January 17, 2014
Gay & Lesbian Advocates & Defenders (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 dysphoria.
The 2-1 decision in Kosilek v. Spencer read in part, “In sum, where at least three eminently qualified doctors testify without objection, in accord with widely accepted, published standards, that Kosilek suffers from a life-threatening disorder that renders surgery medically necessary, and the factfinder is convinced by that testimony, we are at a loss to see how this court can properly overrule that finding of fact.“
“Like the district court before it, the First Circuit has affirmed that constitutional rights belong to everyone,” said Jenifer Levi, director of GLAD’s Transgender Rights Project. “The Appeals Court affirmed that the District Court properly found that Michelle Kosilek needed this lifesaving medical care. If she needed treatment for cancer or heart disease, this case would never have wound up in court. If we are to call ourselves a civilized society, there is a baseline of care that has to be provided to all prisoners, including prisoners who are transgender. We hope that Michelle will now get the treatment that she desperately needs.”
Kosilek was denied reassignment surgery by the Department of Corrections (DOC) against the recommendations of multiple doctors including those hired by the DOC. In ruling 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. The First Circuit affirmed Judge Wolf’s decision.
Levi added, “Not appropriately treating a patient with gender dysphoria can lead to self-harm, and Michelle has in fact mutilated herself and attempted suicide twice while being denied care. This decision is important not just for Michelle, but for all transgender people who have been denied the health care they need.”
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.