Trans-Injustice: Prejudice & Fear Dominate First Circuit Opinion

By Amy Fettig

Even as transwomen like Laverne Cox and Janet Mock grace the cover of Time magazine or facilitate dialogue on MSNBC, the reality is that trans people, and transwomen in particular, still can’t get justice in our federal courts.  But now there’s a chance that too could change.  Last week a petition for writ of certiorari was quietly filed with the U.S. Supreme Court in one of the potentially most important cases for the transgender community and prisoner rights this term.  The case, Kosilek v. Spencer, involves the Massachusetts Department of Correction’s (DOC) refusal (over decades) to provide Michelle Kosilek, a transgender woman prisoner, with the gender affirming surgery recommended by her doctors and DOC’s own physicians.  If the Court grants cert., it has the chance to right this decades-long wrong for Ms. Kosilek and ensure that other trans prisoners around the country finally receive appropriate medical care.

In 2012, Ms. Kosilek first won a groundbreaking victory in the U.S. District Court  for the District of Massachusetts to obtain her gender-transition related surgery after years and years of litigation.  According to numerous medical experts and her treating physicians, she suffers from extremely severe Gender Identity Disorder – or Gender Dysphoria as it is now known.  Due to her condition, she experiences mental anguish because of the incongruity of her body with her gender identity.  Indeed, she has attempted suicide and self-castration on multiple occasions, and doctors have repeatedly confirmed that she is at risk of suicide in the future if she does not receive this care.

This original victory was hard fought and long delayed.  Ms. Kosilek filed her first pro se complaint regarding the DOC’s refusal to provide her adequate medical treatment in 1992.  Over ten years later, she finally managed to get some appropriate treatment to alleviate her symptoms in the form of hormones, electrolysis, and access to gender appropriate personal items, such as female clothes and makeup.  Such treatment is part of the recognized Standards of Care for Gender Dysphoria.  But according to Ms. Kosilek and numerous specialists testifying before the district court, this treatment is insufficient to alleviate her mental anguish.  Under the Standards of Care, sex reassignment surgery (SRS) is considered an appropriate treatment for continued Gender Dysphoria after other treatments, such as hormone therapy, have been tried and fail to alleviate the dysphoria.  In 2012, the district court held that DOC officials’ refusal to provide SRS to Ms. Kosilek violated the Eighth Amendment’s prohibition against cruel and unusual punishment.  It based this ruling on their failure to provide adequate treatment for her serious medical needs and the fact that they did so knowing that the failure to offer treatment put her at risk of substantial harm, including self-harm and suicide.

After an extensive trial, the district court made clear that the only prudent course of treatment for Ms. Kosilek’s condition is SRS, and that the security reasons proffered by the DOC for refusing to provide the surgery are motivated by political concerns rather than legitimate penological objectives.

Prior to Ms. Kosilek’s victory, no DOC had been ordered by a court to provide SRS to a prisoner.  The decision created controversy in Massachusetts and beyond—fueled both by the nature of the treatment itself, and the fact that Ms. Kosilek is in prison under a sentence of life without parole for the murder of her wife.  As a result, many in the corrections field were deeply interested in the case.

When Kosilek was decided, I assumed that most corrections professionals would vehemently disagree with the decision – but soon learned that I was wrong.   After the decision came down, a professional group, the Correctional Accreditation Manager’s Association (CAMA), reached out to me to conduct a training workshop on transgender prisoner rights at its annual conference.   I was very surprised by this invitation.  And I prepared myself to meet a hostile crowd.

But that’s not what I found.  Instead, during my two-hour workshop, we discussed the nature of Gender Identity Disorder as a serious medical need, the Standards of Care for its treatment and their relevance to the court’s Constitutional holding in the case, as well as the security reasons proffered by the DOC and why the court – and indeed several of the workshop attendees– did not find them persuasive.  In the end, we talked about the role of federal courts in protecting the rights of individuals, particularly among populations disfavored, disliked, and even demonized by the majority.

If only the judges on the First Circuit en banc court in Kosilek v. Spencer had been in that workshop with actual corrections professionals two years ago…. In the 3-2 decision it rendered on December 16, 2014, that court overturned both the historic ruling of the lower court and the subsequent affirmation of the First Circuit panel.  In its decision, the en banc court appeared to almost retry the case, disregarding the district court’s factual findings and credibility assessments of witnesses and substituting them with its own, despite the judicial deference owed the trial court in such matters.

In a scathing dissent, Judge Thompson, the author of the First Circuit’s original opinion, compared the decision to the Supreme Court’s infamous rulings in Plessy v. Ferguson (upholding state laws requiring racial segregation) and Korematsu v. United States (allowing the internment of Japanese-Americans in camps during World War II).  Judge Thompson wrote:

“I am confident that I would not need to pen this dissent, over twenty years after Kosilek’s quest for constitutionally adequate medical care began, were she not seeking a treatment that many see as strange or immoral.  Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter’s protraction.”

Judge Thompson asserted that she is confident that this decision in Kosilek “will not stand the test of time.” But she is concerned that the precedent now established will cause much damage to transgender people and other prisoners in the interim.  Indeed, just last month, another transgender inmate in federal prison in Virginia took her own life after losing her challenge to the Bureau of Prison’s refusal to treat her well-documented and long-standing gender dysphoria. Now, with a cert. petition pending, our Supreme Court has an opportunity to right this wrong quickly before too many others suffer the consequences.  The Justices should leave “prejudice and fear of the unfamiliar” in the dustbin of history where Plessy and Korematsu reside.