For the first time, a federal court has ordered a state prison system to provide gender reassignment surgery for a transgender inmate. Chief District Judge Mark Wolf of the U.S. District Court for Massachusetts issued an order on September 4 directing Commissioner Luis S. Spencer to "take forthwith all of the actions reasonably necessary to provide [Michelle] Kosilek sex reassignment surgery as promptly as possible." Judge Wolf found that denial of the surgery violated Kosilek's right as a prisoner to be free of "cruel and unusual punishment" under the 8th Amendment of the Constitution's Bill of Rights.
"Kosilek is serving a life sentence, without possibility of parole, for murdering his wife," wrote Wolf. "Kosilek suffers from a gender identity disorder, which is recognized as a major mental illness by the medical community and by the courts. Kosilek is, therefore, a transsexual — a man who truly believes that he is a female cruelly trapped in a male body. This belief has caused Kosilek to suffer intense mental anguish. This anguish has caused Kosilek to attempt to castrate himself and to attempt twice to kill himself while encarcerated, once while he was taking the antidepressant Prozac."
The Supreme Court has ruled that the 8th Amendment requires that prison authorities not exhibit "deliberate indifference" to the serious medical conditions of inmates. This means providing adequate medical care for such conditions, with adequacy defined in terms of the accepted standards of the medical profession. Judge Wolf determined that the medical profession has come to accept that gender identity disorder is a serious medical condition, requiring treatment calibrated to the seriousness of the condition.
Some cases of GID can be adequately treated through psychological counseling, while others require hormone therapy in support of modifying the body to conform to the individual's gender identity. "There are, however, some cases in which sex reassignment surgery is medically necessary and appropriate," wrote Wolf, observing that in this case the medical staff at the Massachusetts Department of Corrections actually agrees that inmate Kosilek needs this treatment.
The problem has come at the political level of the Commissioner's office. Judge Wolf relates that a series of Commissioners has stubbornly resisted the recommendations of medical staff in this case, as well as resisting recommendations to provide hormone therapy in this and other cases. "Such cases have recently become more common in Massachusetts because the DOC has repeatedly denied transsexual prisoners prescribed treatment for reasons that the courts have found to be improper," wrote Judge Wolf.
Among other ploys to avoid providing the surgery, past Commissioners have discharged doctors who prescribed the treatment and hired new doctors who were categorically opposed to such treatment. Commissioners have argued that security concerns in the prison system justified refusal to provide hormone therapy — including at an earlier stage of Kosilek's lawsuit — but Judge Wolf found that the evidence in this case belies that argument. After being provided with hormone therapy and allowed to adopt feminine dress and grooming in response to an earlier ruling by Judge Wolf, Kosilek continued to live unmolested in an all-male prison with no untoward incidents occurring.
Judge Wolf dismissed the Commissioner's argument that Kosilek might seek to escape while being transported to a hospital for the surgery or during the hospital stay. The judge focused on what appears to be the real reason for the current Commissioner's stonewalling: fear of criticism from politicians and the media. This case has generated such criticism in the past, including editorials in the Boston media and adverse comments by state officials.
But the court considers such grounds for refusing to provide treatment as unconstitutional, because the only legitimate grounds for denying treatment must be based on legitimate penological concerns. The court rejected the argument that a prison can deny necessary medical treatment due to expense — an argument that has previously been rejected in litigation by HIV-positive inmates seeking expensive drug treatments — or due to political or press criticism.
"Elected officials are entitled to express their views on whether a prisoner should receive sex reassignment surgery," wrote Wolf. "The media has the right to comment critically on the conduct of prison officials and judges as well. Every citizen has a right to criticize public officials, including judges, too. However, a prison official acts with deliberate indifference and violates the Eighth Amendment if, knowing of a real risk of serious harm, she denies adequate treatment for a serious medical need for a reason that is not rooted in the duties to manage a prison safely and to provide the basic necessities of life in a civilized society for the prisoners in her custody. Denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose. It is precisely the type of conduct the Eighth Amendment prohibits."
Although Wolf's decision is the first to order gender reassignment surgery for a prisoner, it is not totally without supporting precedent. In 2011, the U.S. Court of Appeals for the 7th Circuit ruled that Wisconsin violated the 8th Amendment by adopting a statute prohibiting the expenditure of state funds for any hormone therapy or reassignment surgery for transgender inmates. That case did not, however, involve an order to provide surgery, as the inmate who was suing sought only hormone therapy.
Wolf also cited a recent decision by the U.S. Tax Court, which reversed long-standing policy of the Internal Revenue Service and allowed a transgender taxpayer to deduct sex reassignment expenses as legitimate medical expenses. Several federal courts, including some courts of appeal, have ruled that gender identity disorder is a serious medical condition, and several have upheld hormone therapy orders. Wolf's ruling, though specifically unprecedented, is thus a logical extension of existing precedents.