Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 1 of 29

15-15712
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE-LAEL NORSWORTHY,
Plaintiff-Appellee,
v.
JEFFREY BEARD, et al.,
Defendants-Appellants.
On Appeal from the United States District Court
for the Northern District of California
No. C 14-00695 JST (PR)
The Honorable Jon S. Tigar, Judge
DEFENDANTS’ URGENT MOTION UNDER
CIRCUIT RULE 27-3 TO STAY
MANDATORY PRELIMINARY INJUNCTION
KAMALA D. HARRIS
Attorney General of California
JONATHAN L. WOLFF
Senior Assistant Attorney General
THOMAS S. PATTERSON
Supervising Deputy Attorney General
JOSE A. ZELIDON-ZEPEDA
Deputy Attorney General
State Bar No. 227108
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
Telephone: (415) 703-5781
Fax: (415) 703-5843
Email: Jose.ZelidonZepeda@doj.ca.gov
Attorneys for Defendants-Appellees
Beard, Spearman, Coffin, Lozano, Adams,
Newton, Van Leer, and Zamora

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 2 of 29

TABLE OF CONTENTS
Page
Circuit Rule 27-3 Certificate......................................................................... iv
Introduction .................................................................................................... 1
Factual Background ....................................................................................... 2
I.

Prison authorities have treated Ms. Norsworthy’s gender
dysphoria since 1999. .......................................................................... 2

II.

After a full evaluation, CDCR’s psychologist concludes in 2013
that Ms. Norsworthy’s current treatment was appropriate. ................. 4

III.

Defendants’ expert consultant concluded that sex-reassignment
surgery is not medically necessary. ..................................................... 6

Legal Standard ............................................................................................... 9
Argument ....................................................................................................... 9
I.

Defendants have a substantial case on the merits because the
district court ordered unnecessary surgery, based on a
misapplied constitutional standard. ..................................................... 9
A.

Defendants are providing a level of treatment to
Ms. Norsworthy that exceeds constitutional
requirements.................................................................. 10

B.

The district court erroneously substituted the
WPATH standards of care for the Eighth
Amendment standard. ................................................... 13

II.

The district court erroneously ordered immediate surgery
without proof that Ms. Norsworthy urgently requires it. .................. 14

III.

Irreparable injury will result without a stay because the surgery
ordered by the district court is irreversible........................................ 18

IV.

The district court disregarded important security considerations. .... 19

Conclusion .................................................................................................. .20

i

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 3 of 29

TABLE OF AUTHORITIES
Page
CASES
Broughton v. Cutter Labs.
622 F.2d 458 (9th Cir. 1980) ................................................................... 10
Caribbean Marine Serv. Co., Inc. v. Baldrige
844 F.2d 668 (9th Cir. 1988) ............................................................. 14, 16
Direx Israel, Ltd. v. Breakthrough Med. Grp.
952 F.2d 802 (4th Cir. 1991) ................................................................... 16
Estelle v. Gamble
429 U.S. 97 (1976)................................................................................... 10
Forbes v. Edgar
112 F.3d 262 (7th Cir. 1997) ................................................................... 12
Jackson v. Fair
846 F.2d 811 (1st Cir. 1988).................................................................... 12
Kosilek v. Spencer
774 F.3d 63, 86-89 (1st Cir. 2014) (en banc), cert denied
2015 WL 1206262 (May 4, 2015) .................................................... passim
Lair v. Bullock
697 F.3d 1200 (9th Cir. 2012) ....................................................................9
Meriwether v. Faulkner
821 F.2d 408 (7th Cir. 1987) ................................................................... 12
Nken v. Holder
556 U.S. 418 (2009)....................................................................................9
Sanchez v. Vild
891 F.2d 240 (9th Cir. 1989) ................................................................... 11

ii

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 4 of 29

TABLE OF AUTHORITIES
(continued)
Page
Stanley v. Univ. of S. Cal.
13 F.3d 1313 (9th Cir. 1994) ............................................................. 15, 17
Toguchi v. Chung
391 F.3d 1051 (9th Cir. 2004) ................................................................. 10
Univ. of Tex. v. Camenisch
451 U.S. 390 (1981)........................................................................... 15, 18
Wilson v. Seiter
501 U.S. 294 (1991)................................................................................. 10
Winter v. Natural Res. Def. Council, Inc.
555 U.S. 7 (2008)............................................................................... 15, 19
STATUTES
United States Code, Title 18
§ 3626(a)(2) ............................................................................................. 19
CONSTITUTIONAL PROVISIONS
Eighth Amendment ................................................................................ passim
COURT RULES
Federal Rules of Appellate Procedure
Rule 8 ........................................................................................................9
OTHER AUTHORITIES
California Code of Regulations, Title 15
§ 3350-3359.7 .............................................................................................3

iii

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 5 of 29

CIRCUIT RULE 27-3 CERTIFICATE
1. Contact Information for Counsel.
Plaintiff-Appellee Michelle-Lael Norsworthy (aka Jeffrey Norsworthy) is
represented by Herman Hoying, Morgan Lewis & Bockius LLP, 415-442-1000,
hhoying@morganlewis.com. His office address is One Market, Spear Street
Tower, San Francisco, CA 94105.
Defendants-Appellants are represented by Jose A. Zelidon-Zepeda, California
Attorney General’s Office, 415-703-5781, Jose.ZelidonZepeda@doj.ca.gov. His
office address is 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102.
2. Facts establishing the existence and nature of the urgency.
On April 2, 2015, the district court granted Ms. Norsworthy’s motion for a
mandatory preliminary injunction directing Defendant prison officials to provide
Ms. Norsworthy with “sex reassignment surgery as promptly as possible.”
Defendants appealed from that preliminary injunction order. Although the district
court’s order does not set a specific deadline for compliance, Defendants have
contacted the receiver appointed by the court in Plata v. Brown, N.D. Cal. No. C
01-cv-01351 TEH to begin the process of identifying appropriate medical
contractors to perform the surgery and their availability. On April 27, 2015, Ms.
Norsworthy’s counsel advised Defendants that they contacted several physicians
who are “willing and available to perform surgery for Ms. Norsworthy in the
iv

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 6 of 29

coming weeks.” Assuming it is possible to make arrangements for surgery within
that timeframe, then unless the preliminary injunction order is immediately stayed,
irreversible surgery will be performed, irreparably altering the status quo before
Defendants’ case may be heard on appeal, effectively denying them review of the
district court’s extraordinary ruling.
3. When and how counsel for the other parties were notified and whether they
have been served with the motion.
Counsel for Defendants contacted Ms. Norsworthy’s counsel on May 1, 2015
to inform him that Defendants would file a motion to stay on May 4, 2015.
Defendants are also serving this urgent motion on Ms. Norsworthy’s counsel via
the Court’s electronic filing system.
4. Relief sought in the district court first.
On April 10, 2015, before filing this motion, Defendants moved the district
court to stay the operation of the mandatory preliminary injunction pending appeal
and requested a ruling by April 17, 2015. The district court denied that request,
and instead directed Ms. Norsworthy to respond to the stay motion by April 22,
2015. On April 27, 2015, the district court denied the motion, citing the following
reasons: 1) Plaintiff will likely succeed on the merits of her deliberate indifference
claim; 2) the injunction does not deprive Defendants “of the opportunity to present
their arguments concerning constitutionally adequate care for patients with gender
v

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 7 of 29

dysphoria to the Ninth Circuit;” 3) Plaintiff “suffers continuing psychological and
emotional pain as a result of her gender dysphoria” and “she is at risk of significant
worsening of her condition in the event that hormone therapy must again be
modified or discontinued;” and 4) the record is sufficient to support the
preliminary injunction. Order Denying Mot. Stay Order Granting Prelim. Inj.,
ECF 116, at 4, 6-7. Because the district court’s order will likely require surgery
before the merits of the appeal are resolved, and a possibility exists that surgery
may be scheduled within the next several weeks, Defendants have no choice but to
seek this Court’s intervention. All grounds advanced in support of this motion
were submitted to the district court.

vi

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 8 of 29

INTRODUCTION
Defendants respectfully request that this Court stay the district court’s
mandatory preliminary injunction requiring that prison officials provide sexreassignment surgery to Michelle-Lael Norsworthy, aka Jeffrey Norsworthy, a
male-to-female transgender state prisoner. Although the district court rested its
ruling on a purported violation of the Eighth Amendment’s proscription against
cruel and unusual punishment, the record shows that Ms. Norsworthy has received
extensive medical and mental-health treatment for her gender dysphoria for over
15 years, she is specially housed with other transgender inmates, and no treating
physician has ever determined that reassignment surgery is medically necessary.
The district court’s ruling is remarkable for several reasons. It comes less
than a year after the case was filed, on a sparse record and in the compressed
context of a preliminary-injunction motion, without live testimony from any
witness or depositions of any of the medical experts in the case. And the evidence
showed that there was no medical or psychological need for immediate sexreassignment surgery. In short, the court departed from the well-established rule
that Eighth Amendment deliberate-indifference claims cannot rest on differences
of medical opinion about an inmate’s medical treatment, and that a plaintiff in such
a circumstance must demonstrate that the provided treatment was not only
medically unacceptable, but chosen in conscious disregard of excessive risk to her
health.
1

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 9 of 29

Beyond the contested merits of Ms. Norsworthy’s claim, the district court
misapplied the rigorous standard for issuing a mandatory injunction under this
Court’s jurisprudence. The injunction issued by the district court would not
maintain the status quo pending trial on the merits or an appeal. In fact, it would
cause irreparable harm and provide Ms. Norsworthy with all the relief she seeks by
requiring irreversible sex-reassignment surgery without a treating physician’s
determination that the procedure is medically necessary. This the first time any
court has directed prison officials to provide this treatment on the thin record of a
preliminary-injunction proceeding. And although another district court issued a
similar order after extensive trial proceedings, live testimony, and 20 years of legal
proceedings, that decision was reversed by the First Circuit Court of Appeals
sitting en banc.
This case warrants a stay pending appeal, to allow appellate review of the
district court’s order before irreversible surgery is performed on Ms. Norsworthy.
FACTUAL BACKGROUND
I.

PRISON AUTHORITIES HAVE TREATED MS. NORSWORTHY’S GENDER
DYSPHORIA SINCE 1999.
Ms. Norsworthy has been in state prison since 1987. (CD 10, ER 247.) In

1999, prison officials referred her to a psychologist for assessment of issues
relating to her gender identity. (Id. at ER 250.) Per the Diagnostic and Statistical
Manual IV (DSM-IV), Ms. Norsworthy was diagnosed with gender identity
disorder (the DSM-V now refers to this condition as gender dysphoria). (Id.)
2

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 10 of 29

Prison doctors recommended therapy and medication, which Ms. Norsworthy
sought and received. (CD 76, ER 117.)
Ms. Norsworthy has received hormone therapy for her gender dysphoria since
2000, and continues to receive this and other forms of treatment, including
counseling and constant medical and psychological monitoring. (CD 94, ER 5-6.)
Her doctors have adjusted her hormone prescriptions so that they safely provide an
appropriate therapeutic benefit. (ER 308 (under seal); CD 74, ER 136.2.) Prison
officials have also afforded Ms. Norsworthy other accommodations, including
access to brassieres and the option to grow her hair long. (CD 76, ER 120.) All of
this has substantially improved Ms. Norsworthy’s condition. (Id. at ER 118-19.)
In her own words, the officials “have facilitated and they have made it possible for
[her] to come to terms with who [she] really [is].” (Id. at ER 124.)
California law provides a process for inmate-patients to access medical care
based on individual medical need. See Cal. Code Regs. tit. 15, § 3350-3359.7.
Inmates begin the process of requesting non-prescribed medical care by submitting
a “Request for Medical Services” form. Although she has followed this procedure
when seeking other treatments before this litigation, Ms. Norsworthy did not
formally request sex-reassignment surgery until after this litigation was filed. (CD
76; ER 130:17-131:5.)
In 2012, Ms. Norsworthy began treatment with Dr. Reese, a prison
psychologist, regarding her ongoing mental-health issues, primarily Post Traumatic
3

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 11 of 29

Stress Disorder. On November 29, 2012, Dr. Reese opined that if Ms. Norsworthy
were not released on parole at an upcoming parole hearing, she should be
scheduled for sex-change surgery. (CD 68, ER 157.) Dr. Reese did not explain his
reasoning for determining that Ms. Norsworthy was an appropriate candidate for
surgery, or state that it was medically necessary as a treatment for her gender
dysphoria. He simply asserted in his cursory progress notes that, in his opinion,
“health, safety, fairness and justice mandate” sex-reassignment surgery for Ms.
Norsworthy’s “continued well-being.” (Id. at ER 139.)
Over the past year, Ms. Norsworthy has been scheduled for several parole
hearings to determine her suitability for release from prison. (CD 76, ER 99-102;
CD 92, ER 51.9-51.10.) On March 25, 2015—one week before the hearing on her
preliminary-injunction motion—Ms. Norsworthy’s counsel postponed her parole
hearing, claiming insufficient time to prepare for the hearing after being appointed
five weeks earlier. (Id. at ER 102.) Her next parole hearing is scheduled for May
20, 2015. (CD 92, ER 51.9.)
II.

AFTER A FULL EVALUATION, CDCR’S PSYCHOLOGIST CONCLUDES IN
2013 THAT MS. NORSWORTHY’S CURRENT TREATMENT WAS
APPROPRIATE.
On September 16, 2012, Ms. Norsworthy submitted an inmate grievance

regarding her gender dysphoria. (CD 76, ER 104-06.) She asserted that she had
not received “adequate and sufficient medical care as it relates to Gender Identity
Disorder.” (Id.) The impetus for this grievance was Ms. Norsworthy’s recent
4

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 12 of 29

knowledge that a federal district court had ordered gender-reassignment surgery
for a Massachusetts inmate, Michelle Kosilek (id. at ER 127:10-129:9) —a ruling
that would later be overturned by the First Circuit, Kosilek v. Spencer, 774 F.3d 63,
86-89 (1st Cir. 2014) (en banc), cert. denied 2015 WL 1206262 (May 4, 2015).
Prison officials reviewed this grievance, as well as Ms. Norsworthy’s medical
treatment file, at multiple levels. (CD 76, ER 108-11; see generally CD 66, ER
164-84.)
As part of this inmate-grievance review, Ms. Norsworthy was referred to a
licensed psychologist, Dr. Raymond Coffin, who performed a “Gender Identity
Disorder Evaluation” on July 1, 2013. (CD 66, ER 164-84.) After reviewing Ms.
Norsworthy’s central file and complete medical record, as well as meeting with
her, Dr. Coffin concluded that she had received appropriate mental-health services.
(Id, ER 180-84.) Dr. Coffin also found that she did not meet the criteria for sexreassignment surgery because she had not been fully evaluated, recommended, and
approved for sex-reassignment surgery by the appropriate medical and
psychological staff. (Id. at ER 180-83.) He also noted that Dr. Reese’s earlier
progress notes did not point to anything supporting his conclusion that Ms.
Norsworthy “has not achieved ‘normal mental health,’ nor evidence supporting his
recommendation that a sex change operation would be the appropriate effective
intervention.” (Id. at ER 181.) Dr. Coffin recommended that Ms. Norsworthy
continue her current hormone therapy and medical treatment, and focus her
5

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 13 of 29

mental-health treatment on improving coping mechanisms and addressing concerns
raised by the parole board in prior eligibility hearings. (Id. at ER 183-84)
No treating physician has concluded that sex-reassignment surgery is
medically necessary for Ms. Norsworthy. (CD 76, ER 125:14-19.)
III. DEFENDANTS’ EXPERT CONSULTANT CONCLUDED THAT SEXREASSIGNMENT SURGERY IS NOT MEDICALLY NECESSARY.
Defendants’ expert consultant, Dr. Stephen Levine, is a licensed psychiatrist
who received his medical degree in 1967 from the Case Western Reserve
University School of Medicine. (ER 288 (under seal).) He has been a member of
the American Psychiatric Association (APA) since 1971, and was previously a
member of the Harry Benjamin International Gender Dysphoria Association, the
precursor to the World Professional Association for Transgender Health. (Id.) In
this capacity, he was a chairman of the Standards of Care Committee in 1997-98.
(Id.) Dr. Levine was retained as the district court’s independent expert in the
seminal case involving transgender inmate care, Kosilek v. Spencer, discussed
below.
Dr. Levine reviewed Dr. Coffin’s report, and concluded that Dr. Coffin is
qualified to opine on the medical necessity of sex-reassignment surgery here. (ER
296 (under seal).) Dr. Levine agreed with the assessment that sex-reassignment
surgery was not medically necessary for Ms. Norsworthy in 2012-13. (Id. at 29899.) This decision “was a conservative and prudent one,” since “sex reassignment
surgery was not at the time a medical necessity,” in part because there are “other
6

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 14 of 29

ways to diminish the inmate’s gender dysphoria short of this irreversible surgery.”
(Id. at 299.) “Rather than viewing sex reassignment surgery as the ultimate
treatment for the pain of gender dysphoria, it should be viewed as a weighty step
with social, psychological, medical, and environmental consequences.” (Id.) As
Dr. Levine concluded, “Prison officials are wise to not simply accept one
clinician’s opinion without articulated compelling reasoning.” (Id.)
Per the district court’s order on the parties’ stipulation, Dr. Levine conducted
an independent mental examination of Ms. Norsworthy. Dr. Levine met with Ms.
Norsworthy for over two hours to discuss her gender dysphoria and reviewed
reports prepared by psychologists for her in connection with her parole hearings in
2009, 2012, and 2014. (Id.) He also reviewed Dr. Reese’s progress notes
pertaining to his meetings with Ms. Norsworthy, and her medical records and
endocrine reports for the past three years. (Id.) Dr. Levine concluded that Ms.
Norsworthy’s situation does not present a case where immediate sex-reassignment
surgery is medically necessary. (ER 308 (under seal).) First, he concluded that it
is not medically necessary to save Ms. Norsworthy’s life—“her life is not in
danger because of the condition of Gender Dysphoria.” (Id.) Second, “sex
reassignment surgery is not medically necessary to prevent a major psychological
or medical decompensation.” (Id.)1 While not being granted immediate sex1

Dr. Levine’s assessment is corroborated by Ms. Norsworthy’s expert
declarant, Dr. Randi Ettner, who determined that Ms. Norsworthy presently
experiences at most “mild symptoms of depression.” (CD 63, ER 216 ¶ 70.)
(continued…)
7

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 15 of 29

reassignment surgery will likely disappoint Ms. Norsworthy, Dr. Levine concluded
that any resulting depression can be addressed through the mental-health services
available in prison. (Id.)
During this litigation, Ms. Norsworthy has cited her liver disease as a basis
for needing surgery because high levels of hormones exacerbate her liver
problems. Dr. Levine concluded that Ms. Norsworthy’s “liver disease [is not] a
reason to perform sex reassignment surgery” because any deterioration of her liver
function can and has been reversed and managed by adjusting her hormone dosage.
(Id.) This point is not disputed. Lastly, although surgery “would diminish her
gender dysphoria,” Ms. Norsworthy has lived with this distress for 15 years, and
the distress “does not constitute a necessity for immediate sex reassignment
surgery.” (ER 309 (under seal).)
Dr. Levine noted that in medicine, a “medical necessity” for immediate
surgery means that, absent surgical intervention, “a serious worsening of the
patient’s physiological state is inevitable.” (Id. at 312.) By contrast, he explained,
there generally is no immediacy to sex-reassignment surgery. (Id.) “It is not a
response to an acute situation. Patients wait until they can gather the funds for the
procedure, have [a] post operative support system in place and have mastered the
(…continued)
While Dr. Ettner opines that gender dysphoria can lead to emotional
decompensation and “externalizing behaviors such as suicide or surgical selftreatment,” she does not describe any such concerns specific to Ms. Norsworthy
herself. (Id. at ER 217 ¶ 75.)
8

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 16 of 29

expected pre-surgical second thoughts.” (Id.) Although the district court’s
scheduling order provided Ms. Norsworthy a chance to submit a rebuttal report,
she did not rebut Dr. Levine’s conclusions. (CD 48, ER 46.)
LEGAL STANDARD
Stays pending appeal are governed by Federal Rule of Appellate Procedure 8.
In ruling on stay motions, this Court considers four factors: (1) whether the movant
is likely to succeed on the merits; (2) whether the movant will be irreparably
injured absent a stay; (3) whether a stay will substantially injure the other parties in
the proceeding; and (4) where the public interest lies. Nken v. Holder, 556 U.S.
418, 433-34 (2009). At a minimum, the party seeking a stay must show a
“substantial case for relief on the merits,” but is not required to show that “it is
more likely than not that [the movant] will win on the merits.” Lair v. Bullock, 697
F.3d 1200, 1204 (9th Cir. 2012). Granting a stay is within the Court’s discretion,
to be exercised “dependent upon the circumstances of the particular case.” Nken v.
Holder, 556 U.S. at 433 (quoting Virginian Ry. Co. v. United States, 272 U.S. 658,
672–73 (1926)).
ARGUMENT
I.

DEFENDANTS HAVE A SUBSTANTIAL CASE ON THE MERITS BECAUSE
THE DISTRICT COURT ORDERED UNNECESSARY SURGERY, BASED ON A
MISAPPLIED CONSTITUTIONAL STANDARD.
The district court itself conceded that this “appeal raises a ‘serious legal

question’ that satisfies the formulation of the likelihood of success prong of the
9

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 17 of 29

stay analysis.” (Order Denying Mot. Stay Order Granting Prelim. Inj., ECF 116, at
3.) Indeed, there is a substantial issue on appeal regarding whether the district
court misapplied the Eighth Amendment’s deliberate-indifference standard, relying
instead on its interpretation of the World Professional Association for Transgender
Health’s (WPATH) Standards of Care.2 This legal error presents a substantial
issue on appeal.
A.

Defendants Are Providing a Level of Treatment to Ms.
Norsworthy That Exceeds Constitutional Requirements.

Under the Eighth Amendment’s deliberate-indifference standard, an inmate
must show “acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).
“[O]nly those deprivations denying the minimal civilized measure of life’s
necessities are sufficiently grave to form the basis of an Eighth Amendment
violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quotation marks and
citation omitted). And the alleged indifference “must be substantial.” Broughton v.
Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980). A difference of medical opinion
between physicians does not establish deliberate indifference. Toguchi v. Chung,

2

The WPATH Standards of Care are a set of recommended guidelines to
medical professionals for the treatment of individuals with gender dysphoria.
Importantly, the Standards of Care “themselves admit of significant flexibility in
their interpretation and application.” Kosilek, 774 F.3d at 87; see id. at 88-89 &
n.10 (holding that the district court erred in finding that the failure to “follow” the
Standards of Care amounted to constitutionally deficient treatment).
10

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 18 of 29

391 F.3d 1051, 1057 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.
1989).
Here, the record shows that Defendants have provided Ms. Norsworthy with
appropriate and continuous treatment for gender dysphoria for the past 15 years,
including referral to a psychologist for transsexual assessment, consultation with
various endocrinologists, mental-health treatment and counseling, and hormone
therapy. This treatment has helped Ms. Norsworthy successfully consolidate her
gender identity. (CD 10, ER 251 ¶ 20; CD 76, ER 118:15-119:3, 124:4-5.)
Moreover, her mental distress has been alleviated, and her own experts find that
she presently experiences at most “mild” depression and anxiety. (CD 63, ER 216
¶¶ 69-70.) This 15-year treatment history in no way evinces indifference—much
less deliberate indifference—to Ms. Norsworthy’s medical and psychological
needs.
In fact, other courts have found similar care to be constitutional. For
example, in the only other case where a district court ordered sex-reassignment
surgery, the First Circuit Court of Appeals reversed the ruling that prison officials
were deliberately indifferent to the inmate’s gender dysphoria by failing to provide
such surgery, given that they provided “such alleviative measures as
psychotherapy, hormones, electrolysis, and the provision of female garb and
accessories.” Kosilek v. Spencer, 774 F.3d 63, 86-89 (1st Cir. 2014) (en banc),
cert. denied 2015 WL 1206262 (May 4, 2015). While a complete denial of
11

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 19 of 29

treatment to a transgender inmate might violate the Eighth Amendment, “[i]t is
important to emphasize . . . that [the plaintiff] does not have a right to any
particular type of treatment.” Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir.
1987).
The core of Ms. Norsworthy’s complaint is that Defendants have not provided
the particular treatment she wants—sex-reassignment surgery and unspecified
“additional treatment.” But the Constitution “does not guarantee to a prisoner the
treatment of his choice.” Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). The
Eighth Amendment requires that an inmate be afforded “reasonable measures to
meet a substantial risk of serious harm to her,” not that she be given the specific
care she demands. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). The
“essential test is one of medical necessity and not one simply of desirability.” Id.
(emphasis added; citation omitted); see also Kosilek, 774 F.3d at 82 (noting that
the deliberate indifference standard “does not impose upon prison administrators a
duty to provide care that is ideal, or of the prisoner’s choosing”). This standard is
easily met in this case. In the sex-reassignment-surgery context, the federal court
that most recently confronted this issue found this principle determinative: “The
law is clear that where two alternative courses of medical treatment exist, and both
alleviate negative effects within the boundaries of modern medicine, it is not the
place of our court to ‘second guess medical judgments’. . . .” Kosilek, 774 F.3d at
90.
12

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 20 of 29

B.

The District Court Erroneously Substituted the WPATH
Standards of Care for the Eighth Amendment Standard.

The district court did not apply Eighth Amendment jurisprudence and instead
relied on the WPATH Standards of Care. (CD 94, ER 26-28.) Although
Defendants’ expert psychiatrist, Dr. Levine, and CDCR psychologist Dr. Coffin,
determined that surgery was not medically necessary for Ms. Norsworthy, the
district court concluded that “these opinions are inconsistent with the Standards of
Care . . . and convincingly refuted by Plaintiff’s experts.” (Id. at ER 34.) But the
correct legal standard was whether in providing the treatment that Ms. Norsworthy
received—including transgender evaluation, mental-health treatment and hormone
therapy—Defendants were deliberately indifferent to a substantial risk of harm to
the patient. As the First Circuit explained in Kosilek, “it’s the particular risk of
harm faced by a prisoner due to the challenged deprivation of care, rather than the
severity of the prisoner’s underlying medical condition, considered in the abstract,
that is relevant for Eighth Amendment purposes.” 774 F.3d at 89 (citation
omitted). In other words, the key question is whether Ms. Norsworthy’s prison
doctors were deliberately indifferent to a serious risk of physical or psychological
harm that would result from not receiving surgery.
Here, Ms. Norsworthy did not establish that a serious risk of harm would
result absent surgery. As the record reflects, “sex reassignment surgery is not
medically necessary to prevent a major psychological or medical decompensation”
to Ms. Norsworthy. (ER 308 (under seal).) And there is no indication that Ms.
13

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 21 of 29

Norsworthy will suffer significant mental or physical injury without immediate
surgery. (Id.) Any psychological effects resulting from her disappointment can be
addressed through the prison’s mental-health system, which has provided her
support throughout her incarceration. See Kosilek, 774 F.3d at 90 (rejecting Eighth
Amendment claim for sex-reassignment surgery in part because the prison officials
“stand[] ready to protect [the inmate-plaintiff] from the potential for self-harm by
employing its standard and accepted methods of treating any prisoner exhibiting
suicidal ideation”).
The issue before the district court was not whether Defendants complied with
a particular course of treatment suggested by the WPATH Standards of Care, but
whether Ms. Norsworthy’s consistent and ongoing treatment constituted deliberate
indifference under the Eighth Amendment. 3
II.

THE DISTRICT COURT ERRONEOUSLY ORDERED IMMEDIATE SURGERY
WITHOUT PROOF THAT MS. NORSWORTHY URGENTLY REQUIRES IT.
As this Court has made clear, “a plaintiff must demonstrate immediate

threatened injury as a prerequisite to preliminary injunctive relief.” Caribbean
Marine Serv. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). Ms.
Norsworthy did not demonstrate through the evidence submitted with her
preliminary injunction motion that she faces immediate threatened injury
3

Although the district court concluded that Defendants’ actions conflicted
with the WPATH Standards of Care, the record actually establishes that while
some of the criteria for sex reassignment surgery under the WPATH guidelines
were met, others were not. (ER 310 (under seal).)
14

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 22 of 29

warranting urgent preliminary relief. “Injunctive relief [is] an extraordinary
remedy that may only be awarded upon a clear showing that the plaintiff is entitled
to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
“The purpose of a preliminary injunction is merely to preserve the relative
positions of the parties until a trial on the merits can be held.” Univ. of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981). “When a mandatory preliminary injunction
is requested, the district court should deny such relief ‘unless the facts and the law
clearly favor the moving party.” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320
(9th Cir. 1994).
Notably, Ms. Norsworthy did not even argue in her papers that she will suffer
immediate irreparable injury absent urgent relief, instead arguing that “sudden
urgency” was not required for interim relief. (CD 79, ER 51.16-51.17.)
Nonetheless, the district court concluded that Ms. Norsworthy’s allegations that
she suffers without SRS sufficed to warrant urgent injunctive relief. (CD 94, ER
36.) In fact, there was no evidence that Ms. Norsworthy’s psychological distress
differs in kind or degree from what she has experienced since she was diagnosed
with gender dysphoria over fifteen years ago. And there is no evidence that her
condition has worsened or will worsen in any appreciable way if this case is
allowed to proceed to a full trial on the merits while these weighty legal and factual
issues are decided.

15

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 23 of 29

The district court dismissed these concerns, concluding that “irreparable
injury does not need to be new to be relevant.” (CD 94, ER 36.) This statement
misses the point. Ms. Norsworthy had to show a clear need for immediate relief
because she has sought immediate relief. Indeed, the only factor that seemed to
show any type of urgency for Ms. Norsworthy’s request was her scheduled parole
hearing, which she postponed and might have led to her release, rendering her
constitutional claims moot. (CD 76, ER 102.)
In Caribbean Marine Services, this Court reversed an injunction prohibiting
state agencies from placing female observers onboard certain commercial tuna
boats, finding that “the district court did not require a showing that the harms
alleged by the owners and crew were imminent or likely.” 844 F.2d at 675.
Instead, the movant’s purported injury was speculative at best. Id. “Preliminary
injunctions should be granted only in cases which ‘clearly demand’ such interim
relief.” Direx Israel, Ltd. v. Breakthrough Med. Grp., 952 F.2d 802, 811 (4th Cir.
1991).
Although Ms. Norsworthy presented conclusory expert testimony that she
needed “immediate” surgery, this testimony lacked a factual basis. First, Dr.
Ettner, a psychologist who cannot authorize surgery, failed to explain why surgery
was urgently required for a condition for which Ms. Norsworthy has received and
is receiving treatment. (CD 63, ER 218 ¶ 79.) Ms. Norsworthy’s other expert, Dr.
Gorton, concluded that urgent surgery was necessary, based on his disputed
16

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 24 of 29

opinion that Ms. Norsworthy’s current hormone therapy is not sufficiently
therapeutic, an opinion that he rendered without examining Ms. Norsworthy. (CD
64, SER 195, 198-99 at ¶¶ 27, 35, & 38.) By contrast, the Board-certified
endocrinologist who has been treating Ms. Norsworthy testified that her
medications provide an appropriate therapeutic benefit. (CD 74, ER 136.1-136.2.)
Dr. Levine, Defendants’ expert witness and a Board-certified medical doctor,
licensed psychiatrist, and national expert in transgender issues, explained that sexreassignment surgery was not medically necessary, much less immediately
medically necessary. Based on an independent mental examination, he concluded
that prison officials’ actions were prudent, and that “sex reassignment surgery”
was not medically necessary in this case. He also explained that sex-reassignment
surgery must be considered in view of its weighty “social, psychological, medical,
and environmental consequences.” (ER 299 (under seal).) Specifically addressing
concerns about Ms. Norsworthy’s liver, Dr. Levine concluded that this issue did
not warrant surgery. And Ms. Norsworthy did not rebut Dr. Levine’s testimony.
In the light most favorable to Ms. Norsworthy, the record regarding medical
necessity is mixed; the record on immediate necessity is not, however, and “the
district court should deny such relief ‘unless the facts and the law clearly favor the
moving party.” Stanley, 13 F.3d at 1320. Given this heavy burden, and the
irreversible nature of the surgery, this Court should stay the mandatory preliminary
injunction to allow appellate review of these sensitive and important issues.
17

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 25 of 29

III. IRREPARABLE INJURY WILL RESULT WITHOUT A STAY BECAUSE THE
SURGERY ORDERED BY THE DISTRICT COURT IS IRREVERSIBLE.
As set forth above, there is no evidence that irreversible treatment is
immediately necessary before this appeal can be heard and the factual record can
be fully developed in a proceeding on remand. On the other hand, the record
demonstrates that the Defendants will be irreparably injured if the district court’s
order stands and surgery goes forward because the case will effectively become
moot, precluding appellate review.
Unless this Court stays the order, Defendants will have to provide “sex
reassignment surgery as promptly as possible.” (CD 94, ER 38.) Although the
district court did not specify a date for surgery, it set a case-management
conference in mid-May, when the parties will presumably report the status of
compliance. (Id.) Given that this appeal will not be fully briefed on the merits
until June 19, Defendants must take necessary steps to comply with the lower
court’s order, and if surgery becomes available before then, provide it. Doing so
could potentially render appellate proceedings—as well as trial proceedings in the
district court—moot.
When the terms of a preliminary injunction are “irrevocably carried out,” the
appellate court cannot undo what has been done, and the question whether the
preliminary injunction was proper becomes moot. Camenisch, 451 U.S. at 398.
Here, if Defendants provide irreversible surgery to Ms. Norsworthy in compliance

18

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 26 of 29

with the order, the issues on appeal will likely be rendered moot. These pressing
factual and legal issues should not escape review.
By contrast, a stay will not appreciably injure Ms. Norsworthy. As explained
above, she has been receiving and will continue to receive extensive medical and
mental-health treatment, which has markedly altered her physical appearance and
improved her condition.
IV. THE DISTRICT COURT DISREGARDED IMPORTANT SECURITY
CONSIDERATIONS.
“[C]ourts of equity should pay particular regard for the public consequences
in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24
(citation omitted). Here, providing sex-reassignment surgery will create novel
issues that impact inmate safety. No correctional system has been judicially
ordered to provide sex-reassignment surgery, necessary security during
hospitalization, and appropriate housing placement afterward. (CD 75, ER 135 ¶
6.) Although Defendants have experience housing an inmate who received sexreassignment surgery in an out-of-state correctional facility before the inmate was
incarcerated in California, those circumstances continue to present serious safety
and administrative concerns—including threats and assaults involving the
transgender inmate and other female inmates, as well as frequent transfers,
"including to administrative segregation, and transfer between the female
institutions." (Id.)

19

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 27 of 29

The district court downplayed these safety concerns (CD 94, ER 36-37),
thereby disregarding the Prison Litigation Reform Act’s mandate that courts “shall
give substantial weight to any adverse impact on public safety or the operation of
the criminal justice system caused by the preliminary relief.” 18 U.S.C. §
3626(a)(2). As the First Circuit held in Kosilek, a federal court should not
substitute its judgment for prison officials’ good-faith balancing of security and
health concerns. Kosilek, 774 F.3d at 92. Here, the district court did not
adequately consider the unrebutted declaration of the Director of Adult Institutions,
describing these serious concerns (CD 75, ER 133-36) and did not offer an
opportunity for live testimony on these issues. This, too, was error.
CONCLUSION
Sex-reassignment surgery is a serious step with significant
consequences, which are even more complicated in a correctional setting. The
district court should not have ordered surgery on a preliminary injunction when it
lacked a complete factual record and there was no need for expedited
consideration. This Court should grant a stay pending consideration of these
important issues of first impression.
///
///
///

20

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 28 of 29

Dated: May 4, 2015

Respectfully submitted,

KAMALA D. HARRIS
Attorney General of California
JONATHAN L. WOLFF
Senior Assistant Attorney General
THOMAS S. PATTERSON
Supervising Deputy Attorney General

/S/ JOSE A. ZELIDON-ZEPEDA
JOSE A. ZELIDON-ZEPEDA
Deputy Attorney General
Attorneys for Defendants-Appellees
Beard, Spearman, Coffin, Lozano, Adams,
Newton, Van Leer, and Zamora
SF2015401239
32066535.doc

21

 Case: 15-15712, 05/04/2015, ID: 9524770, DktEntry: 8, Page 29 of 29

CERTIFICATE OF SERVICE
Case Name:

Michelle-Lael Norsworthy v. J.
Beard, et al.

No.

15-15712

I hereby certify that on May 4, 2015, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
DEFENDANTS’ URGENT MOTION UNDER CIRCUIT RULE 27-3 TO STAY
MANDATORY PRELIMINARY INJUNCTION.
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on May 4, 2015, at Sacramento, California.

C. Look
Declarant
SF2015401239
32066562.doc

/s/ C. Look
Signature