Prison officials must provide sex reassignment surgery to a prisoner serving a sentence of life without parole if that treatment is deemed “medically necessary,” said the United States Court of Appeals for the First Circuit on January 17, 2014.

Michelle Kosilek, a Massachusetts prisoner confined at the Massachusetts Correctional Institution Norfolk, sued Massachusetts Department of Corrections (DOC) officials in the United States District Court for the District of Massachusetts after they denied Kosilek’s request for sex reassignment surgery.  Born anatomically male, the former Robert Kosilek changed her name to Michelle and began pursuing treatment for gender identity disorder after being arrested in 1990 for the murder of Kosilek’s wife, Cheryl McCaul.  Kosilek was convicted of first-degree murder in Bristol Count (MA) Superior Court in 1992 and sentenced to life imprisonment.

Kosilek’s much-publicized quest for sex reassignment surgery began in the 1990s and continued in an epic journey through federal court proceedings before Honorable Mark L. Wolf, United States District Judge for the District of Massachusetts, that began in 2002 and stretched on through September 2012.

In his 2012 order that criticized corrections officials as disingenuous and deliberately obstructing Kosilek’s constitutional rights for political reasons and personal distaste for transgender prisoners, Judge Wolf ordered the DOC to provide Kosilek with the sex reassignment surgery she sought, and that had been prescribed by the DOC’s own medical experts.

Kosilek had previously successfully sued for the provision of female hormones and other gender-oriented treatment and items, but the 2012 order addressed Kosilek’s contention that sex reassignment surgery was medically necessary due to Kosilek’s “severe” gender identity disorder, which did not abate despite years of lesser treatment.

Upon the Commonwealth’s appeal to the First Circuit, Judge O. Rogeriee Thompson authored the opinion for a 2-1 majority, and found that the DOC was violating Kosilek’s rights under the Eighth Amendment’s “cruel and unusual punishment clause,” by acting with “deliberate indifference” to her “serious medical need.”  While acknowledging that the United States Supreme Court has ruled security concerns and legitimate penological interests are best left to the wisdom of prison officials, there is a base standard of medical care that must be respected.  “We are assuredly mindful of the difficult tasks faced by prison officials every day.  But as the Supreme Court has cautioned, while sensibility and deference to those tasks are warranted,” courts “nevertheless must not shrink from their obligation to enforce the constitutional rights of ‘all persons,’ including prisoners . . . receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox.”

In upholding the district court’s order that Kosilek is given sex reassignment surgery forthwith, the First Circuit noted that sex reassignment surgery has been an accepted treatment “since at least the 1950s,” and that such surgery was an integral part of “widely accepted, published standards” in several cases like Kosilek’s.  The court rejected the Commonwealth’s “security concerns” about such surgery as “patently unrealistic,” and that there was evidence that other claimed concerns were “bogus or at least overblown.”  As such, the court agreed with Judge Wolf that the DOC refused to meet Kosilek’s serious medical need for surgery “for pretextual reasons unsupported by legitimate penological considerations.”

No timetable has been given for Kosilek’s surgery, the planning for which the DOC was ordered to pursue pending appeal.  Kosilek’s case is the third in recent years in which a federal court of appeals, which answer only to the Supreme Court, has ruled in favor of transgender prisoners seeking surgery or challenging statutes designed to deny them medical care.  In 2013, the United States Court of Appeals for the Fourth Circuit, widely viewed as conservative, ordered a lower court to allow a Virginia transgender prisoner, Ophelia De’Lonta, to sue for sex reassignment surgery.  In 2011, the Seventh Circuit struck down a Wisconsin law that prohibited hormone treatment for transgender prisoners.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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