BY ARTHUR S. LEONARD | For only the second time, a federal district judge has ordered state prison officials to provide sex-reassignment surgery to a transgender inmate. On April 2, Judge Jon S. Tigar in San Francisco, relying on the recommendations of expert witnesses, ruled state officials must provide the procedure for Michelle-Lael Norsworthy “as promptly as possible” in light of her medical condition.
The first such order, issued in 2012 by the federal district court in Boston on behalf of Michelle Kosilek, a Massachusetts life inmate, was reversed by the First Circuit Court of Appeals late last year. Judge Tigar acknowledged that ruling, but pointed out that it was not binding on the court in California and that there were many distinctions between the cases.
On April 10, California Attorney General Kamala D. Harris filed a motion with Tigar requesting that his preliminary injunction be stayed “pending review by the Ninth Circuit Court of Appeals.” Harris, a Democrat with strong political ties to the LGBT community, argued that providing surgery in response to a motion for preliminary injunction was effectively deciding the case on the merits before the state had any opportunity to prove at trial that the procedure was not “medically necessary” and so required under the Eighth Amendment’s ban on cruel and unusual punishment. Harris stressed that the Ninth Circuit, whose rulings are binding on federal courts in California, has never ruled on whether prison inmates are entitled to sex-reassignment surgery.
Named Jeffrey Norsworthy at birth, the plaintiff was convicted of murder in the second degree with the use of a firearm in 1987 and sentenced to 17 years to life, though she’s been eligible for parole since 1998. Norsworthy did not openly identify as a transgender woman until the mid-1990s, and she was diagnosed with gender dysphoria by a prison physician in January 2000 and began hormone therapy. According to expert deposition testimony, Norsworthy now lives as a “biological female,” a “pleasant looking woman, slender, and coiffed with a pony tail,” who “walks the yard as a woman.”
Though prison authorities have refused her request to seek a legal name change to Michelle-Lael, Norsworthy, unlike inmates in most states, has been allowed to keep her hair long, to shower in private, and to wear a bra, and, though incarcerated in a male prison, she is housed in a “sensitive needs yard.”
Still, Norsworthy has suffered several rapes in prison, and as a result of one prolonged gang rape she become infected with hepatitis C, which has damaged her liver and created complications with her hormone therapy.
News of Kosilek’s initial victory in the Boston federal district gave Norsworthy hope she could obtain sex-reassignment surgery, which she began seeking even before getting a psychologist’s diagnosis of the treatment as medically necessary for her. Prison officials responded to the diagnosis by assigning Kosilek to a new psychologist, who was not supportive of her quest, though Norsworthy in time won the support of two other medical experts.
By 2014, having exhausted every remedy within the prison system, Norsworthy filed suit, arguing that surgery was medically necessary not just because of her gender dysphoria but also because it would lessen the need for estrogen treatment and so relieve pressure on her liver.
Norsworthy’s case ran up against strongly worded deposition testimony from Dr. Stephen Levine, who was an expert witness in the Kosilek trial and has argued that sex-reassignment surgery is always an “elective” procedure and that it should not be undertaken until the individual has lived in society in the desired gender for a year –– an experience he asserts cannot be obtained in prison.
Tigar found that though California’s written prison policies do not categorically forbid sex-reassignment surgery, in practice its actions effectively do constitute a categorical denial not based on an individualized medical assessment. In reviewing experts on both sides of the Norsworthy question, he concluded that those supporting her request for surgery had the convincing argument.
The judge was particularly scathing about Levine’s deposition.
“The Court gives very little weight to the opinions of Dr. Levine, whose report misrepresents the Standards of Care; overwhelmingly relies on generalizations about gender dysphoric prisoners, rather than an individualized assessment of Norsworthy; contains illogical inferences; and admittedly includes references to a fabricated anecdote,” he wrote.
The “fabricated anecdote” refers to Levine’s deposition testimony about a California inmate who had undergone sex-reassignment surgery with poor results. Since the record shows that no inmate in California has ever received such treatment, the judge concluded the story was obviously fictional and that Levine had acknowledged as much.
In ruling on a motion for preliminary injunction, Tigar found Norsworthy demonstrated a high likelihood of success on the merits. She suffered from a serious medical condition for which surgery was a necessary treatment, while the prison’s de facto policy of categorically denying such treatment demonstrated deliberate indifference amounting to cruel and unusual punishment. Forgoing this treatment for the years a trial on the merits might take, Tigar concluded, would inflict irreparable harm on Norsworthy.
As to the argument that the state’s case should be heard on the merits, the judge found, “there is no public interest in Norsworthy’s continued suffering during the pendency of this litigation.”
Tigar’s opinion aroused immediate media and political controversy in California, with significant pressure put on the attorney general to seek a stay pending appeal. The judge’s opinion seemed to anticipate the arguments Harris made in her motion. The attorney general argued that Tigar’s order to make surgery available “as promptly as possible” overlooks the fact that Norsworthy has lived in prison with gender dysphoria for nearly two decades and no recent development has made surgery suddenly urgent. Her suit, Harris argued, was prompted by Kosilek’s victory in Massachusetts, not on her medical needs.
Tigar found the contrary, focusing on expert testimony that Norsworthy only delayed seeking surgery out of a sense the effort would prove futile.