Transsexual prisoners and the Eighth Amendment: a reconsideration of Kosilek v. Spencer and why prison officials may not be constitutionally required to provide sex-reassignment surgery.

• Author: Tieger, Ethan Z.

1. INTRODUCTION

   For many Americans, the thought of providing any form of medical care to a convicted murderer is incomprehensible, a sentiment embodying the tenuous interplay between principles of morality and the rule of law. (2) The reality is that prisoners throughout the united States frequently undergo various medical procedures to treat their health care needs, but for transsexual prisoners, the uphill battle to receive treatment, including hormone therapy and sex- reassignment surgery (SRS), has been plagued by the courts' general resistance to recognize the severity of gender dysphoria. (3) The Eighth Amendment has long been interpreted to afford a prisoner the right to receive adequate medical care and treatment for his or her serious medical needs. (4) The Supreme Court has further explained that the Eighth Amendment's protections must conform to shifting and maturing notions of decency and social justice. (5)

   Gender Identity Disorder (GID) has been recognized as a mental illness; individuals currently incarcerated and suffering from GID--or gender dysphoria as it has been recently renamed--assert that SRS is a "medically necessary" treatment for this condition under the Eighth Amendment. (6) In 2012, the United States District Court for the District of Massachusetts became the first American court to grant an injunction mandating a prison to provide SRS to a transsexual prisoner in the case of Kosilek v. Spencer (Kosilek II). (7) Michelle Kosilek, a male-to-female transsexual currently serving a life sentence for the murder of her wife, sought to have the Massachusetts Department of Corrections (DoC) provide her with the controversial procedure. (8) The DoC doctors determined that the only adequate treatment for Kosilek's condition was to undergo the procedure but nonetheless denied treatment out of the purported rising fears for prison security. (9) Holding that the security concerns were merely a pretext for denying treatment, the court found that prison officials were deliberately indifferent to Kosilek's serious medical needs and ordered the treatment. (10)

   In response to the district court's order, a vigorous debate ensued at the state and national levels regarding the constitutionality of providing or denying SRS based on security concerns and costs to the American taxpayer. (11) Transsexual and transgendered individuals suffering from GID or gender dysphoria possess "a strong and persistent cross-gender identification," which is "manifested by symptoms such as preoccupation with getting rid of primary and secondary sex characteristics ... or [a] belief that he or she was born the wrong sex." (12) As suggested by the Standards of Care (SOC), established by the World Professional Association for Transgender Health (WPATH) governing the commonly used course of treatment for GID, treatment may require hormone therapy, real-life experience living as a member of the opposite sex, and SRS. (13) In cases where medical professionals deem SRS to be the only option, courts across the country will be faced with the question of whether denying the surgery constitutes cruel or unusual punishment in violation of a prisoner's Eighth Amendment rights. (14)

   Part II of this Note will explore the evolution of the case law surrounding a transsexual prisoner's right to adequate medical treatment under the Eighth Amendment, as well as the growth of GID or gender dysphoria as a recognized psychological disease or mental illness. Part III of this Note will address two important elements ignored in the federal district court's decision and important for any future analysis of whether a court should grant SRS to a prisoner: the dramatic effect of security interests after the procedure on the Eighth Amendment landscape and the important distinction between providing "curative" and "adequate" treatment for gender dysphoria or GID.

2. HISTORY

   In early 2011, the Federal Bureau of Prisons (BOP) issued a memorandum setting forth its policy for the evaluation and treatment of prisoners with GID by BOP personnel. (15) The policy provided that prisoners with GID would be afforded individualized treatment options based on the accepted "standards of care," as opposed to the past procedure of keeping prisoners at the same level of treatment they were receiving prior to incarceration. (16) The federal district court's treatment mandate raises the issue of whether denying transsexual prisoners SRS is indeed a violation of a prisoner's Eighth Amendment right. (17)

   1. The Eighth Amendment Right to Medical Care While in Custody

      A long history of cases before the Supreme Court has routinely interpreted the constitutional prohibition against "cruel and unusual punishment" under the Eighth Amendment. (18) Expanding from the early interpretation of the Amendment, which focused on the bar against torture and other barbarous methods of punishment for prisoners, the Court has since noted that the words of the clause are "not precise, and their scope is not static." (19) The Amendment's reach today is far more flexible and is largely influenced by society's growing notions of what it believes defines humane and just treatment. (20)

      1. Establishment of the Deliberate Indifference Standard

      Inherent in the understanding of the Eighth Amendment is that the treatment and conditions to which an inmate is subjected while in custody and the punishment for a particular crime must be both in accord with the dignity of man and not "excessive." (21) The inquiry into "excessiveness" has two aspects: "the punishment must not involve the unnecessary and wanton infliction of pain;" and the "punishment must not be grossly out of proportion to the severity of the crime." (22) The Supreme Court has outlined the general standards necessary to challenge physical punishments under the Eighth Amendment, and the landmark case of Estelle v. Gamble (23) established the current test for challenging the denial of medical treatment to prisoners. (24)

      In Estelle, the Court took up the issue of the evolving interpretations of the Eighth Amendment's Cruel and Unusual Punishment Clause. (25) Although the Court denied the prisoner's claim, it reasoned that a denial or delay of medical care, or an interference with prescribed treatment to a prisoner, would result in pain and suffering that does not serve any penological purpose. (26) Identifying that prisoners deserve medical care that they cannot provide themselves, the Court established that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain.'" (27)

      The deliberate indifference test formulated by the Estelle Court works to provide later courts with a definitive legal framework for analyzing Eighth Amendment prisoner claims. (28) After Estelle, the Court expanded the test to contain both objective and subjective components. (29) A prisoner must allege not only that "a substantial risk of serious harm" objectively exists, but also that the prison official possessed a culpable state of mind by not acting appropriately. (30) Deliberate indifference requires a state of mind more intentional than negligence and less than acting with specific purpose to cause harm, and is recognized as equivalent to recklessness under a criminal law standard by the Supreme Court. (31) Furthermore, the Court in Farmer v. Brennan (32) determined that "[t]he Eighth Amendment does not outlaw cruel and unusual conditions; it outlaws cruel and unusual punishments.... [A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." (33) Additionally, a prison official's conduct may not violate the Eighth Amendment if the countervailing concerns, such as prison security, are found to outweigh any finding of deliberate indifference. (34)

      2. Requirement of Finding a Serious Medical Need

      In the medical care context, an inmate is entitled to receive adequate medical treatment in order to prevent a substantial risk of serious injury. (35) For a claim to constitute a violation of the Eighth Amendment, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." (36) According to the United States Court of Appeals for the Fifth Circuit, in order for a prisoner to establish deliberate indifference, he must show evidence that prison officials "refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs." (37)

      As defined by the court in Kosilek II, a serious medical need is one where a substantial risk of serious harm will develop if the inmate is not adequately treated. (38) Several federal circuit courts of appeals employ their own factors for defining a "serious medical need," each with its own distinctions; however, the First Circuit, where Kosilek's case continues to be heard, defines a serious medical need as one "that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." (39) Additionally, a serious medical need may be manifested either physically or mentally; thus, a deliberate indifference to a prisoner's psychological condition will also constitute a violation of the Eighth Amendment. (40) While the Estelle Court analyzed serious physical medical needs, the eventual application to mental health needs is warranted because there is "no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart." (41)

      While prisoners with serious medical needs are entitled to receive medical care, courts have routinely established that the standard for the level of care must be...