In yet another iteration of a complex litigation spanning over twenty years pitting advocates of prisoner rights in the area of medical treatment of sexual identity disorder (SID) issues, the 1st Circuit Court of Appeals, in a controversial en banc decision, has reversed the order of a Massachusetts district court judge who ruled that the state's Department of Correction failure to provide appropriate medical treatment for such issues constituted "cruel and inhuman punishment." Michelle Kosilek, born a man, had filed suit after Massachusetts prison authorities refused to carry out surgery to complete a process commenced prior to her incarceration to convert her to the female gender. Prison Legal News has previously reported on previous decisions in this case.

Kosilek had undergone years of hormone therapy as well as extensive counseling after she had been diagnosed with SID and Gender Identity Disorder (GID), where she self-identified as a woman. Both Kosilek and the DOC agreed that she required medical treatment and that it had proven helpful in eliminating suicidal ideation and other examples of depressive behavior. Issues arose, however, regarding the necessity of performing the sex change (SRS) surgery necessary to make Kosilek anatomically female to maintain her mental stability.

According to the decision, "Where 'society takes from prisoners the means to provide for their own needs,' the failure to provide such care 'may actually produce physical torture or a lingering death." Brown v. Plata, 131 S. Ct. 1910, 1928 (2011) (internal quotation marks omitted). Undue suffering, unrelated to any legitimate penological purpose, is considered a form of punishment proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103 (1976).'"

The justices also noted, "That GID is a serious medical need, and one which mandates treatment, is not in dispute in this case. The parties do not spar over the fact that Kosilek requires medical care aimed at alleviating the harms associated with GID – to the contrary, the DOC has provided such care since 2003. Rather, the parties disagree over whether SRS is a medically necessary component of Kosilek's care, such that any course of treatment not including surgery is constitutionally inadequate."

The Court of Appeals stated that the issue "is not whether antidepressants and psychotherapy alone are sufficient to treat GID, or whether GID constitutes a serious medical need. Rather, the question is whether the decision not to provide SRS – in light of the continued provision of all ameliorative measures currently afforded Kosilek and in addition to antidepressants and psychotherapy – is sufficiently harmful to Kosilek so as to violate the Eighth Amendment. It is not. See: Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003).

The majority expressed the hope that DOC would not deny such treatment in the future if it was called for based upon sound medical practices, since "any such policy would conflict with the requirement that medical care be individualized based on a particular prisoner's serious medical needs. See, e.g., Roe, 631 F.3d at 862-63 (holding that the failure to conduct an individualized assessment of a prisoner's needs may violate the Eighth Amendment)."

The majority's opinion drew a strong rebuke from Judge Thompson, who in his dissent said that the majority decision "turns a blind eye to binding precedent, opting instead to cobble together law from other circuits and non-Eighth Amendment jurisprudence to formulate a standard of review that, though articulated as one of variable exactitude, amounts to sweeping de novo review. Armed with the ability to take a fresh look at findings that clearly warranted deference, the majority easily steps into the trial judge's shoes – the inarguable superiority of the judge's ability to marshal facts, assess motive, and gauge credibility all but forgotten...and the fact that this case is even subject to en banc scrutiny in the first place is wrong."

It appears that the debate regarding whether or not the failure to provide SRS surgery constitutes a violation of the Eighth Amendment, although settled for the time being in the First Circuit, is far from concluded. See: Kosilek v. Spencer, et al, 12-2194, December, 2014, First Circuit Court of Appeals.

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