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No Sexual Reassignment Surgery for Inmate: En Banc 1st Cir.

By William Peacock, Esq. on December 16, 2014 | Last updated on March 21, 2019

Michelle Kosilek, born as Robert, is a transgender individual who identifies as female and who wishes for her physical sex to match her gender. The problem is, she murdered her wife in 1990.

The Massachusetts Department of Correction does not wish to pay for sexual reassignment surgery. Kosilek argues that not doing so amounts to cruel and unusual punishment. She has twice previously attempted suicide and self-castration (all while awaiting trial for murder) and lesser treatments (hormones and psychotherapy) have not relieved her mental anguish over her gender identity disorder.

In 2012, U.S. District Court Judge Mark Wolf ordered the state to pay for the surgery. Earlier this year, a split First Circuit panel upheld that decision, 2-1. But today, an en banc court reversed in an opinion penned by the original panel's dissenter, while the two majority judges from the prior panel decision penned dissents.

Giving Deference Where Deference Is Due

Both the majority and the dissents spoke to the importance of deference.

For the majority, Judge Juan R. Torruella held that Judge Wolf improperly substituted his own judgment for that of the larger medical community, which did not unanimously endorse surgery as the appropriate treatment protocol. The experts differed on whether Kosilek's suicidal ideations would be helped by the surgery and whether her particular symptoms were a product of gender identity disorder, or of her other psychological disorders, namely Antisocial Personality Disorder.

The majority also held that Judge Wolf had not properly deferred to the judgment of the prison officials regarding security.

"The prison administrators in this case have decades of combined experience in the management of penological institutions, and it is they, not the court, who are best situated to determine what security concerns will arise," Judge Torruella wrote. "The DOC's security report reflected that significant concerns would also arise from housing a formerly male inmate -- with a criminal history of extreme violence against a female domestic partner -- within a female prison population containing high numbers of domestic violence survivors."

Conversely, both dissenting opinions accused the majority of failing to defer to the judgment of the trial court and of deciding issues of fact on appeal, rather than law.

Is the Larger Court Transphobic?

Judge O. Rogeriee Thompson was livid at the majority opinion's outcome, comparing the decision to Plessy v. Ferguson and Korematsu v. United States.

"I am confident that I would not need to pen this dissent, over twenty 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."

"[T]he precedent the majority creates is damaging," Thompson warned. "It paves the way for unprincipled grants of en banc relief, decimates the deference paid to a trial judge following a bench trial, aggrieves an already marginalized community, and enables correctional systems to further postpone their adjustment to the crumbling gender binary."

Judge William J. Kayatta Jr. wrote separately to criticize the fact-finding, warning that the court's decision "locks in an answer that binds all trial courts" instead of allowing "the search for the truth through continued examination of the medical evidence by the trial courts." He noted earlier in his opinion that, had he been the trial judge, he likely would have found against Kosilek because "medical science has not reached a wide, scientifically driven consensus mandating SRS as the only acceptable treatment for an incarcerated individual with gender dysphoria."

"Acknowledging that the majority may well be correct on the facts, I nevertheless decline the invitation to join the majority in embracing the authority to decide the facts," Kayatta continued. "I suspect that our court will devote some effort in the coming years to distinguishing this case, and eventually reducing it to a one-off reserved only for transgender prisoners."

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