July 17, 2015 Practice Points

Ninth Circuit Sets Oral Argument in Transgender Prisoner Medical Needs Case

By Nick Kacprowski

The Ninth Circuit recently set oral argument for August 13, 2015, in the case Norsworthy v. Beard, No. 15-15712. Norsworthy is an expedited appeal of a preliminary injunction order issued on April 2, 2015, from the Northern District of California that orders the California Department of Corrections and Rehabilitations to provide a transgender male to female prisoner with appropriate medical care, including sex reassignment surgery. The district court found that the plaintiff had a likelihood of succeeding on her substantive claim that her constitutional protection against cruel and unusual punishment under the Eighth Amendment would be violated if she was not provided adequate medical care for her serious medical need. The court found specifically that the plaintiff 1) had a serious medical need for sex reassignment surgery, and 2) that the defendants were deliberately indifferent to that need by denying her the surgery.

The Ninth Circuit appeal sets up a potential circuit split between the Ninth and First Circuits. An en banc panel of the First Circuit issued a ruling in 2014 that found that the denial of sex reassignment surgery to the plaintiff in that case did not violate the plaintiff’s Eighth Amendment right to adequate medical care. Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) (en banc). The district court in Norsworthy distinguished the case on the facts, holding that in the First Circuit case there was a finding that alternative treatments would be adequate, whereas in the case before it, sex reassignment surgery was the only adequate treatment. The district court also noted that the First Circuit decision “is not binding on this Court.”


Keywords: LGBT, litigation, transgender, Eighth Amendment, litigation, Norsworthy

Nick Kacprowski is with Alston Hunt Floyd & Ing in Honolulu, Hawaii.

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