The Eighth Amendment and a Prisoner’s Right to Sex Reassignment Surgery

October 24, 2012

On October 3, 2012, the Massachusetts Department of Corrections appealed the District Court of Massachusett’s decision in Kosilek v. Spencer, which required that the Department of Corrections pay for Michelle Kosilek ‘s (formerly Robert) sex reassignment surgery.  The first circuit of appeals docket is available on Westlaw and WestlawNext at 12-2194.  The D.Mass decision from 9/4/2012 is also available at 2012 wl 3799660.

In the district court case, the court found for Ms. Kosilek and ruled that the Department of Corrections’ refusal to pay for her surgery amounted to cruel and unusual punishment under the Eighth Amendment.  Ms. Kosilek, who suffers from severe “gender identity disorder,” did not respond to other forms of therapy, such as psychotherapy and hormone treatment.  The court referred to the Harry Benjamin Standards of Care, which are used by medical professionals to diagnose and treat patients with gender identity disorder, and states that sex reassignment surgery is “medically necessary and appropriate” for patients in Ms. Kosilek’s condition.

The Department of Corrections refused to provide the surgery despite the physicians’ recommendation because they feared an increase in security risks.  The court did not buy the state’s arguments and stated a number of alternatives the DOC could pursue including transferring Ms. Kosilek to a female prison, transferring her to another state’s prison, or holding her in a segregated protective unit.

Ms. Kosilek’s victory comes after years of battling with the Department of Corrections on this issue.  A simple search for “Michelle Kosilek” in WestlawNext brings up a number of filings and previous court orders from this case.  It also brings up the decision and filings from the case that initially brought her to prison: the gruesome murder of her wife for which she is serving a life sentence without the possibility of parole.

Although Kosilek v. Spencer appears to be the first case ordering a state to provide sex reassignment surgery for an inmate, it is not the first instance of an inmate suing the state for medical treatment for “gender identity disorder.”  It is also not the first case where the courts have found that the state’s refusal to provide treatment to an inmate with this disorder amounted to cruel and unusual punishment.

A similar case in Wisconsin led to the passage of the “Wisconsin Inmate Sex Change Prevention Act.”  After years of responding to requests from Scott Konitzer (now Donna), an inmate with gender identity disorder who sought treatment, the Wisconsin legislature decided to pass the “Wisconsin Inmate Sex Change Prevention Act” to ban any state assistance to prisoners who needed sex reassignment surgery to treat their medical condition.  Konitzer v. Frank, 711 F. Supp. 2d 874, 897 (E.D. Wis. 2010)


The “Wisconsin Inmate Sex Change Prevention Act” is available on Westlaw and WestlawNext at Wis. Stat. Ann. § 302.386(5m) (West).


In 2010, three inmates with gender identity disorder sued the state, claiming that this law was unconstitutional.  The Eastern District of Wisconsin agreed and found for the plaintiffs.  The state appealed the decision only to have it affirmed by the Seventh Circuit Court of Appeals.  The US Supreme Court denied certiorari.  Fields v. Smith, 06-C-112, 2010 WL 1325165 (E.D. Wis. Mar. 31, 2010) aff’d, 653 F.3d 550 (7th Cir. 2011) cert. denied, 132 S. Ct. 1810, 182 L. Ed. 2d 616 (U.S. 2012)


A search in WestlawNext for “sex reassignment surgery for inmates” in all state and federal materials reveals that courts have been discussing this topic for many years.  This search will also bring up two broader cases that don’t involve inmates, but do involve persons seeking Medicaid assistance to pay for their sex changes.  Be sure to look at the law reviews and other secondary sources on the subject, some of which I’ve listed here:

Alvin Lee, Trans Models in Prison: The Medicalization of Gender Identity and the Eighth Amendment Right to Sex Reassignment Therapy, 31 Harv. J. L. & Gender 447 (2008)

Rebecca Mann, The Treatment of Transgender Prisoners, Not Just an American Problem-A Comparative Analysis of American, Australian, and Canadian Prison Policies Concerning the Treatment of Transgender Prisoners and A “Universal” Recomm, 15 Law & Sexuality 91 (2006)

Nikolas Andreopoulos, Criminal Law – Kosilek v. Maloney: In Prison While Imprisoned in the Body of the Opposite Sex: Examining the Issue of “Cruel and Unusual Punishment” Presented by an Incarcerated Transsexual, 27 W. New Eng. L. Rev. 219 (2005)