Federal Appeals Court Orders State To Provide Inmate With Sex Reassignment Surgery

Massachusetts officials had appealed a trial court ruling ordering the surgery.

WASHINGTON — A federal appeals court Friday upheld a trial court decision ordering the Massachusetts Department of Correction to provide a transgender inmate with sex reassignment surgery deemed “medically necessary” by her doctors.

In summarizing the three-judge panel’s 2-1 opinion, Judge O. Rogeriee Thompson wrote:

Twenty years after prison inmate Michelle Kosilek first requested treatment for her severe gender identity disorder, the district court issued an order requiring the defendant, Luis S. Spencer, Commissioner of the Massachusetts Department of Correction (the “DOC”), to provide Kosilek with sex reassignment surgery. The court found that the DOC’s failure to provide the surgery — which was said by a group of qualified doctors to be medically necessary to treat Kosilek’s condition — violated Kosilek’s Eighth Amendment rights. The DOC appeals the district court’s order. Having carefully considered the relevant law and the extensive factual record, we affirm the judgment of the district court.

The other judges who heard the appeal were Judges Juan Torruella and William J. Kayatta, Jr. Thompson and Kayatta were appointed to the court by President Obama, and Torruella, who disagreed with the court’s decision, was appointed by President Reagan.

Noting that “providing some treatment is not the same as providing adequate treatment,” the judges concluded that they were “at a loss” to see how they could overturn the lower court’s ruling that surgery was medically necessary for Kosilek — beyond the non-surgical treatment the state had been providing.

The judges then note that, contrary to public discussion of the case, “there was no evidence that the DOC withheld surgery because it was too expensive.” The appeals court also held that prison officials “were keenly aware of and in fact motivated by the outcry” and decided that “the DOC refuses to meet that need [for surgery] for pretextual reasons unsupported by legitimate penological considerations.”

In conclusion, Thompson wrote, “While sensitivity and deference to [prison officials] is warranted, “©ourts nevertheless must not shrink from their obligation to ‘enforce the constitutional rights of all ‘persons,’ including prisoners,’” quoting the Supreme Court. “And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox.”

Torruella dissented on several grounds. Regarding the question of whether DOC officials had shown “deliberate indifference” to her medical needs, he wrote:

What is clear is that the DOC has, for several years, provided Kosilek with significant treatment for her GID. Equally clear is that this treatment has resulted in marked improvement in Kosilek’s mental state and contentment. She is not currently suicidal, and all reported instances of self-harm occurred two decades ago, long prior to her current course of treatment. The DOC also stands prepared to offer additional psychiatric services should Kosilek begin exhibiting signs of suicidality. I can see no violation on these facts.

[Correction: The original article did not correctly identify Judge Juan Torruella as disagreeing with the court’s decision.]

Read the 1st Circuit opinion:

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