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US: Court upholds ruling to grant inmate sex reassignment surgery

Ruling affirms that failure to provide surgery violated Michelle Kosilek's rights

The US Court of Appeals for the First Circuit has upheld a ruling that grants a Massachusetts inmate access to sex reassignment surgery. Credit:

A federal appeals court has upheld a ruling that would allow a Massachusetts inmate to undergo requested sex reassignment surgery, which a group of doctors said is "medically necessary."

Michelle Kosilek, who was born male and is serving life in prison for a 1990 murder, sued the Massachusetts Department of Correction (DOC) after its officials refused to allow her access to the surgery.

The US Court of Appeals for the First Circuit affirmed a district court ruling that Kosilek has a "serious medical need for the surgery" and that the DOC refuses to meet that need based, in part, on security concerns that are "largely false and greatly exaggerated." Those concerns include, in part, the possibility that Kosilek may be sexually assaulted if she is permitted to complete her transition, that housing her securely would be challenging, and that she would pose a flight risk while being transported to and from surgery.

Regarding the last concern, the appeals court rules that "on its face, the concern seems patently unrealistic. First, the DOC undoubtedly has a large amount of experience transporting prisoners within and outside of Massachusetts. Further, the likelihood of Kosilek, who has been transported to multiple doctor's appointments without issue, fleeing while traveling to receive the surgery that she has dedicated decades of her life to obtaining is improbable enough that we need say nothing more. Almost equally as unlikely is the idea that a now sixty-four-year old, post-surgical, recovering Kosilek would be able to escape when being transported back to prison."

As for the DOC's fears about Kosilek facing an increased risk of sexual assault, the appeals court notes that "even though deterring other inmates from potentially engaging in undesirable behavior may be a valid penal objective, it is not a reason to withhold medical care that has been deemed medically necessary for a particular inmate."

The court referred to testimony that the Washington State Department of Corrections housed a post-operative female transgender inmate, also serving a life sentence for murdering a female relation, without security or climate issues.

"We are assuredly mindful of the difficult tasks faced by prison officials every day. 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.'"

The appeals court adds, "Receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox."

Appeals court judges Ojetta Rogeriee Thompson and William Kayatta, Jr agreed with the district court that Kosilek's Eighth Amendment rights are being violated.

In a separate opinion, Judge Juan Torruella says the ruling exceeds the reach of the protections provided under that amendment. The amendment reads that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," Torruella observes.

Torruella says the DOC provides Kosilek with "a bevy of ameliorative measures aimed at treating her GID (gender identity disorder)." He adds, "The DOC's medical providers, Kosilek's psychiatrist, and Kosilek herself testified as to the positive impact these measures have had on her mental state and self-esteem.

"That appropriate medical care must be provided does not, however, mean that inmates may seek and receive the care of their choosing," he further states. 

Torruella concludes, "The Eighth Amendment proscribes punishment, including punishment in the form of medical care so unconscionable as to fall below society's minimum standards of decency. Its boundary simply does not reach, however, to instances of care that, although not ideal, illustrate neither an intent to harm nor the obstinate and unwarranted application of clearly imprudent care."