On March 29, 2019, a divided Fifth Circuit panel issued their decision Gibson v. Collier, No. 16-51148, involving a transgender inmate. The majority’s opinion by Judge James Ho is outrageous, an example of the very worst sort of result-driven judicial activism. The majority cast aside multiple foundational principles of law — including basic respect for the litigants, the right to be heard before judgment is entered, the requirement that a party which seeks court relief meet its burden, the right to present contrary evidence, and the right to have a case decided on its own evidentiary record — all so the majority could publish their personal opinions on a subject that has been in the news lately: gender reassignment surgery.
The Fifth Circuit’s opinion in Gibson v. Collier reflects an ugly truth about our current politics: although some people claim “trans rights” are “special rights,” the movement for “trans rights” is really an effort to provide transgender persons the same rights everyone else has, because they are often denied those rights simply because they are trans. All the plaintiff wanted in her lawsuit was the same treatment every prisoner is entitled to have under the Constitution, i.e., appropriate treatment for what everyone agreed was a “serious medical need.” She didn’t get it, and her case did not benefit from the same procedural and evidentiary rights that every litigant in court is entitled to receive. As the dissent from Judge Rhesa Hawkins Barksdale correctly observed, procedurally, the case violated “bedrock bases for ensuring fundamental due process,” and, substantively, “numerous reasons” compelled the Court to rule the other way.
But this post is not just about trans rights. It is also about how cavalier federal courts can be in deciding cases. If a transgender inmate’s case can be decided by way of a federal court denying her any opportunity to present her arguments and evidence, cherry-picking factual conclusions from other cases, and deeming itself a medical expert, then your case can be decided that way, too.
Vanessa Lynn Gibson was designated male at birth, has lived as a female since the age of 15, and, after being incarcerated, was formally diagnosed with gender dysphoria, and prescribed estrogen and spironolactone. District Court Opinion, p. 2. The opinion also describes that she was depressed and had a history of harming herself and attempting suicide. She asked a prison doctor if she could have sex-reassignment surgery and was told she could only be treated with hormones “because [Texas’s] policy bans sex-reassignment surgery.” District Court Opinion, p. 3. She asked the prison officials if, because she can’t have the surgery, “she could have a pass to live and dress as a female and keep her hair at least seven inches long,” but that, too, was denied. Id.
She thus filed the lawsuit for a simple reason:
“Plaintiff alleges [Texas’s] policy is unconstitutional on its face because it prohibits transgender inmates with severe [gender dysphoria] from being referred to a specialist to determine whether [sex-reassignment surgery] is necessary to adequately treat their disorder on an individual basis.”
Id., p. 3. The core of her claim was not a specific demand for sex-reassignment surgery, but rather a request for an evaluation by a gender-dysphoria specialist, to determine, among other issues, whether sex-reassignment surgery was indicated. Slip op., p. 26 (dissent). She did not seek any monetary damages, but merely injunctive relief to compel the prison system to provide that evaluation.
No one disputes that her gender dysphoria represents a “serious medical need, in light of [her] record of psychological distress, suicidal ideation, and threats of self-harm.” Slip op., p. 8. Cases in other Circuits have held the same. See Kosilek v. Spencer, 774 F.3d 63, 86 (1st Cir. 2014) (“That [gender dysphoria] is a serious medical need, and one which mandates treatment, is not in dispute in this case.”); De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (“De’lonta has alleged an objectively serious medical need for protection against continued self-mutilation.”); accord Allard v. Gomez, 9 Fed. App’x 793, 794 (9th Cir. 2001); Murray v. United States Bureau of Prisons, 1997 U.S. App. LEXIS 1716, *11 (6th Cir. Jan. 28, 1997); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987).
In a sensible court system, this case would be a no-brainer. As the Fifth Circuit held, and as is well-settled law, the State violated an inmate’s Eighth Amendment rights if they “refused to treat [her], ignored [her] complaints, intentionally treated [her] incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Slip op., pp. 8-9, quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir., 1985). The State of Texas has an inmate with an admittedly serious medical need, but they refuse to provide her with the specialist consultation that would determine what treatment she should have, so they have violated her Eighth Amendment rights.
But our federal courts are too often not sensible, and Gibson had the misfortune of drawing Fifth Circuit Judge James Ho, a Trump appointee who appears to delight in disregarding the norms of the federal bench, often using his position to publish political op-eds. Judge Ho used Gibson’s case for a similar political purpose, plowing over decades of law regarding civil procedure, summary judgment standards, the facts of record in the case, and the Eighth Amendment just so he could write a diatribe about sex-reassignment surgery, while also denying Gibson her rights in the process.
The problems with Gibson’s case, which she filed pro se, began at the District Court level. (Counsel was appointed for her by the Fifth Circuit after she filed her opening brief in the appeal.) The primary defendant in the case, the Director of the Texas Department of Criminal Justice (due to irrational quirks in civil rights law, a person can rarely sue a State itself, but instead has to personally sue the individuals carrying out State policy), moved for summary judgment on qualified immunity and sovereign immunity, but not on the merits of Gibson’s Eighth Amendment claim. In its order, the District Court rightly rejected both immunity defenses, but then sua sponte considered the Eighth Amendment claim and granted summary judgment — even though the issue hadn’t been briefed by the parties, and even though no discovery whatsoever had been taken. No interrogatories had been served, no depositions had been taken, and the inmate hadn’t had the opportunity to find witnesses or experts to testify on her behalf.
That’s not how litigation is supposed to work. As Judge Rhesa Hawkins Barksdale, a George H.W. Bush appointee, wrote in dissent:
Procedurally, summary judgment was improperly granted for several reasons, in violation of bedrock bases for ensuring fundamental due process to the nonmovant in a summary-judgment proceeding. Substantively, numerous reasons compel summary judgment’s not being granted, most especially the requested medical relief’s not being considered based on Gibson’s individual needs.
Slip op., p. 25 (dissent). Any one of these “numerous reasons” should have been sufficient for the appellate court to vacate the judgment and remand for further proceedings.
For example, the Court should have remanded because of the District Court’s failure to give Gibson notice that it was going to sua sponte decide summary judgment on her Eighth Amendment claim:
… Ruling on the merits without compelling the Director to respond to Gibson’s discovery requests, after denying the Director’s qualified-immunity defense, flies in the face of clear Supreme Court precedent.
More to the point concerning the district court’s addressing the merits sua sponte, Rule 56(f) provides, inter alia: “After giving notice and a reasonable time to respond, the court may . . . grant the [summary-judgment] motion on grounds not raised by a party . . . .” Fed. R. Civ. P. 56(f)(2) (emphasis added). Contrary to this Rule, the district court ruled on the merits without giving Gibson any notice or opportunity to respond.
(Italics in original.)
Or the Court should have remanded due to the District Court’s failure to give Gibson an opportunity to present evidence, particularly given that she must rely on the prison system and the Court to allow her to gather that evidence:
Gibson was not given every opportunity to present evidence and contentions in opposing summary judgment on the basis for which it was granted. Gibson, as an inmate, must rely on [Texas Department of Criminal Justice] or the court to allow an evaluation to determine if [sex-reassignment surgery] is necessary for Gibson. Accordingly, we have not been able to evaluate all the evidence to determine if there are no genuine disputes of material fact, as that evaluation has not been allowed.
Or the Court should have remanded due to the District Court’s disregard for the very first step of summary judgment, which required the defendants to demonstrate the absence of a genuine dispute:
Because the Director, not Gibson, moved for summary judgment, it was the Director’s burden to “demonstrate the absence of a genuine [dispute] of material fact”. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citing Celotex, 477 U.S. at 323; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885–86 (1990)). “If the [movant] fails to meet this initial burden, the motion must be denied, regardless of the nonmovant’s response.” Id. Only if the Director met his burden would the burden shift to Gibson to “go beyond the pleadings and designate specific facts showing that there is a genuine [dispute] for trial”. Id. (citing Celotex, 477 U.S. at 325). …
Therefore, because the Director did not provide evidence showing an absence of a dispute as to the medical necessity of SRS in treating gender dysphoria, he did not meet his burden; summary judgment was improper.
All of these are, as Judge Barksdale wrote, “bedrock bases for ensuring fundamental due process.” The party moving for summary judgment bears the burden of establishing the absence of any genuine dispute of material fact, and the party opposing summary judgment must have an opportunity to respond to the motion and to develop a record. The Fifth Circuit reiterates these principles all the time, like so: “The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden.” Ballard v. Burton, 444 F.3d 391, 396 (5th Cir. 2006).
The District Court (Judge Walter S. Smith, Jr., appointed by Reagan) simply ignored them. It is not hyperbolic to summarize the proceedings as: the District Court wasn’t even asked to rule on the Gibson’s Eighth Amendment claim, but the District Court decided to rule on it anyway, ruled on it without giving Gibson any opportunity to respond, disregarded Texas’s burden to show the absence of a genuine dispute, then faulted Gibson for not providing evidence that she wasn’t asked to provide and, even if she had been asked, had no opportunity to obtain.
As I wrote above, this case should have been a no-brainer: the District Court’s summary judgment order was flawed in multiple ways, and it should have been vacated so that Gibson had an opportunity to respond and to develop the evidence demanded of her. Judge Ho, however, had other plans — and somehow convinced Judge Jerry E. Smith, a Reagan appointee, to sign off on these plans, thereby taking a majority of the three-judge panel and making it the law of the case.
Judge Ho’s opinion is littered with problems, only four of which I elaborate here.
First, although the District Court had consistently referred to the inmate using female pronouns — because she identifies as female — Judge Ho could not resist subjecting her to the indignity of using solely male pronouns, which he dubiously claimed in a footnote was “consistent with TDCJ policy.” Slip op., p. 3, Fn 2. In support, he cited a handful of cases going back to 1973, including a Supreme Court opinion that had nothing at all to do with transgender persons. There was no legal reason whatsoever to do that; whatever Judge Ho’s motivation was for insulting Gibson, who Judge Ho knows and admits suffers from severe psychological distress due to her gender dysphoria, it had nothing to do with the responsibilities of being a federal appellate judge.
Second, Judge Ho blithely disregarded the procedural errors committed by the District Court. In her appellate briefing, Gibson appropriately addressed the merits of her claim — whether it was cruel and unusual punishment to deny her treatment by a gender dysphoria specialist — and so Judge Ho used that against her: “We accept Gibson’s invitation to reach his [sic] 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.” Slip op., p. 6.
Initially, Gibson’s pro se appellate brief, filed before counsel was appointed, did raise procedural issues, as issues #1 and #2 in the “Statement of Issues Presented for Review.” The arguments weren’t fully developed, but, for purposes of a pro se brief, where rules on waiver and issue preservation are relaxed, the impropriety of summary judgment itself was adequately raised. As Judge Barksdale wrote in dissent, Judge Ho didn’t even apply his own dubious analysis consistently:
The majority at 3 states Gibson has “forfeit[ed]” any procedural objections because Gibson has now asked for a ruling on the merits. (In that regard, the majority is inconsistent: it notes that Gibson has asked our court to rule on the merits, but also states at 15 that Gibson has asked our court to remand, so that evidence of Gibson’s individual need for SRS can be presented.)
Slip op., p. 29 (dissent). I wish I could say Judge Ho’s chicanery was unusual, but Circuit Courts routinely use issues of “waiver” and “forfeit” like a game of three-card monte: if a Circuit Court wants to dodge an issue, they claim waiver, but if they want to rule on it, then they fall back on the rule they “may affirm on any basis raised below and supported by the record.” Quibodeaux v. Nautilus Ins. Co., No. 15-40567, at *4 (5th Cir. 2016).
Moreover, as Judge Barksdale noted, “just as a party cannot decide our standard of review, a party also cannot decide an insufficient record is sufficient.” Slip op., p. 29. On an appeal, there are some issues, which, if not raised, divest the court of jurisdiction (an issue that is also often gamed, but which we can leave for another day). But the sufficiency of a record for assessing the merits of a case is not one of them. Circuit Courts, including the Fifth Circuit, routinely find that a record is not sufficient for them to affirm the underlying District Court order, and so remand for further proceedings. See, e.g., Brenem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980)(“the record as it stands is insufficient to affirm”). Moreover, as described below, the minimal record in this case was actually quite favorable to Gibson, so favorable that Judge Ho selectively took facts from an entirely different case to justify his decision.
Third, because there was no basis for Judge Ho to reject Gibson’s claim that her request to be seen by a gender dysphoria specialist was “medically necessary,” Judge Ho skipped right past it entirely, with reasoning that is charitably described as willfully obtuse:
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.
Slip op., p. 2. Judge Ho’s “common sense” analogy makes no sense at all, because the FDA does not “prohibit” sex-reassignment surgery. Just ask the Center for Medicare & Medicaid Services (CMS): “Surgical procedures per se are not subject to the Food and Drug Administration’s (FDA) approval. Inflatable penile prosthetic devices, rigid penile implants, testicular prosthetic implants, and breast implants have been approved/cleared by the FDA.” (We’ll come back to this CMS memo, which Judge Ho himself cited.)
Not one to be bothered by a blatantly false analogy, Judge Ho went further, and applied the sort of casually unfair and unjust reasoning that the Fifth Amendment and Seventh Amendment were ratified to prevent:
Gibson nevertheless asks this court to remand so that he can present evidence of his individual need for sex reassignment surgery. Oral Arg. 11:35–12:10; 13:27–16:22. We do not see how evidence of individual need would change the result in this case, however.
Slip op., p. 15. Thus, Judge Ho held that, although the Court admittedly did not have enough evidence about Gibson’s case to decide her case one way or another, the Court could dispense with due process, the right to a jury trial, and the bother of actually hearing Gibson’s case, and instead issue a blanket ruling that consultation with a gender dysphoria specialist could never, ever be medically necessary because sex reassignment surgery could never, ever be medical necessary. Those sorts of gratuitous across-the-board holdings are why, as NPR recounted, lawyers from across the political spectrum have started to question whether Judge Ho sees himself as a federal judge or as a political columnist who happens to sit on the federal bench.
And Judge Ho’s claim that there is no need to review “evidence of individual need” for gender reassignment surgery does not make sense. It cannot be squared with basic legal practice relating to medical evidence, much less with the current case law relating to gender reassignment surgery. In every case, whether it involves an inmate or a car accident or anything else, complex medical issues are decided by way of evidence from qualified medical professionals, and parties to a case are entitled to call doctors to testify about their observations, diagnoses, and opinions. See, e.g., McGuire v. Davis, 437 F.2d 570, 572 (5th Cir. 1971)(“a doctor may testify from personal observation of his patient”); see also Skidmore v. Precision Printing and Pkg., Inc., 188 F.3d 606, 618 (5th Cir. 1999) (testimony by psychiatrist properly admitted because the psychiatrist “testified to his experience, to the criteria by which he diagnosed [the plaintiff], and to the standard methods of diagnosis in his field”). Indeed, the Center for Medicaid & Medicare Services itself — in a memo Judge Ho obviously was aware of, because he cited it, see slip op., p. 14, fn 7 — evaluates coverage for gender reassignment surgery on “a case-by-case basis,” which is exactly what Gibson wanted, an individualized review by a gender dysphoria specialist.
The need for individual evaluation is so critical that State Departments of Human Services which have tried to block coverage for gender reassignment surgeries have often found themselves overruled by their State Supreme Courts, like what just happened in Iowa. Judge Ho’s “common sense” rationale thus defied not just the federal government’s own policies and the current interpretation of anti-discrimination laws, but also the most “common sense” of medical issues: the only way to know what treatment any patient needs is for a qualified medical provider to provide an expert medical opinion.
Fourth, as the dissent pointed out, the actual record in front of the Fifth Circuit was quite minimal — because Gibson’s case had been dismissed before any discovery had been taken, and without any notice to her the Court was going to decide that issue — and that record was unambiguously favorable to Gibson:
In moving for summary judgment only on the basis of immunity, the Director provided the following evidence in support: Gibson’s grievance records; Gibson’s medical records from January 2014-August 7, 2015; and TDCJ Policy No. G-51.11. The Director submitted no evidence regarding the medical necessity vel non of SRS in treating gender dysphoria.
In response, Gibson offered as evidence: Gibson’s affidavit, grievance records, and psychiatric records from a psychiatric facility; literature on health care and transgender individuals, including excerpts from a report detailing the [World Professional Association for Transgender Health] WPATH Standard of Care, which state “for many . . . surgery is essential and medically necessary to alleviate their gender dysphoria”; a copy of TDCJ’s policy on surgical castration for sex offenders; and copies of correspondence to Gibson from TDCJ Correctional Managed Health Care.
Slip op., p. 30 (dissent).
Judge Ho, too, recognized “the sparse record before us,” slip op., p. 10, which left him with a problem: there was no way for him to rule what he wanted to rule, i.e., that gender reassignment surgeries were never medically necessary. The only medical information in front of the Court were Gibson’s medical records, which showed an indisputable serious medical need, and the WPATH Standard of Care, which bluntly says gender reassignment surgery may be “essential and medically necessary.”
So what did Judge Ho do? He cherry-picked facts from a completely different case, Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014). It is difficult to imagine a more egregious violation of due process than to have your case dismissed without any reference to your facts because some other court, reviewing someone else’s facts, came to a particular conclusion.
Judge Ho began by misrepresenting the First Circuit’s opinion in Kosilek, claiming that case established a bright-line rule that, because sex reassignment surgery is “medically controversial,” nothing relating to sex reassignment surgery could ever rise to the level of an Eighth Amendment claim:
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.” [Kosilek] at 90. The court held that this choice between treatments “is a decision that does not violate the Eighth Amendment.” Id.
Slip op., p. 11.
In fact, the First Circuit said precisely the opposite, on the very same page cited by Judge Ho:
Kosilek admits that the DOC’s current treatment regimen has led to a significant stabilization in her mental state. Kosilek’s doctors testified to the same, highlighting her “joy around being feminized.” This claim is also borne out by the passage of significant time since she exhibited symptoms of suicidal ideation or attempted to self-castrate. In addition to alleviating her depressive state, this treatment has also resulted in significant physical changes and an increasingly feminine appearance. The significance of a future risk of suicidality is not one that this court takes lightly, and Kosilek is right to note that a clear risk of future harm may suffice to sustain an Eighth Amendment claim. …
That the DOC has chosen one of two alternatives-both of which are reasonably commensurate with the medical standards of prudent professionals, and both of which provide Kosilek with a significant measure of relief—is a decision that does not violate the Eighth Amendment.[Footnote 12]
 This holding in no way suggests that correctional administrators wishing to avoid treatment need simply to find a single practitioner willing to attest that some well-accepted treatment is not necessary. We do not establish here a per se rule allowing a dissenting medical opinion to carry the day. Rather, our determination is limited to the particular record on appeal, which involves a medical condition that admits of a number of valid treatment options.
Kosilek, 774 F.3d at 90 n.12 (1st Cir. 2014)(emphases added). The First Circuit thus specifically held that, even in Kosilek’s own case, if Kosilek had not benefited from her current treatment regime — which included treatment denied to Gibson, such as “feminine clothing and accessories” — and still had a risk of suicide, then that “may suffice to sustain an Eighth Amendment claim.” Id. Moreover, the First Circuit reiterated “our determination is limited to the particular record on appeal,” and was not a “per se rule.” Any fair reading of the First Circuit’s opinion in Kosilek, which that Court took great pains to explain was limited to the precise facts in before them, would still support Gibson’s claim, and that’s just on the minimal record we have. We have no idea what other facts might support Gibson’s claim because Gibson was wrongly denied the opportunity to develop her record and to make her arguments.
These problems are part of why courts are not supposed to take facts from one case and then apply them wholesale to another case.
Judge Ho then deemed himself a medical expert in the treatment of gender dysphoria, and went through the First Circuit’s summary of the expert testimony in Kosilek — there is no indication Judge Ho bothered to obtain, much less read, the actual trial transcripts — before concluding “there is no medical consensus that sex reassignment surgery is a necessary or even effective treatment for gender dysphoria.” Slip op., p. 14.
Again, Judge Ho made this finding of fact despite having no evidence at all in the record to do so. The only evidence of record about medical standards in Gibson’s case was the WPATH Standards of Care that say gender reassignment surgery is “essential and medically necessary” for some patients, and those WPATH Standards have been recognized by federal courts across the country. See De’Lonta v. Johnson, 708 F.3d 520, 522-23 (4th Cir. 2013) (describing WPATH as “the generally accepted protocols” for treatment of gender dysphoria); Norsworthy v. Beard, 74 F. Supp. 3d 1100, 1104 (N.D. Cal. 2015) (describing WPATH as the “leading medical research and standards of care” and granting prisoner suffering from gender dysphoria a preliminary injunction for SRS based on the expert medical consensus from WPATH); Soneeya v. Spencer, 851 F. Supp. 2d 228, 231 (D. Mass. 2012) (recognizing “the ‘Standards of Care’ promulgated by the [WPATH]” as “the course of treatment for Gender Identity Disorder generally followed in the community”); Fields v. Smith, 712 F. Supp. at 838 n.2 (E.D. Wis. 2010) (acknowledging WPATH’s Standard of Care as “the worldwide acceptable protocol for treating GID”), aff’d 653 F.3d 550 (7th Cir. 2011). In a fair proceeding, the Fifth Circuit would have deemed it undisputed that gender reassignment surgery is, for some patients, medically necessary, because the only evidence in the record were medical guidelines that said exactly that and which have been accepted by federal courts across the country. But Judge Ho did not want to give Vanessa Lynn Gibson a fair proceeding, he wanted to make a political statement.
We can only hope the plaintiff petitions for en banc review, the review is granted, and this opinion is reversed, because the alternative is to accept that the most basic norms of court procedure can be suspended whenever a judge feels like airing their opinion about current events.