Hartgen: What about the real victim in the Edmo sex-change ruling?
A Conservative Perspective

Hartgen: What about the real victim in the Edmo sex-change ruling?

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The recent denial by the U.S. Supreme Court to halt the Adree Edmo sex change surgery leaves many common-sense Idahoans scratching their heads. It effectively means Edmo will get his/her surgery this summer, paid for by Idaho citizens.

To catch up, Edmo is a prisoner in the Idaho corrections system, incarcerated for molesting a 15-year-old boy. Edmo is male, and was so at the time of the crime, but wants to have sex-change surgery, which the state considers an elective procedure that shouldn’t be paid at taxpayer expense. Edmo’s logic is that, without the surgery, his/her civil rights are being violated.

That’s the argument adopted when this case first was ruled on by U.S. District Judge Lynn Winmill, once an Idaho judge in Pocatello, and upheld by the federal Ninth Circuit Court of Appeals.

Idaho appealed the case to the U.S. Supreme Court, and asked for a stay, which was denied on a 7-2 vote. Technically, Idaho’s case is still alive, but the surgery seems likely for this summer.

Without explaining its formal logic, it’s a stretch to fathom the high court’s denial of a stay, but presumably, it adopted Winmill’s and the Appeals Court logic about Edmo’s rights being abridged.

Edmo argues that denial of the surgery causes him/her severe distress because he/she has gender dysphoria, which led him/her twice to attempt self-mutilation.

Attorneys for the Idaho Department of Correction say his/her prison doctors have determined the surgery isn’t medically necessary and would do more harm than good because it could exacerbate Edmo’s other mental health conditions. Got that? He/she is likely mentally ill.

Idaho Gov. Brad Little has also said Edmo should not have access to taxpayer-funded surgical procedures that other Idahoans can’t get covered through their own insurance.

But Edmo’s attorneys say prisons don’t get to pick and choose which people to treat, and they’re required to provide medically necessary care to incarcerated people. They have also contended that the harm done to Edmo by denying the surgery vastly outweighs any harm that providing it would pose to the state.

The order denying the stay was given by Justice Elena Kagan without explanation, but it noted that Justices Clarence Thomas and Samuel Alito would have granted the state’s stay request. (Associated Press, 5/22)

Average citizens will surely wonder why Idaho can’t deny a medically-elective procedure to a prisoner. To many, it’s a waste of taxpayer money on a superficial claim by an undeserving felon.

What about the real victim’s rights here, the 15-year-old boy’s right not to be victimized in such a heinous way? The judges didn’t address that obvious question. Poor felon gets his/her “due process,” but the boy, nah.

The case will also get people thinking, once again, about the virtual impossibility of reprimanding, much less removing, a federal judge from office. The U.S. Constitution (Article III) gives federal judges virtual lifetime appointment as long as they maintain “good behavior,” which doesn’t mean rulings with which people disagree.

An independent judiciary, safe from whimsical removal, was a key discussion among the Founding Fathers on the balance of federal power. As Hamilton wrote in Federalist 78, the “good behavior” language was needed to give real protection for an independent judiciary. That concept has stood the test of time, although many states, including Idaho, require state judges to routinely stand for retention and/or election.

The broader issue though is that rulings like this can’t help but diminish how citizens see the law.

Ordering taxpayers to fund Edmo’s surgery is thus a hollow victory, as it flies in the common-sense faith in the law which average citizens hold.

Judges should keep that principle in mind.

The Constitution gives them effective protection, but it does not make them kings or Gods over us all. It’s a short step indeed from citizen disagreement with the law to citizen disrespect for the law.

Here’s a final thought. Edmo is scheduled to be released from prison in 2021. Maybe Idaho should let him/her go now; then he/she can pay for his/her own surgery, if he/she thinks it’s necessary on his/her own dime.

But that would put a felon back on the streets. Sometimes, as Dickens says in Oliver Twist, the law really doesn’t make common sense.

Stephen Hartgen, Twin Falls, is a retired five-term Republican member of the Idaho House of Representatives, where he served as chairman of the Commerce & Human Resources Committee. Previously, he was editor and publisher of The Times-News (1982-2005). He is the author of the new book “Tradition & Progress: Southern Idaho’s Growth Since 1990.” This column was first published in www.idahopoliticsweekly.com. He can be reached at Stephen_Hartgen@hotmail.com

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