A three-judge panel of the Boston-based U.S. Court of Appeals for the 1st Circuit voted 2-1 to affirm the district court’s decision that the Massachusetts Department of Corrections (DOC) violated the 8th Amendment when it refused to provide sex-reassignment surgery for Michelle Kosilek, who is serving a life-sentence without the possibility of parole for the murder of her wife. The ruling may not conclude the action, since the state’s staunch opposition to providing the surgery will likely lead it to seek further review from the Supreme Court, especially in light of the dissenting opinion in the court of appeals. Kosilek v. Spencer, 2013 U.S. App. LEXIS 951, 2014 WL 185512 (1st Cir., Jan. 17, 2014). The court’s opinion made no mention of staying the trial court’s injunction pending an appeal to the Supreme Court. U.S. District Judge Mark Wolf had directed the Department of Corrections (DOC) to identify a suitable doctor and make arrangements to be prepared to provide the surgery if his order was upheld by the court of appeals, but Kosilek’s counsel have criticized the state for dragging its feet in making these contingent arrangements.
Kosilek, now 64 years old, has been incarcerated at MCI-Norfolk since 1994. According to the opinion for the court by Circuit Judge O. Rogeriee Thompson, Kosilek, who “was born and still is anatomically male,” experienced a turbulent childhood and “suffered regular abuse as a child, in part because of her expressed desire to live as a girl.” Kosilek married Cheryl McCaul, a volunteer counselor at a drug rehabilitation facility where Kosilek was receiving treatment. “McCaul thought she could cure Kosilek’s gender identity disorder,” wrote Judge Thompson, but that did not turn out well, as Kosilek murdered McCaul and fled the area in 1990. She was apprehended in New York and brought back to the Bristol County Jail to await trial. While there, she took female hormones in the form of birth control pills she “illicitly obtained from a guard.” She attempted suicide twice while awaiting trial, and also attempted to castrate herself.
After she was convicted and sent to MCI-Norfolk, she sought treatment for her gender dysphoria. Although DOC’s medical staff agreed that she genuinely suffered from gender identity disorder, the Commissioner of Corrections took the position that no inmate should receive hormone treatment if they were not already on such a regimen prior to their conviction. Kosilek sued, as a result of which she ended up obtaining hormone treatment and eventually other accommodations to her desire to live as a woman while in prison, includng electrolysis to remove unwanted body hair, cosmetics and some feminine garments. Although she was housed in general population in an all-male prison, there were no untoward incidents and she had an excellent disciplinary record. However, DOC absolutely refused her request for surgery to make her gender transition complete, or to consider moving her to a women’s prison, resulting in this second lawsuit.
The case consumed several years in the district court, with at least three rounds of testimony from various medical experts, some presented by Kosilek, some by DOC, and a “neutral” expert appointed by the Judge Wolf. On September 4, 2012, Judge Wolf issued his decision, finding that DOC’s continued denial of sex reassignment surgery to Kosilek violated her rights under the 8th Amendment of the U.S. Constitution. Wolf ordered DOC to provide the surgery for Kosilek, but stayed his ruling pending appeal. At the time, no federal court had ever ordered a state prison system to provide sex reassignment surgery to an inmate. Since then, the 7th Circuit has ruled that a state law banning the prison system from providing such treatment is unconstitutional, and the 4th Circuit has ruled that prisoner authorities must evaluate an inmate for potential sex reassignment surgery and provide the procedure if medical experts agree that it is necessary for the inmate’s health.
The 8th Amendment bans “cruel and unusual punishment.” The Supreme Court has interpreted this to mean that if an inmate has a serious medical need, prison authorities are required to provide minimally adequate treatment to prevent serious harm to the inmate. Many courts have ruled on situations where transgender inmates sought treatment in prison, and a consensus has emerged that such inmates are entitled to hormone therapy at the state’s expense if qualified medical personnel diagnose gender dysphoria and agree that hormone therapy is necessary to meet the inmate’s medical needs. However, there is not yet a consensus that the 8th Amendment requires prison systems to provide sex reassignment surgery.
In this case, Judge Wolf concluded that the expert testimony supported Kosilek’s claim, and a majority of the court of appeals agreed. One point of contention between the majority and the dissenter, Circuit Judge Juan R. Torruella, concerned the appropriate standard for reviewing the district court’s decision. Generally, the court of appeals will give great deference to fact finding by a trial judge, and the majority felt that most of the key findings in this case were factual findings that should be upheld unless they were clearly erroneous. Judge Torruella argued that many of these findings concerned mixed questions of fact and law as to which less deferential review was warranted.
But Judge Torruella’s more serious objection was to the majority’s conception of what the 8th Amendment requires. He noted that the trial record indicated that Kosilek is receiving substantial treatment, both psychological and medical, for her gender dysphoria, and argued that it could not be said that DOC is being “deliberately indifferent” to Kosilek’s medical needs, in light of the security and logistical challenges posed by sex reassignment surgery, which would necessarily have to take place outside of facilities under DOC’s control, and by the need to properly house Kosilek after the surgery.
All the judges agree that DOC’s objection to providing the surgery is not based on expense, which, according to newspaper reports, can range from $7,000 to $50,000, depending on the extent of necessary cosmetic work. DOC offered various non-expense related reasons for denying Kosilek’s demands, but Wolf found none of them convincing. He found that DOC had unduly inflated the security concerns, and he concluded that DOC’s objections were raised in bad faith, influenced inappropriately by the political controversy that Kosilek’s case had inspired after Boston media ran feature stories about the case early on. Groups of state legislators sent letters to the Corrections Commissioner strongly objecting to spending state funds on sex reassignment surgery for a convicted murderer who would be spending the rest of her life in prison. Although the Commissioner testified that the department’s opposition to surgery for Kosilek was not due to political pressure, Wolf did not believe it.
The majority also endorsed Judge Wolf’s finding that some of the expert testimony was based on inadequate information, as some of the experts who testified about the security issues were not informed about Kosilek’s age and exemplary disciplinary record in prison. Wolf had totally discounted the testimony of one of the state’s experts, concluding that he was specifically sought out by the state because he was known to be opposed to sex reassignment surgery. Judge Torruella, the dissenter, was critical of this, noting that another of the experts had testified that the state’s expert’s testimony was within the bounds of professional opinion on the subject. Professional views range across a wide spectrum as to the appropriate treatment for gender dysphoria, both outside and inside prisons, but Judge Wolf, and the majority of the court, took as reasonably established the Harry Benjamin Standards of Career that have been accepted by many courts as the baseline for evaluating the adequacy of treatment in a prison setting. These standards provide for sex reassignment surgery if hormone therapy proves insufficient to deal with the individual’s strong gender dysphoria. One expert had testified that Kosilek suffered from the strongest case of gender dysphoria the expert had ever seen.
Although she initiated litigation on her own, Kosilek now is represented by a substantial legal team, led by Frances S. Cohen, and her case has received support through amicus briefs from civil liberties, prisoners’ rights, and LGBT organizations.