January 18, 2014 | by Chris Johnson
Court: Trans inmate must receive gender reassignment surgery
National LGBT Bar Association, Gay News, Washington Blade

The First Circuit Court of Appeals ruled a trans inmate must receive gender reassignment surgery. (Image via wikimedia)

A federal appeals court ruled on Friday that a transgender inmate incarcerated for murdering her spouse must receive taxpayer-funded gender reassignment surgery that was prescribed by her doctors.

In a 2-1 decision, a three-judge panel on the First Circuit Court of Appeals ruled that denying the procedure to Michelle Kosilek, who was sentenced to life in prison for murdering his spouse in 1990, amounts to cruel and unusual punishment under the Eight Amendment to the U.S. Constitution.

The 90-page ruling was written by U.S. Circuit Judge Ojetta Rogeriee Thompson, an Obama appointee, who asserted the Massachusetts Department of Corrections denied Kosilek essential medical care by withholding from her gender reassignment surgery.

“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,” Thompson writes.

The ruling upholds a decision from U.S. District Judge Mark Wolf in 2012 asserting Kosilek has a right to gender reassignment surgery. The decision was controversial — even among progressive leaders. Then-U.S. Senate candidate Elizabeth Warren (D-Mass.) said she didn’t think the surgery was a good use of taxpayer dollars.

Transgender rights groups lauded the decision from the First Circuit on the basis that prisoners — even those who are transgender — have a right to medical care during their incarceration.

Mara Keisling, executive director of the National Center for Transgender Rights, said the ruling “affirms the increasing consensus among the courts” that transgender-related health care is a right protected under the Constitution.

“Prisoner or not, people should have access to the healthcare they need,” Keisling said. “For some of us, that means sex reassignment surgery. While we celebrate today’s ruling, we know there’s more advocacy needed to ensure that all transgender people have access to basic and necessary healthcare.”

Ilona Turner, legal director for the Transgender Law Center, said the First Circuit ruling upholds a constitutional right to essential medical treatment in prison.

“It is well established that the failure to provide essential medical care to people in prison is unconstitutional and amounts to torture,” Turner said. “This decision affirms that we as a society do not allow people to be tortured when they are in government custody.”

Afflicted with drug and alcohol problems at an early age, Kosilek in 1992 was sentenced to life in prison after strangling her spouse Cheryl McCaul, a volunteer counselor at a drug rehabilitation facility. The incident took place after McCaul caught Kosilek wearing her clothing.

Kosilek is serving her sentence in MCI-Norfolk, a medium security male prison, where she legally changed her name from Robert to Michelle. She must receive gender reassignment surgery through taxpayer-provided funds because, as an inmate in prison, she lacks access to her own finances for the procedure.

The estimated cost for male-to-female reassignment is $7,000 to $24,000. A footnote in the First Circuit decision notes that figure “pales in comparison to the amount of money it seems the state will be expending to defend this lawsuit.”

U.S. Circuit Judge Juan Torruella, a Reagan appointee who wrote the dissent in the decision, said he doesn’t find any reason to require Massachusetts to provide gender reassignment surgery to Kosilek when other treatments are available.

“[G]iving due consideration to countervailing security concerns and based on a review of the record that shows the DOC’s proposed care was not outside the realm of professionalism, I cannot say that the DOC has failed to adequately care for Kosilek’s GID or callously ignored her pain,” Torruella writes.

The decision could be appealed to the full First Circuit or the U.S. Supreme Court. The office of Massachusetts Attorney General Martha Coakley declined to comment on the next steps in the lawsuit.

Cara Savelli, a spokesperson for the Massachusetts Department of Correction, said the court ruling is under review.

“We are closely reviewing the lengthy decision issued today by the First Circuit Court of Appeals on this matter to determine next steps,” Savelli said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

1 Comment
  • Although I am more inclined to disagree with this because the individual is a felon and I do not have a lot of sympathy for someone who took another human beings life, I do understand the challenges one faces with Gender Identity Disorder. The thing that is really upsetting about this is that many individuals that suffer with this, have no means of correcting this unless they can come up with 10's of thousands of dollars to do so. There is no coverage by insurance of any kind even though for allot of GID sufferers, despite the fact that they would have a better quality of life it were available. It's a shame that one would have to go to prison to have something like this taken care of.
    As a veteran and tax paying citizen and an individual that has lived with this dilemma all of my life, I find it very difficult to understand why a convicted murderer has more rights to help than I. “It is well established that the failure to provide essential medical care to people in prison is unconstitutional and amounts to torture,” Turner said. “This decision affirms that we as a society do not allow people to be tortured when they are in government custody.”
    But if you are not in custody, I guess you just have to suffer…

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