from the United States District Court for the District of
Kansas D.C. No. 5:16-CV-03077-EFM-DJW (D. Kan.)
on the briefs [*]
Michelle Renee Lamb a/k/a Thomas Lamb, pro se.
R. Carswell, Assistant Solicitor General, Bryan C. Clark,
Assistant Solicitor General, and Rachael D. Longhofer,
Assistant Attorney General, Office of Attorney General for
the State of Kansas, Topeka, Kansas, for Defendants-Appellees
Joe Norwood, Johnnie Goddard, and the Kansas Department of
Corrections; Casey L. Walker and Trevin Erik Wray, Simpson,
Logback, Lynch, Norris, P.A., Overland Park, Kansas, for
Defendant-Appellee Paul Corbier; and Jeffrey T. Donoho and
Roger W. Slead, Horn Aylward & Bandy, LLC, Kansas City,
Missouri, for Defendant-Appellee Corizon Health Services.
BACHARACH, McKAY, and BALDOCK, Circuit Judges.
Michelle Renee Lamb has filed a petition for rehearing en
banc. The panel has sua sponte decided to grant panel
rehearing in part and only to the limited extent reflected in
the amendments made to the attached revised opinion. Any
request for panel rehearing is otherwise denied. The clerk is
directed to file the new opinion effective the date of this
petition for rehearing en banc was also circulated to all the
members of the court in regular active service who are not
otherwise disqualified. See Fed. R. App. P. 46(a).
As no judge on the original panel or the en banc court called
for a poll, the request for en banc reconsideration is
American Civil Liberties Union (ACLU), The ACLU of Kansas,
Lambda Legal Defense and Education Fund, Inc., The National
Center for Transgender Equality, and Transcend Legal also
filed a motion for leave to file an amicus brief The motion
for leave to file an amicus brief is granted. The clerk is
directed to file the proposed brief submitted with the motion
effective the date of the original submission.
BACHARACH, CIRCUIT JUDGE.
Renee Lamb was born a male. From a young age, however,
Michelle displayed feminine characteristics and identified as
a female. Michelle is now in state prison and is experiencing
gender dysphoria. For this condition, she is receiving
medical treatment, though she claims that the treatment is so
poor that it violates the Eighth Amendment. For this claim,
Michelle must show that prison officials have acted with
deliberate indifference to her gender
undisputed evidence shows that Michelle is receiving hormone
treatment, testosterone-blocking medication, and weekly
counseling sessions. A 1986 precedent, Supre v.
Ricketts, 752 F.2d 958 (10th Cir. 1986), suggests that
these forms of treatment would preclude liability for an
Eighth Amendment violation. Based partly on this precedent,
the district court granted summary judgment to the prison
officials. Michelle challenges the grant of summary judgment,
and we affirm.
What is gender dysphoria and how is it treated?
address Michelle's appeal, we must consider what gender
dysphoria is and consider the available forms of treatment.
The term "[g]ender dysphoria describes the psychological
distress caused by identifying with the sex opposite to the
one assigned at birth." Treatment forms currently include
• [c]hanges in gender expression and role (which may
involve living part time or full time in another gender role,
consistent with one's gender identity);
• [h]ormone therapy to feminize or masculinize the body;
• [s]urgery to change primary and/or secondary sex
characteristics (e.g., breasts/chest, external and/or
internal genitalia, facial features, body contouring);
• [p]sychotherapy (individual, family, or group) for
purposes such as exploring gender identity role, and
expression; addressing the negative impact of gender
dysphoria and stigma on mental health; alleviating
internalized transphobia; enhancing social and ...