by Greg Piper
Briefs ask 9th Circuit to overturn judge who said its precedent required him to find 8th Amendment right to "gender confirming surgery" for child sexual abuser. Judge got it backward on what's "cruel and unusual," ethics group says.
"Men lack a Constitutional right to sleep with, bathe with, and observe naked women. We would like to end this brief there, as such a proposition is not reasonably debatable."
Thus opens a friend-of-the-court brief by the Independent Women's Law Center (IWLC) in a case over whether states must pay for inmates' surgical procedures to resemble the opposite sex, which has implications for the placement of males who identify as women in women's correctional facilities, also a hotbed of litigation.
A federal court's order that Alaska cannot "de facto" deny "gender confirming surgery," finding the state Department of Corrections acted with "deliberate indifference" to child sexual abuser Emalee Wagoner's "serious medical need" to remove his genitals and construct a nonfunctional vagina, spurred a flood of briefs in the 9th U.S. Circuit Court of Appeals.
The Department of Justice, 23 states led by Indiana and Idaho and medical advocacy groups are urging the historically most overturned appeals court in the U.S. to overturn the district court's finding that the 8th Amendment prohibition on "cruel and unusual punishment" requires taxpayers to fund so-called gender-affirming surgeries for inmates.
That's an uphill battle, as a three-judge panel of the 9th Circuit ruled in 2019's Edmo that Idaho's refusal to pay for a prisoner's "sex-reassignment surgery" – a scientifically nonsensical term — constitutes cruel and unusual punishment, prompting blowback from nine judges when the full court declined to rehear the case.
Several briefs emphasize Wagoner thought he could get transferred to a women's prison if he got a vaginoplasty, but IWLC's brief – cowritten by former Trump White House lawyer May Mailman – says the district court required Alaska to "effectuate [Wagoner's] transfer to a female prison" after surgery. Just the News could not find such an order or media reporting.
Magistrate Judge Matthew Scoble implied he was skeptical of automatically granting inmates surgeries as gender dysphoria treatments if "reasoned review of the ongoing science" shows "other treatments or therapies" are effective, or the literature shows "good-faith questions" on effectiveness, but said the 9th Circuit tied his hands in Edmo.
Emmanuel J. Cancel, Wagoner's birth name, was sentenced to 60 years in prison under a 2018 plea that reduced the counts from 50 to just three, according to Frontiersman, though the news media now says the sentence is 40 years. He is housed at a medium-security men's facility.
Superior Court Judge Eric Smith said the "sheer horror of what he did" was matched by "only two or three other cases that I have seen," Frontiersman reported.
Inmate was doing well on hormone therapy, so why surgery?
The horrors of Wagoner's attempts to resemble a woman are documented in the Justice Department's brief, which warns that Judge Scoble's "expansive misapplication of the Eighth Amendment threatens dire consequences for prison officials."
Wagoner has a "record of severe mental illness and self-mutilation," the brief says, describing the inmate's repeated gruesome attempts at "self-surgery," in Wagoner's phrasing, and his continued crushing of his testicles with the goal of stopping testosterone production.
"While Wagoner’s then-fiancée was not incarcerated, Wagoner’s plan was apparently to be transferred to a women’s facility where the fiancée could then also be housed once she committed an appropriate crime that would result in imprisonment," the brief says, citing Wagoner's letter to his female partner.
Yet Wagoner has already "responded favorably to less extreme treatment," with the inmate saying the hormone therapy he started in 2021 gave him a "rather peaceful" feeling.
DOJ emphasizes Scoble's "deep discomfort" with the 9th Circuit precedent Edmo upon which he ruled for Wagoner, without which the judge would have put "more weight on the inexperience" of the inmate's experts with prison populations.
Scoble also faulted World Professional Association for Transgender Health guidelines for "self-referencing consensus rather than evidence-based research," which do not address "custodial care" in any case, and worried about "giving judicial imprimatur to what is fundamentally a medical question."
The precedent itself cautions it's limited to the facts of Edmo, and DOJ said the defendants there failed to "raise any prison security interests or to dispute that WPATH guidelines dictated the Eighth Amendment analysis."
The 2nd Circuit recently called Edmo a "stray" decision ignored by other appellate courts.
The 9th Circuit's own definition of "cruel and unusual" is nearly impossible to meet, requiring officials to withhold the "minimal civilized measure of life’s necessities" in "conscious disregard of an excessive risk" to the inmate's health, beyond even "malpractice or gross negligence," says the brief by 25 GOP attorneys general and the Arizona Legislature.
It's hard to find a more disputed course of treatment than "sex-change surgeries," the brief says, again using unscientific terminology for cosmetic procedures to create superficial resemblances to the opposite sex, especially in adults long past puberty such as inmates.
The AGs quote from the Supreme Court's Skrmetti decision upholding Tennessee's ban on gender-affirming care for minors, which notes the "fierce scientific and policy debates" around medicalized transitions, and "the poor quality of data and lack of evidence" for gender dysphoria surgery as reflected in the scientific literature.
Edmo only established that WPATH's standards of care at the time "supported the requested surgery" but "did not resolve for all time" that the science was "so settled that no competent medical practitioner would refuse to provide them," the brief says. Years later, WPATH got caught watering down its standards under Biden administration pressure.
The surgery itself is "not available" in Alaska or 23 other states, meaning the Land of the Midnight Sun would have to transfer Wagoner "to the custody of a State with no interest in the case," not only violating the Prison Litigation Reform Act but raising "serious federalism concerns," the AGs said.
'The constitutional bar does not lift for volunteers'
Scoble inverted the 8th Amendment like Wagoner tried to invert his penis, according to the Ethics and Public Policy Center's brief, which says the "original and historical understanding" of the amendment "marks castration as cruel and unusual punishment" regardless of whether a prisoner requests it.
"When the Supreme Court has treated capital punishment as unconstitutional in certain settings ... it would have been unthinkable for a state to defend an execution on the ground that the condemned prisoner had asked to be put to death or had previously attempted suicide; the constitutional bar does not lift for volunteers," the brief says.
It quotes Justice Robert Jackson's concurrence in 1942's Skinner, which prohibited compulsory sterilization for certain crimes: "There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority [convicted criminals]."
IWLC's brief makes only a passing glance at the Eighth Amendment dispute, emphasizing what happens if surgeries become a gateway for male entry into women's prisons.
"Incarcerated women live in conditions where privacy is limited and bodily exposure is unavoidable, including shared sleeping quarters, communal showers, strip searches, and medical examinations," the brief says. "Indeed, the mere presence of male inmates … imposes unique and unavoidable burdens on female inmates."
It cites a documentary by IWLC's sibling Independent Women's Forum about inmate Alissa Kamholz, who was forced to share a room with a male inmate transferred to her women's prison under California's SB 132, which lets inmates choose male or female facilities based on gender identity.
A child sexual abuse victim, Kamholz endured "severe psychological distress" from the male's presence, especially after learning he was from her town and "was familiar with the location where that abuse occurred."
Greg Piper
Source: https://justthenews.com/politics-policy/health/constitutional-right-castration-doj-25-states-fight-court-ruling-transgender
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