Prisons – Sex reassignment surgery

Listen to this article

Where a Massachusetts prison inmate requested treatment for her severe gender identity disorder, a U.S. District Court judge did not err in ordering the Massachusetts Department of Correction to provide sex reassignment surgery based on a finding that the DOC’s failure to provide the surgery violated the prisoner’s Eighth Amendment rights.

“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.”‘ … And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox.

“Here the trial judge had the opportunity to preside over two lawsuits involving the same players and similar allegations, to hear evidence in this case over the course of a twenty-eight day trial, to question witnesses, to assess credibility, to review a large volume of exhibits, and, in general, to live with this case for twelve years (twenty years if you count [Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002) (Kosilek I)]). The judge was well-placed to make the factual findings he made, and there is certainly evidentiary support for those findings. Those findings — that Kosilek has a serious medical need for the surgery, and that the DOC refuses to meet that need for pretextual reasons unsupported by legitimate penological considerations — mean that the DOC has violated Kosilek’s Eighth Amendment rights. The court did not err in granting Kosilek the injunctive relief she sought.”

Dissenting judge’s comments

Torruella, J.“Lest we lose sight of the rule that we are called upon to enforce, stretching it beyond the bounds of its intended purpose, it is perhaps appropriate to begin by reciting the text of the Eighth Amendment: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ U.S. Const. amend. VIII. In applying any rule, precise demarcation of its reach is both appropriate and necessary. Where these boundaries are ignored, the results are most often unforeseen, unintended, and unwarranted. It is only through careful attention to the countervailing interests that prescribe the sweep of a rule that we are best able to identify both those situations that fall clearly within its bounds, and those complexities that skirt along its outermost edges. Such limitations serve more than an exclusionary purpose; by establishing a rule’s proper scope, they ensure the effectiveness of its protections when correctly and adeptly applied.

“With due respect to the majority, I am forced to dissent because I cannot support what is, in my view, an outcome that proceeds with little recognition of such boundaries. Instead, it allows to stand a decision that, finding its foundation in several erroneous assumptions, reaches a result beyond the limits of our established Eighth Amendment jurisprudence.”

Kosilek v. Spencer (Lawyers Weekly No. 01-010-14) (118 pages) (Thompson, J.) (Torruella, J., dissenting) (1st Circuit) Appealed from a decision by Wolf, J., in the U.S. District Court for the District of Massachusetts. Richard C. McFarland, with whom Nancy Ankers White was on brief, for the defendant-appellant; Frances S. Cohen, with whom Jeff Goldman, Christina Chan, Bingham McCutchen, Joseph L. Sulman and David Brody were on brief, for the plaintiff-appellee; Andrew D. Beckwith on brief for the Massachusetts Family Institute, amicus curiae in support of the appellant; Cori A. Lable, Daniel V. McCaughey, Kristin G. Ali and Ropes & Gray LLP on brief for World Professional Association for Transgender Health, Mental Health America, Callen-Lorde Community Health Center, Whitman-Walker Health, GLMA: Health Professionals Advancing LGBT Equality and Mazzoni Center, amici curiae in support of the appellee; Joshua Block, Matthew R. Segal and David C. Fathi on brief for American Civil Liberties Union, American Civil Liberties Union of Massachusetts, Legal Aid Society, Harvard Prison Legal Assistance Project, Prisoners’ Legal Services of New York and Prisoners’ Legal Services of Massachusetts, amici curiae in support of the appellee; Jennifer Levi and Bennett H. Klein on brief for Gay & Lesbian Advocates & Defenders, EqualityMaine, Human Rights Campaign, MassEquality, Massachusetts Transgender Political Coalition, National Center for Transgender Equality, National Gay & Lesbian Task Force and Transgender New Hampshire, amici curiae in support of the appellee (Docket No. 12-2194) (Jan. 17, 2014).

Click here for the full-text opinion.