Case Information
*1 Before WILSON and NEWSOM, Circuit Judges, and COOGLER, [*] District Judge.
NEWSOM, Circuit Judge:
This аppeal requires us to decide whether the Florida Department of Corrections violated the Eighth Amendment’s prohibition on cruel and unusual punishment in its treatment of a transgender inmate’s gender dysphoria. Specifically, we must determine whether the FDC acted with deliberate indifference to Reiyn Keohane’s serious medical need when it (1) enforced a since- repealed policy that strictly limited transgender inmates to the particular medical treatments they were receiving when taken into custody, (2) delayed providing hormone therapy to Keohane for two years pursuant to that policy, and (3) refused Keohane’s “social transitioning” requests—in particular, to wear long hair, makeup, and female undergarments. We must also determine whether the FDC’s post-suit decisions to rescind what the parties have called its “freeze-frame” policy and to prescribe Keohane hormone therapy moot this appeal with respect to the first two issues.
Keohane brought this action under 42 U.S.C. § 1983 alleging violations of
her Eighth Amendment rights and seeking (as relevant here) declaratory and
injunctive relief. The district court entered a three-part order (1) declaring the
FDC’s former freeze-frame policy unconstitutional and permanently enjoining the
FDC from “reenacting and enforcing” it, (2) requiring the FDC to continue to
provide Keohane with hormone therapy “so long as it is not medically
contraindicated,” and (3) directing the FDC to permit Keohane “to socially
transition by allowing her access to female clothing and grooming standards.”
Keohane v. Jones
,
We hold that Keohane’s challenges to the prior freeze-frame policy and the FDC’s initial denial of hormone therapy are moot in light of the FDC’s subsequent repeal and replacement of the policy and its provision of hormone treatment. We reject on the merits Keohane’s claim that the FDC violated the Eighth Amendment by refusing to accommodate her social-transitioning requests.
I
A Reiyn Keohane is an FDC inmate currently serving a 15-year sentence for attempted murder. Keohane was born male, but she began to identify as female sometime during her preadolescent years. Beginning at age 14—and up until the time she was incarcerated at 19—Keohane wore women’s clothing, makeup, and hairstyles. At 16, she was formally diagnosed with gender dysphoria—which, in general terms, “refers to the distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender.” American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013). About six weeks before her arrest, Keohane began hormone therapy under the care of a pediatric endocrinologist.
Following her arrest, Keohane was initially housed at the Lee County Jail, where she says her request to continue hormone therapy was immediately denied. When, several months later, in July 2014, Keohane was transferred to an FDC prison in south Florida, she asked to resume her hormone-therapy treatment because, as she explained to prison officials in a written grievance, “[w]ithout it [she] consider[ed] self-harm and suicide every single day.” She made similar requests (accompanied by similar threats of self-harm) during the ensuing two years, all of which were either disregarded or rejected. [1] Keohane alleges—and the FDC doesn’t dispute—that her hormone-therapy requests were denied pursuant to a policy specifying that “[i]nmates who have undergone treatment for [gender dysphoria] will be maintained only at the level of change that existed at the time they were received by the Department.” Under this “freeze-frame” policy, the care of inmates suffering from gender dysphoria was determined not by their current, individualized medical needs, but rather by the treatment they were (or weren’t) receiving at the time of their incarceration.
In December 2014, Keohane’s grievances began to include requests relating to “social transitioning”—that is, the ability to live consistently with one’s gender identity, including by dressing and grooming accordingly. In particular, Keohane expressed a desire to wear female undergarments and makeup, and to grow out her hair in a long, feminine style—as the district court described it, “to possess and wear the same bras, panties, hairstyles, and makeup items permitted in [the FDC’s] female facilities.” The FDC refused Keohane’s social-transitioning requests on the grounds that they violated prison policy—which required male inmates to wear “[u]nder shorts” and to “have their hair cut short to medium uniform length at all times with no part of the ear or collar covered,” Fla. Admin. Code r. 33- 602.101(2), (4)—and that they posed a security risk. Specifically, the FDC was concerned that an inmate wearing makeup and female undergarments would inevitably become a target in an all-male prison, thereby endangering not only the inmate but also the prison employees who would have to step in to protect her. Additionally, the FDC concluded that there are clear advantages to maintaining uniformity in a prison setting, including the ability to more readily detect contraband.
During this protracted request-denial cycle, Keohane made multiple attempts to self-harm. In October 2014, Keohane tried to hang herself. In January 2015, she tried to castrate herself. And in April 2017, she tried to kill herself twice more.
B
Having exhausted her efforts to obtain relief within the prison system, Keohane filed a single-count complaint in the United States District Court for the Northern District of Florida alleging that the FDC’s denial of her hormone-therapy and social-transitioning requests violated the Eighth Amendment. As relevant here, Keohane sought three forms of relief: (1) a declaration that the FDC was acting with deliberate indifference to her gender dysphoria, a serious medical need; (2) a permanent injunction ordering the FDC to provide her with hormone therapy and social-transitioning accommodations, including “access to female clothing and grooming standards”; and (3) a permanent injunction prohibiting the FDC from enforcing its freeze-frame policy.
Not long after Keohane filed suit, the FDC altered its behavior in two material respects. First, just two weeks after the complaint was filed, the FDC referred Keohane to an outside endocrinologist who immediately prescribed her hormone therapy. Second, about six weeks after that, the FDC formally repealed its freeze-frame policy and replaced it with a policy that calls for individualized assessment and treatment of inmates who claim to be suffering from gender dysphoria and related conditions. With the lone exception of a sports bra to help with her hormone-related breast enlargement, however, the FDC has continued to refuse Keohane’s social-transitioning requests.
Keohane’s case proceeded to a bench trial. Helpfully, the parties agreed— and still do—both that Keohane’s gender dysphoria constitutes a “serious medical need” for deliberate-indifference purposes and that hormone therapy is medically necessary to treat that need. Most notably, Keohane’s FDC treatment team— which comprised her psychologist, her mental-health counselor, and a psychiatric physician assistant—supported the determination that hormone therapy is medically necessary. And since initially acceding to Keohane’s request for hormone therapy in September 2016, the FDC has consistently provided it and has repeatedly represented (both at trial and on appeal) that it will continue to do so “as long as [her] treatment team believes the hormones are medically necessary to treat her gender dysphoria.” Br. of Appellant at 7–8 (citing testimony).
The parties and medical professionals disagreed, however—and still do— about the medical necessity of Keohane’s social-transitioning-related requests to dress and groom herself as a woman. For his part, Keohane’s retained medical expert testified (1) that allowing an individual to present consistently with her gender identity is one “of the medically necessary components for the treatment of gender dysphoria,” (2) that it would be “medically and logically inconsistent” and “potentially harmful” to provide Keohane hormone therapy while denying her the ability to socially transition, and (3) that forcing one to live in conformity with a gender with which she doesn’t idеntify “would likely” cause her to engage in self- harm.
By contrast, the members of Keohane’s treatment team, who had supported the provision of hormone therapy, denied that social transitioning is medically necessary to treat Keohane’s gender dysphoria—as did a staff psychiatrist with the FDC’s medical vendor Wexford, the FDC’s chief clinical officer, and the FDC’s retained expert. According to the treatment team, Keohane’s current regimen— hormone therapy and mental-health counseling, together with other accommodations, including the use of female pronouns (“she,” “her,” etc.), safer housing accommodations, and private shower facilities—is sufficient to treat her gender dysphoria. The treatment team also explained that requiring Keohane to comply with the FDC’s clothing and grooming policies does not place her at a substantial risk of self-harm or severe psychological pain. The FDC’s retained expert acknowledged that the sorts of social-transitioning-related accommodations that Keohane sought may be “psychologically pleasing” to her, but he too rejected the suggestion that they are medically necessary. Finally, FDC witnesses testified—as FDC personnel had explained from the beginning—that granting Keohane’s social-transitioning requests would pose unacceptable security risks. Notably, though, despite the FDC’s steadfast refusal to accommodate Keohane’s social-transitioning requests, it has repeatedly stated—since this suit was filed, anyway—that “if [those] requests are deemed medically necessary, they will be fulfilled,” and that it will take additional security measures as needed. Br. of Appellant at 9.
Following trial, the district court issued an opinion in Keohane’s favor. The court rejected the FDC’s contention that Keohane’s claims relating to the former freeze-frame policy and its initial refusal to provide hormone therapy were moot— concluding, in particular, that the FDC’s “voluntary cessation” of the challenged conduct was insufficient to render those claims nonjusticiable. On the merits, the district court held (1) that the FDC’s former freeze-frame policy was an unconstitutional “blanket ban on medically necessary care,” (2) that the FDC’s earlier denial of hormone therapy—which the district court thought resulted from “bigotry and ignorance”—evinced “deliberate indifference to [Keohane’s] serious medical need in violation of the Eighth Amendment,” and (3) that allowing Keohane to clothe and groom herself as a woman is medically necessary to treat her gender dysphoria and that the FDC’s ongoing denial of her social-transitioning requests likewise violates the Eighth Amendment. To effectuate its judgment, the court entered a three-part order (1) declaring the FDC’s former freeze-frame policy unconstitutional and “permanently enjoin[ing]” the FDC from “reenacting and enforcing” it, (2) requiring the FDC to continue to “provide Ms. Keohane with hormone therapy so long as it is not medically contraindicated,” and (3) directing the FDC to “permit Ms. Keohane to socially transition by allowing her access to female clothing and grooming standards.” [2]
* * *
The FDC’s appeal presents the following issues for our consideration: (1) Did the FDC’s former freeze-frame policy manifest deliberate indifference to Keohane’s serious medical need and thereby violate the Eighth Amendment’s prohibition against cruel and unusual punishment, and relatedly, is Keohane’s challenge to that policy—and requested injunction against its enforcement—now moot in light of its repeal and replacement? (2) Did the FDC’s refusal to provide Keohane with hormone therapy during the first two years of her incarceration violate the Eighth Amendment, and again, is Keohane’s challenge to that refusal— and requested injunction—now moot in light of the FDC’s decision to allow the treatment? And (3) does the FDC’s ongoing refusal to provide Keohane with social-transitioning accommodations—including the ability to wear long hair, makeup, and female undergarments—violate the Eighth Amendment? [3]
II
The Eighth Amendment prohibits the “inflict[ion]” of “cruel and unusual
punishments.” U.S. Const. amend VIII. Under the Amendment, the “[f]ederal and
state governments . . . have a constitutional obligation to provide minimally
adequate medical care to those whom they are punishing by incarceration.”
Harris
v. Thigpen
,
A deliberate-indifference claim entails both an objective and a subjective
component.
Brown v. Johnson
,
Here, as already noted, there’s no debate about the objective component. The FDC admits—and the parties thus agree—that Keohane’s gender dysphoria constitutes a “serious medical need.” Rather, the dispute hinges on the subjective component. Specifically, the parties disagree—at least in part—ovеr whether the particular types of treatment that Keohane has requested are medically necessary, such that any course of care that doesn’t include them would be constitutionally inadequate.
A prisoner bringing a deliberate-indifference claim has a steep hill to climb.
We have held, for instance, that the Constitution doesn’t require that the medical
care provided to prisoners be “perfect, the best obtainable, or even very good.”
Harris
,
Against that backdrop, we consider whether the FDC violated the Eighth Amendment (1) by adopting and previously enforcing the since-repealed freeze- frame policy, (2) by initially declining to provide Keohane with hormone therapy, and (3) by continuing to refuse Keohane’s social-transitioning-related requests to dress and groom herself according to female standards.
A
First, the former freeze-frame policy. Keohane contends that it constituted
“deliberate indifference to [a] serious medical need[],”
Estelle
,
We conclude, though, that we are not free to reach the merits. Because the FDC has formally rescinded its freeze-frame policy and replaced it with a new one that properly attends to inmates’ individualized medical needs, we hold that Keohane’s challenge to the old policy is moot. There is, quite simply, no longer any freeze-frame policy to challenge—nothing to enjoin, as the district court purported to do.
Mootness arises when an issue presented in a case is “no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome.”
Powell v. McCormack
,
Here, because the FDC repealed its freeze-frame policy following the onset
of litigation—approximately two months after Keohane filed suit—we must
determine whether the “voluntary cessation” exception to the mootness doctrine
applies. Pursuant to that exception, a defendant’s “voluntary cessation of allegedly
illegal conduct does not moot a case.”
United States v. Concentrated Phosphate
Exp. Ass’n
,
The basis for the voluntary-cessation exception is the commonsense concern
that a defendant might willingly change its behavior in the hope of avoiding a
lawsuit but then, having done so, “return to [its] old ways.”
Id.
(quotation
omitted). So when a defendant contends that a plaintiff’s claim has become moot
as a result of the defendant’s own independent decision to cease some disputed
action, it usually “bears the . . . burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur.”
Doe v.
Wooten
,
That is especially true when, as here, a government defendant has formally
rescinded a challenged statute, ordinance, rule, or policy. As the en banc Court
emphasized in
Flanigan’s
, “the repeal of a challenged statute”—or other similar
pronouncement—is ordinarily “one of those events that makes it absolutely clear
that the allegedly wrongful behavior . . . could not reasonably be expected to
recur.”
In
Flanigan’s
, we explained that, in determining whether a plaintiff has
shouldered its burden, a reviewing court should look to “three broad factors”—
although we hastened to add that “these factors should not be viewed as exclusive
nor should any single factor be viewed as dispositive,” and that, in any event, “a
mootness finding should follow when the totality of [the] circumstances persuades
the court that there is no reasonable expectation that the government entity will
reenact” the challenged policy.
Applying these factors here, we come to the same conclusion that we
reached in
Flanigan’s
: “[T]here is no substantial evidence indicating a reasonable
likelihood that” the defendant—here, the FDC—“will reenact the challenged
provision”—here, the freeze-frame policy—“which it has now repealed.” 868 F.3d
at 1260. With respect to the first factor, the district court concluded that the FDC’s
decision to rescind its freeze-frame policy “was an attempt to manipulate
jurisdiction—certainly
not
the result of substantial deliberation.”
Keohane
, 328 F.
Supp. 3d at 1300. To echo а sentiment expressed in
Flanigan’s
, “[w]e are not
unsympathetic to this argument.”
What we said in
Flanigan’s
about the second factor applies here too: The
FDC’s formal repeal of the freeze-frame policy “is plainly an unambiguous
termination.”
Id
. at 1261. Just like the government defendant there, the FDC “has
not merely declined to enforce the [freeze-frame policy] against” Keohane in
particular—so as, in effect, to give her a personalized exemption.
Id
. Rather, “it
has removed the challenged portion” of the policy “in its entirety.”
Id
. Indeed, the
FDC has gone a step farther by replacing the old freeze-frame policy with a new
protocol that provides for individualized evaluation. And as the FDC explained at
oral argument, it would have to do some serious hoop-jumping to rescind the
current, individual-assessment policy and reenact the former freeze-frame policy
even if it wanted to do so. Oral Argument at 4:23 (explaining the protracted
administrative process that accompanies a formal policy change). Moreover—and
again, just as in
Flanigan’s
—the FDC has repeatedly “assured this Court . . . that it
has no intention of reenacting” the freeze-frame policy.
Finally, as to the third factor, we conclude that the FDC has “consistently
maintained” and applied its new individualized-assessment policy.
Id
. at 1257.
There is certainly no “pattern” оf broken promises here of the sort that has
concerned us in the past.
See, e.g.
,
Doe
,
At the end of the day, we’re less concerned with the subjective question
whether the initial reason for the government’s decision was sincere than with the
objective question whether there is any “substantial evidence indicating a
reasonable likelihood that the [FDC] will reenact the challenged [freeze-frame
policy] which it has now repealed” and replaced.
Flanigan’s
,
B
Second, hormone therapy. Keohane contends that the FDC’s initial refusal
to provide her with hormone-therapy treatment violated the Eighth Amendment. The district court agreed and entered an injunction (separate from the one
prohibiting the reenactment of the freeze-frame policy) requiring the FDC to
“provide Ms. Keohane with hormone therapy so long as it is not medically
contraindicated.”
Keohane
,
On the merits, the question might be a close one. The record seems to
indicate that the FDC knew that denying Keohane hormone therapy threatened a
serious risk of self-harm—the grievances that she filed with prison officials
expressly and repeatedly linked the two. And given the circumstances, it’s
possible that the FDC disregarded that risk “by conduct that [was] more than mere
negligence.”
Brown
,
Once again, though, we find that we cannot reach the merits because we conclude that Keohane’s hormone-therapy-related challenge is moot. Approximately two weeks after Keohane filed suit—and even before it formally repealеd the freeze-frame policy—the FDC referred her to an endocrinologist who prescribed her hormone therapy, and she has been receiving hormone-therapy treatment ever since. Accordingly, the FDC contends that there is no longer any live controversy concerning Keohane’s entitlement to hormone therapy.
As before, the mootness inquiry hinges on the application of the voluntary-
cessation exception. And as already explained, under that exception
“governmental entities and officials have . . . considerably more leeway than
private parties in the presumption that they are unlikely to resume illegal
activities.”
Flanigan’s
,
We find no “reasonable basis” to believe that, following a dismissal, the FDC would revert to refusing hormone therapy to Keohane. As with its repeal of the freeze-frame policy, we recognize that the timing of the FDC’s decision to provide Keohane with hormone treatment—here, a mere two weeks after she filed suit—may well suggest a desire to eliminate potential liability. It seems scarcely debatable that the FDC hoped that by acceding to Keohane’s request it could avoid litigation. But again, we have clarified that timing considerations shouldn’t be overemphasized in the voluntary-cessation analysis and, in any event, that alleged jurisdiction-manipulation is only one among several non-exhaustive factors that inform the inquiry. See id. at 1257–59. The remaining factors demonstrate that Keohane’s hormone-therapy challenge, like her freeze-frame challenge, is indeed moot. Most notably, we are satisfied both (1) that the FDC’s “decision to terminate the challenged conduct”—here, its reversal of its initial denial of hormone therapy—was “unambiguous” in the sense that it was “both permanent and complete,” and (2) that the FDC “has consistently maintained its commitment” to Keohane’s new course of treatment. Id . at 1257 (quotation omitted). The FDC has given us concrete assurances—in both word and deed—that it will continue to provide Keohane’s hormone therapy. Not only has the FDC rescinded the freeze- frame policy pursuant to which it refused Keohane’s early requests for hormone treatment, but its own doctors have concluded—and testified under oath—that Keohane’s hormone therapy is medically necessary. And consistent with that view, since initially granting Keohane’s request in September 2016, the FDC has faithfully provided her with hormone-therapy treatment and has repeatedly represented to us that it will continue to do so. [7]
The decision on which the district court principally relied in rejecting the FDC’s mootness argument, Doe v. Wooten , actually provides a useful contrast here. There, an inmate filed suit alleging that two prison officials had acted with deliberate indifference to his serious need for protection after he assisted the Bureau of Prisons in an investigation of one of its own employees. 747 F.3d at 1321. Specifically, the officials promised the inmate that they would protect him and transfer him to a lower-security prison in exchange for his cooperation. Id. at 1320. Although he was briefly moved to a lower-security facility as promised, he was then, over the course of several years, repeatedly transferred to other high- security prisons where he was exposed as an informant and severely assaulted. Id. at 1320–21. After years of litigation and more questionable transfers, the BOP suddenly changed course and moved the inmate to a lower-security facility just days before the trial was set to begin—and then contended that the inmate’s challenge was moot. Id. at 1321. We held that the BOP had failed to establish the unlikelihood of a recurrence for four basic reasons: (1) the BOP’s ultimate transfer of the inmate to a lower-security prison so soon before trial strongly suggested that its motivation was solely to manipulate jurisdiction; (2) the BOP had a “pattern” of breaking its transfer-related promises; (3) the “mere fact” that the BOP was (at that moment, anyway) giving the inmate what he wanted wasn’t enough to overcome its history of recurring misbehavior, and (4) the BOP “never said” that it wouldn’t transfer the inmate back to a high-security prison. Id. at 1323–25.
As already noted, the Doe Court’s first reason—that the timing indicated a desire to dispose of a lawsuit—may well apply here, too. But the other reasons are inapplicable—or more accurately, belied—in this case. There is no “pattern” of broken promises here; since acceding to Keohane’s hormone-therapy request in September 2016, the FDC has consistently provided her the treatment. And more than the “mere fact” that Keohane is currently being given hormone therapy, we have reasonable assurance that the FDC won’t revert back to its previous posture; whereas in Doe the BOP had “never said” that it wouldn’t backslide, the FDC has repeatedly represented that it will continue to provide Keohane with hormone therapy so long as her team “believes the hormones are medically necessary to treat her gender dysphoria.” Br. of Appellant at 7–8.
In short, we conclude that there is no “reasonable basis” to believe that, if Keohane’s hormone-therapy claim is dismissed, the FDC will reverse course and refuse to provide the treatment. Accordingly, we hold that Keohane’s hormone- therapy-related claim is moot.
C
Lastly, social transitioning. Keohane asserts that the FDC is continuing to
violate the Eighth Amendment by denying her requested social-transitioning-
related accommodations—specifically, to grow out her hair, use makeup, and wear
female undergarments. Unlike Keohane’s arguments concerning the freeze-frame
policy and hormone therapy, her social-transitioning claim unquestionably presents
a live controversy, inasmuch as the FDC (for the most part, anyway) continues, to
this day, to refuse her requests. Accordingly, we proceed to consider Keohane’s
social-transitioning-based challenge on the merits. In so doing, we review de novo
the district court’s ultimate determination “that there was an Eighth Amendment
violation warranting equitable relief,” and we review for clear error any
“[s]ubsidiary issues of fact.”
Thomas v. Bryant
,
Recall that a deliberate-indifference claim entails both an objective and a subjective component. As we have explained, the objective component is clearly satisfied here—all agree that Keohane’s gender dysphoria constitutes a “serious medical need” within the meaning of Eighth Amendment precedent. Brown , 387 F.3d at 1351. The dispute here centers on the subjective component, which requires the plaintiff to show that prison officials (1) had actual “knowledge of a risk of serious harm” and (2) “disregard[ed]” that risk (3) by conduct that was “more than mere negligence.” Id .
(1996) (probable cause and reasonable suspicion). District courts are undoubtedly better situated
than appellate courts to make findings of historical fact, and their determinations with respect to
those facts are accordingly entitled to deference. But what the Eighth Amendment means—and
requires in a given case—is an issue squarely within the core competency of appellate courts.
And to be clear, it’s no answer to say, as the dissent does—citing Justice Scalia’s solo
dissent
in
Ornelas
—that some issues underlying a deliberate-indifference claim may be “fact-specific and
not easy to generalize.” Dissenting Op. at 70 n.13. The Supreme Court recognized as much
regarding the “mixed questions” in
Ornelas
,
Bajakajian
, and
Cooper
—and yet applied de novo
review anyway. Just so here.
See generally Kosilek v. Spencer
,
Now, having said all that, we hasten to add that nothing here rides on the applicable
standard of review. Even if the deferential clear-error standard
did
apply (as the dissent
suggests) in such a way as to render essentially meaningless the de novo review that applies to
the district court’s ultimate determination whether an Eighth Amendment violation has occurred,
we would have little trouble formulating the required “firm conviction that a mistake ha[d] been
committed.”
Silva v. Pro Transp., Inc.
,
Although the parties vigorously debate whether the actual-knowledge prong is satisfied here, we needn’t resolve that issue, because even assuming that FDC officials knew that Keohane was at risk of serious harm—thus satisfying the subjective prong’s first factor—there is no basis for concluding that by denying her social-transitioning requests they disregarded that risk “by conduct that [was] more than mere negligence” and thereby violated the Eighth Amendment. That is so for two reasons.
First
, as already explained, unlike with respect to hormone therapy, the
testifying medical professionals were—and remain—divided over whether social
transitioning is medically necessary to Keohane’s gender-dysphoria treatment.
Keohane’s retained expert testified that it is. By contrast, the members of
Keohane’s medical-treatment team, Wexford’s staff psychiatrist, the FDC’s chief
clinical officer, and the FDC’s retained expert all testified that it isn’t. The closest
any of those witnesses got—not nearly close enough, it seems to us—was the
FDC’s expert’s acknowledgment that social-transitioning, while not strictly
medically necessary, would be “psychologically pleasing” to Keohane.
Cf. Harris
,
At worst, then, this is a situation where medical professionals disagree as to
the proper course of treatment for Keohane’s gender dysphoria, and it’s well
established that “a simple difference in medical opinion between the prison’s
medical staff and the inmate as to the latter’s diagnosis or course of treatment
[cannot] support a claim of cruel and unusual punishment.”
Id.
at 1505;
Waldrop
v. Evans
,
internal order and discipline and to maintain institutional security.”
Bell v.
Wolfish
,
The First Circuit’s en banc decision in
Kosilek v. Spencer
is especially
instructive here. There, as here, a transgender inmate who was suffering from
gender dysphoria—and who had attempted both to castrate herself and to commit
suicide—alleged that the treatment she was receiving in prison violated the Eighth
Amendment.
The First Circuit framed the question before it in terms that apply equally here: “[W]e are faced with the question whether the [prison’s] choice of a particular medical treatment is constitutionally inadequate, such that the district court acts within its power to issue an injunction requiring provision of an alternative treatment—a treatment which would give rise to new concerns related to safety and prison security.” Id . at 68. Notwithstanding the “extensive[ness]” of the district court’s determinations, the First Circuit reversed. In so doing, the en banc court emphasized that “[t]he law is clear that where two alternative courses of medical treatment exist, and both alleviate negative effects within the boundaries of modern medicine, it is not the place of [a reviewing] court to second guess medical judgments or to require that [prison officials] adopt the more compassionate of two adequate options.” Id . at 90 (quotation omitted). The First Circuit also stressed the “wide-ranging deference” to which prison administrators are entitled when making safety and security assessments. Id . at 83, 92 (quotation omitted). Concluding, the court held (1) that prison authorities “ha[d] chosen to provide a form of care that offer[ed] direct treatment” for the inmate’s gender dysphoria and (2) that they had “done so in light of the fact that provision of” the inmate’s preferred treatment “would create new and additional security concerns— concerns that do not presently arise from its current treatment regimen.” Id . at 96.
Kosilek is closely (if not quite exactly) on point here. The FDC has given Keohane some, but not all, of what she wants—although it has denied her social- transitioning requests (at least as they pertain to clothing and grooming), it has provided mental-health counseling, hormone therapy, the use of female pronouns, safer housing accommodations, and private shower facilities. And like the prison officials in Kosilek , the FDC has struck that balance both because Keohane’s treatment team has determined that her current regimen is sufficient to treat her gender dysphoria and because it has rationally concluded that her social- transitioning requests—to dress and groom herself as a woman—would present significant security concerns in an all-male prison. [14]
Bottom line: In light of the disagreement among the testifying professionals
about the medical necessity of social transitioning to Keohane’s treatment and the
“wide-ranging deference” that we pay to prison administrators’ determinations
about institutional safety and security,
Bell
,
* * *
One final word: This is a case that stirs emotions. And understandably so— the question whether and to what extent Florida prison officials must accommodate Keohane’s gender dysphoria is a sensitive one, on both sides of the “ v .” Our dissenting colleague’s opinion is passionate and heartfelt, as is evident from its rhetoric. He accuses us, among other things, of “usurp[ing]” (and alternatively “commandeer[ing]” and “annexing”) the district court’s role (Dissenting Op. at 41, 53, 86), “rearrang[ing] the record” to suit our own desires ( id . at 41), strategically “ignoring” bad facts while focusing on those we “like[] better” ( id . at 53), “pluck[ing]” favorable tidbits from cases ( id . at 54), and—the coup de grâce— “shak[ing] the magic 8-ball until it gives us” a result we want ( id . at 92). Needless to say—and with all due respect—we don’t think that we’ve done any of those things.
Make no mistake, we too have sympathy for Ms. Keohane, and we too regret her predicament. But our first obligation—our oath—is to get the law right. See 28 U.S.C. § 453. And our best understanding of the law is that—for better or worse—it simply does not entitle Ms. Keohane to additional relief. Our dissenting colleague, of course, sees things differently. But let us pause briefly to consider the implications of his position:
• First, on his view, the Constitution should be read to require prison officials to provide every convicted inmate—at taxpayer expense—with any treatment that is “psychologically pleasing.” See Dissenting Op. at 82–85. That cannot possibly be the law.
• Second, on his view, the Constitution should be read to require prison officials to provide every convicted inmate—again, at taxpayer expense— with doctors who have particularized experience (perhaps even a specialty) in dealing with his or her precise condition, no matter how rare. Dissenting Op. at 79–81. Again—inconceivable.
• Finally, on his view, the Constitution should be read to prohibit prison authorities from making a prophylactic judgment that housing a transitioning woman —wearing long hair, female undergarments, and makeup—in a men’s prison simply poses too grave a threat to institutional security. Dissenting Op. at 74–79. We just don’t think so.
This is a difficult case—no doubt. While we respect our dissenting colleague’s fervor, we find ourselves constrained to disagree with his conclusions, which, we think, would precipitate sweeping changes in the law of prison administration.
III
For the foregoing reasons, we hold that Keohane’s challenges to the FDC’s former freeze-frame policy and its initial failure to provide her with hormone therapy are moot, and we reject on the merits her claim that the FDC violated the Eighth Amendment by refusing to accommodate her social-transitioning-related requests.
We VACATE the district court’s order, DISMISS AS MOOT in part, and REVERSE in part.
WILSON, Circuit Judge, dissenting:
The majority has usurped the role of the district court. In a painstaking, 61-
page order, the district judge made detailed factual findings, concluding from them
that Keohane’s claims were not moot and that the FDC was liable for deliberate
indifference. We must review those findings with great deference, disregarding
them only if clearly erroneous. But the majority does not apply ordinary clear-
error review, as we might in a sentencing case or an employment dispute. Instead,
the majority steps into the district court’s shoes to reweigh the facts, reassess
credibility determinations, and rearrange the record to reach a different result.
Mach. Rental Inc. v. Herpel (In re Multiponics, Inc.)
,
That is not our role. The clearly erroneous standard is weighty for a reason:
It reflects the “unchallenged superiority of the district court’s factfinding ability”
and its capacity “to judge . . . the credibility of the witnesses.”
Salve Regina Coll.
v. Russell
,
One brief note before we begin: The majority cites language from my dissent to suggest that I have let the emotions surrounding this issue sway my opinion. The majority quotes me correctly; I have strong words about its analysis. But make no mistake—any fervor in the text below stems not from the facts of this case, but from the majority’s misapplication of our precedent.
I.
First, mootness. Federal courts decide only “live” controversies.
Troiano v. Supervisor of Elections in Palm Beach Cty., Fla.
,
That analysis is a little different for the government, though. Government
actors are more likely to “honor a professed commitment to changed ways” and get
“more leeway than private parties in the presumption that they are unlikely to
resume illegal activities.”
See Doe
,
Our case law, however, has shifted slightly from this framing.
See Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, Ga.
,
“First, we ask whether the change in conduct resulted from substantial
deliberation or is merely an attempt to manipulate our jurisdiction.”
Id.
The
“timing” of the cessation is highly relevant to this inquiry.
See id.
So are the
government’s reasons for its delayed action and change of heart.
See id.
at 1260;
Doe
,
“Second, we ask whether the government’s decision to terminate the
challenged conduct was unambiguous.”
Flanigan’s
,
“Third, we ask whether the government has consistently maintained its
commitment to the new policy or legislative scheme.”
Flanigan’s
, 868 F.3d at
1257. We are also “more likely to find a reasonable expectation of recurrence
when the challenged behavior constituted a continuing practice or was otherwise
deliberate.”
Doe
,
Although these factors lend helpful guidance, they are not the be-all and
end-all. When considering government cessation, including “a full legislative
repeal of a challenged law—or an amendment to remove portions thereof—these
factors should not be viewed as exclusive nor should any single factor be viewed
as dispositive.”
Flanigan’s
,
Finally, although we consider the voluntary-cessation analysis de novo, we
review the factual findings that play into this analysis for clear error.
Troiano
, 382
F.3d at 1282. The FDC, as the appellant, must prove that these findings are clearly
erroneous.
See Thelma C. Raley, Inc. v. Kleppe
,
A.
The district court held that the FDC failed to show under the factors that “the allegedly wrongful behavior could not reasonably be expected to recur.” Doe , 747 F.3d at 1322. Its analysis rested on a collection of careful factual findings. Since these findings have substantial support in the record, I accept them. And given their persuasive weight, I conclude that there is a reasonable basis to believe that the FDC will return to its old ways.
First up is substantial deliberation or jurisdictional manipulation. The district court held that the FDC retreated from the challenged conduct—both its freeze-frame policy and its refusal to treat Keohane with hormone therapy—only to manipulate jurisdiction. Many findings compel this result.
One is timing. As the majority concedes, the timing of the FDC’s
termination muddies the waters around its cessation, and the timing on this point is
key.
See Flanigan’s
,
The district court reasonably found these fourth-quarter concessions
suspect—they suggest that the FDC only changed its ways to silence litigation.
See Doe
,
Dubious timing was not all the district court relied on. Alongside a
suspicious sequence of events, the court also doubted the FDC’s deliberation
because the FDC took inconsistent positions throughout the case and could not
explain its prolonged delay or sudden change of heart.
See Doe
,
To start, the district court found that the FDC had flip-flopped about its
policy and practices throughout the litigation—a finding that no one disputes.
Then, after the FDC reluctantly changed its ways, the court found that the FDC
could not explain why it had done so. The FDC provided no minutes, no
memoranda, and no testimony to show that it had thoughtfully considered its
policy shifts.
See Harrell
,
For these reasons, the district court
found
that the FDC’s justification for its
policy shifts was incredible and pretextual. The court also
found
that the FDC had
taken inconsistent positions and had been hasty in its decision-making. These
findings led the district court to conclude that the FDC shifted its policy and
practice for one purpose: to manipulate jurisdiction. The majority does not claim
that any of these findings leave it with a “definite and firm conviction” that the
district court made a “mistake.”
Pelphrey
,
Second is whether the FDC unambiguously terminated its freeze-frame
policy and practice of denying Keohane hormone therapy. As before, the “timing
and content” of the FDC’s reversal is crucial.
See Harrell
,
The record supports these findings. The majority does not claim them clearly erroneous. So I am hard pressed to see how anyone could conclude, given these findings of fact, that the FDC’s termination was unambiguous. Properly confined to the district court’s findings, I conclude, as that court did, that the FDC’s termination was hazy at best. [4]
Third, then, is inconsistency. The district court found that, even after the FDC repealed the freeze-frame policy, the FDC withheld hormone therapy from at least one other inmate under the freeze-frame policy. [5] The court also found that, even after the FDC began giving Keohane hormone therapy, the FDC delayed in providing her hormone therapy. This delay caused her to attempt suicide twice in three days. The record also shows that the delays would have been more frequent had she not vigilantly pursued her treatment.
Like canaries in a coal mine, these deviations warn that the FDC is not as
dedicated to its new positions as the majority would have us believe. And these
instances were not mere anomalies. They were new applications of the FDC’s
prior practices—practices that were not mere blips, but were “continuing” and
“otherwise deliberate.”
See Doe
,
B.
If we were conducting a typical mootness review, the district court’s unchallenged findings would lead us to the same conclusion that the district court added)). True, the district court said that it would be “hard pressed to find that evidence of one mistake . . . is sufficient” standing alone to find against the government. Id. at 1299. But it noted that this evidence doesn’t stand alone; “this drop of evidence only adds to the tidal wave of other circumstances crashing down on [the FDC’s] mootness argument.” Id. So contrary to the cropped picture the majority presents, the full frame shows that the district court did rely on this information, as should we.
reached. But rather than lend due weight to the district court’s findings, the majority commandeers the district court’s role, ignoring that court’s cоnclusions while focusing us on the facts it likes better. To do so, it places a heavy emphasis on the repeal of the policy, and it takes solace in the FDC’s oral-argument assurance that it will stay on the straight and narrow. The majority then strictly stacks this case up against the facts of Doe and Flanigan’s , concluding that there is no reasonable expectation of recurrence. That analysis is wrong for four reasons.
First, the repeal of the freeze-frame policy does not deliver a de facto win for
the government. A repeal, to be sure, is “often” determinative of unambiguous
termination,
see Doe
,
Second, though the majority contends that this case is a clone of
Flanigan’s
,
it clouds key parts of the picture. The City Council in
Flanigan’s
“twice voted on
the relevant remedial measures,” “put forth persuasive explanations that [were] not
dependent upon [the] litigation,” and unanimously repealed the policy in “open
session during regularly scheduled meetings.”
We have none of that. We have no idea how many times the FDC
considered these policy shifts—it didn’t tell us. We have no persuasive
explanation for its about-face—it gave us none, and it met behind closed doors.
See Harrell
,
Third, although the majority says that our facts differ from the facts it plucks from Doe , this case is closer to Doe than the majority admits. For instance, the majority claims that, in Doe , the government had a “pattern” of breaking its promises to the plaintiff, but here there is no history of broken promises. Though we may not have explicit broken promises, we have a substantial comparator: The FDC has consistently defended its old policies and inconsistently applied its new ones. Its inconsistencies and contradictions raisе the same flags as broken promises—they cast doubt on the FDC’s shaky commitment to its newfound path.
Finally, the majority draws a line through this case,
Doe
, and
Flanigan’s
,
because here (like
Flanigan’s
and unlike
Doe
) the government has assured us that
it will not revert to its old ways. But those assurances do not deserve the weight
the majority gives them. For one thing, the district court
found
that the FDC never
made this assurance about the freeze-frame policy,
see Keohane
, 328 F. Supp. 3d
at 1300, and taking the FDC’s lawyer’s word at the final hour over the district
court’s finding again ignores clear-error review. Equally important, the City
Council in
Flanigan’s
backed up its oral-argument statements with actual
statements: It passed a resolution “expressly disavowing any intent to reenact the
Ordinance or any similar regulation.”
* * *
The majority quips that wisdom “often never comes, and so one ought not to reject it merely because it comes late.” But the district court didn’t find that wisdom had come late; it found that wisdom had never come at all. It concluded that the FDC’s reversals were born of desperation, not deliberation. And its holding stood on a host of findings: that the timing of the FDC’s concessions was suspect; that the FDC had no explanation for its delay; that the FDC’s positions throughout the litigation were inconsistent; that the FDC’s decision-making was a black box; that the FDC’s prior practices were not accidental, but deliberate and historical; that the FDC refused to promise that it would not re-enact the freeze- frame policy; that the FDC still was adamant that its practices were valid, even after it claimed to change its ways; that the FDC delayed in providing Keohane’s hormone therapy, even after it agreed that she needs it; and that, on at least one occasion, the FDC applied the repealed freeze-frame policy to bar hormone therapy for a patient with gender dysphoria.
As the majority does not hold that any of these findings are clearly
erroneous, they bind us.
See Pelphrey
,
II.
Next, the merits of the social-transitioning claim. The Eighth Amendment
bars a prison official from being deliberately indifferent to a serious medical need.
See Brown v. Johnson
,
An objectively serious medical need is “one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.”
Farrow v. West
, 320
F.3d 1235, 1243 (11th Cir. 2003). We review the legal conclusion that a medical
need is objectively serious de novo.
Thomas v. Bryant
,
To establish subjective deliberate indifference, a plaintiff must show “(1)
subjective knowledge of a risk of serious harm; (2) disregard of that risk; and
(3) by conduct that is more than mere negligence.”
Brown
,
The district court found that the FDC was deliberately indifferent to Keohane’s gender dysphoria when it refused to let her wear female undergarments or use female grooming products. This finding has substantial support in the record. So I’d let it stand. And since both the subjective and objective elements of an Eighth Amendment violation are met, I would affirm.
The majority reaches a different result, however, and it uses the wrong standard of review to get there. Reviewing the subjective-deliberate-indifference finding de novo during its review of the “ultimate” Eighth Amendment violation, it concludes that the district court was wrong to find that the last two subparts of the deliberate-indifference element were met. [10] I explain below why this analysis is incorrect and why we must affirm the district court’s conclusion that the FDC was deliberately indifferent to Keohane’s gender dysphoria.
A.
The majority’s first mistake comes in articulating our standards of review. While listing the standards, the majority agrees that we apply clear-error review to questions of fact supporting the district court’s conclusion that a defendant violated the Eighth Amendment. See Majority Op. at 28. It also accepts that subjective deliberate indifference is a question of fact that we review for clear error. See id. at 28 n.8. And yet, despite these directives, the majority refuses to apply clear-error review to the district court’s finding of subjective deliberate indifference. Instead, it insists that it retains de novo review over this factual finding, citing the unremarkable rule that the “ultimate determination” whether “there was an Eighth Amendment violation warranting equitable relief” is a legal conclusion that we review de novo. Id. at 27–28. In other words, the majority has somehow read Thomas to hold that, even though the underlying finding of deliberate indifference is a question of fact reviewed for clear error, we (really) review that finding again de novo when we consider the “ultimate” Eighth Amendment violation.
That is simply wrong. We have long reviewed a finding of subjective
deliberate indifference for clear error.
See, e.g.
,
Thomas
,
Take
Thomas
—the case from which the majority derives its de-facto-de-
novo rule. There we explained that we review de novo the district court’s ultimate
determination that there was an Eighth Amendment violation.
See Thomas
, 614
F.3d at 1303. We also explained that we review for clear error questions of fact
supporting this conclusion.
Id.
Against this backdrop, we analyzed the two
elements of a deliberate-indifference claim. We first reviewed the objectively-
serious-need prong de novo, concluding as a matter of law that the prisoner’s
medical needs were sufficiently serious under the Eighth Amendment.
See id.
at
1307–13. Then we analyzed the subjective-deliberate-indifference finding. Citing
Supreme Court and Eleventh Circuit precedent, we held—unequivocally—that the
subjective-deliberate-indifference element raises a “question of fact which we
review for clear error.”
Id.
at 1312 (citing
Farmer v. Brennan
,
That is precisely how this analysis should go. We review the objectively- serious-need element de novo, as it is a question of law. Id. at 1307. We review the subjective-deliberate-indifference finding for clear error, as it is a question of fact. Id. at 1312. And then we review the district court’s “ultimate” application of these elements de novo. Id. at 1303. So if the district court, despite checkmarks in both the objective and subjective boxes, still concluded that there was no Eighth Amendment violation, we would lend no deference to this error. We would review it de novo, and would no doubt reverse. And if the district court, despite holding that one of the elements was not met, still concluded that there was an Eighth Amendment violation, we would do the same. We would review this error de novo, and no doubt reverse. That is the ultimate conclusion that we review de novo. See id. [11]
But that is not how the majority analyzed this case. If you look closely through its opinion, you won’t see a single attempt to analyze whether the district court’s subjective-deliberate-indifference finding was clearly erroneous. To be sure, the majority pays lip service to this standard at the end of footnote eight. But that perfunctory paragraph is no more than a fail-safe to cover itself should its de novo rule prove too much. Even a skim through its opinion shows that the majority has not applied clear-error review to the district court’s finding of subjective deliberate indifference; it has swapped the deference we typically apply with overarching de novo review. This switch allows it to reweigh the deliberate- indifference evidence as it sees fit, disregarding the ample evidence the district court relied on to make its factual findings. Contra id. at 1312.
B.
To justify its new standard, the majority pens a footnote treatise that reads the clear-error rule out of Thomas . Majority Op. at 28–29 n.8. It first opines that Thomas ’s clear-error rule applies only to “historical facts” supporting the district court’s finding of subjective deliberate indifference—i.e., the who, what, when, and where facts—not the determinative facts. It then concludes that Thomas compels it to review the subjective-deliberate-indifference finding de novo during its review of the ultimate Eighth Amendment violation. And it supports these claims with out-of-context Supreme Court precedent, asserting that its ultimate factual review “follows straightaway” from the Court’s application of de novo review in cases predating Thomas . For three reasons, these arguments fall short.
First—as the majority well knows—it does not matter what we think the
prior panel should have held under then-existing Supreme Court precedent: All that
matters is what the prior panel held.
See In re Lambrix
,
Second,
Thomas
foreclosed the majority’s academic notion that clear-error
review extends only to historical facts. As said before,
Thomas
’s holding had no
reservations: “A prison official’s deliberate indifference is a question of fact which
we review for clear error.”
Thomas
isn’t the outlier in our precedent—it’s the norm. We have held time
and again that subjective deliberate indifference is a factual finding.
See, e.g.
,
Greason v. Kemp
,
In fact, the type of review the majority presses here echoes the sole instance
where we
do
dissect facts with artificial labels—our de novo review of
“constitutional facts” in First Amendment cases. In those cases, the constitutional
facts are determinative; they answer “why” a government actor suppressed certain
speech and whether its motives were unconstitutional.
See Am. Civil Liberties
Union of Fla., Inc. v. Miami-Dade Cty. Sch. Bd.
,
Third, the majority’s super-de-novo-review rule proves unjustifiable when
we consider how we review subjective deliberate indifference after a jury trial
(rather than after a bench trial). For when a jury finds that a defendant was
deliberately indifferent, we don’t retrace this finding de novo; we review the jury’s
finding for sufficient evidence.
See Carswell v. Bay Cty.
,
Turning to the second paragraph in its footnote, the majority claims that
there is no way that the purportedly “mindless, mechanical box-checking” that I
described above marks the extent of our de novo review over the ultimate Eighth
Amendment violation.
See supra
at 61–62. This is a mountain made out of a
molehill—of course our de novo review has less teeth here than in most
constitutional cases. For one, the defendants here have conceded that the
objectively-serious-need element—one we review de novo—is met, leaving us
little to review on that side of the coin. For another, our precedent has set up a
clear, two-part test for establishing an Eighth Amendment violation, and one of
those parts is a fact question, leaving little to ultimately review de novo.
See Thomas
,
As its parting word, the majority notes that the First Circuit, sitting en banc,
rejected clear-error review for subjective deliberate indifference, ultimately
applying the de novo review the majority applies here.
See Kosilek v. Spencer
, 774
F.3d 63, 84 (1st Cir. 2014) (en banc). But that’s because the First Circuit
concluded that deliberate indifference is a “[s]ubsidiary legal question,” not a fact
question.
Id.
That is, word for word, the opposite of what we held in
Thomas
.
* * *
In the end, “our first obligation—our oath” is to follow the law. Majority Op. at 39 (citing 28 U.S.C. § 453). In the Eleventh Circuit, that means following prior precedent. Thomas holds that subjective deliberate indifference is a question of fact that we review for clear error. We cannot refuse to apply this holding simply because we disagree. Nor can we reanalyze the issue for ourselves to overrule the prior panel. If the majority has concerns about our precedent, it should voice those concerns separately for our en banc court. And it may have the chance to do just that, as its disregard for our precedent has no doubt transformed this routine deliberate-indifference case into one justifying en banc review.
C.
Having minted a new standard of review, the majority applies it to reverse the district court at the last deliberate-indifference stеp: Whether the FDC “disregarded” a substantial risk of harm by “more than mere negligence.” The district court found that the FDC had for two reasons. First, the FDC denied social transitioning because it blindly deferred to the FDC’s clothing policy, effectively enacting a blanket ban on social transitioning without case-specific medical or security judgment. Second, the FDC denied Keohane access to medical personnel competent enough to realize that she needs to transition to avoid severe self-harm. Reviewing de novo, the majority replaces these findings with its own. It concludes that the FDC denied treatment because medical professionals disagreed with Keohane about her need to transition and because the FDC concluded that the security risks of the treatment were too great.
To reach that conclusion, though, our precedent compels the majority to hold that the district court’s findings were clearly erroneous. See Pelphrey , 547 F.3d at 1268. The majority doesn’t do so (and its cursory footnote is no substitute for true clear-error review). Majority Op. at 29 n.8. In reality, the majority takes the issue up anew, concluding that it “simply cannot say that the FDC consciously disregarded a risk of serious harm by conduct that was more than mere negligence.” Majority Op. at 37 (internal quotation mark omitted).
As I explain below, that is the wrong approach. Because both of the district
court’s findings hold substantial footing in the record, we must affirm.
See Pelphrey
,
1.
I’ll start with the blanket-ban finding. The denial of medical care based on
blind deference to a blanket rule, rather than on an individualized medical
determination, violates the Eighth Amendment.
See Kosilek
,
For starters, one member of Keohane’s treatment team admitted that she “never assessed whether Ms. Keohane has a mental-health need for longer hair or access to female undergarments because . . . [the FDC’s] policies prohibit these things.” She also admitted that she doesn’t think the FDC would even permit a medical pass for social transitioning, and so she focused Keohane’s therapy “on coping without access to this particular treatment.” The FDC’s regional medical director further testified that she did not consider any medical exceptions to the FDC’s clothing policy. And another member of Keohane’s treatment team even conceded that the team discussed whether Keohane needed access to female clothing, but ultimately concluded that “it is out of our hаnds, that we understand, but there’s nothing we can do.”
Perhaps more concerning, these blanket denials didn’t start from the bottom; they came from the top. The district court found that the FDC’s final decisionmaker—its chief medical officer—would have refused an exception even if treatment team members had recommended it, solidifying the FDC’s blanket ban on social transitioning. Indeed, the officer testified that it would be a “hard sell” for him to grant a medical exception for social transitioning, regardless of the inmate’s particular needs. The district court also found that the officer made this decision without considering Keohane’s specific circumstances, as he “has never decided this issue, nor has he been presented with any medical request for any exceptions to security policies to allow for social transitioning.” [14]
Given the testimony from treatment team members and the chief medical
officer’s steadfast and unreasoned refusal to consider social-transitioning
treatment, the record supports the district court’s finding that the FDC
categorically denied Keohane treatment under a blanket policy, without
considering her individual circumstances. As all agree, “responding to an inmate’s
acknowledged medical need with what amounts to a shoulder-shrugging refusal
even to consider whether a particular course of treatment is appropriate is the very
definition of ‘deliberate indifference’—anti-medicine, if you will.” Majority Op.
at 14. Since this finding is not clearly erroneous, we must affirm it, even if we
would have found differently.
See Multiponics
,
And yet the majority does find differently: It crowns security king. Citing
out-of-circuit precedent, the majority holds that the FDC can shrug off Keohane’s
medical need if it decides that the security risks of the treatment outweigh its
necessity.
See Kosilek
,
That situation fails even under
Kosilek
, the case from which the majority
draws its security exception.
Kosilek
held that so “long as prison administrators
make judgments balancing security and health concerns that are ‘within the realm
of reason and made in good faith,’ their decisions do not amount to a violation of
the Eighth Amendment.”
Id.
A fair enough rule—prison administrators can of
course balance a prisoner’s need for treatment with security concerns and fairly
conclude that the risks outweigh the need. But the prison must “balance” the
competing interests—something that the district court found the FDC did not do.
In the district court’s view, the FDC did not balance Keohane’s medical needs with
prison security and decide that security carried the day. Prison officials denied
treatment solely because they thought prison policy forbade social transitioning—
the strength of Keohane’s medical need had nothing to do with it. A prison cannot
balance security over medical necessity if it never factored medical necessity into
the analysis. So the district court’s finding that the FDC failed to consider
Keohane’s medical need when denying her treatment precludes the FDC from
claiming that security won the day, leaving it liable for its deliberate indifference.
id.
at 91;
Roe
,
Worse, the FDC didn’t just fail to consider Keohane’s medical need; it failed to consider security too. Prison officials did not evaluate the security risks of social transitioning and deem them too great—they assumed that FDC policy would always forbid the treatment, and that was the end of it. Based on this belief, treatment team members “couldn’t even fathom requesting an exception to [the policy] even if the inability to socially transition drives a patient to suicide.” Nor did they elevate the issue to the chief medical officer—the one who has the final say on granting medical exceptions to security policy. So far as her treatment team was concerned, “Keohane simply can’t transition because [the FDC] does not permit inmates housed in its male facilities access to the clothing and grooming standards it applies to female inmates.” A weighing of security risks had no role in the matter.
Adding insult to injury, treatment team members were wrong that security policy always forbids social transitioning. Contrary to their view, the FDC’s security representative testified that medical staff—not security staff—has the ultimate say in granting a medical exception to prison security policy. The representative even listed examples of how the FDC could accommodate social transitioning, despite potential security risks. The FDC’s chief medical officer affirmed this procedure, testifying that medical (not security) makes the final call when it comes to medical exceptions. And the FDC confirmed this procedure yet again here, stipulating that it would accommodate social transitioning “if having longer hair or female undergarments or makeup were deemed to be medically necessary for an inmate with gender dysphoria.” [16]
In sum, then, medical staff, not security policy, has the final say on whether security risks outweigh medical need. Yet, in a catch-22, medical staff denied social transitioning here because they thought that security policy barred social transitioning. And while the staff pointed fingers, no one evaluated whether the security risks of social transitiоning outweighed Keohane’s specific medical need.
Which brings us to what distinguishes this case from
Kosilek
. There, unlike
here, the record showed that prison officials
extensively
considered the inmate’s
medical need and whether the requested treatment would create security concerns,
ultimately concluding that the need was too little and the concerns were too great.
Kosilek
,
In the end, the district court said it well: “What’s clear from the treatment
team’s testimony is that everybody knows Ms. Keohane has harmed herself and
attempted suicide, but still,
nobody
has requested
any
exceptions to [the FDC’s]
male grooming and clothing policies to treat her gender dysphoria.” They failed to
do so not because they balanced security risks with individual medical need, but
because they (erroneously) thought that prison policy forbade social transitioning,
regardless of the circumstances. That situation does not fall within
Kosilek
’s
security exception. It is a categorical, blanket ban on social transitioning and a
level of disregard that rises above mere negligence.
See id.
at 91;
Colwell
, 763
F.3d at 1068;
McElligott
,
2.
Next is the incompetent-personnel finding. A prison official disregards a
substantial risk of harm by more than mere negligence when the official provides
physicians who are incompetent to adequately treat a prisoner’s serious medical
need.
Ancata v. Prison Health Servs., Inc.
,
To this adds that the FDC’s staff psychiatrist—a psychiatrist the FDC brought in рost-litigation to say that Keohane doesn’t need social transitioning— admitted that he lacked knowledge about the proper standard of care for gender dysphoria, that he had only read the parts of Keohane’s record relevant to her psychiatric need (Keohane has never taken psychiatric medication while in FDC custody), and that he had never before “evaluated anyone in prison to determine a medical need for access to clothing or grooming standards to treat gender dysphoria.” This led the district court to fairly conclude that his views deserved little, if any weight.
Prison officials have a tough job, but the Constitution requires that they be
prepared to treat the inmates they take into their custody.
Ancata
, 769 F.2d at
704. The record here shows that the FDC was ill-equipped to treat Keohane’s
gender dysphoria, which ultimately led it to withhold necessary social-transitioning
treatment. The district court was therefore within its bounds to find that the FDC’s
incompetence arose to disregard by more than mere negligence. And the
majority’s paragraph-long footnote replacing this detailed finding with its own
only confirms that the majority is not reviewing for clear error, as it must under our
precedent.
See Thomas
,
3.
Despite the district court’s findings, the majority colors this case one of disagreement, not disregard. The argument is this: The FDC did not disregard a substantial risk of harm by more than mere negligence, because “members of Keohane’s medical-treatment team, Wexford’s staff psychiatrist, the FDC’s chief clinical officer, and the FDC’s retained expert” merely disagreed with Keohane and genuinely believed that hormone therapy sufficed to treat her gender dysphoria. The majority also taps Kosilek again for help, claiming that there, as here, medical officials disagreed over the right course of treatment.
This analysis is off for a few reasons. Chief among them, and as I said
before, the district court
found
that the treatment team’s position on Keohane’s
need for social transitioning played zero role in its decision to withhold treatment.
Without ruling that this finding was clearly erroneous, we cannot hold that the
district court’s ruling was incorrect.
Pelphrey
,
At any rate, the majority couldn’t hold that the court’s findings were clearly erroneous even if it applied the right standard. This is because there is no genuine dispute or difference in medical opinion in this record. Both experts agreed at trial that Keohane should have this treatment. Team members recognized that Keohane remained in pain despite hormone therapy and knew that social conditioning could help her pain. And the district court found that the few officials who said social transitioning was unnecessary were incompetent and incredible.
Starting with the experts, Keohane’s trial expert testified that social transitioning was mediсally necessary to treat Keohane’s severe gender dysphoria. The FDC’s trial expert also testified that medically necessary treatment can be treatment that is “psychologically pleasing to the patient” (sensible enough— gender dysphoria is, of course, a psychological illness). The expert then agreed that letting Keohane wear female underwear and grow out her hair would be “psychologically pleasing” to her. He also noted that Keohane could be vulnerable to “acute decompensation” and would have “a suicidal ideation and crisis” if she were denied access to social transitioning. Given that the experts agreed that this treatment would be deeply helpful for Keohane’s mental state (and that she would be at great risk of self-harm without it), the court fairly found that “[e]xperts on both sides agreed at trial that [the FDC] should allow Ms. Keohane access to female clothing and grooming standards to treat her gender dysphoria.” [17] Along with this, treatment team members knew that Keohane remained in serious pain despite receiving hormone therapy. They knew that she still suffered from suicidal ideation and severe psychological harm. They also knew the cause of this pain: Keohane’s inability to express herself as a woman. Keohane told them so in grievance after grievance. She told them again at trial. And her words weren’t her only symptoms. She also tried to kill herself twice after a string of forced haircuts—first by hanging herself with a sheet from her bunk, and then by tying a pants leg around a door handle, tying the other leg around her neck, and sitting down on the floor to cut off the blood flow.
And that’s not all treatment officials knew. They also knew that social transitioning is an effective way to treat gender dysphoria. According to one team member, “[i]t allows you to express yourself in the gender that you feel yourself to be . . . [and i]t helps with self-esteem, it helps with expression, [and] it helps with . . . emotions.” Team members also knew that an individual may need both hormone therapy and social transitioning to adequately treat the disease.
To be sure, there were a few prison officials who testified that they don’t think Keohane needs social transitioning. Putting aside the fact that this is not why transitioning is medically necessary to treat the psychological harm flowing from Keohane’s severe gender dysphoria. So, to be clear, it does not matter if care is pleasing to an inmate; all that matters is whether the care is medically necessary. For a psychological illness like gender dysphoria, then, it makes perfect sense that medically necessary treatment might be treatment that eases the inmate’s psychological pain.
they denied her treatment,
see supra
at 72–79, the district court also found them
incompetent and their views incredible. Some of these officials think that a
treatment is not medically neсessary unless it is a matter of life or death—a
frighteningly incorrect view of medical necessity.
Keohane
, 328 F. Supp. 3d at
1310;
Gayton v. McCoy
,
Which again brings us to why
Kosilek
does not apply. There, unlike here,
the record showed that medical officials were genuinely and fervently divided on
the appropriateness of gender-reassignment surgery. Several prison doctors
concluded, without reservation, that gender-reassignment surgery was not
medically necessary. One doctor even testified that surgery was the wrong
treatment for the prisoner.
Kosilek
,
We have just the opposite. Keohane’s self-destructive tendencies have only ramped up in recent years. See supra at 52, 83. Keohane’s expert says social transitioning is medically necessary. The FDC’s expert testified that social transitioning would be “psychologically pleasing” for Keohane, which, in the expert’s view, can be a medically necessary treatment for a psychological illness like gender dysphoria. And everyone on Keohane’s treatment team failed to factor Keohane’s need for the treatment into their decisions (either because of unyielding deference to prison policy or a warped view of medical necessity and Keohane’s medical situation).
Given all this, the district court was within its bounds to find that the FDC
denied treatment not because of a genuine belief that social transitioning was
unnecessary, but because of blind deference and medical incompetence. The
majority does not explain how these findings lack record support. Nor could it, as
it is ill-suited to make the credibility determinations that were key to this case.
Salve Regina
,
4.
To wrap up, the majority tries to distinguish several cases holding that the failure to provide social-transitioning treatment arises to deliberate indifference. In footnote 11, it gives three reasons for why these cases do not apply. Each reason falls flat.
First, the majority says that, in those cases, medical providers all agreed that
a certain medical treatment for gender dysphoria was medically necessary, while
here they don’t. That is both wrong and irrelevant. It is wrong because medical
providers in those cases did
not
all agree that a given type of treatment was
necessary.
See, e.g.
,
Hicklin v. Precynthe
,
Second, the majority claims that prison officials in those cases denied care
under a blanket ban, but here the FDC has rescinded the freeze-frame policy and
has conceded that it will grant exceptions if social transitioning is medically
necessary. This is a misdirection. The FDC’s freeze-frame policy has nothing to
do with its general security policy requiring all inmates to dress as their biological
sex. And the district court found that the treatment team here denied treatment
under a blanket ban.
See supra
at 72–79. Given the treatment team’s unwavering
deference to FDC policy and the chief medical officer’s staunch refusal to provide
social transitioning in any circumstance, the court was right to treat Keohane’s case
as a blanket-ban case.
See, e.g.
,
Soneeya
,
Third, the majority says that it was clear in those cases that the patient’s health was declining, but here the evidence shows that Keohane’s symptoms improved after she received hormone therapy. That distinction is hollow for two reasons.
One, it can be true that Keohane’s treatment team knew that hormone
therapy was helping and
also
knew that she still suffered from significant distress
due to her lack of social transitioning. These facts are not mutually exclusive—
although Tylenol dulls the pain of a gunshot wound, the patient still needs stitches.
See Ancata
,
Two, the district court found that the FDC knew that Keohane was suffering
greatly
because
of its refusal to provide social transitioning.
See Keohane
, 328 F.
Supp. 3d at 1314–15;
supra
at 83. The court also discredited testimony from
treatment team officials claiming that they thought hormone therapy was enough to
treat her pain.
See supra
at 83–84. So the majority is again disregarding the
district court’s finding (without engaging in meaningful clear-error review) and
placing greater weight on facts it prefers.
Contra Pelphrey
,
Despite the majority’s framing, this case is very similar to cases across the
country holding that the categorical refusal to adequately treat gender dysphoria
amounts to deliberate indifference.
See, e.g.
,
Hicklin
,
In fact, a recent Ninth Circuit opinion highlights the ways the majority has
gone wrong.
Edmo
,
On appeal, the Ninth Circuit took the district court’s credibility findings as true, recognizing that, absent clear error, “it is not our role to reevaluate them.” Id. at 787. Given the district court’s findings, the appellate court agreed that surgery was medically necessary. Id. at 790. Then—again lending deference to the district court’s findings—the appellate court affirmed that the state was deliberately indifferent to the prisoner’s serious medical need because the state knew that the prisoner had engaged in substantial self-harm due to her gender dysphoria and yet continued to provide ineffective treatment. Id. at 793. Finally, the court rejected the argument that, since the state had provided at least some treatment for gender dysphoria, it was not deliberately indifferent to the prisoner’s medical needs. In doing so, the appellate court recognized that the “provision of some medical treatment, even extensive treatment over a period of years, does not immunize officials from the Eighth Amendment’s requirements.” Id. Because the state did not provide medically necessary care—there, gender-reconstruction surgery—it was liable for deliberate indifference, even if it provided other care.
The Ninth Circuit got it right, and its analysis leads us to the right result
here. The district court found that FDC officials deferred to a blanket policy and
were incompetent to treat Keohane’s gender dysphoria. It also found that, for both
those reasons, they denied her access to social transitioning—a treatment that the
district court found as medically necessary to treat Keohane’s gender dysphoria.
That amounts to deliberate indifference.
See Kosilek
,
* * *
Our role on appeal is not to reweigh the evidence or recreate factual findings. That is for good reason: We did not attend the hearing; we did not hear the testimony; we did not see the record develop. We must therefore defer to the district court’s findings, accepting them as true unless the record leaves us with a firm and definite conviction that the court made a mistake. It does not matter if, after reviewing the record, we would have found differently. See Multiponics , 622 F.2d at 723 (“Merely because a reviewing Court on the same evidence may have reached a different result will not justify setting a finding aside.”). All that matters is that the record supports the district court’s findings of fact. See id.
The majority ignores this standard of review today, turning our court into a district court in the process. It does not explain how the district court’s findings on deliberate indifference lack support; it simply believes that its own findings are better. That is not the law. Because this record supports the district court’s findings, we should affirm them, not shake the magic 8-ball until it gives us a different result. And on those findings, the FDC is liable for deliberate indifference to Keohane’s gender dysphoria. I dissent.
Notes
[*] Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama, sitting by designation.
[1] It is undisputed that, throughout the course of her incarceration, Keohane has consistently been provided mental-health counseling for her gender dysphoria.
[2] We review the district court’s mootness determination, including its voluntary-cessation
analysis, de novo, and any related findings of fact for clear error.
Troiano v. Supervisor of Elections
,
[3] We can dispense at the outset with the FDC’s contention that the district court’s injunction
violates the Prison Litigation Reform Act. The PLRA requires injunctive relief to be “narrowly
drawn,” to “extend[] no further than necessary to correct the violation of the [f]ederal right,” and
to be “the least intrusive means necessary to correct the violation of the [f]ederal right.” 18
U.S.C. § 3626(a)(1)(A). The FDC asserts that the district court ran afoul of the PLRA by
decreeing what the FDC calls a “blanket policy” allowing transgender female inmates in male
facilities access to the privileges afforded to inmates in female prisons. In short, we just don’t
see it. By its terms, the district court’s order directs the FDC to provide a particular course of
treatment to Keohane
specifically
.
See, e.g.
,
Keohane
,
[4] Notably, in so stating, the
Flanigan’s
Court was merely reiterating the conclusions of an earlier
en banc decision, which itself was merely repeating the conclusions of earlier circuit decisions.
See, e.g
.,
Flanigan’s
,
[5] The dissent fails to heed the en banc Court’s warning against overstating timing considerations. See, e.g. , Dissenting Op. at 44, 45, 48, 50, 56.
[6]
Cf. Burns v. Windsor Ins. Co
.,
[7] See supra n.6.
[8] We pause here to respond briefly (or perhaps not so briefly) to the dissent’s extended critique
of the standards of review that we apply. The dissent accuses us—vigorously and repeatedly—
of ignoring the observation in
Thomas
that “[a] prison official’s deliberate indifference is a
question of fact which we review for clear error.”
[9] We needn’t dwell on the point, but we emphatically reject the dissent’s suggestion that the Eighth Amendment requires the government—which is to say taxpayers—to fund any medical treatment that is “psychologically pleasing” to an incarcerated inmate. See Dissenting Op. at 82– 85. Necessity, not pleasure, is the constitutional standard—and no amount of massaging can make those two things the same. And to be clear, it hardly renders the dissent’s would-be standard more “sensible” to note that “gender dysphoria is . . . a psychological illness.” Id . at 82. By the very same logic, the dissent would presumably conclude that the Eighth Amendment requires the provision of any treatment that is “ physically pleasing”—not necessary, but pleasing—to address an inmate’s physical illness. The possibilities are endless.
[10] To be clear, because the district court awarded only prospective injunctive relief—as relevant
here, in the form of an order directing the FDC to begin providing Keohane social-transitioning
accommodations—the deliberate-indifference question must “be determined in light of the prison
authorities’ current attitudes and conduct,”
i.e
., “their attitudes and conduct at the time suit is
brought
and persisting thereafter
.”
Farmer
,
[11] The several decisions concluding that prison officials acted with deliberate indifference to a transgender inmate’s serious medical need are distinguishable in three important ways. First , in each of those cases there appeared to be general (and consistent) consensus among the inmate’s medical providers that a particular treatment was medically necessary. See, e.g. , Soneeya , 851 F. Supp. 2d at 250 (inmate’s providers consistently recommended feminization). As explained in text, that’s not the case with respect to Keohane’s social-transitioning requests; indeed, the
[12] To the extent that the dissent suggests that “denying treatment for non-medical reasons”—
including for reasons of institutional security—always and everywhere “arises to subjective
deliberate indifference,” Dissenting Op. at 72, we disagree. The lone case that the dissent cites
for that proposition—
McElligott v. Foley
,
[13] The district court declined even to address the security issue—calling it a “red herring”—on the ground that the FDC had entered into a pretrial stipulation that it would accommodate Keohane’s social-transitioning requests if they were deemed medically necessary. On appeal, Keohane likewise asserts that the stipulation “begins and ends the discussion of security in this case.” The point, seemingly, is that if the FDC has promised to meet Keohane’s social- transitioning demands if necessary, prison security must not be as serious an issue as the FDC contends. What this argument ignores is that the FDC’s stipulation expressly clarified that even if it did become necessary to accommodate Keohane’s requests, “additional security measures [would be] tаken” as needed. So, far from admitting that Keohane’s social-transitioning requests present no meaningful security concerns, the FDC has simply said that if it became necessary to do so, it would address the newly presented security issues in new and different ways.
[14] Rather than
Kosilek
, the dissent embraces the Ninth Circuit’s recent decision in
Edmo v.
Corizon, Inc
.,
[15] A brief word about the dissent’s repeated refrain (echoing the district court) that Keohane’s
treatment team was “incompetent.” Dissenting Op. at 79–81, 84, 90;
see also Keohane
, 328
F. Supp. 3d at 1307, 1316. The nub of the dissent’s critique seems to be that “no member of
Keohane’s treatment team had ever treated” someone in Keohane’s precise situation—
i.e.
, “a
pre-transition patient with gender dysphoria”—and that the team members hadn’t been trained
specifically in the “World Professional Association for Transgender Health” standards.
Dissenting Op. at 79. Respectfully, the dissent sets the constitutional bar entirely too high. To
repeat what we’ve just said—because it bears repeating—the medical care provided to prisoners
needn’t be “perfect, the best obtainable, or even very good.”
Harris
,
[1] In
Bonner v. City of Prichard
, we adopted as binding precedent all decisions of the former Fifth
Circuit handed down before October 1, 1981.
[2] There was good reason to do away with the unambiguous-termination two-step. Our prior
unambiguous-termination analysis ran confusingly parallel to other standards for deciding
mootness after the government’s voluntary cessation.
Compare Doe
,
[3] The majority says that the government’s current beliefs about the constitutionality of its action have “little, if anything” to do with the voluntary-cessation analysis. Majority Op. at 19–20.
[4] In this step, the majority analyzes the repeal of the policy and the government’s promise not to revert to it old ways. Since those issues are relevant to my analysis of Doe and Flanigan’s , see infra at 52–56, I will discuss them there to avoid repetition.
[5] The majority claims that the district court did not find this “lone [inconsistent application]
probative” to the mootness analysis. Majority Op. at 21–22. But the majority is incorrect. The
district court relied on this evidence to conclude that the FDC failed to establish an unambiguous
termination.
Keohane v. Jones
,
[6] In fact, the FDC even concedes that the district court’s findings are not clearly erroneous. Oral Argument at 13:40–14:50 (conceding in response to a question about the clearly erroneous standard that we should “just give the judge those factual findings” and move on to the legal merits of the deliberate-indifference analysis).
[7] The majority also emphasizes the supposed hoops the FDC would need to jump through to bring back the policy, but a review of the oral-argument recording reveals that all it would take is a run-of-the-mill internal review. Oral Argument at 4:23. Apparently, this doesn’t take awfully long, given that the FDC changed the freeze-frame policy in just two-months’ time. So the protection that these procedural hurdles offer is slight, if any at all.
[8] As for the merits of these claims, I agree with the majority that the FDC was deliberately indifferent to Keohane’s serious medical need when it subjected her to the freeze-frame policy. I would also affirm that the failure to provide hormone therapy, despite Keohane’s undisputed need for the therapy, arises to deliberate indifference. Because the majority does not dispute these conclusions, I will not analyze them further.
[9] We review any underlying fact issues—like what the medical need is—for clear error.
See
Thomas
,
[10] The majority rightly assumes that the FDC knew that Keohane’s gender dysphoria put her at substantial risk of self-harm, which satisfies the first subpart. Majority Op. at 30.
[11] Indeed, I’m curious how the majority thinks these standards work otherwise. What is the point of initial clear-error review for a finding of subjective deliberate indifference if we review that finding again de novo when we review the ultimate Eighth Amendment violation? The majority doesn’t tell us. It simply recites these two standards, with no attempt to make sense of how they work together, and chooses the one endowing it with a greater level of review.
[12] At any rate, the Supreme Court cases the majority cites did not arise in the context of
deliberate indifference. Majority Op. at 28–29 n.8 (citing cases in the excessive-fine,
punitive-damages, and probable-cause contexts). Crafting a standard of review is a context-
specific inquiry, so we have no clue whether the Supreme Court would apply clear-error or de
novo review to a deliberate-indifference finding. Thankfully, we need not read any tea leaves—
Thomas
already concluded that clear error is the right standard of review in our circuit. But the
majority’s reliance on off-point Supreme Court precedent shows that its analysis is “less an
application of existing precedent than a prediction of what the Supreme Court will hold [should]
it choose[] to address this issue in the future.”
United States v. Greer
,
[13] Another important fact: The First Circuit decided
Kosilek
with a bare 3-2 majority, and the two
dissenting judges strenuously dissented from the majority’s de novo review of the subjective-
deliberate-indifference finding. Since we are not sitting en banc, I need not explain—as the
Kosilek
dissenters did—why a court might conclude that subjective deliberate indifference is a
finding best reviewed for clear error. But there are indeed reasons why a court might do so.
See
[14] Alongside this, the district court found that the chief medical officer’s prejudgment was also
born of “ignorance of gender dysphoria and bigotry toward transgender individuals in general,”
further leading the court to conclude that the medical officer’s refusal to provide treatment was
categorical and not based on medical need. The record supports this finding as well.
Keohane
,
[15] Although there must be some limits—I would be deeply troubled if the majority thought that a prison can withhold truly life-saving treatment for security’s sake. See Brown v. Plata , 563 U.S. 493, 511 (2011) (“A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”).
[16] This policy makes sense. When “society takes from prisoners the means to provide for their
own needs,” prisons must provide the “necessary medical care.”
Plata
,
[17] The majority thinks that I believe an inmate is always entitled to medical care that is
“psychologically pleasing.” I believe no such thing. My view—and what the law requires—is
that a prison must provide an inmate with medical care that is psychologically pleasing if that
care is medically necessary.
Plata
,
[18]
See also De’lonta v. Johnson
,
[19] The majority says that our case is more like
Kosilek
, and less like
Edmo
, because the security
concerns present in
Kosilek
were not present in
Edmo
. Majority Op. at 37 n.14. Yet that is
exactly what makes this case closer to
Edmo
than
Kosilek
: The FDC did not consider security
concerns here; it blindly deferred to prison policy without considering whether security concerns
outweighed Keohane’s specific medical need. As the Ninth Circuit recognized, the government
in
Kosilek
considered “significant security concerns that would arise if the prisoner underwent
[gender-reconstruction surgery].”
Edmo
,