Federal appeals court blocks transgender inmate’s request for gender reassignment surgery
A federal appeals court overturned a lower court’s ruling Tuesday that found Massachusetts must provide gender reassignment surgery for a transgender inmate.
The 1st Circuit Court of Appeals ruled 3-2 that Michelle Kosilek is not entitled to gender reassignment surgery under the 8th Amendment protecting her from cruel and unusual punishment.
“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,” the court ruled. “We therefore reverse the district court’s grant of injunctive relief, and we remand with instructions to dismiss the case.”
The decision comes after U.S. District Court Chief Judge Mark Wolf ruled in September 2012 that it is the “constitutional duty” of the Massachusetts Department of Corrections to grant Kosilek the surgery. That decision was appealed by Massachusetts Gov. Deval Patrick (D) and became a political issue in the state during an election year when Sen. Scott Brown (R) and his Democratic opponent, Elizabeth Warren, both voiced their opposition to the district court ruling. Out Rep. Barney Frank (D) also backed the appeal.
In January of this year, a three-judge panel of the 1st Circuit Court of Appeals upheld Wolf’s decision. However, Massachusetts then asked for an en banc review of the decision by the full bench of the 1st Circuit, which overturned the ruling today following oral arguments in May.
“Given the positive effects of Kosilek’s current regimen of care, and the DOC’s plan to treat suicidal ideation should it arise, the DOC’s decision not to provide [gender reassignment therapy] does not illustrate severe obstinacy or disregard of Kosilek’s medical needs,” the court found, noting that the Department of Corrections has provided Kosilek with hormone treatment, hair removal, psychotherapy and female garb.
The 65-year-old Kosilek legally changed her name from Robert to Michelle in 1993 after being convicted of strangling her wife to death in 1990. She has been serving a life sentence without parole in a prison for males since January 1993. Kosilek sued the Massachusetts Department of Correction in 2000 on the grounds that refusing her gender reassignment surgery as recommended by her doctors was equal to cruel and unusual punishment. Kosilek previously tried to castrate herself and has twice attempted suicide.
Tuesday’s majority opinion was written by Judge Juan Torruella and joined by Chief Judge Sandra Lynch and Judge Jeffrey Howard. Judges O. Rogeriee Thompson and William Kayatta Jr. dissented.
In a strongly written dissent, Thompson found the conclusion by the court that the Massachusetts Department of Correction did not violate Kosilek’s constitutional rights to be “erroneous, the majority’s analytical path to it is misguided, and the fact that this case is even subject to en banc scrutiny in the first place is wrong. And so I dissent.”
“I am confident that I would not need to pen this dissent, over twenty years after Kosilek’s quest for constitutionally adequate medical care began, were she 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,” she wrote.
Thompson added that she is confident the decision “will not stand the test of time” and ultimately be shelved with the likes of Plessy v. Ferguson, deeming constitutional state laws requiring racial segregation, and Korematsu v. United States, finding constitutional the internment of Japanese-Americans in camps during World War II.
“I only hope that day is not far in the future, for the precedent the majority creates is damaging,” she continued. “It paves the way for unprincipled grants of en banc relief, decimates the deference paid to a trial judge following a bench trial, aggrieves an already marginalized community, and enables correctional systems to further postpone their adjustment to the crumbling gender binary.”
Although Kayatta wrote in his dissent that he likely would have ruled against Kosilek had he been the trial court judge, “I am not the trial judge in this case. Nor are my colleagues. And that is the rub.”
Kayatta continued, “I write separately only to stress that even if one agrees with the majority that the district court got the fact-finding wrong, we should defer unless the result is clearly erroneous.”
Jennifer Levi, director of the Transgender Rights Project of Gay & Lesbian Advocates & Defenders (GLAD), which has provided counsel to Kosilek, blasted Tuesday’s decision as appalling. “It is difficult or impossible to imagine a decision like this one – that second-guesses every factual determination made by the trial court – in the context of any other prisoner health care case,” Levi said in a statement. “This decision is a testament to how much work remains to be done to get transgender people’s health care needs on par with others in the general public.”
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