Governor Little comments on Ninth Circuit’s decision in transgender inmate’s sex-reassignment surgery case

Tuesday February 11, 2020

Boise, Idaho – Governor Brad Little issued the following statement today in response to the Ninth Circuit Court of Appeal’s decision to deny the State of Idaho’s request to rehear the decision of a three-judge panel ordering the state to provide Idaho inmate Adree Edmo with sex-reassignment surgery.

“I am disappointed the majority of the Ninth Circuit declined to reverse its flawed decision. I am encouraged, however, that several judges recognized in dissenting opinions that the decision conflicts with decisions of multiple other circuits, goes well-beyond the Eighth Amendment’s text and original meaning, and is contrary to more than four decades of Supreme Court precedent. I remain committed to appealing this case to the U.S. Supreme Court — that effort is already under way — and to ensuring that Idaho taxpayers do not have to pay for a procedure that is not medically necessary,” Governor Little said.

The decision includes two opinions totaling more than 40 pages that criticize the original panel’s decision to force the state to provide the surgery. Those opinions are joined by a total of 10 Ninth Circuit judges. Judge Patrick Bumatay, who was confirmed to his seat on the court by the U.S. Senate in December, authored the dissenting opinion, which was joined in whole or in part by six other judges. Senior judge Diarmuid O’Scannlain authored a separate opinion also criticizing the three-judge panel’s decision and reasoning, and was joined by eight other judges. Judge O’Scannlain has been on the bench for more than 30 years and was appointed by President Reagan in 1986.

Excerpts from the dissent and separate opinion include:

“The three-judge panel’s conclusion — that any alternative course of treatment would be ‘cruel and unusual punishment’ — is as unjustified as it is unprecedented.” Opinion of Judge O’Scannlain, at p. 5, joined by Judges Callahan, Bea, Ikuta, R. Nelson, Bade, Bess, Bumatay, and VanDyke.

“To reach such a conclusion, the court creates a circuit split, substitutes the medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, redefines the familiar ‘deliberate indifference’ standard, and, in the end, constitutionally enshrines precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.“  Id. at p. 5-6.

“Dr. Eliason and the State’s other practitioners were not deliberately indifferent — far from it. And they certainly were not guilty of violating the Eighth Amendment.”  Id. at p. 33.

“Surely this was not cruel and unusual punishment.”  Id. at p. 34.

“Given the facts of this case, Dr. Eliason’s treatment cannot rise to the infliction of cruel and unusual punishment — not in a sense that bears any resemblance to the original meaning of that phrase.”  Opinion of Judge Bumatay, at p. 43, joined by Judges Callahan, Ikuta, R. Nelson, Bade, and VanDyke.

“As Justice Thomas rightly observed, ‘[t]he Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.’”  Opinion of Judge Bumatay, at p. 48, joined by Judges Callahan, Ikuta, R. Nelson, Bade, Collins, and VanDyke.

Governor Little plans to file a request within 90 days for the U.S. Supreme Court to hear the case.

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