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First Circuit: No taxpayer-funded ‘sex change’ for jail inmate

Kirsten Andersen Kirsten Andersen Follow Kirsten

The 1st Circuit Court of Appeals has overturned a previous order that would have required the state of Massachusetts to pay for “sex-change” surgery for a man convicted of murdering his wife.

In January 2014, a three-judge panel of the 1st Circuit upheld a district court decision ruling that by not providing Robert Kosilek – who now goes by the name “Michelle” – with “medically necessary” “sex-change” surgery to treat his gender dysphoria, the Massachusetts Department of Correction was engaging in “cruel and unusual punishment” – a violation of his 8th amendment rights.

DOC officials testified that they had done the best they could in following the advice of Kosilek’s therapist in treating his gender dysphoria – a disorder in which patients believe they were born into the “wrong” biological sex.  He was permitted to legally change his name to Michelle; has been provided with female hormone pills, facial electrolysis, and women’s clothing; and enjoys routine psychotherapy aimed at easing his discomfort with his male biology.  But the DOC argued that giving him “sex-change” surgery would force them into a no-win situation when it came to security: Either the post-operative Kosilek would remain housed in the men’s facility where he has resided since his conviction in 1993, putting him at increased risk of sexual assault; or they would have to transfer him to a women’s prison, where his greater male strength would put the female inmates at greater risk of injury in case of a fight. 

The DOC also argued that giving Kosilek the surgery would set a dangerous precedent of inmates making suicide threats or attempts in order to get what they want, since “suicidal ideation” was used by the lower court to justify the necessity of the taxpayer-funded “sex change.”  They also worried that transport to and from the hospital for the surgery, as well as the hospital stay itself, would present too many opportunities for Kosilek to escape confinement.

In a 2-to-1 decision, the 3-judge appeals panel dismissed the DOC’s arguments and ordered them to provide the surgery despite their objections.  In response, the DOC appealed the ruling to the entire 1st Circuit. 

On Tuesday, in a 3-2 decision, the en banc court reversed the panel’s decision, ruling that the DOC’s ongoing responsiveness to Kosilek’s gender confusion was “adequate” if not “ideal,” and that refusing to provide elective surgery that could result in serious security risks for Kosilek or other inmates did not qualify as “cruel and unusual punishment.”

“Even a denial of care may not amount to an Eighth Amendment violation if that decision is based in legitimate concerns regarding prisoner safety and institutional security,” wrote Judge Juan Torruella for the majority.  “Recognizing that reasonable concerns would arise regarding a post-operative, male-to-female transsexual being housed with male prisoners takes no great stretch of the imagination.”

Joining Torruella in the majority were Judge Sandra Lynch, a Clinton appointee; and Judge Jeffrey Robert Howard, an appointee of George W. Bush.  Dissenting were two Obama-appointed judges, Ojetta Rogeriee Thompson and Williams Kayatta.

Both Thompson and Kayatta wrote formal dissents to the majority opinion.  Thompson was particularly heated in her opposition, predicting that the ruling “will not stand the test of time,” and lamenting that it “enables correctional systems to further postpone their adjustment to the crumbling gender binary.”

But Massachusetts Public Safety Secretary and DOC spokeswoman Andrea Cabral praised the judges’ ruling.

“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 in a statement. “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.”

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