     Case: 16-51148   Document: 00514894694     Page: 1   Date Filed: 03/29/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit


                                 No. 16-51148
                                                                        FILED
                                                                  March 29, 2019
                                                                   Lyle W. Cayce
SCOTT LYNN GIBSON, also known as Vanessa Lynn,                          Clerk

             Plaintiff - Appellant

v.

BRYAN COLLIER; DR. D. GREENE,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Western District of Texas


Before SMITH, BARKSDALE, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      A state does not inflict cruel and unusual punishment by declining to
provide sex reassignment surgery to a transgender inmate. The only federal
court of appeals to decide such a claim to date has so held as an en banc court.
See Kosilek v. Spencer, 774 F.3d 63, 76–78, 87–89, 96 (1st Cir. 2014) (en banc).
The district court in this case so held. And we so hold today.
      Under established precedent, it can be cruel and unusual punishment to
deny essential medical care to an inmate. But that does not mean prisons must
provide whatever care an inmate wants. Rather, the Eighth Amendment
“proscribes only medical care so unconscionable as to fall below society’s
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                                 No. 16-51148

minimum standards of decency.” Id. at 96 (citing Estelle v. Gamble, 429 U.S.
97, 102–5 (1976)).
      Accordingly, “mere disagreement with one’s medical treatment is
insufficient” to state a claim under the Eighth Amendment. Delaughter v.
Woodall, 909 F.3d 130, 136 (5th Cir. 2018). This bedrock principle dooms this
case. For it is indisputable that the necessity and efficacy of sex reassignment
surgery is a matter of significant disagreement within the medical community.
As the First Circuit has noted—and counsel here does not dispute—respected
medical experts fiercely question whether sex reassignment surgery, rather
than counseling and hormone therapy, is the best treatment for gender
dysphoria. See Kosilek, 774 F.3d at 76–78, 87 (surveying conflicting testimony
concerning medical efficacy and necessity of sex reassignment surgery).
      What’s more, not only do respected medical experts disagree with sex
reassignment surgery—so do prisons across the country. That undisputed fact
reveals yet another fatal defect in this case. For it cannot be cruel and unusual
to deny treatment that no other prison has ever provided—to the contrary, it
would only be unusual if a prison decided not to deny such treatment.
      The dissent correctly observes that no evaluation for sex reassignment
surgery was ever provided in this case, because Texas prison policy does not
authorize such treatment in the first place.      The dissent suggests that a
blanket ban is unconstitutional—and that an individualized assessment is
required. But that defies common sense. To use an analogy: If the FDA
prohibits a particular drug, surely the Eighth Amendment does not require an
individualized assessment for any inmate who requests that drug.             The
dissent’s view also conflicts with Kosilek—as both the dissent in Kosilek and
counsel here acknowledge, the majority in Kosilek effectively allowed a blanket
ban on sex reassignment surgery.


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       In addition, the dissent would remand to correct certain alleged
procedural errors made by the district court. But counsel has asked us to reach
the merits, forfeiting any procedural objections that could have been brought.
And the dissent’s remaining procedural concerns are redundant of the
substantive debate over the proper interpretation of the Eighth Amendment.
We affirm. 1
                                              I.
       Scott Lynn Gibson is a transgender Texas prison inmate in the custody
of the Texas Department of Criminal Justice (TDCJ) in Gatesville. He was
originally convicted and sent to prison on two counts of aggravated robbery. In
prison, he committed the additional crimes of aggravated assault, possession
of a deadly weapon, and murder.              He was convicted of those subsequent
offenses, and is now sentenced to serve through May 2031, and eligible for
parole in April 2021.
       Gibson was born male. But as his brief explains, he has been diagnosed
as having a medical condition known today as “gender dysphoria” or “Gender
Identity Disorder” (GID). He has lived as a female since the age of 15 and calls
himself Vanessa Lynn Gibson. 2


       1  In reaching this judgment, we express no opinion on the ongoing debate over the
medical necessity or efficacy of sex reassignment surgery, other than to acknowledge the
existence and vigor of that debate. Nor do we express any opinion as to what alternative
medical treatments, if any, Texas prison officials might voluntarily offer to Gibson, as a
matter of policy or compassion. We conclude only that the Constitution affords us no
authority, as a court of law, to make such decisions on behalf of Texas.
        2 We use male pronouns, consistent with TDCJ policy—which Gibson does not appear

to challenge. Tex. Dep’t of Criminal Justice, OFFENDER INFORMATION DETAILS: SCOTT LYNN
GIBSON, https://offender.tdcj.texas.gov/OffenderSearch/offenderDetail.action?sid=05374437
(last visited Mar. 29, 2019) (listing Gibson as male and assigning him to male-only prison
facility). See also Farmer v. Brennan, 511 U.S. 825, 829, 832, 851 (1994) (using male
pronouns for transgender prisoner born male); id. at 852–54 (Blackmun, J., concurring)
(same); Praylor v. Texas Dep’t of Criminal Justice, 430 F.3d 1208, 1208–9 (5th Cir. 2005) (per
curiam) (same); cf. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (Brennan, J.) (plurality
op.) (“[S]ex . . . is an immutable characteristic determined solely by . . . birth.”).

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      The American Psychiatric Association defines “gender dysphoria” in its
most recent Diagnostic and Statistical Manual of Mental Disorders (DSM-5)
as a “marked incongruence between one’s experienced/expressed gender and
assigned gender, of at least 6 months duration, as manifested by” at least two
of six factors, namely:
      1. A marked incongruence between one’s experienced/expressed
      gender and primary and/or secondary sex characteristics. . . . 2. A
      strong desire to be rid of one’s primary and/or secondary sex
      characteristics because of a marked incongruence with one’s
      experienced/expressed gender. . . . 3. A strong desire for the
      primary and/or secondary sex characteristics of the other gender.
      4. A strong desire to be of the other gender (or some alternative
      gender different from one’s assigned gender). 5. A strong desire
      to be treated as the other gender (or some alternative gender
      different from one’s assigned gender). 6. A strong conviction that
      one has the typical feelings and reactions of the other gender (or
      some alternative gender different from one’s assigned gender).
As the Manual further notes, “[t]he condition is associated with clinically
significant distress or impairment in social, occupational, or other important
areas of functioning.”
      Gibson has averred acute distress. He is depressed, has attempted to
castrate or otherwise harm himself, and has attempted suicide three times
(though he says that gender dysphoria was not the sole cause of his suicide
attempts). His prison medical records reflect that he has consistently denied
any suicidal urges. But in this litigation, Gibson has averred that, if he does
not receive sex reassignment surgery, he will castrate himself or commit
suicide.
      After he threatened to castrate himself, Gibson was formally diagnosed
with gender dysphoria and started mental health counseling and hormone
therapy. Since his formal diagnosis, Gibson has repeatedly requested sex
reassignment surgery, explaining that his current treatment regimen of


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                                       No. 16-51148

counseling and hormone therapy helps, but does not fully ameliorate, his
dysphoria.
       TDCJ Policy G-51.11 provides that transgender inmates must be
“evaluated by appropriate medical and mental health professionals and [have
their] treatment determined on a case by case basis,” reflecting the “[c]urrent,
accepted standards of care.” Although there is some dispute whether the Policy
forbids sex reassignment surgery or is merely silent about it, doctors have
denied Gibson’s requests because the Policy does not “designate [sex
reassignment surgery] . . . as part of the treatment protocol for Gender Identity
Disorder.” 3
                                              II.
       This appeal comes to us with an unusual procedural history. Proceeding
pro se, Gibson sued, inter alia, the Director of the TDCJ (now, Bryan Collier),
challenging TDCJ Policy G-51.11 as unconstitutional under the Eighth
Amendment, both facially and as applied. He argued that Policy G-51.11
amounts to systematic deliberate indifference to his medical needs, because it
prevents TDCJ from even considering whether sex reassignment surgery is
medically necessary for him. He demanded injunctive relief requiring TDCJ
to evaluate him for sex reassignment surgery. 4
       The Director moved for summary judgment on two grounds: qualified
immunity and sovereign immunity. Notably, the Director did not move for
summary judgment on the merits of Gibson’s Eighth Amendment claim.




       3 The dissent refers to a “clinic note” seeking to schedule Gibson for an individualized
assessment for sex reassignment surgery, but acknowledges that Gibson’s counsel does not
argue that the clinic note is relevant to this appeal. Diss. Op. at 17–18.
       4 Gibson also sued “Dr. D. Greene” at the prison hospital, along with the Municipality

of Gatesville. The district court dismissed both of those defendants, and those claims are not
at issue in this appeal.

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      Gibson nevertheless responded to the motion for summary judgment on
the merits. He argued that the Policy prohibits potentially necessary medical
care. To support his claim of medical necessity, he attached the Standards of
Care issued by the World Professional Association for Transgender Health
(WPATH). Those standards provide that, “for many [transgender people,] [sex
reassignment] surgery is essential and medically necessary to alleviate their
gender dysphoria.”     WPATH, STANDARDS OF CARE FOR THE HEALTH OF
TRANSSEXUAL, TRANSGENDER, AND GENDER-NONCONFORMING PEOPLE 54 (7th
ed., 2011) (STANDARDS OF CARE).
      The district court rejected the Director’s two immunity defenses—
denying qualified immunity because this is a suit for injunctive relief, not
damages, and denying sovereign immunity under Ex parte Young. But the
district court granted summary judgment for the Director on the merits of
Gibson’s Eighth Amendment claim.
      Gibson appealed pro se. This court appointed experienced counsel to
advocate on Gibson’s behalf.     With the assistance of able counsel, Gibson
declined to protest any procedural defect in these proceedings. Instead, Gibson
asks us to reverse solely on the basis of the merits of his Eighth Amendment
claim, and to remand for further proceedings accordingly.
      We accept Gibson’s invitation to reach his deliberate indifference claim
on the merits, rather than reverse based on any procedural defects in the
district court proceedings. In doing so, we note that, had Gibson presented any
such procedural concerns, we might very well have remanded this case for
further proceedings. But he did not do so—as the dissent admits. See Diss.
Op. at 4 (admitting that “Gibson did not assert not being able to present
essential facts”); id. at 6 (admitting that “Gibson on appeal does not contest the
violation of this Rule”). And we presume he had good reason not to do so.


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                                     No. 16-51148

Reasonable counsel might conclude that it would be a waste of time and
resources for everyone involved (and give false hope to Gibson) to remand for
procedural reasons. After all, Gibson is destined to lose on remand if he is
unable to identify any genuine dispute of material fact. That is the case here,
as we shall demonstrate.
                                           III.
       We review grants of summary judgment de novo, and ask whether “there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). “‘[T]he substantive law
will identify which facts are material.’ This means ‘[o]nly disputes over facts
that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.’” Parrish v. Premier Directional
Drilling, L.P., 917 F.3d 369, 378 (5th Cir. 2019) (second alteration in original)
(citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). 5
       The Eighth Amendment forbids cruel and unusual punishments. The
Supreme Court has construed this prohibition to include “deliberate
indifference to serious medical needs of prisoners.” Gamble, 429 U.S. at 104.



       5 The dissent contends that we have somehow misapplied the standards governing
summary judgment. The contention is meritless. We all agree that summary judgment is
proper where there is no genuine dispute as to any material fact—and that the underlying
substantive law (here, the Eighth Amendment) dictates which facts are material. As we
explain below, Eighth Amendment precedent establishes that medical disagreement is not
actionable. Given the demonstrable medical disagreement over sex reassignment surgery,
we conclude—consistent with established precedent—that there are no material facts in
dispute here. In sum, the dissent’s disagreement concerns substantive Eighth Amendment
law, not the standards that govern summary judgment.
       The dissent’s related complaint—that we have somehow misplaced the burden of
production on Gibson, rather than on TDCJ where it belongs—fails for similar reasons. To
recognize the futility of Gibson’s claim does not place the burden of production on him. It
simply follows from the established rule that summary judgment is proper in the absence of
a dispute over facts that might affect the outcome of the suit under the governing law.

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      To establish deliberate indifference, Gibson must first demonstrate a
serious medical need.       Gobert v. Caldwell, 463 F.3d 339, 345 n.12
(5th Cir. 2006) (citing Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187
(11th Cir. 1994)). Second, he must show that the Department acted with
deliberate indifference to that medical need. Herman v. Holiday, 238 F.3d 660,
664 (5th Cir. 2001) (citing Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir.
1999)).
      Here, the State of Texas does not appear to contest that Gibson has a
serious medical need, in light of his record of psychological distress, suicidal
ideation, and threats of self-harm. Instead, the State disputes that it acted
with deliberate indifference to his medical needs.
      “[D]eliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the
Eighth Amendment.” Gamble, 429 U.S. at 104 (citation omitted) (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality op.)). This is a demanding
standard.
      Negligence or inadvertence is not enough.           “[A] complaint that a
physician has been negligent in diagnosing or treating a medical condition does
not state a valid claim of medical mistreatment under the Eighth
Amendment.”     Id. at 106.   “[A]n inadvertent failure to provide adequate
medical care cannot be said to constitute ‘an unnecessary and wanton infliction
of pain’ or to be ‘repugnant to the conscience of mankind.’” Id. at 105–6.
      Rather, the inmate must show that officials acted with malicious
intent—that is, with knowledge that they were withholding medically
necessary care. The plaintiff must show that officials “refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or engaged in




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any similar conduct that would clearly evince a wanton disregard for any
serious medical needs.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
      There is no intentional or wanton deprivation of care if a genuine debate
exists within the medical community about the necessity or efficacy of that
care. “Disagreement with medical treatment does not state a claim for Eighth
Amendment indifference to medical needs.” Norton v. Dimazana, 122 F.3d
286, 292 (5th Cir. 1997) (collecting cases). There is no Eighth Amendment
claim just because an inmate believes that “medical personnel should have
attempted different diagnostic measures or alternative methods of treatment.”
Id. See also Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992) (prisoners are
not entitled to “the best [treatment] that money c[an] buy”).
      Gibson seems to accept this standard. As his brief notes, to state an
Eighth Amendment claim, he must demonstrate “universal acceptance by the
medical community” that sex reassignment surgery treats gender dysphoria.
      This is not to say, of course, that a single dissenting expert automatically
defeats medical consensus about whether a particular treatment is necessary
in the abstract.      “Universal acceptance” does not necessarily require
unanimity. But where, as here, there is robust and substantial good faith
disagreement dividing respected members of the expert medical community,
there can be no claim under the Eighth Amendment. See, e.g., Kosilek, 774
F.3d at 96 (“Nothing in the Constitution mechanically gives controlling weight
to one set of professional judgments.”) (quoting Cameron v. Tomes, 990 F.2d
14, 20 (1st Cir. 1993)).
      Accordingly, there is no genuine dispute of material fact as to deliberate
indifference under the Eighth Amendment where—as here—the claim
concerns treatment over which there exists on-going controversy within the
medical community. Indeed, Gibson himself admits as much.


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                                         IV.
        The district court concluded that Gibson failed to present a genuine
dispute of material fact concerning deliberate indifference. To quote: “Plaintiff
would prefer a policy that provides [sex reassignment surgery]. However, a
Plaintiff’s disagreement with the diagnostic decisions of medical professionals
does not provide the basis for a civil rights lawsuit.” Op. at 20. “Plaintiff
provides . . . no witness testimony or evidence from professionals in the field
demonstrating that the WPATH-suggested treatment option of [sex
reassignment surgery] is so universally accepted, that to provide some but not
all    of   the   WPATH-recommended           treatment   amounts   to   deliberate
indifference.” Id. at 19. “Accordingly, Plaintiff fails to establish there is a
genuine issue of material fact as to whether the policy is unconstitutional on
its face or as applied to Plaintiff.” Id. at 20.
        We agree. What’s more, the conclusion of the district court is further
bolstered by a recent ruling by one of our sister circuits. As the First Circuit
concluded in Kosilek, there is no consensus in the medical community about
the necessity and efficacy of sex reassignment surgery as a treatment for
gender dysphoria. At oral argument, Gibson’s counsel did not dispute that the
medical controversy identified in Kosilek continues to this day. This on-going
medical debate dooms Gibson’s claim.
                                         A.

        The sparse record before us includes only the WPATH Standards of Care,
which declares sex reassignment surgery both effective and necessary to treat
some cases of gender dysphoria. As the First Circuit has concluded, however,
the WPATH Standards of Care reflect not consensus, but merely one side in a
sharply contested medical debate over sex reassignment surgery.




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      The en banc First Circuit considered whether a prison acted with
deliberate indifference when it failed to offer sex reassignment surgery to a
Massachusetts inmate.     Kosilek, 774 F.3d at 68–96.        Although the prison
denied the surgery, it offered “hormones, electrolysis, feminine clothing and
accessories, and mental health services.” Id. at 89.
      As part of its deliberate-indifference analysis, the First Circuit
considered whether WPATH and its proponents reflect medical consensus. It
concluded that, notwithstanding WPATH, sex reassignment surgery is
medically controversial. Accordingly, Massachusetts prison officials were not
deliberately indifferent when they “chose[] one of two alternatives—both of
which are reasonably commensurate with the medical standards of prudent
professionals, and both of which provide [the plaintiff] with a significant
measure of relief.”   Id. at 90.     The court held that this choice between
treatments “is a decision that does not violate the Eighth Amendment.” Id.
      To support its decision, the First Circuit exhaustively detailed the
underlying expert testimony in the case. That testimony is crucial because it
provides objective evidence that the medical community is deeply divided
about the necessity and efficacy of sex reassignment surgery. As the First
Circuit explained, respected doctors profoundly disagree about whether sex
reassignment surgery is medically necessary to treat gender dysphoria.
      To begin with, Kosilek recounted the testimony of Dr. Chester Schmidt,
“a licensed psychiatrist and Associate Director of the Johns Hopkins School of
Medicine.” Id. at 76. He testified that “‘[t]here are many people in the country
who disagree with [WPATH] standards who are involved in the [gender
dysphoria] field.’” Id. (first alteration in original). As a result, “Dr. Schmidt
expressed hesitation to refer to the [WPATH] Standards of Care, or the
recommendation for [sex reassignment surgery], as medically necessary. He


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emphasized the existence of alternative methods and treatment plans accepted
within the medical community.” Id. at 76–77.
       Next, the court summarized Cynthia Osborne’s testimony. Id. at 77. She
is “a gender identity specialist employed at the Johns Hopkins School of
Medicine who had experience working with other departments of correction
regarding [gender dysphoria] treatment.” Id. at 70. She testified that “she did
not view [sex reassignment surgery] as medically necessary in light of ‘the
whole continuum from noninvasive to invasive’ treatment options available to
individuals with [gender dysphoria].” Id. at 77. 6
       Third, the First Circuit considered the opinions of an expert appointed
by the district court, “Dr. Stephen Levine, a practitioner at the Center for
Marital and Sexual Health in Ohio and a clinical professor of psychiatry at
Case Western Reserve University School of Medicine.” Id.
       As the First Circuit pointed out, “Dr. Levine had helped to author the
fifth version of the [WPATH] Standards of Care.” Id. So it was notable that
Dr. Levine expressed concerns that later versions of WPATH were driven by
political considerations rather than medical judgment. His written report
“explain[ed] the dual roles that WPATH . . . plays in its provision of care to
individuals with GID.” Id. As the report stated:
       WPATH is supportive to those who want sex reassignment surgery
       (SRS). . . . Skepticism and strong alternate views are not well
       tolerated. . . . The [Standards of Care are] the product of an


       6 Schmidt and Osborne are not the only experts at the Johns Hopkins School of
Medicine who question the necessity and effectiveness of sex reassignment surgery. See, e.g.,
Paul McHugh, Transgender Surgery Isn’t the Solution, WALL ST. J. (May 13, 2016),
https://www.wsj.com/articles/paul-mchugh-transgender-surgery-isnt-the-solution-
1402615120; see also Amy Ellis Nutt, Long Shadow Cast by Psychiatrist on Transgender
Issues Finally Recedes at Johns Hopkins, WASH. POST (Apr. 5, 2017),
https://www.washingtonpost.com/national/health-science/long-shadow-cast-by-psychiatrist-
on-transgender-issues-finally-recedes-at-johns-hopkins/2017/04/05/e851e56e-0d85-11e7-
ab07-07d9f521f6b5_story.html?noredirect=on&utm_term=.062c67bae5fe.

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      enormous effort to be balanced, but it is not a politically neutral
      document. WPATH aspires to be both a scientific organization and
      an advocacy group for the transgendered. These aspirations
      sometimes conflict.

Id. at 78 (first alteration in original) (emphasis added).
      Dr. Levine also expressed concerns that the support for sex reassignment
surgery expressed in the Standards of Care lacked medical support. “The
limitations of the [Standards of Care], however, are not primarily political.
They are caused by the lack of rigorous research in the field.” Id. “Dr. Levine
further emphasized that ‘large gaps’ exist in the medical community’s
knowledge regarding the long-term effects of [sex reassignment surgery] and
other [gender dysphoria] treatments in relation to its positive or negative
correlation to suicidal ideation.” Id. Dr. Levine ultimately agreed with Dr.
Schmidt’s testimony:
      Dr. Schmidt’s view, however unpopular and uncompassionate in
      the eyes of some experts in [gender dysphoria], is within prudent
      professional community standards. Treatment stopping short of
      [sex reassignment surgery] would be considered adequate by many
      psychiatrists.

Id. And when asked to confirm if “prudent professionals can reasonably differ
as to what is at least minimally adequate treatment” for gender dysphoria, Dr.
Levine agreed: “Yes, and do.” Id. at 87.
      Finally, the court noted that “Dr. Marshall Forstein, Associate Professor
of Psychiatry at Harvard Medical School . . . issued a written report, in which
he noted that ‘the question of the most prudent form of treatment is
complicated by the diagnosis of [gender dysphoria] being on the margins of
typical medical practice.’” Id. at 79.
      To be sure, not all of the testimony was negative toward sex
reassignment surgery. See id. at 74–76, 77, 79. And not all of it was about sex


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                                      No. 16-51148

reassignment surgery generally, as distinguished from the plaintiff’s
individual need for such surgery.           But the unmistakable conclusion that
emerges from the testimony is this: There is no medical consensus that sex
reassignment surgery is a necessary or even effective treatment for gender
dysphoria. 7
       We see no reason to depart from the First Circuit. To the contrary, we
agree with the First Circuit that the WPATH Standards of Care do not reflect
medical consensus, and that in fact there is no medical consensus at this time.
WPATH itself acknowledges that “this field of medicine is evolving.”
STANDARDS OF CARE 41. The record in Kosilek documents more than enough
dissension within the medical community to conclude that it is not deliberately
indifferent for Texas prison officials to decline to authorize sex reassignment
surgery.
       Indeed, even one of the dissenters in Kosilek felt compelled to
acknowledge the “carefully nuanced and persuasive testimony that medical
science has not reached a wide, scientifically driven consensus mandating [sex
reassignment surgery] as the only acceptable treatment for an incarcerated
individual with gender dysphoria.” 774 F.3d at 114 (Kayatta, J., dissenting).
That admission is fatal to this case as well. 8


       7  Nor is the Kosilek testimony alone in questioning the efficacy of sex reassignment
surgery. In August 2016, for example, the Center for Medicare & Medicaid Services at the
U.S. Department of Health and Human Services issued a “Decision Memo for Gender
Dysphoria and Gender Reassignment Surgery.” The memo surveyed the available medical
literature and found that there was insufficient expert medical evidence to support sex
reassignment surgery with respect to Medicare and Medicaid patients. See generally CMS,
Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (Aug. 30, 2016),
https://www.cms.gov/medicare-coverage-database/details/nca-decision-
memo.aspx?NCAId=282.
        8 We are not aware of any circuit that has disagreed with Kosilek. The Fourth and

Ninth Circuits allowed Eighth Amendment claims for sex reassignment surgery to survive
motions to dismiss, without addressing the merits. See Rosati v. Igbinoso, 791 F.3d 1037,
1040 (9th Cir. 2015) (per curiam); De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013).

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                                              B.

       Gibson relies exclusively on the WPATH Standards of Care to support
his claim that failure to evaluate for sex reassignment surgery constitutes
deliberate indifference to his serious medical needs. Yet he too acknowledges
that WPATH’s conclusions are hotly contested.
       When asked about Kosilek at oral argument, Gibson’s counsel did not
dispute that the Standards of Care are a matter of contention within the
medical community. In fact, counsel conceded as much, acknowledging that
the First Circuit in Kosilek “criticizes” WPATH and “doesn’t recognize
[WPATH] as having universal consensus.” Oral Arg. 10:50–11:33.
       Gibson nevertheless asks this court to remand so that he can present
evidence of his individual need for sex reassignment surgery. Oral Arg. 11:35–
12:10; 13:27–16:22. We do not see how evidence of individual need would
change the result in this case, however. Any evidence of Gibson’s personal
medical need would not alter the fact that sex reassignment surgery is fiercely
debated within the medical community. Because Gibson does not dispute the
expert testimony assembled by the First Circuit concerning the medical debate
surrounding sex reassignment surgery, he cannot establish on remand that
such surgery is universally accepted as an effective or necessary treatment for
gender dysphoria.        Nor can he contend that TDCJ has been deliberately


        Moreover, various circuits, including our own, have rejected Eighth Amendment
claims for hormone therapy—never mind sex reassignment surgery—to treat gender
dysphoria, at least in individual cases. See Praylor, 430 F.3d at 1209 (“[W]e hold that, on
this record, the refusal to provide hormone therapy did not constitute the requisite deliberate
indifference.”); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (“[Prisoners do] not
have a right to any particular type of treatment, such as estrogen therapy.”); Supre v.
Ricketts, 792 F.2d 958, 963 (10th Cir. 1986) (“It was never established, however, that failing
to treat plaintiff with estrogen would constitute deliberate indifference to a serious medical
need. While the medical community may disagree among themselves as to the best form of
treatment for plaintiff’s condition, the [prison] made an informed judgment as to the
appropriate form of treatment and did not deliberately ignore plaintiff’s medical needs.”).

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                                       No. 16-51148

indifferent to his serious medical needs—particularly where TDCJ continues
to treat his gender dysphoria through other means. See Brauner v. Coody, 793
F.3d 493, 500 (5th Cir. 2015) (“Deliberate indifference is not established when
‘medical records indicate that [the plaintiff] was afforded extensive medical
care by prison officials.’”) (alteration in original) (quoting Norton, 122 F.3d at
292).
        In sum, Gibson has failed to present a genuine dispute of material fact.
There is no material fact dispute as to whether TDCJ was deliberately
indifferent to his medical needs. It is undisputed that TDCJ has provided him
with counseling and hormone therapy. And he acknowledges the on-going good
faith medical debate over the necessity and efficacy of sex reassignment
surgery.
                                             C.
        The dissent contends that we are not permitted to look at the record in
Kosilek. Although it might have been better practice for TDCJ to present its
own evidence, rather than borrow from Kosilek, we disagree that this warrants
reversal.
        No legal authority compels the state, every time a prison inmate
demands sex reassignment surgery, to undertake the time and expense of
assembling a record of medical experts, pointing out what we already know—
that sex reassignment surgery remains one of the most hotly debated topics
within the medical community today. There is no reason why—as a matter of
either common sense or constitutional law—one state cannot rely on the
universally shared experiences and policy determinations of other states. 9


        9Cf. City of Erie v. Pap’s A.M., 529 U.S. 277, 297 (2000) (plurality op.) (“Erie could
reasonably rely on the evidentiary foundation set forth in [City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986)] and [Young v. American Mini Theatres, Inc., 427 U.S. 50
(1976)] to the effect that secondary effects are caused by the presence of even one adult

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                                      No. 16-51148

                                            D.
       The dissent also suggests that Kosilek allows a prison to deny sex
reassignment surgery only if the prison first makes an individualized
assessment of the inmate’s particular medical needs. Under this view, it would
be unconstitutional for a prison system to make a categorical policy judgment
not to wade into the controversial world of sex reassignment surgery—as TDCJ
did here.
       There are a number of problems with this theory.                  To begin with,
Gibson’s own brief acknowledges that, if the logic of Kosilek is correct, it would
allow a “blanket refusal to provide SRS.”                  Counsel made the same
acknowledgment during oral argument. The court stated: “But your brief
acknowledges that the reasoning of the First Circuit is essentially allowing a
blanket ban.” Counsel responded: “And in fact, we do that by adopting the
dissent—you’re correct, your Honor—by adopting the dissent’s position,”
referring to the dissent in Kosilek. Oral Arg. 10:02–10:20.
       Our dissenting colleague suggests that counsel subsequently retracted
this admission. But counsel’s original admission—made first in writing, and
then again at the podium—is consistent with the dissent in Kosilek, which
likewise construed the logic of the en banc majority to permit a blanket ban.
To quote the dissent: “[T]he majority in essence creates a de facto ban on sex
reassignment surgery for inmates in this circuit. . . . [T]he precedent set by
this court today will preclude inmates from ever being able to mount a




entertainment establishment in a given neighborhood.”); Nixon v. Shrink Missouri
Government PAC, 528 U.S. 377, 393 n.6 (2000) (“‘The First Amendment does not require a
city, before enacting . . . an ordinance, to conduct new studies or produce evidence
independent of that already generated by other cities, so long as whatever evidence the city
relies upon is reasonably believed to be relevant to the problem that the city addresses.’”)
(alteration in original) (quoting Playtime Theatres, 475 U.S. at 51–52).

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                                   No. 16-51148

successful Eighth Amendment claim for sex reassignment surgery in the
courts.” Kosilek, 774 F.3d at 106–7 (Thompson, J., dissenting).
      Moreover, putting Kosilek to one side, there is a more fundamental
problem with the dissent’s contention that the Eighth Amendment requires
individualized assessments, and thus forbids categorical judgments about the
necessity and efficacy of certain medical treatments. To illustrate: An entire
agency of the federal government—the Food and Drug Administration—is
devoted to making categorical judgments about what medical treatments may
and may not be made available to the American people. So imagine an inmate
seeks a form of medical treatment that happens to be favored by some doctors,
but has not (at least not yet) been approved by the FDA. Could the inmate
challenge this deprivation on the ground that it is a categorical prohibition on
medical treatment, rather than an individualized assessment? Surely not.
There is no basis in the text or original understanding of the Constitution—
nor in Supreme Court or Fifth Circuit precedent—to conclude that a medical
treatment may be categorically prohibited by the FDA, yet require
individualized assessment under the Eighth Amendment. The dissent seems
to acknowledge this, stating only that “[o]ther circuits have time and again held
that . . . a blanket policy . . . could constitute deliberate indifference.” Diss. Op.
at 20–21 (emphases added) (discussing examples from Fourth and Ninth
Circuits).
                                         E.
      Finally, the dissent does not dispute that no circuit has disagreed with
Kosilek. So the dissent relies primarily on a recent ruling by a federal district
court ordering the state of Idaho to provide sex reassignment surgery to an
inmate. See Edmo v. Idaho Dep’t of Corr., 2018 WL 6571203, *19 (D. Idaho
Dec. 13, 2018) (appeal pending).


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                                 No. 16-51148

      But Edmo did not even mention Kosilek. To the contrary, it held that
the Eighth Amendment requires “even controversial” procedures. Id. at *1.
Our circuit precedent, by contrast, rejects Eighth Amendment claims in cases
involving medical disagreement. See, e.g., Norton, 122 F.3d at 292. Yet that
is precisely what the district court in Edmo did. It took sides in an on-going
medical debate—much like the district court did in Kosilek. And just as the
district court in Kosilek was subsequently reversed by the First Circuit en banc,
so too the judgment of the district court in Edmo should not survive appeal.
      After all, Edmo rejected the views of multiple medical experts who
disputed the efficacy of sex reassignment surgery for inmates—including Dr.
Campbell, the Idaho Department of Correction’s chief psychologist (and a
WPATH member). 2018 WL 6571203, at *6–7. The dissent points out that the
record in Edmo includes expert medical testimony disagreeing with two of the
doctors that the First Circuit credited in Kosilek. But that is not news—Kosilek
itself included the testimony of other medical experts—some who agreed, and
some who disagreed, with those doctors.
      At bottom, our disagreement with the dissent concerns not the record
evidence in Kosilek or Edmo or any other case, but the governing constitutional
standard. We can all agree that sex reassignment surgery remains an issue of
deep division among medical experts. Indeed, that is precisely our point. We
see no basis in Eighth Amendment precedent—and certainly none in the text
or original understanding of the Constitution—that would allow us to hold a
state official deliberately (and unconstitutionally) indifferent, for doing
nothing more than refusing to provide medical treatment whose necessity and
efficacy is hotly disputed within the medical community.




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                                     No. 16-51148

                                            V.
      As a matter of established precedent, Gibson’s claim plainly fails, due to
the undisputed medical controversy over sex reassignment surgery. But there
is an even more fundamental flaw with his claim, as a matter of constitutional
text and original understanding.
      Lest we lose the forest for the trees, a prison violates the Eighth
Amendment only if it inflicts punishment that is both “cruel and unusual.”
U.S. CONST. amend. VIII (emphasis added). As the text makes clear, these are
separate elements. See, e.g., ANTONIN SCALIA & BRYAN A. GARNER, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 116 (2012) (“[I]n the well-known
constitutional phrase cruel and unusual punishments, the and signals that
cruelty or unusualness alone does not run afoul of the clause: The punishment
must meet both standards to fall within the constitutional prohibition.”); Akhil
Reed Amar, America’s Lived Constitution, 120 YALE L.J. 1734, 1778 (2011)
(“[W]hether hypothetical punishment X is ‘cruel’ as well as unusual is of course
a separate question.”).
      Under the plain meaning of the term, a prison policy cannot be “unusual”
if it is widely practiced in prisons across the country. One of the nation’s
leading originalist scholars put the point simply: “‘[U]nusual’ should mean
what it says. . . . [S]o long as Congress routinely authorized a particular
punishment, it would be hard to say that the punishment, even if concededly
cruel, was ‘cruel and unusual.’” Amar, 120 YALE L.J. at 1778–79. 10



      10  See also John F. Stinneford, The Original Meaning of “Unusual”: The Eighth
Amendment as a Bar to Cruel Innovation, 102 NW. U. L. REV. 1739, 1745 (2008) (“As used in
the Eighth Amendment, the word ‘unusual’ was a term of art that referred to government
practices that are contrary to ‘long usage’ or ‘immemorial usage.’ Under the common law
ideology that came to the founding generation through Coke, Blackstone, and various others,
the best way to discern whether a government practice comported with principles of justice
was to determine whether it was continuously employed throughout the jurisdiction for a

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                                      No. 16-51148

       This understanding of the term “unusual”—that widely accepted
practices, such as the denial of sex reassignment surgery, do not violate the
Eighth Amendment—is not just commanded by constitutional text. It is also
consistent with opinions issued by various members of the Supreme Court.
This is particularly notable considering that few constitutional provisions have
divided members of the Court more vigorously than the Eighth Amendment.
       In Harmelin v. Michigan, 501 U.S. 957 (1991), for example, Justice
Scalia wrote that, “by forbidding ‘cruel and unusual punishments,’ the Clause
disables the Legislature from authorizing . . . cruel methods of punishment
that are not regularly or customarily employed.” Id. at 976 (op. of Scalia, J.)
(second emphasis added) (citations omitted). “[T]he word ‘unusual’” means
“‘such as [does not] occu[r] in ordinary practice,’ ‘[s]uch as is [not] in common
use.’” Id. (alterations in original) (quoting WEBSTER’S AMERICAN DICTIONARY
(1828); WEBSTER’S SECOND INTERNATIONAL DICTIONARY 2807 (1954)).
       Similarly, in Stanford v. Kentucky, 492 U.S. 361 (1989), Justice Scalia
explained that “[t]he punishment is either ‘cruel and unusual’ (i. e., society has
set its face against it) or it is not. The audience for these arguments, in other
words, is not this Court but the citizenry of the United States. It is they, not
we, who must be persuaded. For as we stated earlier, our job is to identify the
‘evolving standards of decency’; to determine, not what they should be, but
what they are.” Id. at 378 (op. of Scalia, J.).
       The specific holding of Stanford—that it is not cruel and unusual
punishment to impose capital punishment on 16 and 17-year-olds—was later
abrogated by Roper v. Simmons, 543 U.S. 551 (2005). But Simmons did not
abrogate Justice Scalia’s interpretation of “unusual.” To the contrary, the



very long time, and thus enjoyed ‘long usage.’ The opposite of a practice that enjoyed ‘long
usage’ was an ‘unusual’ practice, or in other words, an innovation.”) (footnotes omitted).

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                                  No. 16-51148

majority in Simmons relied heavily on “[t]he evidence of national consensus
against the death penalty for juveniles” to support its holding. Id. at 564. “30
States prohibit the juvenile death penalty.” Id. And “even in the 20 States
without a formal prohibition on executing juveniles, the practice is infrequent.
Since Stanford, six States have executed prisoners for crimes committed as
juveniles. In the past 10 years, only three have done so: Oklahoma, Texas,
and Virginia.” Id. at 564–65. See also id. at 565 (“In December 2003 the
Governor of Kentucky decided to spare the life of Kevin Stanford, and
commuted his sentence to one of life imprisonment without parole, with the
declaration that ‘[w]e ought not be executing people who, legally, were
children.’ By this act the Governor ensured Kentucky would not add itself to
the list of States that have executed juveniles within the last 10 years even by
the execution of the very defendant whose death sentence the Court had upheld
in Stanford v. Kentucky.”) (alteration in original) (citation omitted).
      Similarly, Justice Breyer has observed that “[t]he Eighth Amendment
forbids punishments that are cruel and unusual. Last year, in 2014, only seven
States carried out an execution. Perhaps more importantly, in the last two
decades, the imposition and implementation of the death penalty have
increasingly become unusual.” Glossip v. Gross, 135 S. Ct. 2726, 2772 (2015)
(Breyer, J., dissenting).
      Gibson’s claim fails this fundamental principle.       As his counsel has
acknowledged, only one state to date, California, has ever provided sex
reassignment surgery to a prison inmate. Oral Arg. 28:20–53. It did so in
January 2017, pursuant to the settlement of a federal lawsuit. Before that




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                                       No. 16-51148

litigation, no prison in the United States had ever provided sex reassignment
surgery to an inmate. 11
       Accordingly, Gibson cannot state a claim for cruel and unusual
punishment under the plain text and original meaning of the Eighth
Amendment, regardless of any facts he might have presented in the event of
remand.
                                            ***
       Gibson acknowledges that sex reassignment surgery for prison inmates
was unheard of when proceedings in this case began—and that it was only
done for the first time, anywhere, a year later in California, in response to
litigation. Gibson nevertheless contends that what was unprecedented until
just recently—and done only once in our nation’s history—suddenly rises to a
constitutional mandate today. That is not what the Constitution requires. It
cannot be deliberately indifferent to deny in Texas what is controversial in
every other state. The judgment is affirmed.




       11 See, e.g., Quine v. Beard, 2017 WL 1540758, *1 (N.D. Cal. Apr. 28, 2017) (“Under
the Agreement, [the California Department of Corrections and Rehabilitation] agreed to
provide sex reassignment surgery to Plaintiff.”); Kristine Phillips, A Convicted Killer Became
the First U.S. Inmate to get State-Funded Gender-Reassignment Surgery, WASH. POST (Jan.
10, 2017), https://www.washingtonpost.com/news/post-nation/wp/2017/01/10/a-transgender-
inmate-became-first-to-get-state-funded-surgery-advocates-say-fight-is-far-from-
over/?utm_term=.e236ac6bbd90 (“After a lengthy legal battle, a California transgender
woman became the first inmate in the United States to receive a government-funded gender-
reassignment surgery.”); see also Rosati, 791 F.3d at 1040 (“[T]he state acknowledged at oral
argument that no California prisoner has ever received SRS.”).

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                                 No. 16-51148

RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:
            The Director of the Texas Department of Criminal Justice (TDCJ)
was awarded summary judgment on a basis not urged by him; and, to make
matters far worse, in awarding judgment on the merits sua sponte, the district
court did not provide Gibson the required notice that it would consider such a
basis and allow Gibson to respond.         Accordingly, as the majority notes
correctly, this appeal springs from this very unusual and improper procedure
and resulting sparse summary-judgment record, which is insufficient for
summary-judgment purposes. Therefore, this case should be remanded for
further proceedings.     Accordingly, I must respectfully dissent from the
majority’s reaching the merits of this action, which concerns the Eighth
Amendment’s well-established requirements for medical treatment to be
provided prisoners.
                                      I.
      Gibson’s pro se complaint claimed: sex-reassignment surgery (SRS) is a
medically-necessary treatment for gender dysphoria; and the Director, in
violation of the Eighth Amendment, was deliberately indifferent to Gibson’s
serious medical need (gender dysphoria) by refusing to allow Gibson to even be
evaluated for SRS, due to a blanket ban on SRS instituted by TDCJ Policy No.
G-51.11. The Director moved for summary judgment on the basis of qualified
and Eleventh Amendment immunity. The district court denied immunity, but
then, sua sponte, improperly granted summary judgment on the merits,
without providing notice to Gibson—as required by Federal Rule of Civil
Procedure 56(f)—that it was considering a basis for granting summary
judgment not advanced by the Director in his motion and, concomitantly,
giving Gibson the opportunity to respond.




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                                  No. 16-51148

                                        II.
            Procedurally, summary judgment was improperly granted for
several reasons, in violation of bedrock bases for ensuring fundamental due
process to the nonmovant in a summary-judgment proceeding. Substantively,
numerous reasons compel summary judgment’s not being granted, most
especially the requested medical relief’s not being considered based on Gibson’s
individual needs.
                                        A.
            Gibson proceeded pro se in district court. The procedure employed
by the district court in granting summary judgment against Gibson flies in the
face of fundamental fairness, which Rule 56 (summary judgment), and caselaw
concerning it, seek to ensure. Regrettably, the majority compounds the error.
                                        1.
      The Director moved for summary judgment based only on immunity:
qualified and Eleventh Amendment. When relief is sought against an official
in his individual capacity, in our considering entitlement vel non to qualified
immunity, the well-known, two-prong analysis is employed: first, “whether the
facts alleged, taken in the light most favorable to the party asserting the
injury, show that the [official’s] conduct violated a constitutional right”, Price
v. Roark, 256 F.3d 364, 369 (5th Cir. 2001) (citing Saucier v. Katz, 533 U.S.
194, 201 (2001); Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001)); and,
second, if the allegations show a constitutional violation, “whether the right
was clearly established—that is whether ‘it would be clear to a reasonable
[official] that his conduct was unlawful in the situation he confronted’”, id.
(quoting Saucier, 533 U.S. at 202). The district court did not address these two
prongs, instead denying qualified immunity because Gibson was only seeking
injunctive relief against the Director in his official capacity.


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                                  No. 16-51148

      But, in urging qualified immunity, the Director’s brief—which was
incorporated in his summary-judgment motion—addressed, inter alia, the
Eighth Amendment claim by discussing the first prong of the qualified-
immunity analysis. The Director asserted Gibson “failed to state an actionable
claim for medical deliberate indifference”. In support of this contention, the
Director claimed, inter alia, “[Gibson’s] disagreement with the course of
treatment pursued by prison medical staff does not constitute a viable claim
for deliberate indifference to serious medical needs under the Eight[h]
Amendment”.
      Proceeding pro se, Gibson’s response to the Director’s immunity claims,
inter alia, necessarily addressed Gibson’s Eighth Amendment deliberate-
indifference claim in the context of the first prong of the qualified immunity
urged by the Director.    Gibson contended SRS is not demanded, or even
requested; rather, Gibson requested an evaluation by a gender-dysphoria
specialist so that Gibson’s condition could be fully assessed, and a
determination   made     by   a   medical   professional,    based   on   Gibson’s
individualized needs, whether SRS would adequately treat Gibson’s gender
dysphoria. Gibson averred there was a genuine dispute of material fact as to:
whether Gibson had a serious medical condition; whether Gibson was entitled
to medical care that meets prudent professional standards, as opposed to being
denied medical care based on a blanket policy; and whether the Director was
deliberately indifferent to Gibson’s serious medical need.
      The discussion for qualified-immunity purposes in the summary-
judgment motion and Gibson’s pro se response may be why the district court
improperly went beyond the summary-judgment motion, based only on
immunity, and addressed the merits of the Eighth Amendment claim. But, at
this very early stage of the proceeding, no discovery had been taken, and


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                                 No. 16-51148

material facts were unavailable to Gibson. Gibson’s affidavit in opposition to
summary judgment stated TDCJ was enforcing a blanket ban and refusing to
allow doctors to fully evaluate medical needs. As a result, Gibson was unable
to prove SRS is medically necessary in this case, because TDCJ prevented
Gibson from even being evaluated for SRS.
      Along that line, Rule 56(d) provides: “If a nonmovant [for a summary-
judgment motion] shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition [to summary
judgment], the court may: (1) defer considering the motion or deny it; (2) allow
time to obtain affidavits or declarations or to take discovery; or (3) issue any
other appropriate order”. Fed. R. Civ. P. 56(d). While Gibson did not assert
not being able to present essential facts, including because of not being aware
the court was considering a basis for judgment not advanced by the Director,
this Rule reflects the necessity of allowing a party opposing summary
judgment to garner such facts.
      In addition, in Celotex Corp. v. Catrett, the Supreme Court explained that
summary judgment can be entered against a party which fails to show it will
be able to prove an essential element of its case “after adequate time for
discovery”. 477 U.S. 317, 322 (1986). Gibson was not allowed discovery.
Gibson filed requests for admissions, which the Director never answered,
instead filing a motion for a protective order based on his qualified-immunity
defense.
      The court never ruled on the Director’s protective order, but ruled, in
granting summary judgment, that, although the Director did not have
immunity, Gibson had not shown a genuine dispute of material fact. For
instance, the court found, inter alia, “the record contain[ed] no evidence
addressing the security issues associated with adopting in full the WPATH


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                                  No. 16-51148

standards in an institutional setting”. Gibson v. Livingston, No. 6:15-cv-190,
at 19 (W.D. Tex. 31 Aug. 2016). Notwithstanding the fact that the court
improperly placed the burden of showing security concerns on Gibson, the
record contained no evidence of security concerns because there had been no
discovery. Ruling on the merits without compelling the Director to respond to
Gibson’s discovery requests, after denying the Director’s qualified-immunity
defense, flies in the face of clear Supreme Court precedent.
      More to the point concerning the district court’s addressing the merits
sua sponte, Rule 56(f) provides, inter alia: “After giving notice and a reasonable
time to respond, the court may . . . grant the [summary-judgment] motion on
grounds not raised by a party . . . .” Fed. R. Civ. P. 56(f)(2) (emphasis added).
Contrary to this Rule, the district court ruled on the merits without giving
Gibson any notice or opportunity to respond.
      Regarding sua sponte grants of summary judgment, “we have vacated
summary judgments and remanded for further proceedings where the district
court provided no notice prior to granting summary judgment sua sponte, even
where ‘summary judgment may have been appropriate on the merits’”.
Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 28
F.3d 1388, 1398 (5th Cir. 1994) (emphasis added) (affirming district court’s sua
sponte grant of summary judgment because plaintiffs could not identify how
discovery would yield a genuine dispute of material fact) (citing Judwin
Properties, Inc. v. U.S. Fire Ins., 973 F.2d 432, 437 (5th Cir. 1992)). “Since a
summary judgment forecloses any future litigation of a case the district court
must give proper notice to [e]nsure that the nonmoving party had the
opportunity to make every possible factual and legal argument.” Id. (quoting
Powell v. United States, 849 F.2d 1576, 1579 (5th Cir. 1988)). “When there is
no notice to the nonmovant, summary judgment will be considered harmless if


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                                  No. 16-51148

the nonmovant has no additional evidence or if all the nonmovant’s additional
evidence is reviewed by the appellate court and none of the evidence presents
a genuine [dispute] of material fact.”         Id. (emphasis in original) (quoting
Resolution Trust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1398,
1403 n.7 (5th Cir. 1993)).
      Gibson was not given every opportunity to present evidence and
contentions in opposing summary judgment on the basis for which it was
granted. Gibson, as an inmate, must rely on TDCJ or the court to allow an
evaluation to determine if SRS is necessary for Gibson. Accordingly, we have
not been able to evaluate all the evidence to determine if there are no genuine
disputes of material fact, as that evaluation has not been allowed. Although
Gibson on appeal does not contest the violation of this Rule, which exists to
ensure fundamental due process, it is one factor that should be considered in
evaluating this insufficient record.
      The majority at 3 states Gibson has “forfeit[ed]” any procedural
objections because Gibson has now asked for a ruling on the merits. (In that
regard, the majority is inconsistent: it notes that Gibson has asked our court
to rule on the merits, but also states at 15 that Gibson has asked our court to
remand, so that evidence of Gibson’s individual need for SRS can be presented.)
But, just as a party cannot decide our standard of review, a party also cannot
decide an insufficient record is sufficient.
                                        2.
      The majority, as did the district court, consistently places the burden of
production on Gibson. But, at hand is a summary judgment. It may be granted
only when there is no genuine dispute of material fact and movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). Because the Director,
not Gibson, moved for summary judgment, it was the Director’s burden to


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                                     No. 16-51148

“demonstrate the absence of a genuine [dispute] of material fact”. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citing Celotex,
477 U.S. at 323; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885–86 (1990)).
“If the [movant] fails to meet this initial burden, the motion must be denied,
regardless of the nonmovant’s response.” Id. Only if the Director met his
burden would the burden shift to Gibson to “go beyond the pleadings and
designate specific facts showing that there is a genuine [dispute] for trial”. Id.
(citing Celotex, 477 U.S. at 325).
      Again, if a genuine dispute of material fact exists, we cannot hold movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see Johnson v.
Treen, 759 F.2d 1236, 1237 (5th Cir. 1985) (“Accordingly, on appeal we view all
materials in the light most favorable to [nonmovant] . . . to determine if there
is any [dispute] of material fact. If no such [dispute] exists, we must then
determine if [movant is] entitled to judgment as a matter of law.” (emphasis
added) (citation omitted)).
      In moving for summary judgment only on the basis of immunity, the
Director provided the following evidence in support:            Gibson’s grievance
records; Gibson’s medical records from January 2014-August 7, 2015; and
TDCJ Policy No. G-51.11. The Director submitted no evidence regarding the
medical necessity vel non of SRS in treating gender dysphoria.
      In response, Gibson offered as evidence: Gibson’s affidavit, grievance
records, and psychiatric records from a psychiatric facility; literature on health
care and transgender individuals, including excerpts from a report detailing
the WPATH Standard of Care, which state “for many . . . surgery is essential
and medically necessary to alleviate their gender dysphoria”; a copy of TDCJ’s
policy on surgical castration for sex offenders; and copies of correspondence to
Gibson from TDCJ Correctional Managed Health Care.


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                                  No. 16-51148

      Therefore, because the Director did not provide evidence showing an
absence of a dispute as to the medical necessity of SRS in treating gender
dysphoria, he did not meet his burden; summary judgment was improper.
      The majority does not address the Director’s failure to show an absence
of a dispute for a material fact, which was the Director’s burden, as movant,
under Rule 56(a). Instead, the majority, throughout its opinion, claims Kosilek
v. Spencer, 774 F.3d 63 (1st Cir. 2014) (en banc), shows there is no genuine
dispute of material fact in regard to the medical controversy surrounding SRS;
but, in district court, the Director did not even cite Kosilek, much less contend
the evidence presented in Kosilek was dispositive. Again, the majority can only
state that Gibson “has failed to present a genuine dispute of material fact”,
Maj. Opn. at 16, without citation to any facts presented to the district court by
the Director, without any citation for why it was Gibson’s burden at this stage,
and without citation for whether there is any proof regarding whether this
medical controversy—which it submits at 2 “dooms” Gibson’s claim—still
exists, over four years after Kosilek was decided. Nevertheless, the majority
at 7 note 5 states there is no merit to my contention that it is misplacing the
burden of production on Gibson.
      Again, though, the majority is improperly taking evidence from another
case (Kosilek, decided by the first circuit over four years ago, and tried well
before then)—facts not presented in this case to the district court—and is
refusing to evaluate those facts in the requisite light most favorable to Gibson,
the nonmovant. See Johnson, 759 F.2d at 1237 (“The burden is on the moving
party to establish that there is no genuine issue of fact and the party opposing
the motion should be given the benefit of every reasonable inference in his
favor.” (citation omitted)).




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      Instead, the majority contends at 7 note 5 that it is “recogniz[ing] the
futility of Gibson’s claim”; however, a review of relevant caselaw yielded no
precedent providing for the denial of remand based on futility when there is a
genuine dispute of material fact at the summary-judgment stage. The majority
is, in essence, skipping straight to the “judgment as a matter of law” prong for
summary judgment. That is improper, because, as noted supra, this court
must first determine there is no genuine dispute of material fact. Obviously, as
explained more fully infra, under the Eighth Amendment deliberate-
indifference standard, individualized medical assessment is required in each
case to determine the necessity of a particular treatment for a prisoner.
Because Gibson has not received the requested and physician-ordered
evaluation for SRS, there is a genuine dispute of material fact—whether SRS
is medically necessary in Gibson’s case.
      The majority instead, in essence, is treating this Rule 56 summary-
judgment motion as a motion to dismiss for failure to state a claim, pursuant
to Rule 12(b)(6). See Maj. Opn. at 2, 8, 9, & 23 (“Accordingly, Gibson cannot
state a claim for cruel and unusual punishment under the plain text and
original meaning of the Eighth Amendment, regardless of any facts he might
have presented in the event of remand.” (first emphasis added)). Here, we are
not determining whether Gibson failed to state a claim (Gibson did state a
claim for deliberate indifference), but are instead determining whether, inter
alia, there are genuine disputes of material fact. Again, I emphasize, the only
facts presented to the district court regarding the medical necessity of SRS
were the WPATH Standards of Care. As much as it claims not to have, in its
zeal to interpret the original text of the Eighth Amendment (which, as
explained infra has already been done by the Supreme Court in Estelle v.
Gamble, 429 U.S. 97 (1976)), the majority has “missed the trees for the forest”


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by disregarding what stage of the proceeding we are evaluating and the
concomitant standards for it.
                                       B.
            The procedural errors that compel vacating the summary
judgment almost pale in comparison to the majority’s going far outside the
totally lacking summary-judgment record at hand in holding judgment was
properly granted.    This is reflected in the majority’s refusing to consider
Gibson’s individual medical needs, which are in large part unknown because
Gibson has never received the requested evaluation for SRS, despite the
evaluation’s being ordered by a TDCJ doctor.
                                       1.
      Instead of looking to the summary-judgment record for evidence of the
claimed uncertainty in the medical community, the majority at 10–14 attempts
to create its own record, as noted, from the opinion in Kosilek (en banc) (which,
again, was not cited by the Director in the brief incorporated in his summary-
judgment motion), and from other outside sources, Maj. Opn. at 12 & 14 nn.6–
7. While we can, of course, look to other cases for legal analysis, we cannot
reconstruct the summary-judgment record in this case from the record in
another.
      Moreover, this case is a far cry from Kosilek, which spanned over 20
years, had a very “expansive” record, and was not decided by summary
judgment. Kosilek, 774 F.3d at 68. Throughout Kosilek’s trial, testimony was
provided by numerous medical professionals—including gender-dysphoria
specialists who had evaluated Kosilek—regarding the medical necessity of SRS
in that case, and from multiple prison officials regarding safety concerns if
Kosilek were allowed SRS, neither of which is in issue for the summary
judgment at hand.


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      Additionally, Kosilek, as noted, was decided more than four years ago,
which is not as “recent” as the majority claims at 10. In the last four years,
have there been any developments in the medical community regarding
treating gender dysphoria and determining the necessity for SRS? We do not
know because, in the instant summary-judgment record, we have no expert
testimony or any evidence as to the medical necessity outside of the WPATH
Standards of Care. (Somewhat along the line of relevant medical-community
developments, the majority at 3 note 2, in discussing why it uses male
pronouns for Gibson, cites Frontiero v. Richardson for the proposition that “sex
. . . is an immutable characteristic determined solely by . . . birth”. 411 U.S.
677, 686 (1973) (Brennan, J.) (plurality opinion).         Frontiero, an equal-
protection challenge, confronted the disparate treatment of women; its being
cited by the majority is puzzling, to say the least. In any event, 46 years have
passed since 1973, when Frontiero was decided.)
      A recent example of the disagreement over the requirement under the
Eighth Amendment to provide SRS in certain instances is the 13 December
2018 opinion in Edmo v. Idaho Department of Corrections. No. 1:17-cv-00151-
BLW, 2018 WL 6571203 (D. Idaho 13 Dec. 2018), concerning the court’s
granting Edmo’s motion for preliminary injunction and ordering the Idaho
Department of Corrections (IDOC) to provide Edmo with SRS. There, the
district court held Edmo had “satisfie[d] both elements of the deliberate-
indifference” standard: Edmo proved there was a serious medical need; and
IDOC and its medical provider, with full awareness of Edmo’s circumstances,
had refused to provide Edmo with SRS. Id. at *2. The district court went on
to state: “In refusing to provide that surgery, IDOC and [its medical provider]
have ignored generally accepted medical standards for the treatment of gender
dysphoria”. Id. The court also noted, as did the court in Kosilek, that its


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opinion was based on “the unique facts and circumstances” of Edmo’s case, and
“is not intended, and should not be construed, as a general finding that all
inmates suffering from gender dysphoria are entitled to” SRS. Id.
      In so holding, the court found the “WPATH Standards of Care are the
accepted standards of care for treatment of transgender patients”, and “have
been endorsed by the [National Commission on Correctional Health Care
(NCCHC)] as applying to incarcerated persons”. Id. at *15. The court found
credible Edmo’s two experts, doctors “who have extensive personal experience
treating individuals with gender dysphoria both before and after receiving
[SRS]”. Id. at *15. One doctor testified “that [SRS] is the cure for gender
dysphoria” and would “eliminate” Edmo’s gender dysphoria, id. at *12; the
other, that “it is highly unlikely that [Edmo’s] severe gender dysphoria will
improve without” SRS, id.
      The court also gave “virtually no weight” to IDOC’s experts, who had no
“experience with patients receiving [SRS] or assessing patients for the medical
necessity of [SRS]”. Id. at *15. IDOC and its medical provider were trained by
a doctor, id., whose testimony in Kosilek is relied on heavily by the majority at
12–13. The court found that doctor and another, who also testified in Kosilek
and is quoted by the majority at 12, were “outliers in the field of gender
dysphoria treatment”; “do not ascribe to the WPATH Standards of Care”; and
impose additional requirements on incarcerated individuals to receive SRS
that have no scientific support, have not been endorsed by any professional
organizations, and have not been adopted by the NCCHC. Id. at *16; see also
Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1188 (N.D. Cal. 2015) (finding the
above-referenced doctor who trained IDOC and its medical provider was not
credible because he testified as to “illogical inferences”, misrepresented the
WPATH Standards of Care, “overwhelmingly relie[d] on generalizations about


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gender dysphoric prisoners, rather than an individualized assessment”, and
“admittedly include[d] references to a fabricated anecdote”).
      The record in Edmo contains more than, as the majority suggests at 19,
a disagreement with the doctors in Kosilek.          The courts in Edmo and
Norsworthy found those doctors not credible in the light of their
misrepresentations and refusal to subscribe to the medically-accepted
standards of care—WPATH.         See, e.g., Edmo, 2018 WL 6571203, at *16;
Norsworthy, 87 F. Supp. 3d at 1188.
                                        2.
      The majority at 9 and 15 also errs in stating Gibson’s “concessions”.
Gibson’s statement that the first circuit (which decided Kosilek en banc)
“doesn’t recognize [WPATH] as having universal consensus” is not equivalent
to a concession that WPATH is not universally accepted. And, contrary to the
majority’s statement at 15, Gibson does contest the expert testimony in Kosilek
refuting such “universal acceptance”. Although Gibson acknowledges that,
while proceeding pro se in district court, Gibson did not present evidence of
WPATH’s universal acceptance, Gibson asserts such acceptance could be
inferred as “[i]t is undisputed . . . that all reputable U.S. medical organizations
have recognized WPATH as the proper standard of care”.
      In that regard, the majority rests on lack of “universal acceptance” of the
medical necessity of SRS, stating that, to constitute deliberate indifference, the
medical procedure must be “universally accepted”. E.g., Maj. Opn. at 9, 10, &
15. Tellingly, the majority provides no citation to any caselaw regarding this
universal-acceptance standard. In fact, the only citation for this point is to




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Gibson’s brief. Maj. Opn. at 9. Gibson’s brief seemingly quoted the following
statement from the district court’s order:
            However, plaintiff provides as summary judgment evidence
      only portions of the WPATH report, and no witness testimony or
      evidence from professionals in the field demonstrating that the
      WPATH-suggested treatment option of SRS is so universally
      accepted, that to provide some but not all of the WPATH-
      recommended treatment amounts to deliberate indifference.


      Gibson, No. 6:15-cv-190, at 19 (emphasis added). But, the district court
did not cite any caselaw for this universal-acceptance standard either. And, a
review of relevant caselaw yields no precedent for this standard.           It is,
therefore, improper to add this unfounded qualification to the well-known
deliberate-indifference standard.
      In any event, again, it was not Gibson’s burden to show universal
acceptance, because the Director failed to present any evidence demonstrating
WPATH is not universally accepted. (The Kosilek court quoted Cameron v.
Tomes, 990 F.2d 14, 20 (1st Cir. 1993), for the proposition that security
concerns, as identified by prison administrators in Kosilek, are entitled to great
deference—not, as the majority states at 9, as support for the controversial
nature of SRS and the requirement of “universal consensus”. Kosilek, 774 F.3d
at 96.)
                                        3.
      The majority, at 12 and 14 notes 6–7, also cites three outside sources for
evidence of the claimed controversy surrounding SRS. In note 6, the majority
cites two news articles showing two doctors “are not the only experts at the
Johns Hopkins School of Medicine who question the necessity and effectiveness


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                                 No. 16-51148

of [SRS]”. Johns Hopkins, however, has opened a transgender health service
and resumed providing SRS to transgender individuals, a program cancelled
by a former chief of psychiatry who felt SRS was not a viable treatment. Amy
Ellis Nutt, Long Shadow Cast by Psychiatrist on Transgender Issues Finally
Recedes    at    Johns      Hopkins,     Wash.      Post    (5    Apr.     2017),
https://www.washingtonpost.com/national/health-science/long-shadow-cast-
by-psychiatrist-on-transgender-issues-finally-recedes-at-johns-
hopkins/2017/04/05/e851e56e-0d85-11e7-ab07-
07d9f521f6b5_story.html?noredirect=on&utm_term=.062c67bae5fe.
      The Decision Memo by the Centers for Medicare & Medicaid Services
(CMS), cited by the majority at 14 note 7, is also unpersuasive, and, in fact, if
anything, supports Gibson’s claim. The memo notes that CMS is not issuing a
national coverage determination (NCD) for SRS “for Medicare beneficiaries
with gender dysphoria because the clinical evidence is inconclusive for the
Medicare population”, but coverage determinations for SRS continue to be
made locally “on a case-by-case basis”.     CMS, Decision Memo for Gender
Dysphoria and Gender Reassignment Surgery, at 2 (30 Aug. 2016),
https://www.cms.gov/medicare-coverage-database/details/nca-decision-
memo.aspx?NCAId=282 (emphasis added).
      The memo goes on to acknowledge that, while SRS “may be a reasonable
and necessary service for certain beneficiaries with gender dysphoria”, “[t]he
current scientific information is not complete for CMS to make a NCD that
identifies the precise patient population for whom the service would be
reasonable and necessary”, and “[p]hysician recommendation is one of many
potential factors that the local [Medicare Administrative Contractors] may
consider when determining whether the documentation is sufficient to pay a
claim”. Id. at 40–41. A determination made on a case-by-case basis and


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supported by physician recommendation is precisely what Gibson has been
denied.
                                      4.
      It must also be noted that the Kosilek opinion is not nearly as
determinative on the issue of the necessity vel non for SRS as the majority
suggests. The majority in Kosilek stated: based on the evaluation of Kosilek
by numerous medical professionals, the court was convinced that both the
Massachusetts Department of Correction’s (DOC) course of treatment and SRS
could alleviate Kosilek’s symptoms. Kosilek, 774 F.3d at 90.
      But, it was “not the place of [the] court to ‘second guess medical
judgments’ or to require that the DOC adopt the more compassionate of two
adequate options”. Id. (citations omitted). The first circuit warned that the
opinion was not meant to “create a de facto ban against SRS as a medical
treatment for any incarcerated individual”, as any such “blanket policy
regarding SRS” “would conflict with the requirement that medical care be
individualized based on a particular prisoner’s serious medical needs”. Id. at
90–91 (emphasis added) (citing Roe v. Elyea, 631 F.3d 843, 862–63 (7th Cir.
2011) (holding failure to conduct individualized assessment of prisoner’s needs
may violate Eighth Amendment)).
      I agree the evidence in Kosilek encompassed both Kosilek’s individual
medical needs and the broader dispute about the efficacy of SRS; however, the
holding in Kosilek is based on Kosilek’s specific circumstances. Id. at 89–92.
      Addressing the subjective prong of deliberate indifference, the Kosilek
court noted, “it is not the district court’s own belief about medical necessity
that controls, but what was known and understood by prison officials in
crafting their policy”. Id. at 91 (citation omitted).     The court went on to
acknowledge that the DOC had “solicited the opinion of multiple medical


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professionals and was ultimately presented with two alternative treatment
plans, which were each developed by different medical experts to mitigate the
severity of Kosilek’s mental distress”. Id. (emphasis added). Inherent in that
analysis is the fact that Kosilek was evaluated by medical professionals, and
the DOC chose a course of treatment for Kosilek recommended by them.
       And, contrary to the majority’s assertion at 17–18, the dissent in Kosilek
does not suggest anything else. The dissent does state: “the majority in
essence creates a de facto ban on sex reassignment surgery for inmates in [the
first] circuit”.   Kosilek, 774 F.3d at 106–07 (Thompson, J. dissenting). This
was due, however, to the majority’s crediting “the divergence of opinion as to
Kosilek’s need for surgery”, which “only resulted from the DOC disregarding
the advice of Kosilek’s treating doctors and bringing in a predictable opponent
to [SRS]”. Id. at 107 (emphasis added). The dissent concluded: “So the
question remains, if Kosilek—who was time and again diagnosed as suffering
from severe gender identity disorder, and who was uniformly thought by
qualified medical professionals to require surgery—is not an appropriate
candidate for surgery, what inmate is”? Id.
       The majority at 17 notes Gibson’s brief “acknowledges that, if the logic
of Kosilek is correct, it would allow a ‘blanket refusal to provide SRS’”. Gibson
stated at oral argument, however: to the extent the brief acknowledged the
blanket refusal, it was error; and Gibson does not take that position. Oral
Argument 09:54–10:47 (“When you read Kosilek, that is not what it says.”).
Gibson further stated “the Eighth Amendment claim, as this court’s precedents
say repeatedly, turns on . . . individualized medical assessments”.          Oral
Argument 11:40–12:11.
       In that regard, unlike Gibson, Kosilek was evaluated for SRS and denied
it based on security concerns, uncertainty in the medical community, and


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                                   No. 16-51148

conflicting medical opinions regarding Kosilek’s individual needs. Gibson has
not even received a requested evaluation, even though the summary-judgment
record contains a “clinic note”, electronically signed by Dr. Greene, stating:
“Please schedule [Gibson] with unit MD for evaluation for referral for sex
change operation and evaluation for medical pass for gender identity disorder.”
(Emphasis added.) Moreover, the district court referenced this ordered referral
for SRS evaluation in its summary of the relevant summary-judgment
evidence. (At oral argument, neither party was aware of this evidence.)
      Again, the evaluation ordered by Dr. Greene has never occurred. As
noted by the majority at 5, according to TDCJ, Gibson’s requests for evaluation
have been denied “because [TDCJ] Policy [No. G-51.11] does not ‘designate
[SRS] . . . as part of the treatment protocol for Gender Identity Disorder’”.
Gibson does not contend that TDCJ has refused a doctor’s orders based on the
ban per se, but Gibson does contend that requests for evaluations are denied
based on the ban, and not on medical advice or valid penological interests. In
any event, as our review is de novo, we are allowed to consider the entire
record, which shows that a doctor ordered an evaluation, which has not
occurred solely due to the ban. (The majority at 5 note 3 states: “Gibson’s
counsel does not argue that the clinic note is relevant to this appeal”. But, as
noted above, at oral argument neither party was aware it existed. Obviously,
Gibson can urge, and has urged, the requirement for an individualized medical
assessment    of   Gibson’s   medical    needs—as     required   by   the   Eighth
Amendment—without pointing out this clinic note. As also noted above, the
district court referenced the clinic note in its order.)
      Gibson also moved in district court to add to the summary-judgment
record a news article in which the spokesman for TDCJ stated “it should be
noted that offenders cannot have gender reassignment surgery which would be


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                                  No. 16-51148

considered elective and is not covered under the TDCJ offender health care
plan”, as further proof that TDCJ’s denial of SRS is based on a policy and not
on Gibson’s medical need. Gibson’s motion was denied summarily in the order
granting summary judgment.
      In Gibson’s case, a TDCJ medical professional ordered evaluation for
SRS; but TDCJ, not due to a conflicting medical opinion, but instead based on
a blanket policy, refused to have Gibson evaluated. This is contrary to the
Eighth Amendment’s requirement that any denial of treatment be based on
medical judgment in the specific-fact scenario. See Delaughter v. Woodall, 909
F.3d 130, 138–39 & n.7 (5th Cir. 2018) (“We have previously suggested that a
non-medical reason for delay in treatment constitutes deliberate indifference.”
(citing Thibodeaux v. Thomas, 548 F. App’x 174, 175 (5th Cir. 2013))); Smith
v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003) (“[G]iven the fact-specific nature
of Eighth Amendment denial of medical care claims, it is difficult to formulate
a precise standard of ‘seriousness’ . . . ”. (quoting Gutierrez v. Peters, 111 F.3d
1364, 1372 (7th Cir. 1997))); Id. (“Just as the relevant ‘medical need’ can only
be identified in relation to the specific factual context of each case, the severity
of the alleged denial of medical care should be analyzed with regard to all
relevant facts and circumstances.” (citation omitted)).
      A second dissent in Kosilek disagreed with the standard of review the
majority applied to what the dissent deemed were pure questions of fact. Id.
at 113–15 (Kayatta, J., dissenting). The dissenting judge stated that even
though he disagreed with the trial judge’s findings on the medical necessity of
SRS in Kosilek’s case, the judge did not clearly err in finding the medical
professionals who concluded SRS was necessary in Kosilek’s case were more
credible. Id. In stating why he would have found SRS was not medically
necessary, the judge noted he believed one expert “provided carefully nuanced


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                                      No. 16-51148

and persuasive testimony that medical science has not reached a wide,
scientifically driven consensus mandating SRS as the only acceptable
treatment for an incarcerated individual with gender dysphoria”. Id. at 114.
The majority at 14 concludes that this “admission is fatal to this case”. That
the majority believes a statement by a dissenting judge as to how he personally
would have weighed the testimony in another case could somehow doom
Gibson’s case is wide of the mark.       The majority apparently believes Gibson
was never entitled to due process for this claim because Kosilek, an out-of-
circuit opinion, has foreclosed any advancement in the law and medical
research in this area.
      In addition, the majority’s analogies to drugs banned by the FDA at 2
and 18 are inapposite. First, SRS is not subject to FDA approval. CMS,
Decision Memo for Gender Dysphoria and Gender Reassignment Surgery, at 5–
6      (30      Aug.         2016),       https://www.cms.gov/medicare-coverage-
database/details/nca-decision-memo.aspx?NCAId=282. Second, our focus in
deliberate-indifference cases is on the actions of prison officials in response to
treatment prescribed by medical professionals for serious medical needs of
prisoners.
                                           5.
      This blanket ban on even an evaluation for SRS is clearly contrary to
Kosilek’s holding. It even goes against TDCJ’s G-51.11 policy, which provides
that inmates with gender dysphoria are “evaluated by appropriate medical and
mental health professionals and treatment determined on a case by case basis
as clinically indicated”, according to the “[c]urrent, accepted standards of care”.
TDCJ has denied Gibson evaluation for SRS and having treatment determined
based on individualized needs, which is mandated under the “current, accepted
standards of care”—WPATH—relied on by TDCJ in crafting its policy. Other


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                                 No. 16-51148

circuits have time and again held that refusal to treat, or evaluate for
treatment, based on a blanket policy and not medical judgment, could
constitute deliberate indifference. See, e.g., Rosati v. Igbinoso, 791 F.3d 1037
(9th Cir. 2015) (per curiam); Colwell v. Bannister, 763 F.3d 1060 (9th Cir.
2014); Fields v. Smith, 653 F.3d 550 (7th Cir. 2011).
      More importantly, our precedent suggests a refusal to evaluate Gibson
for SRS or a decision to deny SRS not based on medical judgment could
constitute deliberate indifference. See, e.g., Delaughter, 909 F.3d at 138–39 &
n.7 (“We have previously suggested that a non-medical reason for delay in
treatment constitutes deliberate indifference.” (collecting cases)); see also
Estelle, 429 U.S. at 104–05 (“We therefore conclude that deliberate indifference
to serious medical needs of prisoners constitutes the ‘unnecessary and wanton
infliction of pain,’ proscribed by the Eighth Amendment. This is true whether
the indifference is manifested by prison doctors in their response to the
prisoner’s needs or by prison guards in intentionally denying or delaying access
to medical care or intentionally interfering with the treatment once
prescribed.” (internal citation and footnotes omitted)).       If “intentionally
interfering with the treatment once prescribed” could constitute a violation of
the Eighth Amendment, surely a blanket refusal to be evaluated for treatment
could also constitute a claim.
                                       6.
      The majority at 14–15 note 8 states no circuit has disagreed with Kosilek;
however, that does not tell the full story. I am not aware of any circuit that
has considered another case regarding SRS which has gone through a full trial,
instead of being dismissed at the Rule 12(b)(6) or summary-judgment stages.




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See, e.g., Rosati, 791 F.3d 1037; De’lonta v. Johnson, 708 F.3d 520 (4th Cir.
2013).
      As the majority notes, the fourth and ninth circuits have allowed Eighth
Amendment claims to survive motions to dismiss for failure to state a claim.
See Maj. Opn. at 14 note 8 (citing Rosati, 791 F.3d at 1040; De’lonta, 708 F.3d
at 526); see also De’lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003) (regarding
a request for hormone therapy). In doing so, the fourth and ninth circuits have
suggested the failure to provide medical care based on an administrative
policy, and not on medical judgment, could constitute deliberate indifference.
See Rosati, 791 F.3d at 1039–40 (citing Colwell, 763 F.3d at 1063 (“holding that
the ‘blanket, categorical denial of medically indicated surgery solely on the
basis of an administrative policy that one eye is good enough for prison inmates
is the paradigm of deliberate indifference’”)); De’lonta, 330 F.3d at 635 (“In fact,
[the doctor’s] response . . . which states that there was no gender specialist at
[the consulting medical facility] and that [the prison’s] policy is not to provide
hormone therapy to prisoners, supports the inference that [the] refusal to
provide hormone treatment to De’lonta was based solely on the Policy rather
than on a medical judgment concerning De’lonta’s specific circumstances.”
(emphasis added)).
      Nor are the majority’s cited cases regarding hormone therapy
persuasive, because, as the majority states at 15 note 8, the holdings were
limited to the individual cases. In Praylor v. Texas Department of Criminal
Justice, our court held that, “on [that] record, the refusal to provide hormone
therapy did not constitute the requisite deliberate indifference”. 430 F.3d
1208, 1209 (5th Cir. 2005) (emphasis added). In Supre v. Ricketts, decided in
1986, the tenth circuit also held the failure to treat the plaintiff with hormone




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                                  No. 16-51148

therapy did not rise to deliberate indifference.         In so holding, the court
explained:
             It is apparent from the record that there were a variety of
       options available for the treatment of plaintiff’s psychological and
       physical medical conditions. It was never established, however,
       that failing to treat plaintiff with estrogen would constitute
       deliberate indifference to a serious medical need.          While the
       medical community may disagree among themselves as to the best
       form of treatment for plaintiff’s condition, the [prison] made an
       informed judgment as to the appropriate form of treatment and did
       not deliberately ignore plaintiff’s needs.


       792 F.2d 958, 963 (10th Cir. 1986) (emphasis added).
       Supre was examined by two endocrinologists and a psychiatrist, each of
whom considered estrogen therapy as a course of treatment. Id. at 960. Two
of the doctors advised against hormone therapy because of its dangers and
controversial nature at that time.       Id.   But, one of the endocrinologists
recommended hormone therapy. Id. The prison made “an informed judgment”
based on the recommendations of Supre’s doctors, not based on a policy. Id. at
963.
             Finally, the majority at 15 note 8 cites Meriwether v. Faulkner,
decided by the seventh circuit in 1987. The Meriwether court, in allowing the
Eighth Amendment claim to survive a motion to dismiss, stated: “[Plaintiff]
does not have a right to any particular type of treatment, such as estrogen
therapy . . . .” 821 F.2d 408, 413 (7th Cir. 1987). In 2011, however, the seventh
circuit explained in Fields v. Smith that the Meriwether language was dicta,
and held “the evidence at trial indicated that plaintiffs could not be effectively


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treated without hormones”. 653 F.3d at 555–56. Therefore, the court affirmed
the district court’s ruling that the Wisconsin statute in question, “which
prohibit[ed] the Wisconsin Department of Corrections . . . from providing
transgender inmates with certain medical treatments”, id. at 552, was invalid,
both on its face and as applied to plaintiffs, as a violation of the Eighth
Amendment, id. at 559.
                                       7.
            The majority has missed the mark. The question is not whether
there is a broad medical controversy, but whether there is a disagreement
about the efficacy of the treatment for this particular prisoner, based on this
prisoner’s individual needs. Obviously, what is not medically necessary for one
person, may be medically necessary for another.            See, e.g., Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“Whether a course of treatment
was the product of sound medical judgment, negligence, or deliberate
indifference depends on the facts of the case.”).
      This fact-specific inquiry required by the Eighth Amendment is exactly
why we cannot rely solely on the record in Kosilek in determining the medical
necessity in Gibson’s case, unlike the procedure used in the below-described
First Amendment precedent relied on by the majority at 16–17 note 9.
      Never mind that the Director did not “borrow from Kosilek” as the
majority suggests at 16; again, the Director did not even cite Kosilek in his
summary-judgment motion. Again, in this record, the only evidence of medical
necessity is the WPATH Standards of Care. Contrary to the majority’s above-
noted position at 16 and note 9, the need for individualized medical
determinations is obviously different from the general evidence required to
show a State’s compelling interest in protecting its citizens from corruption of
the political system by large campaign contributions or from the secondary


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                                 No. 16-51148

effects caused by a strip club or adult theater. See, e.g., Nixon v. Shrink Mo.
Gov’t PAC, 528 U.S. 377 (2000); City of Erie v. Pap’s A.M., 529 U.S. 277 (2000);
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
      Even if the Director had cited Kosilek in district court, we are required,
at this summary-judgment stage, to view the evidence and draw all reasonable
inferences in the light most favorable to the nonmovant—Gibson. See Renwick
v. PNK Lake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (citations
omitted). The testimony in Kosilek, coupled with the WPATH Standards of
Care, when viewed in the light most favorable to Gibson, demonstrate a
genuine dispute of material fact on the medical necessity of SRS in general.
And, on this record, we cannot know if SRS is medically necessary for Gibson,
because Gibson has been denied the right to an evaluation and the due-process
right to make a record on this point of contention.
      The majority consistently misconstrues the correct standard. At 2, the
majority quotes Delaughter, 909 F.3d at 136, stating: “‘[M]ere disagreement
with one’s medical treatment is insufficient’ to state a claim under the Eighth
Amendment.” See also Maj. Opn. at 9 (quoting Norton v. Dimazana, 122 F.3d
286, 292 (5th Cir. 1997)). This is correct; “mere disagreement with one’s
medical treatment is insufficient to show deliberate indifference”. Delaughter,
909 F.3d at 136 (citation omitted).
      But, the majority at 2 goes on to claim that “[t]his bedrock principle
dooms this case” because of the broad medical controversy surrounding SRS.
This is incorrect. A prisoner’s mere disagreement with his medical treatment
is insufficient to show deliberate indifference when: the prisoner has, in fact,
been evaluated by a medical professional; the medical professional has
prescribed a course of treatment; and the prisoner then disagrees with that
course of treatment. See, e.g., Estelle, 429 U.S. at 107 (prisoner disagreed with


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                                 No. 16-51148

diagnosis and treatment plan by medical professionals); Norton, 122 F.3d at
291–92 & n.1 (prisoner disagreed with medical treatment and asserted prison
should have tried alternative methods of treatment or different diagnostic
measures, but medical records showed prison officials followed medical
treatment prescribed by doctors and afforded prisoner extensive medical care);
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (prisoner disagreed
with revocation of his “diet card” after medical personnel determined the
newly-built ramps in the dining hall made the diet card unnecessary).
      Gibson, on the other hand, has been treated for SRS in the form of
hormone therapy. Gibson does not deny that. Gibson, however, avers the
hormone therapy is not adequate and SRS may be medically necessary to treat
Gibson’s gender dysphoria, and requests an evaluation for SRS. Ordinarily,
the majority would be correct in stating this would not be enough to show
deliberate indifference. But, the difference in this case is that a medical
professional ordered Gibson be evaluated for SRS. This evaluation has never
happened because of the prison’s ban on SRS, not because of any treatment
plan by a medical professional. See Maj. Opn. at 5.
      I am not taking a position on whether Gibson’s claim constitutes
deliberate indifference. But, the Director’s refusal to have Gibson evaluated
for SRS, contrary to a medical professional’s order and based on a blanket ban,
could constitute deliberate indifference; and, Gibson should, as a matter of due
process, be allowed to conduct discovery and build a record on this claim,
including being evaluated by a medical professional to determine the medical
necessity of SRS in Gibson’s case.
                                       8.
            The majority goes to great lengths at 19–23 discussing the text and
original understanding of the Eighth Amendment’s “cruel and unusual


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                                  No. 16-51148

punishment” standard. Its analysis is unnecessary; the standard has been long
established. In Estelle, the Supreme Court held “that deliberate indifference
to serious medial needs of prisoners constitutes the ‘unnecessary and wanton
infliction of pain’ proscribed by the Eighth Amendment”. 429 U.S. at 104
(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)); see, e.g., Easter v. Powell,
467 F.3d 459, 463 (5th Cir. 2006) (“A prison official violates the Eighth
Amendment’s prohibition against cruel and unusual punishment when his
conduct demonstrates deliberate indifference to a prisoner’s serious medical
needs, constituting an ‘unnecessary and wanton infliction of pain.’” (citation
omitted)); Barksdale v. King, 699 F.2d 744, 748 (5th Cir. 1983) (“‘[A]cts or
omissions sufficiently harmful to evidence deliberate indifference to serious
medical needs’ of inmates constitute cruel and unusual punishment.”
(alteration in original; second emphasis added) (quoting Ruiz v. Estelle, 679
F.2d 1115, 1149 (5th Cir.), vacated in part by 688 F.2d 266 (5th Cir. 1982) (this
portion of opinion vacated because parties entered into settlement before
original opinion issued without disclosing to court)); Dickson v. Colman, 569
F.2d 1310, 1311 (5th Cir. 1978) (“The Court [in Estelle] held that inadequate
medical care did not constitute cruel and unusual punishment cognizable
under section 1983 unless the mistreatment rose to the level of ‘deliberate
indifference to serious medical needs.’” (quoting Estelle, 429 U.S. at 106)).
      We, therefore, are not at liberty to undertake the text-and-original-
understanding analysis. Instead, we must decide only: whether the prisoner
has a serious medical need (the Director has conceded Gibson does); and, if
there is a serious medical need, whether the prison has been deliberately
indifferent to that need. End of analysis.




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                                     III.
      The inadequate summary-judgment record does not provide any
evidence regarding the medical community’s current opinion on the necessity
of SRS in treating gender dysphoria in general, much less in regard to Gibson;
and we cannot base the medical community’s standards on evidence submitted
in a four-year-old case. Nor can we depart even further from the record and
caselaw to make our own record, ignoring the genuine disputes of material fact
at hand.    This case does not call into question the “text [or] original
understanding” of the Eighth Amendment, see Maj. Opn. at 20; the controlling
medical-deliberate-indifference standard for prisoners is well-established.
Instead, at issue is fundamental fairness—the right to due process. Summary
judgment was improper; and, therefore, I must respectfully dissent.




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