Kosilek v. Spencer, 011714 FED1, 12-2194

Docket Nº:12-2194
Opinion Judge:THOMPSON, Circuit Judge.
Party Name:MICHELLE KOSILEK, Plaintiff, Appellee, v. LUIS S. SPENCER, Commissioner of the Massachusetts Department of Correction, Defendant, Appellee.
Attorney:Richard C. McFarland, Legal Division, Department of Correction, with whom Nancy Ankers White, Special Assistant Attorney General, was on brief, for appellant. Frances S. Cohen, with whom Jeff Goldman, Christina Chan, Bingham McCutchen LLP, Joseph L. Sulman, David Brody, and Law Office of Joseph L...
Judge Panel:Before Torruella, Thompson, and Kayatta, Circuit Judges. TORRUELLA, Circuit Judge, Dissenting.
Case Date:January 17, 2014
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

MICHELLE KOSILEK, Plaintiff, Appellee,


LUIS S. SPENCER, Commissioner of the Massachusetts Department of Correction, Defendant, Appellee.

No. 12-2194

United States Court of Appeals, First Circuit

January 17, 2014


Richard C. McFarland, Legal Division, Department of Correction, with whom Nancy Ankers White, Special Assistant Attorney General, was on brief, for appellant.

Frances S. Cohen, with whom Jeff Goldman, Christina Chan, Bingham McCutchen LLP, Joseph L. Sulman, David Brody, and Law Office of Joseph L. Sulman, were on brief, for appellee.

Andrew D. Beckwith on brief for the Massachusetts Family Institute, amicus curiae in support of appellant.

Cori A. Lable, Daniel V. McCaughey, Kristin G. Ali, and Ropes & Gray LLP on brief for World Professional Association for Transgender Health, Mental Health America, Callen-Lorde Community Health Center, Whitman-Walker Health, GLMA: Health Professionals Advancing LGBT Equality, and Mazzoni Center, amici curiae in support of appellee.

Joshua Block, Matthew R. Segal, and David C. Fathi on brief for American Civil Liberties Union, American Civil Liberties Union of Massachusetts, Legal Aid Society, Harvard Prison Legal Assistance Project, Prisoners' Legal Services of New York, and Prisoners' Legal Services of Massachusetts, amici curiae in support of appellee.

Jennifer Levi and Bennett H. Klein on brief for Gay & Lesbian Advocates & Defenders, EqualityMaine, Human Rights Campaign, MassEquality, Massachusetts Transgender Political Coalition, National Center for Transgender Equality, National Gay & Lesbian Task Force, and Transgender New Hampshire, amici curiae in support of appellee.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

THOMPSON, Circuit Judge.

Twenty years after prison inmate Michelle Kosilek first requested treatment for her severe gender identity disorder, the district court issued an order requiring the defendant, Luis S. Spencer, Commissioner of the Massachusetts Department of Correction (the "DOC"), 1 to provide Kosilek with sex reassignment surgery. The court found that the DOC's failure to provide the surgery — which was said by a group of qualified doctors to be medically necessary to treat Kosilek's condition — violated Kosilek's Eighth Amendment rights. The DOC appeals the district court's order. Having carefully considered the relevant law and the extensive factual record, we affirm the judgment of the district court.


A. Gender Identity Disorder and Sex Reassignment Surgery

The concepts of gender identity disorder and sex reassignment surgery sit center stage in this case and feature prominently in this opinion. Therefore, before we go any further, we provide a little context. As this court has explained, gender identity disorder is "a psychological condition involving a strong identification with the other gender." Battista v. Clarke, 645 F.3d 449, 450 (1st Cir. 2011). It is a disorder recognized by the American Psychiatric Association, which describes gender identity disorder as having two components. American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition - Text Revision 576 (2000) ("DSM-IV-TR").2 The first is "evidence of a strong and persistent cross-gender identification, which is the desire to be, or the insistence that one is, of the other sex." Id. The second is "evidence of persistent discomfort about one's assigned sex or a sense of inappropriateness in the gender role of that sex." Id.

This current diagnosis of gender identity disorder grew out of an earlier diagnosis of transsexualism, which first appeared as an official disorder in the third edition of the DSM, published in 1980. Judith S. Stern & Claire V. Merkine, Brian L. v. Admin. for Children's Services: Ambivalence Toward Gender Identity Disorder as a Medical Condition, 30 Women's Rts. L. Rep. 566, 567-68 (2009). In the 1950s and 1960s, research began to show that a "combination of psychotherapy, hormone treatment, and surgical reconfiguration of the genitalia" could be used to treat gender identity disorder. Id. at 571. This idea gained traction in the 1960s and 1970s, id., and as we will discuss more fully below, this triadic approach is still utilized by many practitioners today. Sex reassignment surgery in particular has been performed in North America since at least the 1950s, and it has been estimated that as of January 2006, 30, 000 sex reassignment surgeries have been performed in the United States. Id. at 571-72.

With this bigger picture in place, we move on to the facts of this case. We again note that this case has an over twenty-year history. This has included two trials and two lengthy, fact-intensive decisions issued by the district court, the latter of which is the subject matter of this appeal. Because of this, and because the district court's opinion was so fact-intensive, it is necessary for us to lay out a good deal of background.

B. Kosilek's Conviction

Michelle Kosilek, née Robert, who is sixty-four years old, was born and still is anatomically male. Kosilek suffers from gender identity disorder. This has resulted in Kosilek's long-held belief that she3 is a woman cruelly trapped in a man's body.

Kosilek, who spent some of her childhood in an orphanage, suffered regular abuse as a child, in part because of her expressed desire to live as a girl. As she grew older, she alternated between living as a man and a woman. Kosilek's teenage and early adult years were marred by arrests, incarcerations, beatings, heavy drinking, drug use, and a stint as a prostitute.

Sometime in the 1980s, Kosilek married Cheryl McCaul, a volunteer counselor at a drug rehabilitation facility, who Kosilek met while being treated there. McCaul thought she could cure Kosilek's gender identity disorder, but Kosilek's desire to be female did not go away. In 1990, Kosilek murdered McCaul. Kosilek fled the area but was ultimately apprehended in New York.

Kosilek awaited trial at the Bristol County Jail. While there, Kosilek, who had taken female hormones many years earlier, started taking female hormones (in the form of birth control pills) that she illicitly obtained from a guard. She also, at her own expense, consulted with a gender identity disorder specialist, though she was not allowed to undergo any treatment. While awaiting trial, Kosilek twice tried to kill herself; one attempt was made while she was taking the antidepressant Prozac. Kosilek also attempted self-castration.

Kosilek was eventually tried and, in 1992, was convicted of McCaul's murder and sentenced to life in prison without the possibility of parole. She was turned over to the DOC and since 1994 has been residing in the general population at MCI-Norfolk, a medium security male prison. There Kosilek started living, to the extent possible, as a woman, legally changing her name from Robert to Michelle.

C. Kosilek's Lawsuits

In 1992, Kosilek filed a pro se complaint against the DOC in the United States District Court for the District of Massachusetts.4 See Kosilek v. Maloney, 221 F.Supp.2d 156 (D. Mass. 2002) ("Kosilek I"). Kosilek alleged the DOC was denying her adequate medical care in violation of the Eighth Amendment. Kosilek sought damages and an injunction ordering that she be provided with sex reassignment surgery. The case was assigned to Judge Mark L. Wolf, and proceeded for some years with the parties engaging in discovery and motion practice.

Meanwhile, in December 2000, having not yet received the relief she was seeking, Kosilek filed this case — a second pro se lawsuit against the DOC and some of its medical providers. See Kosilek v. Spencer, 889 F.Supp.2d 190 (D. Mass. 2012) ("Kosilek II"). Again the gravamen of Kosilek's complaint was that the DOC was denying her adequate medical care in violation of the Eighth Amendment by not providing her with sex reassignment surgery. This case also went to Judge Wolf.

In February 2002, Kosilek's first lawsuit, Kosilek I, finally proceeded to a non-jury trial. Due to some pretrial skirmishing, only Kosilek's claim for injunctive relief remained (her damages claim was gone). The trial lasted a couple of weeks.

D. The Kosilek I Decision

On August 28, 2002, Judge Wolf issued his decision. See Kosilek I, 221 F.Supp.2d at 156. The court explained that to make out an Eighth Amendment violation, both an objective and a subjective component must be satisfied. In short, the objective component requires that the inmate has a serious medical need that has not been adequately treated. The subjective piece, on the other hand, focuses on the state of mind of the prison officials and requires that they were aware the inmate was at risk for serious harm.5

The court found that Kosilek suffered from a severe form of gender identity disorder that caused her great mental anguish. It went on to hold that this disorder was a serious medical need within the meaning of the Eighth Amendment. To address the issue of what types of treatment might be warranted, the court looked to the Harry Benjamin Standards of Care (the "Standards of Care"), 6which it found to be the accepted protocols used by professionals in the United States to treat gender identity disorder. The Standards of Care indicated that, depending on the severity of an individual's gender identity disorder, psychotherapy alone or psychotherapy along with the administration of female hormones could constitute sufficient treatment. In other instances, however, sex reassignment surgery was medically necessary. The court found that, despite DOC doctors...

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