“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

With the six Trump judges on the court casting the deciding votes, the Eleventh Circuit voted 8-4 not to review a flawed panel decision from March 2020 in favor of Florida state prison officials who had refused to provide comprehensive gender affirming medical care to an incarcerated transgender woman. The December 2020 case is Keohane v. Florida Department of Corrections Secretary.

Reiyn Keohane had her medical treatment for diagnosed gender dysphoria cut off under the state’s so-called “freeze frame” policy, in which prison officials maintain incarcerated individuals only at the level of transition that existed at the time of confinement, regardless of the person’s current, individualized needs. They housed her in a men’s facility, refused to provide hormone therapy, and prohibited her from socially transitioning by dressing and grooming as a woman. After more than two years of being denied appropriate and necessary medical care, she sued, alleging deliberate indifference to her medical needs in violation of the Eighth Amendment.

A month after she sued, officials permitted her to have hormone therapy and, a month later, stated that they were ending the freeze-frame policy altogether. However, officials still prohibited Keohane from socially transitioning. The district court took note of the suspicious timing of the policy change, inconsistent explanations for the official actions, application of the allegedly-revoked freeze-frame policy to another individual, and lack of administrative record for the alleged change in policy. Based on this record, the district court found that the state’s apparent abandonment of the freeze-frame policy was likely not a permanent change, but was instead done primarily as a temporary measure to prevent the court from addressing the issue. The district court judge found that officials had been deliberately indifferent to Keohane’s medical needs, and it issued an injunction against the freeze-frame policy and ordered officials to allow Keohane to socially transition. But a divided circuit panel reversed the court in a 2-1 opinion written by Trump judge Kevin Newsom.

The full circuit voted 8-4 not to review that ruling, a vote made possible by Trump’s six judges on the court: Newsom, Elizabeth Branch, Andrew Brasher, Britt Grant, Barbara Lagoa, and Robert Luck. In a vigorous dissent, Judge Robin Rosenbaum—joined by Judges Charles Wilson, Beverly Martin, and Jill Pryor—explained that the full circuit was obligated to review Newsom’s panel opinion because it was inconsistent with the precedent established in 2010 by an Eleventh Circuit  panel in a case called Thomas v. Bryant. She noted that while Newsom claimed he was following Thomas, his decision “instead created a new rule diametrically opposed to Thomas’s holding.”

Thomas held that a district court’s finding of deliberate indifference in Eighth Amendment cases can be reversed only if the finding is “clearly erroneous.” Newsom’s panel held that this highly deferential standard only applies to the ultimate question of whether there was deliberate indifference. As for the subsidiary factual findings the court considers in reaching that question, the Newsom panel took it upon itself to review those independently, and it disagreed with the lower court. Once those facts were changed, Newsom was able to find “clear error” in the lower court’s finding of deliberate indifference. But as Rosenbaum explained in detail, Thomas very clearly applied “clear error” review to the entirety of the factual record before it, not just part of it.

Rosenbaum warned of the “dangers of condoning panel opinions that contradict our prior precedent while nonetheless claiming to follow the prior-precedent rule.” Because that rule “serves as the foundation of our federal judicial system,” she wrote, courts “ask for trouble” if they let panels “skirt” the rule. But the Trump judges on the Eleventh Circuit have done just that, to the detriment of transgender individuals, incarcerated individuals, and the judicial system as a whole.