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.