Petition Asserts First Circuit Disregarded its Proper Role

Lawyers today petitioned the U.S. Supreme Court to hear an appeal on behalf of Michelle Kosilek, a transgender woman who has been denied essential health care while serving a prison sentence in the custody of the Massachusetts Department of Correction (DOC).  The DOC has denied Kosilek gender affirming surgery for decades, despite the fact that experts have deemed it medically necessary, and despite the fact the two courts have affirmed that denial constitutes cruel and unusual punishment, which is prohibited by the Eighth Amendment of the U.S. Constitution.

The petition for certiorari asserts that the First Circuit Court of Appeals overstepped its role with a December 2014 en banc ruling that, in vacating an earlier panel decision favorable to Kosilek, retried the facts of a 2012 trial, and applied the wrong standard of legal review. The petition, which can be read here, was filed on Kosilek’s behalf by Gay & Lesbian Advocates & Defenders (GLAD), attorney Joseph L. Sulman, and Goodwin Procter LLP.

“The Court of Appeals looked at an incredibly thoughtful decision, written with extreme care and attention to the facts by District Court Judge Mark Wolf after a 28-day trial,” said Levi. “Instead of looking for errors of law, as it is supposed to do, the Court not only re-tried the case, it applied a standard of review no other court has ever applied to get the outcome it wanted.”

“This is a quintessentially fact-intensive case,” said Sulman. “The First Circuit found no legal error or clear factual error in Judge Wolf’s decision, which is what it must do to overturn his decision. The way the Court ran roughshod over the most basic of legal principles erodes the credibility of the judiciary. It should be alarming to every single lawyer, litigant, and defendant in a civil case.”

The petition culminates over 20 years of litigation on whether DOC officials have violated Kosilek’s rights by failing to provide adequate care for her severe gender identity disorder (GID), a condition that all parties agree is a “serious medical need.”  As a result of being denied treatment, Kosilek has self-mutilated and has attempted suicide twice.

There have been two decisions issued by Judge Wolf. He found that the DOC engaged in a pattern of “pretense, pretext, and prevarication” to deny her treatment.  The Commonwealth of Massachusetts appealed, and on January 17, 2014, a three-judge panel of the Court of Appeals upheld Judge Wolf’s decision. The Commonwealth requested and was granted a rehearing of the appeal before the full bench, which overturned Judge Wolf on December 16, 2014 by a vote of 3-2.

In addition to Sulman and Levi, Kosilek is represented by Abigail K. Hemani, Michele E. Connolly, James P. Devendorf, Jaime A. Santos, and Christine Dieter of Goodwin Procter LLP.

Read more about the case