A three-judge panel of the U.S. Court of Appeals for the 1st Circuit has upheld a federal district court ruling ordering Massachusetts officials to provide hormone therapy and gender-appropriate clothing for a civil detainee at the state's Treatment Center for Sexuality Dangerous Persons. The court found that the state's refusal to provide such treatment, in the face of multiple expert opinions that it is medically necessary and an attempt by the plaintiff to castrate herself, rose to the level of a constitutional violation. The three-judge panel that unanimously ruled in Battista v. Clarke, 2011 WL 1902165, included retired U.S. Supreme Court Judge David Souter. Circuit Judge Michael Boudin wrote the May 20, 2011, opinion for the court.
Born David Megarry, the plaintiff is now named Sandy Battista. In 1983 Battista was convicted in a Massachusetts court on counts of rape of a child, robbery and kidnapping, and served twenty years in state prison. As her imprisonment drew to an end, the state had her involuntarily committed to the Treatment Center in a civil commitment proceeding, persuading a court that she presented a continuing danger to sexually abuse children if released from custody. Under state law, she will be confined to the Center until a determination is made that she is safe for release into the civilian population. In the meantime, she is confined without any specific time limitation to an all-male institution in which, according to the court, she is sexually active.
In 1996, while serving her prison sentence, Battista sought treatment for gender identity disorder. She was treated dismissively by prison authorities, and a Department psychiatric consultant who was apparently dubious about the phenomenon of gender identity disorder characterized her requests for hormone therapy and to dress and groom as a woman as "bizarre." Subsequently another Department consultant confirmed a diagnosis of gender identity disorder and rendered the first of several expert opinions that hormone therapy for Battista is medically necessary treatment. But the Department has stonewalled on the issue ever since.
Battista has filed several lawsuits and attempted to castrate herself, but the Department has remained adamant in refusing her hormone therapy. Since she was transferred to civil commitment from prison, the Department's position has evolved a bit, to the present argument that appears to accept the diagnosis and need for hormone treatment but asserts that the dangers to Battista of living in the environment of the Treatment Center — mainly of physical/sexual attacks from other civil detention inmates who had committed sex crimes — outweighed her need for treatment. In making this argument, the Department has stressed its responsibility for the safety of inmates, and has pointed out that although hormones have been administered to some transgender inmates in the state's prison system, the civil commitment Treatment Center is at a lower level of internal security that would make it difficult to protect Battista unless she were placed in virtual solitary confinement, a condition that she rejects. The Department has stressed that many of the civil detainees in the Center are sex offenders whose propensities could be stimulated by the presence among them of somebody living as a woman.
The trial court was at first reluctant to order hormone treatment over the security concerns of the Department, but ultimately came to conclude that Battista's medical need outweighed those concerns, and that if pushed to provide treatment, the Department could come up with a way to do it while providing adequate security for Battista. Last summer the trial court issued a preliminary injunction ordering hormone treatment to begin, but as soon as the Department indicated it would appeal, the trial court stayed the order — mainly out of concern of an adverse impact on Battista if she were to begin hormone treatment only to have the order countermanded later by the court of appeals.
The court of appeals panel concluded that the trial judge had reached the appropriate decision, whether the issue was analyzed under the 8th Amendment (cruel and unusual punishment), which is used to consider denials of medical treatment to prison inmates, or the 14th Amendment Due Process Clause, which is used to evaluate the confinement conditions of civil detainees such as Battista and is generally seen as more favorable to plaintiffs in this context. Either way, the court said, without finding any sort of evil intent by the Department to "punish" Battista by depriving her of care, it is possible to conclude in this case that the Department's continued refusal to provide hormone therapy constitutes the deliberate indifference to a serious medical condition, or at least a failure of reasoned professional judgment — that crosses the line of constitutionally acceptable confinement.
The court cited several aspects of the trial court's findings to support this conclusion. First, that the Department was initially dismissive of the diagnosis and seemed to take too long to educate itself about gender identity disorder. Second, that the Department only came up with the "security justification" for denying treatment several years after it had received multiple expert opinions that such treatment was medically necessary, casting some doubt on the credibility of the security concerns. Third, that the Department had itself seemed recently to retreat from the idea that the only way to provide treatment was to place Battistia into virtual solitary confinement, by suggesting that it might be possible to manage the treatment in a way that would not totally isolate Battista from human contact and some of the activities available to inmates at the Center. The court opined that the trial judge might be correct that "a detailed solution will be developed only when the choice is forced on defendants" by a court order.
"In the end," wrote Judge Boudin, "there is enough in this record to support the district court's conclusion that 'deliberate indifference' has been established — or an unreasonable professional judgment exercised — even though it does not rest on any established sinister motive or 'purpose' to do harm. Rather, the Department's action is undercut by a composite of delays, poor explanations, missteps, changes in position and rigidities — common enough in bureaucratic regimes but here taken to an extreme. This, at least, is how the district court saw it, and it had a reasonable basis for that judgment."
Neal A. Minahan and Christopher D. Man of McDermott Will & Emery LLP represent Battista.