A federal appeals court has overturned a ruling that would have allowed a transgender inmate to access sex reassignment surgery for the first time in U.S. history.
Michelle Kosilek, a 65-year-old transgender woman currently serving life without parole for the 1990 strangulation of her then-wife, has not demonstrated that the Massachusetts Department of Correction’s refusal to provide sex reassignment surgery violates the Eighth Amendment’s protection against cruel and unusual punishment, the First Circuit Court of Appeals ruled Tuesday.
The en banc decision reverses a 2012 federal district court ruling that ordered the Department of Correction (DOC) to provide such care to Kosilek, who would have been the first transgender inmate in the U.S. to undergo sex reassignment surgery while incarcerated.
“[W]e are faced with the question whether the DOC’s choice of a particular medical treatment is constitutionally inadequate, such that the district court acts within its power to issue an injunction requiring provision of an alternative treatment – a treatment which would give rise to new concerns related to safety and prison security,” wrote Judge Juan Torruella, a President Reagan appointee, in Tuesday’s opinion. “After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment.”
Kosilek suffers from gender dysphoria, which the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) defines as “clinically significant distress” arising in people whose gender assigned at birth differs from the one with which they identify. Treatment options include counseling, cross-sex hormones, social and legal transition to the desired gender, and sex reassignment surgery, according the DSM-5.After years of legal action, Kosilek in 2003 was able to receive female clothing, electrolysis to remove her facial hair, and hormone treatments, in addition to mental health care while remaining at a medium security male prison in Massachusetts. But citing security concerns and questions over medical necessity, the DOC stopped short of providing sex reassignment surgery as treatment for Kosilek’s gender dysphoria.
Jennifer Levi, director of the Gay & Lesbian Advocates & Defenders’ Transgender Rights Project – which joined the legal battle on Kosilek’s behalf – told msnbc she was very disappointed and surprised that the First Circuit sided with the DOC.
“The appeals court’s traditional role would be to decide if the trial court applied the wrong law; it would not be to second guess the facts that the trial court heard and found in the first instance,” said Levi. “What’s so unusual about this decision is that the appeals court did not identify what the trial court had done wrong as a legal matter, but rather disagreed with what the trial court found with regard to the essential medical need that Michelle Kosilek has for this particular treatment.”
“It’s very hard to understand this decision as being anything other than a transgender exception to the constitutional right that all inmates have to receive essential medical treatment,” she added.
Levi’s not alone. In a scathing dissent, Judge Ojetta Rogeriee Thompson, a President Obama appointee, likened the First Circuit’s majority opinion to Plessy v. Ferguson – the 1896 Supreme Court case that sanctioned laws requiring racial segregation – and Korematsu v. United States – the 1944 Supreme Court case that found constitutional the internment of Japanese-Americans during World War II.
“Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter’s protraction,” wrote Thompson. “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.”