The Eighth Amendment and Sex-Reassignment Surgery

by Ed Whelan

Last Friday, in Kosilek v. Spencer, a divided panel of the First Circuit affirmed a district-court order that holds that the Eighth Amendment’s bar on cruel and unusual punishments requires the Massachusetts prison system to provide sex-reassignment surgery to a prisoner. The particular prisoner, whose legal name is now Michelle Kosilek, “was born and still is anatomically male” but, suffering from gender-identity disorder, has long believed himself to be “a woman cruelly trapped in a man’s body.”

Medical testimony before the district court was divided on the question whether sex-reassignment surgery was medically necessary for Kosilek. Several of Kosilek’s medical experts testified that it was medically necessary, but the state’s expert, Dr. Schmidt, disagreed. The district judge then appointed his own expert, Dr. Levine. Dr. Levine opined that the conflicting medical positions “reflect the current polarities within psychiatry” and that Dr. Schmidt’s view was “within prudent professional community standards.” But he later provided testimony that the district judge construed as less favorable to Dr. Schmidt’s position. The district judge ended up holding that sex-reassignment surgery was necessary for Kosilek and that Dr. Schmidt’s recommended course of treatment did not meet prudent professional standards.

The panel majority (opinion by O. Rogeriee Thompson, joined by William Kayatta—both Obama appointees) and Reagan appointee Juan Torruella’s dissent differ on several points, including the appropriate standard of review of the district court’s conclusion that sex-reassignment surgery was the only appropriate treatment for Kosilek. The panel majority reviewed the conclusion only to determine whether it was “clearly erroneous” and, given the “diametrically opposed opinions,” found that it was not. Judge Torruella, by contrast, undertook a “more searching” and “holistic” review, credited the initial report by the court-appointed expert, Dr. Levine, and faulted the district judge’s assertion that Dr. Levine had later changed his opinion. (Please note that I’m summarizing 118 pages of opinions in three paragraphs.)

If the bottom-line ruling strikes you (as it strikes me) as crazy, there are multiple possible sources of the craziness. It might, indeed, come from the district judge’s failure to accord enough deference to the prison officials, together with the panel majority’s according too much deference to the district judge. Or it might come from current medical opinion’s apparent acceptance of sex-reassignment surgery as a legitimate treatment. (According to this Boston Globe article, though, “no surgeon in Massachusetts [has] expressed a willingness to take on the task.”). Or it might come from the Supreme Court’s broader Eighth Amendment standards for medical care for prisoners. Or perhaps a mix of all of the above.

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