Gibson v. Collier, 032919 FED5, 16-51148

Docket Nº:16-51148
Party Name:SCOTT LYNN GIBSON, also known as Vanessa Lynn, Plaintiff - Appellant v. BRYAN COLLIER; DR. D. GREENE, Defendants - Appellees
Judge Panel:Before SMITH, BARKSDALE, and HO, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:
Case Date:March 29, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

SCOTT LYNN GIBSON, also known as Vanessa Lynn, Plaintiff - Appellant


BRYAN COLLIER; DR. D. GREENE, Defendants - Appellees

No. 16-51148

United States Court of Appeals, Fifth Circuit

March 29, 2019

Appeal from the United States District Court for the Western District of Texas

Before SMITH, BARKSDALE, and HO, Circuit Judges.


A state does not inflict cruel and unusual punishment by declining to provide sex reassignment surgery to a transgender inmate. The only federal court of appeals to decide such a claim to date has so held as an en banc court. See Kosilek v. Spencer, 774 F.3d 63, 76-78, 87-89, 96 (1st Cir. 2014) (en banc). The district court in this case so held. And we so hold today.

Under established precedent, it can be cruel and unusual punishment to deny essential medical care to an inmate. But that does not mean prisons must provide whatever care an inmate wants. Rather, the Eighth Amendment "proscribes only medical care so unconscionable as to fall below society's minimum standards of decency." Id. at 96 (citing Estelle v. Gamble, 429 U.S. 97, 102-5 (1976)).

Accordingly, "mere disagreement with one's medical treatment is insufficient" to state a claim under the Eighth Amendment. Delaughter v. Woodall, 909 F.3d 130, 136 (5th Cir. 2018). This bedrock principle dooms this case. For it is indisputable that the necessity and efficacy of sex reassignment surgery is a matter of significant disagreement within the medical community. As the First Circuit has noted-and counsel here does not dispute-respected medical experts fiercely question whether sex reassignment surgery, rather than counseling and hormone therapy, is the best treatment for gender dysphoria. See Kosilek, 774 F.3d at 76-78, 87 (surveying conflicting testimony concerning medical efficacy and necessity of sex reassignment surgery).

What's more, not only do respected medical experts disagree with sex reassignment surgery-so do prisons across the country. That undisputed fact reveals yet another fatal defect in this case. For it cannot be cruel and unusual to deny treatment that no other prison has ever provided-to the contrary, it would only be unusual if a prison decided not to deny such treatment.

The dissent correctly observes that no evaluation for sex reassignment surgery was ever provided in this case, because Texas prison policy does not authorize such treatment in the first place. The dissent suggests that a blanket ban is unconstitutional-and that an individualized assessment is required. But that defies common sense. To use an analogy: If the FDA prohibits a particular drug, surely the Eighth Amendment does not require an individualized assessment for any inmate who requests that drug. The dissent's view also conflicts with Kosilek-as both the dissent in Kosilek and counsel here acknowledge, the majority in Kosilek effectively allowed a blanket ban on sex reassignment surgery.

In addition, the dissent would remand to correct certain alleged procedural errors made by the district court. But counsel has asked us to reach the merits, forfeiting any procedural objections that could have been brought. And the dissent's remaining procedural concerns are redundant of the substantive debate over the proper interpretation of the Eighth Amendment.

We affirm.1


Scott Lynn Gibson is a transgender Texas prison inmate in the custody of the Texas Department of Criminal Justice (TDCJ) in Gatesville. He was originally convicted and sent to prison on two counts of aggravated robbery. In prison, he committed the additional crimes of aggravated assault, possession of a deadly weapon, and murder. He was convicted of those subsequent offenses, and is now sentenced to serve through May 2031, and eligible for parole in April 2021.

Gibson was born male. But as his brief explains, he has been diagnosed as having a medical condition known today as "gender dysphoria" or "Gender Identity Disorder" (GID). He has lived as a female since the age of 15 and calls himself Vanessa Lynn Gibson.[2]

The American Psychiatric Association defines "gender dysphoria" in its most recent Diagnostic and Statistical Manual of Mental Disorders (DSM-5) as a "marked incongruence between one's experienced/expressed gender and assigned gender, of at least 6 months duration, as manifested by" at least two of six factors, namely: 1. A marked incongruence between one's experienced/expressed gender and primary and/or secondary sex characteristics. . . . 2. A strong desire to be rid of one's primary and/or secondary sex characteristics because of a marked incongruence with one's experienced/expressed gender. . . . 3. A strong desire for the primary and/or secondary sex characteristics of the other gender. 4. A strong desire to be of the other gender (or some alternative gender different from one's assigned gender). 5. A strong desire to be treated as the other gender (or some alternative gender different from one's assigned gender). 6. A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one's assigned gender).

As the Manual further notes, "[t]he condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning."

Gibson has averred acute distress. He is depressed, has attempted to castrate or otherwise harm himself, and has attempted suicide three times (though he says that gender dysphoria was not the sole cause of his suicide attempts). His prison medical records reflect that he has consistently denied any suicidal urges. But in this litigation, Gibson has averred that, if he does not receive sex reassignment surgery, he will castrate himself or commit suicide.

After he threatened to castrate himself, Gibson was formally diagnosed with gender dysphoria and started mental health counseling and hormone therapy. Since his formal diagnosis, Gibson has repeatedly requested sex reassignment surgery, explaining that his current treatment regimen of counseling and hormone therapy helps, but does not fully ameliorate, his dysphoria.

TDCJ Policy G-51.11 provides that transgender inmates must be "evaluated by appropriate medical and mental health professionals and [have their] treatment determined on a case by case basis," reflecting the "[c]urrent, accepted standards of care." Although there is some dispute whether the Policy forbids sex reassignment surgery or is merely silent about it, doctors have denied Gibson's requests because the Policy does not "designate [sex reassignment surgery] . . . as part of the treatment protocol for Gender Identity Disorder."3


This appeal comes to us with an unusual procedural history. Proceeding pro se, Gibson sued, inter alia, the Director of the TDCJ (now, Bryan Collier), challenging TDCJ Policy G-51.11 as unconstitutional under the Eighth Amendment, both facially and as applied. He argued that Policy G-51.11 amounts to systematic deliberate indifference to his medical needs, because it prevents TDCJ from even considering whether sex reassignment surgery is medically necessary for him. He demanded injunctive relief requiring TDCJ to evaluate him for sex reassignment surgery.4

The Director moved for summary judgment on two grounds: qualified immunity and sovereign immunity. Notably, the Director did not move for summary judgment on the merits of Gibson's Eighth Amendment claim.

Gibson nevertheless responded to the motion for summary judgment on the merits. He argued that the Policy prohibits potentially necessary medical care. To support his claim of medical necessity, he attached the Standards of Care issued by the World Professional Association for Transgender Health (WPATH). Those standards provide that, "for many [transgender people, ] [sex reassignment] surgery is essential and medically necessary to alleviate their gender dysphoria." WPATH, Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People 54 (7th ed., 2011) (Standards of Care).

The district court rejected the Director's two immunity defenses- denying qualified immunity because this is a suit for injunctive relief, not damages, and denying sovereign immunity under Ex parte Young. But the district court granted summary judgment for the Director on the merits of Gibson's Eighth Amendment claim.

Gibson appealed pro se. This court appointed experienced counsel to advocate on Gibson's behalf. With the assistance of able counsel, Gibson declined to protest any procedural defect in these proceedings. Instead, Gibson asks us to reverse solely on the basis of the merits of his Eighth Amendment claim, and to remand for further proceedings accordingly.

We accept Gibson's...

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