In states with restrictive Medicaid statutes, many transgender people seeking gender-affirming care look to the courts for injunctive relief to receive gender-affirming surgery. The standard to obtain injunctive relief necessitates, in part, a finding that the plaintiff would be irreparably harmed without the relief—in this case, without being able to access surgery. This Comment outlines dangerous implications embedded in the Ninth Circuit’s subtle line-drawing between cases in which a transgender person’s pleas for relief are granted and those in which they are denied. Juxtaposing the kind of harm that is taken seriously in Edmo v. Corizon with the harm that was deemed legally insufficient to require relief in Doe v. Snyder, this Comment warns that implicit messaging will incentivize transgender people seeking judicial solutions to severely harm themselves to meet the court’s high bar for irreparable harm.

The full text of this Comment can be found by clicking the PDF link to the left.


Parents scold their children to distinguish between a want and a need. Underlying this command is the implicit message: They will acquiesce to what you need but not to what you want. It is understandable to draw these lines and to condescend to children about the difference between wanting ice cream and needing dinner. It is not understandable that this same condescension permeates the judicial system’s treatment of gender confir­mation surgery.

Courts, to varying degrees, have shown progress when it comes to legitimizing transgender rights and identities. 1 See Jon W. Davidson, How the Impact of Bostock v. Clayton County on LGBTQ Rights Continues to Expand, ACLU (June 15, 2022), [] (explaining that the ruling in Bostock opened the doors to other judicial decisions to protect LGBTQ rights); Know Your Rights, Nat’l Ctr. for Transgender Equal., [] (last visited Sept. 25, 2023) (listing resources for various legal protections for transgender people’s rights). See generally Judson Adams, Halle Edwards, Rachel Guy, Maya Springhawk Robnett, Rachel Scholz-Bright & Breanna Weber, Transgender Rights and Issues, 21 Geo. J. Gender & L. 479 (2021) (outlining the various frontiers of changing transgender rights, including healthcare and employment). Judges have acknowledged the medical realities of transgender people and the experience of gender dysphoria as a sufficient basis for judicial relief before, but never easily. 2 See, e.g., Flack v. Wis. Dep’t of Health Servs., 395 F. Supp. 3d 1001, 1010–12 (W.D. Wis. 2019) (listing instances in which transgender individuals sought care and systems made it difficult for them to receive that care).

The Ninth Circuit’s 2020 holding in Doe v. Snyder told transgender people that the court would decide between want and need when it came to their expressed medical needs to combat gender dysphoria. 3 See 28 F.4th 103, 112 (9th Cir. 2022) (noting that the plaintiffs failed to provide a declaration from a medical doctor attesting to the need for gender confirmation surgery in addition to their hormone therapy to prevent irreparable harm). The plaintiffs in Snyder sought male reconstruction surgery, a form of gender confirmation surgery that removes the breasts and makes the torso area more masculine. 4 Id. at 106; Plaintiffs D.H. and John Doe’s Notice of Motion and Motion for Preliminary Injunction at 2–3, Hennessy-Waller v. Snyder, 529 F. Supp. 3d 1031 (D. Ariz. 2021) (No. 4:20-cv-335-SHR), 2020 WL 13528268 [hereinafter Snyder Plaintiffs’ Preliminary Injunction Motion] (explaining that plaintiffs sought male reconstruction surgery to alleviate the dysphoria caused by their breasts). They could not afford the surgery without insurance, but Arizona’s Medicaid option did not cover the surgery. 5 See Plaintiff-Appellants’ Opening Brief at 2, Snyder, 28 F.4th 103 (No. 21-15668), 2021 WL 2073514. The plaintiffs looked to the court for salvation—they sought injunctive relief in order to receive the surgery that they, and their doctors, felt was necessary. 6 See Snyder Plaintiffs’ Preliminary Injunction Motion, supra note 4, at 1–2. But the court’s opinion held that the plaintiffs had not shown that surgery was so necessary as to force the court to grant a mandatory injunction. 7 See Snyder, 28 F.4th at 112–13. In other words, the court decided that the plaintiffs’ request for gender confirma­tion surgery was a want, not a need.

In Edmo v. Corizon Inc., by contrast, the Ninth Circuit granted an injunction allowing a transgender woman to receive gender confirmation surgery while incarcerated, but only after she continually self-harmed to the brink of suicide. 8 See 935 F.3d 757, 797–98 (9th Cir. 2019) (concluding that Edmo’s continued experience of mental distress and self-harm constituted irreparable harm). In Edmo, the plaintiff mutilated herself through attempted autocastration. 9 Id. at 774. Her doctors worried that, without the surgery, she would continue escalating her self-harming behavior to the point of suicide. 10 Id. at 777.

This Comment argues that the delineation between these cases, with one framing gender confirmation surgery as a want and one as a need, creates an implicit and dangerous standard that to receive a medical procedure, a plaintiff must endure harm. As part of the test for injunctive relief, the plaintiff must show that irreparable harm will occur if not for the relief, 11 See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”). but this Comment argues that judges are raising the bar by creating situations in which plaintiffs must show current harm to receive the injunction. 12 See infra Part II. The goal of injunctive relief is to prevent future wrongs in situations in which damages would be insufficient and court-mandated action is deemed more appropriate. 13 See Injunctive Relief, Cornell L. Sch. Legal Info. Inst., [] (last visited Sept. 25, 2023) (“The purpose of this form of relief is to prevent future wrong.”). Injunctive relief’s irreparable harm standard necessitates more than a possibility of harm, but it does not mandate that the harm must occur before relief is granted. 14 See Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1045 (7th Cir. 2017) (“[Granting a preliminary injunction] does not . . . require that the harm actually occur before injunctive relief is warranted.”). The analyses in Edmo and Snyder seemed to look for a continuation of past harm to establish the necessary degree of urgency. Edmo held that denying the plaintiff gender confirmation surgery would lead to future irreparable harms. 15 Edmo, 935 F.3d at 797–98. The court cited testimony of Edmo’s doctors, who stated she would continue self-harming with increasing severity to address her dysphoric distress. 16 Id. at 774, 777, 797–98. This conclusion stemmed from past self-harm attempts. 17 Id. The Ninth Circuit distinguished Snyder from Edmo by contrasting the district courts’ records and analyses: The factual record and a forty-five-page analysis in Edmo met the threshold for necessary gender confirmation surgery, but the twenty-page analysis in Snyder did not. 18 Doe v. Snyder, 28 F.4th 103, 113 (9th Cir. 2022). There are other differences between the cases. Edmo was incarcerated as an adult, see Edmo, 935 F.3d at 772, while the Snyder plaintiffs were minors suing under Medicaid statutes, see Snyder, 28 F.4th at 106. This Comment focuses on comparing each case’s judicial analysis rather than the cases as a whole. The court found a lack of urgency in the Snyder plaintiffs’ pleas, despite evidence of suicide attempts, anxiety, and depression. 19 Snyder, 28 F.4th at 112–13. The difference is that the Snyder plaintiffs never self-harmed to the degree that Edmo did. 20 Edmo attempted autocastration of her testicles. Edmo, 935 F.3d at 773. The plaintiffs in Snyder self-harmed, contemplated suicide, and were admitted to psychiatric hospital stays, but they had not gone as far as Edmo. See Reply Brief in Support of Plaintiffs D.H. and John Doe’s Motion for Preliminary Injunction at 9–10, Hennessy-Waller v. Snyder, 529 F. Supp. 3d 1031 (D. Ariz. 2021) (No. 4:20-cv-335-SHR), 2020 WL 13282345. For transgender individuals seeking injunctive relief, the different outcomes in Edmo and Snyder could lead to dangerous inferences about what it takes to receive an Edmo injunction rather than a Snyder denial.

Part I argues that the court’s treatment of gender confirmation surgery incentivizes dangerous and self-harming behavior. This incentive exists because, when conducting the irreparable harm analysis, courts have set a precedent of taking seriously only high-risk scenarios involving severe self-harm, medical issues, and suicide attempts. 21 See infra Part II. Judges continue treating gender confirmation surgery as a want rather than a need until the person is in such danger that no one can deny the need. This high bar endangers transgender people, already a vulnerable population, 22 See Indep. Expert on Sexual Orientation & Gender Identity, The Struggle of Trans and Gender-Diverse Persons, UN Hum. Rts. Off. High Comm’r, [] (last visited Sept. 25, 2023) (“Gender-diverse and trans people around the world are subjected to levels of violence and discrimination that offend the human conscience . . . .”). and invalidates gender dysphoria as a legitimate medical condition without a showing of physical manifestation of harm.

Part I starts with background showing that gender dysphoria is a legitimate medical condition and that gender confirmation surgery is a legitimate medical treatment. It also articulates transgender individuals’ already vulnerable position within American society. Part II contrasts the holdings in Edmo and Snyder, showing how judges often look for physical harms, beyond mental health concerns, to substantiate the need for gender-affirming care. Part III reaffirms that the standard to show sufficient harm to receive injunctive relief is too high. Part III also offers a solution: Take one interpretation of the Eighth Amendment—that the Amendment’s standards are not meant to test the limits of human beings to bear hardship—and apply it to injunctive relief’s irreparable harm analysis, thus lowering the bar for showing a need for gender confirmation surgery.

I. A Problem With a Solution: Gender Confirmation Surgery for Gender Dysphoria

Medical experts provide context and expertise to lawyers, juries, and judges alike in both criminal and civil cases. 23 See Yasmyne Ronquillo, Kenneth J. Robinson & Patricia P. Nouhan, Expert Witness, StatPearls, [] (last updated June 26, 2023) (“Evidence-based and experience-based opinions from medical professionals in legal cases have become increasingly important and common.”). Still, transgender legal discourse and progress trails behind that of medical discourse. 24 See Liza Khan, Note, Transgender Health at the Crossroads: Legal Norms, Insurance Markets, and the Threat of Healthcare Reform, 11 Yale J. Health Pol’y L. & Ethics 375, 378 (2011) (“Developments in transgender law also tend to lag far behind developments in transgender health, suggesting that the gap between medicine and law may be just as concerning as the overlap.”). The medical field no longer classifies transgender identity as a disease; 25 See Eric Yarbrough, Jeremy Kidd & Ranna Parekh, Gender Dysphoria Diagnosis, Am. Psychiatric Ass’n (Nov. 2017), [] (“The DSM–5 articulates explicitly that ‘gender non-conformity is not in itself a mental disorder.’”). instead, doctors validate the unique physical and mental needs of transgender patients. 26 See Patient-Centered Care for Transgender People: Recommended Practices for Health Care Settings, CDC, [] (last updated Feb. 18, 2022) (addressing a medical practitioner audience on specific medical and interpersonal strategies to use with transgender patients). The following section briefly outlines the experi­ence of gender dysphoria and situates its treatments as legitimate within the medical field. This Part continues by discussing why the denial of legitimate medical care constitutes irreparable harm. The Part ends by providing background on the systemic discrimination faced by transgender individuals.

A. A Legitimate Medical Condition

Gender identity is the way a person experiences their gender. 27 See Edmo v. Corizon, Inc., 935 F.3d 757, 768 (9th Cir. 2019) (explaining that gender identity is “a deeply felt, inherent sense” of gender (internal quotation marks omitted) (quoting Am. Psych. Ass’n, Guidelines for Psychological Practice With Transgender and Gender Nonconforming People, 70 Am. Psych. 832, 834 (2015))); see also Jennifer Levi & Kevin M. Barry, Transgender Rights & the Eighth Amendment, 95 S. Cal. L. Rev. 109, 118 (2021) (explaining that gender identity “is a well-established concept in medicine, referring to one’s internal sense of their own gender”). This can be different from sex assigned at birth. 28 See Levi & Barry, supra note 27, at 118–19. When this difference occurs, the person can experience distress, anxiety, and depression that their body’s sex does not align with their gender. 29 Id. at 120 (“[I]ndividuals with gender dysphoria experience a range of debilitating psychological symptoms such as anxiety, depression, suicidality, and other attendant mental health issues.”). The medical term for this experience is gender dysphoria. 30 Id. at 119. Gender dysphoria is recognized by medical and psychological professionals as a legitimate medical condi­tion. 31 Edmo, 935 F.3d at 768–69 (reflecting the consensus of the World Professional Association for Transgender Health (WPATH) and other authorities about gender dysphoria). Medical schools across the country are starting to incorporate gender dysphoria and other transgender health concerns into the medical school curriculum. 32 See Aaron Marshall, Sarah Pickle & Shauna Lawlis, Transgender Medicine Curriculum: Integration Into an Organ System–Based Preclinical Program, 13 MedEd Portal, no. 10536, 2017, at 1, 4–5, [] (explaining that implementing a transgender-focused curriculum equipped new doctors to better treat and interact with transgender patients); see also Sven Eriksson, A Curriculum Content Change Increased Medical Students’ Knowledge and Comfort With Transgender Medicine 17 (2015) (M.S. thesis, Boston University School of Medicine), [] (noting how incorporating transgender identity into the medical school curriculum provided more comfort to medical students in providing care to trans patients). The American Psychiatric Association has included gender dysphoria in the fifth edition of its Diagnostic and Statistical Manual of Mental Disorders. 33  See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451–59 (5th ed. 2013). It is important to clarify that being transgender is not a mental diagnosis, nor is it a condition within itself. Some transgender individuals do not experience gender dysphoria. Gender dysphoria describes the negative consequences of living in a body that does not align with one’s gender identity. The distress is the dysphoria, not the identity. See Moni Basu, Being Transgender No Longer a Mental ‘Disorder’ in Diagnostic Manual, CNN (Dec. 27, 2012), [].

Gender dysphoria can have severe effects on an individual’s health. 34 See, e.g., Edmo, 935 F.3d at 772–75 (describing how Edmo’s dysphoria led to negative health effects). It can cause “distress, dysfunction, debilitating depression and, for some people without access to appropriate medical care and treatment, suicidality and death.” 35 See FAQ: Equal Access to Health Care, Lambda Legal, [] (last visited Sept. 25, 2023) (internal quotation marks omitted) (quoting AMA House of Delegates, Resolution: 122, at 1 (2008), []). Luckily, the burden of gender dysphoria can be alleviated by transitioning toward living life as one’s true gender. 36 See id. (explaining medical interventions that are available to relieve dysphoria). The affirmation of one’s gender varies by person. 37 See Edmo, 935 F.3d at 769–70 (citing World Pro. Ass’n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People 1–2, 5 (7th ed. 2011)). For some, it means using a bathroom that aligns with their gender, wearing different clothes, or going by a new name. 38 See E. Coleman et al., Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, 23 Int’l J. Transgender Health S1, S76 (2022) (explaining the different avenues for social transition). For others, it requires a medical transition. 39 See id. at S39–40.

Medical transition can include hormone therapy, which entails taking hormone supplements of the sort that your body does not naturally produce. 40 Id. at S110–23. For example, a trans man might take testosterone in order to lower their voice and grow facial hair. 41 See Madeline B. Deutsch, Information on Testosterone Hormone Therapy, UCSF Transgender Care (July 2020), [] (explaining that testosterone is given to transgender men). Medical transition is not a one-size-fits-all experience. Each person experiences gender dysphoria in personal and unique ways. 42 See Coleman et al., supra note 38, at S76 (explaining that WPATH uses generalized recommendations showing a spectrum of experiences of gender identities and treatments for gender dysphoria). Some may find that hormone therapy feels insufficient to fully express their true gender identity and combat their gender dysphoria. 43 See Edmo v. Corizon, Inc., 935 F.3d 757, 772 (9th Cir. 2019) (explaining that Edmo’s hormone treatment did not eradicate her gender dysphoria). In these cases, psychiatrists might recommend gender confir­mation surgery. 44 See id. (noting that medical experts recommended gender confirmation surgery for Edmo).

Gender confirmation surgery is a procedure that transforms some­one’s external features to match their internal gender identity. 45 See Madeline B. Deutsch, Overview of Gender-Affirming Treatments and Procedures, UCSF Transgender Care (June 17, 2016), [] [hereinafter Deutsch, Gender-Affirming Treatments] (describing surgery that can change features to match gender identity). It can involve altering the facial features, jaw, torso, hips, and genitals. 46 Id. The surgery is not purely cosmetic or elective. 47 See Coleman et al., supra note 38, at S18 (discussing how gender confirmation surgery often goes beyond cosmetic differences). The surgery can help alleviate gender dysphoria and improve one’s overall mental health. 48 See Study Finds Long-Term Mental Health Benefits of Gender-Affirming Surgery for Transgender Individuals, Am. Psychiatric Ass’n (Oct. 14, 2019), [] (last updated Aug. 1, 2020) (reporting findings that, for transgender individuals, undergoing gender confirmation surgery significantly correlated with decreased mental health treatment over time).

The medical community’s understanding of gender dysphoria as a legitimate medical condition is widespread. 49 See Medical Association Statements in Support of Health Care for Transgender People and Youth, GLAAD (June 21, 2023), [
8A78-D5ZV] (highlighting the broad support in the medical community for transgender healthcare).
Yet, bias against transgender people persists, and healthcare plans often deny coverage for gender-affirming care. 50 See Daphna Stroumsa, The State of Transgender Health Care: Policy, Law, and Medical Frameworks, Am. J. Pub. Health, Mar. 2014, at e31, e31, [https://]; Kareen M. Matouk & Melina Wald, Gender-Affirming Care Saves Lives, Colum. Psychiatry (June 2021), [] (last updated Mar. 30, 2022) (discussing recent legislative barriers to transgender healthcare).

B. Denying Treatment for a Legitimate Medical Condition Constitutes Irreparable Harm

Americans increasingly support recognizing a right to adequate healthcare. 51 See Michael Karpman & Sharon K. Long, Most Americans Agree: No One Should Be Denied Medical Care Because They Can’t Afford It, Urb. Inst. (Dec. 6, 2017), (on file with the Columbia Law Review) (examining the growing consensus among Americans that everyone should have access to adequate healthcare regardless of their ability to pay). Adequate healthcare allows someone to fully show up in their life, in their family, in their job, and in their body. 52 See, e.g., Council of Econ. Advisors, Economic Report of the President 99 (2008), [] (stating the importance of healthcare to job productivity). The plaintiffs’ brief in Snyder cited the Ninth Circuit’s own holdings that denial of someone’s necessary medical treatment constitutes an irreparable harm. 53 See Plaintiff-Appellants’ Opening Brief, supra note 5, at 26 (citing M.R. v. Dreyfus, 697 F.3d 706, 733 (9th Cir. 2012) (holding that loss of services related to a person’s health is irreparable harm); Rodde v. Bonta, 357 F.3d 988, 999 (9th Cir. 2004) (holding that irreparable harm includes denial or delay of necessary treatment as well as increased pain and medical complications); Beltran v. Myers, 677 F.2d 1317, 1322 (9th Cir. 1982) (holding that plaintiffs showed irreparable injury when they were denied medical care)). The court’s interest is in preserving the well-being of the plaintiff without harming the defendant or the public generally. 54 See id. at 27–28 (summarizing the court’s standard for injunctive relief in medical care cases). In conducting the balancing test for injunctive relief, the Ninth Circuit affirmed that cost-saving is not a sufficiently strong public interest to deny treatment to a vulnerable popu­lation. 55 Id. at 23. Delayed access to necessary medical care constitutes irreparable harm, so the tension in cases such as Edmo and Snyder is whether gender confirmation surgery is necessary. 56 See Snyder Plaintiffs’ Preliminary Injunction Motion, supra note 4, at 14–15.

In Snyder, the plaintiffs were prescribed a medical gender transition as a means to treat their gender dysphoria. 57 See Plaintiff-Appellants’ Opening Brief, supra note 5, at 4 (reiterating that plaintiffs’ doctors prescribed top surgery to alleviate their gender dysphoria). During the trial, both sides presented expert witnesses who gave conflicting views on the need for gender confirmation surgery to treat gender dysphoria, especially in adolescents. 58 See Doe v. Snyder, 28 F.4th 103, 112 (9th Cir. 2022). But the leading experts on transgender healthcare promote gender confirmation surgery as an effective means to combat gender dysphoria. 59 See Coleman et al., supra note 38, at S39. Thus, presenting this consensus as an open debate overrepre­sents the current prevalence of the medical field’s historical anti-trans bias and discrimination. 60 See Stroumsa, supra note 50, at e31 (“Health care for this population has historically been, and continues to be, overlooked by governmental, health care, and academic establishments.”). The back-and-forth places the judge in the role of deciding for someone else what is necessary for their body. Again, this leads to a situation in which people are told their need is a want.

C. The Compounding Circumstances for Transgender Individuals

Transgender individuals face discrimination in every facet of their lives. 61 Understanding the Transgender Community, Hum. Rts. Campaign, [] (last visited Sept. 25, 2023) (articulating many of the ways in which transgender people face discrimination). Anti-trans bigotry rears its head in state legislatures, in housing, in employment, and in healthcare. 62 Id. Transgender people not only bear the burden of their internal struggles but must also grapple with external forces placed on them through discrimination. This creates a greater vulnerability for transgender Americans. 63 See Caroline Medina, Thee Santos, Lindsay Mahowald & Sharita Gruberg, Ctr. for Am. Progress, Protecting and Advancing Health Care for Transgender Adult Communities 1 (2021), [] (“In addition to poorer health outcomes, transgender people also encounter unique challenges and inequalities in their ability to access health insurance and adequate care.”). Yet, instead of increasing protections, governments at every level have created new barriers for transgender rights. 64 See, e.g., Legislation Affecting LGBTQ Rights Across the Country 2021, ACLU (Feb. 24, 2020), [] (last updated Dec. 17, 2021) (tracking state legislative measures targeting transgender individuals). This reality of discrimination and vulnerability combined with harmful government action creates a cyclical problem. Take medical care as an example: Gender confirmation surgery is expensive. 65 See Ronni Sandroff, Does Insurance Cover Gender-Affirming Care?, Investopedia,[] (last updated June 26, 2023) (showing that gender confirmation surgery can cost “tens of thousands of dollars”). Transgender individuals often struggle with access to capital and health insurance because of a history of employment discrimination. 66 See Shanna K. Kattari, Darren L. Whitfield, N. Eugene Walls, Lisa Langenderfer-Magruder & Daniel Ramos, Policing Gender Through Housing and Employment Discrimination: Comparison of Discrimination Experiences of Transgender and Cisgender LGBQ Individuals, 7 J. Soc’y for Soc. Work & Rsch. 427, 430–32 (2016) (explaining the outsized impact of workplace discrimination on transgender people). This means that many transgender individuals are on Medicaid and therefore receive gender confirmation surgery at the whim of the government’s determination about their medical necessities. 67 See Christy Mallory & Will Tentindo, UCLA Sch. L. Williams Inst., Medicaid Coverage for Gender-Affirming Care 5–6 (2022), [] (outlining estimates of the number of transgender adults enrolled in Medicaid by state and whether that state covers gender-affirming care). In turn, this structure compounds the vulnerability of transgender individuals like those in Snyder and forces them to seek injunctive relief to get the surgery they need. 68 See Snyder Plaintiffs’ Preliminary Injunction Motion, supra note 4, at 14–17.

Waiting for a cast for a broken leg delays the healing process and causes irreversible damage. 69 See Dangers of Bone Fractures if Left Untreated, Mid Atl. Orthopedic Assocs. (Nov. 1, 2018), [] (explaining that leaving a broken bone untreated leads to long-term negative outcomes). Waiting for a double mastectomy for breast cancer can allow the tumors to grow and cause death. 70 Peh Joo Ho, Alex R. Cook, Nur Khaliesah Binte Mohamed Ri, Jenny Liu, Jingmei Li & Mikael Hartman, Impact of Delayed Treatment in Women Diagnosed With Breast Cancer: A Population‐Based Study, 9 Cancer Med. 2435, 2443 (2020) (noting treatment delays resulted in worse survival rates for some breast cancer patients). When a transgender person is prescribed gender confirmation surgery to treat their gender dysphoria, they need the surgery sooner rather than later before the mental anguish associated with gender dysphoria becomes worse and upends their life. 71 See Snyder Plaintiffs’ Preliminary Injunction Motion, supra note 4, at 14–17 (“Delayed access to medically necessary healthcare services is sufficient to establish irreparable harm.”). This urgency is why the plaintiffs in the previously mentioned cases sought injunctive relief to get their medical treatment immediately. 72 Id.; Edmo v. Corizon, 935 F.3d 757, 772–75 (9th Cir. 2019) (describing how Edmo’s dysphoria led to negative health effects). Gender dysphoria is a legitimate medical condition and gender confirmation surgery is a legitimate medical solution. 73 Brief for Pediatric Endocrine Society, World Professional Association for Transgender Health, United States Professional Association for Transgender Health, as Amici Curiae in Support of Plaintiffs-Appellants and Reversal at 5–15, Doe v. Snyder, 28 F.4th 103 (9th Cir. 2022) (No. 21-15668), 2021 WL 2189163. Because denying necessary medical treatment constitutes irreparable harm, whether transgender plaintiffs can get injunctive relief depends on a judge’s willingness to agree that gender confirmation surgery is, in fact, necessary. 74 See Plaintiff-Appellants’ Opening Brief, supra note 5, at 20–30 (framing gender-affirming care as a medical necessity for the judge’s determination on injunctive relief); supra note 53 and accompanying text.

II. Court Inconsistency and Harm Irreparability

Gender dysphoria causes severe mental health issues. 75 Amicus Brief for Pediatric Endocrine Society et al., supra note 73, at 4–7 (summarizing the conclusions and beliefs of the medical community that gender dysphoria can lead to anxiety, depression, and other mental health issues). A 2022 study found that eighty-two percent of transgender individuals have considered suicide. 76 Ashley Austin, Shelley L. Craig, Sandra D’Souza & Lauren B. McInroy, Suicidality Among Transgender Youth: Elucidating the Role of Interpersonal Risk Factors, 37 J. Interpersonal Violence NP2696, NP2697 (2022) (offering data from a national survey that found eighty-two percent of trans people in the United States had considered suicide). Forty percent have attempted suicide. 77 Id. Transgender mental health is a public health concern and, as indicated in the sections above, there is a medical solution here. A recent study found that gender-affirming care lowered the study cohort’s suicidality by seventy-three percent. 78 See Diana M. Tordoff, Jonathon W. Wanta, Arin Collin, Cesalie Stepney, David J. Inwards-Breland & Kym Ahrens, Mental Health Outcomes in Transgender and Nonbinary Youths Receiving Gender-Affirming Care, JAMA Network Open, art. e220978, Feb. 2022, at 1, 7.

It is hard to craft an argument that something that leads to suicidality does not cause irreparable harm. This Part proceeds by comparing the analyses in Edmo and Snyder, showing that court’s bar for “harm” is too backward looking, resulting in dangerous, self-harming behavior.

A. Edmo’s High Bar

Depressed. Embarrassed. Disgusted. These are the words that Adree Edmo used to describe her relationship with her body. 79 See Edmo v. Corizon, Inc., 935 F.3d 757, 772 (9th Cir. 2019) (noting that Edmo feels “depressed, embarrassed, [and] disgusted” by parts of her body (alteration in original) (internal quotation marks omitted) (quoting Edmo’s testimony)). She became aware of her gender identity at a young age and struggled with gender dysphoria throughout her life. 80 Id. While incarcerated, she started taking female hormones prescribed to treat her gender dysphoria. 81 Id. But Edmo’s gender dysphoria continued despite the hormones and the accompanying bodily changes they brought. 82 Id. Her self-hate evolved into self-harm. 83 Id. at 773. She was denied access to gender confirmation surgery, 84 Id. so she took matters into her own hands. 85 Id. at 774. She used a razor blade to attempt autocastration. 86 Id. She preferred to take this risk, to endure this pain, rather than to spend more time in a body that was not hers. 87 See Plaintiff’s Notice of Motion and Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support Thereof at 7–8, Edmo v. Idaho Dep’t of Corr., 358 F. Supp. 3d 1103 (D. Idaho 2018) (No. 1:17-cv-00151-BLW), 2018 WL 11299149. She needed gender confirmation surgery to be her full self, to combat the gender dysphoria she experienced around her genitals. 88 Id. Her doctors confirmed that her self-harming behavior would only continue without gender confirmation surgery. 89 Id.; see also Edmo, 935 F.3d at 777.

The Ninth Circuit affirmed her injunctive relief: “It is no leap to conclude that Edmo’s severe, ongoing psychological distress and the high risk of self-castration and suicide she faces absent surgery constitute irreparable harm.” 90 Edmo, 935 F.3d at 797–98. Injunctive relief is not a right, nor is it the presumed remedy even when harm is demonstrated 91 See Doe v. Snyder, 28 F.4th 103, 111 (9th Cir. 2020) (discussing the high bar for a mandatory injunction). But the court’s opinion in Edmo implies that only when someone is denied necessary medical treatment and subsequently engages in harmful behavior, like suicide or self-mutilation, has that person met the bar for irreparable harm. 92 Edmo, 935 F.3d at 780–81. The attempted autocastration in Edmo is an incredibly high bar for plaintiffs to reach.

B. Snyder: So Close, But So, So Far

The Ninth Circuit, having decided that the plaintiff’s plea in Edmo warranted injunctive relief, found the plaintiffs’ claim in Snyder insufficient to show irreparable harm. 93 Snyder, 28 F.4th at 113. In Snyder, two teenage boys sought a double mastectomy, also known as top surgery, for gender confirmation purposes. 94 Id. at 106. One of the plaintiffs indicated he had known his gender identity at an early age, just as in Edmo. 95 Compare Snyder Plaintiffs’ Preliminary Injunction Motion, supra note 4, at 3 (noting that one of the plaintiffs began to express that he identified as male at age four), with Edmo, 935 F.3d at 772 (discussing how the plaintiff identified as female at five or six). He tried living as a boy for several years, including by wearing a binder. 96 Chest binding is the flattening of breasts with cloth, spandex, or other materials. See Snyder Plaintiffs’ Preliminary Injunction Motion, supra note 4, at 3. The plaintiffs experienced intense mental health symptoms related to their gender dysphoria, just as in Edmo. 97 Compare id. at 3–6, with Edmo, 935 F.3d at 772. They were prescribed hormones that proved insufficient in quelling their gender dysphoria, just as in Edmo. 98 Compare Snyder Plaintiffs’ Preliminary Injunction Motion, supra note 4, at 4–5, with Edmo, 935 F.3d at 772. The plaintiffs’ psychiatrist recommended top surgery, which is typical for adolescent transgender males. 99 See Snyder Plaintiffs’ Preliminary Injunction Motion, supra note 4, at 2, 7; Coleman et al., supra note 38, at S43; see also Deutsch, Gender-Affirming Treatments, supra note 45.

The court found a less compelling case for irreparable harm in Snyder than it had in Edmo. The Snyder opinion observes that the district court in the Edmo case contained a forty-five-page analysis compared to Snyder’s twenty pages. 100 Doe v. Snyder, 28 F.4th 103, 113 (9th Cir. 2020). It is hard to escape the fact that, in Edmo, the plaintiff’s actions were shocking in their degree of self-mutilation. It was clear that Edmo would not continue living as she was. 101 See Edmo, 935 F.3d at 771–75 (outlining Edmo’s struggles with and treatment of her gender dysphoria). She would not, as much as could not, live with her male genitalia. 102 Id. The undercurrent of the Edmo decision seems to be that without the surgery, the court would be signing her death warrant. In Snyder, the plaintiffs were depressed. 103 See Snyder Plaintiffs’ Preliminary Injunction Motion, supra note 4, at 2, 5, 10 (articulating the feelings and outward expression of the plaintiffs’ depression). They were anxious. 104 Id. at 12, 15 (describing the plaintiffs’ anxiety). Their gender dysphoria impacted all aspects of their life. 105 Id. at 4–6. So, what makes Snyder different from Edmo? What makes Edmo’s request for gender confirmation surgery a need and the boys’ request in Snyder a want? The court is seemingly looking to the harm that had already occurred in order to predict the harm to come. In Edmo, the plaintiff had already attempted the drastic measure of autocastration. 106 See Edmo, 935 F.3d at 773 (articulating the actions Edmo took to remove her testicles). In Snyder, the plaintiffs had not yet gone that far. 107 See Doe v. Snyder, 28 F.4th 103, 113 (9th Cir. 2020); Snyder Plaintiffs’ Preliminary Injunction Motion, supra note 4, at 6–8 (explaining that one of the plaintiffs had already been hospitalized several times and that both plaintiffs wore their binders with such frequency that it threatened their physical health). This distinction between the plaintiffs sends a subtle message: To prove irreparable harm and win injunctive relief, you must have harmed yourself to an alarming degree. The court’s dismissal of gender confirmation surgery as a want and not a need incentivizes people already in distress and already experiencing mental health issues to harm themselves further in order to get the surgery they are desperately demanding.

III. Mental Health Is Health, and Harm Is Harm

It is hard to imagine a judge willingly incentivizing self-harm, but that is the implicit result of the Ninth Circuit’s harm analysis when it comes to gender dysphoria. The plaintiff’s success in Edmo hinged on the court’s reliance on past instances of harm to determine the likelihood and severity of future harm and to prevent future harm from occurring. 108 Edmo, 935 F.3d at 786–87, 797–98 (connecting Edmo’s gender dysphoria and autocastration to the medical necessity of gender confirmation surgery and therefore the harm of not receiving necessary medical treatment). This backward-looking analysis is an ineffective approach to harm-prevention, especially given the suicide epidemic in the transgender community. 109 See Austin et al., supra note 76, at NP2707–10; supra note 76 and accompanying text. Some people complete suicide on the first attempt. 110 See Erkki T. Isometsä & Jouko K. Lönnqvist, Suicide Attempts Preceding Completed Suicide, 173 Brit. J. Psychiatry 531, 533 (1998) (“We found that the majority of all suicide completers (56%) had died at their first suicide attempt . . . .”). In seeking to prevent these first-try suicides from occurring, there would be no past attempts to cite. Still, the court found the instances of self-harm in Snyder, which fell short of prior suicide attempts, less persuasive. 111 Snyder, 28 F.4th at 108 (stating that plaintiffs failed to meet the burden of showing irreparable harm despite showing experiences of depression, self-harm, and suicidal ideation). Instead of looking for alarming signs of past harm, the court should look to doctors’ recommendations, plaintiffs’ experiences of anxiety and depression, and other precursors to more serious forms of self-harm rather than waiting for and incentivizing the extremes as in Edmo. This Part explores how to lower the irreparable harm bar by applying the logic advocated for incarcerated transgender people’s Eighth Amendment rights.

A. Applying the Eighth Amendment’s “Ability to Bear Pain” Analysis to Injunctive Relief

The Eighth Amendment bans cruel and unusual punishment. 112 U.S. Const. amend. VIII. In Brock v. Wright, the Second Circuit held that the Eighth Amendment’s standard does not test the ability of an individual to bear pain. 113 See 315 F.3d 158, 163 (2d Cir. 2003) (“We do not, therefore, require an inmate to demonstrate that he or she experiences pain that is at the limit of human ability to bear, nor do we require a showing that his or her condition will degenerate into a life-threatening one.”). It is not meant to test the limits of human capacity to endure anguish. 114 Esinam Agbemenu, Note, Medical Transgressions in America’s Prisons: Defending Transgender Prisoners’ Access to Transition-Related Care, 30 Colum. J. Gender & L. 1, 17 (2015) (“[P]hysical health concerns do not have to be life threatening or test the limits of the human ability to bear pain to qualify for treatment under the Eighth Amendment.” (citing Brock, 315 F.3d at 163)). In other words, it does not test when someone will break and only permit calling the state’s action cruel and unusual punishment after they break.

In recent years, advocates have used the Eighth Amendment to fight for gender-affirming care for incarcerated transgender people. 115 E.g., Samantha Braver, Note, Circuit Court Dysphoria: The Status of Gender Confirmation Surgery Requests by Incarcerated Transgender Individuals, 120 Colum. L. Rev. 2235 (2020) (exemplifying scholarship that grapples with cases concerning incarcerated transgender people’s rights). In these cases, including a section of Edmo, some courts agreed that denial of necessary medical treatment for incarcerated people is cruel and unusual punishment and that gender confirmation surgery is necessary medical treatment. Therefore, denial of gender confirmation surgery violates these individuals’ Eighth Amendment rights. 116 See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976); Braver, supra note 115, at 2248–49, 2253–67 (emphasizing that indifference to the serious medical problems of incarcerated individuals constitutes cruel and unusual punishment under the Eighth Amendment and describing how federal circuit courts have applied this test when prison administrators have denied gender confirming surgery to incarcerated transgender people).

Courts have also seemingly accepted that mental health is crucial to one’s overall well-being and that mental anguish, on its own, can constitute an Eighth Amendment violation. 117 See Edmo v. Corizon, Inc., 935 F.3d 757, 785 (9th Cir. 2019) (explaining that the denial of medical treatment, given the mental health impacts of Edmo’s gender dysphoria, was sufficient to violate the Eighth Amendment); see also Kosilek v. Spencer, 774 F.3d 63, 86 (1st Cir. 2014) (treating gender dysphoria as a serious medical need requiring treatment within the context of the Eighth Amendment). Yet even in Eighth Amendment cases, incarcerated transgender people with greater physical harm stemming from their gender dysphoria are more successful in proving their harm and, thus, their claim to access gender confirmation surgery. 118 See Agbemenu, supra note 114, at 28–29 (stating that gender dysphoria claims are addressed in relation to their “most severe consequences”). “[I]t is suicidal ideation, depression, and attempts of self-mutilation that become their most effective factual tool in receiving the health care they deserve.” 119 Id. Courts’ greater willingness to grant relief to those with more severe physical harm is illustrated by the circumstances in Edmo and Snyder articulated above, in which courts lent greater weight to cases with facts of severe self-harm. To analyze mental health concerns, such as mental distress caused by gender dysphoria, courts look to physical manifestations of the health concern in order to determine whether it qualifies as a serious medical need. 120 See id. at 16–17. Edmo’s case demonstrates this. The opinion frequently invokes the attempted autocastration and future risk of continued castration attempts or suicide, seemingly implying extreme physical self-harm is the most worrisome component. 121 See Edmo, 935 F.3d at 775–78 (excerpting the testimony of expert witnesses that focused on the plaintiff’s autocastration and the potential risk of suicide).

By using drastic physical self-harm as a proxy for mental anguish to define what we consider cruel and unusual punishment, the courts penalize individuals whose anguish presents without physical injury. 122 Agbemenu, supra note 114, at 17. It creates a reward system for those who act drastically and dangerously in response to their pain. 123 Id. (showing that a court’s reliance on physical harm creates a potential legal barrier for transgender incarcerated individuals who may be inclined to resort to such extremes). But receipt of necessary medical treatment should not be conditioned on extreme physical harm; as Brock indicates, the Eighth Amendment does not require that the incarcerated person “experiences pain that is at the limit of human ability to bear.” 124 See Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003).

The refusal to assess suffering based only on the suffering individual’s outward conduct, as discussed in scholarship on the Eighth Amendment for incarcerated transgender people, 125 See Agbemenu, supra note 114, at 41–43. should apply to the irreparable harm standard for injunctive relief. Courts should consider plaintiffs’ mental anguish as its own indicia of harm. Without this protection, the court sends an implicit message: Those who self-harm, those who consider or attempt suicide, and those who physically manifest their gender-dysphoria–related depression and anxiety are more likely to meet the standard for injunctive relief than those who suffer internally.

This creates a bizarre incentive structure. It asks plaintiffs to harm themselves in order to show that they truly need gender confirmation surgery. It asks plaintiffs to show future irreparable harm by offering past instances of material physical harm. The scholarship advocating for gender-affirming surgery for incarcerated people on Eighth Amendment grounds reflects how absurd such a perverse incentive structure is. 126 Id. at 24–29. This absurdity extends to the logic of injunctive relief and the irreparable harm standard, as highlighted above in the distinction between Snyder and Edmo. 127 See supra Part II.

Undoubtedly, courts will argue that some line-drawing is necessary, lest they write a blank check for anyone seeking gender-affirmation surgery. This Comment does not extend itself to declare a singular solution but posits that a line can be drawn in a number of ways that lean on medical rather than judicial judgments. This Comment does not presume to know every way to draw the line. Still, a court’s determination should hinge on the diagnosis and treatment options available rather than the severity of past harm or self-inflicted behaviors. Courts’ current means of analysis dangerously suggest that such harmful behaviors are the only path to injunctive salvation.


Suicidality rates in the transgender community are staggering. 128 Austin et al., supra note 76, at NP2707 (“More than half of transgender young people in our study reported a previous suicide attempt (56%) and they had alarmingly high reported rates of past 6-month suicidality (86%) . . . .”); supra text accompanying note 76. Gender-affirming care can be life-changing. 129 See New Study Shows Transgender People Who Receive Gender-Affirming Surgery Are Significantly Less Likely to Experience Psychological Distress or Suicidal Ideation, Fenway Health (Apr. 28, 2021), [] (describing a new study showing the positive health outcomes for transgender people who receive gender-affirming care (citing Anthony N. Almazan & Alex S. Keuroghlian, Association Between Gender-Affirming Surgeries and Mental Health Outcomes, 156 J. Am. Med. Ass’n Surgery 611, 615–16 (2021))). The debate over whether to extend Medicaid coverage to all gender confirmation surgery plays out in state legislatures. 130 See Samuel Rosh, Note, Beyond Categorical Exclusions: Access to Transgender Healthcare in State Medicaid Programs, 51 Colum. J.L. & Soc. Probs. 1, 11–13 (2017) (explaining that eighteen states have categorical bans on Medicaid coverage for gender-affirming surgery and that only a few others have partial coverage). A few states have already changed their laws to provide access under state plans. 131 See Ivette Gomez, Usha Ranji, Alina Salganicoff, Lindsey Dawson, Carrie Rosenzweig, Rebecca Kellenberg & Kathy Gifford, Update on Medicaid Coverage of Gender Affirming Health Services, KFF (Oct. 11, 2022),[] (articulating the variations between states in the degree of coverage, with Maine and Illinois having the broadest coverage). Yet, in states like Arizona, transgender people remain without coverage for their life-saving treatments. 132 See, e.g., Medicaid Regulations and Guidance, Arizona, Transgender Legal Def. & Educ. Fund, [] (last updated June 10, 2021) (“The following services are excluded from . . . coverage: a. . . . gender reassign­ment surgeries[.]” (internal quotation marks omitted) (quoting Ariz. Admin. Code § R9-22-205.B(4) (2021))); supra notes 45–48 and accompanying text. Until all states provide this coverage, one of the only hopes for individuals like the plaintiffs in Snyder is injunctive relief. As long as the bar for injunctive relief remains so high that it incentivizes self-harm, however, transgender individuals in these states are endangered and encouraged to endure the level of harm that the court legitimizes. Therefore, judicial evaluations of harm for gender confirmation surgery should not focus on the severity of past and current patterns of self-harm but rather on medical advice and the surrounding circumstances. Judges need to be aware of the implicit messaging their rulings send to vulnerable individuals who are desperate for help. The implicit message made clear by Edmo and Snyder is that drastic measures of self-harm prevail to provide access to deserved treatment. This is an irreparably harmful message.