Keohane v. Fla. Dep't of Corr. Sec'y

• Decision Date: 11 March 2020
• Docket Number: No. 18-14096,18-14096
• Citation: 952 F.3d 1257
• Parties: Reiyn KEOHANE, Plaintiff - Appellee, v. FLORIDA DEPARTMENT OF CORRECTIONS SECRETARY, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

952 F.3d 1257

Reiyn KEOHANE, Plaintiff - Appellee,

v.FLORIDA DEPARTMENT OF CORRECTIONS SECRETARY, Defendant - Appellant.

No. 18-14096

United States Court of Appeals, Eleventh Circuit.

March 11, 2020

Daniel Boaz Tilley, ACLU Foundation of Florida, Inc., Miami, FL, Nancy Gbana Abudu, Southern Poverty Law Center, Decatur, GA, Ardith Michelle Bronson, DLA Piper, LLP (US), Miami, FL, Leslie Cooper, American Civil Liberties Union Foundation, New York, NY, for Plaintiff - Appellee.

Kirkland E. Reid, Jones Walker, LLP, Mobile, AL, Marc Wesley Dunbar, William D. Hall, III, Daniel Russell, Jones Walker, LLP, Tallahassee, FL, Allison B. Kingsmill, Jones Walker, LLP, New Orleans, LA, for Defendant - Appellant.

Kenneth L. Doroshow, Jenner & Block, LLP, Washington, DC, for Amici Curiae.

Richard Saenz, Lambda Legal Defense, New York, NY, for Amicus Curiae Black and Pink.

Before WILSON and NEWSOM, Circuit Judges, and COOGLER,^* District Judge.

NEWSOM, Circuit Judge:

This appeal requires us to decide whether the Florida Department of Corrections violated the Eighth Amendment's prohibition on cruel and unusual punishment in its treatment of a transgender inmate's gender dysphoria

. Specifically, we must determine whether the FDC acted with deliberate indifference to Reiyn Keohane's serious medical need when it (1) enforced a since-repealed policy that strictly limited transgender inmates to the particular medical treatments they were receiving when taken into custody, (2) delayed providing hormone therapy to Keohane for two years pursuant to that policy, and (3) refused Keohane's "social transitioning" requests—in particular, to wear long hair, makeup, and female undergarments. We must also determine whether the FDC's post-suit decisions to rescind what the parties have called its "freeze-frame" policy and to prescribe Keohane hormone therapy moot this appeal with respect to the first two issues.

Keohane brought this action under 42 U.S.C. § 1983 alleging violations of her Eighth Amendment rights and seeking (as relevant here) declaratory and injunctive relief. The district court entered a three-part order (1) declaring the FDC's former freeze-frame policy unconstitutional and permanently enjoining the FDC from "reenacting and enforcing" it, (2) requiring the FDC to continue to provide Keohane with hormone therapy "so long as it is not medically contraindicated," and (3) directing the FDC to permit Keohane "to socially transition by allowing her access to female clothing and grooming standards." Keohane v. Jones , 328 F. Supp. 3d 1288, 1319 (N.D. Fla. 2018).

We hold that Keohane's challenges to the prior freeze-frame policy and the FDC's initial denial of hormone therapy are moot in light of the FDC's subsequent repeal and replacement of the policy and its provision of hormone treatment. We reject on the merits Keohane's claim that the FDC violated the Eighth Amendment by refusing to accommodate her social-transitioning requests.

I

A

Reiyn Keohane is an FDC inmate currently serving a 15-year sentence for attempted murder. Keohane was born male, but she began to identify as female sometime during her preadolescent years. Beginning at age 14—and up until the time she was incarcerated at 19—Keohane wore women's clothing, makeup, and hairstyles. At 16, she was formally diagnosed with gender dysphoria—which, in general terms, "refers to the distress that may accompany the incongruence between one's experienced or expressed gender and one's assigned gender." American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013). About six weeks before her arrest, Keohane began hormone therapy under the care of a pediatric endocrinologist.

Following her arrest, Keohane was initially housed at the Lee County Jail, where she says her request to continue hormone therapy was immediately denied. When, several months later, in July 2014, Keohane was transferred to an FDC prison in south Florida, she asked to resume her hormone-therapy treatment because, as she explained to prison officials in a written grievance, "[w]ithout it [she] consider[ed] self-harm and suicide every single day." She made similar requests (accompanied by similar threats of self-harm) during the ensuing two years, all of which were either disregarded or rejected.¹ Keohane alleges—and the FDC doesn't dispute—that her hormone-therapy requests were denied pursuant to a policy specifying that "[i]nmates who have undergone treatment for [gender dysphoria

] will be maintained only at the level of change that existed at the time they were received by the Department." Under this "freeze-frame" policy, the care of inmates suffering from gender dysphoria was determined not by their current, individualized medical needs, but rather by the treatment they were (or weren't) receiving at the time of their incarceration.

In December 2014, Keohane's grievances began to include requests relating to "social transitioning"—that is, the ability to live consistently with one's gender identity, including by dressing

and grooming accordingly. In particular, Keohane expressed a desire to wear female undergarments and makeup, and to grow out her hair in a long, feminine style—as the district court described it, "to possess and wear the same bras, panties, hairstyles, and makeup items permitted in [the FDC's] female facilities." The FDC refused Keohane's social-transitioning requests on the grounds that they violated prison policy—which required male inmates to wear "[u]nder shorts" and to "have their hair cut short to medium uniform length at all times with no part of the ear or collar covered," Fla. Admin. Code r. 33-602.101(2), (4) —and that they posed a security risk. Specifically, the FDC was concerned that an inmate wearing makeup and female undergarments would inevitably become a target in an all-male prison, thereby endangering not only the inmate but also the prison employees who would have to step in to protect her. Additionally, the FDC concluded that there are clear advantages to maintaining uniformity in a prison setting, including the ability to more readily detect contraband.

During this protracted request-denial cycle, Keohane made multiple attempts to self-harm. In October 2014, Keohane tried to hang herself. In January 2015, she tried to castrate herself. And in April 2017, she tried to kill herself twice more.

B

Having exhausted her efforts to obtain relief within the prison system, Keohane filed a single-count complaint in the United States District Court for the Northern District of Florida alleging that the FDC's denial of her hormone-therapy and social-transitioning requests violated the Eighth Amendment. As relevant here, Keohane sought three forms of relief: (1) a declaration that the FDC was acting with deliberate indifference to her gender dysphoria

, a serious medical need; (2) a permanent injunction ordering the FDC to provide her with hormone therapy and social-transitioning accommodations, including "access to female clothing and grooming standards"; and (3) a permanent injunction prohibiting the FDC from enforcing its freeze-frame policy.

Not long after Keohane filed suit, the FDC altered its behavior in two material respects. First, just two weeks after the complaint was filed, the FDC referred Keohane to an outside endocrinologist who immediately prescribed her hormone therapy. Second, about six weeks after that, the FDC formally repealed its freeze-frame policy and replaced it with a policy that calls for individualized assessment and treatment of inmates who claim to be suffering from gender dysphoria

and related conditions. With the lone exception of a sports bra to help with her hormone-related breast enlargement, however, the FDC has continued to refuse Keohane's social-transitioning requests.

Keohane's case proceeded to a bench trial. Helpfully, the parties agreed—and still do—both that Keohane's gender dysphoria

constitutes a "serious medical need" for deliberate-indifference purposes and that hormone therapy is medically necessary to treat that need. Most notably, Keohane's FDC treatment team—which comprised her psychologist, her mental-health counselor, and a psychiatric physician assistant—supported the determination that hormone therapy is medically necessary. And since initially acceding to Keohane's request for hormone therapy in September 2016, the FDC has consistently provided it and has repeatedly represented (both at trial and on appeal) that it will continue to do so "as long as [her] treatment team believes the hormones are medically necessary to treat her gender dysphoria

." Br. of Appellant at 7–8 (citing testimony).

The parties and medical professionals disagreed, however—and still do—about the medical necessity of Keohane's social-transitioning-related requests to dress and groom herself as a woman. For his part, Keohane's retained medical expert testified (1) that allowing an individual to present consistently with her gender identity is one "of the medically necessary components for the treatment of gender dysphoria

," (2) that it would be "medically and logically inconsistent" and "potentially harmful" to provide Keohane hormone therapy while denying her the ability to socially transition, and (3) that forcing one to live in conformity with a gender with which she doesn't identify "would likely" cause her to engage in self-harm.

By contrast, the members of Keohane's treatment team, who had supported the provision of hormone therapy, denied that social transitioning is medically necessary to treat Keohane's gender dysphoria—as did a staff psychiatrist with the FDC's medical vendor Wexford, the FDC's chief clinical officer, and the FDC's retained expert. According to the treatment team, Keohane's current regimen—hormone therapy and mental-health counseling, together with other accommodations, including the use of female pronouns ("she," "her," etc.), safer housing accommodations, and private shower facilities—is sufficient to...