Tuesday, October 6, 2015

Page 1

Panel Says Suit Over Sex Reassignment Surgery Now Moot

From Staff and Wire Service Reports

A lawsuit by a transgender inmate, which resulted in a district judge ordering prison officials to pay for sexual reassignment surgery, is moot now that the plaintiff has been released on parole, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel sent the case back to the U.S. District Court for the Northern District of California to determine whether the injunction should be vacated, and to rule on the plaintiff’s request for attorney fees.

U.S. District Judge Jon Tigar’s landmark ruling that the California Department of Corrections and Rehabilitation violated Michelle-Lael Norsworthy’s right to be free from cruel and unusual punishment by denying her surgery while she was in prison would have led to the first sex reassignment surgery on a prison inmate in California history.

The case occurred alongside the circuit’s recent revival of a similar action brought by California inmate Mia Rosati and the state’s agreement to pay for the sex reassignment surgery of transgender inmate Shiloh Quine.

Norsworthy was convicted of murder and sentenced to life in prison in 1987. She began living as a woman while in prison and was formally diagnosed with gender dysphoria in 2000.

She was scheduled to have sex reassignment surgery on July 1, but the procedure was put on hold after the Ninth Circuit granted the state a stay.

But while the appeal was pending, Norsworthy was released on parole and the state argued that her release rendered the case moot.

The panel—Judges Stephen Reinhardt and Consuelo Callahan, and Senior Judge A. Wallace Tashima—agreed the appeal was moot, in a per curiam opinion. But the judges disagreed sharply as to whether the injunction should be vacated.

Reinhardt and Tashima said the circumstances of the plaintiff’s release were “somewhat unusual,” suggesting the state may have manipulated the process by releasing the plaintiff one day before oral argument. If the case became moot through the state’s own actions, rather than by “happenstance,” the district judge may determine that it would be inappropriate to vacate the injunction, the judges said.

“Because we can say no more, we are unwilling to express a view of what happened without full knowledge of all the facts that the district court should consider in the first instance,” the majority said.

Callahan dissented from the remand, saying it was “based on legal error and unnecessarily prolongs this litigation,” and argued that the injunction should simply be vacated, as is the usual practice when a case becomes moot while an injunction is being appealed.

“Everyone agrees that this appeal is moot,” she said. “Accordingly, in addition to dismissing this appeal we should vacate the mandatory preliminary injunction ordering CDCR to provide Ms. Norsworthy with sex reassignment surgery.”

Callahan said that the majority’s argument that the facts surrounding Norsworthy’s release are not sufficiently developed “approaches sophistry,” since the process leading to her release was “set forth fully in the documents that have been submitted to the court.”

The case is Norsworthy v. Beard, 15-15712.