Hastings Constitutional Law Quarterly


In 2012, a Massachusetts district court judge issued a controversial decision in Kosilek v. Spencer when he ordered the state to pay for a transgender inmate's sex reassignment surgery. The court ruled that denying sex reassignment surgery to an inmate with Gender Identity Disorder is a violation of the Eighth Amendment. However, the court did not answer the question of where to place the inmate after the surgery. That decision was left up to the prison administrators.

The court utilized a five-step Eighth Amendment test to determine when an inmate has a constitutional right to medical services or care and found that the state has a duty to provide a transgender prisoner with sex reassignment surgery. The test analyzed whether a prison official exhibited deliberate indifference towards an inmate's medical need in violation of the Eighth Amendment. In order to succeed on a claim of deliberate indifference, an inmate must show that: (1) she has a serious medical need; (2) the treatment sought is the only adequate treatment; (3) the prison official knows that the inmate is at a high risk of harm if she does not receive the treatment sought; (4) the prison official denied the treatment not because of any good faith, reasonable security concerns, or for any other legitimate penological purposes; and (5) the prison official's unconstitutional conduct will continue in the future.

The court explained that the question of the constitutionality of the inmate's placement in isolation in the men's prison for an indeterminate amount of time, even if done for the inmate's protection, was not yet ripe. This Note continues the analysis by first discussing whether the issue is, in fact, ripe. Then, ripeness notwithstanding, this Note analyzes the constitutionality of placing an inmate in solitary confinement for an indeterminate period of time-even if done for the inmate's safety.