SCOTT LYNN GIBSON, also known as Vanessa Lynn, Plaintiff - Appellant
BRYAN COLLIER; DR. D. GREENE, Defendants - Appellees
from the United States District Court for the Western
District of Texas
SMITH, BARKSDALE, and HO, Circuit Judges.
C. HO, CIRCUIT JUDGE:
does not inflict cruel and unusual punishment by declining to
provide sex reassignment surgery to a transgender inmate. The
only federal court of appeals to decide such a claim to date
has so held as an en banc court. See Kosilek v.
Spencer, 774 F.3d 63, 76-78, 87-89, 96 (1st Cir. 2014)
(en banc). The district court in this case so held. And we so
established precedent, it can be cruel and unusual punishment
to deny essential medical care to an inmate. But that does
not mean prisons must provide whatever care an inmate wants.
Rather, the Eighth Amendment "proscribes only medical
care so unconscionable as to fall below society's minimum
standards of decency." Id. at 96 (citing
Estelle v. Gamble, 429 U.S. 97, 102-5 (1976)).
"mere disagreement with one's medical treatment is
insufficient" to state a claim under the Eighth
Amendment. Delaughter v. Woodall, 909 F.3d 130, 136
(5th Cir. 2018). This bedrock principle dooms this case. For
it is indisputable that the necessity and efficacy of sex
reassignment surgery is a matter of significant disagreement
within the medical community. As the First Circuit has
noted-and counsel here does not dispute-respected medical
experts fiercely question whether sex reassignment surgery,
rather than counseling and hormone therapy, is the best
treatment for gender dysphoria. See Kosilek, 774
F.3d at 76-78, 87 (surveying conflicting testimony concerning
medical efficacy and necessity of sex reassignment surgery).
more, not only do respected medical experts disagree with sex
reassignment surgery-so do prisons across the country. That
undisputed fact reveals yet another fatal defect in this
case. For it cannot be cruel and unusual to deny
treatment that no other prison has ever provided-to the
contrary, it would only be unusual if a prison decided
not to deny such treatment.
dissent correctly observes that no evaluation for sex
reassignment surgery was ever provided in this case, because
Texas prison policy does not authorize such treatment in the
first place. The dissent suggests that a blanket ban is
unconstitutional-and that an individualized assessment is
required. But that defies common sense. To use an analogy: If
the FDA prohibits a particular drug, surely the Eighth
Amendment does not require an individualized assessment for
any inmate who requests that drug. The dissent's view
also conflicts with Kosilek-as both the dissent in
Kosilek and counsel here acknowledge, the majority
in Kosilek effectively allowed a blanket ban on sex
addition, the dissent would remand to correct certain alleged
procedural errors made by the district court. But counsel has
asked us to reach the merits, forfeiting any procedural
objections that could have been brought. And the
dissent's remaining procedural concerns are redundant of
the substantive debate over the proper interpretation of the
Lynn Gibson is a transgender Texas prison inmate in the
custody of the Texas Department of Criminal Justice (TDCJ) in
Gatesville. He was originally convicted and sent to prison on
two counts of aggravated robbery. In prison, he committed the
additional crimes of aggravated assault, possession of a
deadly weapon, and murder. He was convicted of those
subsequent offenses, and is now sentenced to serve through
May 2031, and eligible for parole in April 2021.
was born male. But as his brief explains, he has been
diagnosed as having a medical condition known today as
"gender dysphoria" or "Gender Identity
Disorder" (GID). He has lived as a female since the age
of 15 and calls himself Vanessa Lynn Gibson.
American Psychiatric Association defines "gender
dysphoria" in its most recent Diagnostic and
Statistical Manual of Mental Disorders (DSM-5) as a
"marked incongruence between one's
experienced/expressed gender and assigned gender, of at least
6 months duration, as manifested by" at least two of six
1. A marked incongruence between one's
experienced/expressed gender and primary and/or secondary sex
characteristics. . . . 2. A strong desire to be rid of
one's primary and/or secondary sex characteristics
because of a marked incongruence with one's
experienced/expressed gender. . . . 3. A strong desire for
the primary and/or secondary sex characteristics of the other
gender. 4. A strong desire to be of the other gender (or some
alternative gender different from one's assigned gender).
5. A strong desire to be treated as the other gender (or some
alternative gender different from one's assigned gender).
6. A strong conviction that one has the typical feelings and
reactions of the other gender (or some alternative gender
different from one's assigned gender).
Manual further notes, "[t]he condition is associated
with clinically significant distress or impairment in social,
occupational, or other important areas of functioning."
has averred acute distress. He is depressed, has attempted to
castrate or otherwise harm himself, and has attempted suicide
three times (though he says that gender dysphoria was not the
sole cause of his suicide attempts). His prison medical
records reflect that he has consistently denied any suicidal
urges. But in this litigation, Gibson has averred that, if he
does not receive sex reassignment surgery, he will castrate
himself or commit suicide.
he threatened to castrate himself, Gibson was formally
diagnosed with gender dysphoria and started mental health
counseling and hormone therapy. Since his formal diagnosis,
Gibson has repeatedly requested sex reassignment surgery,
explaining that his current treatment regimen of counseling
and hormone therapy helps, but does not fully ameliorate, his
Policy G-51.11 provides that transgender inmates must be
"evaluated by appropriate medical and mental health
professionals and [have their] treatment determined on a case
by case basis," reflecting the "[c]urrent, accepted
standards of care." Although there is some dispute
whether the Policy forbids sex reassignment surgery or is
merely silent about it, doctors have denied Gibson's
requests because the Policy does not "designate [sex
reassignment surgery] . . . as part of the treatment protocol
for Gender Identity Disorder."
appeal comes to us with an unusual procedural history.
Proceeding pro se, Gibson sued, inter alia,
the Director of the TDCJ (now, Bryan Collier), challenging
TDCJ Policy G-51.11 as unconstitutional under the Eighth
Amendment, both facially and as applied. He argued that
Policy G-51.11 amounts to systematic deliberate indifference
to his medical needs, because it prevents TDCJ from even
considering whether sex reassignment surgery is medically
necessary for him. He demanded injunctive relief requiring
TDCJ to evaluate him for sex reassignment
Director moved for summary judgment on two grounds: qualified
immunity and sovereign immunity. Notably, the Director did
not move for summary judgment on the merits of Gibson's
Eighth Amendment claim.
nevertheless responded to the motion for summary judgment on
the merits. He argued that the Policy prohibits potentially
necessary medical care. To support his claim of medical
necessity, he attached the Standards of Care issued by the
World Professional Association for Transgender Health
(WPATH). Those standards provide that, "for many
[transgender people, ] [sex reassignment] surgery is
essential and medically necessary to alleviate their gender
dysphoria." WPATH, Standards of Care for the Health of
Transsexual, Transgender, and Gender-Nonconforming People 54
(7th ed., 2011) (Standards of Care).
district court rejected the Director's two immunity
defenses- denying qualified immunity because this is a suit
for injunctive relief, not damages, and denying sovereign
immunity under Ex parte Young. But the district
court granted summary judgment for the Director on the merits
of Gibson's Eighth Amendment claim.
appealed pro se. This court appointed experienced
counsel to advocate on Gibson's behalf. With the
assistance of able counsel, Gibson declined to protest any
procedural defect in these proceedings. Instead, Gibson asks
us to reverse solely on the basis of the merits of his Eighth
Amendment claim, and to remand for further proceedings
accept Gibson's invitation to reach his deliberate
indifference claim on the merits, rather than reverse based
on any procedural defects in the district court proceedings.
In doing so, we note that, had Gibson presented any such
procedural concerns, we might very well have remanded this
case for further proceedings. But he did not do so-as the
dissent admits. See Diss. Op. at 4 (admitting that
"Gibson did not assert not being able to present
essential facts"); id. at 6 (admitting that
"Gibson on appeal does not contest the violation of this
Rule"). And we presume he had good reason not to do so.
Reasonable counsel might conclude that it would be a waste of
time and resources for everyone involved (and give false hope
to Gibson) to remand for procedural reasons. After all,
Gibson is destined to lose on remand if he is unable to
identify any genuine dispute of material fact. That is the
case here, as we shall demonstrate.
review grants of summary judgment de novo, and ask
whether "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). "'[T]he substantive
law will identify which facts are material.' This means
'[o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude
the entry of summary judgment.'" Parrish v.
Premier Directional Drilling, L.P., 917 F.3d 369, 378
(5th Cir. 2019) (second alteration in original) (citation
omitted) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
Eighth Amendment forbids cruel and unusual punishments. The
Supreme Court has construed this prohibition to include
"deliberate indifference to serious medical needs of
prisoners." Gamble, 429 U.S. at 104.
establish deliberate indifference, Gibson must first
demonstrate a serious medical need. Gobert v.
Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006) (citing
Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d
1176, 1187 (11th Cir. 1994)). Second, he must show that the
Department acted with deliberate indifference to that medical
need. Herman v. Holiday, 238 F.3d 660, 664 (5th Cir.
2001) (citing Palmer v. Johnson, 193 F.3d 346, 352
(5th Cir. 1999)).
the State of Texas does not appear to contest that Gibson has
a serious medical need, in light of his record of
psychological distress, suicidal ideation, and threats of
self-harm. Instead, the State disputes that it acted with
deliberate indifference to his medical needs.
indifference to serious medical needs of prisoners
constitutes the 'unnecessary and wanton infliction of
pain' proscribed by the Eighth Amendment."
Gamble, 429 U.S. at 104 (citation omitted) (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976)
(plurality op.)). This is a demanding standard.
or inadvertence is not enough. "[A] complaint that a
physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment." Id.
at 106. "[A]n inadvertent failure to provide adequate
medical care cannot be said to constitute 'an unnecessary
and wanton infliction of pain' or to be 'repugnant to
the conscience of mankind.'" Id. at 105-6.
the inmate must show that officials acted with malicious
intent-that is, with knowledge that they were withholding
medically necessary care. The plaintiff must show that
officials "refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any
similar conduct that would clearly evince a wanton disregard
for any serious medical needs." Johnson v.
Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
is no intentional or wanton deprivation of care if a genuine
debate exists within the medical community about the
necessity or efficacy of that care. "Disagreement with
medical treatment does not state a claim for Eighth Amendment
indifference to medical needs." Norton v.
Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (collecting
cases). There is no Eighth Amendment claim just because an
inmate believes that "medical personnel should have
attempted different diagnostic measures or alternative
methods of treatment." Id. See also Mayweather v.
Foti, 958 F.2d 91, 91 (5th Cir. 1992) (prisoners are not
entitled to "the best [treatment] that money c[an]
seems to accept this standard. As his brief notes, to state
an Eighth Amendment claim, he must demonstrate
"universal acceptance by the medical community"
that sex reassignment surgery treats gender dysphoria.
not to say, of course, that a single dissenting expert
automatically defeats medical consensus about whether a
particular treatment is necessary in the abstract.
"Universal acceptance" does not necessarily require
unanimity. But where, as here, there is robust and
substantial good faith disagreement dividing respected
members of the expert medical community, there can be no
claim under the Eighth Amendment. See,
e.g., Kosilek, 774 F.3d at 96
("Nothing in the Constitution mechanically gives
controlling weight to one set of professional
judgments.") (quoting Cameron v. Tomes, 990
F.2d 14, 20 (1st Cir. 1993)).
there is no genuine dispute of material fact as to deliberate
indifference under the Eighth Amendment where-as here-the
claim concerns treatment over which there exists on-going
controversy within the medical community. Indeed, Gibson
himself admits as much.
district court concluded that Gibson failed to present a
genuine dispute of material fact concerning deliberate
indifference. To quote: "Plaintiff would prefer a policy
that provides [sex reassignment surgery]. However, a
Plaintiff's disagreement with the diagnostic decisions of
medical professionals does not provide the basis for a civil
rights lawsuit." Op. at 20. "Plaintiff provides . .
. no witness testimony or evidence from professionals in the
field demonstrating that the WPATH-suggested treatment option
of [sex reassignment surgery] is so universally accepted,
that to provide some but not all of the WPATH-recommended
treatment amounts to deliberate indifference."
Id. at 19. "Accordingly, Plaintiff fails to
establish there is a genuine issue of material fact as to
whether the policy is unconstitutional on its face or as
applied to Plaintiff." Id. at 20.
agree. What's more, the conclusion of the district court
is further bolstered by a recent ruling by one of our sister
circuits. As the First Circuit concluded in Kosilek,
there is no consensus in the medical community about the
necessity and efficacy of sex reassignment surgery as a
treatment for gender dysphoria. At oral argument,
Gibson's counsel did not dispute that the medical
controversy identified in Kosilek continues to this
day. This on-going medical debate dooms Gibson's claim.
sparse record before us includes only the WPATH Standards of
Care, which declares sex reassignment surgery both effective
and necessary to treat some cases of gender dysphoria. As the
First Circuit has concluded, however, the WPATH Standards of
Care reflect not consensus, but merely one side in a sharply
contested medical debate over sex reassignment surgery.
en banc First Circuit considered whether a prison
acted with deliberate indifference when it failed to offer
sex reassignment surgery to a Massachusetts inmate.
Kosilek, 774 F.3d at 68-96. Although the prison
denied the surgery, it offered "hormones, electrolysis,
feminine clothing and accessories, and mental health
services." Id. at 89.
of its deliberate-indifference analysis, the First Circuit
considered whether WPATH and its proponents reflect medical
consensus. It concluded that, notwithstanding WPATH, sex
reassignment surgery is medically controversial. Accordingly,
Massachusetts prison officials were not deliberately
indifferent when they "chose one of two
alternatives-both of which are reasonably commensurate with
the medical standards of prudent professionals, and both of
which provide [the plaintiff] with a significant measure of
relief." Id. at 90. The court held that this
choice between treatments "is a decision that does not
violate the Eighth Amendment." Id.
support its decision, the First Circuit exhaustively detailed
the underlying expert testimony in the case. That testimony
is crucial because it provides objective evidence that the
medical community is deeply divided about the necessity and
efficacy of sex reassignment surgery. As the First Circuit
explained, respected doctors profoundly disagree about
whether sex reassignment surgery is medically necessary to
treat gender dysphoria.
begin with, Kosilek recounted the testimony of Dr.
Chester Schmidt, "a licensed psychiatrist and Associate
Director of the Johns Hopkins School of Medicine."
Id. at 76. He testified that "'[t]here are
many people in the country who disagree with [WPATH]
standards who are involved in the [gender dysphoria]
field.'" Id. (first alteration in
original). As a result, "Dr. Schmidt expressed
hesitation to refer to the [WPATH] Standards of Care, or the
recommendation for [sex reassignment surgery], as medically
necessary. He emphasized the existence of alternative methods
and treatment plans accepted within the medical
community." Id. at 76-77.
the court summarized Cynthia Osborne's testimony.
Id. at 77. She is "a gender identity specialist
employed at the Johns Hopkins School of Medicine who had
experience working with other departments of correction
regarding [gender dysphoria] treatment." Id. at
70. She testified that "she did not view [sex
reassignment surgery] as medically necessary in light of
'the whole continuum from noninvasive to invasive'
treatment options available to individuals with [gender
dysphoria]." Id. at 77.
the First Circuit considered the opinions of an expert
appointed by the district court, "Dr. Stephen Levine, a
practitioner at the Center for Marital and Sexual Health in
Ohio and a clinical professor of psychiatry at Case Western
Reserve University School of Medicine." Id.
First Circuit pointed out, "Dr. Levine had helped to
author the fifth version of the [WPATH] Standards of
Care." Id. So it was notable that Dr. Levine
expressed concerns that later versions of WPATH were driven
by political considerations rather than medical judgment. His
written report "explain[ed] the dual roles that WPATH .
. . plays in its provision of care to individuals with
GID." Id. As the report stated:
WPATH is supportive to those who want sex reassignment
surgery (SRS). . . . Skepticism and strong alternate views
are not well tolerated. . . . The [Standards of Care are] the
product of an enormous effort to be balanced, but it is
not a politically neutral document. WPATH aspires to be
both a scientific organization and an advocacy group for the
transgendered. These aspirations sometimes conflict.
Id. at 78 (first alteration in original) (emphasis
Levine also expressed concerns that the support for sex
reassignment surgery expressed in the Standards of Care
lacked medical support. "The limitations of the
[Standards of Care], however, are not primarily political.
They are caused by the lack of rigorous research in the
field." Id. "Dr. Levine further emphasized
that 'large gaps' exist in the medical
community's knowledge regarding the long-term effects of
[sex reassignment surgery] and other [gender dysphoria]
treatments in relation to its positive or negative
correlation to suicidal ideation." Id. Dr.
Levine ultimately agreed with Dr. Schmidt's testimony:
Dr. Schmidt's view, however unpopular and uncompassionate
in the eyes of some experts in [gender dysphoria], is within
prudent professional community standards. Treatment stopping
short of [sex reassignment surgery] would be considered
adequate by many psychiatrists.
Id. And when asked to confirm if "prudent
professionals can reasonably differ as to what is at least
minimally adequate treatment" for gender dysphoria, Dr.
Levine agreed: "Yes, and do." Id. at 87.
the court noted that "Dr. Marshall Forstein, Associate
Professor of Psychiatry at Harvard Medical School . . .
issued a written report, in which he noted that 'the
question of the most prudent form of treatment is complicated
by the diagnosis of [gender dysphoria] being on the margins
of typical medical practice.'" Id. at 79.
sure, not all of the testimony was negative toward sex
reassignment surgery. See id. at 74-76, 77, 79. And
not all of it was about sex reassignment surgery generally,
as distinguished from the plaintiff's individual need for
such surgery. But the unmistakable conclusion that emerges
from the testimony is this: There is no medical consensus