Appeals Panel Reverses Order that Prison Provide Sex-Reassignment Surgery

BY ARTHUR S. LEONARD | In a startling about-face, the five active judges of the US First Circuit Court of Appeals reversed both a district court ruling and a three-judge appellate panel in finding that the Massachusetts Department of Correction (Mass DOC) did not violate the Eighth Amendment ban on “cruel and unusual punishment” when it refused to provide sex-reassignment surgery to an inmate serving a life sentence.

Michelle Kosilek, who was named Robert at birth, was convicted of first-degree murder in the killing of her wife. Kosilek, who is 65, twice attempted suicide while awaiting trial and also failed in an effort at self-castration. After being imprisoned, she was diagnosed with gender dysphoria, and Mass DOC’s own medical staff recommended surgery as necessary medical treatment. But the department initially rejected even her request for hormone therapy and to be allowed to dress and groom as female because of a policy against such treatment for inmates convicted as male and imprisoned in an all-male facility.

The December 16 ruling came in a 3-2 vote, with the majority from the original three-judge appeals panel dissenting vociferously.

Full First Circuit says Massachusetts correctional officials can deny treatment for trans woman in male facility

The main dispute between the three-judge majority and the dissenters was over the appropriate role for appellate review of a district court decision that Judge Mark L. Wolf predicated on factual conclusions after a lengthy trial. While claiming it was not doing so, the majority appeared to heavily substitute its own judgment of the facts for Wolf’s, which was strongly decried by the dissenters.

An earlier stage in Kosilek’s litigation resulted in Wolf ordering Mass DOC to provide hormone therapy for her and to allow her to live as female. The department grudgingly complied, but kept her in the all-male prison and refused to allow the next step to sex-reassignment surgery, despite warnings from its own medical professionals who believed she might attempt to castrate herself or commit suicide if denied the surgery.

Under Supreme Court precedents, inmates are entitled to receive appropriate treatment for serious medical conditions, and the lower federal courts have in recent years generally come to the view that gender dysphoria qualifies. Little by little, resistance to starting hormone therapy in prison has been broken down by a series of federal decisions. Wolf’s more recent ruling, however –– based on Eighth Amendment grounds –– was the first to order a prison system to provide sex-reassignment surgery.

Mass DOC’s arguments in response to Kosilek have shifted over the years, but were not primarily based on the expense of surgery. Initially, the state quarreled with the view that the treatment was medically necessary and more recently settled on questions of security –– the concern being that after surgery there would be no good place to house Kosilek for the remainder of her life imprisonment. If kept in an all-male prison, officials contended, she would have to be placed in isolation to protect her from other inmates. Transferring her to a women’s prison would provoke negative reactions, even trauma among inmates –– many of them with histories of suffering sexual abuse –– forced to have a convicted wife-murderer in their midst.

Wolf found Mass DOC’s most recent rationale to not be credible, given the current commissioner’s success in another state’s prison system in housing a post-operative transgender woman in the general male prison population without serious security problems. The district judge ordered the department to provide Kosilek with surgery, and he was upheld by the three-judge First Circuit panel. Mass DOC then applied for what is known as en banc review, an intermediate step between a three-judge panel’s ruling and an appeal to the Supreme Court.

Writing for the en banc court, Judge Juan Torruella disputed several of Wolf’s factual findings. Wolf heard testimony from a variety of medical experts, some of whom said sex-reassignment surgery was medically necessary for Kosilek, with others disagreeing. The en banc court, then, decided that Wolf erred in finding Mass DOC’s refusal to provide the surgery unconstitutional. While prison officials cannot be “deliberately indifferent” to serious medical needs, here, the court found, Mass DOC was providing treatment, including psychotherapy and hormone treatment, and allowing Kosilek to dress and groom as female, as a result of which there was testimony her mental state had improved. The panel also concluded Wolf was wrong in rejecting Mass DOC’s testimony about the security concerns raised about housing Kosilek after surgery, and it rejected his conclusion that the department’s resistance was motivated by political pressures and adverse press coverage of the case.

The five-judge panel’s two dissenters pointed out that after its own medical experts endorsed the surgery, Mass DOC sought out a “second opinion” from a doctor known to oppose such procedures, thereby creating the alleged “split” in medical opinion.

Kosilek’s case has received wide attention and drew amicus briefs in support from groups including National Prison and the LGBT Rights Projects of the American Civil Liberties Union as well as Gay & Lesbian Advocates & Defenders. Kosilek’s legal team, led by Joseph L. Sulman before the First Circuit, might well now seek review by the Supreme Court, which has never previously ruled on an Eighth Amendment medical treatment claim by a transgender inmate.