A majority of the five active judges of the U.S. Court of Appeals for the 1st Circuit has voted to withdraw and vacate the 2-1 panel decision in Kosilek v. Spencer, 2014 U.S. App. LEXIS 951, 2014 WL 185512 (1st Cir., Jan. 17, 2014), which had ruled that the Massachusetts Department of Corrections must provide gender reassignment surgery for Michelle Kosilek, who is serving a sentence of life imprisonment with no chance for parole upon conviction of the murder of her spouse. In its brief statement accompanying the order, 2014 U.S. App. LEXIS 2660 (Feb. 12, 2014), the court gave the parties until March 14 to file any supplemental briefs to those that are already on file in the case, and set the same deadline for prospective amici, who are required to seek prior leave of the court before filing. Reply briefs would have to be filed by March 21. The court set en banc hearing for May 8, 2014.
Given the size of the circuit, things do not look good for Michelle Kosilek getting her gender reassignment surgery. The 1st Circuit is authorized to have six active judges. There is one vacancy at present. Although there are several Senior judges, they don’t participate in en banc proceedings. Assuming that the judges in the majority on the panel were not interested in rehearing the case, that would mean that the dissenter and the other two active members of the circuit all voted for rehearing. Although this does not necessarily mean that the other two judges are set upon supporting the dissenter on the merits, one suspects they would not have voted for rehearing if they agreed with the majority.
Among the various amicus parties that have already filed briefs in the case are a coalition of LGBT and transgender-specific groups represented by Gay & Lesbian Advocates & Defenders, the Boston-based LGBT public interest law firm for New England.