United States Court of Appeals

1 United States Court of AppealsFor the First CircuitNo. 12-2194 MICHELLE KOSILEK,Plaintiff, Appellee, S. SPENCER, Commissioner of theMassachusetts department of correction ,Defendant, FROM THE United States DISTRICT COURTFOR THE DISTRICT OF massachusetts [Hon. Mark L. Wolf, District Judge]BeforeTorruella, Thompson, and Kayatta,Circuit C. McFarland, Legal Division, department ofCorrection, with whom Nancy Ankers White, Special AssistantAttorney General, was on brief, for S. Cohen, with whom Jeff Goldman, Christina Chan,Bingham McCutchen LLP, Joseph L. Sulman, David Brody, and LawOffice of Joseph L.

2 Sulman, were on brief, for D. Beckwith on brief for the massachusetts FamilyInstitute, amicus curiae in support of A. Lable, Daniel V. McCaughey, Kristin G. Ali, and Ropes& Gray LLP on brief for World Professional Association forTransgender Health, Mental Health America, Callen-Lorde CommunityHealth Center, Whitman-Walker Health, GLMA: Health ProfessionalsAdvancing LGBT Equality, and Mazzoni Center, amici curiae insupport of Block, Matthew R. Segal, and David C. Fathi on brieffor American Civil Liberties Union, American Civil Liberties Unionof massachusetts , Legal Aid Society, Harvard Prison LegalAssistance Project, Prisoners' Legal Services of New York, andPrisoners' Legal Services of massachusetts , amici curiae in supportof Levi and Bennett H.

3 Klein on brief for Gay & LesbianAdvocates & Defenders, EqualityMaine, Human Rights Campaign,MassEquality, massachusetts Transgender Political Coalition,National Center for Transgender Equality, National Gay & LesbianTask Force, and Transgender New Hampshire, amici curiae in supportof 17, 2014-2-THOMPSON, Circuit Judge. Twenty years after prisoninmate Michelle Kosilek first requested treatment for her severegender identity disorder, the district Court issued an orderrequiring the defendant, Luis S. Spencer, Commissioner of theMassachusetts department of correction (the "DOC"),1 to provideKosilek with sex reassignment surgery.

4 The Court found that theDOC's failure to provide the surgery which was said by a group ofqualified doctors to be medically necessary to treat Kosilek'scondition violated Kosilek's Eighth Amendment rights. The DOCappeals the district Court 's order. Having carefully consideredthe relevant law and the extensive factual record, we affirm thejudgment of the district BACKGROUNDA. Gender Identity Disorder and Sex Reassignment SurgeryThe concepts of gender identity disorder and sexreassignment surgery sit center stage in this case and featureprominently in this opinion.

5 Therefore, before we go any further,we provide a little context. As this Court has explained, genderidentity disorder is "a psychological condition involving a strongidentification with the other gender." Battista v. Clarke, 449, 450 (1st Cir. 2011). It is a disorder recognized by theAmerican Psychiatric Association, which describes gender identity1 For ease of reference we will speak of the defendant as theDOC, since the DOC's commissioner has changed multiple times duringthe life span of Kosilek's as having two components. American Psychiatric Ass'n,Diagnostic and Statistical Manual of Mental Disorders, FourthEdition - Text Revision 576 (2000) ("DSM-IV-TR").

6 2 The first is"evidence of a strong and persistent cross-gender identification,which is the desire to be, or the insistence that one is, of theother sex." Id. The second is "evidence of persistent discomfortabout one's assigned sex or a sense of inappropriateness in thegender role of that sex." current diagnosis of gender identity disorder grewout of an earlier diagnosis of transsexualism, which first appearedas an official disorder in the third edition of the DSM, publishedin 1980. Judith S. Stern & Claire V. Merkine, Brian L. v. Children's Services: Ambivalence Toward Gender IdentityDisorder as a Medical Condition, 30 Women's Rts.

7 L. Rep. 566, 567-68 (2009). In the 1950s and 1960s, research began to show that a"combination of psychotherapy, hormone treatment, and surgicalreconfiguration of the genitalia" could be used to treat genderidentity disorder. Id. at 571. This idea gained traction in the1960s and 1970s, id., and as we will discuss more fully below, this2 DSM-IV-TR, the version applicable in Kosilek's cases, usesthe term gender identity disorder. A newer edition, DSM-5, wasreleased in May 2013. DSM-5 replaces the term gender identitydisorder with gender dysphoria to avoid any negative stigma.

8 SeeAmerican Psychiatric Ass'n, Gender Dysphoria, (last visited Jan. 16, 2014). Because the term gender identitydisorder was used throughout Kosilek's cases and was the then-appropriate nomenclature, we will use that triadic approach is still utilized by many practitioners today. Sex reassignment surgery in particular has been performed in NorthAmerica since at least the 1950s, and it has been estimated that asof January 2006, 30,000 sex reassignment surgeries have beenperformed in the United States . Id. at this bigger picture in place, we move on to thefacts of this case.

9 We again note that this case has an overtwenty-year history. This has included two trials and two lengthy,fact-intensive decisions issued by the district Court , the latterof which is the subject matter of this appeal . Because of this,and because the district Court 's opinion was so fact-intensive, itis necessary for us to lay out a good deal of Kosilek's ConvictionMichelle Kosilek, n e Robert, who is sixty-four yearsold, was born and still is anatomically male. Kosilek suffers fromgender identity disorder. This has resulted in Kosilek's long-heldbelief that she3 is a woman cruelly trapped in a man's body.

10 Kosilek, who spent some of her childhood in an orphanage,suffered regular abuse as a child, in part because of her expresseddesire to live as a girl. As she grew older, she alternatedbetween living as a man and a woman. Kosilek's teenage and early3 We will refer to Kosilek as her preferred gender of female,using feminine years were marred by arrests, incarcerations, beatings, heavydrinking, drug use, and a stint as a prostitute. Sometime in the 1980s, Kosilek married Cheryl McCaul, avolunteer counselor at a drug rehabilitation facility, who Kosilekmet while being treated there.