You get to read two different approaches by the conservative judges on the Ninth Circuit to the refusal to rehear this case en banc.
The first is from Judge O'Scannlain, joined by eight other judges. His approach:
"With its decision today, our court becomes the first
federal court of appeals to mandate that a State pay for and
provide sex-reassignment surgery to a prisoner under the
Eighth Amendment. The three-judge panel’s conclusion—
that any alternative course of treatment would be “cruel and
unusual punishment”—is as unjustified as it is
unprecedented. To reach such a conclusion, the court creates
a circuit split, substitutes the medical conclusions of federal judges for the clinical judgments of prisoners’ treating
physicians, redefines the familiar “deliberate indifference”
standard, and, in the end, constitutionally enshrines precise
and partisan treatment criteria in what is a new, rapidly
changing, and highly controversial area of medical practice."
Then there's 30 more pages, including sentences that end with exclamation points. Definitely one type of take.
Then there's Judge Bumatay's approach. Joined by six other judges, many of whom are the same ones who joined Judge O'Scannlain. (Judge Bumatay also joined Judge O'Scannlain as well.) He begins by saying:
"Like the panel and the district court, I hold great
sympathy for Adree Edmo’s medical situation. And as with
all citizens, her constitutional rights deserve the utmost
respect and vigilant protection. As the district court rightly
stated, 'The Rule of Law, which is the bedrock of our
legal system, promises that all individuals
will be afforded the full protection of our
legal system and the rights guaranteed by our
Constitution. This is so whether the
individual seeking that protection is black,
white, male, female, gay, straight, or, as in
this case, transgender.' Adree Edmo is a transgender woman suffering from
gender dysphoria—a serious medical condition. While
incarcerated in Idaho’s correctional facilities, she asked that
her gender dysphoria be treated with sex-reassignment surgery (“SRS”). After consultation with a prison doctor,
her request was denied. She then sued under the Eighth
Amendment.
I respect Edmo’s wishes and hope she is afforded the best
treatment possible. But whether SRS is the optimal
treatment for Edmo’s gender dysphoria is not before us. As
judges, our role is not to take sides in matters of conflicting
medical care. Rather, our duty is to faithfully interpret the
Constitution.
That duty commands that we apply the Eighth
Amendment, not our sympathies."
There's a lot of overlap, of course. But the emphasis is slightly different.
