December 16, 2014 at 3:53 pm EST | by Chris Johnson
Court denies gender reassignment surgery to inmate
same-sex marriage, gay news, Washington Blade

A federal appeals court ruled that denying gender reassignment surgery to a trans inmate is constitutional.

The Massachusetts Department of Corrections is acting within its authority under the U.S. Constitution to deny taxpayer-funded gender reassignment surgery to a transgender inmate, a federal appeals court ruled Tuesday in a 3-2 decision.

Writing for the majority, U.S. Circuit Judge Juan Torruella, a Reagan appointee, says the state has already taken sufficient steps to care for Michelle Kosilek, who was sentenced to life in prison for murdering her spouse in 1990, without being required to provide her gender reassignment surgery.

“Given the positive effects of Kosilek’s current regimen of care, and the DOC’s plan to treat suicidal ideation should it arise, the DOC’s decision not to provide SRS does not illustrate severe obstinacy or disregard of Kosilek’s medical needs,” Torruella writes. “Rather, it is a measured response to the valid security concerns identified by the DOC.”

Joining Torruella in the majority was Chief Circuit Judge Sandra Lynch, a Clinton appointee; and U.S. Circuit Judge Jeffrey Robert Howard, an appointee of George W. Bush.

The decision from the full “en banc” U.S. First Circuit Court of Appeals reverses an earlier ruling in January from a three-judge panel on the court that determined denying the procedure on taxpayer funds to Kosilek amounted to cruel and unusual punishment under the Eighth Amendment.

The panel upheld a decision in 2012 from U.S. District Judge Mark Wolf, whose 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.

After the three-judge panel ruling, Massachusetts requested and was granted an “en banc” rehearing of the case before the full bench. Oral arguments took place on May 8.

Massachusetts Public Safety Secretary Andrea Cabral affirmed in a statement the full First Circuit was correct in overturning the lower court decision.

“The First Circuit Court of Appeals ruled that the medical and mental health care provided to Kosilek by the DOC did not violate the Eighth Amendment of the U.S. Constituion,” Cabral said. “While we acknowledge the legitimacy of a gender identity disorder diagnosis, DOC’s appeal was based on the lower court’s significant expansion of the standard for what constitutes adequate care under the Eighth Amendment, and on substantial safety and security concerns regarding Ms. Kosilek’s post-surgery needs.”

U.S. Circuit Judge Ojetta Rogeriee Thompson, an Obama appointee, and U.S. Circuit Judge Williams Kayatta, another Obama appointee, wrote stinging dissents in response to the majority in the “en banc” decision.

Thompson predicted the decision “will not stand the test of time” and will ultimately be shelved much like the 1896 decision of Plessy v. Ferguson, which upheld segregation, or the 1944 decision of Korematsu v. United States, which found the internment of Japanese-Americans during World War II was constitutional.

“I only hope that day is not far in the future, for the precedent the majority creates is damaging,” Thompson writes. “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.”

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 following an altercation that ensued 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 surgery is $7,000 to $24,000.

According to the New England-based Gay & Lesbian Advocates & Defenders, which was a co-counsel in the case, Kosilek was denied gender reassignment surgery by the Massachusetts Department of Correction against the recommendations of multiple doctors, including those hired by the state itself.

Jennifer Levi, director of GLAD’s transgender rights project, said she was “appalled” by the decision, saying it would deny Kosilek treatment that she has sought for years.

“It is difficult or impossible to imagine a decision like this one – that second-guesses every factual determination made by the trial court – in the context of any other prisoner health care case,” Levi said. “This decision is a testament to how much work remains to be done to get transgender people’s health care needs on par with others in the general public.”

Carisa Cunningham, a GLAD spokesperson, said her organization is “considering next steps right now” and hasn’t made any decisions when asked if GLAD will file a writ of certiorari before the U.S. Supreme Court seeking a reversal of the ruling.

Ilona Turner, legal director for the San Francisco-based Transgender Law Center, said the “en banc” First Circuit decision is “incredibly disappointing” and “the court got it wrong as a matter of law.”

“Categorically denying any incarcerated person access to critical medical treatment is inhumane and violates our Constitution,” Turner said. “It is well established that sex-reassignment surgeries can be medically necessary and even life saving for many transgender people. The state should not be able to deny someone that essential treatment just because of fears that it may be politically unpopular.”

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

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