A federal judge has ordered Alaska’s prison system to reconsider a transgender woman’s request to undergo surgery after declaring a state policy on the issue is so restrictive that it violates the U.S. Constitution.
The order, issued Sept. 26, follows a seven-year legal battle by Emalee Wagoner, who has been diagnosed with gender dysphoria and is seeking gender confirming surgery (GCS) while in the custody of the Alaska Department of Corrections.
Gender dysphoria is a recognized medical diagnosis for people experiencing distress when their gender identity differs from their sex assigned at birth.
Magistrate Judge Matthew Scoble wrote that there was evidence that the Department of Corrections had acted with “deliberate indifference” regarding Wagoner’s gender dysphoria, and violated the Eighth Amendment of the U.S. Constitution, which prohibits cruel and unusual punishment.
“The record reflects that while DOC’s policies technically left room for GCS to occur, as a practical and functional matter, it was opposed to GCS in every circumstance,” Scoble said in a 47-page analysis, referring to the type of gender-affirming genital surgery sought by Wagoner and a handful of other inmates.
Scoble’s order, which does not take effect immediately, tells the Department of Corrections to halt a policy pertaining to gender dysphoria as long as it “functions as a de facto prohibition on gender affirming surgery.”
Wagoner originally represented herself in court but later received help from Lambda Legal, a national law firm that advocates for LGBTQ+ rights. Richard Saenz was Wagoner’s attorney.
“It is a significant thing … that Ms. Wagoner should not have to continue to wait for the care that the court and her treating doctor and experts have said is medically necessary for her to receive,” he said.
Saenz said Scoble’s ruling likely will affect relatively few people, but it’s significant for them.
“We’re talking about such a small population … even within the group of people who have gender dysphoria, which is transgender people, not every transgender person with gender dysphoria needs surgical interventions,” he said.
But now, gender dysphoria surgery will be treated at the same level as cancer treatment — if a prisoner needs it, they can get it, Saenz said.
“I think that is so important — that gender dysphoria, which is a medical condition that the department itself recognizes needs treatment, should not be treated in an exceptional way. It should be treated like other medical conditions, and that the treatment that clinical guidelines say are needed, should be followed,” he said.
The U.S. Supreme Court has interpreted the Eighth Amendment as requiring prisons to provide medically necessary health care. In 2019, the 9th U.S. Circuit Court of Appeals, which has jurisdiction over Alaska and other U.S. West Coast states, declared that gender-affirming surgery is covered by that interpretation.
Had Wagoner’s case arisen in a part of the country covered by a different appeals court, the issue might have been decided differently, Scoble said.
“This Court is scrupulous to follow binding case law, and this case presents no exception,” he wrote.
Wagoner, who is serving a 40-year sentence after being convicted of serious sexual abuses. She is incarcerated at Goose Creek Correctional Center, a medium-security men’s prison at Point MacKenzie in the Matanuska-Susitna Borough. Alaska has a policy of housing people based on sex assigned at birth.
Wagoner has been undergoing hormone therapy since 2022 and was recommended for surgery by her doctor.
The Department of Corrections’ medical advisory committee rejected that request in 2023, saying in part that there was “insufficient evidence to affirm that Ms. Wagoner’s mental health and well-being will decline without surgery.”
Wagoner fought that decision in court, including through a lengthy trial that took place in May in Anchorage.
Afterward, Scoble implied that he was inclined to rule in the state’s favor but that the 9th Circuit precedent decided the issue.
“In the Court’s view, a correctional facility need not necessarily offer GCS if it believes, based upon reasoned review of the ongoing science, that other treatments or therapies for gender dysphoria are effective, or if based on the state of the literature there are good-faith questions as to the ultimate effectiveness of GCS in treating gender dysphoria,” he wrote.
The Alaska Department of Law, which represented the state prison system during the case, said it intends to continue fighting the issue.
“Unfortunately, a federal magistrate judge, sitting at trial without the benefit of a local jury to hear the evidence, decided that failing to provide gender-affirming surgery is a violation of the 8th Amendment, even though there was ample testimony from medical providers and nationally-recognized experts to the contrary,” said Patty Sullivan, a spokeswoman for the Alaska Department of Law wrote by email on Tuesday.
“The state will appeal the U.S. District Court’s decision to the Ninth Circuit Court of Appeals,” she said.