Welcome to DU!
The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards.
Join the community:
Create a free account
Support DU (and get rid of ads!):
Become a Star Member
Latest Breaking News
General Discussion
The DU Lounge
All Forums
Issue Forums
Culture Forums
Alliance Forums
Region Forums
Support Forums
Help & Search
Ruling overturned on sex-change surgery for Mass. inmate
Source: Boston Globe
A divided federal appeals court in Boston on Tuesday overturned a lower court’s ruling that a transgender Massachusetts prison inmate, convicted of committing a domestic murder, was entitled to taxpayer-funded sex change surgery.
The ruling by the First US Circuit Court of Appeals came after a 2012 ruling by US District Judge Mark Wolf, who ordered the surgery after finding that the state’s failure to provide it violated the inmate’s Eighth Amendment protection against cruel and unusual punishment.
In January, a three-judge panel of the appeals court upheld Wolf’s 2012 decision, but the state of Massachusetts then asked for an en banc, or full bench, review, which led to Tuesday’s ruling.
The ruling came in the case of Michelle Kosilek, who was born Robert Kosilek. Kosilek is serving a life sentence for killing her wife, Cheryl Kosilek, in 1990.
Read more: http://www.bostonglobe.com/metro/2014/12/16/federal-appeals-court-overturns-ruling-ordering-sex-change-surgery-for-mass-prison-inmate/WqBuLuGI14yZ6nVoFCIfjK/story.html
A good decision in my opinion
54 replies
= new reply since forum marked as read
= new reply since forum marked as read
Earlier in the opinion the Court defined the following two abbreviations:
GID stands for "gender identity disorder", through the court acknowledge the term "gender dysphoria" is the preferred term, they stayed with GID to stay consistent with prior decision in this case.
DOC stands for "Massachusetts Department of Corrections"
SRS - sex reassignment surgery.
http://media.ca1.uscourts.gov/pdf.opinions/12-2194P2-01A.pdf
First lets look at what the Department of corrections were doing for the Plainitff, as found by the court:
The DOC responded to Kosilek I by revamping its policy for GID treatment. In the past, the DOC had adopted a policy of "freezing" a prisoner's treatment at whatever level that prisoner had attained prior to incarceration. Hormonal treatment, for example, would be available only to prisoners who had been prescribed hormones prior to incarceration. In place of this "freeze-frame" policy, after Kosilek I the DOC adopted a plan that allowed prisoners to receive additional treatment beyond the level of that received before entering prison, when such care was medically required. Under this new plan, medical recommendations would be made by the University of Massachusetts Correctional Health Program ("UMass"
, a health-services provider contracted by the DOC. The DOC Commissioner and the DOC Director of Health Services were responsible for assessing whether any change in treatment would create increased security concerns.
Kosilek was evaluated by Dr. David Seil, a gender identity specialist, who prescribed a course of treatment to alleviate the mental distress -- often referred to as "dysphoria" -- associated with her GID. In line with Dr. Seil's recommendations, in 2003 the DOC began providing Kosilek with
significant ameliorative treatment aimed at directly addressing the mental distress caused by GID. In addition to continued mental health treatment, she was provided female, gender-appropriate clothing and personal effects, and electrolysis was performed to permanently remove her facial hair. Kosilek also began a course of hormonal treatments recommended by an endocrinologist. These treatments resulted in "breast development and shrinkage of her testicles." All of the treatments described continue to be offered to Kosilek to the present day.
, a health-services provider contracted by the DOC. The DOC Commissioner and the DOC Director of Health Services were responsible for assessing whether any change in treatment would create increased security concerns.
Kosilek was evaluated by Dr. David Seil, a gender identity specialist, who prescribed a course of treatment to alleviate the mental distress -- often referred to as "dysphoria" -- associated with her GID. In line with Dr. Seil's recommendations, in 2003 the DOC began providing Kosilek with
significant ameliorative treatment aimed at directly addressing the mental distress caused by GID. In addition to continued mental health treatment, she was provided female, gender-appropriate clothing and personal effects, and electrolysis was performed to permanently remove her facial hair. Kosilek also began a course of hormonal treatments recommended by an endocrinologist. These treatments resulted in "breast development and shrinkage of her testicles." All of the treatments described continue to be offered to Kosilek to the present day.
After a long discussion the court reported the following as a finding of the Department of Corrections:
The report concluded by reiterating the Fenway Center's recommendation that Kosilek receive SRS. The doctors recognized that performing "such a procedure would . . .bring up issues of housing and safety," but emphasized that "hormone therapy and [SRS] are the only clinical treatments found to be effective for GID."
The Department of Corrections then address the issue of housing and after a long discussion made the following point:
The report focused mainly on issues of safety and security surrounding Kosilek's post-operative housing. Dennehy conveyed concern regarding housing Kosilek at MCI-Norfolk, noting that approximately twenty-five percent of male offenders in the Massachusetts prison system are classified as sex offenders and concluding that "Kosilek would clearly be a target for assault and victimization in a male prison." The report also expressed concerns with housing Kosilek at MCI-Framingham, including the absence of single-bed cells, such that all inmates had to share cells, and the possibility that Kosilek's presence might exacerbate mental distress among the significant portion of MCI-Framingham's population that had previously experienced domestic abuse and trauma at the hands of male partners.
Given the stated infeasibility of housing Kosilek in the general population of either MCI-Framingham or MCI-Norfolk, the report considered segregated housing in a protected ward. It expressed concern, however, about the possible deleterious impact on Kosilek's mental health caused by any housing solution that required long-term isolation. The report also noted that it was not within the DOC's ability to create a special ward for prisoners with GID, given that these prisoners present a significant range of criminal histories, security ratings, and treatment needs that are antithetical to co-housing.
On June 10, 2005, citing both its internal review of safety and security and Osborne's reported concerns regarding the appropriateness of SRS, the DOC informed the district court that it had chosen to continue Kosilek's current ameliorative treatment, but not to provide her with SRS.
Given the stated infeasibility of housing Kosilek in the general population of either MCI-Framingham or MCI-Norfolk, the report considered segregated housing in a protected ward. It expressed concern, however, about the possible deleterious impact on Kosilek's mental health caused by any housing solution that required long-term isolation. The report also noted that it was not within the DOC's ability to create a special ward for prisoners with GID, given that these prisoners present a significant range of criminal histories, security ratings, and treatment needs that are antithetical to co-housing.
On June 10, 2005, citing both its internal review of safety and security and Osborne's reported concerns regarding the appropriateness of SRS, the DOC informed the district court that it had chosen to continue Kosilek's current ameliorative treatment, but not to provide her with SRS.
At trial one doctor said the following:
The DOC offered testimony from Dr. Chester Schmidt, a licensed psychiatrist and Associate Director of the Johns Hopkins School of Medicine. Dr. Schmidt expressed his belief that Kosilek had undergone an "excellent adaptation" through treatment with hormones, hair removal, psychotherapy, and the provision of female garb. These treatments had alleviated the severity of her mental distress and allowed Kosilek to significantly consolidate her gender identity. Dr. Schmidt acknowledged that, if not provided SRS, Kosilek's level of mental distress would likely increase, with depression or attempts at self-harm possible. On the whole, however, he believed that her positive adaptation and the consolidation of her gender identity indicated that the current course of treatment provided by the DOC was medically adequate. Dr. Schmidt explained that the severity of dysphoria associated with GID may "wax and wane," with patients feeling depressed or hopeless at times, but generally being able to alleviate these depressive symptoms with appropriate psychotherapy and medical interventions. He felt that these measures, in combination with Kosilek's current course of treatment, would allow her to live safely and maintain a level of contentment.
Thus you had two competitive plans on treatment for this prisoner, one involving SRS, the other NOT involving SRS and it was up to the Department of Corrections to pick which option. The trial judge said the Department of Correction had other agendas and for those reason opt to skip SRS, but the Court of Appeals said, they will defer to the Department of Corrections when it comes to such decisions.
Now before the court made its decision, it did state on law on this issue:
Therefore, to prove an Eighth Amendment violation, a prisoner must satisfy both of two prongs:
(1) an objective prong that requires proof of a serious medical need, and
(2) a subjective prong that mandates a showing of prison administrators' deliberate indifference to that need.
(1) an objective prong that requires proof of a serious medical need, and
(2) a subjective prong that mandates a showing of prison administrators' deliberate indifference to that need.
As to the first prong the Court pointed out that while the report by the treating physician recommended SRS, the need for SRS was brought into question in the actual trial by two other physicians, thus no conclusive evidence that SRS was needed to solve a serious medical need of the Plaintiff.
For another, this case presents unique circumstances; we are simply unconvinced that our decision on the record before us today will foreclose all litigants from successfully seeking SRS in the future. Certain facts in this particular record -- including the medical providers' non-uniform opinions regarding the necessity of SRS, Kosilek's criminal history, and the feasibility of postoperative housing -- were important factors impacting the decision.
Now the court also addressed the second prong of the test:
In this case, the DOC solicited the opinion of multiple medical professionals and was ultimately presented with two alternative treatment plans, which were each developed by different medical experts to mitigate the severity of Kosilek's mental distress. The choice of a medical option that, although disfavored by some in the field, is presented by competent professionals does not exhibit a level of inattention or callousness to a prisoner's needs rising to a constitutional violation.
With that finding the court then made its decision,, basically given the dispute as to the need for SRS in this case, it is up to the Department of Corrections to decide which one is the best option and they can consider housing in that decision.
We are not tasked today with deciding whether the refusal to provide SRS is uncompassionate or less than ideal. Neither finding would support Kosilek's claims of a constitutional violation. The Eighth Amendment, after all, proscribes only medical care so unconscionable as to fall below society's minimum standards of decency. See Estelle, 429 U.S. at 102-05. In this case, the DOC has chosen to provide a form of care that offers direct treatment for Kosilek's GID . Cf. Leavitt, 645 F.3d at 498 (acknowledging that the effects of treatment decisions may be relevant to consideration of the subjective component of the Eighth Amendment). Moreover, it has done so in light of the fact that provision of SRS would create new and additional security concerns -- concerns that do not presently arise from its current treatment regimen.
Given the positive effects of Kosilek's current regimen of care, and the DOC's plan to treat suicidal ideation should it arise, the DOC's decision not to provide SRS does not illustrate severe obstinacy or disregard of Kosilek's medical needs. DesRosiers, 949 F.2d at 19 ("[T]he complainant must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain." . Rather, it is a measured response to the valid security concerns identified by the DOC. Battista, 645 F.3d at 454 ("Medical 'need' in real life is an elastic term: security considerations also matter at prisons. . . ." ; Cameron, 990 F.2d at 20 ("Nothing in the Constitution mechanically gives controlling weight to one set of professional judgments." . Having reviewed the record before us, we conclude that Kosilek has failed, on these facts, to demonstrate an Eighth Amendment violation. Accordingly, we reverse the district court's order of injunctive relief and remand this case to the district court with instructions to dismiss the case.
Given the positive effects of Kosilek's current regimen of care, and the DOC's plan to treat suicidal ideation should it arise, the DOC's decision not to provide SRS does not illustrate severe obstinacy or disregard of Kosilek's medical needs. DesRosiers, 949 F.2d at 19 ("[T]he complainant must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain."
. Rather, it is a measured response to the valid security concerns identified by the DOC. Battista, 645 F.3d at 454 ("Medical 'need' in real life is an elastic term: security considerations also matter at prisons. . . ." ; Cameron, 990 F.2d at 20 ("Nothing in the Constitution mechanically gives controlling weight to one set of professional judgments." . Having reviewed the record before us, we conclude that Kosilek has failed, on these facts, to demonstrate an Eighth Amendment violation. Accordingly, we reverse the district court's order of injunctive relief and remand this case to the district court with instructions to dismiss the case.
