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Mass. Inmate Must Be Given Reassignment Surgery: 1st Circuit

By Aditi Mukherji, JD on January 23, 2014 | Last updated on March 21, 2019

A three-member panel of the First Circuit held that gender reassignment surgery is medically necessary for an inmate, affirming the September 2012 decision of District Court Judge Mark Wolf.

This is the first time an appeals court has held that the refusal by the state to provide gender reassignment surgery rose to a violation of an inmate's constitutional protections.

Gender Identity Disorder

Gender Identity Disorder ("GID") is characterized by a feeling of being trapped in the body of the wrong gender. The World Professional Association for Transgender Health prescribes a "triadic treatment sequence" comprised of hormone therapy, real-life experience of living as a member of the opposite sex, and if the dysphoria persists after one year of treatment, sex reassignment surgery.

Wolf's Rulings

Michelle Kosilek's case began in 2000 when Kosilek sued to get treatment for gender-identity disorder. In 2002, Judge Wolf ruled she was entitled to treatment, but not necessarily entitled to surgery. Wolf originally denied Kosilek's request for surgery because he was unsure whether a less intrusive option could provide adequate treatment.

Kosilek revived her suit in 2006, alleging cruel and unusual punishment through denial of necessary medical treatment in violation of the Eighth Amendment. She claimed that hormone therapy was insufficient and continued to exhibit symptoms of GID. Ultimately, it was Kosilek's attempts at self-castration and suicide when Wolf determined reassignment surgery was medically necessary.

The state contended that the surgery would present security issues and could make Kosilek a target for sexual assault. But Wolf deemed those reasons a pretext to deny the surgery and found there was no legitimate reason to deny the surgery. Doing so, he ruled, would be a violation of Kosilek's right to adequate prison medical care under the Eighth Amendment.

Even three medical experts, doctors hired by the Massachusetts Department of Corrections, concluded that sex reassignment surgery was medically necessary for this particular inmate.

First Circuit Ruling

Pointing to the specific factual findings and evidentiary support, the First Circuit affirmed Wolf's ruling.

The three-member panel ruled that Kosilek sufficiently demonstrated that she "has a serious medical need for the surgery, and that the Department of Correction (DOC) refuses to meet that need for pretextual reasons unsupported by legitimate penological considerations," which means "the DOC has violated Kosilek's Eighth Amendment rights [and] the court did not err in granting Kosilek the injunctive relief she sought."

This marks the first appeals court ruling to hold that a sex change operation was necessary for a prisoner suffering from gender identity disorder. Several courts in Massachusetts and across the nation have affirmed that some type of medical care is constitutionally required, but fell short of specifically holding reassignment surgery as necessary.

The ruling may very well make ripples in other circuits that are currently grappling with the issue.

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