Because transgender people are disproportionately represented in prison, fighting discrimination in the prison context has been a prime concern of the Transgender Rights Project since its founding.

The Transgender Rights Project at GLAD is committed to using the best legal and advocacy tools available to ensure all transgender and gender non-conforming people can live full, open, authentic lives in safety, with dignity, and free from discrimination because of their gender identity or expression. That work includes advocating for robust non-discrimination laws; it includes ensuring that everyone can access facilities in school, at work, and in public accommodations in accordance with their gender identity; it includes working to remove unnecessary barriers to people being able to obtain critical identity documents that reflect who they are.
The Transgender Rights Project at GLAD is committed to using the best legal and advocacy tools available to ensure all transgender and gender non-conforming people can live full, open, authentic lives in safety, with dignity, and free from discrimination because of their gender identity or expression.
And for those for whom gender transition-related care is essential medical care, it includes working to ensure that care is accessible and affordable, and that decisions about treatment are made based on sound medical understanding and thoughtful consultation between a person and their doctor, free from external moral judgments, prejudice or structural barriers. Ensuring access to medical care is one of the most rapidly advancing areas of our work. In the past two years alone we’ve made huge strides in getting coverage exclusions removed in private insurance, Medicare, and state Medicaid programs. We are starting to see these advances after years spent doing the work of establishing the reality and legitimacy of transgender people’s medical needs. Each victory lays the groundwork for the next.
The power of impact litigation as one of the tools of our work is that it can create change far beyond the individual plaintiff or plaintiffs involved in any given case.
Our advocacy, with attorney Joseph Sulman and Goodwin Procter LLP, on behalf of Massachusetts prisoner Michelle Kosilek is an important piece of that work. Because transgender people are disproportionately represented in prison, fighting discrimination in the prison context has been a prime concern of the Transgender Rights Project since its founding. And when it comes to health care, there is another issue at stake, with implications beyond the prison context. People in prison, or otherwise in the custody of the state, by definition lack control over their own health care. The Eighth Amendment is a bedrock principle in our Constitution; its prohibition against cruel and inhumane treatment is fundamental to who we are as a nation that values justice. That prohibition includes, as a matter of settled legal principle, the requirement that people who are incarcerated receive adequate medical care. Establishing a clear legal precedent in the prison context that gender transition-related care is legitimate and effective medical treatment for Gender Dysphoria/Gender Identity Disorder (GD/GID), and that the determination of the proper course of treatment for an individual patient properly rests with medical providers – not prison officials – has potential positive implications for securing access to care in all contexts. The power of impact litigation as one of the tools of our work is that it can create change far beyond the individual plaintiff or plaintiffs involved in any given case. In asking the U.S. Supreme Court to hear Michelle Kosilek’s case, we are asking them to weigh in on issues that impact all of us. Beyond the significant questions of the legitimacy of gender reassignment surgery as medical care and what is required under the Eighth Amendment, there is in this case an additional important question of civil procedure and the proper role of the courts. Whether the Massachusetts Department of Corrections (DOC) could deny Kosilek access to gender reassignment surgery, despite the determination by multiple respected medical providers that it was both proper and necessary treatment for her medical condition, was the subject of a lengthy and detailed trial. At the conclusion of that trial, MA District Court Judge Mark Wolf made careful findings of fact including that Kosilek has a serious need for which surgery is the only minimally adequate treatment.  Based on those factual findings, Judge Wolf concluded that the DOC had in fact violated Kosilek’s rights under the Eighth Amendment – a finding that was initially upheld by a 3 judge panel of the United Stated Court of Appeals for the First Circuit. When the full bench of the First Circuit Court of Appeals later vacated that ruling and reversed Judge Wolf’s factual findings, it stepped outside the accepted role of appellate courts, which is to evaluate questions of law but defer to trial judges on questions of fact. The First Circuit reviewed the incredibly thoughtful trial court decision, written with extreme care and attention to the facts by Judge Wolf. And, instead of looking for errors of law as it is supposed to do, the Court essentially re-tried the case – without benefit of the direct access to the medical experts and other witnesses available to Judge Wolf – applying a standard of review no other court has ever applied to get the outcome it wanted.
Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter’s protraction – Judge O. Rogeriee Thompson
As one of two judges to disagree with the majority ruling, Judge O. Rogeriee Thompson ponders in her dissent what may be the troubling reasons behind the Court’s action, and the potential problems it creates for future civil court proceedings: “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… [T]he precedent the majority creates is damaging… It paves the way for unprincipled grants of en banc relief, decimates the deference paid to a trial judge following a bench trial, aggrieves an already marginalized community, and enables correctional systems to further postpone their adjustment to the crumbling gender binary.” GLAD’s Transgender Rights Project petitioned the Supreme Court to hear this case because the question of the proper role and standard of review for appeals courts is important to Michelle Kosilek, but also because it is important to any other civil litigant that would bring a case before the First Circuit. It’s too soon to know what the Supreme Court will do. But we do know that, whether in this case or another soon, it is only a matter of time before the legitimacy of gender transition-related care in the prison context is settled, and the promise of the Eighth Amendment is fulfilled for transgender prisoners just as it is for any other prisoner in need of critical health care.