California became the second state in the nation to have a federal judge rule that it had an obligation to pay for a transgender inmate’s sex reassignment surgery (SRS).

U.S. District Judge Jon Tigar ruled (pdf) in San Francisco that refusing to pay for the surgery denied 51-year-old convicted killer Michelle-Lael Norsworthy (formerly Jeffrey Bryan Norsworthy) constitutionally adequate medical treatment. He issued an injunction compelling the state to provide the surgery, which could cost up to $100,000.

A Massachusetts federal judge ruled in 2012 that the state should provide Michelle Kosilek (born Robert Kosilek), convicted of murdering spouse Cheryl Kosilek in 1990, with a sex change, but the decision was overturned by an appeals court last December. That ruling was appealed to the U.S. Supreme Court.

Technically, one state has already approved a sex change for an inmate, but that was under duress. Convicted killer Richard Masbruch cut off his penis in a Texas prison, virtually compelling the state to finish the sex change he had begun. Afterward, he was transferred from Texas to the California Institution for Women in Chino where, apparently, not all the female inmates feel safe around her.    

In Norsworthy’s case, the judge said the prisoner had identified as female from birth and experienced “excruciating pain and frustration” from severe gender dysphoria. “The weight of the evidence demonstrates that for Norsworthy, the only adequate medical treatment for her gender dysphoria is SRS,” the judge wrote.

The state disagreed. Corrections officials argued that Norsworthy received adequate care for her affliction through counseling, mental health treatment and hormone therapy. The care, they argued, was consistent with what judges had found acceptable for transgender prisoners.

The judge found that argument spurious and countered with an analogy:

“Imagine that prison officials prescribe a painkiller to an inmate who has suffered a serious injury from a fall, but that the inmate’s symptoms, despite the medication, persist to the point that he now, by all objective measure, requires evaluation for surgery. Would prison officials then be free to deny him consideration for surgery, immunized from constitutional suit by the fact that they were giving him a painkiller? We think not.”

The state argued that Norsworthy had gotten by this long without surgery, so what’s the big deal? The judge said, “The fact that she has not received SRS does not lessen her need for it now.”

Judge Tigar dismissed out of hand the state’s principle expert witness, Dr. Stephen Levine, a psychiatrist. After refusing to strike the doctor’s testimony from the record, as requested by Norsworthy’s lawyers, Tigar spent a good part of his opinion ripping him:

“The court gives little weight to the opinions of Levine, whose report misrepresents the Standards of Care; overwhelmingly relies on generalities about gender dysphoric prisoners, rather than an individualized assessment of Norsworthy; contains illogical inferences; and admittedly includes references to a fabricated anecdote.”

Officials at the California Department of Corrections and Rehabilitation (CDCR) told the Associated Press they are considering whether to appeal.

–Ken Broder

To Learn More:

Judge Orders California to Pay for Inmate's Sex Change (by Don Thompson, Associated Press)

Federal Judge Orders California Prison Inmate Be Granted Sex Change (by Ryan Parker, Los Angeles Times)

Federal Appeals Court Overturns Sex Change Surgery Ruling for Convicted Killer Kosilek (by Denise Lavoie, Associated Press)

Court Denies Inmate’s Sex-Change Surgery (by John R. Ellement and Travis Andersen, Boston Globe)

Michelle-Lael B. Norsworthy v. Jeffrey Beard et al (U.S. District Court Northern District of California) (pdf)