Metropolitan News-Enterprise


Monday, June 29, 2015


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Ninth Circuit Panel Revives Transgender Inmate’s Bid for Surgery


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals on Friday revived a transgender California inmate’s legal action for sexual-reassignment surgery.

The reversal for Mia Rosati, formerly Philip Walker Rosati, comes a short three weeks after the federal appeals court held oral arguments in the case.

Rosati filed a 60-page handwritten pro se complaint from San Diego’s R.J. Donovan State Prison, where she is serving 80 years to life for murder.

Though a federal judge dismissed the complaint, the circuit’s per curiam reversal Friday says that Rosati’s allegations were sufficient to state a claim.

Rosati’s attorney, Peter Renn, had told the court at oral argument that his client’s gender dysphoria is so severe that she attempted to castrate herself in prison after she was denied access to surgery.

Rosati has also expressed intentions of performing even more dangerous surgery in the future, Renn said.

State’s Concession

California conceded at the hearing that the district court should not have dismissed Rosati’s complaint without leave to amend.

“This concession alone justifies reversal,” the panel—Judges Barry G. Silverman, Ronald M. Gould, and Andrew D. Hurwitz—wrote. “But, even absent the concession, we conclude that the complaint, although not drafted with the skill and brevity expected of counsel, stated an Eighth Amendment claim upon which relief could be granted.”

The opinion notes that Rosati has plausibly alleged her severe gender dysphoria, because she cited “repeated episodes of attempted self-castration despite continued hormone treatment.”

Rosati also plausibly alleged that prison officials were aware of her medical history and need for treatment but denied the surgery because of a blanket policy against sexual-reassignment surgery, the judges wrote. “Indeed, the state acknowledged at oral argument that no California prisoner has ever received SRS,” the court added.

California scheduled its first sex-reassignment surgery for an inmate last month upon a federal judge’s order, but the Ninth Circuit entered a stay in Michelle Norsworthy’s case pending a hearing set for Aug. 10. The state, meanwhile, has recommended Norsworthy be paroled, making it less likely that she will receive the prison-funded surgery before she is released.

At least one other state inmate is suing to obtain the surgery.

Court’s Finding

The court held Friday that “even absent such a blanket policy,” Rosati plausibly alleged that her symptoms are so severe that “prison officials recklessly disregarded an excessive risk to her health by denying SRS solely on the recommendation of a physician’s assistant with no experience in transgender medicine.”

The panel also said that, although Rosati lacks a medical opinion recommending the surgery, she plausibly alleged that “this is because the state has failed to provide her access to a physician competent to evaluate her.”

“We express no opinion on whether SRS is medically necessary for Rosati or whether prison officials have other legitimate reasons for denying her that treatment,” the judges explained, saying those issues will have to be resolved on remand.

“But, like other courts that have considered similar actions, we hold that the allegations in Rosati’s complaint are sufficient to state a claim,” the panel said.

Renn, Rosati’s attorney, said in a statement that his client’s “cries for help fell on deaf ears within the prison system, and we are grateful the appellate court has revived her case.”

“Given the severe distress she suffers, denying her access to potentially life-saving treatment, or even a good-faith evaluation for it, is inexcusable,” he said.

“Without adequate treatment, gender dysphoria can easily spiral into depression, suicide and attempts at self-surgery that jeopardize a person’s life. Transgender prisoners should not be denied access to essential medical care.”

Renn is with Lambda Legal, in Los Angeles. Deputy Attorney General Neah Huynh, who could not be reached for comment on Friday, argued the case for the state. The World Professional Association for Transgender Health, represented by attorneys in the Boston office of Ropes & Gray, LLP, filed an amicus brief supporting Rosati.

The case is Rosati v. Igbinoso, 13-15984


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