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Lamb v. Norwood

United States Court of Appeals, Tenth Circuit

August 15, 2018

MICHELLE RENEE LAMB, a/k/a Thomas Lamb, Plaintiff - Appellant,
v.
JOE NORWOOD; JOHNNIE GODDARD; PAUL CORBIER; KANSAS DEPARTMENT OF CORRECTIONS; CORIZON HEALTH SERVICES, Defendants - Appellees.

          Appeal from the United States District Court for the District of Kansas D.C. No. 5:16-CV-03077-EFM-DJW (D. Kan.)

         Submitted on the briefs [*]

          Michelle Renee Lamb a/k/a Thomas Lamb, pro se.

          Dwight 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.

          Before BACHARACH, McKAY, and BALDOCK, Circuit Judges.

         ORDER

         Plaintiff-Appellant 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 order.

         The 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 denied.

         The 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.

         Michelle 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 dysphoria.[1]

         The 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.

         1. What is gender dysphoria and how is it treated?

         To 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."[2] 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 ...

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