Norsworthy v. Beard

• Decision Date: 02 April 2015
• Docket Number: Case No. 14–cv–00695–JST
• Citation: 87 F.Supp.3d 1164
• Parties: Michelle–Lael B. Norsworthy, Plaintiff, v. Jeffrey Beard, et al., Defendants.
• Court: U.S. District Court — Northern District of California

87 F.Supp.3d 1164

Michelle–Lael B. Norsworthy, Plaintiff

v.Jeffrey Beard, et al., Defendants.

Case No. 14–cv–00695–JST

United States District Court, N.D. California.

Signed April 2, 2015

Herman Joseph Hoying, Christopher J. Banks, Ian Thompson Long, Megan Dy Lin, Morgan Lewis & Bockius LLP, San Francisco, CA, Ilona Margaret Turner, Jennifer Orthwein, Shawn Thomas Meerkamper, Oakland, CA, for Plaintiff.

Preeti Kaur Bajwa, Edward Rheem Fluet, Jose Alfonso Zelidon–Zepeda, California State Attorney General's Office, San Francisco, CA, for Defendants.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION, GRANTING REQUEST FOR JUDICIAL NOTICE, AND DENYING MOTION TO STRIKE

JON S. TIGAR, United States District Judge

Before the Court are Plaintiff Michelle–Lael B. Norsworthy's Motion for a Preliminary Injunction, ECF No. 62, Defendants' Request for Judicial Notice, ECF No. 77, and Plaintiff's Evidentiary Objection and Motion to Strike Portions of Expert Declaration of Dr. Stephen Levine in Support of Defendants' Opposition to Plaintiff's Motion for a Preliminary Injunction, ECF No. 80. For the reasons set forth below, the Court will grant Plaintiff's motion for a preliminary injunction, grant Defendants' request for judicial notice, and deny Plaintiff's evidentiary objection and motion to strike.

I. BACKGROUND

A. Norsworthy's Gender Dysphoria

Plaintiff, a California Department of Corrections and Rehabilitation (“CDCR”) inmate currently incarcerated at Mule Creek State Prison in Ione, California, is a transsexual woman—a person whose female gender identity is different from the male gender assigned to her at birth. Deposition of Michelle–Lael Norsworthy (“Norsworthy Dep.”), ECF No. 66–4 at 5, 18–20; Mental Health Evaluation: Gender Identity Disorder Evaluation of Dr. Raymond J. Coffin (“Coffin Eval.”), ECF No. 66–1 at 4. Norsworthy was convicted of murder in the second degree with the use of a firearm on April 15, 1987, and is serving a sentence of seventeen years to life in prison. Coffin Eval. at 3. She has been eligible for parole since March 28, 1998. Comprehensive Risk Assessment for the Board of Parole Hearings (“2014 Risk Assessment”), ECF No. 67 at 1.

Norsworthy experienced early confusion about her gender identity that continued into adulthood. Coffin Eval. at 4–5; Norsworthy Dep. at 42. She began openly identifying as a transsexual woman in the mid–1990's, and was diagnosed with gender identity disorder, now known as gender dysphoria

, in January 2000.¹ Coffin Eval. at 4–6; Norsworthy Dep. at 42. Gender dysphoria is “a serious medical condition codified in the International Classification of Diseases (10th revision; World Health Organization) and the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders—5th edition (DSM–V).” Declaration of Dr. Randi C. Ettner (“Ettner Decl.”), ECF No. 63 ¶ 16. It is “characterized by an incongruence between one's experienced/expressed gender and assigned sex at birth, and clinically significant distress or impairment of functioning as a result.” Id. The condition is associated with “severe and unremitting emotional pain.” Id. Without treatment, people with gender dysphoria experience anxiety, depression, suicidality, and other mental health issues. Id. ¶ 18. Male-to-female transsexuals without access to appropriate care may resort to attempting auto-castration in order to alleviate their distress. Id. ¶ 19. Gender dysphoria intensifies with age. Id. ¶ 20.

Norsworthy explains that she is “a woman trapped in a man's body” and that “[her spirit] is imprisoned in a way that causes excruciating pain and frustration to a point that therapy and other remedies are the only way to relieve that [ ] agony.” Norsworthy Dep. at 20, 133. The “psychological and emotional pain” and “frustration and agony” she experiences mean that she is “unable [ ] to complete [her] existence or complete who [she is].” Id. at 21. At times, the anxiety caused by her gender dysphoria

causes symptoms such as sleeplessness, cold sweats, hypervigilance, panic attacks, and mood swings. Id. at 87–88; Ettner Decl. ¶ 69 (describing “severe” anxiety symptoms consistent with a gender dysphoria diagnosis, including “feeling discomfort in abdomen, feeling hot, heart pounding, feeling faint, and fear of ‘the worst happening’ ”).

B. WPATH Standards of Care

The World Professional Association for Transgender Health (“WPATH”) has developed Standards of Care for the Health of Transsexual, Transgender, and Gender–Nonconforming People (“Standards of Care”), which are recognized as authoritative standards of care by the American Medical Association, the American Psychiatric Association, and the American Psychological Association. Ettner Decl. ¶ 21; see also Deposition of Lori Kohler, M.D. (“Kohler Dep.”), ECF No. 67 at 21, at 91–92. The Standards of Care explain that treatment for gender dysphoria

is individualized: “What helps one person alleviate gender dysphoria might be very different from what helps another person.” Standards of Care, Version 7, ECF No. 10–1 at 5. They address a variety of therapeutic options, including changes in gender expression and role, hormone therapy, surgery, and psychotherapy. Id. at 8.

One treatment for gender dysphoria

is sex reassignment surgery (“SRS”). “Vaginoplasty is the definitive male-to-female sex reassignment surgery.” Declaration of Dr. Marci L. Bowers (“Bowers Decl.”), ECF No. 65 ¶ 15. It involves the removal of the patient's male genitals and creation of female genitals, and has two therapeutic purposes. Id. ¶ 19; Ettner Decl. ¶ 39. SRS for transsexual female patients both removes the principal source of testosterone in the body and creates congruence between the patient's gender identity and her primary sex characteristics. Ettner Decl. ¶¶ 38–39. The Standards of Care explain:

While many transsexual, transgender, and gender-nonconforming individuals find comfort with their gender identity, role, and expression without surgery, for many others surgery is essential and medically necessary to alleviate their gender dysphoria

. For the latter group, relief from gender dysphoria cannot be achieved without modification of their primary and/or secondary sex characteristics to establish greater congruence with their gender identity.

Standards of Care at 36; see also Ettner Decl. ¶ 38 (“For many individuals with severe gender dysphoria

, however, hormone therapy alone is insufficient. Relief from their dysphoria cannot be achieved without surgical intervention to modify primary sex characteristics, i.e. genital reconstruction.”); Bowers Decl. ¶ 31 (“Although some transgender people are able to effectively treat their gender dysphoria through other treatments, sex reassignment surgery for many people is a medically necessary treatment needed to treat gender dysphoria and establish congruence with one's gender identity.”). Studies have shown that SRS is a safe and effective treatment for individuals with gender dysphoria. See Standards of Care at 36 (“Follow-up studies have shown an undeniable beneficial effect of sex reassignment surgery on postoperative outcomes.”); Ettner Decl. ¶ 40 (“Decades of careful and methodologically sound scientific research have demonstrated that sex reassignment surgery is a safe and effective treatment for severe gender dysphoria and, indeed, for many people, it is the only effective treatment.”); Bowers Decl. ¶ 28 (“The vast majority of studies have shown that sex reassignment surgery is clinically effective. In my professional experience, the success rate of vaginoplasty is extremely high.”); Defendants' Expert Report (“Levine Report”), ECF No. 72–4, at 6–7 (acknowledging that “SRS is not thought to be experimental now that it has been repeatedly positively evaluated for over twenty years”).

The Standards of Care set forth six eligibility criteria for vaginoplasty

in male-to-female patients:

(1) Persistent, well-documented gender dysphoria

;

(2) Capacity to make a fully informed decision and to consent for treatment;

(3) Age of majority in a given country;

(4) If significant medical or mental health concerns are present, they must be well controlled;

(5) 12 continuous months of hormone therapy as appropriate to the patient's gender goals (unless hormones are not clinically indicated for the individual);

(6) 12 continuous months of living in a gender role that is congruent with the patient's identity.

Standards of Care at 39. They also require two referrals from qualified mental health professionals who have independently evaluated the patient. Id. at 19–20.

“If the first referral is from the patient's psychotherapist, the second referral should be from a person who has only had an evaluative role with the patient.” Id. at 20.

The standards “in their entirety apply to all transsexual, transgender, and gender-nonconforming people, irrespective of their housing situation.” Id. at 43. They expressly provide that “[p]eople should not be discriminated against in their access to appropriate health care based on where they live, including institutional environments such as prisons.” Id. The Standards allow for “[r]easonable accommodations to the institutional environment,” such as the use of injectable hormones where diversion of oral prescriptions is highly likely, but they make clear that “[d]enial of needed changes in gender role or access to treatments, including sex reassignment surgery, on the basis of residence in an institution are not reasonable accommodations under the [Standards of Care].” Id. at 44.

C. Norsworthy's Treatment

Norsworthy indicated to prison staff that she sought hormone treatment and eventual SRS as early as 1996. Coffin Eval. at 4; 2014 Risk Assessment at 5. She self-referred to the Gender Clinic at California Medical Facility (“CMF”) in 1999. Id. at 5. After a comprehensive psychological evaluation, Norsworthy was diagnosed with gender identity disorder by Dr. C.R. Viesti in January 2000. Id. at 6; ECF No. 68 at 17. Later that month, she...