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Representing Plaintiff(s) · Loss

Kosilek v. O’Brien (formerly Spencer)

May 4, 2015 - The U.S. Supreme Court has declined to hear the case. The denial marks the end of the road legally in Kosilek’s lengthy struggle to receive appropriate care while in prison. “This is a terrible and inhumane result for Michelle,” said GLAD Transgender Rights Project Director Jennifer Levi in a statement. “But it is just a matter of time before some prison somewhere is required to provide essential surgery, meeting the minimal Constitutional obligations of adequate medical care for transgender people in prison.” Read more.

April 15, 2015 - A respected group of Civil Procedure Scholars, including University of Pennsylvania Law School Professor Tobias Barrington Wolff as counsel of record, filed an amicus brief in support of Kosilek's petition for cert. The brief supports the assertion made in the petition that with its December 2014 en banc ruling the First Circuit Court of Appeals overstepped its role, improperly retried the facts of the 2012 trial, and applied the wrong standard of legal review.

A second amicus brief was filed by the World Professional Association for Transgender Health (WPATH) citing the established professional consensus in the medical and mental-health communities that in appropriate cases sex reassignment surgery (SRS) is medically necessary care for management of gender dysphoria. The brief asserts that with its December 2014 en banc ruling the First Circuit Court of Appeals departed from accepted principles for evaluating the propriety of medical evidence. 

March 16, 2015 - GLAD, attorney Joseph L. Sulman, and Goodwin Procter LLP have filed a petition for certiorari to the U.S. Supreme Court. The petition asserts that the First Circuit Court of Appeals overstepped its role with its December 2014 en banc ruling that, in vacating the earlier panel decision favorable to Kosilek, improperly retried the facts of the 2012 trial, and applied the wrong standard of legal review. Read more

(Note: the petition for cert was filed as Kosilek v. O'Brien, Commissioner of the Massachusetts Department of Correction)

Update, December 16, 2014 - The full First Circuit Court of Appeals reversed the earlier ruling that the Commonwealth of Massachusetts must provide Michelle Kosilek, an incarcerated transgender woman, medically-necessary gender reassignment surgery. Read GLAD's statement.

Update, March 2014 - GLAD submitted a brief to the First Circuit Court of Appeals for the rehearing en banc.

Update, February 2014 - The Commonwealth's request for rehearing en banc was granted by the Court. Oral argument is set for May 8.

January 17, 2014 - GLAD welcomed the First Circuit Court of Appeals ruling that the Commonwealth cannot deny Michelle Kosilek, an incarcerated transgender woman, gender reassignment surgery to treat her severe gender identity disorder. Read GLAD's full statement on the ruling and see Kosilek v. Spencer: Questions and Answers.

The case was argued before the Court of Appeals for the First Circuit on April 2, 2013, after the Commonwealth appealed Wolf’s ruling. Joseph L. Sulman and David Brody of the Law Office of Joseph L. Sulman are representing Kosilek. 

Kosilek was denied reassignment surgery by the Department of Corrections (DOC) against the recommendations of multiple doctors hired by DOC. In ruling last fall that DOC violated Kosilek’s 8th amendment right to freedom from cruel and unusual punishment, District Court Judge Mark L. Wolf found that DOC engaged in a pattern of “pretense, pretext and prevarication” to deny her treatment. 

That pattern of pretense, pretext, and prevarication, GLAD believes cannot be allowed to erode core constitutional commitments to the health and safety of anyone who is incarcerated including, in this case, a transgender woman serving a life sentence.  The denial of necessary medical care to Michelle Kosilek amounted to nothing more than transgender exceptionalism.

Like the district court before it, the First Circuit affirmed in it's ruling that constitutional rights belong to everyone. 

GLAD filed an amicus brief in the appeal describing the pervasive stigma and discrimination associated with transgender people in general, and with gender reassignment surgery, specifically - and has since taken on the role of co-counsel in the case following  the departure of Kosilek's long-term attorney, Frances S. Cohen, from her firm Bingham McCutcheon.