjamin International Gender Dysphoria Association—

describes itself as a “professional association” devoted “to

developing best practices and supportive policies worldwide

that promote health, research, education, respect, dignity,

and equality for transsexual, transgender, and gender

nonconforming people in all cultural settings.” World Prof’l

Ass’n for Transgender Health, Standards of Care for the

Health of Transsexual, Transgender, and Gender-

Nonconforming People 1 (7th ed. 2011) (“WPATH

Standards”). One of WPATH’s central functions is to

promulgate Standards of Care, which offer minimalist

treatment criteria for several possible approaches to gender

dysphoria, from puberty-blocking hormones to sex-

reassignment surgery.

In addition to Dr. Eliason and Mr. Clark, the State

presented Dr. Keelin Garvey, the Chief Psychiatrist of the

Massachusetts Department of Corrections and chair of its

Gender Dysphoria Treatment Committee, and Dr. Joel

Andrade, a clinical social worker who served as clinical

director for the Massachusetts Department of Corrections

and served on its Gender Dysphoria Treatment Committee.

Each set of experts had gaps in their relevant experience.

Edmo’s experts had never treated inmates with gender

dysphoria, while the State’s experts had never conducted

long-term follow-up care with a patient who had undergone

sex-reassignment surgery.

EDMO V. CORIZON 11

Edmo’s experts testified that, in their opinion, Edmo

needs sex-reassignment surgery. They based their

conclusion on the latest edition of WPATH Standards of

Care, which contain six criteria for sex-reassignment

surgery:

(1) “persistent, well documented gender dysphoria,”

(2) “capacity to make a fully informed decision and to

consent for treatment,”

(3) “age of majority,”

(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,”

(6) “12 continuous months of living in a gender role that

is congruent with their gender identity.”

Id. at 60. In the opinion of Edmo’s experts, Edmo met all

six criteria and was unlikely to show further improvement in

her gender dysphoria without such surgery.

The State’s experts disagreed on three main grounds.

First, they did not regard the WPATH Standards as definitive

treatment criteria, let alone medical consensus. In their

analysis, the evidence underlying the WPATH Standards is

not sufficiently well developed, particularly when it comes

to the treatment of gender dysphoric prisoners. Therefore,

they opined that a prudent, competent doctor might rely on

clinical judgment that differs from the (already ambiguous)

WPATH Standards. Second, the State’s experts testified

that, even under WPATH, Edmo failed to meet the fourth

12 EDMO V. CORIZON

criterion for surgery, which requires that the patient’s other

mental health concerns be well controlled in order to reduce

the risks associated with transitioning. In the view of the

State’s experts, her mental health raised the concern that she

would have trouble transitioning. For their part, Edmo’s

experts argued that Edmo’s depression and addiction were

controlled enough for surgery and that some current

symptoms (such as self-cutting) stem from her gender

dysphoria and therefore can be alleviated with surgery.

Finally, the State’s experts testified that Edmo also failed to

meet the WPATH Standards’ sixth criterion for surgery,

which requires that Edmo live as a woman for twelve months

before surgery. In their view, it was essential that Edmo live

those twelve months outside of prison—that is, within her

social network—in order to be adequately sure that she and

her social network are ready for the challenges posed by

transitioning. Edmo’s experts disagreed, noting that

WPATH says treatment in prisons should “mirror” treatment

outside of prisons.

C

Although this appeal is from a grant of a preliminary

injunction, at some point the evidentiary hearing on the

motion for a preliminary injunction was consolidated into a

final bench trial on the merits. It is hard to know when (or

if) the parties were given the requisite “clear and

unambiguous notice” of consolidation. See Isaacson v.

Horne, 716 F.3d 1213, 1220 (9th Cir. 2013); see also Univ.

of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).

The district court applied the Supreme Court’s oft-cited

rule that “deliberate indifference to serious medical needs of

prisoners constitutes the ‘unnecessary and wanton infliction

of pain’ proscribed by the Eighth Amendment.” Estelle v.

Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v.

EDMO V. CORIZON 13

Georgia, 428 U.S. 153, 173 (1976)). The State agreed that

gender dysphoria is a serious medical need, so the only

question on the merits is whether Dr. Eliason and his team

were “deliberately indifferent” as a matter of law.

The district court concluded that the State’s experts were

“unconvincing” and gave their opinions “virtually no

weight.” Edmo, 358 F. Supp. 3d at 1125–26. Once such

expert testimony was set aside, the district court held that

any decision not to prescribe sex-reassignment surgery

would be “medically unacceptable under the circumstances”

and would therefore violate the Eighth Amendment. Id.

at 1127. Accordingly, the district court entered an injunction

ordering the State to “take all actions reasonably necessary

to provide Ms. Edmo gender confirmation surgery as

promptly as possible.” Id. at 1129.

D

The panel has now affirmed the injunction. See Edmo,

935 F.3d at 803. Concluding that sex-reassignment surgery

was “medically necessary” and that the prison officials chose

a different course of treatment “with full awareness of the

prisoner’s suffering,” the panel holds that Dr. Eliason and

the other prison officials “violate[d] the Eighth

Amendment’s prohibition on cruel and unusual

punishment.” Id.

To reach its conclusion that sex-reassignment surgery

was medically necessary, the panel spends most of its

lengthy opinion extolling and explaining the WPATH

Standards of Care. Because Dr. Eliason failed to “follow”

or “reasonably deviate from” the WPATH Standards, the

panel concluded that his treatment choice was “medically

unacceptable under the circumstances.” Id. at 792. To reach

the ultimate conclusion—that Dr. Eliason had a deliberately

14 EDMO V. CORIZON

indifferent state of mind and was consequently in violation

of the Eighth Amendment—the panel posited that

Dr. Eliason’s awareness of the risks that Edmo would

attempt to castrate herself or feel “clinically significant”

distress “demonstrates that Dr. Eliason acted with deliberate

indifference.” Id. at 793. Each conclusion was legal error.

II

“Deliberate indifference is a high legal standard.”

Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). It

is, after all, under governing precedent one form of the

“unnecessary and wanton infliction of pain” that is the sine

qua non of an Eighth Amendment violation. Estelle,

429 U.S. at 104 (quoting Gregg v. Georgia, 428 U.S. 153,

173 (1976)). Simply put, Edmo must prove that

Dr. Eliason’s chosen course of treatment was the doing of a

criminally reckless—or worse—state of mind. Farmer v.

Brennan, 511 U.S. 825, 839 (1994).

We have stated that a deliberately indifferent state of

mind may be inferred when “the course of treatment the

doctors chose was medically unacceptable under the

circumstances” and “they chose this course in conscious

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

v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Yet even

most objectively unreasonable medical care is not

deliberately indifferent. “[M]ere ‘indifference,’

‘negligence,’ or ‘medical malpractice’” is not enough to

constitute deliberate indifference. Lemire v. Cal. Dep’t of

Corr. & Rehab., 726 F.3d 1062, 1082 (9th Cir. 2013)

(quoting Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th

Cir. 1980)). “Even gross negligence is insufficient to

establish deliberate indifference . . . .” Id. Likewise, “[a]

difference of opinion between a physician and the prisoner—

or between medical professionals—concerning what

EDMO V. CORIZON 15

medical care is appropriate does not amount to deliberate

indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th

Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th

Cir. 1989)), overruled on other grounds by Peralta v.

Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc).

Although the panel organizes its opinion according to the

dictum we first articulated in Jackson, it so contorts the

standard as to render deliberate indifference exactly what we

have said it is not: a constitutional prohibition on good-faith

disagreement between medical professionals.

A

The panel first, and fundamentally, errs by

misunderstanding what it means for a chosen treatment to be

medically “unacceptable” for purposes of the Eighth

Amendment. As did the district court, the panel concludes

that the decision to continue hormone treatment and

counseling instead of sex-reassignment surgery for Edmo

was “medically unacceptable under the circumstances”

because, in short, Dr. Eliason failed to “follow” or

“reasonably deviate from” the WPATH Standards of Care.

Edmo, 935 F.3d at 792. Yet such an approach to the Eighth

Amendment suffers from three essential errors. First,

contrary to the panel’s suggestion, constitutionally

acceptable medical care is not defined by the standards of

one organization. Second, the panel relies on standards that

were promulgated by a controversial self-described

advocacy group that dresses ideological commitments as

evidence-based conclusions. Third, once the WPATH

Standards are put in proper perspective, we are left with a

“case of dueling experts,” compelling the conclusion that Dr.

Eliason’s treatment choice was indeed medically acceptable.

16 EDMO V. CORIZON

1

A mere professional association simply cannot define

what qualifies as constitutionally acceptable treatment of

prisoners with gender dysphoria. In Bell v. Wolfish, 441 U.S.

520 (1979), the Supreme Court rejected the argument that

prison conditions must reflect those set forth in the American

Public Health Association’s Standards for Health Services in

Correctional Institutions, the American Correctional

Association’s Manual of Standards for Adult Correctional

Institutions, or the National Sheriffs’ Association’s

Handbook on Jail Architecture. Id. at 543 n.27. According

to the Court, “the recommendations of these various groups

may be instructive in certain cases, [but] they simply do not

establish the constitutional minima.” Id. After all, even

acclaimed, leading treatment criteria only represent the

“goals recommended by the organization in question” and

the views of the promulgating physicians, 4 and so, without

more, a physician’s disagreement with such criteria is simply

the “‘difference of medical opinion’ . . . [that is] insufficient,

as a matter of law, to establish deliberate indifference.” Id.;

Jackson, 90 F.3d at 332 (quoting Sanchez, 891 F.2d at 242);

accord Snow, 681 F.3d at 987; see also Long v. Nix, 86 F.3d

761, 765 (8th Cir. 1996) (“[N]othing in the Eighth

Amendment prevents prison doctors from exercising their

independent medical judgment.”).

In its discussion of the role of treatment standards, the

panel fails to cite a single case in which a professional

organization’s standards of care defined the line between

medically acceptable and unacceptable treatment. Instead,

the panel cites two cases, one from the Seventh Circuit and

4

Although, as we will see, only half of the committee that

promulgates the WPATH Standards are physicians.

EDMO V. CORIZON 17

one from the Eighth, for the proposition that professional

organizations’ standards of care are “highly relevant in

determining what care is medically acceptable and

unacceptable.” Edmo, 935 F.3d at 786 (emphasis added).

That may be. But as those two cases demonstrate, the range

of medically acceptable care is defined by qualities of that

care (or of its opposite) and not by professional associations.

Medically unacceptable care is “grossly incompetent or

inadequate care,” Allard v. Baldwin, 779 F.3d 768, 772 (8th

Cir. 2015), or care that constitutes “such a substantial

departure from accepted professional judgment to

demonstrate that the person responsible did not base the

decision on . . . [accepted professional] judgment,”

Henderson v. Ghosh, 755 F.3d 559, 566 (7th Cir. 2014)

(original parenthetical) (quoting McGee v. Adams, 721 F.3d

474, 481 (7th Cir. 2013) (stipulating that “medical

professionals . . . are ‘entitled to deference in treatment

decisions unless no minimally competent professional

would have so responded’”)). For its part, the First Circuit

holds in its own sex-reassignment-surgery case that medical

care does not violate the Eighth Amendment so long as it is

“reasonably commensurate with the medical standards of

prudent professionals.” Kosilek v. Spencer, 774 F.3d 63, 90

(1st Cir. 2014) (en banc). The panel is alone in its insistence

that a professional association’s standards add up to the

constitutional minima. 5

5

Far from countering such assertions, the panel’s concession that

“deviation from [WPATH] standards does not alone establish an Eighth

Amendment claim” is just a truism that recognizes that the Eighth

Amendment also contains a subjective element. Edmo, 935 F.3d at 789.

Moreover, such a statement serves simply to repeat the panel’s faulty

premise that the WPATH Standards are the appropriate reference point

in any analysis of medical acceptability.

18 EDMO V. CORIZON

2

In the words of the panel, speaking for our court, the

WPATH Standards are “the gold standard,” the “established

standards” for evaluations of the necessity of sex-

reassignment surgery, the “undisputed starting point in

determining the appropriate treatment for gender dysphoric

individuals.” Edmo, 935 F.3d at 787–88, 788 n.16. But such

overwrought acclaim is just the beginning of the panel’s

thorough enshrinement of the WPATH Standards. The

district court chose which expert to rely on by looking at

which expert hewed most closely to the WPATH Standards

of Care. See Edmo, 358 F. Supp. 3d at 1124–26. And the

panel uncritically approves such an approach, calling the

WPATH Standards “a useful starting point for analyzing the

credibility and weight to be given to each expert’s opinion.”

Edmo, 935 F.3d at 788 n.16. By rejecting any expert not (in

the court’s view) appropriately deferential to WPATH, the

district court and now the panel have effectively decided ab

initio that only the WPATH Standards could constitute

medically acceptable treatment. 6

6

In enshrining the WPATH Standards as the “gold standard” for

determining when to provide surgery to a prisoner with gender

dysphoria, the panel makes much of the State’s comment in its opening

statement before the evidentiary hearing that the WPATH Standards are

the “best standards out there.” Edmo, 935 F.3d at 769, 788 n.16. The

panel even goes so far as to insist that “[b]oth sides . . . agree that the

appropriate benchmark regarding treatment for gender dysphoria is the

World Professional Association of Transgender Health Standards of

Care for the Health of Transsexual, Transgender, and Gender

Nonconforming People.” Id. at 767. But, contrary to the panel’s

suggestion, the State’s admission that the WPATH Standards are more

refined than any alternative hardly means that the State agrees—or the

Eighth Amendment requires—that a medical provider must base

treatment decisions on WPATH’s criteria. Indeed, before the district

EDMO V. CORIZON 19

One would be forgiven for inferring from the panel’s

opinion that its bold assertions about the WPATH Standards

are uncontroverted truths. But, as the Fifth Circuit has

recognized, “the WPATH Standards of Care reflect not

consensus, but merely one side in a sharply contested

medical debate over sex reassignment surgery.” Gibson v.

Collier, 920 F.3d 212, 221 (5th Cir. 2019). For its part, the

First Circuit, sitting en banc, has likewise held that

“[p]rudent medical professionals . . . do reasonably differ in

their opinions regarding [WPATH’s] requirements.”

Kosilek, 774 F.3d at 88. Our court should have done the

same.

The WPATH Standards are merely criteria promulgated

by a controversial private organization with a declared point

of view. According to Dr. Stephen Levine, author of the

WPATH Standards’ fifth version, former Chairman of

WPATH’s Standards of Care Committee, and the court-

appointed expert in Kosilek, WPATH attempts to be “both a

scientific organization and an advocacy group for the

transgendered. These aspirations sometimes conflict.” Id. at

78. Sometimes the pressure to be advocates wins the day.

As Levine put it, “WPATH is supportive to those who want

sex reassignment surgery. . . . Skepticism and strong

alternate views are not well tolerated. Such views have been

known to be greeted with antipathy from the large numbers

of nonprofessional adults who attend each [of] the

organization’s biennial meetings . . . .” Id. (ellipses and

court and before our court, the State clearly rejected the notion that any

particular treatment criteria defines what is medically acceptable, stating

that Dr. Eliason’s choice “should be ratified as long as it is a reasonable

choice.” The panel erroneously construes the State’s refusal to concede

that it violated the WPATH Standards as a concession that such

standards are the “benchmark” of legally acceptable medical care.

20 EDMO V. CORIZON

brackets original). WPATH’s own description of its drafting

process makes this clear. Initially, the sections of the sixth

version were each assigned to an individual member of

WPATH who then published a literature review with

suggested revisions. WPATH Standards, supra, at 109. The

suggested revisions were then discussed and debated by a

thirty-four-person Revision Committee, all before a

subcommittee drafted the new document. Id. at 109–11.

Only about half of the Revision Committee possesses a

medical degree. The rest are sexologists, psychotherapists,

or career activists, with a sociologist and a law professor

rounding out the group. Id. at 111.

The pressure to be advocates appears to have won the

day in the WPATH Standards’ recommendations regarding

institutionalized persons. Recall that one central point of

contention between the State’s witnesses and Edmo’s was

over whether Edmo’s time undergoing hormone therapy in

prison provides sufficient guarantee that she could live well

outside of prison as a woman without having ever done so

before. The district court resolved the debate by citing the

WPATH Standards’ section on institutionalized persons, see

Edmo, 358 F. Supp. 3d at 1125, which tersely stipulates that

institutionalized persons should not be “discriminated

against” on the basis of their institutionalization, WPATH

Standards, supra, at 67. Such a recommendation is not

supported by any research about the similarity between

prisoners’ experiences with sex-reassignment surgery and

that of the general public. Indeed, as Edmo’s expert witness

and WPATH author, Dr. Randi Ettner, admits, there is only

one known instance of a person undergoing sex-

reassignment surgery while incarcerated—leaving medical

knowledge about how such surgery might differ totally

undeveloped.

EDMO V. CORIZON 21

Instead, WPATH’s recommendation for institutionalized

persons merely expresses a policy preference. The article

from which the recommendations are adapted stipulates

upfront that, because WPATH’s “mission” is “to advocate

for nondiscriminatory” care, it presumes that treatment

choices should be the same for all “demographic variables,

unless there is a clinical indication to provide services in a

different fashion.” George R. Brown, Recommended

Revisions to the World Professional Association for

Transgender Health’s Standards of Care Section on Medical

Care for Incarcerated Persons with Gender Identity

Disorder, 11 Int’l J. of Transgenderism 133, 134 (2009).

Unable to make an evidentiary finding from a sample size of

one, the article concludes that its presumption should set the

standard of care and then proceeds to recommend revisions

with the express purpose of influencing how courts review

gender dysphoria treatments under the Eighth Amendment.

Id. at 133, 135. As a later peer-reviewed study by

Dr. Cynthia Osborne and Dr. Anne Lawrence put it,

WPATH’s institutionalized-persons recommendations

follow from an “ethical principle,” not “extensive clinical

experience.” 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 (2016).

Even apart from the concerns over WPATH’s

ideological commitments, its evidentiary basis is not

sufficient to justify the court’s reliance on its strict terms.

The WPATH Standards seem to suggest as much. In its own

words, the WPATH Standards are simply “flexible clinical

guidelines,” which explicitly allow that “individual health

professionals and programs may modify them.” WPATH

Standards, supra, at 2. Indeed, the most recent WPATH

Standards “represents a significant departure from previous

22 EDMO V. CORIZON

versions” in part due to significant changes in researchers’

conclusions over the preceding decade. Id. at 1 n.2.

Moreover, the WPATH Standards lack the evidence-based

grading system that characterizes archetypal treatment

guidelines, such as the Endocrine Society’s hormone therapy

guidelines. Lacking evidence-based grading, the WPATH

Standards leave practitioners in the dark about the strength

of a given recommendation. See William Byne et al., Report

of the American Psychiatric Association Task Force on

Treatment of Gender Identity Disorder, 41 Archives of

Sexual Behav. 759, 783 (2012) (concluding that “the level

of evidence” supporting WPATH’s Standards’ criteria for

sex-reassignment surgery “was generally low”). For these

reasons, the Centers for Medicare & Medicaid Services, an

agency of the United States Department of Health and

Human Services, decided, “[b]ased on a thorough review of

the clinical evidence,” that providers may consult treatment

criteria other than WPATH, including providers’ own

criteria. Ctrs. for Medicare & Medicaid Servs, Proposed

Decision Memo for Gender Dysphoria and Gender

Reassignment Surgery (June 2, 2016); Ctrs. for Medicare &

Medicaid Servs, Decision Memo for Gender Dysphoria and

Gender Reassignment Surgery (Aug. 30, 2016).

3

The panel’s disposition results from its failure to put the

WPATH Standards in proper perspective. Had the district

court understood that Edmo’s experts’ role in WPATH

marks them not with special insight into the legally

acceptable care, but rather as mere participants in an ongoing

medical debate, they would have acknowledged this case for

what it is: a “case of dueling experts.” Edmo, 935 F.3d

at 787. Instead of giving Drs. Garvey and Andrade (to say

nothing of Dr. Eliason) “no weight” due to their insufficient

EDMO V. CORIZON 23

fealty to WPATH, the district court should have recognized

them as legitimate, experienced participants in that debate.

And had the State’s experts’ criticisms of and interpretation

of the WPATH Standards been given proper weight—any

weight at all—the district court would have had to conclude

that the State’s disagreement with Edmo’s experts was a

mere “difference of medical opinion,” not a constitutional

violation. Jackson, 90 F.3d at 332.

So too with its assessment of Dr. Eliason’s treatment

choice. It is instructive that the worst the district court can

say about Dr. Eliason is that he “did not apply the WPATH

criteria.” Edmo, 358 F. Supp. 3d at 1126. Focusing the

analysis not on whether Dr. Eliason applied the standards of

a professional association but rather on whether the

treatment choice was within that of a prudent, competent

practitioner, the cautious treatment selected by Dr. Eliason

is plainly constitutionally acceptable.

As Drs. Garvey and Andrade explain, it is medically

acceptable to offer Edmo a treatment of hormone therapy

and psychotherapy but not sex-reassignment surgery. The

practitioners’ fear that sex-reassignment surgery would

exacerbate Edmo’s other mental illnesses and increase the

risk of surgery was a genuine and sound fear. As Dr. Garvey

put it, “[b]ased on her current coping strategies, I would be

concerned about her suicide risk after surgery.” Although

the measured “regret rate,” which refers to the proportion of

postoperative patients who regret their surgery, is “low,” see

Edmo, 935 F.3d at 771, the district court and the panel failed

to acknowledge detailed testimony that those studies

neglected to follow up with such a high proportion of the

observed sample that the stated figure does not “represent

the full picture.” In Dr. Andrade’s opinion, “I think there are

things she needs to work out in therapy in the short and long

24 EDMO V. CORIZON

term before she can make a really well-informed decision

about surgery.” He raised the concern that Edmo is

particularly at risk because of “unresolved trauma” that may

stem, not from gender dysphoria, but instead from past

sexual abuse.

Dr. Eliason’s view that Edmo needed to have lived as a

woman outside of prison in order to ensure that she would

be able to adapt well after the surgery was also legitimate.

Indeed, under the peer-reviewed treatment criteria

developed by Drs. Osborne and Lawrence, Edmo was not

eligible for sex-reassignment surgery for these exact reasons.

Acknowledging the lack of evidence concerning the effects

of sex-reassignment surgery on inmates, the unique

challenges imposed by the correctional setting, and the

significant risk of patient regret, Drs. Osborne and Lawrence

proposed criteria that require a prospective patient have “a

satisfactory disciplinary record and demonstrated capacity to

cooperate” and “a long period of expected incarceration after

[surgery],” among others. Osborne & Lawrence, supra,

at 1661. This latter criterion helps to ensure that male-to-

female patients have “a longer period of time to consolidate

one’s feminine gender identity and gender role.” Id. at 1660;

see also id. at 1656 (“[I]nmates with [gender dysphoria] who

attempt to live in female-typical gender roles within men’s

prisons . . . could not effectively prepare” for life after

surgery.) The district court disregarded such additional,

peer-reviewed treatment criteria because they “are not part

of the WPATH criteria and are in opposition to the WPATH

Standards of Care.” Edmo, 358 F. Supp. 3d at 1126. Had

the district court taken a step back and considered not

whether Osborne and Lawrence were WPATH-compliant

but rather whether a competent physician could rely on their

reasoning, it would have had to conclude that Dr. Eliason’s

treatment choice was that of a competent, prudent physician.

EDMO V. CORIZON 25

Perhaps recognizing such problems with the district

court’s definition of medical unacceptability, the panel

concludes its medical-unacceptability analysis by changing

the subject. Instead of considering whether Dr. Eliason’s

choice of treatment was medically unacceptable, the panel

fixates on Dr. Eliason’s chart notes, which sets forth three

general categories in which he believes sex-reassignment

surgery may be required: (1) “Congenital malformation or

ambiguous genitalia,” (2) “Severe and devastating dysphoria

that is primarily due to genitals,” (3) or “Some type of

medical problem in which endogenous sexual hormones

were causing severe physiological damage.” According to

the panel, such categories “bear little resemblance” to the

WPATH Standards and therefore “Dr. Eliason’s evaluation

was not an exercise of medically acceptable professional

judgment.” Edmo, 935 F.3d at 791–92. In the first place,

Dr. Eliason’s categories are not meant to substitute for

treatment standards. Such categories describe three broad

pools of eligible patients; whether a particular patient

belongs in a certain pool—by having dysphoria sufficiently

severe to require sex-reassignment surgery, for instance—

would be resolved by more detailed evaluative criteria. In

the second place, conformity to WPATH is not the test of

constitutionally acceptable treatment of gender dysphoria.

But more broadly, the panel simply asks the wrong question.

Deliberate indifference may be inferred when “the course of

treatment the doctors chose was medically unacceptable

under the circumstances,” not when the doctors’

contemporaneous explanation of the choice is incomplete.

Jackson, 90 F.3d at 332 (emphasis added); see also Snow,

681 F.3d at 988; Toguchi, 391 F.3d at 1058; Hamby v.

Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (all referring

to the “course of treatment,” not the rationale). It does not

matter that Dr. Eliason’s testimony justifies his treatment

choice in ways not explicit in his chart notes such that the

26 EDMO V. CORIZON

panel calls his testimony a “post hoc explanation.” Edmo,

935 F.3d at 791. So long as the ultimate treatment choice

was medically acceptable, our precedents tell us, we cannot

infer “the unnecessary and wanton infliction of pain” that

violates the Eighth Amendment.

B

Even were the panel correct that the only medically

acceptable way to approach a gender dysphoric patient’s

request for sex-reassignment surgery is to apply the WPATH

Standards of Care, we still could not infer a constitutional

violation from these facts. As the Supreme Court has

explained, the Eighth Amendment simply proscribes

categories of punishment, and punishment is “a deliberate

act intended to chastise or deter.” Wilson v. Seiter, 501 U.S.

294, 299–300 (1991). “[O]nly the ‘unnecessary and wanton

infliction of pain’ implicates the Eighth Amendment.” Id.

at 297 (quoting Estelle, 429 U.S. at 104) (emphasis original).

Hence the commonplace deliberate-indifference inquiry,

which is a culpability standard equivalent to criminal

recklessness. Farmer, 511 U.S. at 839–40. Simply put,

unless the official “knows of and disregards an excessive

risk to inmate health and safety,” he does not violate the

Eighth Amendment. Id. at 837.

1

With little explanation, the panel castigates Dr. Eliason

for having “disregarded” risks that he directly and

forthrightly addressed. Edmo, 935 F.3d at 793. Far from

disregarding the risk that Edmo would attempt to castrate

herself, Dr. Eliason investigated the causes of such a risk and

took concrete steps to mitigate it. Edmo’s self-harm

(including her castration attempts) followed closely after her

disciplinary infractions and other severe stressors.

EDMO V. CORIZON 27

Identifying this causal connection, Dr. Eliason prescribed

and encouraged regular counseling to address Edmo’s acting

out and her ability to cope. Dr. Eliason also sought to further

deter self-castration by explaining to Edmo that she will

need to have intact genitals for any eventual surgery,

something Edmo now understands and articulated in her

testimony. Likewise, contrary to the panel’s conclusion that

he disregarded the risk of continued distress, Dr. Eliason

opted for a treatment of continued hormone therapy and

more regular supportive counseling precisely because

hormone therapy had already substantially ameliorated the

distress from the dysphoria.

Furthermore, the panel errs by fixating on such

individual risks. Physicians ministrate to whole individuals

with whole diseases. Thus, individual risks may—and

frequently do—persist for the sake of the overall health of

the person. Dr. Eliason and his staff clearly believed their

treatment choice would mitigate overall risk, including

grave risks the panel downplays. Given Edmo’s long-term

struggles with severe depression and addiction, coupled with

the fact that she had not lived as a woman within her social

network, Eliason and the other doctors with whom he staffed

the evaluation were concerned that she would have trouble

adjusting after surgery, which could lead to regret, relapse,

or new mood disorders. Ultimately, they worried that she

might attempt suicide again. Such risks are not trifling and,

in light of them, Dr. Eliason’s willingness to accept some

risk that Edmo would try to castrate herself or would

continue to feel the distress of gender dysphoria (while

taking steps to mitigate such risks) is anything but

deliberately indifferent.

28 EDMO V. CORIZON

2

None of this is to acquiesce in the straw-man argument

set up by the panel: that, so long as officials provide some

care, they are immunized from an Eighth Amendment claim.

One may assume that some medical care is indeed so

obviously inadequate that, without any direct evidence of the

defendant’s state of mind, we may infer that the defendant

was deliberately indifferent. See Farmer, 511 U.S. at 842

(remarking that deliberate indifference is “subject to

demonstration in the usual ways, including inference from

circumstantial evidence” and may be inferred “from the very

fact that the risk was obvious”). 7 But that is not this case.

Even in a legal universe in which the WPATH Standards

define adequate care, Dr. Eliason’s deviations were not

deliberately indifferent. He selected a course of treatment

that, in light of the complex of diagnoses, the grave risks,

and the rapidly evolving nature of the medical research, was

7

It should, however, be noted that the panel fails to identify a

precedent of ours in which we have inferred a physician’s deliberate

indifference solely from the inadequate nature of the treatment and the

persistence of known risks. In the nearest cases, some other

circumstantial evidence has suggested the obviousness of the inadequacy

such that the physician must have been aware of the inadequacy. E.g.,

Snow, 681 F.3d at 988 (non-specialist refused the recommendation of a

treating specialist); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir.

1992) (same); Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000)

(same); Hunt v. Dental Dep’t, 865 F.2d 198, 201 (9th Cir. 1989) (refusal

to replace the dentures prisoner had been prescribed); Jett v. Penner,

439 F.3d 1091, 1098 (9th Cir. 2006) (prisoner not referred to specialist

for reasons unrelated to the prisoner’s medical needs and medical records

were manipulated); Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir.

2014) (reliance on arbitrary prison policy). I do not doubt that mere

inadequacy may raise the inference of deliberate indifference, but we

seem to leave such an inference for cases of genuine quackery.

EDMO V. CORIZON 29

not obviously inadequate. Cf. Lemire, 726 F.3d at 1075 (“A

prison official’s deliberately indifferent conduct will

generally ‘shock the conscience’ so long as the prison

official had time to deliberate before acting . . . .”). He

subjected his assessment to a review process intended to

surface any possibility he was not considering, a review

process that included several doctors and a full committee.

And far from being an “unjustifiable” or “gross” deviation

from the WPATH Standards, he departed from WPATH by

raising the Standards’ own concerns for the presence of

comorbid conditions and the patient’s limited experience as

a woman. See Farmer, 511 U.S. at 839 (incorporating the

Model Penal Code’s definition of criminal recklessness);

Model Penal Code § 2.02(2)(c) (1985) (stating that the

criminally reckless individual “disregards a substantial and

unjustifiable risk” and that such disregard “involves a gross

deviation from the standard of conduct that a law-abiding

person would observe in the actor’s situation.”). Indeed, the

panel concludes that his deviations were simply not

“reasonable”—the test for negligent malpractice, not

deliberate indifference. Edmo, 935 F.3d at 792. “Eighth

Amendment liability requires ‘more than ordinary lack of

due care . . . .’” Farmer, 511 U.S. at 835 (quoting Whitley v.

Albers, 475 U.S. 312, 319 (1986)).

III

The panel’s novel approach to Eighth Amendment

claims for sex-reassignment surgery conflicts with every

other circuit to consider the issue. The panel acknowledges

such a circuit split with the Fifth Circuit’s opinion in Gibson

v. Collier, 920 F.3d 212 (5th Cir. 2019), but tries—and

fails—to distinguish the First Circuit’s en banc opinion in

Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014). See Edmo,

935 F.3d at 794–95. The panel does not even address a third

30 EDMO V. CORIZON

decision: the Tenth Circuit’s opinion in Lamb v. Norwood,

899 F.3d 1159 (10th Cir. 2018).

Just as in this case, the First Circuit considered an appeal

of an injunction mandating sex-reassignment surgery. But,

unlike our court, the First Circuit reversed. Though the panel

attempts to downplay the direct conflict between its opinion

and Kosilek by pointing to minor differences between the

factual circumstances in each case, 8 the decisive differences

are matters of law. As to whether the care was medically

unacceptable, the First Circuit held that medically acceptable

treatment of gender dysphoric prisoners is not synonymous

with the demands of WPATH. Kosilek first reversed the

district court’s finding that one of the State’s experts was

“illegitimate” because the district court “made a

significantly flawed inferential leap: it relied on its own—

non-medical—judgment” and put too much “weight” on the

WPATH Standards. Kosilek, 774 F.3d at 87–88. With that

expert now taken seriously, the First Circuit held that the

denial of Kosilek’s sex-reassignment surgery was medically

8

The differences between the circumstances in Kosilek and those in

this case are not substantial enough to distinguish the holdings. The

clinical judgments in each case were motivated by concerns about

coexisting mental health conditions and the risk of suicide. Kosilek,

774 F.3d at 72. Just as in this case, Kosilek surfaced expert opinions that

the WPATH Standards are best applied flexibly, that in-prison

experience in the newly assigned gender is not a sufficient guarantee of

ability to transition, and that practitioners face a “dearth of empirical

research” on sex-reassignment surgery. Id. at 72–73, 76. The “security

concerns” over how to house a potential postoperative Kosilek, which

the panel considers the foremost difference between the two cases, was

not even essential to Kosilek’s holding. See Edmo, 935 F.3d at 794;

Kosilek, 774 F.3d at 91–92 (concluding that the officials’ “choice of a

medical option . . . does not exhibit a level of inattention or callousness

to a prisoner’s needs rising to a constitutional violation” before even

analyzing the security concerns).

EDMO V. CORIZON 31

acceptable because it was within the bounds of “the medical

standards of prudent professionals.” Id. at 90. On the

question of deliberate indifference, the First Circuit applied

a test, which, unlike the panel’s inference from the

practitioners’ mere knowledge that a course of treatment

carried risks, asked whether the practitioners “knew or

should have known” that course of treatment was medically

unacceptable. Id. at 91.

For its part, the Fifth Circuit has held that good faith

denial of sex-reassignment surgery never violates the Eighth

Amendment. Recognizing “large gaps” in medical

knowledge and a “robust and substantial good faith

disagreement dividing respected members of the expert

medical community,” the Fifth Circuit concluded that “there

can be no claim [for sex-reassignment surgery] under the

Eighth Amendment.” Gibson, 920 F.3d at 220, 222. Indeed,

Texas’s refusal to even evaluate the inmate for sex-

reassignment surgery is, in the words of the Fifth Circuit, not

“so unconscionable as to fall below society’s minimum

standards of decency” and permit an Eighth Amendment

claim. Id. at 216 (quoting Kosilek, 774 F.3d at 96).

Finally, the Tenth Circuit has upheld the entry of

summary judgment against a prisoner’s Eighth Amendment

claim for sex-reassignment surgery. See Lamb, 899 F.3d

at 1163. As in this case, the doctor who evaluated the

prisoner in Lamb determined that “surgery is impractical and

unnecessary in light of the availability and effectiveness of

more conservative therapies.” Id. Adopting Kosilek’s

subjective standard—that an Eighth Amendment violation

would take place “only if prison officials had known or

should have known” that “sex reassignment surgery [was]

the only medically adequate treatment”—the Tenth Circuit

held that “prison officials could not have been deliberately

32 EDMO V. CORIZON

indifferent by implementing the course of treatment

recommended by a licensed medical doctor.” Id. at 1163 &

n.11 (citing Kosilek, 774 F.3d at 91).

Although I am not aware of any other circuits to have

directly addressed the questions posed in this case, 9 for its

part, the Seventh Circuit has held that it is at least not

“clearly established” that there is a constitutional right to

gender-dysphoria treatment beyond hormone therapy.

Campbell v. Kallas, 936 F.3d 536, 549 (7th Cir. 2019). Nor

is it “clearly established” that a prison medical provider is

prohibited from denying sex-reassignment surgery on the

basis of the patient’s status as an institutionalized person. Id.

at 541, 549.

With this decision, our circuit sets itself apart.

IV

I do not know whether sex-reassignment surgery will

ameliorate or exacerbate Adree Edmo’s suffering.

Fortunately, the Constitution does not ask federal judges to

put on white coats and decide vexed questions of psychiatric

medicine. The Eighth Amendment forbids the “unnecessary

and wanton infliction of pain,” not the “difference of opinion

between a physician and the prisoner—or between medical

9

The Seventh and Fourth Circuits (along with our own circuit) have

also held that arbitrary blanket bans on certain gender dysphoria

treatments can violate the Eighth Amendment—an issue not presented

here because Idaho evaluates prisoner requests for sex-reassignment

surgery on a case-by-case basis. See Rosati v. Igbinoso, 791 F.3d 1037,

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

2013); Fields v. Smith, 653 F.3d 550, 556 (7th Cir. 2011).

EDMO V. CORIZON 33

professionals.” Snow, 681 F.3d at 985, 987 (quoting Estelle,

429 U.S. at 104).

Yet today our court assumes the role of Clinical

Advisory Committee. Far from rendering an opinion

“individual to Edmo” that “rests on the record,” Edmo,

935 F.3d at 767, the panel entrenches the district court’s

unfortunate legal errors as the law of this circuit. Instead of

permitting prudent, competent patient care, our court

enshrines the WPATH Standards as an enforceable “medical

consensus,” effectively putting an ideologically driven

private organization in control of every relationship between

a doctor and a gender dysphoric prisoner within our circuit.

Instead of reserving the Eighth Amendment for the grossly,

unjustifiably reckless, the panel infers a culpable state of

mind from the supposed inadequacy of the treatment.

We have applied the traditional deliberate-indifference

standard to requests for back surgery, kidney transplant, hip

replacement, antipsychotic medication, and hernia surgery.

Yet suddenly the request for sex-reassignment surgery—and

the panel’s closing appeal to what it calls the “increased

social awareness” of the needs and wants of transgender

citizens—effects a revolution in our law! Id. at 803. The

temptation to stand at what we are told is society’s next

frontier and to invent a constitutional right to state-funded

sex-reassignment surgery does not justify the revision of

previously universal principles of Eighth Amendment

jurisprudence.

Dr. Eliason and the State’s other practitioners were not

deliberately indifferent—far from it. And they certainly

were not guilty of violating the Eighth Amendment. They

confronted the serious risks to Edmo’s health, especially the

gravest one. They considered the knotty quandary posed by

her overlapping illnesses and the vicissitudes of her life.

34 EDMO V. CORIZON

Mindful of the dictate “first do no harm,” these doctors

determined that the appropriate treatment would be more

cautious and more reversible than the one the patient desired.

And they did so in the shadow of the ongoing debate about

when the surgical replacement of the genitals is curative and

when it is not.

Surely this was not cruel and unusual punishment.

COLLINS, Circuit Judge, dissenting from the denial of

rehearing en banc:

The Supreme Court has held that a prisoner claiming that

his or her medical treatment is so inadequate that it

constitutes “cruel and unusual punishment” in violation of

the Eighth Amendment must make the demanding showing

that prison officials acted with “deliberate indifference” to

the prisoner’s “serious medical needs.” Estelle v. Gamble,

429 U.S. 97, 104 (1976). As judges of an “inferior Court[],”

see U.S. Const. art. III, § 1, we are bound to apply that

standard, but as Judge Bumatay explains, the panel here

effectively waters it down into a “mere negligence” test. See

infra at 47–48 (Bumatay, J., dissenting from denial of

rehearing en banc). That is, by narrowly defining the range

of “medically acceptable” options that the court believes a

prison doctor may properly consider in a case such as this

one, and by then inferring deliberate indifference from

Dr. Eliason’s failure to agree with that narrow range, the

district court and the panel have applied standards that look

much more like negligence than deliberate indifference. Id.

at 45–48. Whether Dr. Eliason was negligent or not (a

question on which I express no opinion), his treatment

decisions do not amount to “cruel and unusual punishment,”

and we have thus strayed far from any proper understanding

EDMO V. CORIZON 35

of the Eighth Amendment. I therefore join Part II of Judge

Bumatay’s dissent, and I respectfully dissent from our

failure to rehear this case en banc.

BUMATAY, Circuit Judge, with whom CALLAHAN,

IKUTA, R. NELSON, BADE, and VANDYKE, Circuit

Judges, join, and with whom COLLINS, Circuit Judge, joins

as to Part II, dissenting from the denial of rehearing en banc:

Like the panel and the district court, I hold great

sympathy for Adree Edmo’s medical situation. And as with

all citizens, her constitutional rights deserve the utmost

respect and vigilant protection. As the district court rightly

stated,

The Rule of Law, which is the bedrock of our

legal system, promises that all individuals

will be afforded the full protection of our

legal system and the rights guaranteed by our

Constitution. This is so whether the

individual seeking that protection is black,

white, male, female, gay, straight, or, as in

this case, transgender. 1

Adree Edmo is a transgender woman suffering from

gender dysphoria—a serious medical condition. While

incarcerated in Idaho’s correctional facilities, she asked that

her gender dysphoria be treated with sex-reassignment

1

Edmo v. Idaho Dep’t of Corr., 358 F. Supp. 3d 1103, 1109 (D.

Idaho 2018), order clarified, No. 1:17-CV-00151-BLW, 2019 WL

2319527 (D. Idaho May 31, 2019), and aff’d in part, vacated in part,

remanded sub nom. Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019).

36 EDMO V. CORIZON

surgery (“SRS”). After consultation with a prison doctor,

her request was denied. She then sued under the Eighth

Amendment. 2

I respect Edmo’s wishes and hope she is afforded the best

treatment possible. But whether SRS is the optimal

treatment for Edmo’s gender dysphoria is not before us. As

judges, our role is not to take sides in matters of conflicting

medical care. Rather, our duty is to faithfully interpret the

Constitution.

That duty commands that we apply the Eighth

Amendment, not our sympathies. Here, in disregard of the

text and history of the Constitution and precedent, the

panel’s decision elevates innovative and evolving medical

standards to be the constitutional threshold for prison

medical care. In doing so, the panel minimizes the standard

for establishing a violation of the Eighth Amendment.

After today’s denial of rehearing en banc, the Ninth

Circuit stands alone in finding that a difference of medical

opinion in this debated area of treatment amounts to “cruel

and unusual” punishment under the Constitution. While this

posture does not mean we are wrong, it should at least give

us pause before embarking on a new constitutional

trajectory. This is especially true given the original meaning

of the Eighth Amendment.

Because the panel’s opinion reads into the Eighth

Amendment’s Cruel and Unusual Clause a meaning in

conflict with its text, original meaning, and controlling

2

Because Judge O’Scannlain thoroughly recites the relevant facts in

his opinion respecting the denial of the rehearing en banc, which I join

in full, I do not reiterate them here.

EDMO V. CORIZON 37

precedent, I respectfully dissent from the denial of rehearing

en banc.

I.

In holding that Idaho 3 violated the Eighth Amendment,

the panel opined that the Constitution’s text and original

meaning merited “little discussion.” See Edmo, 935 F.3d

at 797 n.21. I disagree.

As inferior court judges, we are bound by Supreme Court

precedent. Yet, in my view, judges also have a “duty to

interpret the Constitution in light of its text, structure, and

original understanding.” NLRB v. Noel Canning, 573 U.S.

513, 573 (2014) (Scalia, J., concurring). While we must

faithfully follow the Court’s Eighth Amendment precedent

as articulated in Estelle v. Gamble, 429 U.S. 97 (1976), and

its progeny, “[w]e should resolve questions about the scope

of those precedents in light of and in the direction of the

constitutional text and constitutional history.” Free Enter.

Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667,

698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff’d in

part, rev’d in part and remanded, 561 U.S. 477 (2010).

Accordingly, the Eighth Amendment’s history and

original understanding are of vital importance to this case.

A.

The Eighth Amendment provides that “[e]xcessive bail

shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” U.S. Const. amend.

3

For simplicity, I collectively refer to Defendants below and

Appellants here as “Idaho.”

38 EDMO V. CORIZON

VIII. Even just a cursory review of the amendment’s

original meaning shows that Edmo’s claims fall far below a

constitutional violation as a matter of text and original

understanding.

At the time of the Eighth Amendment’s ratification,

“cruel” meant “[p]leased with hurting others; inhuman;

hard-hearted; void of pity; wanting compassion; savage;

barbarous; unrelenting.” Bucklew v. Precythe, 139 S. Ct.

1112, 1123 (2019) (citing 1 Samuel Johnson, A Dictionary

of the English Language (4th ed. 1773); 1 Noah Webster, An

American Dictionary of the English Language (1828)

(“Disposed to give pain to others, in body or mind; willing

or pleased to torment, vex or afflict; inhuman; destitute of

pity, compassion or kindness.”)). Even today, “cruel”

punishments have been described as “inhumane,” Farmer v.

Brennan, 511 U.S. 825, 838 (1994), involving the

“unnecessary and wanton infliction of pain,” Whitley v.

Albers, 475 U.S. 312, 319 (1986) (emphasis added)

(citations omitted), or involving the “superadd[ition] of

terror, pain, or disgrace.” Bucklew, 139 S. Ct. at 1124

(emphasis added) (internal quotation marks and citations

omitted).

In the 18th Century, a punishment was “unusual” if it ran

contrary to longstanding usage or custom, or had long fallen

out of use. Bucklew, 139 S. Ct. at 1123 (citing 4 William

Blackstone, Commentaries on the Laws of England 370

(1769); Stuart Banner, The Death Penalty: An American

History 76 (2002); Baze v. Rees, 553 U.S. 35, 97 (2008)

(Thomas, J., concurring); John F. Stinneford, The Original

Meaning of “Unusual”: The Eighth Amendment as a Bar to

Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–71, 1814

(2008)). This early understanding comports with the plain

meaning of “unusual,” which has changed little from our

EDMO V. CORIZON 39

Nation’s founding. See Harmelin v. Michigan, 501 U.S.

957, 976 (1991) (comparing Webster’s American Dictionary

(1828) definition of “unusual” as that which does not

“occu[r] in ordinary practice” with Webster’s Second

International Dictionary 2807 (1954) as that which is not “in

common use.”).

Conversely, customs enjoying a long history of usage

were described as “usual” practices. Stinneford, supra,

at 1770. James Wilson, a key contributor to the

Constitution, stated that “long customs, approved by the

consent of those who use them, acquire the qualities of a

law.” 2 James Wilson, Collected Works of James Wilson

759 (Kermit L. Hall & Mark David Hall eds., Indianapolis,

Liberty Fund 2007); see also Stinneford, supra, at 1769.

Likewise, early American courts construing the term “cruel

and unusual” (generally, as used in state constitutions)

upheld punishments that were not “unusual” in light of

common law usage. Stinneford, supra, at 1810–11 (citing

Barker v. People, 20 Johns. 457, 459 (N.Y. Sup. Ct. 1823),

aff’d, 3 Cow. 686 (N.Y. 1824); Commonwealth v. Wyatt,

27 Va. 694, 701 (Va. Gen. Ct. 1828); People v. Potter, 1

Edm. Sel. Cas. 235, 245 (N.Y. Sup. Ct. 1846)). Thus,

“[u]nder the plain meaning of the term, a prison policy

cannot be ‘unusual’ if it is widely practiced in prisons across

the country.” Gibson v. Collier, 920 F.3d 212, 226 (5th Cir.

2019).

Finally, various views have been proposed with respect

to the original meaning of “punishment” in the Eighth

Amendment. Some view the word as being inapplicable to

conditions of confinement. See, e.g., Farmer, 511 U.S.

at 837 (“The Eighth Amendment does not outlaw cruel and

unusual ‘conditions’; it outlaws cruel and unusual

‘punishments.’”) (Souter, J.). Some have even suggested

40 EDMO V. CORIZON

that “punishment” refers only to sentences imposed by a

judge or jury. See Hudson v. McMillian, 503 U.S. 1, 18

(1992) (Thomas, J., dissenting); but see Helling v.

McKinney, 509 U.S. 25, 40 (1993) (Thomas, J., dissenting)

(recognizing that the “evidence is not overwhelming” on this

question). Others believe the term was originally understood

to encompass more than sentences called for by statute or

meted out from the bench or jury box, but it required

deliberate intent. See, e.g., Wilson v. Seiter, 501 U.S. 294,

300 (1991) (“The infliction of punishment is a deliberate act

intended to chastise or deter. This is what the word means

today; it is what it meant in the eighteenth century.”) (Scalia,

J.) (quoting Duckworth v. Franzen, 780 F.2d 645, 652 (7th

Cir. 1985)); see also Celia Rumann, Tortured History:

Finding Our Way Back to the Lost Origins of the Eighth

Amendment, 31 Pepp. L. Rev. 661, 675, 677 (2004)

(presenting historical evidence that the word punishment

was “understood at the time to include torturous

interrogation”) (citing 4 William Blackstone, Commentaries

on the Laws of England; 3 Jonathan Elliot, The Debates in

the Several State Conventions on the Adoption of the

Federal Constitution 447–48).

B.

While the foregoing overview does not provide the full

contours of the original understanding of the Cruel and

Unusual Clause, it demonstrates that Idaho’s actions are far

from a constitutional violation based on the clause’s text and

original meaning. Idaho’s actions simply do not amount to

the “barbarous” or “inhuman” treatment so out of line with

longstanding practice as to be forbidden by the Eighth

Amendment.

EDMO V. CORIZON 41

No longstanding practice exists of prison-funded SRS. 4

Indeed, the medical standards at the heart of Edmo’s claim

are innovative and evolving. The standards of care relied on

by Edmo were promulgated by the World Professional

Association for Transgender Health (“WPATH”) in 2011—

only about five years before Edmo’s lawsuit. WPATH,

Standard of Care for the Health of Transsexual,

Transgender, and Gender-Nonconforming People (7th ed.

2011) (“WPATH standards”). As the standards themselves

note, this “field of medicine is evolving.” The WPATH

standards also call for flexibility, individual tailoring, and

wide latitude in treatment options.

Likewise, as recognized by numerous federal courts, the

WPATH standards are not accepted as medical consensus.

The first circuit court to address the issue ruled that the

WPATH standards did not foreclose alternative treatment

options, and that a doctor’s decision to choose a non-

WPATH treatment did not violate the Eighth Amendment.

Kosilek v. Spencer, 774 F.3d 63, 90 (1st Cir. 2014). The

Fifth Circuit also found that the WPATH standards remained

controversial and did not reflect a consensus. Gibson,

920 F.3d at 223. Similarly, after reciting the WPATH

standard’s recommended treatment options for gender

dysphoria, the Tenth Circuit rejected a claim that prison

officials acted with deliberate indifference “by

implementing [an alternative] course of treatment

recommended by a licensed medical doctor,” rather than

4

See, e.g., Quine v. Beard, No.14-cv-02726-JST, 2017 WL

1540758, at *1 (N.D. Cal. Apr. 28, 2017), aff’d in part, vacated in part,

rev’d in part sub nom. Quine v. Kernan, 741 F. App’x 358 (9th Cir.

2018); Kristine Phillips, A Convicted Killer Became the First U.S.

Inmate to Get State-Funded Gender-Reassignment Surgery, Wash. Post

(Jan. 10, 2017), https://wapo.st/2S21zP3.

42 EDMO V. CORIZON

SRS. Lamb v. Norwood, 899 F.3d 1159, 1163 (10th Cir.

2018), cert. denied, 140 S. Ct. 252 (2019). 5

The debate about the WPATH standards continues even

outside prison walls. The Centers for Medicare and

Medicaid Services (“CMS”) declined to adopt the WPATH

standards due to inadequate scientific backing, and instead

gives providers discretion to apply either the WPATH

standards or their own standards. CMS, Decision Memo for

Gender Dysphoria and Gender Reassignment Surgery

(August 30, 2016), available at https://go.cms.gov/36yMrx

X. Similarly, the American Psychiatric Association

expressed concern about the scientific evidence

undergirding the WPATH standards. And as recently as

2017, WPATH requested that Johns Hopkins University

conduct an evidence-based review of the standards, a review

that, at the time of Edmo’s lawsuit, was ongoing.

Idaho’s actions reflect the uncertainty regarding the

WPATH standards throughout the medical field, and do not,

under the record, reflect a want of compassion. See supra

O’Scannlain, J., dissenting at 22–29. Given the lack of

medical consensus, Dr. Eliason’s decision to pursue an

alternative treatment, rather than SRS, cannot constitute the

“barbarous” or “inhuman” conduct prohibited by the Eighth

Amendment. See Bucklew, 139 S. Ct. at 1123. Nothing in

the record reflects that Dr. Eliason’s diagnosis and treatment

of Edmo was tainted by malice or animosity. Notably,

Dr. Eliason concluded that Edmo had coexisting mental

5

In the non-SRS context, the Tenth Circuit also found no Eighth

Amendment violation where a doctor prescribed lower hormonal

treatment levels for a gender dysphoric inmate than those suggested by

the WPATH standards. Druley v. Patton, 601 F. App’x 632, 635 (10th

Cir. 2015).

EDMO V. CORIZON 43

health issues that required treatment and counseling prior to

considering SRS. The district court itself found Edmo’s

reluctance to address those issues “troubling.” Edmo, 358 F.

Supp. 3d at 1121. Additionally, Idaho had no blanket policy

prohibiting SRS, and Dr. Eliason never definitively ruled it

out. Dr. Eliason committed to monitoring Edmo’s candidacy

for SRS after deciding that Edmo did not meet the criteria

for the procedure in 2016. In sum, Dr. Eliason’s decision to

pursue an alternative treatment to SRS suggests a tailored

evaluation of potential risks and does not reflect the hard-

hearted or barbarous treatment proscribed by the text of the

Constitution.

Given the facts of this case, Dr. Eliason’s treatment

cannot rise to the infliction of cruel and unusual

punishment—not in a sense that bears any resemblance to

the original meaning of that phrase. This is not to say that

the WPATH standards are not a medically acceptable

standard. But the innovative, contested, and evolving nature

of the WPATH standards, the lack of medical consensus, and

the particular circumstances of this case make clear that no

constitutional violation occurred under the Constitution’s

text and original understanding.

II.

In addition to being inconsistent with the original

understanding of the Eighth Amendment, I, like Judge

O’Scannlain, believe that the panel decision departs from

precedent.

A.

Since Estelle v. Gamble, the Supreme Court has

recognized claims for inadequate medical treatment under

the Eighth Amendment when prison officials act with

44 EDMO V. CORIZON

“deliberate indifference to serious medical needs of

prisoners.” 429 U.S. at 104. The test for such a claim

involves “both an objective standard—that the deprivation

was serious enough to constitute cruel and unusual

punishment—and a subjective standard—deliberate

indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th

Cir. 2012), overruled on other grounds by Peralta v. Dillard,

774 F.3d 1076 (9th Cir. 2014). Under Ninth Circuit

precedent, if a defendant’s treatment decision was

“medically acceptable,” then the court need go no further:

the plaintiff cannot show deliberate indifference as a matter

of law. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

1996) (citing Estelle, 429 U.S. at 107–08).

Deliberate indifference is a high bar, involving an

“unnecessary and wanton infliction of pain” or conduct that

is “repugnant to the conscience of mankind.” Estelle,

429 U.S. at 104, 105–06 (citations omitted). An inadvertent

failure to provide adequate medical care is neither, so it

cannot support an Eighth Amendment claim. Id; see also

Farmer, 511 U.S. at 835 (explaining that deliberate

indifference requires “more than ordinary lack of due care

for the prisoner’s interests or safety”) (citation omitted).

A prison official acts with deliberate indifference only

where he “knows of and disregards an excessive risk to

inmate health or safety.” Farmer, 511 U.S. at 837 (emphasis

added). As Justice Thomas describes it, this is the second-

highest standard of subjective culpability under the Court’s

Eighth Amendment jurisprudence—short only of “malicious

and sadistic action for the very purpose of causing harm.”

Id. at 861 (Thomas, J., concurring) (internal quotation marks

and citations omitted). Such a stringent culpability

requirement “follows from the principle that ‘only the

unnecessary and wanton infliction of pain implicates the

EDMO V. CORIZON 45

Eighth Amendment.’” Id. at 834 (quoting Wilson, 501 U.S.

at 294).

Our precedent has consistently emphasized the

challenging threshold for showing deliberate indifference. 6

Rightfully so, too. In the 44 years since Estelle, an unbroken

line of Supreme Court cases reaffirmed that mere

negligence, inadvertence, or good-faith error cannot

establish an Eighth Amendment claim. 7

B.

The panel’s decision here dilutes the otherwise stringent

deliberate indifference standard. The panel begins by

finding Edmo’s gender dysphoria to be a “serious medical

6

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

(explaining that “[a] difference of opinion between a physician and the

prisoner—or between medical professionals—concerning what medical

care is appropriate does not amount to deliberate indifference,” and

reiterating the “high legal standard” for showing an Eighth Amendment

violation) (citations omitted); Toguchi v. Chung, 391 F.3d 1051, 1060

(9th Cir. 2004); Hallett v. Morgan, 296 F.3d 732, 745 (9th Cir. 2002);

Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

7

See Minneci v. Pollard, 565 U.S. 118, 130 (2012) (noting that “to

show an Eighth Amendment violation a prisoner must typically show

that a defendant acted, not just negligently, but with ‘deliberate

indifference’”) (citing Farmer, 511 U.S. at 825, 834); Ortiz v. Jordan,

562 U.S. 180, 190 (2011) (restating Farmer’s articulation of the

deliberate indifference standard); Wilson, 501 U.S. at 297

(“[A]llegations of ‘inadvertent failure to provide adequate medical care,’

or of a ‘negligent . . . diagnosis,’ simply fail to establish the requisite

culpable state of mind.”) (internal citations and alterations omitted);

Whitley, 475 U.S. at 319 (“To be cruel and unusual punishment, conduct

that does not purport to be punishment at all must involve more than

ordinary lack of due care . . . . It is obduracy and wantonness, not

inadvertence or error in good faith, that characterize the conduct

prohibited by the Cruel and Unusual Punishments Clause[.]”).

46 EDMO V. CORIZON

need.” Edmo, 935 F.3d at 785. It then determines, based

solely on the WPATH standards, that Dr. Eliason’s failure to

recommend SRS was medically unacceptable. Id. at 786–

92. From there, the panel leaps to conclude that Dr Eliason

was “deliberately indifferent” precisely because it viewed

his treatment as “ineffective” and “medically unacceptable”

under the panel’s reading of the WPATH standards. Id.

at 793. Thus, under the panel’s approach, compliance with

the court-preferred medical standards (in this case, the

WPATH standards) is the beginning and the end of the

inquiry. This is not the deliberate indifference inquiry

required by precedent.

As an initial matter, and as Judge O’Scannlain aptly

points out, the panel errs in holding up one medically

accepted standard, i.e., the WPATH guidelines, as the

constitutional “gold standard,” thereby precluding any

further debate on the matter. See supra O’Scannlain, J.,

dissenting at 15–22. As discussed above, the WPATH

standards do not establish a definitive medical consensus and

judges applying Eighth Amendment standards should not

and need not take sides in this debate.

More fundamentally though, the panel’s analysis

effectively erases the subjective deliberate indifference

requirement with its circular reasoning. Nowhere does the

panel consider any direct evidence of Dr. Eliason’s

subjective mental state. Cf. Jett v. Penner, 439 F.3d 1091,

1098 & n.2 (9th Cir. 2006) (concluding that a doctor’s

medical note stating “I reviewed xrays which showed no

obvious fracture malalignment,” written after reviewing a

radiology report which specifically indicated a deformity,

could evidence deliberate indifference) (alteration in

original). Nor does the panel consider the many reasons

underlying Dr. Eliason’s decision to decline SRS treatment.

EDMO V. CORIZON 47

See supra O’Scannlain, J., dissenting at 15–22. Once those

reasons are swept aside, the panel circularly infers deliberate

indifference based on its prior determination that

Dr. Eliason’s treatment plan was “ineffective” or “medically

unacceptable” under the WPATH standards. See Edmo,

935 F.3d at 793–94 (finding Dr. Eliason deliberately

indifferent because his treatment “stopped short of what was

medically necessary”).

Such an approach is particularly troublesome because, if

replicated, deliberate indifference could be inferred solely

from a finding of a “medically unacceptable” treatment. For

Eighth Amendment claims like Edmo’s, a plaintiff must first

show the “medically unacceptable” treatment of a “serious

medical need[]” and, second, that the doctor’s treatment

decision reflected “deliberate indifference” to the medical

need. Jackson, 90 F.3d at 332. The panel’s analysis

collapses this two-part inquiry into one circular step. If

courts follow the panel’s reasoning, in every case of

medically unacceptable treatment, courts could

automatically infer deliberate indifference.

Worse still, because “medical acceptability” is an

objective negligence inquiry, the ultimate effect of the

panel’s analysis is to dilute the heightened, subjective

culpability required for deliberate indifference, see Farmer,

511 U.S. at 839–40, into mere negligence, which the

Supreme Court has repeatedly warned falls short of an

Eighth Amendment violation. See, e.g., Estelle, 429 U.S.

at 105–06. By denying rehearing en banc in this case, we

relegate federal judges to the role of referee in medical

disputes. This is not what the Constitution or precedent

envisions.

48 EDMO V. CORIZON

***

The Eighth Amendment’s history and text entreat us to

hold the line on the heightened standards for a constitutional

deprivation found in our precedent. As Justice Thomas

rightly observed, “[t]he Eighth Amendment is not, and

should not be turned into, a National Code of Prison

Regulation.” Hudson, 503 U.S. at 28 (Thomas, J.,

dissenting). By judicially mandating an innovative and

evolving standard of care, the panel effectively

constitutionalizes a set of guidelines subject to ongoing

debate and inaugurates yet another circuit split. And by

diluting the requisite state of mind from “deliberate

indifference” to negligence, the panel effectively holds

that—contrary to Supreme Court precedent—“[m]edical

malpractice [does] become a constitutional violation merely

because the victim is a prisoner.” Estelle, 429 U.S. at 106

(altered). I respectfully dissent from the denial of rehearing

en banc.