BOISE — A transgender Idaho inmate housed in a men’s prison last week received her first treatment in preparation for gender confirmation surgery, as ordered by a federal court, even as the 9th Circuit Court of Appeals is still deciding whether to grant the case another hearing.
It’s another step toward the actual surgery for Adree Edmo, 32, a male-to-female transgender woman whose prison term isn’t up until 2021.
Edmo pleaded guilty to sexually abusing a 15-year-old boy in 2011, according to court records. Prison doctors in 2012 diagnosed her with gender dysphoria, a condition in which the dissonance between a person’s gender at birth and the gender with which they identify is significant, distressing and hurtful.
In court in 2018, Edmo testified she cuts herself when the dysphoria is especially bad and has tried to castrate herself twice in prison. She has attempted suicide more than once in her lifetime, according to court documents. Gender confirmation surgery is an accepted treatment for extreme cases of gender dysphoria, but Edmo’s doctors in prison denied her request for surgery.
In 2017, she sued the Idaho Department of Correction and Corizon Health, its healthcare provider, as a result of their decision. In December, U.S. District Court Judge B. Lynn Winmill ordered the two entities to provide the surgery within six months.
In response, those entities appealed the case to the 9th Circuit Court of Appeals, which, in August, also ruled Edmo should receive the surgery. Since the 9th Circuit Court’s decision, the case has largely been on hold as attorneys filed paperwork trying to work out specific details. In October, the 9th Circuit Court allowed Winmill to order Edmo must receive treatments in preparation for the surgery, even though the surgery itself is still legally in question. At a court hearing last month, Winmill ordered Edmo must receive the first presurgical procedure — a laser hair removal treatment — by Nov. 26. Deborah Ferguson, one of the attorneys representing Edmo in the case, confirmed to the Idaho Press that Edmo received the treatment that day.
THE CASE’S FUTURE
After the 9th Circuit Court of Appeals handed down its decision in August, attorneys representing the Idaho Department of Correction and Corizon Health filed a motion for another hearing. They asked for an en banc hearing, Ferguson said — which means the case would be heard by a panel of 11 9th Circuit Court of Appeals judges, instead of simply the three who made the original decision. Ferguson said she believed attorneys filed that request in early September.
The court has not yet made a decision on whether it will hear the case en banc. When the court decides to grant an en banc hearing, judges write an explanation of their decision to do so. While Ferguson said she did not know the reason for the delay in a decision, she said it might be caused by a judge working on a dissenting opinion to the court’s opinion as a whole.
Meanwhile, there is also nothing stopping the department and Corizon from asking the U.S. Supreme Court to hear the case as well, a move Gov. Brad Little previously said he would consider. Ferguson said parties may file for an en banc hearing and also ask the U.S. Supreme Court to hear a case at the same time. However, she said, the department and Corizon have not yet filed the necessary writ of certiorari to take the case to the nation’s highest court.
Meanwhile, Nevada Attorney General Aaron Ford recently said the 9th Circuit Court of Appeals’ August decision in Edmo’s case means Nevada would also have to comply with orders to provide gender confirmation surgery to transgender inmates, the Associated Press reported Nov. 26. The court’s decision technically applies to all states within the circuit, Ford said, which includes Nevada.
However, Ford also said he would be watching to see if Edmo’s case does go to the U.S. Supreme Court.
“We will take a look at the timing on this for statutory purposes to see if this is going to be a settled issue in our jurisdiction for an extended period of time, or potentially be overturned by June of next year,” Ford said.
Circuit courts are split on the issue, National Public Radio reported in August, at the time of the decision from the 9th Circuit Court of Appeals. Both the 1st Circuit Court of Appeals and the 5th Circuit Court of Appeals have ruled against people in prison who have filed lawsuits seeking gender confirmation surgery, according to NPR.
As a rule, the U.S. Supreme Court is more likely to hear cases involving issues about which circuit courts are divided.
For now, though, Ferguson said there is no time limit on when the 9th Circuit Court of Appeals has to decide whether to hear Edmo’s case en banc. Attorneys are now waiting on that decision.