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Political and religious groups at both ends of the political spectrum have jumped into the appellate battle over a Boston federal judge’s order that prison officials provide sex reassignment surgery for a convicted murderer. 

The U.S. Court of Appeals for the First Circuit will hear oral argument on April 2 in Kosilek v. Spencer. Massachusetts Department of Correction Commissioner Luis Spencer is fighting District of Massachusetts Senior Judge Mark Wolf’s order that the department provide the surgery to Michelle Kosilek,a transsexual whose first name originally was Robert and is serving a life sentence without the possibility of parole for murdering his wife. He has been diagnosed with a mental illness called severe gender identity disorder. Since he’s been in prison, Kosilek has tried to kill himself twice and to castrate himself.

Wolf, who was chief judge in the District of Massachusetts at the time, held in September that the department in denying Kosilek’s surgery request had violated the Eighth Amendment ban on cruel and unusual punishments and was motivated by "a fear of controversy, criticism, ridicule, and scorn."

"The court finds that there is no less intrusive means to correct the prolonged violation of Kosilek’s Eighth Amendment right to adequate medical care," Wolf wrote.

The case has become a cause célèbre for advocates both of traditional values and of gay, lesbian and transgender equality. Amicus Massachusetts Family Institute, for example, filed an amicus brief arguing that Wolf violated the establishment clause by discounting some of the state’s experts’ opinions because of their perceived religious beliefs — in this case, Roman Catholic.

"One of our main legal arguments is that the judge actually discriminated against some of the Department of Corrections experts because of their affiliation with the Catholic faith," said institute executive vice president Andrew Beckwith.

‘MEDICALLY NECESSARY CARE’

A group of amici supporting Kosilek’s position said the critics are ignoring Wolf’s solid factual findings. "This is an appeal from a very carefully reasoned trial court decision that found that Michelle Kosilek has a very serious medical condition for which there is a proscribed course of treatment," said Jennifer Levi, director of the transgender rights project at Boston’s Gay & Lesbian Advocates & Defenders. "It’s very well established that the Department of Correction cannot deny medically necessary care. The trial judge heard significant testimony and I think it’s an extremely strong case."

Also on the GLAD brief were MassEquality.org and the Massachusetts Transgender Political Coalition, both of Boston; the Human Rights Campaign, the National Center for Transgender Equality and the National Gay and Lesbian Task Force, all of Washington; EqualityMaine of Portland; and TransGender New Hampshire.

A group of health sector amici led by the World Professional Association for Transgender Health Inc. of Minneapolis weighed in with a brief arguing that sex reassignment surgery is medically necessary for people with severe gender identity disorder. The health amici’s lawyers at Boston’s Ropes & Gray declined to comment. The group also included Health Professionals Advancing LGBT Equality; Mental Health America of Alexandria, Va.; the Callen-Lorde Community Health Center of New York; the Mazzoni Center of Philadelphia; and Whitman-Walker Health and the Gay and Lesbian Medical Association, both of Washington.

Joshua Block, who co-wrote a brief led by the American Civil Liberties Union said it’s "a very simple appeal that rests on pretty standard Eighth Amendment analysis." Prisons violate that amendment when they act with deliberate indifference to an inmate’s serious medical need, said Block, a New York staff attorney with the ACLU’s lesbian, gay, bisexual and transgender project.

There’s overwhelming evidence that former Massachusetts corrections commissioner Kathleen Dennehy believed that providing the sex reassignment surgery to Kosilek "would be offensive to her constituents," Block said. According to Wolf’s ruling, Dennehy claimed that giving Kosilek the surgery would "create insurmountable security problems."

"The state doesn’t even seriously contest that on appeal. Once that’s established, it’s a pretty open-and-shut case," Block said.

The other amici on the brief include the ACLU’s Massachusetts affiliate; the Legal Aid Society of New York; the Harvard Prison Legal Assistance Project at Harvard Law School; and Prisoners’ Legal Services of Massachusetts and New York.

Kosilek’s lawyers agree the case is "legally straightforward," said Joseph Sulman of the Law Office of Joseph L. Sulman in Boston. "The law is clear that people have a right to minimally adequate medical care based on their particular needs and the opinion of qualified medical professionals." Sulman is co-counsel to Frances Cohen, a Boston Bingham McCutchen partner who is arguing the case.

The department’s brief argues that denying the surgery to Kosilek didn’t reach the threshold for an Eighth Amendment violation. "It is well established that adequate medical care does not mean that an inmate is entitled to ideal care or the care of his choice," it says. To constitute a violation of the standard requires grossly inadequate medical care that inflicts an unnecessary and unjustifiable level of pain, it continues. Inmates are not entitled to "curative medical or mental health treatment."

The department insisted that its treatment of Kosilek meets "prudent professional standards."

Beckwith, of the family institute, said, "We believe it is not medically necessary to perform an invasive and intensive surgery on a healthy body to correct a mental disorder."

OPEN AND SHUT

The ACLU’s Block insisted the case law is on Kosilek’s side. He pointed to the Seventh Circuit’s August 2011 Fields v. Smith ruling, which struck down a Wisconsin statute barring prison officials from giving transgender inmates certain medical treatments, including sex reassignment surgery and hormonal therapy. The unanimous ruling upheld Eastern District of Wisconsin former Chief Judge Charles Clevert Jr., who ruled that those bars violated the Eighth Amendment’s ban on cruel and unusual punishment and the Fourteenth Amendment’s equal protection clause.

The Fourth Circuit is grappling with similar issues. In January in De’lonta v. Johnson, a panel unanimously reversed Western District of Virginia Senior Judge James Turk’s dismissal of Ophelia Azriel De’lonta’s Eighth Amendment claim. De’lonta, born Michael Stokes, claimed Virginia Department of Corrections officials knew of her attempted self-mutilation and were deliberately indifferent to her serious, medically necessary consideration for sex reassignment surgery.

The Fourth Circuit held that "De’lonta’s Eighth Amendment claim is sufficiently plausible to survive screening" and remanded the case for further review.

The Kosilek case has attracted an outsized share of attention, Block said, but "the underlying issues are pretty straightforward and pretty unambiguously point towards affirming the district court’s judgment."

Sheri Qualters can be contacted at squalters@alm.com.

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