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Gibson v. Collier

United States Court of Appeals, Fifth Circuit

March 29, 2019

SCOTT LYNN GIBSON, also known as Vanessa Lynn, Plaintiff - Appellant
BRYAN COLLIER; DR. D. GREENE, Defendants - Appellees

          Appeal from the United States District Court for the Western District of Texas

          Before SMITH, BARKSDALE, and HO, Circuit Judges.


         A state 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 hold today.

         Under 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)).

         Accordingly, "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).

         What's 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.

         The 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 reassignment surgery.

         In 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 Eighth Amendment.

         We affirm.[1]


         Scott 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.

         Gibson 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.[2]

         The 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 factors, namely:

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).

         As the Manual further notes, "[t]he condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning."

         Gibson 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.

         After 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 dysphoria.

         TDCJ 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."[3]


         This 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 surgery.[4]

         The 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.

         Gibson 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).

         The 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.

         Gibson 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 accordingly.

         We 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.


         We 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)).[5]

         The 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.

         To 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)).

         Here, 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.

         "[D]eliberate 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.

         Negligence 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.

         Rather, 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).

         There 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] buy").

         Gibson 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.

         This is 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)).

         Accordingly, 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.


         The 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.

         We 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.


         The 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.

         The 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.

         As part 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.

         To 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.

         To 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.

         Next, 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.[6]

         Third, 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.

         As the 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 added).

         Dr. 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.

         Finally, 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.

         To be 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 ...

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