The separate decisions make it less likely that convicted killer Michelle-Lael Norsworthy will receive the prison-funded surgery before she is released.
Norsworthy, 51, has lived as a woman since the 1990s and was scheduled for the procedure on July 1 after a lower court judge ordered the state to provide it as soon as possible.
The state, however, contested the ruling and the appellate court delayed the surgery while it considers the case – a process that could take months.
Meanwhile, the state Board of Parole Hearings has 120 days to review the commissioners’ recommendation that she be freed. If it is upheld, Gov. Jerry Brown will have another 30 days to intervene.
Article continues belowThe three-judge panel of the 9th U.S. Circuit Court of Appeals said nothing about the parole decision in its brief ruling and instead noted that the case raises serious legal questions about whether the state’s resistance to the surgery violates Norsworthy’s constitutional rights.
Lawyers for Norsworthy have argued that denying the operation would amount to cruel and unusual punishment. The state Department of Corrections and Rehabilitation countered that it has met all of its requirements by providing counseling and hormone therapy.
“Also weighing in favor of a stay here is the likelihood that, absent a stay, this litigation would become moot before receiving full appellate consideration,” the appeals panel said as it set a hearing on Norsworthy’s case in August.