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Trump Judge Scudder Casts Deciding Vote Against Transgender Woman Denied Transition-Related Surgery: Confirmed Judges, Confirmed Fears

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Trump Judge Scudder Casts Deciding Vote Against Transgender Woman Denied Transition-Related Surgery: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

Trump judge Michael Scudder cast the deciding vote in a Seventh Circuit panel opinion dismissing a transgender woman’s lawsuit against prison officials for depriving her of transition-related surgery. The Eighth Amendment prohibits deliberate indifference to an incarcerated person’s serious medical condition. However, Scudder agreed with the majority in dismissing Nicole Rose Campbell’s lawsuit against the prison officials who refused to allow the procedure, on the basis of qualified immunity. The August 2019 case was Campbell v. Kallas.

Qualified immunity is a legal concept created and expanded by the Supreme Court by which government officials accused of violating the Constitution generally can’t be sued for damages in their personal capacity unless what they did was indisputably unconstitutional under binding precedent. In making this pretrial decision, a judge accepts the plaintiff’s version of the facts. In effect, the doctrine has allowed courts to cite relatively small differences between the relevant precedents and the case before them as justification for immunizing a government official from a lawsuit.

In Campbell’s case, although Judges Scudder and Diane Sykes (who authored the opinion) agreed that gender dysphoria is a serious medical condition, they concluded that no precedent had clearly established a right to gender dysphoria treatment beyond hormone therapy. But as Judge Diane Wood pointed out in her dissent, the cases cited by the majority were not relevant:

The question whether a particular course of treatment for an objectively serious medical condition amounts to deliberate indifference can be answered only with evidence from the medical community. For that reason, courts cannot look to outdated factual evidence from past cases to determine whether some course of treatment is within acceptable boundaries. If the medical community uniformly decides that a recent advance is the only proper course of treatment, a defendant cannot rely on a case from before that advance occurred to say that her outdated treatment choice was reasonable.

As Judge Wood noted, Campbell’s expert witnesses told the court that “no reasonable medical professional would recommend any course of treatment in her case except surgery.”

Judge Wood explained that when determining if a defendant has qualified immunity, the court is required to view the facts in the light most advantageous to the plaintiff. Those facts indicate that despite hormone treatment, Campbell’s gender dysphoria has not improved: she has threatened severe self-injury and she has contemplated suicide. But the majority opinion “swipes this evidence away” and “chooses to reach its own conclusion” about the need for transition-related surgery, a conclusion that contradicts the testimony of medical experts.