In a startling about-face, the five active judges of the U.S. 1st Circuit Court of Appeals reversed a decision by District Judge Mark L. Wolf and rejected the holding of a three-judge 1st Circuit panel on December 16 in finding that the Massachusetts Department of Correction did not violate the 8th Amendment ban on “cruel and unusual punishment” when it refused to provide sex-reassignment surgery for Michelle Kosilek, a life-prisoner for whom such surgery was recommended as necessary medical treatment by the Department’s own medical staff.
The vote by the “en banc” panel in Kosilek v. Spencer, 2014 U.S. App. LEXIS 23673, 2014 Westlaw 7139560, was 3-2, with the majority from the three-judge panel dissenting vociferously. The main dispute between the majority and the dissenters was over the appropriate role for the court of appeals in reviewing a district court decision that was heavily reliant on the factual conclusions that Judge Wolf had reached after a lengthy trial. While claiming it was not doing so, the majority appeared to heavily substitute its own judgment of the facts for Judge Wolf’s, a procedure strongly decried by the dissenters.
Kosilek, formerly known as Robert, is in her mid-sixties and is serving a life term without any chance for parole after having been convicted of first-degree murder of her wife. Kosilek twice attempted suicide while awaiting trial, and also ineffectively attempted self-castration. After being imprisoned, Kosilek was diagnosed with gender dysphoria, but her request for hormone treatment and to be allowed to dress and groom as female was rejected by the Corrections Department, which maintained a policy against such treatment for inmates convicted as male and imprisoned in an all-male prison. Earlier litigation resulted in Judge Wolf ordering the Department to provide hormone therapy for Kosilek and to allow her to live as female. Mass DOC grudgingly complied, but kept Kosilek in the all-male prison and refused to allow the next step to sex-reassignment surgery. even though its own medical professionals recommended it and believed that Kosilek might attempt to castrate herself or commit suicide if denied the surgery.
Judge Wolf had concluded that the Department’s refusal violated Kosilek’s constitutional rights under the 8th Amendment. Under Supreme Court precedents, inmates are entitled to receive appropriate treatment for serious medical conditions, and the lower federal courts have generally come to the view in recent years that gender dysphoria is a serious medical condition for which medical treatment must be given. Little by little, the resistance to starting hormone therapy in prison has been broken down by a series of federal court rulings. But Judge Wolf’s more recent ruling was the first to order a prison system to provide sex-reassignment surgery.
Mass DOC had advanced various arguments over the years as to why it should not be required to provide the surgery. It did not generally rely on an expense argument. Rather, it had quarreled with the view that such treatment was medically necessary, and as the litigation advanced (and with changes in the top personnel in the Department) it came to settle on security concerns as its main argument. In brief, the concern was that after surgery there was no good place to house Kosilek for the remainder of her life imprisonment. A post-operative transgender woman in an all-male prison, they contended, would have to be kept in isolation for her own protection against other inmates, and transferring her to the state’s one prison for female inmates was seen as inappropriate because many of the female inmates were victims of sexual abuse who would react very negatively – even be traumatized – by the introduction of Kosilek, a convicted wife-murderer, into their milieu.
Judge Wolf, noting the many and varied defenses advanced by DOC over many years of litigation, found this latest rationale noncredible and cited evidence that another state’s prison system, previously run by the current DOC Commissioner, had managed to house a post-operative transgender woman in the general male prison population without serious security problems, so he ordered the surgery, and the three-judge 1st Circuit panel upheld his order, finding that his factual determinations were supported by the trial record.
Disagreeing in an opinion by Circuit Judge Juan Torruella for the majority, the en banc court disputed several of Judge Wolf’s factual findings. Courts ruling in inmate medical cases generally have taken the view that prisoners are not necessarily entitled to the treatment they would prefer. The standard is that they are entitled to appropriate treatment for a serious condition, and where medical experts differ as to what treatment is appropriate, prison authorities can basically select a treatment that has the endorsement of a credible medical expert.
In this case, Wolf received testimony from a variety of medical experts, some of whom opined that sex-reassignment surgery was medically necessary for Kosilek, others disagreeing. In light of this, the court decided that it was error to find DOC’s refusal to provide the surgery constitutionally deficient. The constitution forbids prison officials from being “deliberately indifferent” to serious medical needs. In this case, the court pointed out, DOC was providing treatment, including psychotherapy and hormone treatment, and was allowing Kosilek to dress and groom as female, as a result of which there was testimony in the record that her mental state had improved. Furthermore, the court held that Judge Wolf erred in rejecting the DOC Commissioner’s testimony about the security concerns that would be raised by housing Kosilek after surgery. The court also rejected Wolf’s conclusion that DOC’s resistance responded to political pressures and adverse press comment about the case.
The dissenters argued that the majority had overstepped its ruling as a reviewing court in substituting its view of the facts for Judge Wolf’s. In particular, dissenters pointed out that after its own medical experts endorsed the surgery, DOC had sought out a “second opinion” from a doctor who was known to oppose such procedures, thus producing the alleged “split” in medical opinion relied upon by the majority. While the majority had insisted that these cases are to be decided on a case-by-case basis and that it was not categorically ruling out the possibility that sometime in the future a trangender inmate might be found to be constitutionally entitled to sex-reasignment surgery, the dissenters, pointing to the security holding, were dubious about this. Of course, the specific concern about housing Kosilek in a female prison due to her particular crime would not arise in a case involving a transgender prison who was imprisoned for a different crime.
Given the national notoriety attending the case and the numerous amicus parties who filed briefs in support of Kosilek’s claim, including the ACLU’s National Prison and LGBT Rights Projects and Gay & Lesbian Advocates & Defenders, it is possible that a petition for certiorari might be filed with the Supreme Court, which has never previously ruled on an 8th Amendment medical treatment claim by a transgender inmate. Lead counsel arguing for Kosilek before the 1st Circuit was Joseph L. Sulman.