Trump judge doesn't think transgender discrimination is 'compelling'

U.S. Circuit Judge Kevin Newsom, appointed to the U.S. Court of Appeals for the 11th Circuit by Donald Trump in 2017, has refused to rehear the case of a transgender prisoner who was denied the right to dress and choose hair and makeup styles in accordance with her gender.

Reiyn Keohane is a transgender woman who is incarcerated in the men’s Everglades Correctional Institution in Miami-Dade County, Florida. She sued the Florida Department of Corrections in 2016 to receive hormone treatments that she had begun before her incarceration and choose her gender presentation in clothing and appearance.

U.S. District Judge Mark Walker in 2018 ruled in the case, Keohane v. Jones, “This Court … enters a PERMANENT INJUNCTION against Defendant requiring it to permit Ms. Keohane access to Defendant’s female clothing and grooming standards and requiring Defendant to continue to provide Ms. Keohane with hormone therapy so long as it is not medically contraindicated and while Ms. Keohane remains in Defendant’s custody.”

A three-judge panel of the Court of Appeals for the 11th Circuit vacated Walker’s ruling on appeal in March of this year, concluding “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.”

The panel, including Newsom, said that because Keohane was challenging a policy on the treatment of inmates with gender dysphoria that the prison had repealed, she no longer had a case. The judges also said there wasn’t enough evidence to suggest the Florida Department of Corrections would reenact its old policy.

In a dissent from the panel’s ruling, Judge Charles Wilson, appointed to the bench by President Bill Clinton, wrote that in its review of the Florida Department of Corrections’ removal of the “freeze-frame policy,” which limited treatments for inmates to those they’d begun prior to their incarceration, the ruling in Keohane

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.

Keohane’s attorneys requested a rehearing by the full court of the case, but on Dec. 3, the court ruled against them, despite a strongly dissenting opinion written by Judge Robin Rosenbaum, appointed by President Barack Obama, and joined by Wilson and by Obama appointees Judge Jill Pryor and Judge Beverly Martin.

Newsom said the dissent didn’t justify rehearing the case, writing, “For all its rhetorical flourish, today’s dissent from denial simply doesn’t make a compelling argument.”

In recent years, transgender prisoners who have been denied gender-affirming procedures and treatments have brought similar lawsuits, including Josie Mills, a trans woman in Michigan’s prison system. Mills was denied hormone treatments and, in 2015, she castrated herself, which resulted in her hospitalization, according to the ACLU, which represented her. She eventually received the appropriate treatment after the Michigan Department of Corrections relented and updated its policy on transgender prisoners’ health care.

Adree Edmo, a transgender inmate in Idaho who was diagnosed with gender dysphoria in 2012, fought for the right to have gender affirmation surgery for years. In July, she finally received it, which made her only the second incarcerated person in the United States to have access to the surgery. The first inmate to receive gender affirmation surgery while in prison was Shiloh Heavenly Quine in California in 2017.

President-elect Joe Biden has promised to “ensure all transgender inmates in federal correctional facilities have access to appropriate doctors and medical care—including OBGYNs and hormone therapy” and require the Bureau of Prison to revise to “include protections for transgender individuals who are incarcerated,” according to his campaign website. During his campaign for president, Biden said there should be “zero discrimination” against transgender people and vowed to advocate for legislation that prohibits anti-LGBTQ discrimination.

But judges appointed by Trump will still be around to fight against LGBTQ people’s rights. According to Pew Research Center analysis, nearly a quarter of all active federal judges were appointed by Trump. Last month, two of them, Barbara Lagoa and Britt Grant, who also sit on the Court of Appeals for the 11th Circuit, ruled that bans on a “conversion therapy,” a dangerous practice that relies on the falsehood that people can change their sexual orientation and the gender identify with, were unconstitutional.

Published with permission of The American Independent Foundation.