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Campbell v. Kallas

United States Court of Appeals, Seventh Circuit

August 19, 2019

Mark A. Campbell, Plaintiff-Appellee,
Kevin Kallas, et al., Defendants-Appellants.

          Argued October 26, 2018

          Appeal from the United States District Court for the Western District of Wisconsin. No. 16-cv-261-jdp - James D. Peterson, Chief Judge.

          Before WOOD, Chief Judge, and Sykes and Scudder, Circuit Judges.


         Mark Campbell, also known as Nicole Rose Campbell, is an inmate in the Wisconsin prison system. In 2007 Campbell pleaded guilty to first-degree sexual assault of a child and is now serving a 34-year sentence. Campbell has been diagnosed with gender dysphoria; she is biologically male but identifies as female. Department of Corrections ("DOC") medical staff are treating Campbell's condition with cross-gender hormone therapy.

         Beginning in September 2013, Campbell repeatedly requested a more radical intervention: sex-reassignment surgery. National standards of care recommend that patients undertake one year of "real life" experience as a person of their self-identified gender before resorting to irreversible surgical options. That preparatory period presents challenges for officials charged with the administration of sex-segregated prisons. DOC officials consulted an outside expert, who determined that Campbell was a potential surgical candidate. But the expert's cautious conclusion was conditioned on DOC officials developing a safe, workable solution to the real-life-experience dilemma. Citing these concerns and DOC policy, officials denied Campbell's request.

         After filing grievances and exhausting administrative appeals, Campbell sued Dr. Kevin Kallas, the DOC Mental Health Director, and a host of other prison officials under 42 U.S.C. § 1983. She alleged that the defendants were deliberately indifferent to her serious medical needs in violation of the Eighth Amendment and sought damages and injunctive relief. Both sides moved for summary judgment, and the defendants also claimed qualified immunity. The district court denied the motions. As relevant here, the judge rejected the claim of qualified immunity, concluding that caselaw clearly established a constitutional right to effective medical treatment.

         We reverse. Qualified immunity shields a public official from suit for damages unless caselaw clearly puts him on notice that his action is unconstitutional. The judge's approach to the qualified-immunity question was far too general. The Eighth Amendment requires prison healthcare professionals to exercise medical judgment when making decisions about an inmate's treatment. And they cannot completely deny the care of a serious medical condition. But cases recognizing those broad principles could not have warned these defendants that treating an inmate's gender dysphoria with hormone therapy and deferring consideration of sex-reassignment surgery violates the Constitution. Moreover, it's doubtful that a prisoner can prove a case of deliberate indifference when, as here, prison officials followed accepted medical standards. The defendants are immune from damages liability.

         I. Background

         A. Standards of Care

         Campbell suffers from gender dysphoria, an acute form of mental distress stemming from strong feelings of incongruity between one's anatomy and one's gender identity. See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders 451 (5th ed. 2013). To "provide clinical guidance for health professionals," the World Professional Association for Transgender Health established national standards of care for transsexual, transgender, and gender-nonconforming individuals. WORLD PROFESSIONAL ASS'N FOR Transgender Health, Standards of Care for the Health of Transsexual, Transgender, & Gender Nonconforming People 1 (7th version 2011) ("the Standards"), Standards%20of%20Care_V7%20Full%20Book_English.pdf. The parties cite the Standards extensively and treat them as authoritative. "While flexible/' these clinical guidelines "offer standards for promoting optimal health care." Id. at 2.

         The Standards outline a range of treatment options for individuals with gender dysphoria. Patients may be encouraged to alter their "gender expression" by living continuously or part-time in another gender role. Id. at 9. Hormone therapy which can "feminize or masculinize the body" is appropriate for some patients. Id. The Standards provide four criteria for hormone-therapy eligibility:

1. Persistent, well-documented gender dysphoria;
2. Capacity to make a fully informed decision and to consent for treatment;
3.Age of majority in a given country ...; [and]
4. If significant medical or mental health concerns are present, they must be reasonably well-controlled.

Id. at 34. Psychotherapy is not an "absolute" prerequisite for hormone therapy or surgery but is "highly recommended." Id. at 28.

         Surgery is "the last and the most considered step in the treatment process," and not all gender-dysphoric patients are surgical candidates. Id. at 54. The Standards outline several surgical approaches. Id. at 57-61. Some modify secondary sex characteristics via breast reduction or augmentation, and facial and voice-feminization surgery. Id. at 57. The Standards don't require hormonal interventions or extensive preparatory periods for these surgeries, though 12 months of feminizing hormone therapy is recommended for male-to-female patients. Id. at 58-59. Surgeries altering a patient's reproductive organs carry stricter eligibility criteria. Id. at 59-61. A patient meets the criteria for a hysterectomy and ovariectomy (removal of the uterus and ovaries) or an orchiectomy (removal of the testicles) if he or she satisfies the hormone-therapy criteria and has completed a year of continuous hormone therapy. Id. at 60.

         For operations commonly referred to as sex-reassignment surgeries-surgeries that replace an individual's existing genitals with approximations of those of the opposite sex- the Standards add yet another requirement. In addition to a year of hormone therapy the Standards require patients to have "12 continuous months of living in a gender role that is congruent with their gender identity." Id. The World Professional Association for Transgender Health justifies this requirement by citing an "expert clinical consensus that this experience provides ample opportunity for patients to experience and socially adjust in their desired gender role[] before undergoing irreversible surgery." Id. at 60. The one-year preparatory period helps patients adjust to the "profound personal and social consequences" of adjusting one's gender expression. Id. at 61. The Standards don't include an exception to the real-life-experience requirement for patients living in institutional settings. Id. at 67-68. The World Professional Association for Transgender Health explicitly states that the Standards can be utilized effectively under those conditions. Id.

         B. DOC Policies and Procedures

         The DOC established policies to address the unique challenges posed by the incarceration of transgender inmates. The Gender Dysphoria Committee (the "Committee") is charged with handling medical treatment and accommodation requests by an inmate with gender dysphoria. Several of the defendants are current and former committee members; Dr. Kallas serves as DOC Mental Health Director and chairs the Committee.

         DOC Policy 500.70.27 lays out the protocol for trans-gender inmates. Wisconsin Department of Corrections, Division of Adult Institutions, Policy and Procedures, Policy No. 500.70.27 (Nov. 11, 2017) at Separate Appendix of Defendants-Appellants at 64-73, Campbell v. Kallas, No. 18-2075 (7th Cir. July 18, 2018), ECF No. 17. An inmate may self-identify as transgender at any point during his incarceration, making him eligible for several accommodations. Id. at 66. The inmate may order "clothing, shoes, undergarments[, ] and prescription eyeglass frames ... that correspond to the desired gender." Id. at 73. Undergarments matching the inmate's gender identity are also allowed, provided "they are not visible to others when leaving the cell" or worn in a "disruptive or provocative" manner. Id. Makeup is unavailable for an inmate in male facilities, but an inmate may purchase feminine shower products and request a hair-removal product. Id.

         In addition to these lifestyle accommodations, the DOC offers several forms of medical treatment. Once an inmate self-identifies as transgender, prison medical staff or an outside consultant may assign a clinical diagnosis of gender dysphoria. Id. at 66. A clinically diagnosed inmate is entitled to appropriate psychological treatment, psychiatric care, hormone therapy (under certain circumstances), and "[o]ther treatment determined to be medically necessary by the Transgender Committee." Id. at 68.

         Requests for new hormonal or surgical interventions are processed by a hierarchy of prison medical officials who review the inmate's condition. Id. at 69-70. When an inmate first requests hormone therapy or surgery, the Supervisor of the Psychological Services Unit is notified. Id. at 69. The Supervisor assigns a staff member to determine whether to diagnose the patient with gender dysphoria and whether a "more specialized evaluation" by a gender-dysphoria consultant is needed. Id. The Psychological Services Unit report is forwarded to the Mental Health Director, who may call in a gender-dysphoria consultant for further evaluation. Id. If the consultant recommends hormone therapy or surgery, the Director reviews the report. The consultant's recommendations are not binding and can either be approved or denied by the Director in consultation with the Committee. Id. at 69-70. Finally, the policy notes: "Due to the limitations inherent in being incarcerated, a real-life experience for the purpose of gender-reassignment therapy is not possible for inmates who reside within a correctional facility. However, treatment and accommodations may be provided to lessen gender dysphoria." Id. at 70.

         C. Campbell's Course of Treatment

         Campbell is currently incarcerated at the Racine Correctional Institution. Prior to her incarceration, she self-administered hormone treatments. Although she considered sex-reassignment surgery, she never discussed it with a physician.

         Campbell raised gender-identity concerns with a prison psychologist in January 2012. The Committee hired Cynthia Osborne to evaluate Campbell. Osborne is a gender-dysphoria expert and has consulted on numerous cases for prison systems around the country. In August 2012 Osborne diagnosed Campbell with gender dysphoria but stopped well short of recommending sex-reassignment surgery.

         Osborne explained that the 12-month real-life experience required by the World Professional Association for Transgender Health could not be fully implemented in the prison setting. She noted that Campbell had "never had the opportunity to meaningfully consolidate [her] preferred female identity into a successful life" and would "not be able to do such consolidation in the restrictive environment of incarceration." Given that challenge, as well as Campbell's "comorbid psychiatric conditions and vulnerabilities/' Osborne determined that "only reversible interventions should be considered" and that "[s]ex[-]reassignment surgery [was] wholly contraindicated." Osborne recommended hormone therapy counseling, and "that the DOC consider what feminizing allowances might be made/' even though "[s]uch accommodations are rarely if ever medically necessary."

         The Committee adopted Osborne's recommendations, initiating hormone therapy and permitting Campbell to don feminine clothing and glasses and use feminine shower products. On September 5, 2013, Campbell submitted a request for sex-reassignment surgery. Dr. Kallas, following the Committee's recommendation, denied Campbell's request, citing Osborne's finding that "surgical interventions were contraindicated." Dr. Kallas explained that DOC "policy does not prohibit surgical intervention," but he and the Committee recognized "the inherent difficulty for any inmate to meet eligibility requirements for gender reassign- merit surgery while in prison -specifically, the need for a valid real-life experience in the desired gender role."

         Campbell continued to file surgery requests, and DOC officials again consulted with Osborne. She reviewed Campbell's file, talked with the treating psychologist, and met with Campbell face to face. On August 4, 2014, Osborne submitted her second report. Echoing themes from her first report, Osborne described the Standards as imperfect guides for treating gender dysphoria in prison. On the possibility of surgery, Osborne explained that given "the persistent presence of severe anatomic dysphoria[, ] inmate Campbell may be a candidate for" sex reassignment. The length of Campbell's sentence and her track record of cooperating with medical personnel bolstered the case for surgery.

         Turning to the "real life experience" requirement, Osborne explained that "[m]any gender dysphoria experts believe that the challenges of completing a valid real-life experience ... in the context of incarceration present a formidable obstacle to" sex-reassignment surgery. She noted that "there is no empirical evidence on which the DOC can rely in its efforts to predict outcomes, prevent harm[, ] and maintain safety" in developing a real-life experience for Campbell. Thus, the DOC's "[r]eluctance to embark on a social experiment" was "understandable and prudent." For inmates with lengthy sentences, however, Osborne questioned "whether the [real-life experience] as traditionally understood" should be required. Modifying or eliminating the requirement would carry risks for Campbell, but the DOC should undertake "an examination of the [real-life experience] concept in order to determine whether there is a workable approach for inmates." Still, given these challeng- es, she concluded that "conservative approaches ... for incarcerated individuals are wholly warranted."

         Summarizing her conclusions, Osborne explained that Campbell had not undergone a valid real-life experience while incarcerated, despite Campbell's claim to the contrary. Departing from the requirement "may be justifiable in rare circumstances in correctional settings"-including Campbell's case. Osborne stated that Campbell could be a surgical candidate but conditioned her assessment on the ...

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