SACRAMENTO, Calif. (AP) — An unusual confluence of events means it could be months before a transgender California inmate knows if she will have the sex reassignment surgery that she says is critical to her mental health.
Within hours on Thursday, a state panel recommended that convicted killer Michelle-Lael Norsworthy be paroled, and a federal appeals court delayed the surgery that had been set for July 1.
The separate decisions make it less likely that Norsworthy will receive the prison-funded procedure before she is released.
Norsworthy, 51, has lived as a woman since the 1990s and was scheduled for the surgery 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.
"We are disappointed that the stay was granted, as delays like this cause Michelle serious harm every single day," Ilona Turner, legal director of the Oakland-based Transgender Law Center, said in a statement.
Still, Norsworthy could undergo the surgery after she is paroled because she would be eligible for Medi-Cal, which covers medically necessary sex reassignment surgeries, Turner said.
The state Board of Parole Hearings has 120 days to review the commissioners' recommendation that Norsworthy be freed. If it is upheld, Gov. Jerry Brown will have another 30 days to intervene.
The 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.
The stay came the same day that two parole commissioners decided Norsworthy is no longer dangerous and should be freed after serving 28 years in prison for a second-degree murder conviction.
Senior Deputy District Attorney Ray Armstrong opposed her release, arguing that she has not taken responsibility for the murder of 26-year-old Franklin Gordon Liefer Jr. after an argument in a Fullerton bar in November 1985.
Armstrong said Norsworthy initially claimed the weapon fired accidentally and later contended that she had not intended to kill Liefer.
Armstrong also cited 16 prison rule violations by Norsworthy for fights, threats and possession of contraband, though she has had a clean record since 2009.
Norsworthy is being held at Mule Creek State Prison, a men's prison in Ione, near Sacramento. Prison records still refer to her by her birth name of Jeffrey Bryan Norsworthy.
Corrections officials said in a statement that they were pleased that the delay will let the appeals court review the merits of the state's appeal.