- The Washington Times - Tuesday, April 2, 2019

A transgender prisoner says she’ll pursue her fight to have Texas pay for gender reassignment surgery after suffering a loss at the 5th U.S. Circuit Court of Appeals.

A lawyer for Vanessa Lynn Gibson, born as Scott Lynn Gibson, says she’ll ask the full 5th Circuit to rehear the case after a three-judge panel upheld the state’s policy that denies funding for the reassignment surgery.

The state will cover hormone and mental health care treatment.

In a 2-1 ruling published Friday, the court said refusing to facilitate the surgery does not constitute cruel and unusual punishment as defined by the Eighth Amendment.

“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,” wrote Judge James C. Ho, a Trump-appointee, in the 23-page opinion.

Judge Rhesa Hawkins Barksdale, appointed by President George H.W. Bush, dissented, saying there were procedural problems with the case as it should have been sent back to a lower court for further proceedings.

“We are disappointed in the majority’s ruling against Vanessa, but we are heartened by the dissent’s analysis to the contrary,” said Stephen Braga, an attorney aiding Gibson, who represented herself pro-se.

They plan to petition the full 5th Circuit to rehear the case. Mr. Braga said they are also considering appealing directly to the Supreme Court.

Attorney General Ken Paxton said the ruling was a victory for Texas taxpayers.

“Americans strongly believe in the legal and moral obligation to assure our criminal justice system imposes appropriate and humane penalties, but the 5th Circuit’s faithful analysis of the Constitution makes clear that obligation does not give convicted criminals a constitutional right to a taxpayer-funded gender reassignment surgery,” Mr. Paxton said.

Like the 5th Circuit, the 1st U.S. Circuit Court of Appeals has also ruled denying an inmate sex reassignment surgery doesn’t violate the Constitution.

Gibson is serving more than two decades in prison for murder, assault and aggravated robbery.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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