{"id":1695,"date":"2015-04-03T10:42:33","date_gmt":"2015-04-03T14:42:33","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hlpr\/?p=1695"},"modified":"2015-04-03T10:42:33","modified_gmt":"2015-04-03T14:42:33","slug":"trans-injustice-prejudice-fear-dominate-first-circuit-opinion","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2015\/04\/03\/trans-injustice-prejudice-fear-dominate-first-circuit-opinion\/","title":{"rendered":"Trans-Injustice: Prejudice & Fear Dominate First Circuit Opinion"},"content":{"rendered":"

By Amy Fettig<\/em><\/p>\n

Even as transwomen like Laverne Cox and Janet Mock grace the cover of Time<\/em> magazine<\/a> or facilitate dialogue on MSNBC, the reality is that trans people, and transwomen in particular, still can\u2019t get justice in our federal courts.\u00a0 But now there\u2019s a chance that too could change.\u00a0 Last week a petition for writ of certiorari<\/a> was quietly filed with the U.S. Supreme Court<\/a> in one of the potentially most important cases for the transgender community and prisoner rights this term. \u00a0The case, Kosilek v. Spencer<\/em>, involves the Massachusetts Department of Correction\u2019s (DOC) refusal (over decades) to provide Michelle Kosilek, a transgender woman prisoner, with the gender affirming surgery recommended by her doctors and DOC\u2019s own physicians.\u00a0 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.<\/p>\n

In 2012, Ms. Kosilek first won a groundbreaking victory<\/a> in the U.S. District Court \u00a0for the District of Massachusetts to obtain her gender-transition related surgery after years and years of litigation.\u00a0 According to numerous medical experts and her treating physicians, she suffers from extremely severe Gender Identity Disorder \u2013 or Gender Dysphoria<\/a> as it is now known.\u00a0 Due to her condition, she experiences mental anguish because of the incongruity of her body with her gender identity.\u00a0 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.<\/p>\n

This original victory was hard fought and long delayed.\u00a0 Ms. Kosilek filed her first pro se<\/em> complaint regarding the DOC\u2019s refusal to provide her adequate medical treatment in 1992.\u00a0 Over ten years later, she finally managed to get some appropriate treatment<\/a> to alleviate her symptoms in the form of hormones, electrolysis, and access to gender appropriate personal items, such as female clothes and makeup.\u00a0 Such treatment is part of the recognized Standards of Care for Gender Dysphoria<\/a>.\u00a0 But according to Ms. Kosilek and numerous specialists testifying before the district court, this treatment is insufficient to alleviate her mental anguish.\u00a0 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.\u00a0 In 2012, the district court held that DOC officials\u2019 refusal to provide SRS to Ms. Kosilek violated the Eighth Amendment\u2019s prohibition against cruel and unusual punishment.\u00a0 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.<\/p>\n

After an extensive trial, the district court made clear that the only prudent course of treatment for Ms. Kosilek\u2019s 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.<\/p>\n

Prior to Ms. Kosilek\u2019s victory, no DOC had been ordered by a court to provide SRS to a prisoner.\u00a0 The decision created controversy in Massachusetts and beyond\u2014fueled 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.\u00a0 As a result, many in the corrections field were deeply interested in the case.<\/p>\n

When Kosilek<\/em> was decided, I assumed that most corrections professionals would vehemently disagree with the decision \u2013 but soon learned that I was wrong.\u00a0 \u00a0After the decision came down, a professional group, the Correctional Accreditation Manager\u2019s Association (CAMA), reached out to me to conduct a training workshop on transgender prisoner rights at its annual conference.\u00a0 \u00a0I was very surprised by this invitation.\u00a0 And I prepared myself to meet a hostile crowd.<\/p>\n

But that\u2019s not what I found.\u00a0 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\u2019s Constitutional holding in the case, as well as the security reasons proffered by the DOC and why the court \u2013 and indeed several of the workshop attendees\u2013 did not find them persuasive.\u00a0 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.<\/p>\n

If only the judges on the First Circuit en banc<\/em> court in Kosilek v. Spencer<\/em> had been in that workshop with actual corrections professionals two years ago\u2026. 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.\u00a0 In its decision<\/a>, the en banc<\/em> court appeared to almost retry the case, disregarding the district court\u2019s factual findings and credibility assessments of witnesses and substituting them with its own, despite the judicial deference owed the trial court in such matters.<\/p>\n

In a scathing dissent, Judge Thompson, the author of the First Circuit\u2019s original opinion, compared the decision to the Supreme Court\u2019s infamous rulings in Plessy v. Ferguson<\/a> <\/em>(upholding state laws requiring racial segregation) and Korematsu v. United States<\/a><\/em> (allowing the internment of Japanese-Americans in camps during World War II).\u00a0 Judge Thompson wrote:<\/p>\n

“I am confident that I would not need to pen this dissent, over twenty years after Kosilek\u2019s quest for constitutionally adequate medical care began, were she not seeking a treatment that many see as strange or immoral.\u00a0 Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter’s protraction.”<\/p>\n

Judge Thompson asserted that she is confident that this decision in Kosilek<\/em> \u201cwill not stand the test of time.\u201d But she is concerned that the precedent now established will cause much damage to transgender people and other prisoners in the interim.\u00a0 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\u2019s 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.\u00a0 The Justices should leave \u201cprejudice and fear of the unfamiliar\u201d in the dustbin of history where Plessy<\/em> and Korematsu<\/em> reside.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

By Amy Fettig Even as transwomen like Laverne Cox and Janet Mock grace the cover of Time magazine or facilitate […]<\/p>\n","protected":false},"author":3,"featured_media":1696,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[73,102,136,175,191],"class_list":["post-1695","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-blog","tag-first-circuit","tag-kosilek-v-spencer","tag-prisoners-rights","tag-supreme-court","tag-transgenders"],"jetpack_featured_media_url":"https:\/\/journals.law.harvard.edu\/lpr\/wp-content\/uploads\/sites\/89\/2015\/04\/file5991249745113.jpg","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-rl","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1695","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1695"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1695\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media\/1696"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1695"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1695"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1695"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}