Split en banc First Circuit reverses judgment that sex-change operation was medically necessary for imprisoned murderer
Michelle Kosilek, born Robert Kosilek, is serving a life sentence for killing spouse Cheryl Kosilek in 1990. Kosilek has waged a protracted legal battle for the surgery she says is necessary to relieve the mental anguish caused by gender-identity disorder.
In 2012, U.S. District Judge Mark Wolf became the first judge in the country to order sex-reassignment surgery as a remedy for an inmate’s gender-identity disorder. Courts around the country have found that prisons must evaluate transgender inmates to determine their health care needs, but most have ordered hormone treatments and psychotherapy, not surgery.
Wolf’s decision was upheld by a three-judge panel of the 1st U.S. Circuit Court of Appeals, but prison officials appealed and won a rehearing before the full appeals court.
In a 3-2 ruling Tuesday, the full 1st Circuit found that Kosilek failed to demonstrate that prison officials violated the Eight Amendment prohibition against cruel and unusual punishment by not providing the surgery.
The court noted that the state Department of Correction has provided treatment for Kosilek’s gender-identity disorder, including female hormones, laser hair removal and psychotherapy. The court also noted the department’s concerns about protecting Kosilek from sexual assaults if she completes her gender transition. She is currently housed in a male prison but hoped to be transferred to a female prison after the surgery.
“After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment,” Judge Juan Torruella wrote for the majority.
Two judges disagreed with the majority. In a sharply worded dissenting opinion, Judge Ojetta Rogeriee Thompson suggested that Kosilek would not have had to fight a long battle for constitutionally adequate medical care if she was not seeking “a treatment that many see as strange or immoral.”
“Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter’s protraction,” Thompson wrote.
The full 100+ page ruling is available at this link, and the majority opinion gets started this way:
This case involves important issues that arise under the Eighth Amendment to the U.S. Constitution. We are asked to determine whether the district court erred in concluding that the Massachusetts Department of Correction (“DOC”) has violated the Cruel and Unusual Punishment Clause of the Eighth Amendment by providing allegedly inadequate medical care to prisoner Michelle Kosilek (“Kosilek”). More precisely, we are faced with the question whether the DOC’s choice of a particular medical treatment is constitutionally inadequate, such that the district court acts within its power to issue an injunction requiring provision of an alternative treatment — a treatment which would give rise to new concerns related to safety and prison security.
After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment. We therefore reverse the district court’s grant of injunctive relief, and we remand with instructions to dismiss the case.
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