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Indiana Attorney General Todd Rokita is heading a multistate effort to overturn a decision requiring state prisons to provide sex-change operations for prisoners.
Rokita, along with Idaho Attorney General Raúl Labrador and a coalition of 24 states, filed the brief in the Ninth Circuit Court of Appeals on Wednesday, challenging a lower court’s interpretation of the Eighth Amendment.
The case stems from the U.S. District Court for the District of Alaska’s 2025 decision in Emalee R. Wagoner v. Jennifer Winkelman, Commissioner of Department of Corrections. The district court ruled against Alaska last fall, finding that the Department of Corrections acted with “deliberate indifference” toward plaintiff Emalee Wagoner’s diagnosed gender dysphoria and violated the Eighth Amendment of the U.S. Constitution, which prevents cruel and unusual punishment.
Richard Saenz, an attorney representing Wagoner, did not immediately respond to The Indiana Lawyer’s request for comment.
Wagoner, who is serving a 40-year sentence for sexually abusing several children for more than 10 years, sought gender-transition surgery while in the state’s custody.
According to court documents, from late 2016 to 2018, Wagoner pursued gender dysphoria treatment following a self-harm injury from an attempt to perform a self-sex-change operation in August 2016.
Wagoner first filed the complaint in 2018, followed by an amended complaint in 2019, which alleged that the Alaska DOC failed to implement “any policies with regard to the treatment of transgender inmates suffering from gender dysphoria,” and that DOC “failed to follow the referral [made by] Dr. Greg Lund to have her sent to a full spectrum transgender clinic.”
Wagoner requested that the court order the Alaska DOC to begin medical and mental health treatment that follows the World Professional Association of Transgender Health’s standards of care.
WPATH describes itself as a nonprofit, interdisciplinary professional and educational organization devoted to transgender health. The organization routinely publishes guidelines on how to treat gender dysphoria.
Over the course of the case, Wagoner began receiving various treatments, including hormone therapy, according to court documents.
In April 2023, a doctor regularly seeing Wagoner recommended that Wagoner be referred to a surgeon for evaluation for gender-transition surgery.
But on Oct. 23, 2023, the DOC’s medical advisory committee denied an evaluation for surgery, citing several concerns, including the degree to which a surgery would be essential as “medically necessary under DOC policy.
The court ultimately found the DOC in violation of the Eighth Amendment, citing the U.S. Supreme Court’s decision in Estelle v. Gamble, a 1976 case in which the justices found that failure to provide adequate medical care to incarcerated people can violate the Constitution and be a cruel and unusual punishment.
The Alaskan court also considered itself bound to the Ninth Circuit’s 2019 ruling in Edmo v. Corizon, Inc., which decided that gender-transition surgery for certain inmates is a medically necessary treatment. The Ninth Circuit also submitted itself to WPATH’s standards of care.
“DOC’s decision to provide hormone therapy to Ms. Wagoner does not satisfy its obligations to her, when evidence shows that she continues to suffer from gender dysphoria, for which [gender-transition surgery] is a medically indicated treatment that DOC has refused to approve,” the district court stated.
But the attorneys general find the Eighth Amendment silent on the particular circumstance.
“Nothing in the Eighth Amendment’s text or history allows prisoners to demand whatever medical interventions they desire,” stated the attorneys general’s brief. “Nor does anything in its text or history require States to provide risky, controversial medical procedures of uncertain benefit to prisoners.”
Rokita emphasized in a Thursday press release that the Eighth Amendment stops cruel and unusual punishment, but it does not give prisoners the right to demand “risky, optional surgeries when doctors and scientists still strongly disagree about whether they’re safe or even helpful.”
“If courts force states to provide these expensive, controversial procedures in one prison, it will open the floodgates everywhere — putting Hoosier taxpayers and families across the country on the hook for hundreds of thousands of dollars per surgery in virtually every state,” Rokita said. “We cannot let that happen. We have to win this case to protect hardworking taxpayers from footing the bill for these insane surgeries.”
The attorneys general also contended that the Ninth Circuit’s Edmo decision — the only circuit-court opinion in the country that has read the Eighth Amendment to require a sex-change surgery for a prisoner, according to the brief — should not dictate the current matter’s result.
Other issues raised
The brief expounded on several studies questioning the benefits of sex-change procedures, instead pointing to non-surgical interventions, such as psychotherapy.
The Alaskan district court also questioned the practices, saying there “remains uncertainty regarding the best modality to treat gender dysphoria, particularly in an incarcerated setting.”
The attorneys general’s brief also critiqued WPATH’s professional guidance, considering it more political activism than science-based.
WPATH did not immediately respond to The Lawyer’s request for comment.
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