2019 Legal Update

Hello everyone –

I know this blog has remained largely inactive in recent months. Since Vanessa was moved back to the Hughes Unit, it has been much easier to visit her, and I’ve been able to see her every 6-8 weeks or so. Our visits and letters have remained largely positive, with the conversation mostly revolving around what it will be like when she gets out of prison – her hopes and dreams to continue activism for trans people, but also enjoy the simple pleasures of life she has been denied while confined for the past 25 years.

With two current lawsuits, much is in the air. From a letter dated in March of this year, Vanessa writes “The facebook attorneys are on the war path! They just filed a motion to get my case moved from the state court to federal court. I’m not exactly certain of what it means or its purpose, but I don’t think it’s beneficial to me.. but I’m ready for whatever! I know what their defense will be – they will claim the federal law give them immunity/ they can’t be held responsible for what their customers post online. That’s why I didn’t allege this! I claimed that they were negligent for failure to to remove the post and stop them.”
Read her brief filed last month here: 2019:3_CASE18-50844_Brief

Meanwhile, our friends at TPI made us aware that her lawsuit against TDCJ is experiencing a major setback. The fifth circuit of appeals has ruled against her lawsuit to gain access to affirming and necessary medical care for her gender dysphoria. The ruling can be viewed here 2019:3_CASE16-51148

This blog post breaks down what all of this could mean, and what Vanessa’s few options are in moving forward. In sum, from a person much more knowledgeable about law than I am:

“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.
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.
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.


I received a letter from Vanessa today, and she made no mention of her lawsuit – so I assume she has not been made aware of this ruling yet. I will update this blog once I hear back from her. I have sent her a copy of the above blog post and the ruling. Please keep Vanessa in your thoughts and consider writing her a letter or card during this difficult time as the system has failed her yet again. Outside support in any form is very much needed.


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