The full First Circuit Court of Appeals today reversed an earlier ruling that the Commonwealth of Massachusetts must provide Michelle Kosilek, an incarcerated transgender woman, medically-necessary gender reassignment surgery.

The decision was divided, with a 3-2 majority and two sharply worded dissents.  Judge Thompson wrote in her dissent, “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.” Judge Thompson went on to predict the case would not stand the test of time, ultimately being shelved with the likes of Plessy v. Ferguson.

Jennifer Levi, director of the Transgender Rights Project of Gay & Lesbian Advocates & Defenders (GLAD), said, “I am appalled by this decision, which means that Michelle Kosilek will continue to be denied the life-saving medical care she needs and has been seeking for years.  It is difficult or impossible to imagine a decision like this one – that second-guesses every factual determination made by the trial court – in the context of any other prisoner health care case.  This decision is a testament to how much work remains to be done to get transgender people’s health care needs on par with others in the general public. ”

A three-judge panel of the Court of Appeals issued an initial ruling January 17, 2014 upholding the finding of District Court Judge Mark L. Wolf that the Massachusetts Department of Corrections (DOC) engaged in a pattern of “pretense, pretext and prevarication” to deny Kosilek treatment, in violation of her 8th amendment right to freedom from cruel and unusual punishment. The Commonwealth requested and was granted a rehearing of the case before the full bench. Oral argument took place on May 8.

Kosilek was denied gender reassignment surgery by the DOC against the recommendations of multiple doctors, including those hired by the DOC itself.

“There is no scientific or medical basis for denying transgender people their health care needs,” added Levi. “The consensus position of the medical community is that surgery may sometimes be essential treatment.”

Kosilek is represented by Joseph L. Sulman and David Brody of the Law Office of Joseph L. Sulman, along with GLAD as appellate counsel.