Sex-reassignment surgery and the Eighth Amendment

Kosilek v. Spencer, No. 12-2194 (1st Cir. Dec. 16, 2014) (en banc).

Under the Eighth Amendment, prisons can’t be deliberately indifferent to the serious medical needs of their inmates. Michelle Kosilek is a Massachusetts prisoner with severe gender dysphoria, a condition in which people experience mental anguish because their sexual anatomy doesn’t match up with their subjective experience of themselves as male or female. The Massachusetts Department of Corrections denied her request for sex-reassignment surgery. After an extended trial, a Massachusetts federal district court found that the DOC had violated the Eighth Amendment. It found that the DOC knew that sex-reassignment surgery was the only way to treat Kosilek’s condition, but that the DOC denied the surgery for political reasons, not for legitimate penological or medical ones. 

In January of this year, a divided panel of the First Circuit affirmed the district court. The First Circuit then granted rehearing en banc, and now, in a 3-2 vote, reverses the district court. 

This case shows—among other things—why appellate standards of review matter. According to the three-judge majority, the district court’s finding that the DOC was deliberately indifferent to Kosilek is reviewed de novo, rather than for clear error. It also reviews de novo the finding that the DOC denied the surgery without a legitimate reason. Judge Thompson’s dissent, on the other hand, argues that these are factual issues on which an appellate court must defer to a trial court. Her dissent ends with the hope that today’s decision, like Plessy and Korematsu, “will not stand the test of time.”

Judge Kayatta’s separate dissent says that the majority opinion throws a wrench into the appellate machinery: “Until today, there was absolutely no precedent … for reviewing such quintessentially factual findings under anything other than the clear error test.” Or to put it more pointedly:

Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.