KOSILEK v. SPENCER

No. 12-2194.

740 F.3d 733 (2014)

Michelle KOSILEK, Plaintiff, Appellee, v. Luis S. SPENCER, Commissioner of the Massachusetts Department of Correction, Defendant, Appellant.

United States Court of Appeals, First Circuit.

Rehearing En Banc Granted and Opinions Withdrawn February 12, 2014.


Attorney(s) appearing for the Case

Richard C. McFarland , Legal Division, Department of Correction, with whom Nancy Ankers White , Special Assistant Attorney General, was on brief, for appellant.

Frances S. Cohen , with whom Jeff Goldman , Christina Chan , Bingham McCutchen LLP, Joseph L. Sulman , David Brody , and Law Office of Joseph L. Sulman, were on brief, for appellee.

Andrew D. Beckwith on brief for the Massachusetts Family Institute, amicus curiae in support of appellant.

Cori A. Lable , Daniel V. McCaughey , Kristin G. Ali , and Ropes & Gray LLP on brief for World Professional Association for Transgender Health, Mental Health America, Callen-Lorde Community Health Center, Whitman-Walker Health, GLMA: Health Professionals Advancing LGBT Equality, and Mazzoni Center, amici curiae in support of appellee.

Joshua Block , Matthew R. Segal , and David C. Fathi on brief for American Civil Liberties Union, American Civil Liberties Union of Massachusetts, Legal Aid Society, Harvard Prison Legal Assistance Project, Prisoners' Legal Services of New York, and Prisoners' Legal Services of Massachusetts, amici curiae in support of appellee.

Jennifer Levi and Bennett H. Klein on brief for Gay & Lesbian Advocates & Defenders, EqualityMaine, Human Rights Campaign, MassEquality, Massachusetts Transgender Political Coalition, National Center for Transgender Equality, National Gay & Lesbian Task Force, and Transgender New Hampshire, amici curiae in support of appellee.

Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.


THOMPSON, Circuit Judge.

Twenty years after prison inmate Michelle Kosilek first requested treatment for her severe gender identity disorder, the district court issued an order requiring the defendant, Luis S. Spencer, Commissioner of the Massachusetts Department of Correction (the "DOC"),1 to provide Kosilek with sex reassignment surgery. The court found that the DOC's failure to provide the surgery — which was said by a group...

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