American Journal of Law & Medicine

Starting with the Man in the Mirror: Transsexual Prisoners and Transitional Surgeries Following Kosilek V. Spencer

I.   INTRODUCTION II.  BACKGROUND      A. Defining Transgenderism      B. Transsexualism and the Law      C. Transsexualism in the Medical Community      D. Sex Reassignment and Facial Feminization Surgery      E. Transsexualism and the Prison System III. THE EIGHTH AMENDMENT      A. Objective Inquiry: Serious Medical Need      B. Subjective Inquiry: Deliberate Indifference IV.  THE DEVELOPMENT OF TRANSSEXUAL PRISONER LAWSUITS FOR      TRANSITIONAL MEDICAL CARE      A. Estelle and Prisoners' Right to Medical Care      B. Early Transitional Therapy Access Cases      C. Increasing Access to Transitional Care V.   KOSILEK V. SPENCER: AN OVERVIEW      A. Factual Background: The Making of Michelle Kosilek      B. Procedural Background: Kosilek I and Kosilek II VI.  KOSILEK V. SPENCER: AMBIGUITIES IN THE DISTRICT COURT'S      DECISION      A. "Sex Reassignment Surgery" as Defined by the Standards of         Care      B. Identifying the Goal: Treating Symptoms v. Treating Causes      C. The Waiting Game: Delay and Deliberate Indifference VII. CONCLUSION 


Developed and organized along a strict gender binary assumption, the United States prison system network is arguably the single most sexually segregated institution in the United States. (1) Contextualized by this rigidly classified system, transsexual prisoners face unique challenges both within correctional facilities and in America's courts. In recent decades, transsexual prisoners have become a significant subpopulation in U.S. prisons, (2) and many transsexual prisoners have challenged prison conditions through a series of lawsuits, primarily by bringing Eighth Amendment claims for access to transition-related healthcare. Several of these lawsuits represent landmark victories in defining the scope of prisoners' right to health care as applied to transsexual prisoners. Of these landmark suits, Kosilek v. Spencer most widely expands the scope of what a federal court may consider a "serious medical need" under the Eighth Amendment. At first blush, Kosilek appears to open the door for some transsexual prisoners to receive sex reassignment surgery. However, this Note explores the ambiguities of Kosilek and discusses the control that departments of correction (DOCs) retain, post-Kosilek, in providing transitional surgeries such as facial feminization and sex reassignment surgeries. The United States District Court for the District of Massachusetts was the first court in the country to order a DOC to provide sex reassignment surgery to a transsexual inmate; the Massachusetts DOC therefore has no case law directly on point to inform it of the scope of its duties under the ruling. Nevertheless, this Note argues the Massachusetts DOC's duty, post-Kosilek, may be determined through the Eighth Amendment jurisprudence that concerns a prisoner's access to other unique medical treatments and surgeries, as well as through the body of case law on delayed provision of medical treatment.

Part I provides some background on transgenderism and the extent to which the medical and legal communities have recognized transsexualism. This section describes the American Psychiatric Association's (APA) controversial, but crucial, classification of transsexualism as a medical condition, and the standardized treatment methods. This section also discusses the incarceration experience for transsexual prisoners. Part II relates the United States Supreme Court's Eighth Amendment jurisprudence, particularly as it applies to prisoners' medical needs. In addition to discussing the background of the Eighth Amendment, this section describes the various requirements a prisoner must satisfy to state an Eighth Amendment violation. Part III analyzes important developments in transsexual prisoners' Eighth Amendment suits for access to transitional medical care, beginning with the Supreme Court's landmark decision Estelle v. Gamble and the "deliberate indifference" standard. Part IV discusses the background of Kosilek v. Spencer and evaluates the degree to which the court's opinion provides guidance to the Massachusetts DOC in how to fulfill the court's order. This part also presents other types of Eighth Amendment cases the Massachusetts DOC may look to for guidance in carrying out the district court's order to provide Kosilek with SRS.



"Transgender" is an umbrella term that encompasses many different gender identities including cross-dressers, drag kings and queens, and intersex (4) persons with disorders of sex development. (5) This Note focuses on one type of transgenderism--transsexualism. Although the term is somewhat outmoded, "transsexual" (6) refers to someone who feels as though his or her body is not equipped with the sexual organs and other physical manifestations of gender that reflect the transsexual's desired gender expression. (7) Some transsexuals take serious steps towards achieving "gender authenticity," (8) or full embodiment of the desired and non-natal sex. The extent to which transsexuals achieve gender authenticity is particular to each individual. (9)


Transgenderism, and particularly transsexualism, is a gender identity clearly at odds with the American legal system, wherein an individual's natal external genitalia defines, as a matter of law, that person's sex. (10) Historically, our legal institutions have considered sex to be a fixed characteristic," and thus "[t]he law assumes that sex is binary: an individual can be a man or a woman, but not both or neither." (12) However, the U.S. legal system is also quite cognizant of the medical community and standards established by medical professionals. (12) For example, the Supreme Court defines a transsexual as "one who has '[a] rare psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex,' and who typically seeks medical treatment, including hormonal therapy and surgery, to bring about a permanent sex change." (14) Therefore, while U.S. law may not recognize transgender individuals qua transgender individuals, the law is amenable to contemplating transsexual medical needs as the medical professional community identifies and defines them. (15)


The APA's Diagnostic and Statistical Manual IV (DSM-IV) recognizes transsexualism, or "Gender Identity Disorder" (GID), as a medical condition with several diagnostic criteria. (16) The criteria include: (1) a strong persistent cross-gender identification; (2) persistent discomfort with his or her sex or sense of inappropriateness in the gender role of that sex; (3) the disturbance is not concurrent with physical intersex condition; and (4) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. (17) Although highly controversial, the APA's categorization of transsexualism as a medical disorder is crucial because it facilitates recognition of transsexuals' medical needs in the courts. (18)

The World Professional Association for Transgender Health (WPATH) has also established standards of care (the "Standards of Care" or "Standards") which further bring transsexual persons within the care of mental health and medical professionals, and thus, within recognition in the courts. (19) The treatment protocol for adults diagnosed with GID varies by individual. (20) Although the Standards of Care do not require psychotherapy before beginning transitional care, the Standards of Care do recommend that, at a minimum, a qualified mental health professional educate the individual with respect to the diversity of gender identities as well as the various options available to alleviate the psychological stress attending GID. (21)

One method of treatment the Standards of Care suggests encourages the transsexual person to make active changes to his or her gender expression and role, which "may involve living part time or full time in another gender role, consistent with one's gender identity." (22) The Standards of Care also provide criteria to guide decisions to administer masculinizing or feminizing hormone therapy for those whose mental health concerns are not alleviated through psychotherapy and real-life experience. (23) Finally, the Standards of Care recognize that there are GID cases in which sex reassignment surgery is the best course of treatment for the individual's mental and physical needs. In these cases, the Standards of Care provide criteria to guide decisions regarding breast/chest and genital surgery. (24) Unlike pure psychotherapeutic treatment, which "seeks to align the patient's beliefs about his gender with his biological sex," the Standards of Care suggest medical treatments that "seek to align the patient's biological sex with his beliefs about his gender." (25)

Generally, a transsexual person needs a qualified medical authority's permission to access transitional medical care. (26) In addition to the baseline eligibility criteria defined in the Standards of Care, (27) individuals wanting genital surgery must receive hormone therapy, live for "12 continuous months ... in a gender role that is congruent with their gender identity," and obtain letters of referral from two different mental health professionals. (28)

D. Sex Reassignment and Facial Feminization Surgery

If a transsexual person meets the various Standards of Care requirements, he or she may be a candidate to receive sex reassignment surgery. Sex reassignment surgery (SRS) (29) refers to the variety of procedures available for transsexual persons who, according to the Standards of Care, require surgery to achieve the desired gender authenticity. (30) One study estimates that, as of January 2006, at least 30,000 SRSs had been performed in the United States. (31) Another survey postulates more specifically that one in every 2500 people bom biologically male in the United States has undergone SRS. (32) Penile inversion vaginoplasty, or creation of a vagina from the penis, is one of the most common male-to-female neo-genital construction surgeries. (33) Such vaginoplasties, often accompanied by orchiectomies, (34) are arguably the surgeries that first come to mind when contemplating SRS.

Other than neo-genital construction, a variety of other procedures supplements the larger SRS menu. For example, some transwomen may opt for mammoplasty, or breast augmentation surgery, if hormone-stimulated breast development is unsatisfactory. (35) Other surgical procedures, known as facial feminization surgeries (FFS), alter typical male facial features in order to present a more feminine countenance. (36) FFS procedures include common "plastic" surgeries, such as rhinoplasty, lip augmentation, cheek implantation, and chin reshaping. (37) However, other FFS procedures are unique to transsexual patients, such as frontal cranioplasty, or forehead recontouring, and chondrolaryngoplasty, or Adam's apple reduction. (38)

One 2010 survey vindicates the importance of SRS and FFS procedures. (39) Motivated by the "significant emotional turmoil and distress related to the incongruence between ... internal and external manifestation of gender," the survey measured the mental health-related quality of life among transwomen who did not receive surgical intervention and transwomen who received SRS, FFS, or both. (40) While transwomen generally have a lower mental health-related quality of life compared to the larger biologically female population, surveyed transwomen who did not receive any transitional surgery reported a statistically lower quality of life as compared to transwomen who received at least some gender transitional surgery. (41)

The survey also found that simple FFS procedures may improve a transwoman's mental health more than other, more invasive transitional surgeries. (42)

Despite the improvements in social relationships and mental health that SRS may stimulate in transsexual people, the procedures are not without cost. The cost of most male-to-female genital surgeries is in the tens of thousands of dollars--and this sum does not necessarily include additional FFS procedures, or extended hospital stays required to treat serious post-surgery complications. …

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