Back in January, a First Circuit panel concluded that Michelle Kosilek, a Massachusetts transgender inmate convicted of murdering her wife, should receive the sex reassignment surgery (SRS) she had been prescribed by her doctors and fought for in court for nearly two decades. The Department of Corrections (DOC) continued to oppose providing the treatment, appealing the case to an en banc hearing by the First Circuit. On Tuesday, the First Circuit reversed the previous decisions, allowing the DOC to deny surgery to Kosilek, and presumably all transgender inmates henceforth.
The facts in the case, previously recounted by ThinkProgress, have not changed. All that was different in this ruling was the Court’s interpretation of those facts and its understanding of what is medically necessary for transgender people. Over the period of time Kosilek has been navigating her depression and suicidal ideation fighting for this treatment, the standards of care and even language for diagnosing the medical needs of transgender people have improved. None of this was taken into consideration by the First Circuit.
The 3-2 majority opinion was written by Ford and Reagan appointee Juan Torruella, who unsurprisingly wrote the dissent in the January opinion. As in his previous opinion, Torruella argued that the DOC’s provision of hormone therapy, psychotherapy, and access to feminine attire and make-up was “adequate” to address Kosilek’s medical concerns, and thus its refusal to provide surgery did not violate the Eighth Amendment’s “cruel and unusual punishment” prohibition.
Because Kosilek benefited — at least in some regard — from the other treatment, it was good enough. Torruella also believed what the DOC had said about security concerns about where to place Kosilek post-surgery. “Even a denial of care may not amount to an Eighth Amendment violation,” he wrote, “if that decision is based in legitimate concerns regarding prisoner safety and institutional security.”
But DOC’s claims don’t line up with the facts. A fiery dissent by Obama appointee Ojetta Rogeriee Thompson calls out the many flaws in the DOC’s arguments and in the majority’s opinion.
Weighing The Threat Of Suicide Attempts
Two years ago, the American Psychiatric Association (APA) updated its Diagnostic and Statistical Manual of Mental Disorders, eliminating the diagnosis of “Gender Identity Disorder.” The goal of doing so was to establish that being transgender is not a mental disorder. But the APA added a new diagnosis of “Gender Dysphoria,” recognizing that people can still experience mental anguish because of the incongruity of their body with their gender identity. A diagnosis provides an entry point for doctors to prescribe hormones and other treatments, including surgery, and also increasingly allows many transgender patients to have their care covered by their health insurance.
The important takeaway as relates to this case is that being transgender itself does not cause mental health issues, but being unable to realize one’s gender identity can do just that. Kosilek’s multiple attempts at suicide or self-castration indicated to her doctors that she certainly was experiencing that mental anguish. The only way to end that anguish — as opposed to indefinitely treat its symptoms — is to allow for her to obtain SRS, which is why they prescribed that surgery as medically necessary.
But Torruella concluded that it was enough if the prison treated Kosilek the same way it treats other inmates who exhibit suicidal ideation. The DOC’s plan “employs methods proven to alleviate Kosilek’s mental distress while crafting a plan to minimize the risk of future harm,” he explained. But this ignores the fact that the risk could, in fact, be eliminated by allowing for the prescribed treatment.
The majority also found merit in the DOC’s “reasonable belief” that “providing SRS might lead to proliferation of false threats among other prisoners.” Despite the fact that Kosilek’s suicidal thoughts were a symptom of the problem the DOC refused to correct, that refusal was justified so that other inmates don’t fake such threats to get whatever they want.
Thompson countered that “treating the underlying disorder and its symptoms are two very different things,” noting the medical consensus that “the only way to adequately treat that problem was the sex reassignment surgery.” As to the precedent DOC fears establishing, Thompson didn’t have any concerns about whether they have the tools “to assess whether an inmate’s particular suicide threat is manufactured or real.” She found the argument unconvincing: “That the DOC does not want to be inundated with a hypothetical influx of false suicide threats hardly seems a valid reason to deny a prisoner care deemed medically necessary.”
Threats To Security And Safety
Torruella also believed the DOC had real security and safety concerns about where Kosilek would be placed after surgery. “Recognizing that reasonable concerns would arise regarding a post-operative, male-to-female transsexual being housed with male prisoners takes no great stretch of the imagination,” he wrote. He even believed that despite the fact she’s been held in a male prison all this time was no guarantee it would be safe later, calling DOC’s concerns a “well-reasoned belief.”
Thompson found this laughable, noting that the DOC’s own security review did not even uphold the claims it made in court. There have been no security concerns since Kosilek has been provided estrogen therapy and she has been safely housed for many years while presenting herself as female. Surgery would not change how she was perceived in a male prison.
How To Determine Medical Necessity
In the case, all of the doctors who actually examined Kosilek concluded SRS was medically necessary for her. The DOC consulted with two outside doctors who reviewed the files and agreed with DOC’s opinion not to provide the surgery. Those doctors, Cynthia Osborne and Chester Schmidt of Johns Hopkins University, both had reputations for not supporting SRS. Osborne was, at the time, actually involved in helping two other states refuse to provide surgery to transgender inmates. In fact, Johns Hopkins has been described as the “foremost institution in America involved in the repression and pathologization of trans and intersex people,” thanks especially to the foundational work of Dr. Paul McHugh, whose vocal opposition to SRS has been debunked and whose anti-LGBT biases have been well documented.
Torruella disregarded all of the lower court’s concerns about Schmidt’s testimony and biases, accusing that judge of substituting his own medical judgment over the doctor’s. Schmidt, who has never recommended SRS for a single patient, simply demonstrated “the breadth and variety of acceptable treatments” for people struggling with their gender identity, contradicting claims that the surgery was medically necessary.
Thompson dismantled this generalization, pointing out that Schmidt several times admitted in his testimony that he disagrees with the Standards of Care for transgender patients. His medical opinion thus violated the very Standards the DOC was supposedly committed to upholding. Those Standards, she also noted, have since been updated to note that “Health care for transsexual, transgender, and gender-nonconforming people living in an institutional environment should mirror that which would be available to them if they were living in a non-institutional setting within the same community.”
Thompson points out that despite the majority’s caveat that their decision will not “foreclose all litigants from successfully seeking SRS in the future” because of Kosilek’s “unique circumstances,” they’ve essentially created a standard to allow for just that. One of those circumstances was the divergence of opinion on the need for surgery, which Thompson said “only resulted from the DOC disregarding the advice of Kosilek’s treating doctors and bringing in a predictable opponent to sex reassignment surgery. It is no stretch to imagine another department of corrections stealing a page from this play book, i.e., just bring in someone akin to Osborne. It is hardly a matchless scenario.”
Indeed, she argued, the decision gives correctional departments “serious leeway with the Eighth Amendment” that will allow the same denial of care to occur again. “If they do not want to provide a prisoner with care recommended by one or more than one medical provider,” she wrote, “they need only find a doctor with a differing mind set (typically not a difficult task). It is no stretch to think that might be what happened here.”
Though some political officials are praising the decision, Thompson found it to be truly troubling and emblematic of prejudice against transgender individuals. In the conclusion of her dissent, she suggested that she wouldn’t have had to write it if Kosilek’s request were not perceived as “strange or immoral”:
Whether today’s decision brings this case to a close, I cannot say. But I am confident that this decision will not stand the test of time, ultimately being shelved with the likes of Plessy v. Ferguson, deeming constitutional state laws requiring racial segregation, and Korematsu v. United States, finding constitutional the internment of Japanese Americans in camps during World War II. I only hope that day is not far in the future, for the precedent the majority creates is damaging.
Indeed, the decision signifies that a few outlying doctors with biases against the standards of care can prevent LGBT people from receiving the medical care that the consensus of medical professionals agree that they should have.