In a ruling last Thursday (in Zayre-Brown v. North Carolina Dep’t of Adult Corrections), two Fourth Circuit judges (Roger Gregory and Stephanie Thacker) voted to deny North Carolina’s motion to stay pending appeal a wild district-court ruling. The district court (Judge Max O. Cogburn Jr.) ordered North Carolina’s prison system either to agree to a transgender inmate’s request for a vulvoplasty (removing the prisoner’s phallus and fashioning female-appearing genitalia) or to form a new committee of gender dysphoria experts, approved by the judge, that would re-evaluate the inmate’s request. It imposed a deadline of last Friday (July 26) for the state to comply with its order.
As Judge Allison Jones Rushing explains in her compelling dissent, the Fourth Circuit should have granted the state’s request for a stay pending appeal: “The district court’s errors leap off the page.” The prison system determined that the requested surgery was not medically necessary. The district court did not find that conclusion to be wrong, yet it somehow determined that the prison system violated the Eighth Amendment—in its “process, not substance”—by denying the surgery. Judge Rushing shows that this is not the stuff of which an Eighth Amendment “deliberate indifference” claim can succeed. She also explains that the other factors warrant a stay pending appeal.
Rushing pointedly concludes:
Consideration of these longstanding traditional factors requires a stay pending appeal. Yet the panel refuses to issue one. It refuses even though denying a stay means that, by the time our Court issues a decision on the lawfulness of the district court’s order, our ruling will be of no effect. But perhaps that’s the point.