Federal Appeals Court Upholds GID Surgery For Prisoner

By Lisa Keen

Keen News Service

A federal appeals court Jan. 17 affirmed a district judge's order that a state prison violated the constitutional rights of a prisoner with severe gender disorder when it refused to provide sex reassignment surgery.

The lawsuit, Kosilek v. Spencer, was supported by Gay & Lesbian Advocates & Defenders, the ACLU, the Human Rights Campaign, the National Gay and Lesbian Task Force, the National Center for Transgender Equality, and other LGBT organizations.

"If she needed treatment for cancer or heart disease, this case would never have wound up in court," said GLAD attorney Jennifer Levy.

"If we are to call ourselves a civilized society, there is a baseline of care that has to be provided to all prisoners, including prisoners who are transgender. We hope that Michelle will now get the treatment that she desperately needs."

Massachusetts prison inmate Michelle Kosilek, born with male genitals and named Robert Kosilek, was convicted in 1992 of murdering her spouse and sentenced to life without parole. In 2000, she sued for hormone treatment for her gender disorder and obtained it. In 2006, she sought sex reassignment surgery but was refused.

The state had argued that the level of treatment already being provided to Kosilek - hormones, permanent hair removal, female clothing and makeup, and psychotherapy - was adequate.

A group of doctors certified that the treatment was medically necessary and, in 2012, a federal district court judge ruled that withholding treatment violated the U.S. Constitution's Eighth Amendment guarantee against cruel and unusual punishment. The judge ordered the commissioner of the Massachusetts Department of Corrections, Luis Spencer, to provide her with sex reassignment surgery.

In a 2 to 1 decision Jan. 17, a First Circuit U.S. Court of Appeals panel upheld that decision.

The majority decision, written by Judge O. Rogeriee Thompson and joined by Judge William Kayatta (both Obama appointees), said to reach an Eighth Amendment violation, the prisoner must have a "serious medical need" and the prison's treatment must fail to achieve a level "reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards." All inadequate care does not constitute a violation of the Eighth Amendment, said the majority, so there must also be proof that the government was "deliberately indifferent" to the prisoner's treatment and the security considerations surrounding that treatment.

"We are assuredly mindful of the difficult tasks faced by prison officials every day," wrote the majority. "But as the Supreme Court has cautioned, while sensitivity and deference to these tasks is warranted, "[c]ourts nevertheless must not shrink from their obligation to 'enforce the constitutional rights of all 'persons,' including prisoners." And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox."

The district court's findings "that Kosilek has a serious medical need for the surgery, and that the [Massachusetts Department of Corrections] refuses to meet that need for pretextual reasons unsupported by legitimate penological considerations -- mean that the DOC has violated Kosilek's Eighth Amendment rights."

Dissenting Judge Juan Torruella (Reagan appointee) said, "That appropriate medical care must be provided does not, however, mean that inmates may seek and receive the care of their choosing....Prison officials commit no violation so long as the medical care provided is minimally adequate."

Mara Keisling, executive director of the National Center for Transgender Equality, said, "Decisions about treating serious healthcare decisions like sex reassignment surgery need to be made by doctors and patients, not prison authorities."

The majority took the time in its 90-page decision to discuss gender identity disorder, explaining it as "a psychological condition involving a strong identification with the other gender," recognized by the American Psychiatric Association. It also noted that sex reassignment surgery has been accepted treatment for the disorder "since at least the 1950s."

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