               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ADREE EDMO, AKA Mason Edmo,          No. 19-35017
              Plaintiff-Appellee,
                                        D.C. No.
                v.                   1:17-cv-00151-
                                          BLW
CORIZON, INC.; SCOTT ELIASON;
MURRAY YOUNG; CATHERINE
WHINNERY,
            Defendants-Appellants,

               and

IDAHO DEPARTMENT OF
CORRECTIONS; HENRY ATENCIO;
JEFF ZUMDA; HOWARD KEITH
YORDY; AL RAMIREZ, Warden;
RICHARD CRAIG; RONA SIEGERT,
                     Defendants.
2                          EDMO V. CORIZON


 ADREE EDMO, AKA Mason Edmo,                       No. 19-35019
               Plaintiff-Appellee,
                                                     D.C. No.
                      v.                          1:17-cv-00151-
                                                       BLW
 IDAHO DEPARTMENT OF
 CORRECTIONS; HENRY ATENCIO;
 JEFF ZUMDA; HOWARD KEITH                             ORDER
 YORDY; AL RAMIREZ, Warden;
 RICHARD CRAIG; RONA SIEGERT,
             Defendants-Appellants,

                    and

 CORIZON, INC.; SCOTT ELIASON;
 MURRAY YOUNG; CATHERINE
 WHINNERY,
                        Defendants.

                    Filed February 10, 2020

    Before: M. Margaret McKeown and Ronald M. Gould,
     Circuit Judges, and Robert S. Lasnik, * District Judge.

                            Order;
               Statement by Judge O’Scannlain;
                   Dissent by Judge Collins;
                  Dissent by Judge Bumatay




    *
      The Honorable Robert S. Lasnik, United States District Judge for
the Western District of Washington, sitting by designation.
                        EDMO V. CORIZON                              3

                          SUMMARY **


                      Prisoner Civil Rights

    The panel denied a petition for panel rehearing and
denied a petition for rehearing en banc on behalf of the court,
in a case in which the panel affirmed the district court’s entry
of a permanent injunction in favor of an Idaho state prisoner,
but vacated the injunction to the extent it applied to certain
defendants in their individual capacities, in the prisoner’s
action seeking medical treatment for gender dysphoria.

    Respecting the denial of rehearing en banc, Judge
O’Scannlain, joined by Judges Callahan, Bea, Ikuta,
R. Nelson, Bade, Bress, Bumatay and VanDyke, stated that
with its decision not to rehear this case en banc, this court
became the first federal court of appeals to mandate that a
State pay for and provide sex-reassignment surgery to a
prisoner under the Eighth Amendment. Judge O’Scannlain
stated that the three-judge panel’s conclusion—that any
alternative course of treatment would be “cruel and unusual
punishment”—is as unjustified as it is unprecedented. To
reach such a conclusion, the court created a circuit split,
substituted the medical conclusions of federal judges for the
clinical judgments of prisoners’ treating physicians,
redefined the familiar “deliberate indifference” standard,
and, in the end, constitutionally enshrined precise and
partisan treatment criteria in what is a new, rapidly changing,
and highly controversial area of medical practice.



    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4                    EDMO V. CORIZON

    Dissenting from the denial of rehearing en banc, Judge
Collins stated that whether the defendant doctor was
negligent or not (a question on which Judge Collins
expressed no opinion), his treatment decisions did not
amount to “cruel and unusual punishment,” and the court
thus strayed far from any proper understanding of the Eighth
Amendment.

    Dissenting from the denial of rehearing en banc, Judge
Bumatay, joined by Judges Callahan, Ikuta, R. Nelson, Bade
and VanDyke, and by Judge Collins as to Part II, stated that
by judicially mandating an innovative and evolving standard
of care, the panel effectively constitutionalized a set of
guidelines subject to ongoing debate and inaugurated yet
another circuit split. And by diluting the requisite state of
mind from “deliberate indifference” to negligence, the panel
effectively held that—contrary to Supreme Court
precedent—medical malpractice does become a
constitutional violation merely because the victim is a
prisoner.
                          EDMO V. CORIZON                                5

                               ORDER

    The full court was advised of the petition for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of
the votes of nonrecused active judges in favor of en banc
consideration. Fed R. App. P. 35.

   The petition for rehearing en banc is DENIED. An
opinion respecting denial of rehearing en banc, prepared by
Judge O’Scannlain, and dissents from denial of rehearing en
banc prepared by Judge Collins and Judge Bumatay are filed
concurrently with this order.



O’SCANNLAIN, Circuit Judge, * with whom CALLAHAN,
BEA, IKUTA, R. NELSON, BADE, BRESS, BUMATAY,
and VANDYKE, Circuit Judges, join, respecting the denial
of rehearing en banc:

    With its decision today, our court becomes the first
federal court of appeals to mandate that a State pay for and
provide sex-reassignment surgery to a prisoner under the
Eighth Amendment. The three-judge panel’s conclusion—
that any alternative course of treatment would be “cruel and
unusual punishment”—is as unjustified as it is
unprecedented. To reach such a conclusion, the court creates
a circuit split, substitutes the medical conclusions of federal

    *
      As a judge of this court in senior status, I no longer have the power
to vote on calls for rehearing cases en banc or formally to join a dissent
from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. P.
35(a). Following our court’s general orders, however, I may participate
in discussions of en banc proceedings. See Ninth Circuit General Order
5.5(a).
6                      EDMO V. CORIZON

judges for the clinical judgments of prisoners’ treating
physicians, redefines the familiar “deliberate indifference”
standard, and, in the end, constitutionally enshrines precise
and partisan treatment criteria in what is a new, rapidly
changing, and highly controversial area of medical practice.

   Respectfully, I believe our court’s unprecedented
decision deserved reconsideration en banc.

                                 I

                                A

    In 2012, Adree Edmo (then known as Mason Dean
Edmo) was incarcerated for sexually assaulting a sleeping
15-year-old boy. By all accounts, Edmo is afflicted with
profound and complex mental illness. She 1 suffers from
major depressive disorder, anxiety, alcohol addiction, and
drug addiction. At least two clinicians have concluded that
she shares the traits of borderline personality disorder. She
abused alcohol and methamphetamines every day for many
years, stopping only upon her incarceration. A victim of
sexual abuse at an early age, she attempted suicide three
times before her arrest for sexual assault—twice by overdose
and once by cutting.

    A new diagnosis was added in 2012: gender dysphoria.
Two months after being transferred to the Idaho State
Correctional Institution (a men’s prison), Edmo sought to
speak about hormone therapy with Dr. Scott Eliason, the
Board-certified director of psychiatry for Corizon, Inc. (the
prison’s medical care provider). In Dr. Eliason’s view,
    1
      Though Edmo was born a male, Edmo has legally changed the sex
listed on her birth certificate to female. I therefore use feminine
pronouns throughout, just as the panel does.
                         EDMO V. CORIZON                              7

Edmo met the criteria for gender dysphoria. 2 After the
diagnosis was confirmed by another forensic psychiatrist
and the prison’s Management and Treatment Committee,
Edmo was prescribed hormone therapy. She soon changed
her legal name and the sex listed on her birth certificate. As
a result of four years of hormone therapy, Edmo experienced
physical changes, including breast development,
redistribution of body fat, and a change in body odor. She
now has the same circulating hormones as a typical adult
female.

    In April 2016, at Edmo’s request, Dr. Eliason evaluated
her for sex-reassignment surgery. 3 Ultimately, Dr. Eliason
decided to maintain the current course of hormones and
supportive counseling instead of prescribing surgery. He
staffed Edmo’s case with Dr. Jeremy Stoddart (a
psychiatrist) and Dr. Murray Young (a physician who served
as the Regional Medical Director for Corizon), as well as
Jeremy Clark, a clinical supervisor and member of the World
Professional Association for Transgender Health
(“WPATH”). He also presented the evaluation and vetted it


    2
       Gender dysphoria is a diagnosis introduced in the latest, fifth
edition of the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders. It replaces the now-obsolete
“gender identity disorder” used in the previous edition. The gender
dysphoric patient experiences “clinically significant distress or
impairment in social, occupational, or other important areas of
functioning” that is associated with the feeling of incongruence between
perceived gender identity and phenotypic sex. See Am. Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders 453 (5th
ed. 2013).
    3
      The panel adopts the question-begging term “gender confirmation
surgery,” which is preferred by Edmo and her lawyers. I will continue
to use the neutral “sex-reassignment surgery.”
8                    EDMO V. CORIZON

before the regular meeting of the multidisciplinary
Management Treatment Committee.

    Dr. Eliason, supported by Dr. Stoddart, Dr. Young, and
Clark, opted not to recommend sex-reassignment surgery for
several reasons, some of which are described in his chart
notes and others of which were elaborated in their testimony.
First, Dr. Eliason noted that Edmo reported that the hormone
therapy had improved her dysphoria and Eliason “did not
observe significant dysphoria.” In the absence of more
severe distress, Dr. Eliason could not justify the risks of
pursuing the most aggressive—and permanent—treatment
through surgery. Second, Dr. Eliason observed that Edmo’s
comorbid conditions—major depressive disorder and
alcohol use disorder, among others—were not adequately
controlled. Edmo had refused to attend therapy consistently
in prison. She also engaged in self harm (including cutting
and attempted castration) and exhibited co-dependency and
persistently poor sexual boundaries with other prisoners. In
Dr. Eliason’s view, Edmo’s other mental health disorders
were not sufficiently stabilized to handle the stressful
process of surgery and transition. Finally, Dr. Eliason
observed that Edmo—who was parole-eligible and due to be
released in 2021—had not lived among her out-of-prison
social network as a woman. He noted the high suicide rates
for postoperative patients and was concerned that Edmo
might be at greater risk of suicide given the potential lack of
support from family, friends, coworkers, and neighbors
during her transition. Dr. Eliason did not rule out the
possibility of Edmo receiving sex-reassignment surgery at
some later point. As Dr. Eliason put it in his notes on his
consultation with Edmo, “Medical Necessity for Sexual
Reassignment Surgery is not very well defined and is
constantly shifting.” Citing the changing nature of the
                     EDMO V. CORIZON                         9

science and the contingent nature of his evaluation of Edmo,
his recommendations were merely “for the time being.”

                              B

    About a year after her evaluation, Edmo filed this § 1983
lawsuit against Dr. Eliason, the Idaho Department of
Corrections, Corizon, and several other individuals, alleging
that the prison doctors’ treatment choice violated her right to
be free from cruel and unusual punishment under the Eighth
and Fourteenth Amendments. She then moved for a
preliminary injunction to require the prison to provide her
with sex-reassignment surgery.

    The district court held an evidentiary hearing on the
motion. At the outset of the hearing, the court commented
that it was hard “to envision” how a request to mandate sex-
reassignment surgery could be granted through anything
other than a permanent injunction. Nonetheless, the district
court evaluated Edmo’s motion under the preliminary
injunction standard and, only out of “an abundance of
caution,” provided a footnote evaluating whether an
injunction was merited under the more demanding standard
for a permanent injunction (which the court erroneously
described as “no more rigorous than that applicable to a
claim for preliminary mandatory relief”). Edmo v. Idaho
Dep’t of Corr., 358 F. Supp. 3d 1103, 1122 n.1 (D. Idaho
2018); see Edmo v. Corizon, Inc., 935 F.3d 757, 784 n.13
(9th Cir. 2019) (“[T]he standard for granting permanent
injunctive relief is higher (in that it requires actual success
on the merits) . . . .”).

    In addition to testimony from Edmo, Dr. Eliason, and
Jeremy Clark, the evidentiary hearing featured testimony
from four expert witnesses. Edmo presented Dr. Randi
Ettner, a psychologist, and Dr. Ryan Gorton, an emergency
10                   EDMO V. CORIZON

room physician. Dr. Ettner is one of the authors of the World
Professional Association of Transgender Health’s Standards
of Care for the Health of Transsexual, Transgender, and
Gender Nonconforming People and chairs WPATH’s
Committee for Institutionalized Persons. Dr. Gorton serves
on that committee too. WPATH—formerly the Harry
Benjamin International Gender Dysphoria Association—
describes itself as a “professional association” devoted “to
developing best practices and supportive policies worldwide
that promote health, research, education, respect, dignity,
and equality for transsexual, transgender, and gender
nonconforming people in all cultural settings.” World Prof’l
Ass’n for Transgender Health, Standards of Care for the
Health of Transsexual, Transgender, and Gender-
Nonconforming People 1 (7th ed. 2011) (“WPATH
Standards”). One of WPATH’s central functions is to
promulgate Standards of Care, which offer minimalist
treatment criteria for several possible approaches to gender
dysphoria, from puberty-blocking hormones to sex-
reassignment surgery.

    In addition to Dr. Eliason and Mr. Clark, the State
presented Dr. Keelin Garvey, the Chief Psychiatrist of the
Massachusetts Department of Corrections and chair of its
Gender Dysphoria Treatment Committee, and Dr. Joel
Andrade, a clinical social worker who served as clinical
director for the Massachusetts Department of Corrections
and served on its Gender Dysphoria Treatment Committee.
Each set of experts had gaps in their relevant experience.
Edmo’s experts had never treated inmates with gender
dysphoria, while the State’s experts had never conducted
long-term follow-up care with a patient who had undergone
sex-reassignment surgery.
                    EDMO V. CORIZON                      11

    Edmo’s experts testified that, in their opinion, Edmo
needs sex-reassignment surgery.        They based their
conclusion on the latest edition of WPATH Standards of
Care, which contain six criteria for sex-reassignment
surgery:

   (1) “persistent, well documented gender dysphoria,”

   (2) “capacity to make a fully informed decision and to
       consent for treatment,”

   (3) “age of majority,”

   (4) “if significant medical or mental health concerns are
       present, they must be well controlled,”

   (5) “12 continuous months of hormone therapy as
       appropriate to the patient’s gender goals,”

   (6) “12 continuous months of living in a gender role that
       is congruent with their gender identity.”

Id. at 60. In the opinion of Edmo’s experts, Edmo met all
six criteria and was unlikely to show further improvement in
her gender dysphoria without such surgery.

    The State’s experts disagreed on three main grounds.
First, they did not regard the WPATH Standards as definitive
treatment criteria, let alone medical consensus. In their
analysis, the evidence underlying the WPATH Standards is
not sufficiently well developed, particularly when it comes
to the treatment of gender dysphoric prisoners. Therefore,
they opined that a prudent, competent doctor might rely on
clinical judgment that differs from the (already ambiguous)
WPATH Standards. Second, the State’s experts testified
that, even under WPATH, Edmo failed to meet the fourth
12                   EDMO V. CORIZON

criterion for surgery, which requires that the patient’s other
mental health concerns be well controlled in order to reduce
the risks associated with transitioning. In the view of the
State’s experts, her mental health raised the concern that she
would have trouble transitioning. For their part, Edmo’s
experts argued that Edmo’s depression and addiction were
controlled enough for surgery and that some current
symptoms (such as self-cutting) stem from her gender
dysphoria and therefore can be alleviated with surgery.
Finally, the State’s experts testified that Edmo also failed to
meet the WPATH Standards’ sixth criterion for surgery,
which requires that Edmo live as a woman for twelve months
before surgery. In their view, it was essential that Edmo live
those twelve months outside of prison—that is, within her
social network—in order to be adequately sure that she and
her social network are ready for the challenges posed by
transitioning.    Edmo’s experts disagreed, noting that
WPATH says treatment in prisons should “mirror” treatment
outside of prisons.

                              C

    Although this appeal is from a grant of a preliminary
injunction, at some point the evidentiary hearing on the
motion for a preliminary injunction was consolidated into a
final bench trial on the merits. It is hard to know when (or
if) the parties were given the requisite “clear and
unambiguous notice” of consolidation. See Isaacson v.
Horne, 716 F.3d 1213, 1220 (9th Cir. 2013); see also Univ.
of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).

    The district court applied the Supreme Court’s oft-cited
rule that “deliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction
of pain’ proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v.
                     EDMO V. CORIZON                       13

Georgia, 428 U.S. 153, 173 (1976)). The State agreed that
gender dysphoria is a serious medical need, so the only
question on the merits is whether Dr. Eliason and his team
were “deliberately indifferent” as a matter of law.

    The district court concluded that the State’s experts were
“unconvincing” and gave their opinions “virtually no
weight.” Edmo, 358 F. Supp. 3d at 1125–26. Once such
expert testimony was set aside, the district court held that
any decision not to prescribe sex-reassignment surgery
would be “medically unacceptable under the circumstances”
and would therefore violate the Eighth Amendment. Id.
at 1127. Accordingly, the district court entered an injunction
ordering the State to “take all actions reasonably necessary
to provide Ms. Edmo gender confirmation surgery as
promptly as possible.” Id. at 1129.

                              D

    The panel has now affirmed the injunction. See Edmo,
935 F.3d at 803. Concluding that sex-reassignment surgery
was “medically necessary” and that the prison officials chose
a different course of treatment “with full awareness of the
prisoner’s suffering,” the panel holds that Dr. Eliason and
the other prison officials “violate[d] the Eighth
Amendment’s prohibition on cruel and unusual
punishment.” Id.

    To reach its conclusion that sex-reassignment surgery
was medically necessary, the panel spends most of its
lengthy opinion extolling and explaining the WPATH
Standards of Care. Because Dr. Eliason failed to “follow”
or “reasonably deviate from” the WPATH Standards, the
panel concluded that his treatment choice was “medically
unacceptable under the circumstances.” Id. at 792. To reach
the ultimate conclusion—that Dr. Eliason had a deliberately
14                   EDMO V. CORIZON

indifferent state of mind and was consequently in violation
of the Eighth Amendment—the panel posited that
Dr. Eliason’s awareness of the risks that Edmo would
attempt to castrate herself or feel “clinically significant”
distress “demonstrates that Dr. Eliason acted with deliberate
indifference.” Id. at 793. Each conclusion was legal error.

                              II

    “Deliberate indifference is a high legal standard.”
Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). It
is, after all, under governing precedent one form of the
“unnecessary and wanton infliction of pain” that is the sine
qua non of an Eighth Amendment violation. Estelle,
429 U.S. at 104 (quoting Gregg v. Georgia, 428 U.S. 153,
173 (1976)).       Simply put, Edmo must prove that
Dr. Eliason’s chosen course of treatment was the doing of a
criminally reckless—or worse—state of mind. Farmer v.
Brennan, 511 U.S. 825, 839 (1994).

    We have stated that a deliberately indifferent state of
mind may be inferred when “the course of treatment the
doctors chose was medically unacceptable under the
circumstances” and “they chose this course in conscious
disregard of an excessive risk to plaintiff’s health.” Jackson
v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Yet even
most objectively unreasonable medical care is not
deliberately indifferent.          “[M]ere ‘indifference,’
‘negligence,’ or ‘medical malpractice’” is not enough to
constitute deliberate indifference. Lemire v. Cal. Dep’t of
Corr. & Rehab., 726 F.3d 1062, 1082 (9th Cir. 2013)
(quoting Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th
Cir. 1980)). “Even gross negligence is insufficient to
establish deliberate indifference . . . .” Id. Likewise, “[a]
difference of opinion between a physician and the prisoner—
or between medical professionals—concerning what
                     EDMO V. CORIZON                        15

medical care is appropriate does not amount to deliberate
indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th
Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th
Cir. 1989)), overruled on other grounds by Peralta v.
Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc).
Although the panel organizes its opinion according to the
dictum we first articulated in Jackson, it so contorts the
standard as to render deliberate indifference exactly what we
have said it is not: a constitutional prohibition on good-faith
disagreement between medical professionals.

                              A

    The panel first, and fundamentally, errs by
misunderstanding what it means for a chosen treatment to be
medically “unacceptable” for purposes of the Eighth
Amendment. As did the district court, the panel concludes
that the decision to continue hormone treatment and
counseling instead of sex-reassignment surgery for Edmo
was “medically unacceptable under the circumstances”
because, in short, Dr. Eliason failed to “follow” or
“reasonably deviate from” the WPATH Standards of Care.
Edmo, 935 F.3d at 792. Yet such an approach to the Eighth
Amendment suffers from three essential errors. First,
contrary to the panel’s suggestion, constitutionally
acceptable medical care is not defined by the standards of
one organization. Second, the panel relies on standards that
were promulgated by a controversial self-described
advocacy group that dresses ideological commitments as
evidence-based conclusions. Third, once the WPATH
Standards are put in proper perspective, we are left with a
“case of dueling experts,” compelling the conclusion that Dr.
Eliason’s treatment choice was indeed medically acceptable.
16                    EDMO V. CORIZON

                                1

    A mere professional association simply cannot define
what qualifies as constitutionally acceptable treatment of
prisoners with gender dysphoria. In Bell v. Wolfish, 441 U.S.
520 (1979), the Supreme Court rejected the argument that
prison conditions must reflect those set forth in the American
Public Health Association’s Standards for Health Services in
Correctional Institutions, the American Correctional
Association’s Manual of Standards for Adult Correctional
Institutions, or the National Sheriffs’ Association’s
Handbook on Jail Architecture. Id. at 543 n.27. According
to the Court, “the recommendations of these various groups
may be instructive in certain cases, [but] they simply do not
establish the constitutional minima.” Id. After all, even
acclaimed, leading treatment criteria only represent the
“goals recommended by the organization in question” and
the views of the promulgating physicians, 4 and so, without
more, a physician’s disagreement with such criteria is simply
the “‘difference of medical opinion’ . . . [that is] insufficient,
as a matter of law, to establish deliberate indifference.” Id.;
Jackson, 90 F.3d at 332 (quoting Sanchez, 891 F.2d at 242);
accord Snow, 681 F.3d at 987; see also Long v. Nix, 86 F.3d
761, 765 (8th Cir. 1996) (“[N]othing in the Eighth
Amendment prevents prison doctors from exercising their
independent medical judgment.”).

    In its discussion of the role of treatment standards, the
panel fails to cite a single case in which a professional
organization’s standards of care defined the line between
medically acceptable and unacceptable treatment. Instead,
the panel cites two cases, one from the Seventh Circuit and

    4
      Although, as we will see, only half of the committee that
promulgates the WPATH Standards are physicians.
                        EDMO V. CORIZON                            17

one from the Eighth, for the proposition that professional
organizations’ standards of care are “highly relevant in
determining what care is medically acceptable and
unacceptable.” Edmo, 935 F.3d at 786 (emphasis added).
That may be. But as those two cases demonstrate, the range
of medically acceptable care is defined by qualities of that
care (or of its opposite) and not by professional associations.
Medically unacceptable care is “grossly incompetent or
inadequate care,” Allard v. Baldwin, 779 F.3d 768, 772 (8th
Cir. 2015), or care that constitutes “such a substantial
departure from accepted professional judgment to
demonstrate that the person responsible did not base the
decision on . . . [accepted professional] judgment,”
Henderson v. Ghosh, 755 F.3d 559, 566 (7th Cir. 2014)
(original parenthetical) (quoting McGee v. Adams, 721 F.3d
474, 481 (7th Cir. 2013) (stipulating that “medical
professionals . . . are ‘entitled to deference in treatment
decisions unless no minimally competent professional
would have so responded’”)). For its part, the First Circuit
holds in its own sex-reassignment-surgery case that medical
care does not violate the Eighth Amendment so long as it is
“reasonably commensurate with the medical standards of
prudent professionals.” Kosilek v. Spencer, 774 F.3d 63, 90
(1st Cir. 2014) (en banc). The panel is alone in its insistence
that a professional association’s standards add up to the
constitutional minima. 5



    5
      Far from countering such assertions, the panel’s concession that
“deviation from [WPATH] standards does not alone establish an Eighth
Amendment claim” is just a truism that recognizes that the Eighth
Amendment also contains a subjective element. Edmo, 935 F.3d at 789.
Moreover, such a statement serves simply to repeat the panel’s faulty
premise that the WPATH Standards are the appropriate reference point
in any analysis of medical acceptability.
18                        EDMO V. CORIZON

                                    2

     In the words of the panel, speaking for our court, the
WPATH Standards are “the gold standard,” the “established
standards” for evaluations of the necessity of sex-
reassignment surgery, the “undisputed starting point in
determining the appropriate treatment for gender dysphoric
individuals.” Edmo, 935 F.3d at 787–88, 788 n.16. But such
overwrought acclaim is just the beginning of the panel’s
thorough enshrinement of the WPATH Standards. The
district court chose which expert to rely on by looking at
which expert hewed most closely to the WPATH Standards
of Care. See Edmo, 358 F. Supp. 3d at 1124–26. And the
panel uncritically approves such an approach, calling the
WPATH Standards “a useful starting point for analyzing the
credibility and weight to be given to each expert’s opinion.”
Edmo, 935 F.3d at 788 n.16. By rejecting any expert not (in
the court’s view) appropriately deferential to WPATH, the
district court and now the panel have effectively decided ab
initio that only the WPATH Standards could constitute
medically acceptable treatment. 6


     6
      In enshrining the WPATH Standards as the “gold standard” for
determining when to provide surgery to a prisoner with gender
dysphoria, the panel makes much of the State’s comment in its opening
statement before the evidentiary hearing that the WPATH Standards are
the “best standards out there.” Edmo, 935 F.3d at 769, 788 n.16. The
panel even goes so far as to insist that “[b]oth sides . . . agree that the
appropriate benchmark regarding treatment for gender dysphoria is the
World Professional Association of Transgender Health Standards of
Care for the Health of Transsexual, Transgender, and Gender
Nonconforming People.” Id. at 767. But, contrary to the panel’s
suggestion, the State’s admission that the WPATH Standards are more
refined than any alternative hardly means that the State agrees—or the
Eighth Amendment requires—that a medical provider must base
treatment decisions on WPATH’s criteria. Indeed, before the district
                          EDMO V. CORIZON                              19

    One would be forgiven for inferring from the panel’s
opinion that its bold assertions about the WPATH Standards
are uncontroverted truths. But, as the Fifth Circuit has
recognized, “the WPATH Standards of Care reflect not
consensus, but merely one side in a sharply contested
medical debate over sex reassignment surgery.” Gibson v.
Collier, 920 F.3d 212, 221 (5th Cir. 2019). For its part, the
First Circuit, sitting en banc, has likewise held that
“[p]rudent medical professionals . . . do reasonably differ in
their opinions regarding [WPATH’s] requirements.”
Kosilek, 774 F.3d at 88. Our court should have done the
same.

    The WPATH Standards are merely criteria promulgated
by a controversial private organization with a declared point
of view. According to Dr. Stephen Levine, author of the
WPATH Standards’ fifth version, former Chairman of
WPATH’s Standards of Care Committee, and the court-
appointed expert in Kosilek, WPATH attempts to be “both a
scientific organization and an advocacy group for the
transgendered. These aspirations sometimes conflict.” Id. at
78. Sometimes the pressure to be advocates wins the day.
As Levine put it, “WPATH is supportive to those who want
sex reassignment surgery. . . . Skepticism and strong
alternate views are not well tolerated. Such views have been
known to be greeted with antipathy from the large numbers
of nonprofessional adults who attend each [of] the
organization’s biennial meetings . . . .” Id. (ellipses and


court and before our court, the State clearly rejected the notion that any
particular treatment criteria defines what is medically acceptable, stating
that Dr. Eliason’s choice “should be ratified as long as it is a reasonable
choice.” The panel erroneously construes the State’s refusal to concede
that it violated the WPATH Standards as a concession that such
standards are the “benchmark” of legally acceptable medical care.
20                   EDMO V. CORIZON

brackets original). WPATH’s own description of its drafting
process makes this clear. Initially, the sections of the sixth
version were each assigned to an individual member of
WPATH who then published a literature review with
suggested revisions. WPATH Standards, supra, at 109. The
suggested revisions were then discussed and debated by a
thirty-four-person Revision Committee, all before a
subcommittee drafted the new document. Id. at 109–11.
Only about half of the Revision Committee possesses a
medical degree. The rest are sexologists, psychotherapists,
or career activists, with a sociologist and a law professor
rounding out the group. Id. at 111.

    The pressure to be advocates appears to have won the
day in the WPATH Standards’ recommendations regarding
institutionalized persons. Recall that one central point of
contention between the State’s witnesses and Edmo’s was
over whether Edmo’s time undergoing hormone therapy in
prison provides sufficient guarantee that she could live well
outside of prison as a woman without having ever done so
before. The district court resolved the debate by citing the
WPATH Standards’ section on institutionalized persons, see
Edmo, 358 F. Supp. 3d at 1125, which tersely stipulates that
institutionalized persons should not be “discriminated
against” on the basis of their institutionalization, WPATH
Standards, supra, at 67. Such a recommendation is not
supported by any research about the similarity between
prisoners’ experiences with sex-reassignment surgery and
that of the general public. Indeed, as Edmo’s expert witness
and WPATH author, Dr. Randi Ettner, admits, there is only
one known instance of a person undergoing sex-
reassignment surgery while incarcerated—leaving medical
knowledge about how such surgery might differ totally
undeveloped.
                     EDMO V. CORIZON                        21

    Instead, WPATH’s recommendation for institutionalized
persons merely expresses a policy preference. The article
from which the recommendations are adapted stipulates
upfront that, because WPATH’s “mission” is “to advocate
for nondiscriminatory” care, it presumes that treatment
choices should be the same for all “demographic variables,
unless there is a clinical indication to provide services in a
different fashion.” George R. Brown, Recommended
Revisions to the World Professional Association for
Transgender Health’s Standards of Care Section on Medical
Care for Incarcerated Persons with Gender Identity
Disorder, 11 Int’l J. of Transgenderism 133, 134 (2009).
Unable to make an evidentiary finding from a sample size of
one, the article concludes that its presumption should set the
standard of care and then proceeds to recommend revisions
with the express purpose of influencing how courts review
gender dysphoria treatments under the Eighth Amendment.
Id. at 133, 135. As a later peer-reviewed study by
Dr. Cynthia Osborne and Dr. Anne Lawrence put it,
WPATH’s institutionalized-persons recommendations
follow from an “ethical principle,” not “extensive clinical
experience.” Cynthia S. Osborne & Anne A. Lawrence,
Male Prison Inmates With Gender Dysphoria: When Is Sex
Reassignment Surgery Appropriate?, 45 Archives of Sexual
Behav. 1649, 1651 (2016).

    Even apart from the concerns over WPATH’s
ideological commitments, its evidentiary basis is not
sufficient to justify the court’s reliance on its strict terms.
The WPATH Standards seem to suggest as much. In its own
words, the WPATH Standards are simply “flexible clinical
guidelines,” which explicitly allow that “individual health
professionals and programs may modify them.” WPATH
Standards, supra, at 2. Indeed, the most recent WPATH
Standards “represents a significant departure from previous
22                   EDMO V. CORIZON

versions” in part due to significant changes in researchers’
conclusions over the preceding decade. Id. at 1 n.2.
Moreover, the WPATH Standards lack the evidence-based
grading system that characterizes archetypal treatment
guidelines, such as the Endocrine Society’s hormone therapy
guidelines. Lacking evidence-based grading, the WPATH
Standards leave practitioners in the dark about the strength
of a given recommendation. See William Byne et al., Report
of the American Psychiatric Association Task Force on
Treatment of Gender Identity Disorder, 41 Archives of
Sexual Behav. 759, 783 (2012) (concluding that “the level
of evidence” supporting WPATH’s Standards’ criteria for
sex-reassignment surgery “was generally low”). For these
reasons, the Centers for Medicare & Medicaid Services, an
agency of the United States Department of Health and
Human Services, decided, “[b]ased on a thorough review of
the clinical evidence,” that providers may consult treatment
criteria other than WPATH, including providers’ own
criteria. Ctrs. for Medicare & Medicaid Servs, Proposed
Decision Memo for Gender Dysphoria and Gender
Reassignment Surgery (June 2, 2016); Ctrs. for Medicare &
Medicaid Servs, Decision Memo for Gender Dysphoria and
Gender Reassignment Surgery (Aug. 30, 2016).

                              3

    The panel’s disposition results from its failure to put the
WPATH Standards in proper perspective. Had the district
court understood that Edmo’s experts’ role in WPATH
marks them not with special insight into the legally
acceptable care, but rather as mere participants in an ongoing
medical debate, they would have acknowledged this case for
what it is: a “case of dueling experts.” Edmo, 935 F.3d
at 787. Instead of giving Drs. Garvey and Andrade (to say
nothing of Dr. Eliason) “no weight” due to their insufficient
                     EDMO V. CORIZON                        23

fealty to WPATH, the district court should have recognized
them as legitimate, experienced participants in that debate.
And had the State’s experts’ criticisms of and interpretation
of the WPATH Standards been given proper weight—any
weight at all—the district court would have had to conclude
that the State’s disagreement with Edmo’s experts was a
mere “difference of medical opinion,” not a constitutional
violation. Jackson, 90 F.3d at 332.

    So too with its assessment of Dr. Eliason’s treatment
choice. It is instructive that the worst the district court can
say about Dr. Eliason is that he “did not apply the WPATH
criteria.” Edmo, 358 F. Supp. 3d at 1126. Focusing the
analysis not on whether Dr. Eliason applied the standards of
a professional association but rather on whether the
treatment choice was within that of a prudent, competent
practitioner, the cautious treatment selected by Dr. Eliason
is plainly constitutionally acceptable.

    As Drs. Garvey and Andrade explain, it is medically
acceptable to offer Edmo a treatment of hormone therapy
and psychotherapy but not sex-reassignment surgery. The
practitioners’ fear that sex-reassignment surgery would
exacerbate Edmo’s other mental illnesses and increase the
risk of surgery was a genuine and sound fear. As Dr. Garvey
put it, “[b]ased on her current coping strategies, I would be
concerned about her suicide risk after surgery.” Although
the measured “regret rate,” which refers to the proportion of
postoperative patients who regret their surgery, is “low,” see
Edmo, 935 F.3d at 771, the district court and the panel failed
to acknowledge detailed testimony that those studies
neglected to follow up with such a high proportion of the
observed sample that the stated figure does not “represent
the full picture.” In Dr. Andrade’s opinion, “I think there are
things she needs to work out in therapy in the short and long
24                   EDMO V. CORIZON

term before she can make a really well-informed decision
about surgery.” He raised the concern that Edmo is
particularly at risk because of “unresolved trauma” that may
stem, not from gender dysphoria, but instead from past
sexual abuse.

    Dr. Eliason’s view that Edmo needed to have lived as a
woman outside of prison in order to ensure that she would
be able to adapt well after the surgery was also legitimate.
Indeed, under the peer-reviewed treatment criteria
developed by Drs. Osborne and Lawrence, Edmo was not
eligible for sex-reassignment surgery for these exact reasons.
Acknowledging the lack of evidence concerning the effects
of sex-reassignment surgery on inmates, the unique
challenges imposed by the correctional setting, and the
significant risk of patient regret, Drs. Osborne and Lawrence
proposed criteria that require a prospective patient have “a
satisfactory disciplinary record and demonstrated capacity to
cooperate” and “a long period of expected incarceration after
[surgery],” among others. Osborne & Lawrence, supra,
at 1661. This latter criterion helps to ensure that male-to-
female patients have “a longer period of time to consolidate
one’s feminine gender identity and gender role.” Id. at 1660;
see also id. at 1656 (“[I]nmates with [gender dysphoria] who
attempt to live in female-typical gender roles within men’s
prisons . . . could not effectively prepare” for life after
surgery.) The district court disregarded such additional,
peer-reviewed treatment criteria because they “are not part
of the WPATH criteria and are in opposition to the WPATH
Standards of Care.” Edmo, 358 F. Supp. 3d at 1126. Had
the district court taken a step back and considered not
whether Osborne and Lawrence were WPATH-compliant
but rather whether a competent physician could rely on their
reasoning, it would have had to conclude that Dr. Eliason’s
treatment choice was that of a competent, prudent physician.
                     EDMO V. CORIZON                      25

    Perhaps recognizing such problems with the district
court’s definition of medical unacceptability, the panel
concludes its medical-unacceptability analysis by changing
the subject. Instead of considering whether Dr. Eliason’s
choice of treatment was medically unacceptable, the panel
fixates on Dr. Eliason’s chart notes, which sets forth three
general categories in which he believes sex-reassignment
surgery may be required: (1) “Congenital malformation or
ambiguous genitalia,” (2) “Severe and devastating dysphoria
that is primarily due to genitals,” (3) or “Some type of
medical problem in which endogenous sexual hormones
were causing severe physiological damage.” According to
the panel, such categories “bear little resemblance” to the
WPATH Standards and therefore “Dr. Eliason’s evaluation
was not an exercise of medically acceptable professional
judgment.” Edmo, 935 F.3d at 791–92. In the first place,
Dr. Eliason’s categories are not meant to substitute for
treatment standards. Such categories describe three broad
pools of eligible patients; whether a particular patient
belongs in a certain pool—by having dysphoria sufficiently
severe to require sex-reassignment surgery, for instance—
would be resolved by more detailed evaluative criteria. In
the second place, conformity to WPATH is not the test of
constitutionally acceptable treatment of gender dysphoria.
But more broadly, the panel simply asks the wrong question.
Deliberate indifference may be inferred when “the course of
treatment the doctors chose was medically unacceptable
under the circumstances,” not when the doctors’
contemporaneous explanation of the choice is incomplete.
Jackson, 90 F.3d at 332 (emphasis added); see also Snow,
681 F.3d at 988; Toguchi, 391 F.3d at 1058; Hamby v.
Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (all referring
to the “course of treatment,” not the rationale). It does not
matter that Dr. Eliason’s testimony justifies his treatment
choice in ways not explicit in his chart notes such that the
26                   EDMO V. CORIZON

panel calls his testimony a “post hoc explanation.” Edmo,
935 F.3d at 791. So long as the ultimate treatment choice
was medically acceptable, our precedents tell us, we cannot
infer “the unnecessary and wanton infliction of pain” that
violates the Eighth Amendment.

                              B

    Even were the panel correct that the only medically
acceptable way to approach a gender dysphoric patient’s
request for sex-reassignment surgery is to apply the WPATH
Standards of Care, we still could not infer a constitutional
violation from these facts. As the Supreme Court has
explained, the Eighth Amendment simply proscribes
categories of punishment, and punishment is “a deliberate
act intended to chastise or deter.” Wilson v. Seiter, 501 U.S.
294, 299–300 (1991). “[O]nly the ‘unnecessary and wanton
infliction of pain’ implicates the Eighth Amendment.” Id.
at 297 (quoting Estelle, 429 U.S. at 104) (emphasis original).
Hence the commonplace deliberate-indifference inquiry,
which is a culpability standard equivalent to criminal
recklessness. Farmer, 511 U.S. at 839–40. Simply put,
unless the official “knows of and disregards an excessive
risk to inmate health and safety,” he does not violate the
Eighth Amendment. Id. at 837.

                              1

    With little explanation, the panel castigates Dr. Eliason
for having “disregarded” risks that he directly and
forthrightly addressed. Edmo, 935 F.3d at 793. Far from
disregarding the risk that Edmo would attempt to castrate
herself, Dr. Eliason investigated the causes of such a risk and
took concrete steps to mitigate it. Edmo’s self-harm
(including her castration attempts) followed closely after her
disciplinary infractions and other severe stressors.
                     EDMO V. CORIZON                        27

Identifying this causal connection, Dr. Eliason prescribed
and encouraged regular counseling to address Edmo’s acting
out and her ability to cope. Dr. Eliason also sought to further
deter self-castration by explaining to Edmo that she will
need to have intact genitals for any eventual surgery,
something Edmo now understands and articulated in her
testimony. Likewise, contrary to the panel’s conclusion that
he disregarded the risk of continued distress, Dr. Eliason
opted for a treatment of continued hormone therapy and
more regular supportive counseling precisely because
hormone therapy had already substantially ameliorated the
distress from the dysphoria.

    Furthermore, the panel errs by fixating on such
individual risks. Physicians ministrate to whole individuals
with whole diseases. Thus, individual risks may—and
frequently do—persist for the sake of the overall health of
the person. Dr. Eliason and his staff clearly believed their
treatment choice would mitigate overall risk, including
grave risks the panel downplays. Given Edmo’s long-term
struggles with severe depression and addiction, coupled with
the fact that she had not lived as a woman within her social
network, Eliason and the other doctors with whom he staffed
the evaluation were concerned that she would have trouble
adjusting after surgery, which could lead to regret, relapse,
or new mood disorders. Ultimately, they worried that she
might attempt suicide again. Such risks are not trifling and,
in light of them, Dr. Eliason’s willingness to accept some
risk that Edmo would try to castrate herself or would
continue to feel the distress of gender dysphoria (while
taking steps to mitigate such risks) is anything but
deliberately indifferent.
28                       EDMO V. CORIZON

                                   2

    None of this is to acquiesce in the straw-man argument
set up by the panel: that, so long as officials provide some
care, they are immunized from an Eighth Amendment claim.
One may assume that some medical care is indeed so
obviously inadequate that, without any direct evidence of the
defendant’s state of mind, we may infer that the defendant
was deliberately indifferent. See Farmer, 511 U.S. at 842
(remarking that deliberate indifference is “subject to
demonstration in the usual ways, including inference from
circumstantial evidence” and may be inferred “from the very
fact that the risk was obvious”). 7 But that is not this case.

    Even in a legal universe in which the WPATH Standards
define adequate care, Dr. Eliason’s deviations were not
deliberately indifferent. He selected a course of treatment
that, in light of the complex of diagnoses, the grave risks,
and the rapidly evolving nature of the medical research, was

     7
       It should, however, be noted that the panel fails to identify a
precedent of ours in which we have inferred a physician’s deliberate
indifference solely from the inadequate nature of the treatment and the
persistence of known risks. In the nearest cases, some other
circumstantial evidence has suggested the obviousness of the inadequacy
such that the physician must have been aware of the inadequacy. E.g.,
Snow, 681 F.3d at 988 (non-specialist refused the recommendation of a
treating specialist); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir.
1992) (same); Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000)
(same); Hunt v. Dental Dep’t, 865 F.2d 198, 201 (9th Cir. 1989) (refusal
to replace the dentures prisoner had been prescribed); Jett v. Penner,
439 F.3d 1091, 1098 (9th Cir. 2006) (prisoner not referred to specialist
for reasons unrelated to the prisoner’s medical needs and medical records
were manipulated); Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir.
2014) (reliance on arbitrary prison policy). I do not doubt that mere
inadequacy may raise the inference of deliberate indifference, but we
seem to leave such an inference for cases of genuine quackery.
                     EDMO V. CORIZON                        29

not obviously inadequate. Cf. Lemire, 726 F.3d at 1075 (“A
prison official’s deliberately indifferent conduct will
generally ‘shock the conscience’ so long as the prison
official had time to deliberate before acting . . . .”). He
subjected his assessment to a review process intended to
surface any possibility he was not considering, a review
process that included several doctors and a full committee.
And far from being an “unjustifiable” or “gross” deviation
from the WPATH Standards, he departed from WPATH by
raising the Standards’ own concerns for the presence of
comorbid conditions and the patient’s limited experience as
a woman. See Farmer, 511 U.S. at 839 (incorporating the
Model Penal Code’s definition of criminal recklessness);
Model Penal Code § 2.02(2)(c) (1985) (stating that the
criminally reckless individual “disregards a substantial and
unjustifiable risk” and that such disregard “involves a gross
deviation from the standard of conduct that a law-abiding
person would observe in the actor’s situation.”). Indeed, the
panel concludes that his deviations were simply not
“reasonable”—the test for negligent malpractice, not
deliberate indifference. Edmo, 935 F.3d at 792. “Eighth
Amendment liability requires ‘more than ordinary lack of
due care . . . .’” Farmer, 511 U.S. at 835 (quoting Whitley v.
Albers, 475 U.S. 312, 319 (1986)).

                              III

    The panel’s novel approach to Eighth Amendment
claims for sex-reassignment surgery conflicts with every
other circuit to consider the issue. The panel acknowledges
such a circuit split with the Fifth Circuit’s opinion in Gibson
v. Collier, 920 F.3d 212 (5th Cir. 2019), but tries—and
fails—to distinguish the First Circuit’s en banc opinion in
Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014). See Edmo,
935 F.3d at 794–95. The panel does not even address a third
30                        EDMO V. CORIZON

decision: the Tenth Circuit’s opinion in Lamb v. Norwood,
899 F.3d 1159 (10th Cir. 2018).

    Just as in this case, the First Circuit considered an appeal
of an injunction mandating sex-reassignment surgery. But,
unlike our court, the First Circuit reversed. Though the panel
attempts to downplay the direct conflict between its opinion
and Kosilek by pointing to minor differences between the
factual circumstances in each case, 8 the decisive differences
are matters of law. As to whether the care was medically
unacceptable, the First Circuit held that medically acceptable
treatment of gender dysphoric prisoners is not synonymous
with the demands of WPATH. Kosilek first reversed the
district court’s finding that one of the State’s experts was
“illegitimate” because the district court “made a
significantly flawed inferential leap: it relied on its own—
non-medical—judgment” and put too much “weight” on the
WPATH Standards. Kosilek, 774 F.3d at 87–88. With that
expert now taken seriously, the First Circuit held that the
denial of Kosilek’s sex-reassignment surgery was medically

     8
       The differences between the circumstances in Kosilek and those in
this case are not substantial enough to distinguish the holdings. The
clinical judgments in each case were motivated by concerns about
coexisting mental health conditions and the risk of suicide. Kosilek,
774 F.3d at 72. Just as in this case, Kosilek surfaced expert opinions that
the WPATH Standards are best applied flexibly, that in-prison
experience in the newly assigned gender is not a sufficient guarantee of
ability to transition, and that practitioners face a “dearth of empirical
research” on sex-reassignment surgery. Id. at 72–73, 76. The “security
concerns” over how to house a potential postoperative Kosilek, which
the panel considers the foremost difference between the two cases, was
not even essential to Kosilek’s holding. See Edmo, 935 F.3d at 794;
Kosilek, 774 F.3d at 91–92 (concluding that the officials’ “choice of a
medical option . . . does not exhibit a level of inattention or callousness
to a prisoner’s needs rising to a constitutional violation” before even
analyzing the security concerns).
                     EDMO V. CORIZON                        31

acceptable because it was within the bounds of “the medical
standards of prudent professionals.” Id. at 90. On the
question of deliberate indifference, the First Circuit applied
a test, which, unlike the panel’s inference from the
practitioners’ mere knowledge that a course of treatment
carried risks, asked whether the practitioners “knew or
should have known” that course of treatment was medically
unacceptable. Id. at 91.

    For its part, the Fifth Circuit has held that good faith
denial of sex-reassignment surgery never violates the Eighth
Amendment.        Recognizing “large gaps” in medical
knowledge and a “robust and substantial good faith
disagreement dividing respected members of the expert
medical community,” the Fifth Circuit concluded that “there
can be no claim [for sex-reassignment surgery] under the
Eighth Amendment.” Gibson, 920 F.3d at 220, 222. Indeed,
Texas’s refusal to even evaluate the inmate for sex-
reassignment surgery is, in the words of the Fifth Circuit, not
“so unconscionable as to fall below society’s minimum
standards of decency” and permit an Eighth Amendment
claim. Id. at 216 (quoting Kosilek, 774 F.3d at 96).

    Finally, the Tenth Circuit has upheld the entry of
summary judgment against a prisoner’s Eighth Amendment
claim for sex-reassignment surgery. See Lamb, 899 F.3d
at 1163. As in this case, the doctor who evaluated the
prisoner in Lamb determined that “surgery is impractical and
unnecessary in light of the availability and effectiveness of
more conservative therapies.” Id. Adopting Kosilek’s
subjective standard—that an Eighth Amendment violation
would take place “only if prison officials had known or
should have known” that “sex reassignment surgery [was]
the only medically adequate treatment”—the Tenth Circuit
held that “prison officials could not have been deliberately
32                      EDMO V. CORIZON

indifferent by implementing the course of treatment
recommended by a licensed medical doctor.” Id. at 1163 &
n.11 (citing Kosilek, 774 F.3d at 91).

     Although I am not aware of any other circuits to have
directly addressed the questions posed in this case, 9 for its
part, the Seventh Circuit has held that it is at least not
“clearly established” that there is a constitutional right to
gender-dysphoria treatment beyond hormone therapy.
Campbell v. Kallas, 936 F.3d 536, 549 (7th Cir. 2019). Nor
is it “clearly established” that a prison medical provider is
prohibited from denying sex-reassignment surgery on the
basis of the patient’s status as an institutionalized person. Id.
at 541, 549.

     With this decision, our circuit sets itself apart.

                                 IV

    I do not know whether sex-reassignment surgery will
ameliorate or exacerbate Adree Edmo’s suffering.
Fortunately, the Constitution does not ask federal judges to
put on white coats and decide vexed questions of psychiatric
medicine. The Eighth Amendment forbids the “unnecessary
and wanton infliction of pain,” not the “difference of opinion
between a physician and the prisoner—or between medical



     9
      The Seventh and Fourth Circuits (along with our own circuit) have
also held that arbitrary blanket bans on certain gender dysphoria
treatments can violate the Eighth Amendment—an issue not presented
here because Idaho evaluates prisoner requests for sex-reassignment
surgery on a case-by-case basis. See Rosati v. Igbinoso, 791 F.3d 1037,
1040 (9th Cir. 2015); De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir.
2013); Fields v. Smith, 653 F.3d 550, 556 (7th Cir. 2011).
                     EDMO V. CORIZON                        33

professionals.” Snow, 681 F.3d at 985, 987 (quoting Estelle,
429 U.S. at 104).

    Yet today our court assumes the role of Clinical
Advisory Committee. Far from rendering an opinion
“individual to Edmo” that “rests on the record,” Edmo,
935 F.3d at 767, the panel entrenches the district court’s
unfortunate legal errors as the law of this circuit. Instead of
permitting prudent, competent patient care, our court
enshrines the WPATH Standards as an enforceable “medical
consensus,” effectively putting an ideologically driven
private organization in control of every relationship between
a doctor and a gender dysphoric prisoner within our circuit.
Instead of reserving the Eighth Amendment for the grossly,
unjustifiably reckless, the panel infers a culpable state of
mind from the supposed inadequacy of the treatment.

    We have applied the traditional deliberate-indifference
standard to requests for back surgery, kidney transplant, hip
replacement, antipsychotic medication, and hernia surgery.
Yet suddenly the request for sex-reassignment surgery—and
the panel’s closing appeal to what it calls the “increased
social awareness” of the needs and wants of transgender
citizens—effects a revolution in our law! Id. at 803. The
temptation to stand at what we are told is society’s next
frontier and to invent a constitutional right to state-funded
sex-reassignment surgery does not justify the revision of
previously universal principles of Eighth Amendment
jurisprudence.

    Dr. Eliason and the State’s other practitioners were not
deliberately indifferent—far from it. And they certainly
were not guilty of violating the Eighth Amendment. They
confronted the serious risks to Edmo’s health, especially the
gravest one. They considered the knotty quandary posed by
her overlapping illnesses and the vicissitudes of her life.
34                   EDMO V. CORIZON

Mindful of the dictate “first do no harm,” these doctors
determined that the appropriate treatment would be more
cautious and more reversible than the one the patient desired.
And they did so in the shadow of the ongoing debate about
when the surgical replacement of the genitals is curative and
when it is not.

     Surely this was not cruel and unusual punishment.



COLLINS, Circuit Judge, dissenting from the denial of
rehearing en banc:

    The Supreme Court has held that a prisoner claiming that
his or her medical treatment is so inadequate that it
constitutes “cruel and unusual punishment” in violation of
the Eighth Amendment must make the demanding showing
that prison officials acted with “deliberate indifference” to
the prisoner’s “serious medical needs.” Estelle v. Gamble,
429 U.S. 97, 104 (1976). As judges of an “inferior Court[],”
see U.S. Const. art. III, § 1, we are bound to apply that
standard, but as Judge Bumatay explains, the panel here
effectively waters it down into a “mere negligence” test. See
infra at 47–48 (Bumatay, J., dissenting from denial of
rehearing en banc). That is, by narrowly defining the range
of “medically acceptable” options that the court believes a
prison doctor may properly consider in a case such as this
one, and by then inferring deliberate indifference from
Dr. Eliason’s failure to agree with that narrow range, the
district court and the panel have applied standards that look
much more like negligence than deliberate indifference. Id.
at 45–48. Whether Dr. Eliason was negligent or not (a
question on which I express no opinion), his treatment
decisions do not amount to “cruel and unusual punishment,”
and we have thus strayed far from any proper understanding
                        EDMO V. CORIZON                            35

of the Eighth Amendment. I therefore join Part II of Judge
Bumatay’s dissent, and I respectfully dissent from our
failure to rehear this case en banc.



BUMATAY, Circuit Judge, with whom CALLAHAN,
IKUTA, R. NELSON, BADE, and VANDYKE, Circuit
Judges, join, and with whom COLLINS, Circuit Judge, joins
as to Part II, dissenting from the denial of rehearing en banc:

    Like the panel and the district court, I hold great
sympathy for Adree Edmo’s medical situation. And as with
all citizens, her constitutional rights deserve the utmost
respect and vigilant protection. As the district court rightly
stated,

        The Rule of Law, which is the bedrock of our
        legal system, promises that all individuals
        will be afforded the full protection of our
        legal system and the rights guaranteed by our
        Constitution.     This is so whether the
        individual seeking that protection is black,
        white, male, female, gay, straight, or, as in
        this case, transgender. 1

    Adree Edmo is a transgender woman suffering from
gender dysphoria—a serious medical condition. While
incarcerated in Idaho’s correctional facilities, she asked that
her gender dysphoria be treated with sex-reassignment

    1
     Edmo v. Idaho Dep’t of Corr., 358 F. Supp. 3d 1103, 1109 (D.
Idaho 2018), order clarified, No. 1:17-CV-00151-BLW, 2019 WL
2319527 (D. Idaho May 31, 2019), and aff’d in part, vacated in part,
remanded sub nom. Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019).
36                       EDMO V. CORIZON

surgery (“SRS”). After consultation with a prison doctor,
her request was denied. She then sued under the Eighth
Amendment. 2

    I respect Edmo’s wishes and hope she is afforded the best
treatment possible. But whether SRS is the optimal
treatment for Edmo’s gender dysphoria is not before us. As
judges, our role is not to take sides in matters of conflicting
medical care. Rather, our duty is to faithfully interpret the
Constitution.

    That duty commands that we apply the Eighth
Amendment, not our sympathies. Here, in disregard of the
text and history of the Constitution and precedent, the
panel’s decision elevates innovative and evolving medical
standards to be the constitutional threshold for prison
medical care. In doing so, the panel minimizes the standard
for establishing a violation of the Eighth Amendment.

    After today’s denial of rehearing en banc, the Ninth
Circuit stands alone in finding that a difference of medical
opinion in this debated area of treatment amounts to “cruel
and unusual” punishment under the Constitution. While this
posture does not mean we are wrong, it should at least give
us pause before embarking on a new constitutional
trajectory. This is especially true given the original meaning
of the Eighth Amendment.

   Because the panel’s opinion reads into the Eighth
Amendment’s Cruel and Unusual Clause a meaning in
conflict with its text, original meaning, and controlling

     2
       Because Judge O’Scannlain thoroughly recites the relevant facts in
his opinion respecting the denial of the rehearing en banc, which I join
in full, I do not reiterate them here.
                      EDMO V. CORIZON                          37

precedent, I respectfully dissent from the denial of rehearing
en banc.

                                I.

    In holding that Idaho 3 violated the Eighth Amendment,
the panel opined that the Constitution’s text and original
meaning merited “little discussion.” See Edmo, 935 F.3d
at 797 n.21. I disagree.

     As inferior court judges, we are bound by Supreme Court
precedent. Yet, in my view, judges also have a “duty to
interpret the Constitution in light of its text, structure, and
original understanding.” NLRB v. Noel Canning, 573 U.S.
513, 573 (2014) (Scalia, J., concurring). While we must
faithfully follow the Court’s Eighth Amendment precedent
as articulated in Estelle v. Gamble, 429 U.S. 97 (1976), and
its progeny, “[w]e should resolve questions about the scope
of those precedents in light of and in the direction of the
constitutional text and constitutional history.” Free Enter.
Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667,
698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff’d in
part, rev’d in part and remanded, 561 U.S. 477 (2010).

    Accordingly, the Eighth Amendment’s history and
original understanding are of vital importance to this case.

                               A.

    The Eighth Amendment provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” U.S. Const. amend.

   3
      For simplicity, I collectively refer to Defendants below and
Appellants here as “Idaho.”
38                   EDMO V. CORIZON

VIII. Even just a cursory review of the amendment’s
original meaning shows that Edmo’s claims fall far below a
constitutional violation as a matter of text and original
understanding.

    At the time of the Eighth Amendment’s ratification,
“cruel” meant “[p]leased with hurting others; inhuman;
hard-hearted; void of pity; wanting compassion; savage;
barbarous; unrelenting.” Bucklew v. Precythe, 139 S. Ct.
1112, 1123 (2019) (citing 1 Samuel Johnson, A Dictionary
of the English Language (4th ed. 1773); 1 Noah Webster, An
American Dictionary of the English Language (1828)
(“Disposed to give pain to others, in body or mind; willing
or pleased to torment, vex or afflict; inhuman; destitute of
pity, compassion or kindness.”)). Even today, “cruel”
punishments have been described as “inhumane,” Farmer v.
Brennan, 511 U.S. 825, 838 (1994), involving the
“unnecessary and wanton infliction of pain,” Whitley v.
Albers, 475 U.S. 312, 319 (1986) (emphasis added)
(citations omitted), or involving the “superadd[ition] of
terror, pain, or disgrace.” Bucklew, 139 S. Ct. at 1124
(emphasis added) (internal quotation marks and citations
omitted).

    In the 18th Century, a punishment was “unusual” if it ran
contrary to longstanding usage or custom, or had long fallen
out of use. Bucklew, 139 S. Ct. at 1123 (citing 4 William
Blackstone, Commentaries on the Laws of England 370
(1769); Stuart Banner, The Death Penalty: An American
History 76 (2002); Baze v. Rees, 553 U.S. 35, 97 (2008)
(Thomas, J., concurring); John F. Stinneford, The Original
Meaning of “Unusual”: The Eighth Amendment as a Bar to
Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–71, 1814
(2008)). This early understanding comports with the plain
meaning of “unusual,” which has changed little from our
                     EDMO V. CORIZON                        39

Nation’s founding. See Harmelin v. Michigan, 501 U.S.
957, 976 (1991) (comparing Webster’s American Dictionary
(1828) definition of “unusual” as that which does not
“occu[r] in ordinary practice” with Webster’s Second
International Dictionary 2807 (1954) as that which is not “in
common use.”).

    Conversely, customs enjoying a long history of usage
were described as “usual” practices. Stinneford, supra,
at 1770.    James Wilson, a key contributor to the
Constitution, stated that “long customs, approved by the
consent of those who use them, acquire the qualities of a
law.” 2 James Wilson, Collected Works of James Wilson
759 (Kermit L. Hall & Mark David Hall eds., Indianapolis,
Liberty Fund 2007); see also Stinneford, supra, at 1769.
Likewise, early American courts construing the term “cruel
and unusual” (generally, as used in state constitutions)
upheld punishments that were not “unusual” in light of
common law usage. Stinneford, supra, at 1810–11 (citing
Barker v. People, 20 Johns. 457, 459 (N.Y. Sup. Ct. 1823),
aff’d, 3 Cow. 686 (N.Y. 1824); Commonwealth v. Wyatt,
27 Va. 694, 701 (Va. Gen. Ct. 1828); People v. Potter, 1
Edm. Sel. Cas. 235, 245 (N.Y. Sup. Ct. 1846)). Thus,
“[u]nder the plain meaning of the term, a prison policy
cannot be ‘unusual’ if it is widely practiced in prisons across
the country.” Gibson v. Collier, 920 F.3d 212, 226 (5th Cir.
2019).

    Finally, various views have been proposed with respect
to the original meaning of “punishment” in the Eighth
Amendment. Some view the word as being inapplicable to
conditions of confinement. See, e.g., Farmer, 511 U.S.
at 837 (“The Eighth Amendment does not outlaw cruel and
unusual ‘conditions’; it outlaws cruel and unusual
‘punishments.’”) (Souter, J.). Some have even suggested
40                    EDMO V. CORIZON

that “punishment” refers only to sentences imposed by a
judge or jury. See Hudson v. McMillian, 503 U.S. 1, 18
(1992) (Thomas, J., dissenting); but see Helling v.
McKinney, 509 U.S. 25, 40 (1993) (Thomas, J., dissenting)
(recognizing that the “evidence is not overwhelming” on this
question). Others believe the term was originally understood
to encompass more than sentences called for by statute or
meted out from the bench or jury box, but it required
deliberate intent. See, e.g., Wilson v. Seiter, 501 U.S. 294,
300 (1991) (“The infliction of punishment is a deliberate act
intended to chastise or deter. This is what the word means
today; it is what it meant in the eighteenth century.”) (Scalia,
J.) (quoting Duckworth v. Franzen, 780 F.2d 645, 652 (7th
Cir. 1985)); see also Celia Rumann, Tortured History:
Finding Our Way Back to the Lost Origins of the Eighth
Amendment, 31 Pepp. L. Rev. 661, 675, 677 (2004)
(presenting historical evidence that the word punishment
was “understood at the time to include torturous
interrogation”) (citing 4 William Blackstone, Commentaries
on the Laws of England; 3 Jonathan Elliot, The Debates in
the Several State Conventions on the Adoption of the
Federal Constitution 447–48).

                              B.

    While the foregoing overview does not provide the full
contours of the original understanding of the Cruel and
Unusual Clause, it demonstrates that Idaho’s actions are far
from a constitutional violation based on the clause’s text and
original meaning. Idaho’s actions simply do not amount to
the “barbarous” or “inhuman” treatment so out of line with
longstanding practice as to be forbidden by the Eighth
Amendment.
                         EDMO V. CORIZON                             41

    No longstanding practice exists of prison-funded SRS. 4
Indeed, the medical standards at the heart of Edmo’s claim
are innovative and evolving. The standards of care relied on
by Edmo were promulgated by the World Professional
Association for Transgender Health (“WPATH”) in 2011—
only about five years before Edmo’s lawsuit. WPATH,
Standard of Care for the Health of Transsexual,
Transgender, and Gender-Nonconforming People (7th ed.
2011) (“WPATH standards”). As the standards themselves
note, this “field of medicine is evolving.” The WPATH
standards also call for flexibility, individual tailoring, and
wide latitude in treatment options.

    Likewise, as recognized by numerous federal courts, the
WPATH standards are not accepted as medical consensus.
The first circuit court to address the issue ruled that the
WPATH standards did not foreclose alternative treatment
options, and that a doctor’s decision to choose a non-
WPATH treatment did not violate the Eighth Amendment.
Kosilek v. Spencer, 774 F.3d 63, 90 (1st Cir. 2014). The
Fifth Circuit also found that the WPATH standards remained
controversial and did not reflect a consensus. Gibson,
920 F.3d at 223. Similarly, after reciting the WPATH
standard’s recommended treatment options for gender
dysphoria, the Tenth Circuit rejected a claim that prison
officials acted with deliberate indifference “by
implementing [an alternative] course of treatment
recommended by a licensed medical doctor,” rather than

    4
       See, e.g., Quine v. Beard, No.14-cv-02726-JST, 2017 WL
1540758, at *1 (N.D. Cal. Apr. 28, 2017), aff’d in part, vacated in part,
rev’d in part sub nom. Quine v. Kernan, 741 F. App’x 358 (9th Cir.
2018); Kristine Phillips, A Convicted Killer Became the First U.S.
Inmate to Get State-Funded Gender-Reassignment Surgery, Wash. Post
(Jan. 10, 2017), https://wapo.st/2S21zP3.
42                      EDMO V. CORIZON

SRS. Lamb v. Norwood, 899 F.3d 1159, 1163 (10th Cir.
2018), cert. denied, 140 S. Ct. 252 (2019). 5

    The debate about the WPATH standards continues even
outside prison walls. The Centers for Medicare and
Medicaid Services (“CMS”) declined to adopt the WPATH
standards due to inadequate scientific backing, and instead
gives providers discretion to apply either the WPATH
standards or their own standards. CMS, Decision Memo for
Gender Dysphoria and Gender Reassignment Surgery
(August 30, 2016), available at https://go.cms.gov/36yMrx
X.     Similarly, the American Psychiatric Association
expressed concern about the scientific evidence
undergirding the WPATH standards. And as recently as
2017, WPATH requested that Johns Hopkins University
conduct an evidence-based review of the standards, a review
that, at the time of Edmo’s lawsuit, was ongoing.

    Idaho’s actions reflect the uncertainty regarding the
WPATH standards throughout the medical field, and do not,
under the record, reflect a want of compassion. See supra
O’Scannlain, J., dissenting at 22–29. Given the lack of
medical consensus, Dr. Eliason’s decision to pursue an
alternative treatment, rather than SRS, cannot constitute the
“barbarous” or “inhuman” conduct prohibited by the Eighth
Amendment. See Bucklew, 139 S. Ct. at 1123. Nothing in
the record reflects that Dr. Eliason’s diagnosis and treatment
of Edmo was tainted by malice or animosity. Notably,
Dr. Eliason concluded that Edmo had coexisting mental

     5
      In the non-SRS context, the Tenth Circuit also found no Eighth
Amendment violation where a doctor prescribed lower hormonal
treatment levels for a gender dysphoric inmate than those suggested by
the WPATH standards. Druley v. Patton, 601 F. App’x 632, 635 (10th
Cir. 2015).
                     EDMO V. CORIZON                      43

health issues that required treatment and counseling prior to
considering SRS. The district court itself found Edmo’s
reluctance to address those issues “troubling.” Edmo, 358 F.
Supp. 3d at 1121. Additionally, Idaho had no blanket policy
prohibiting SRS, and Dr. Eliason never definitively ruled it
out. Dr. Eliason committed to monitoring Edmo’s candidacy
for SRS after deciding that Edmo did not meet the criteria
for the procedure in 2016. In sum, Dr. Eliason’s decision to
pursue an alternative treatment to SRS suggests a tailored
evaluation of potential risks and does not reflect the hard-
hearted or barbarous treatment proscribed by the text of the
Constitution.

    Given the facts of this case, Dr. Eliason’s treatment
cannot rise to the infliction of cruel and unusual
punishment—not in a sense that bears any resemblance to
the original meaning of that phrase. This is not to say that
the WPATH standards are not a medically acceptable
standard. But the innovative, contested, and evolving nature
of the WPATH standards, the lack of medical consensus, and
the particular circumstances of this case make clear that no
constitutional violation occurred under the Constitution’s
text and original understanding.

                             II.

   In addition to being inconsistent with the original
understanding of the Eighth Amendment, I, like Judge
O’Scannlain, believe that the panel decision departs from
precedent.

                             A.

    Since Estelle v. Gamble, the Supreme Court has
recognized claims for inadequate medical treatment under
the Eighth Amendment when prison officials act with
44                   EDMO V. CORIZON

“deliberate indifference to serious medical needs of
prisoners.” 429 U.S. at 104. The test for such a claim
involves “both an objective standard—that the deprivation
was serious enough to constitute cruel and unusual
punishment—and a subjective standard—deliberate
indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th
Cir. 2012), overruled on other grounds by Peralta v. Dillard,
774 F.3d 1076 (9th Cir. 2014). Under Ninth Circuit
precedent, if a defendant’s treatment decision was
“medically acceptable,” then the court need go no further:
the plaintiff cannot show deliberate indifference as a matter
of law. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.
1996) (citing Estelle, 429 U.S. at 107–08).

    Deliberate indifference is a high bar, involving an
“unnecessary and wanton infliction of pain” or conduct that
is “repugnant to the conscience of mankind.” Estelle,
429 U.S. at 104, 105–06 (citations omitted). An inadvertent
failure to provide adequate medical care is neither, so it
cannot support an Eighth Amendment claim. Id; see also
Farmer, 511 U.S. at 835 (explaining that deliberate
indifference requires “more than ordinary lack of due care
for the prisoner’s interests or safety”) (citation omitted).

    A prison official acts with deliberate indifference only
where he “knows of and disregards an excessive risk to
inmate health or safety.” Farmer, 511 U.S. at 837 (emphasis
added). As Justice Thomas describes it, this is the second-
highest standard of subjective culpability under the Court’s
Eighth Amendment jurisprudence—short only of “malicious
and sadistic action for the very purpose of causing harm.”
Id. at 861 (Thomas, J., concurring) (internal quotation marks
and citations omitted).      Such a stringent culpability
requirement “follows from the principle that ‘only the
unnecessary and wanton infliction of pain implicates the
                          EDMO V. CORIZON                              45

Eighth Amendment.’” Id. at 834 (quoting Wilson, 501 U.S.
at 294).

    Our precedent has consistently emphasized the
challenging threshold for showing deliberate indifference. 6
Rightfully so, too. In the 44 years since Estelle, an unbroken
line of Supreme Court cases reaffirmed that mere
negligence, inadvertence, or good-faith error cannot
establish an Eighth Amendment claim. 7

                                    B.

    The panel’s decision here dilutes the otherwise stringent
deliberate indifference standard. The panel begins by
finding Edmo’s gender dysphoria to be a “serious medical
    6
       See Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016)
(explaining that “[a] difference of opinion between a physician and the
prisoner—or between medical professionals—concerning what medical
care is appropriate does not amount to deliberate indifference,” and
reiterating the “high legal standard” for showing an Eighth Amendment
violation) (citations omitted); Toguchi v. Chung, 391 F.3d 1051, 1060
(9th Cir. 2004); Hallett v. Morgan, 296 F.3d 732, 745 (9th Cir. 2002);
Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
    7
      See Minneci v. Pollard, 565 U.S. 118, 130 (2012) (noting that “to
show an Eighth Amendment violation a prisoner must typically show
that a defendant acted, not just negligently, but with ‘deliberate
indifference’”) (citing Farmer, 511 U.S. at 825, 834); Ortiz v. Jordan,
562 U.S. 180, 190 (2011) (restating Farmer’s articulation of the
deliberate indifference standard); Wilson, 501 U.S. at 297
(“[A]llegations of ‘inadvertent failure to provide adequate medical care,’
or of a ‘negligent . . . diagnosis,’ simply fail to establish the requisite
culpable state of mind.”) (internal citations and alterations omitted);
Whitley, 475 U.S. at 319 (“To be cruel and unusual punishment, conduct
that does not purport to be punishment at all must involve more than
ordinary lack of due care . . . . It is obduracy and wantonness, not
inadvertence or error in good faith, that characterize the conduct
prohibited by the Cruel and Unusual Punishments Clause[.]”).
46                   EDMO V. CORIZON

need.” Edmo, 935 F.3d at 785. It then determines, based
solely on the WPATH standards, that Dr. Eliason’s failure to
recommend SRS was medically unacceptable. Id. at 786–
92. From there, the panel leaps to conclude that Dr Eliason
was “deliberately indifferent” precisely because it viewed
his treatment as “ineffective” and “medically unacceptable”
under the panel’s reading of the WPATH standards. Id.
at 793. Thus, under the panel’s approach, compliance with
the court-preferred medical standards (in this case, the
WPATH standards) is the beginning and the end of the
inquiry. This is not the deliberate indifference inquiry
required by precedent.

    As an initial matter, and as Judge O’Scannlain aptly
points out, the panel errs in holding up one medically
accepted standard, i.e., the WPATH guidelines, as the
constitutional “gold standard,” thereby precluding any
further debate on the matter. See supra O’Scannlain, J.,
dissenting at 15–22. As discussed above, the WPATH
standards do not establish a definitive medical consensus and
judges applying Eighth Amendment standards should not
and need not take sides in this debate.

    More fundamentally though, the panel’s analysis
effectively erases the subjective deliberate indifference
requirement with its circular reasoning. Nowhere does the
panel consider any direct evidence of Dr. Eliason’s
subjective mental state. Cf. Jett v. Penner, 439 F.3d 1091,
1098 & n.2 (9th Cir. 2006) (concluding that a doctor’s
medical note stating “I reviewed xrays which showed no
obvious fracture malalignment,” written after reviewing a
radiology report which specifically indicated a deformity,
could evidence deliberate indifference) (alteration in
original). Nor does the panel consider the many reasons
underlying Dr. Eliason’s decision to decline SRS treatment.
                     EDMO V. CORIZON                        47

See supra O’Scannlain, J., dissenting at 15–22. Once those
reasons are swept aside, the panel circularly infers deliberate
indifference based on its prior determination that
Dr. Eliason’s treatment plan was “ineffective” or “medically
unacceptable” under the WPATH standards. See Edmo,
935 F.3d at 793–94 (finding Dr. Eliason deliberately
indifferent because his treatment “stopped short of what was
medically necessary”).

    Such an approach is particularly troublesome because, if
replicated, deliberate indifference could be inferred solely
from a finding of a “medically unacceptable” treatment. For
Eighth Amendment claims like Edmo’s, a plaintiff must first
show the “medically unacceptable” treatment of a “serious
medical need[]” and, second, that the doctor’s treatment
decision reflected “deliberate indifference” to the medical
need. Jackson, 90 F.3d at 332. The panel’s analysis
collapses this two-part inquiry into one circular step. If
courts follow the panel’s reasoning, in every case of
medically     unacceptable      treatment,   courts   could
automatically infer deliberate indifference.

    Worse still, because “medical acceptability” is an
objective negligence inquiry, the ultimate effect of the
panel’s analysis is to dilute the heightened, subjective
culpability required for deliberate indifference, see Farmer,
511 U.S. at 839–40, into mere negligence, which the
Supreme Court has repeatedly warned falls short of an
Eighth Amendment violation. See, e.g., Estelle, 429 U.S.
at 105–06. By denying rehearing en banc in this case, we
relegate federal judges to the role of referee in medical
disputes. This is not what the Constitution or precedent
envisions.
48                   EDMO V. CORIZON

                            ***

    The Eighth Amendment’s history and text entreat us to
hold the line on the heightened standards for a constitutional
deprivation found in our precedent. As Justice Thomas
rightly observed, “[t]he Eighth Amendment is not, and
should not be turned into, a National Code of Prison
Regulation.” Hudson, 503 U.S. at 28 (Thomas, J.,
dissenting). By judicially mandating an innovative and
evolving standard of care, the panel effectively
constitutionalizes a set of guidelines subject to ongoing
debate and inaugurates yet another circuit split. And by
diluting the requisite state of mind from “deliberate
indifference” to negligence, the panel effectively holds
that—contrary to Supreme Court precedent—“[m]edical
malpractice [does] become a constitutional violation merely
because the victim is a prisoner.” Estelle, 429 U.S. at 106
(altered). I respectfully dissent from the denial of rehearing
en banc.
