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Transgender Inmate Files Cert. Petition With Supreme Court

By Mark Wilson, Esq. on March 23, 2015 | Last updated on March 21, 2019

Following an en banc reversal of fortune, Michelle Kosilek was denied the ability to have a sex-change operation paid for by the Massachusetts Department of Correction. Both a federal district court and a three-judge panel of the First Circuit agreed that the state should pay, but the en banc court reversed.

Now, Kosilek is taking her case to the U.S. Supreme Court.

A Sliding Scale

The First Circuit's en banc panel conditioned its opinion on the deference courts are supposed to grant to prison officials when it comes to matters of security. The prison's psychologists claimed that, rather than helping Kosilek, gender reassignment surgery might provoke her extant suicidal tendencies. It also said that the prison was correctly concerned about the security problems created by housing a female inmate among males.

Rather than use the standard de novo standard of review for legal issues and the clear error standard for facts, Kosilek's petition says that the en banc panel crafted a "degree-of-deference" standard of review that allowed it to escape determining what standard should be applied in this case. Under the panel's test, an appellate court can use a "sliding scale" of review for claims that are more fact-based or more law-based.

Kosilek claimed, as did the two dissenters from the en banc opinion, that the First Circuit's "degree of deference" standard allowed it to essentially review de novo the trial court's factual determinations (which it more or less did), which flies in contravention of the notion that "appellate courts should not be in the business of reconsidering issues that are fundamentally factual in nature." This is something the U.S. Supreme Court, and other circuit courts of appeal, have said more than once.

Deliberate Indifference, Unless It's Necessary

Kosilek also faulted the en banc panel's claim that a prison can avoid an Eighth Amendment claim for denial of medical care "so long as prison officials can cite a nonmedical justification for denying treatment," which of course, they always can. The panel impermissibly created a balancing test for Eighth Amendment claims, when in fact, the Supreme Court "has prescribed no other requirement -- such as the lack of a countervailing security concern -- to prove an Eighth Amendment claim."

Absent an extension of time, the respondent's brief in opposition to the petition for a writ of certiorari is due in 30 days.

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