BOISE — Within 90 days, Gov. Brad Little expects to have a request filed for the U.S. Supreme Court to offer an opinion on whether Idaho must provide gender confirmation surgery to transgender prison inmate Adree Edmo, who’s from Bannock County.
Little’s office made the announcement late Tuesday, on the heels of the 9th Circuit Court of Appeals on Monday denying the state’s request for another hearing in the case about Edmo.
The circuit court had ruled in August that the state of Idaho, as well as its prison health care partner, Corizon Health, had to provide the procedure to Adree Edmo, 32, a transgender woman living in a men’s prison. Edmo’s attorneys claimed the state and Corizon Health violated Edmo’s Eighth Amendment protection against cruel and unusual punishment in making their decision.
Edmo, who is serving a sentence for sexually abusing a 15-year-old boy in 2011, has been diagnosed with gender dysphoria. In 2017, she sued the state and Corizon Health for denying her the surgery. In December 2018, a U.S. District Court judge in Idaho ruled Edmo should receive the surgery. The 9th Circuit Court of Appeals’ August decision reaffirmed that ruling, after the state and the health care company appealed.
In the fall of 2019, the state and Corizon asked the 9th Circuit Court of Appeals for an en banc hearing, which is another type of hearing involving a larger panel of judges. The court was silent on the matter for months, but on Monday it denied the request, according to the order.
“The full court was advised of the petition for rehearing en banc,” according to the order. “A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of non-recused active judges in favor of en banc consideration.”
Deborah Ferguson, one of the attorneys representing Edmo in the case, did not immediately return a call for comment from the Idaho Press.
Filed along with the order are two other opinions totaling more than 40 pages, which are critical of the decision not to hear the case again. Ten of the court’s 29 judges joined in the those opinions in whole or in part.
“With its decision today, our court becomes the first federal court of appeals to mandate that a State pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment,” wrote Senior Judge Diarmuid O’Scannlain. “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.”
As a senior judge, O’Scannlain can’t vote on whether to hear a case en banc — but he can participate in the discussion after the vote, according to his statement. Eight judges joined with him in his separate opinion, in which he pointed out the 9th Circuit Court of Appeals had broken with three other courts of appeals that had to make decisions about gender confirmation surgery for transgender inmates. Another court of appeal, he wrote, had ruled an inmate does not have a “clearly established” constitutional right to treatment for gender dysphoria beyond hormone therapy. The 9th Circuit Court of Appeals had just created a split in circuits, he noted.
“With this decision, our circuit sets itself apart,” he wrote.
The U.S. Supreme Court has traditionally been more likely to hear cases if such a split in circuits exists.
In the press release sent by his office, Little wrote he was “encouraged” by the judges’ dissenting opinions in the case “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 underway — and to ensuring that Idaho taxpayers do not have to pay for a procedure that is not medically necessary,” according to Little’s statement.