A split federal Appeals Court panel ruled Thursday that a trial judge’s order could force the North Carolina Department of Adult Correction to reconsider a prison inmate’s requested sex-change surgery.
The department had initially rejected the surgery for Kanautica Zayre-Brown as “medically unnecessary.”
US District Judge Max Cogburn ruled against the department. Then Cogburn issued a July 12 order denying the state’s request to stay the ruling during an appeal.
Thursday’s appellate decision produced a 2-1 split. Judges Roger Gregory and Stephanie Thacker rejected without comment the department’s request to stay Cogburn’s ruling during the appeal.
Judge Allison Jones Rushing dissented.
“The North Carolina Department of Adult Correction denied a transgender inmate’s request for sex-change surgery—here, a vulvoplasty — after the Department’s Transgender Accommodation Review Committee determined that surgery was not medically necessary,” Rushing wrote. “The inmate sued the Department, alleging that it had violated the Eighth Amendment’s ban on cruel and unusual punishment by denying the inmate ‘medically necessary’ care.”
“Without making any finding about the likely medical necessity of this surgery, the district court — disturbed by one of the committee doctor’s views on the medical efficacy of transgender surgery — imposed a mandatory preliminary injunction on the Department,” Rushing continued.
“That injunction requires the Department — by this Friday, July 26 — either (1) to agree to perform the vulvoplasty the committee determined was medically unnecessary, or (2) to form a new committee of ‘gender dysphoria expert[s],’ who must be approved by the district court for correct views on this medical issue and who will reevaluate the inmate’s request,” the dissent continued.
“The Department is appealing the preliminary injunction to our Court, arguing it should never have been imposed. In the interim, the Department asked our Court to stay the injunction pending appeal. That way, the Department is not forced to perform a medically unnecessary surgery (thereby mooting the Eighth Amendment claim) or to create a taxpayer-funded committee of gender-dysphoria experts selected by the district court who will redo the prison committee’s work and reach a new conclusion — all before this Court has a chance to decide the lawfulness of the injunctive order in the first place,” Rushing wrote.
“But today, a panel of this Court denies a stay, so that by the time our Court resolves the Department’s appeal, our decision won’t matter,” she explained. “Indeed, the panel denies even a temporary administrative stay, which would have given this Court some time to consider whether to grant the stay pending appeal.”
“The panel’s decision cannot be reconciled with the governing legal standard,” Rushing wrote.
“First — most importantly and most obviously — the Department is ‘likely to succeed on the merits’ of its appeal challenging this mandatory preliminary injunction,” the dissent continued. “The district court’s errors leap off the page. To begin, the court made no finding that the inmate’s requested surgery was medically necessary and yet concluded the Department violated the Eighth Amendment by denying it.”
“Even the out-of-circuit case the district court relied upon makes this error clear,” Rushing wrote. “The district court expressly made ‘no finding as to medical necessity’ because ‘a reasonable jury could find for either party on the question of medical necessity.’ When pressed, the district court doubled down, stating that ‘Defendants are correct that [the] Court eschewed the question of medical necessity.’”
“Without finding a likelihood of success on the medical necessity question, the district court could not find ‘actual success on the merits’ of the inmate’s deliberate indifference claim, as the court purported to do,” the dissent added.
“Nor did the district court find, as our deliberate indifference precedent requires, that committee members likely had ‘actual subjective knowledge of both the inmate’s serious medical condition and the excessive risk posed by [their] action or inaction, such that their decision was ‘so grossly incompetent, inadequate, or excessive as to shock the conscience,’” Rushing continued. “Rather, the uncontradicted testimony in the record reflects that, after much evaluation, the committee determined that the inmate was benefiting from the current treatment (of hormone therapy, psychological counseling, and women’s housing and personal items) and a vulvoplasty was not medically necessary to treat the inmate’s current condition.”
“The inmate’s expert disagreed, but ‘a disagreement among reasonable medical professionals is not sufficient to sustain a deliberate indifference claim,’ which requires subjective knowledge and disregard of an excessive risk to the inmate’s health or safety,” the dissent added.
“Instead of following these legal requirements, the district court claimed the Department violated the Eighth Amendment in its ‘process, not substance.’ Without any determination that the Department denied the inmate adequate medical care, the district court apparently concluded that the Department’s decisionmaking process itself was cruel and unusual punishment,” Rushing wrote. “That is, to say the least, difficult to square with the Constitution.”
“The district court asserted that, despite its policies to the contrary, the Department has a de facto ban on transgender surgeries,” the dissent continued. “But the uncontradicted evidence amply demonstrates that the inmate here received an individualized evaluation. For all these reasons, the Department is likely to succeed on the merits of its appeal challenging the mandatory injunction.”
Rushing warned of “irreparable injury” linked to the court order. “Intruding on the Department’s prerogatives — whether by requiring it to provide potentially unnecessary sex-change surgery against the judgment of prison medical professionals or by requiring it to create a new committee whose members are to be vetted by the district court for correct views on transgender surgery — constitutes irreparable injury and is contrary to the public interest,” she wrote.
“Finally, a stay pending appeal will not ‘substantially injure’ the inmate. There has not yet been a finding that this surgery is necessary for the inmate, much less urgently so; indeed, the injunction does not even require the Department to provide surgery, so long as it forms a reconstituted committee that satisfies the district court,” Rushing wrote. “Staying this ‘disfavored’ form of injunction — one that grants relief before trial — would simply return the parties to the status quo while we decide the appeal.”
“Consideration of these longstanding traditional factors requires a stay pending appeal,” the dissent concluded. “Yet the panel refuses to issue one. It refuses even though denying a stay means that, by the time our Court issues a decision on the lawfulness of the district court’s order, our ruling will be of no effect. But perhaps that’s the point.”
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