A federal appeals court has upheld a district judge’s ruling that a convicted murderer held in a Massachusetts state prison is being denied her constitutional right to gender-reassignment surgery deemed medically necessary.
In a 2-1 ruling on January 17, a panel of the Boston-based US First Circuit Court of Appeals affirmed a 2012 ruling from Judge Mark Wolf that the Massachusetts Department of Corrections (DOC) violated Michelle Kosilek’s Eighth Amendment to be free of “cruel and unusual punishment” when it refused to provide the surgery. Kosilek, who is 64, is serving a life sentence, without the possibility of parole, for the 1990 murder of her wife, Cheryl McCaul, a volunteer drug rehabilitation counselor who met Kosilek at the rehab and married her, believing “she could cure Kosilek’s gender identity disorder,” according to the appeals panel opinion.
The ruling may not end the matter, since the state is staunchly opposed to providing the surgery and will likely seek Supreme Court review. The panel’s opinion did not mention any stay of the trial court ruling, and Wolf had earlier directed the DOC to begin preparations for the surgery if his order were upheld by the First Circuit. Kosilek’s attorneys have criticized the state for dragging its feet in making these contingent arrangements.
According to the appeals panel’s opinion by Circuit Judge O. Rogeriee Thompson, Kosilek, who “was born and still is anatomically male... suffered regular abuse as a child, in part because of her expressed desire to live as a girl.” After being apprehended in New York following McCaul’s murder and returned to Massachusetts, she began taking female hormones in the form of birth control pills she “illicitly obtained from a guard” in a Bristol County jail. She attempted suicide twice and also tried to castrate herself while awaiting trial.
After she was convicted, Kosilek was sent to a state prison in Norfolk County, where she sought treatment for her gender dysphoria. Even though DOC medical staff agreed she suffered from gender identity disorder, the state corrections commissioner took the position that no inmate should receive hormone treatment if they were not already on such a regimen prior to conviction. Kosilek sued, and won the right to hormones and eventually other accommodations, including electrolysis to remove unwanted body hair, cosmetics, and some feminine garments. She continued to be housed in an all-male prison’s general population, but experienced no harassment and had an excellent disciplinary record.
DOC, however, consistently refused her request for surgery to make her gender transition complete or to consider moving her to a women’s prison. As a result, Kosilek sued a second time and the case consumed several years.
In September 2012, Wolf issued his decision, finding that DOC’s continued denial of gender reassignment surgery violated Kosilek’s Eighth Amendment rights. He ordered DOC to provide the surgery, but stayed his ruling pending appeal. At the time, no federal court had ever ordered a state prison system to provide such a procedure to an inmate. Since then, the Seventh Circuit has thrown out Wisconsin’s ban on providing gender reassignment surgery, and the Fourth Circuit found that prison authorities in Virginia must evaluate an inmate for such surgery and provide it if deemed medically necessary.
Generally speaking, there is a consensus among courts that transgender inmates are entitled to hormone therapy if it is judged to be medically necessary. There is not yet clear agreement on the question of gender reassignment surgery.
The court of appeals majority in Boston agreed with Wolf’s conclusion that expert testimony supported Kosilek’s claim, though Judge Juan R. Torruella, in dissent, argued that many of the district judge’s findings mixed questions of fact –– on which his conclusions are owed deference –– and of law, which are the customary subject of appellate oversight.
Torruella’s most serious objection related to the majority’s interpretation of what is required by the Eighth Amendment. He noted that the trial record indicated that Kosilek is receiving substantial treatment, both psychological and medical, for her gender dysphoria, and argued it could not be said that the DOC is “deliberately indifferent” to her medical needs. Her treatment, he maintained, had to be considered in light of the security challenges posed by gender reassignment surgery, which would take place outside of facilities controlled by the DOC, and of the need to properly house Kosilek after the surgery.
The State of Massachusetts has maintained that the expense of surgery –– pegged at anywhere from $7,000 to $50,000 according to newspaper reports –– was not the issue, and the three appeals judges agreed. Wolf, however, found none of the state’s non-expense explanations convincing, concluding that the security concerns were unduly inflated and raised in bad faith. He did not accept the corrections commissioner’s testimony that the DOC’s resistance to the surgery was not simply a response to political pressure resulting from media attention and objections from state legislators.
The appeals panel’s majority also accepted Wolf’s conclusion that some of the expert testimony put forward by the state –– including from someone known to be opposed to gender reassignment surgery –– fell outside of the bounds of professional opinion on gender dysphoria. Torruella argued that another of the state’s witnesses was well within the wide spectrum of accepted professional views. The majority, however, highlighted the testimony of one expert who said they had never come across a stronger case of gender dysphoria than in Kosilek.
Although she initiated litigation on her own, Kosilek is now represented by a substantial legal team, and her case has received support through amicus briefs from civil liberties, prisoners’ rights, and LGBT organizations.
In a written statement, Mara Keisling, executive director of the National Center for Transgender Equality, said, “Today’s decision affirms the increasing consensus among the courts that transgender-related healthcare is just healthcare and that people behind bars, including transgender people, have a constitutional right to healthcare. Decisions about treating serious healthcare decisions like sex reassignment surgery need to be made by doctors and patients, not prison authorities.”