The federal First Circuit Court of Appeals has reversed a landmark 2012 U.S. District Court ruling that ordered the Massachusetts Department of Corrections provide a transgender inmate with medically necessary gender-affirming surgery, Gay and Lesbian Advocates and Defenders announced today in a statement.
The decision revolves around the controversial case of Michelle Kosilek, a 65-year-old trans woman convicted of strangling her wife to death in 1990. While serving a life sentence without parole in a Norfolk, Mass., men's prison, Kosilek informed officials in 2000 that she is trans and began petitioning for transition-related health care. Initially denied hormone therapy, electrolysis, and surgical treatment, Kosilek sued the Massachusetts DOC under the Eighth Amendment, which prohibits cruel and unusual punishment and unnecessary infliction of pain on a prisoner.
Over the ensuing years, Kosilek petitioned the DOC eight times for medically necessary care for her diagnosed gender dysphoria, which she has said causes a high level of depression, anxiety, and stress. Kosilek has been granted (and at times, seen revoked) access to psychotherapy, electrolysis, and hormone treatment, but she says that her symptoms have persisted without access to gender-confirming surgery.
Her case garnered state and national interest and debate about the rights of transgender prisoners and whether taxpayer revenue should be utilized for gender-affirming treatment. While denying medically necessary health care is commonly considered cruelty, the brutality of Kosilek's crime has caused many — including Massachusetts senator Elizabeth Warren and former senator Scott Brown — to argue for withholding her health care or recognition of her gender identity. In turn, trans advocates have decried the implication that gender-conformation surgery is unnecessary or simply cosmetic.
In 2012, Kosilek's claims found traction. U.S. District Judge Mark Wolf made the unprecedented decision that the denial of health care violated Kosilek's Eighth Amendment rights. He ordered that Kosilek be allowed access to state-funded gender-affirming surgery and that her $500,000 in legal fees be paid by the Massachusetts state government.
This week, however, the gains made in Kosilek's case have been imperiled. In a sharply divided 3-2 vote, the First Circuit of Appeals found that the Massachusetts Department of Corrections is not beholden to pay for the gender-confirming surgery Kosilek seeks, according to GLAD.
The decision comes after a three-judge panel of the court upheld Judge Wolf's original ruling in January. The state subsequently requested a rehearing en banc, meaning the case would be heard by the full bench of the federal circuit. In the May en banc hearing, multiple doctors, including those hired by the Massachusetts DOC, recommended that Kosilek be granted access to gender-confirmation surgery, notes GLAD. However, the DOC won its appeal.
Writing for the majority, Judge Juan R. Torruella indicated that prison administrators were best suited to determine whether the need to provide a trans inmate with medically necessary health care overrides security concerns, notes The Boston Globe. Further, Torruella argued, Judge Wolf had wrongly substituted his own beliefs on medical care for those of experts, a group of whom did not unanimously agree that Kosilek's current health care was constitutionally inadequate.
In her dissenting opinion on this resolution, Judge O. Rogeriee Thompson pointed out that social prejudice against trans citizens played a large part in her colleague's decision to reverse Kosilek's acess to health care. "I am confident that I would not need to pen this dissent, over 20 years after Kosilek's quest for constitutionally adequate medical care began, were she not seeking a treatment that many see as strange or immoral," Thompson wrote. "Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter's protraction."
"The precedent the majority creates is damaging," she added. "It ... aggrieves an already marginalized community, and enables correctional systems to further postpone their adjustment to the crumbling gender binary."
According to GLAD, Thompson also predicted that today's decision will not stand the test of time, much like other major decisions in the history of the civil rights movement, including Plessy v. Ferguson, the 1896 Supreme Court ruling that upheld so-called separate but equal segregation laws.
“I am appalled by this decision, which means that Michelle Kosilek will continue to be denied the life-saving medical care she needs and has been seeking for years," Jennifer Levi, director of GLAD's Transgender Rights Project, said in a statement. "It is difficult or impossible to imagine a decision like this one — that second-guesses every factual determination made by the trial court — in the context of any other prisoner healthcare case. This decision is a testament to how much work remains to be done to get transgender people’s healthcare needs on par with others in the general public.”