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'Deliberate Indifference'

Transgender inmate losing 'pinch of hope day by day,' while Idaho challenges landmark ruling in Ninth Circuit

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There are, perhaps, a dozen reasons why you may want to look away from this story. To be sure, it is heartbreaking, frustrating and, at times, gruesome, no matter how you feel prison inmates should be treated. But there remains a compelling reason that the case of Adree Edmo v. the Idaho Department of Correction and Corizon requires your attention: Once again, Idaho officials have been told by a federal judge that they ran afoul of the U.S. Constitution when they stigmatized an individual with "deliberate indifference."

"The Rule of Law, which is the bedrock of our legal system, promises that all individuals will be afforded the full protection of our legal system and the rights guaranteed by our Constitution," wrote Chief U.S. District Court Judge B. Lynn Winmill on Dec. 13, 2018. "This is whether the individual seeking that protection is black, white, male, female, gay, straight, or, as in this case, transgender."

"This case" involves 31-year-old Adree Edmo. Given the name "Mason" at birth, Edmo says she viewed herself as a female from the age of 5 or 6, adding, "My brain typically operates female, even though my body hasn't corresponded with my brain." She began living as a woman at the age of 20 and in September 2013, she legally changed her name to Adree, and changed her sex to "female" on her birth certificate, further affirming her gender identity. Indeed, the ruling from U.S. District Court identifies the current prisoner in the custody of the Idaho Department of Correction as "Adree." That said, you won't find the name "Adree Edmo" if you search for her on IDOC's list of inmates. The State still insists on calling on her "Mason."

"I feel I lose a pinch of hope, day by day," Edmo told Boise Weekly.

For the record, in 2012, eastern Idaho prosecutors said Edmo, then in her 20s, had sexual relations with a minor on the Fort Hall Shoshone-Bannock Indian Reservation. Edmo pleaded not guilty but was ultimately convicted of sexual abuse of a child under 16 and sent to the Idaho State Correctional Center. Shortly thereafter, Edmo was diagnosed with gender dysphoria.

Gender Dysphoria

The American Psychiatric Association makes it clear that gender dysphoria is not the same as being gay/lesbian. Instead, the APA says people with gender dysphoria often experience "significant distress and/or problems functioning associated with this conflict between the way they feel and think of themselves and their physical or assigned gender. Some people may cross-dress, some may want to socially transition, others may want to medical transition with sex-change surgery," says the APA.

ADREE EDMO
  • Adree Edmo

"I didn't ask [for] or want to develop gender dysphoria, but it happened, and now I'm faced with needing treatment for it," Edmo said. "I think it's viewed differently than cancer because most people are not familiar with the condition and do not understand that it is a medical condition that can be treated. Prisoners don't ask for or want cancer, but when it happens they're given treatment."

Throughout her incarceration, Edmo has presented herself as feminine. But while she continued to undergo hormone therapy treatment, IDOC still insists that she remain in a male prison. Edmo's hormone therapy has resulted in some breast growth, body fat redistribution and changes in her skin consistency. According to expert testimony in her suit against IDOC, Edmo currently "has the same circulating sex hormones and secondary sex characteristics as a typical adult female." Edmo's feminine presentation has been documented by prison medical providers since 2012, yet time and again, she has received multiple disciplinary offense reports for styling her hair in a feminine manner or wearing makeup. As a result, those repeated DOR's have imperiled any chance of parole for Edmo, whose sentence is scheduled to end in July of 2021.

Meanwhile, Edmo's repeated requests for sexual reassignment surgery (SRS) have been routinely denied by IDOC and Corizon Correctional Healthcare, the health management company that Idaho contracts to manage patient care in its prisons.

Judge Winmill had particular scorn for IDOC and Corizon for not just denying Edmo's requests for SRS, but for having what Winmill called a "de facto policy or practice of refusing this treatment."

"IDOC and Corizon have ignored generally accepted medical standards for the treatment of gender dysphoria," he wrote.

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Newly elected Idaho Gov. Brad Little has doubled down on IDOC and Corizon's "de facto" policy of refusing the treatment.

"The hard-working taxpayers of Idaho should not be forced to pay for a prisoner's gender reassignment surgery when individual insurance plans won't even cover it," said Little.

But that's not true.

No less than Aetna, Amerigroup, Blue Cross Blue Shield and Cigna all provide coverage for gender reassignment surgery. In fact, a third of the nation's Fortune 500 companies now cover transgender care.

"Indeed, it's covered by many insurance companies," said Deborah Ferguson who, along with law partner Craig Durham, defended Edmo in her successful suit against IDOC. "What the governor said is absolutely not correct. Gender reassignment surgery is covered by many companies for this recognized condition and disorder."

But IDOC Director Josh Tewalt countered, "Prison is not where you go to get unwarranted surgery."

That comment, particularly from the man in charge of Idaho prisons, particularly bothered Durham.

"Look, nobody goes to prison to get medical care," said Durham. "This is an instance of a person who has a serious medical condition and needs treatment. That's truly what this case is is all about."

The chairman of the Board of Correction, Dr. David McCluskey, rebutted, "If Ms. Edmo had a broken arm, we'd all agree it should be treated. But disagreement among medical professionals in this case does not constitute cruel and unusual punishment."

Durham responded, "Well, if Dr. McCluskey wants to use a 'broken arm' as an analogy, well then, guess what? You need to look at this just like you need to treat a 'broken arm.' Fix it."

Indeed, Judge Winmill wrote that IDOC and Corizon's "indifference to a prisoner's serious medical needs constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution."

"There Was Tremendous Blood Loss"

When IDOC and Corizon repeatedly denied Edmo's requests for SRS in 2014, 2015 and 2016, her stress escalated. So much so, in fact, that in September 2015, she attempted self-castration using a disposable razor blade. She was unsuccessful. And in December 2016, after studying for weeks on the anatomy of the scrotum, Edmo again attempted self-castration, this time scrubbing her hands with soap and boiling a razor blade. She was able to cut open the testicle sac and remove a testicle.

"There was tremendous blood loss," Ferguson recalled. "She had to be to be taken to the hospital."

Ultimately, Boise-based law firm Ferguson Durham PLLC, California-based Hadsell Stormer & Renick LLP and the National Center for Lesbian Rights took up Edmo's fight, landing the case of Adree Edmo v. Idaho Department of Correction and Corizon in U.S. District Court in Boise in October 2018.

"In advance of the trial, Judge Winmill said that Adree could appear in street clothes, but on the day of the trial... well, IDOC did something..." Ferguson paused. "IDOC transported her over from prison at the last minute in a jumpsuit and shackles. They were an hour late and they arrived at the very last minute, hoping to have the impact of making the judge wait for her. I had about one minute to rush into the other room, get her into some street clothes. It's pretty amazing that she maintained her composure and didn't lose her cool."

The next three days were not among the State of Idaho's finest hours. Winmill lambasted IDOC and Corizon's paid experts as not having "any direct experience with patients receiving gender confirmation surgery" and "very little experience" treating patients with gender dysphoria.

For the record, there are currently 30 prisoners with gender dysphoria in IDOC custody. Before Edmo's trial, no individual in IDOC custody had ever been recommended for, or received, gender reassignment surgery.

Winmill said IDOC and Corizon had "insufficiently trained their staff" to deliberately discourage any referrals for surgery." He concluded IDOC and Crozion had been "deliberately indifferent to Ms. Edmo's medical needs by failing to provide her with available treatment that is generally accepted in the field as safe and effective, despite her actual harm and ongoing risk of future harm include self-castration attempts, cutting and suicidal ideation."

Edmo and her attorneys were elated at Winmill's ruling, which ordered IDOC and Corizon to facilitate Edmo's gender reassignment surgery within six months. But a few weeks after the ruling, Brad Little was sworn in as Idaho's newest governor, and he announced that Idaho would appeal Winmill's ruling to the Ninth Circuit Court of Appeals.

"I'm doing the best I possibly can while in prison," Edmo told BW. "It's difficult, but I am still pushing forward."

It doesn't take a legal scholar to know that Idaho has had a lousy track record in the Ninth Circuit, which has appellate jurisdiction over courts in Idaho, Alaska, Arizona, California, Hawaii, Montana, Nevada, Oregon and Washington. In fact, Deborah Ferguson and Craig Durham have successfully beaten Idaho before in the Ninth Circuit in the 2014 landmark ruling that affirmed same sex marriage in the Gem State. Ferguson said Idaho may want to be careful what it asks for in the Ninth Circuit.

"If the Ninth Circuit affirms Judge Winmill's initial decision, then you've got nine states with this precedent," said Ferguson. "Plus, so far, the defense by IDOC and Corizon has already surpassed hundreds of thousands of dollars. It seems like a horrible waste of taxpayer money, something the governor seems to be complaining about."

In the meantime, Adree Edmo awaits her fate, albeit in a men's prison.

"As a prisoner, I'm totally dependent on civil society for basic needs like medical care. I need treatment," she told BW.

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