Federal Appeals Court: It’s Cruel And Unusual Punishment To Deny Transgender Inmates’ Surgery


A panel of the First Circuit Court of Appeals ruled 2-1 on Friday in favor of Massachusetts transgender inmate Michelle Kosilek, affirming a lower court ruling that she deserves the sex reassignment surgery (SRS) her doctors have prescribed. The epic ruling details Kosilek’s 20-year struggle to obtain the proper treatment and the lengths that the Massachusetts Department of Corrections (DOC) have gone to delay allowing her to receive it — a violation of the Eighth Amendment of the Constitution, which forbids “cruel and unusual punishment.”

The decision, itself, represents further delay, because the DOC appealed the lower court decision to again avoid allowing Kosilek to obtain the treatment that her doctors had deemed “medically necessary.” In their appeal, the DOC challenged two points made by the lower court: 1) that denying Kosilek sex reassignment surgery constituted unconstitutionally “inadequate medical care” and 2) that the DOC was not deliberately indifferent to her need for treatment.

The majority, in an opinion written by Judge O. Rogeriee Thompson, an Obama appointee, rejected these two challenges. The only medical professionals who disagreed that Kosilek was deserving of SRS were those who the DOC sought out knowing that they would be biased against recommending such treatment. The fact that doctors could be found to provide such a conclusion was not enough to disprove what the rest of her doctors insisted, let alone the fact that Kosilek had already twice attempted suicide and once attempted self-castration:

With the prerequisites for surgery satisfied, Drs. Brown, Kaufman, Forstein, Kapila, and Appelbaum all testified unequivocally: SRS was medically necessary and the only appropriate treatment for Kosilek. And they all agreed that a very likely consequence of Kosilek not receiving the surgery was a serious risk of harm, predominantly suicide. Kosilek herself testified, and the court found credibly so, that though hormone treatments had helped, she still suffers intense mental anguish over her male genitalia and believed she needed surgery. As Kosilek explained, she did not want to continue living with her male genitalia and antidepressants and psychotherapy would not change that.

In defense of its second challenge, the DOC argued that it had significant security concerns relating to Kosilek both traveling to receive the surgery — that she might be a flight risk — and reintegrating into the prison — that she would either be a victim if she continued to serve in the men’s prison or a threat and a flight risk if she were placed into a women’s prison. The majority dismissed the first argument outright:

The likelihood of Kosilek, who has been transported to multiple doctor’s appointments without issue, fleeing while traveling to receive the surgery that she has dedicated decades of her life to obtaining is improbable enough that we need say nothing more. Almost equally as unlikely is the idea that a now sixty-four year old, post-surgical, recovering Kosilek would be able to escape when being transported back to prison.

Moreover, the Court was unconvinced that the DOC’s supposed security concerns held any merit, particularly because Kosilek already openly identifies as female in the prison without issue:

First, Kosilek has been housed safely while living as a woman — wearing female clothing, using female cosmetics, and taking female hormones that caused her to develop breasts and a feminine body shape — in the general population at MCI-Norfolk for many years… Once an actual security review was done, then Superintendent Spencer reported that there were no current security concerns with Kosilek being provided estrogen therapy. And no security issues ended up cropping up after that. The DOC’s about-face calls into question their present stance with regard to the impact of surgery.

The case begs the question as to what is gained by denying Kosilek the surgery. Despite public outcry from elected officials that taxpayer money should not be spent on such treatment — including a proposed law banning sex reassignment surgery for inmates — it was never actually an argument made in this case. In fact, Massachusetts has spent far more fighting Kosilek’s surgery (over $52,000 on medical experts alone) than her surgery would have cost.

The dissent, written by Ford and Reagan appointee Judge Juan Torruella, sheds no further light on the benefits of denying Kosilek the medical treatment she deserves. He was persuaded that the DOC’s biased experts provided an “adequate” solution for Kosilek, ignoring the fact that depression was a symptom of her gender dysphoria and thus, antidepressants alone would not solve her problem. His bias against Kosilek’s needs was particularly evident when he wrote that the DOC had reasonable concerns that she would be a security threat after her surgery:

The majority defends the district court’s determination in part by noting that Kosilek may continue to be housed in MCI-Norfolk’s general population where no security issues have arisen during her tenure. The fact that no such issues have arisen in the past, however, does not necessarily render inappropriate or unreasonable the DOC’s concerns that issues might present themselves in Kosilek’s post-operative future. Certainly, courts cannot and should not strip from prison officials the ability to consider and implement prophylactic solutions to foreseeable issues reasonably within the scope of their security expertise. In fact, such a retroactive style of administration would, in itself, seem to amount to just the sort of indifference to credible threats of harm that might constitute a constitutional violation.

Torruella offered no explanation as to how or why Kosilek might somehow become a threat after receiving surgery.

Though Kosilek has been forced to wait entirely too long to receive the medical care that she deserves, her story and the epic amount of deliberation over her condition provide a unique educational opportunity about transgender identities. Kosilek’s distress is not because she is transgender, but because she has been denied the opportunity to fully realize her transgender identity. Though her murder conviction may not endear much public sympathy, her victory will likely set important precedents for the health care of transgender people in the future.