What looked at first like a belated April Fool’s Day joke may turn out to be a landmark ruling in Eighth Amendment jurisprudence. On April 2, a federal district court judge in San Francisco ruled that a convicted murderer serving a 17-years-to-life sentence is entitled to a sex-change operation at taxpayer expense. Judge Jon Tigar, a Barack Obama appointee, determined that Jeffrey Bryan Norsworthy should have the $100,000 procedure “as promptly as possible.”
Though no inmate in a California prison has ever received sex-reassignment surgery while in custody, Judge Tigar found that the Eighth Amendment of the U.S. Constitution requires that Norsworthy receive a vaginoplasty—a procedure that involves removing the patient’s male genitals and creating female genitals. In 38 pages of judicial reasoning, Tigar declared that forcing Norsworthy to keep his male parts while behind bars at the all-male Mule Creek State Prison in Ione amounts to “cruel and unusual punishment.” This is a decision bordering on lunacy.
In 2000, a prison psychiatrist diagnosed Norsworthy with “gender dysphoria,” meaning that he would like to be a woman instead of a man. According to experts, this condition can cause frustration and anxiety for “transsexual” men who are disgusted by their male genitalia. In extreme cases, untreated gender dysphoria can lead to suicide or self-castration. The American Psychiatric Association, which not so long ago treated homosexuality as a mental disorder, now has elaborate and presumably more enlightened views on the subject of gender-identity disorder, which Judge Tigar dutifully adopted. Though prison records list Norsworthy by his given name, Tigar’s opinion refers to him throughout as “Michelle-Lael Norsworthy” and describes him as a “pleasant looking woman.”
At only 16 words, the Eighth Amendment is the most succinct article of the Bill of Rights and has nothing to say about vaginoplasty. It states, in its entirety, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The ban on cruel and unusual punishments was meant to limit gruesome penal methods such as flogging, stoning, and burning at the stake. (Ironically, castration has been held to be cruel and unusual, but in the Norsworthy case, a judge is ruling that significantly more intrusive surgery is constitutionally required.)
To contend that “forcing” a prisoner to continue as a man violates the Constitution is absurd. Norsworthy was born male, and he was male when he committed a murder on April 15, 1987 and when he was sentenced to prison later that year. Though he is allowed to take female hormones, have a pony tail, wear a brassiere, and shower out of the sight of other inmates in prison, he has been a male for all of his 51 years. Manifestly, the state of California did not make Norsworthy a male. His punishment—which is what the relevant provisions of the Eighth Amendment address—did not include a specification of his sex or gender. Rather, prison authorities merely decided that Norsworthy is not eligible for an elective cosmetic procedure at government expense while incarcerated. In this regard, vaginoplasty is no different than a facelift, tummy tuck, liposuction, nose job, Botox injections, or lap band surgery. No federal appellate court has recognized a right to sex-reassignment surgery. In the only related case that Tigar cites in his decision, the First U.S. Circuit Court reversed a district court ruling that had ordered the procedure for an inmate in Massachusetts. What Norsworthy chooses to do with his body at his own expense, if and when he is released from prison, is up to him.
Judge Tigar is a Berkeley-educated activist judge and the son of noted radical lawyer Michael Tigar, who once represented Angela Davis. He displays what University of Colorado law school professor Paul Campos terms “jurismania”: the irrational conceit lawyers and judges frequently exhibit that presumes all of society’s problems—no matter how complex or intractable—can and should be solved through litigation, especially if the “solution” is characterized as an interpretation of “constitutional law.” In his 1998 book of the same title, Campos contends that the “obsessive pursuit” of litigation and “irrational worship” of legal rules in contemporary American culture “can come to resemble a form of mental illness.” Resorting excessively to legal procedures comes at the expense of common sense and leads to “tendentious jargon,” self-serving posturing, fraudulent rhetoric, undue deference to “experts,” and overreliance on decision-making by privileged elites such as lawyers and judges—all of which are on display in Judge Tigar’s ruling.
Punishing criminals is a basic state function, and deciding how (and at what expense) to run prisons is a quintessential legislative judgment. As long as prisoners are adequately fed and housed and are not arbitrarily abused, it should be of no concern to a judge—and especially a federal judge—whether prisoners have access to color TV, air-conditioning, recreational facilities, or elective medical procedures. Serving a prison sentence is a punishment; it is not supposed to be enjoyable.
It is nonsensical to grant imprisoned convicted felons health-care “entitlements” that many law-abiding, hardworking taxpayers don’t enjoy. One hopes that the state appeals Judge Tigar’s unprecedented ruling. Unless resisted, jurismania will destroy popular sovereignty. Campos reminds us that judges are “nothing more than an especially politicized subclass of lawyers.” And they rely on the docility of their subjects to impose their baseless edicts. Jeffrey Norsworthy is not Rosa Parks, vaginoplasty is not a civil right, and Tigar’s ridiculous decision is not a credible interpretation of the Constitution. It should not stand.
Photo by Joe Gratz