An LGBT group representing a Massachusetts transgender inmate filed a petition with the U.S. Supreme Court on Monday to ensure she can receive gender reassignment surgery as part of her medical care.
The New England-based Gay & Lesbian Advocates & Defenders — along with civil rights attorney Joseph Sulman, and the Boston-based Goodwin Procter LLP — filed the 35-page petition on Monday on behalf of Michelle Kosilek, who was sentenced to life in prison for murdering her spouse in 1990.
Even though prison doctors prescribed her gender reassignment surgery to treat her gender dysphoria, she’s been denied the procedure for more than 20 years by the Massachusetts Department of Corrections, which has cited concerns for safety.
“The Eighth Amendment imposes on prison officials a duty both to provide adequate medical care and to protect prisoners from violence while incarcerated,” the petition states. “Prison officials are not entitled to choose between these two constitutional obligations. Instead, to comply with the Eighth Amendment, they must find a way to ensure both safety and adequate medical care for all inmates.”
The petition presents two questions before the Supreme Court: 1) Whether the U.S. First Circuit Court of Appeals erred by failing to separate factual and legal questions adequately, and 2) Whether denying necessary medical treatment to a prisoner for non-medical reasons constitutes cruel and unusual punishment under the U.S. Constitution.
Both a district court and a three-judge appellate panel within the First Circuit ruled in favor of Kosilek on the basis that denying her gender reassignment surgery violates the Eighth Amendment. But Massachusetts, which has argued it has taken sufficient steps to treat her in prison, appealed the decision to the “en banc” full First Circuit, which overturned the lower court rulings in a 3-2 decision.
The petition takes issue with the process by which the full court reached its decision, saying the lack of deference to lower courts is inconsistent with precedent set by the U.S. Supreme Court and conflicts with standards in other judicial circuits.
Jennifer Levi, director of GLAD’s transgender rights project, said in a statement the “en banc” court invented a new standard of review for the purpose of ruling against Kosilek.
“The Court of Appeals looked at an incredibly thoughtful decision, written with extreme care and attention to the facts by District Court Judge Mark Wolf after a 28-day trial,” Levi said. “Instead of looking for errors of law, as it is supposed to do, the Court not only re-tried the case, it applied a standard of review no other court has ever applied to get the outcome it wanted.”
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.
The next step in the process is for newly seated Massachusetts Attorney General Maura Healey, the first openly lesbian person ever elected as a state attorney general, to respond to the petition on behalf of the state. A due date for the response isn’t yet assigned on the Supreme Court website.