UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 13-2178

M. C., a minor by and through his parents Pamela Crawford and John Mark Crawford,

Plaintiff – Appellee,

v.

DR. JAMES AMRHEIN,

Defendant – Appellant,

and

DR. IAN AARONSON; DR. YAW APPIAGYEI-DANKAH; KIM AYDLETTE; MEREDITH WILLIAMS; CANDICE DAVIS, a/k/a Candi Davis; MARY SEARCY; DOE 1, Unknown South Carolina Department of Social Services Employee; DOE 2, Unknown South Carolina Department of Social Services Employee; DOE 3, Unknown South Carolina Department of Social Services Employee,

Defendants.

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AIS-DSD SUPPORT GROUP; THE PROGRAM FOR THE STUDY OF REPRODUCTIVE JUSTICE-INFORMATION SOCIETY PROJECT AT THE YALE LAW SCHOOL AND CONSTITUTIONAL SCHOLARS,

Amici Supporting Appellee. No. 13-2182

M. C., a minor by and through his parents Pamela Crawford and John Mark Crawford,

Plaintiff – Appellee,

v.

KIM AYDLETTE; MEREDITH WILLIAMS; CANDICE DAVIS, a/k/a Candi Davis; MARY SEARCY,

Defendants – Appellants,

and

DR. JAMES AMRHEIN; DR. IAN AARONSON; DR. YAW APPIAGYEI- DANKAH; DOE 1, Unknown South Carolina Department of Social Services Employee; DOE 2, Unknown South Carolina Department of Social Services Employee; DOE 3, Unknown South Carolina Department of Social Services Employee,

Defendants.

------------------------------

AIS-DSD SUPPORT GROUP; THE PROGRAM FOR THE STUDY OF REPRODUCTIVE JUSTICE-INFORMATION SOCIETY PROJECT AT THE YALE LAW SCHOOL AND CONSTITUTIONAL SCHOLARS,

Amici Supporting Appellee.

No. 13-2183

M. C., a minor by and through his parents Pamela Crawford and John Mark Crawford,

Plaintiff – Appellee,

v.

2 DR. IAN AARONSON; DR. YAW APPIAGYEI-DANKAH,

Defendants – Appellants,

and

DR. JAMES AMRHEIN; KIM AYDLETTE; MEREDITH WILLIAMS; CANDICE DAVIS, a/k/a Candi Davis; MARY SEARCY; DOE 1, Unknown South Carolina Department of Social Services Employee; DOE 2, Unknown South Carolina Department of Social Services Employee; DOE 3, Unknown South Carolina Department of Social Services Employee,

Defendants.

------------------------------

AIS-DSD SUPPORT GROUP; THE PROGRAM FOR THE STUDY OF REPRODUCTIVE JUSTICE-INFORMATION SOCIETY PROJECT AT THE YALE LAW SCHOOL AND CONSTITUTIONAL SCHOLARS,

Amici Supporting Appellee.

Appeals from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:13-cv-01303-DCN)

Argued: September 17, 2014 Decided: January 26, 2015

Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge.

Reversed and remanded with instructions by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Motz and Senior Judge Davis joined.

ARGUED: Andrew Lindemann, DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina; James Ben Alexander, HAYNSWORTH SINKLER BOYD, P.A., Greenville, South Carolina; Elloree Ann Ganes, HOOD LAW FIRM, LLC, Charleston, South Carolina, for Appellants. Kristi Lee Graunke, SOUTHERN POVERTY LAW CENTER, Atlanta, Georgia, for

3 Appellee. ON BRIEF: Kenneth N. Shaw, HAYNSWORTH SINKLER BOYD, P.A., Greenville, South Carolina, for Appellant Dr. James Amrhein. Robert H. Hood, Barbara Wynne Showers, Deborah Harrison Sheffield, HOOD LAW FIRM, LLC, Charleston, South Carolina, for Appellants Dr. Ian Aaronson and Dr. Yaw Appiagyei- Dankah. William H. Davidson, II, DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for Appellants Kim Aydlette, Meredith Williams, Candice Davis, and Mary Searcy. Kenneth M. Suggs, JANET, JENNER AND SUGGS, LLC, Columbia, South Carolina; Alesdair H. Ittelson, David Dinielli, SOUTHERN POVERTY LAW CENTER, Montgomery, Alabama; Anne Tamar-Mattis, ADVOCATES FOR INFORMED CHOICE, Cotati, California; John Lovi, William Ellerbe, STEPTOE AND JOHNSON LLP, New York, New York, for Appellee. Suzanne B. Goldberg, Sexuality & Gender Law Clinic, COLUMBIA LAW SCHOOL, New York, New York, for Amicus AIS-DSD Support Group. Priscilla J. Smith, LAW OFFICE OF PRISCILLA J. SMITH, Brooklyn, New York, for Amicus The Program for the Study of Reproductive Justice- Information Society Project at The Yale Law School and Constitutional Scholars.

Unpublished opinions are not binding precedent in this circuit.

4 DIAZ, Circuit Judge:

In April 2006, a doctor performed sex assignment surgery on

sixteen-month-old M.C., who was in the legal custody of the

South Carolina Department of Social Services and had been

diagnosed at birth with an intersex condition. Four months

after the surgery, Pamela and Mark Crawford took custody of M.C.

before adopting him in December 2006. The Crawfords filed this

action on M.C.’s behalf, against the officials

and doctors who played a part in the decision to have M.C.

undergo the surgery. The district court denied the officials’

and doctors’ motions to dismiss based on qualified immunity.

Because we find that no then-extant precedent gave fair warning

to those involved in the decision regarding M.C.’s surgery that

they were violating his clearly established constitutional

rights, we reverse.

I.

In our de novo review of a denial of a motion to dismiss

based on qualified immunity, we take “as true the facts as

alleged in the complaint, and view those facts in the light most

favorable to the nonmoving party.” Jenkins v. Medford,

(4th Cir. 1997) (en banc) (footnote omitted). We

draw the following facts from M.C.’s complaint.

5 M.C. was born with ovotesticular difference/disorder of sex

development (DSD). Ovotesticular DSD is an intersex condition

where the individual has ovarian and testicular tissue.

Hospital records first identified M.C. as male, but treating

physicians later sometimes referred to M.C. as female. Through

tests, examinations, and surgery, doctors determined that M.C.

had “extremely elevated” testosterone levels and that his

genitalia consisted of a testicle, an ovotestis with ovarian and

testicular tissue, a phallus, scrotalized labia, a short vagina,

and no uterus. J.A. 21-22.

In February 2005, M.C. was placed in the custody of the

South Carolina Department of Social Services (“SCDSS”) until

December 2006, when the Crawfords adopted him. Before the

adoption, SCDSS had was authorized to make medical decisions for

M.C.

After many examinations, tests, two surgeries, and numerous

consultations among SCDSS officials and doctors over the course

of a year, Drs. James Amrhein, Yaw Appiagyei-Dankah, and Ian

Aaronson recommended that M.C. have sex assignment surgery.

According to M.C, the doctors recommended the “irreversible,

invasive, and painful” surgery despite “no compelling biological

reason to raise M.C. as either male or female.” J.A. 12, 23.

The doctors also knew that they could “assign M.C. a gender of

rearing and postpone surgery” and that the surgery carried risks

6 of “complete loss of sexual function, scarring, loss of male

fertility, gender misassignment, and lifetime psychological

distress.” J.A. 24-25. In short, M.C. alleges that the surgery

was medically unnecessary. J.A. 25.

In April 2006, with consent from SCDSS, 1 Dr. Aaronson

performed a feminizing genitoplasty on sixteen-month-old M.C.

This surgery involved removing most of M.C.’s phallus, his

testicle, and the testicular tissue in his ovotestis.

After adopting M.C., the Crawfords originally raised him as

a girl, consistent with the sex assignment surgery. But as M.C.

grew older, it became clear that he identified as male, and he

is now living as a boy.

M.C., by and through the Crawfords, filed a § 1983 lawsuit

against the three doctors and seven SCDSS officials who played a

part in the decision to perform the sex assignment surgery. He

alleged Fourteenth Amendment substantive and procedural due

process violations. The district court denied the defendants’

motions to dismiss on qualified immunity grounds. The court

concluded that M.C. had pleaded sufficient facts to support his

contention that the defendants “violated his clearly established

constitutional right to procreation.” J.A. 244. The defendants

1 We do not consider the defendants’ assertion that M.C.’s birth mother also consented to the sex assignment surgery because that was not alleged in the complaint.

7 appealed, and we have jurisdiction. See Winfield v. Bass,

, 528 (4th Cir. 1997) (en banc) (“To the extent that an

order of a district court rejecting a governmental official’s

qualified immunity defense turns on a question of law, it

is . . . subject to immediate appeal.”).

II.

A.

To avoid dismissal of a complaint after a qualified

immunity defense is raised, a plaintiff must allege sufficient

facts to “make out a violation of a constitutional right” and

the court must find that this right “was clearly established at

the time of” the alleged violation. Pearson v. Callahan,

(2009) (internal quotation marks omitted). Courts

are “permitted to exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the

particular case at hand.”

.

The right at issue must be defined “at a high level of

particularity.” Bland v. Roberts,

(4th Cir.

2013) (quoting Edwards v. City of Goldsboro,

(4th Cir. 1999)). “This is not to say that an official action

is protected by qualified immunity unless the very action in

question has previously been held unlawful, but it is to say

8 that in the light of pre-existing law the unlawfulness must be

apparent.” Anderson v. Creighton,

(1987)

(citation omitted).

To be clearly established, “[t]he contours of the right

must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”

The

law can be clearly established “even in novel factual

circumstances” so long as officials had “fair notice” that their

conduct violated a constitutional right. Hope v. Pelzer,

(2002).

The “salient question” before us is “whether the state of

the law in [2006] gave [the defendants] fair warning that their

alleged treatment of [M.C.] was unconstitutional.”

.

Because we find that the alleged rights at issue in this case

were not clearly established at the time of M.C.’s 2006 sex

assignment surgery, we need not reach the question of whether

M.C. alleged sufficient facts to show that the surgery violated

his constitutional rights. See, e.g., Pearson,

-

45.

B.

We first consider M.C.’s contention, accepted by the

district court, that the defendants had fair warning that the

sex assignment surgery violated his constitutional right to

reproduction. In support of this proposition, M.C. draws our

9 attention to three cases: Planned Parenthood of Southeastern

Pennsylvania v. Casey,

(1992); Skinner v. Oklahoma

ex rel. Williamson,

(1942); and Avery v. County of

Burke,

(4th Cir. 1981). Although we acknowledge

the broad statements in these cases about reproductive rights,

we cannot say that a reasonable official would understand them

as clearly establishing an infant’s constitutional right to

delay sex assignment surgery.

In Casey, the Supreme Court reaffirmed the three-part

essential holding of Roe v. Wade,

(1973),

recognizing “the right of the woman to choose to have an

abortion before viability and to obtain it without undue

interference from the State”; confirming “the State’s power to

restrict abortions after fetal viability, if the law contains

exceptions for pregnancies which endanger the woman’s life or

health”; and establishing “the principle that the State has

legitimate interests from the outset of the pregnancy in

protecting the health of the woman and the life of the fetus

that may become a child.” Casey,

.

Skinner involved Oklahoma’s statutory scheme to sterilize

inmates classified as habitual criminals.

.

In finding the scheme unconstitutional, the Court focused its

analysis on how the law “la[id] an unequal hand on those who

ha[d] committed intrinsically the same quality of offense and

10 sterilize[d] one and not the other.”

. The Court

gave the example that the sterilization law did not apply to

embezzlers but did apply to those who committed grand larceny.

.

In Avery, we considered the case of a fifteen-year-old girl

who was misdiagnosed with sickle cell trait and then counseled

by state actors to be sterilized.

. Relying on

their advice, “Avery and her mother consented to the

sterilization,” but later tests showed that she did not have

sickle cell trait.

Avery claimed “that she was wrongfully

sterilized” because of the misdiagnosis and “because

sterilization is not medically recommended or proper, even when

there has been a correct diagnosis of [sickle cell] trait.”

She sued the individuals who recommended sterilization and their

employers, the local county and its Board of Health and Board of

Social Services.

Concluding that “[t]he county and the boards may be liable

under § 1983 if their policies or customs actually caused

Avery’s injuries,” we found that summary judgment in favor of

the local government entities was improper because a genuine

issue existed as to whether the county health boards’ failure to

implement policies for counseling and sterilizing people with

sickle cell trait amounted to a tacit authorization or

11 deliberate indifference to Avery’s right of procreation. Id. at

114-15. 2

Relying on the principles gleaned from these cases, the

district court concluded that the defendants violated M.C.’s

clearly established “right to procreation.” J.A. 244. We

think, however, that this frames the right too broadly for

purposes of assessing the defendants’ entitlement to qualified

immunity. See, e.g., Winfield, 106 F.3d at 531 (holding that

the district court erred in defining the right at an

inappropriate “degree of abstraction” and instead considering

whether a much more factually detailed right was clearly

established).

In our view, the alleged right at issue is that of an

infant to delay medically unnecessary sex assignment surgery.

By “medically unnecessary,” we mean that no imminent threat to

M.C.’s health or life required state officials to consent to the

surgery, or doctors to perform it. Viewed in that light, we do

not think that Casey, Skinner, or Avery put reasonable officials

on notice that they were violating M.C.’s constitutional rights.

As we have repeatedly emphasized, “[o]fficials are not liable

for bad guesses in gray areas; they are liable for transgressing

2 Notably, however, Avery made no mention of the merits of the claim against the individual defendants.

12 bright lines.” Maciariello v. Sumner,

(4th

Cir. 1992). We hold that the defendants did not transgress such

a bright line in this case.

C.

Although not reached by the district court, M.C. also

contends that the defendants had fair warning that the sex

assignment surgery violated his constitutional rights to bodily

integrity and privacy. For the right to bodily integrity, M.C.

points us to Winston v. Lee,

(1985), and Rochin v.

California,

(1952). For the right to privacy, M.C.

relies on Lawrence v. Texas,

(2003). We find these

cases too dissimilar to give the defendants fair notice of the

alleged constitutional violation.

Lee and Rochin involved medical procedures to secure

evidence against individuals suspected of committing a crime.

In Lee, the Court disapproved of a compelled surgical procedure

to extract a bullet that could connect Lee to a robbery.

. The Court in Rochin found shocking and

unconstitutional three police officers’ struggle to open

Rochin’s mouth to extract the capsules he had swallowed and,

when that method proved unsuccessful, forced stomach pumping to

retrieve the capsules.

. Neither of these

cases, however, gave the defendants fair notice that they were

13 violating M.C.’s right to bodily integrity by performing sex

assignment surgery that M.C. contends was medically unnecessary.

As for Lawrence, that case struck down “a Texas statute

making it a crime for two persons of the same sex to engage in

certain intimate sexual conduct.”

. We do not

think that a case barring a criminal prosecution based on

intimate, private sexual conduct between consenting adults gave

the defendants fair notice that they could not perform sex

assignment surgery on M.C. because it might impact his future

sexual autonomy.

D.

M.C. also alleges that the defendants violated his clearly

established procedural due process rights by not seeking a “pre-

deprivation hearing” “in which a neutral fact finder could weigh

the risks and purported benefits of early [sex assignment]

surgery, as well as the possibility of postponement or

alternatives to surgery.” Appellee’s Br. at 46-47. In so

alleging, he equates the sex assignment surgery to forced

sterilization. To support his argument, M.C. relies on Buck v.

Bell,

(1927); a concurring opinion in Skinner,

; and numerous state statutes and cases requiring a

court hearing “before an individual incapable of consent can be

sterilized.” Appellee’s Br. at 48.

14 We find, however, that reasonable officials in 2006 did not

have fair warning that they were violating M.C.’s clearly

established rights by not seeking a hearing before performing,

or consenting to, the sex assignment surgery. M.C.’s citations

to state statutes and cases are unpersuasive because many post-

date 2006, when the surgery took place, and all come from

outside South Carolina, where the surgery took place.

Moreover, Buck and Skinner involved intentional, certain

sterilization “of mental defectives” committed to state

institutions and “habitual criminal[s],” respectively. Buck,

; Skinner,

. In stark contrast,

the complaint in this case alleges that the sex assignment

surgery was performed on an infant with “ambiguous genitals” and

that such surgery “may reduce or eliminate reproductive

capacity.” J.A. 11, 19 (emphasis added). And although M.C.’s

brief describes the surgery as “fertility-destroying” and a

“surgical[] castrat[ion],” Appellee’s Br. at 45, the complaint

more cautiously describes the surgery as a “potential”

sterilization, with “loss of male fertility” as one of the

“risks.” J.A. 24-25, 31-32.

While it is true that “the very action in question” need

not have “previously been held unlawful” for an official to be

stripped of qualified immunity, the unlawfulness must

nonetheless “be apparent” “in the light of pre-existing law.”

15 Anderson,

. We conclude that the authority on

which M.C. relies did not make it apparent that the defendants

acted unlawfully by not seeking a hearing before the surgery.

III.

Our core inquiry is whether a reasonable official in 2006

would have fair warning from then-existing precedent that

performing sex assignment surgery on sixteen-month-old M.C.

violated a clearly established constitutional right. In

concluding that these officials did not have fair warning, we do

not mean to diminish the severe harm that M.C. claims to have

suffered. While M.C. may well have a remedy under state law, 3 we

hold that qualified immunity bars his federal constitutional

claims because the defendants did not violate M.C.’s clearly

established rights.

We therefore reverse the district court’s denial of the

defendants’ motions to dismiss and remand with instructions to

dismiss the complaint.

REVERSED AND REMANDED WITH INSTRUCTIONS

3 We have been advised that M.C. filed separate suits in state court asserting state law claims against the defendants.

16