Whether the Ninth Circuit erred in concluding that the guidelines set by an advocacy organization constitute the constitutional minima for inmate medical care under the Eighth Amendment, when the First, Fifth, Tenth, and Eleventh Circuits have all concluded that they do not

QUESTIONS PRESENTED The Ninth Circuit became the first circuit in the nation to conclude that the Eighth Amendment mandates the provision of sex reassignment surgery when it held that prison psychiatrist Dr. Scott Eliason inflicted cruel and unusual punishment on transgender inmate Adree Edmo by recommending in good faith that Edmo’s gender dysphoria be treated conservatively with hormone therapy and counseling, and not sex reassignment surgery. The panel reached this result by adopting an advocacy group’s treatment guidelines as constitutional requirements. The panel then held that Dr. Eliason was deliberately indifferent because he deviated from those guidelines; it failed to properly consider the subjective reasoning underlying his decision. The district court has ordered Idaho to provide Edmo’s surgery, which, if it occurs, will be the second such surgery ever performed on an inmate in this country. Ten circuit judges disagreed with the panel’s decision and would have granted the petition for rehearing en banc. The questions presented are as follows: 1. Whether the Ninth Circuit erred in concluding that the guidelines set by an advocacy organization constitute the constitutional minima for inmate medical care under the Eighth Amendment, when the First, Fifth, Tenth, and Eleventh Circuits have all concluded that they do not. 2. Whether the Ninth Circuit’s holding that a prison health care provider’s individualized medical decision was unreasonable and therefore constituted deliberate indifference, regardless of his subjective ii reasoning, conflicts with Estelle v. Gamble, 429 U.S. 97 (1976) (holding that mere negligence does not establish deliberate indifference), and Farmer v. Brennan, 511 U.S. 825 (1994) (holding the provider must have known of and disregarded a substantial risk of serious harm to find deliberate indifference).