Idaho and Indiana are the latest states to file an amicus brief in support of Alaska’s challenge to a federal ruling affirming the right of a trans prisoner to gender-affirming surgery.

“A federal court ordered Alaska to refer a prisoner for sex-change surgery consultation, which threatens to set a precedent that forces other states to provide these procedures using taxpayer dollars,” Idaho Attorney General Raúl Labrador (R) claimed. “Idaho supports Alaska in defending state medical decisions against judicial overreach.”

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Labrador asserted that the Eighth Amendment ensures “basic medical care” for prisoners, but not what he called “experimental gender transition surgeries.”

In a just-filed 32-page brief, Labrador and Indiana Attorney General Todd Rokita (R) reject the federal court’s argument that Alaska’s Department of Corrections is in violation of the Eighth Amendment, Fox News reports. The filing brings the number of states supporting Alaska’s challenge to 24.

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The AGs say the requested procedure doesn’t meet the threshold for “minimal civilized measure of life’s necessities.”  

The prisoner in question is seeking a vaginoplasty.

Emalee Wagoner, 45, is serving a 40-year sentence at Goose Creek Correctional Center, a medium-security men’s prison in Alaska, where she’s been housed since 2012. Wagoner was diagnosed with gender dysphoria and started hormone therapy in 2022. She was recommended for surgery by her doctor.

The state’s Department of Corrections’ medical advisory committee rejected Wagoner’s surgery request in 2023, ruling there was “insufficient evidence to affirm that Ms. Wagoner’s mental health and well-being will decline without surgery,” the Alaska Beacon reported.

Wagoner took the department to court, and a judge ruled in October last year that the Department of Corrections had acted with “deliberate indifference” regarding Wagoner’s gender dysphoria, in violation of the Eighth Amendment of the U.S. Constitution, which bars cruel and unusual punishment. 

Magistrate Judge Matthew Scoble wrote that he was inclined to rule in the state’s favor, but an earlier decision by the 9th Circuit Court of Appeals had set the precedent for the case.

In 2019, that court, with jurisdiction over Alaska and other West Coast states, ruled that gender-affirming surgery falls under the U.S. Supreme Court’s interpretation that the Eighth Amendment requires prisons to provide medically necessary health care.

Scoble’s own view was that denial of gender-affirming surgery itself was not necessarily cruel and unusual.

“In the Court’s view, a correctional facility need not necessarily offer GCS [gender-confirming surgery] 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.”

The judge did take issue, however, with the Department of Corrections’ blanket rejection of any gender-affirming surgery procedure, characterizing it as “deliberate indifference,” itself alone a violation of the Eighth Amendment.

In December, a federal judge blocked an even more draconian ban on gender-affirming care for trans inmates in Georgia, ruling a ban on hormone therapy violated the Eighth Amendment.

“The Court finds that there is no genuine dispute of fact that gender dysphoria is a serious medical need,” Judge Victoria Calvert wrote. “Plaintiffs, through their experts, have presented evidence that a blanket ban on hormone therapy constitutes grossly inadequate care for gender dysphoria and risks imminent injury.”

Despite judges in both the Alaska and Georgia cases finding in favor of trans prisoners’ right to gender-affirming care, the Trump administration in February directed the Federal Bureau of Prisons to not only ban prisons from providing hormone therapy to inmates who receive gender dysphoria diagnoses in the future, but to end treatment for those already receiving it.

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