Full opinion text
OPINION WOLF, District Judge. I. SUMMARY Plaintiff Michelle Kosilek is serving a life sentence, without the possibility of parole, for murdering his wife. Kosilek is also suffering from a severe form of a rare, medically recognized, major mental illness' — gender identity disorder (“GID”). Kosilek is a transsexual. Since at least age three, Kosilek has believed that he is actually a female who has been cruelly trapped in a male’s body. This belief has caused Kosilek to suffer constant mental anguish and, at times, abuse. While incarcerated, it has also caused Kosilek to attempt twice to kill himself, and to try to castrate himself as well. The Harry Benjamin Standards of Care (the “Standards of Care”) are protocols used by qualified professionals in the United States to treat individuals suffering from gender identity disorders. According to the Standards of Care, psychotherapy with a qualified therapist is sufficient treatment for some individuals. In other cases psychotherapy and the administration of female hormones provide adequate relief. There are, however, some cases in which sex reassignment surgery is medically necessary and appropriate. Since being incarcerated in 1990, Kosi-lek has sought but not received any of the forms of treatment described in the Standards of Care. In 1992, Kosilek filed a pro se lawsuit, pursuant to 42 U.S.C. § 1983, against the Sheriff of Bristol County, David R. Nelson, and others. Kosilek generally alleged that he was being denied adequate medical care for his serious medical need in violation of the Eighth Amendment of the United States Constitution. Kosilek sought both damages and an injunction requiring that he be provided sex reassignment surgery. After his conviction and transfer to the Massachusetts Department of Corrections (the “DOC”) in 1992, Kosilek amended his complaint to seek the same relief from the DOC. Defendant Michael Maloney became the Commissioner of the DOC in 1997. In 1999, he became a defendant in this case. In 1999, this court assumed responsibility for this case after ■ the death of the magistrate judge who had been handling it for pretrial purposes. Counsel was obtained to represent Kosilek pro bono and filed another amended complaint. The court granted the motions of Nelson and Maloney to dismiss the claims for damages against them individually based on qualified immunity, and granted Nelson’s motion for summary judgment on the claims against him in his official capacity. Maloney’s motion for summary judgment on Kosilek’s claim for injunctive relief was denied. A non-jury trial concerning that claim was conducted in February 2002. At trial, counsel for Kosilek represented that Kosilek is now requesting that the court issue an injunction requiring that he be provided with treatment in prison for gender identity disorder consistent with the Standards of Care. More specifically, Kosilek requests that the court order that Maloney: retain a doctor who specializes in treating gender identity disorders to evaluate Kosilek; authorize that doctor to prescribe any treatment deemed appropriate; and provide the treatment prescribed by that doctor. The court is not now being asked to order that Kosilek be administered female hormones or provided sex reassignment surgery. These are, however, forms of treatment that are provided to some, but not all, transsexuals pursuant to the Standards of Care. Thus, the injunction that Kosilek requests could ultimately require the administration of female hormones and, a year or more later, sex reassignment surgery. Ordinarily, the Commissioner of the DOC would not be the appropriate defendant in a case involving an inmate’s claim alleging a denial of medical care. As Commissioner, Maloney does not usually make decisions concerning medical care. It is his policy and usual practice to rely on the social workers and medical professionals employed by the DOC, and the outside experts they often consult, to determine whether an inmate has a serious medical need and, if so, what is necessary to treat it adequately. Kosilek, however, has been dealt with differently. Because of Kosilek’s lawsuit Maloney, as a practical matter, has made the major decisions relating to Kosilek’s medical care. As a result of this case, in consultation with attorneys and doctors employed by the DOC, in 2000 Maloney adopted a blanket policy concerning the treatment the DOC would provide to the several transsexual prisoners in its custody. That policy is aimed at “freezing” a transsexual in the condition he was in when incarcerated. It contemplates the administration of female hormones for inmates for whom they were prescribed prior to incarceration. The policy strictly prohibits providing hormones to inmates like Kosilek who have taken only “black market” hormones previously. Maloney’s policy also categorically excludes the possibility that an inmate will receive sex reassignment surgery. Because Maloney removed from the professionals employed by the DOC their usual discretion concerning Kosilek’s medical needs and care, Maloney’s conduct is properly the focus of this case. Kosilek’s claims involve facts that are unusual, but not unprecedented. In view of the general lack of public knowledge and understanding of gender identity disorders, the idea that an imprisoned male murderer may ever have a right to receive female hormones and sex reassignment surgery may understandably strike some people as bizarre. However, Kosilek’s claims raise issues involving substantial jurisprudence concerning the application of the Eighth Amendment to inmates with serious medical needs. This ease requires the neutral application of the principles that emerge from that jurisprudence to the facts established by the evidence in this case. The Eighth Amendment prohibits Cruel and Unusual Punishment. The Supreme Court has explained that “[t]he Amendment embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency .... ” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285,. 50 L.Ed.2d 251 (1976) (internal quotation and citation omitted). Among other things, the Eighth Amendment does not permit the unnecessary infliction of pain on a prisoner, either intentionally or because of the deliberate indifference of the responsible prison official. Any such infliction of pain is deemed “wanton.” The wanton infliction of pain on an inmate violates the Eighth Amendment. Prisoners in the United States have a right to humane treatment, including a right to adequate' care for their serious medical needs. The Constitution does not protect this right because we are a nation that coddles criminals. Rather, we recognize and respect this right because we are, fundamentally, a decent people, and decent people do not allow other human beings in their custody to suffer needlessly from serious illness or injury. Nevertheless, because the Eighth Amendment prohibits only certain punishments, to establish a violation when a prisoner’s health is at issue, it is not sufficient for an inmate to prove only that he has not received adequate medical care. Rather, he must also prove that the official responsible for his care has intentionally ignored a serious medical need or been deliberately indifferent to it. Accordingly, the Eighth Amendment standard has an objective and subjective component. With regard to the objective prong, it must be proven that there is a serious medical need and that adequate care has not been provided. A serious medical need is one that involves a substantial risk of serious harm if it is not adequately treated. Typically, it is a need that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention. Adequate care requires treatment by qualified personnel, who provide services that are of a quality acceptable when measured by prudent professional standards in the community. Adequate care is tailored to an inmate’s particular medical needs and is based on medical considerations. An inmate is not entitled to the care of his choice. Courts must defer to the decisions of prison officials concerning what form of adequate care to provide an inmate. However, courts must decide if the care being provided is minimally adequate. The subjective prong of the deliberate indifference test also has two parts. The responsible official must be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists. He must also draw that inference. Because the Eighth Amendment proscribes the unnecessary infliction of pain on a prisoner, the practical constraints imposed by the prison environment are relevant to whether the subjective component of the Eighth Amendment test has been satisfied. The duty of prison officials to protect the safety of inmates and prison personnel is a factor that may properly be considered in prescribing medical care for a serious medical need. It is conceivable that a prison official, acting reasonably and in good faith, might perceive an irreconcilable conflict between his duty to protect safety and his duty to provide an inmate adequate medical care. If so, his decision not to provide that care might not violate the Eighth Amendment because the resulting infliction of pain on the inmate would not be unnecessary or wanton. Rather, it might be reasonable and reasonable conduct does not violate the Eighth Amendment. It is not, however, permissible to deny an inmate adequate medical care because it is costly. In recognition of this, prison officials at times authorize CAT scans, dialysis, and other forms of expensive medical care required to diagnose or treat familiar forms of serious illness. If deliberate indifference to a serious medical need is proven, in order to obtain an injunction, an inmate must also prove that it is likely to continue in the future. Thus, to prevail in this case, Kosilek is required to prove that: (1) he has a serious medical need; (2) which has not been adequately treated; (3) because of Malo-ney’s deliberate indifference; and (4) that deliberate indifference is likely to continue in the future; Kosilek has proven the first two elements of his claim, but not the last two. Kosilek has a serious medical need. He has not been offered adequate medical treatment for it. Indeed, he has been offered no real treatment at all. Therefore, the objective component of the Eighth Amendment standard has been proven. Kosilek has not, however, satisfied the subjective component of the test. Maloney knew many facts from which it could have been inferred that Kosilek was at substantial risk of serious harm if he did not receive adequate treatment. Maloney did not, however, actually draw that inference. Because of this litigation and the unusual issues it involves, Kosilek’s medical needs have not been addressed in a manner consistent with the DOC’s usual policy and practice. Qualified physicians have never evaluated Kosilek for the primary purpose of prescribing treatment. Rather, they have been employed as potential expert witnesses in this case. Because of the pendency of this case, Maloney as a practical matter removed from the medical personnel the DOC employs their usual authority to diagnose and treat Kosilek. Maloney, who is not qualified to make medical judgments, was prompted by this case to adopt a rigid, freeze-frame policy. This policy effectively prohibits DOC doctors and social workers from considering for Kosilek hormone therapy and sex reassignment surgery, which are fonns of treatment prescribed by qualified professionals in the community for some, but not all, individuals suffering from severe gender identity disorders. As a result of that policy, no individualized medical evaluation has been done for the purpose of prescribing treatment for Kosi-lek’s serious medical need. Maloney, however, did not adopt his policy with the intent to inflict pain on Kosi-lek or as a result of deliberate indifference. Maloney did not focus on Kosilek’s medical needs. He acted as a defendant with a legal problem. He has been reluctant to allow Kosilek to receive hormones or sex reassignment surgery unless he was legally required to do so. His reluctance has been rooted in sincere security concerns, and in a fear of public and political criticism as well. Maloney has not been influenced by the possibility that treatment for Kosilek might be expensive. Rather, he has been concerned that any expenditure for hormones or sex reassignment surgery might be an inappropriate use of taxpayers’ money. As stated earlier, security is a legitimate consideration for Eighth Amendment purposes. A concern about political or public criticism for discharging a constitutional duty is not. State and local officials, like judges, have a duty to obey the Constitution. The Bill of Rights provides citizens, including those who are incarcerated, with certain rights that even a majority of their contemporaries cannot properly decide to violate. Prison officials share with the courts the duty to protect those rights, even if they believe that it may be unpopular to do so. This court’s decision puts Maloney on notice that Kosilek has a serious medical need which is not being properly treated. Therefore, he has a duty to respond reasonably to it. The court expects that he will. In essence, the court expects that Malo-ney will allow qualified medical professionals to recommend treatment for Kosilek. At a minimum, psychotherapy with, or under the direction of, a professional with training and experience concerning individuals with severe gender identity disorder is required. Such therapy should raise no security concerns. If hormones or sex reassignment surgery are recommended, Maloney may properly consider whether security issues make it impossible to provide adequate medical care in prison for Kosilek’s serious medical need. The court expects that any such consideration will include the following facts. Kosilek is already living largely as a woman in a medium security male prison. This has not presented a security problem. The policy Maloney adopted contemplates continuing female hormones for transsexuals for whom they have been prescribed prior to incarceration. Maloney expects that he would keep such inmates in the general population of a male prison. This has, evidently, been done safely in several states, in the United States Bureau of Prisons system, and in Canada. If Maloney, in good faith, reasonably decides that there is truly no way that he can discharge both his duty to protect safety and his duty to provide Kosilek with adequate medical care, and concludes that security concerns must trump the recommendations of qualified medical professionals, a court will have to decide whether the Eighth Amendment has been violated. That question is not now before this court. If, however, concerns about cost or controversy prompt Maloney to deny Kosilek adequate care for his serious medical need, Maloney will have violated the Eighth Amendment. Kosilek will then likely be entitled to the injunction that he has unsuccessfully sought in this case. II. FINDINGS OF FACT The following facts are proven by a preponderance of the credible evidence. It is not disputed that Kosilek has a genuine gender identity disorder. A gender identity disorder is defined by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition-Text Revision (“DSM-IV-TR”) as a major mental illness. Generally, and in this case, a person suffering from a gender identity disorder has the anatomy of a male, but a brain that in effect tells him that he is a female. Individuals suffering from a gender identity disorder are sometimes referred to as “transsexuals.” Ex. 7, at 3-4. The Supreme Court has accurately described a transsexual as a person 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 hormone therapy and surgery, to bring about a permanent sex change.” Farmer v. Brennan, 511 U.S. 825, 829, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting American Medical Association, Encyclopedia of Medicine 1006 (1989)). The consensus of medical professionals is that transsexualism is biological and innate. It is not a freely chosen “sexual preference” or produced by an individual’s life experience. The DSM-IV-TR includes four diagnostic criteria for a gender identity disorder: A. A strong and persistent cross-gender identification (not merely a desire for any perceived cultural advantages of being the other sex) B. Persistent discomfort with his or her sex or sense of inappropriateness in the gender role of that sex :¡; # :jí C. The disturbance is not concurrent with an intersex condition [meaning sexually ambiguous genitalia] D. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Ex. 6A, at 581. Kosilek is now fifty-three years old. Kosilek has long held a strong and persistent belief that he is a woman trapped in a man’s body. The severity of Kosilek’s gender identity disorder is evidenced, in part, by Kosilek’s history of drug abuse and use of female hormones. At the age of three, Kosilek was left by his mother in an orphanage, where he was frequently punished for dressing as a female. Beginning at the age of ten, he was reunited with his mother, repeatedly raped by his grandfather, and stabbed by his stepfather for his announced desire to live as a girl. As a teenager, Kosilek ran away from home, often dressed as a woman, engaged in prostitution, and abused illegal drugs. From 1967 to 1968, Kosilek received female hormones prescribed by a physician in exchange for sex. He also took hormones for several months in 1971 and 1972. While on hormones, Kosilek “felt normal” for the first time in his life. As a result of taking hormones in 1971 and 1972, Kosilek developed breasts. When imprisoned in Chicago in this condition, Kosilek was gang raped in 1971 and 1972. He was also assaulted outside a gay bar by two men who said they resented his effort to become a girl. Kosilek was beaten so badly that he stopped taking hormones. Although he had dropped out of high school, Kosilek managed to earn a college degree and to work productively for periods of time. Despite his painful belief that he was truly a female, Kosilek did not seek treatment for his gender identity disorder. After relapsing into drug abuse, Kosilek entered a drug rehabilitation facility. There he met Cheryl McCaul, who was working as a volunteer counselor. McCaul told Kosilek that his transsexualism would be cured by “a good woman,” and married him. However, Kosilek’s distress did not abate. In 1990, Kosilek murdered McCaul. Kosilek was incarcerated at the Bristol County Jail pending trial. Kosilek’s case immediately received a great deal of publicity, in part because he was wearing female clothing when arrested. Later, when Kosilek’s efforts to obtain treatment for his gender identity disorder at his own expense failed, Kosilek engaged in a publicized campaign to be elected Sheriff. He also initiated a pro se lawsuit against the Sheriff and others, claiming a denial of necessary medical care. While detained pending trial at the Bristol County Jail, Kosilek again took female hormones in the form of birth control pills. The pills were illegally provided by a guard. Bristol County Jail officials allowed Ko-silek, at his own expense, to consult an expert in gender identity disorders, Dr. Nancy Strapko, in preparation for his trial. Dr. Strapko was not, however, permitted to provide any treatment to Kosilek. The Sheriff also did not follow Dr. Strapko’s recommendation that Kosilek begin psychotherapy with a qualified specialist to address his gender identity disorder. Kosilek twice tried to commit suicide while awaiting trial. One attempt occurred when he was taking the antidepressant Prozac. In addition, Kosilek attempted to castrate himself. Kosilek was convicted of murder and sentenced in 1992 to life in prison without the possibility of parole. In January 1993 he was placed in the custody of the Commissioner of the DOC. When Kosilek was transferred to the custody of the DOC, an intake form noted that he had “minor breast development.” Ex. 10, at 3. This breast development evidently resulted from the hormones that Kosilek had been taking at the Bristol County Jail. Since 1994, Kosilek has been incarcerated in the general population at MCI-Norfolk, a medium-security male prison. There, Kosilek has attempted to live as a woman to the maximum extent possible. Kosilek had his name legally changed from Robert to Michelle. Virtually all of the inmates and guards now call Kosilek “Michelle.” Kosilek has grown his fingernails and hair long, modulated his voice to sound more feminine, had his clothing tailored to appear more feminine, and used various products as makeup. Kosilek has not been assaulted sexually while at MCI-Norfolk. Nor does the evidence indicate that Kosilek has voluntarily had sexual relations with any other inmate. Kosilek has demanded that prison officials at MCI-Norfolk provide treatment for his gender identity disorder. When his demands were not met, Kosilek amended his complaint to add allegations concerning his treatment by the DOC and filed many motions. Kosilek’s case against Nelson and the present suit have provided Kosilek with hope. As a result, Kosilek has behaved well in prison and has been properly perceived by prison officials as not presenting a high risk of imminent harm to himself. However, Kosilek has repeatedly expressed his intention to kill himself if he does not obtain relief in this case. The court concludes that there is a high risk that Kosilek will harm himself if he does not receive adequate treatment for his severe mental illness. Kosilek’s stated intention to kill himself is not merely a threat made to manipulate the DOC or the court. As Dr. Marshall Forstein persuasively put it, he has never known a “heterosexual man want to voluntarily give us his penis to get something like hormones.” The court concludes that Kosilek’s gender identity disorder is causing him severe emotional distress. Dr. George Brown opined that if Kosilek does not receive hormone treatments, “the likelihood is exceedingly close to one hundred percent that she will kill herself.” The DOC is committed to trying to prevent this. However, the court finds that absent adequate treatment, there is a significant risk that Kosilek will again attempt suicide and may, like some other inmates, succeed. In 1999, Gregory Hughes, the DOC Regional Administrator for Mental Health, spoke with Dr. Kenneth Appelbaum, a University of Massachusetts Medical School psychiatrist and the Director of the program which provides mental health care to DOC inmates, and his colleague Dr. Ira Packer of the University of Massachusetts Medical School, about obtaining a multi-disciplinary psychological assessment of Kosilek. Hughes was interested in assessing Kosilek’s needs for mental health services and in evaluating whether Kosilek in fact suffered from a gender identity disorder. As a result, Kosilek met twice with Karen DeWees, a social worker who had no training or experience in treating gender identity disorders. Kosilek cooperated with DeWees during these sessions and provided historical information about himself. DeWees caused Kosilek to be seen once by Dr. Jorge Veliz, a psychiatrist employed by the DOC who also did not have experience with gender identity disorders. Veliz did not testify at trial. According to Kosilek, however, Veliz recommended that Kosilek inform the court that he wanted sex reassignment surgery as well as hormones because hormones alone would be only a “band-aid approach.” Feb. 5, 2002 Tr. at 70. Veliz referred Kosilek to Katherine Herzog, a staff psychologist at MCI-Norfolk, for psychological testing. Kosilek refused to participate in the testing because he had previously undergone similar tests and the results were available. DeWees, Veliz, and Herzog issued a memorandum in about June or July 1999, concluding, among other things, that Kosi-lek appeared to meet some of the DSM-IV-TR criteria for a gender identity disorder. The memorandum stated: Kosilek “has a lengthy history of considering himself transgendered. In addition, his history reveals that he has struggled with drug addiction and dependence .... [and] has been treated for depression prior to his incarceration.” Ex. 21., at 4. The memorandum noted that Kosilek “made a very good adjustment to prison life” and “has no acute psychiatric problems at this time.” Id. Kosilek persisted in seeking treatment for his gender identity disorder. As a result, in Fall 1999, Kosilek met with DeWees a number of times for supportive therapy sessions. At that time, Kosilek was not cooperative with DeWees because she did not have any training or experience in treating individuals with gender identity disorders and could not, therefore, provide the treatment Kosilek sought. At trial Kosilek, through counsel, requested that the court issue an injunction requiring that he be provided with treatment in prison for gender identity disorder consistent with the Standards of Care. The Standards of Care are developed and published by international experts who specialize in the treatment of gender identity disorders. As explained by Kosilek’s experts, Drs. Forstein and Brown, as well as by Dr. Appelbaum, the Standards of Care describe the generally accepted treatment for individuals with gender identity disorders in the community. The following provisions of the Standards of Care are pertinent to this case. The eligibility requirements for certain treatments are “meant to be minimum requirements.” Ex. 7, at 2. Clinical departures from the guidelines may be justified by a patient’s “unique ... social ... situation,” among other things. Id The Standards of Care establish a “triadic treatment sequence.” This triadic sequence is comprised of: (1) hormone therapy; (2) a real-life experience of living as a member of the opposite sex; and (3) sex reassignment surgery. Id at 3. According to the Standards of Care: Many adults with gender identity disorder find comfortable, effective ways of living that do not involve all the components of the triadic treatment sequence. While some individuals manage to do this on their own, psychotherapy can be very helpful in bringing about the dis.covery and maturational processes that enable self-comfort. Id at 11 (emphasis added). However, “psychotherapy is not intended to cure the gender identity disorder.” Id at 12. The Standards of Care state that cross-sex hormones are “often medically necessary” “for properly selected adults with gender identity disorders.” Id at 13. “They improve the quality of life and limit the psychiatric co-morbidity, which often accompanies lack of treatment.” Id In lay terms, this means that the administration of hormones to a transsexual typically diminishes co-existing serious psychological problems such as depression and suicidality. As the Standards of Care explain: Hormone therapy can provide significant comfort to gender patients who do not wish to cross live or undergo surgery, or who are unable to do so. In some patients, homione therapy alone may provide sufficient symptomatic relief to obviate the need for cross living or surgei'y. Id. at 14 (emphasis added). Pursuant to the Standards of Care, in order to be eligible for hormones, an individual must, among other things, have a documented real life experience of living as a member of the opposite sex for three months or at least three months of psychotherapy. Ex. 7, at 13. The Standards of Care expressly address the issue of hormone therapy for certain prisoners: Hormone Therapy and Medical Care for Incarcerated Persons. Persons who are receiving treatment for gender identity disorders should continue to receive appropriate treatment following these Standards of Care after incarceration. For example, those who are receiving psychotherapy and/or cross-sex hormonal treatments should be allowed to continue this medically necessary treatment to prevent or limit emotional liability, undesired regression of hormonally-induced physical effects and the sense of desperation that may lead to depression, anxiety and suicidality. Prisoners who are subject to rapid withdrawal of cross-sex hormones are particularly at risk for psychiatric symptoms and self-injurious behaviors. Medical monitoring of hormonal treatment as described in these Standards should also be provided. Housing for transgendered prisoners should take into account their transition status and their personal safety. Ex. 7, at 14. Dr. Brown wrote this part of the Standards of Care. He persuasively explained that this statement does not mean that the Standards of Care intend to suggest that hormone therapy and other treatment need not be provided to prisoners who were not receiving such treatment prior to their incarceration. Rather, this is an issue not specifically addressed in, or resolved by, the Standards of Care. If hormone therapy does not adequately alleviate a transsexual’s distress, the Standards of Care generally contemplate a “real life experience” in which the person “fully adopt[s] a new or evolving gender role or gender presentation in everyday life.” Id. at 17. Hormones are important to this effort. Ordinarily, the real life experience includes functioning in school, at work, or in the community as a member of the opposite sex, and being regarded as a person of that gender. Id. at 17-18. As Drs. Forstein and Brown convincingly testified, however, Kosilek’s “real life” is prison. The fact that he is incarcerated does not mean that he could not have a real life experience within the meaning of the Standards of Care, which are expressly intended to be applied flexibly to accommodate a patient’s unique social situation. Id. at 1. Pursuant to the Standards of Care, after at least one year of a real life experience, including hormones, some individuals are candidates for sex reassignment surgery. Id. at 20. The Standards of Care state that: Sex Reassignment is Effective and Medically Indicated in Severe GID. In persons diagnosed with transsexualism or profound GID, sex reassignment surgery, along with hormone therapy and real-life experience, is a treatment that has proven to be effective. Such a therapeutic regimen, when prescribed or recommended by qualified practitioners, is medically indicated and medically necessary. Sex reassignment is not “experimental,” “investigational,” “elective,” “cosmetic,” or optional in any meaningful sense. It constitutes very effective and appropriate treatment for transsexualism or profound GID. Id. at 18 (emphasis added). The DOC has published policies concerning medical services for inmates. Among other things, it is the DOC’s policy that, “[ajccess to health care is an inmate’s right and not a privilege” and that “[a]ll health care services shall be comparable in quality to that available in the community.” Ex. 13, at § 630.01. This policy expressly applies to mental health services. Under the relevant contract, the private medical contractor is to have full responsibility for decisions concerning the type, timing and level of medical, dental and health services to be provided to inmates. Consistent with this, decisions concerning an inmate’s health care are made by medical professionals, social workers employed by the DOC, and the specialists they often choose to consult. Kosilek, however, has been dealt with differently, in part because of his lawsuit relating to his medical care. On the recommendation of Dr. Appelbaum, in early 2000, the DOC engaged Dr. Forstein, an expert in treating individuals with gender identity disorders, to examine Kosilek. Dr. Forstein was asked to address two questions raised by this court at a December 20, 1999 hearing: (1) whether Kosilek had a genuine gender identity disorder; and, if so, (2) what the recommended course of treatment would be if Kosilek were not incarcerated. These questions were relevant to Kosilek’s pending motion for a preliminary injunction and to whether this case truly presented a constitutional question. As the court explained at the December 20, 1999 hearing and in several subsequent Orders, if Kosilek were “not gender dys-phoric, or if the requested estrogen therapy and sex change surgery would not be deemed medically necessary if [Kosilek] were not incarcerated, the court [would] not be required to decide whether the failure to provide the requested hormones and surgery violates [Kosilek’s] Eighth Amendment rights. It is axiomatic that courts should not decide controversies on constitutional grounds if it is not necessary to do so. See, e.g., Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng’g., P.C., 467 U.S. 138, 157, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984).” May 8, 2000 Order; see also Dec. 23, 1999 Order. After reviewing records and examining Kosilek, Dr. Forstein provided the DOC with a March 15, 2000 report. Ex. 19. Dr. Forstein diagnosed Kosilek as having a gender identity disorder within the meaning of DSM-IV. He recommended that Kosilek receive psychotherapy with a qualified therapist who has knowledge of and experience with gender identity disorders; reinstitution of female hormones; consultation with an experienced surgeon who specializes in sexual reassignment; psychiatric monitoring; and giving Kosilek access to personal care items such as makeup. Id. In explaining the bases for his recommendations, Dr. Forstein wrote, among other things, that: [Kosilek] had no homicidal or suicidal ideation, although he acknowledged two prior suicide attempts which were significant for their level of potential lethality. He made a pact with himself that if at 50 he had not achieved his goal of becoming truly female, he would consider life hopeless and meaningless. He had no active suicidal ideation, but there was a sense that in the absence of becoming a female, he would not choose to continue living as a male. His sense of sadness and sense of loss for many things in his life, and for the loss of those years during which he might have lived as a woman was apparent. One area of concern is the potential suicidality if this last chance [provided by his lawsuit] to achieve his lifelong desire is denied. I believe that he would be a great risk for self harm, perhaps mutilation, if not suicide. Id. (emphasis added). Dr. Forstein was engaged because of this litigation, rather than because the DOC professionals responsible for Kosi-lek’s health had decided to consult an outside expert to diagnose and treat Kosilek. Accordingly, Dr. Forstein’s advice was not considered primarily or exclusively by the DOC professionals responsible for mental health matters, who would typically determine whether an inmate had a mental illness and, if so, the appropriate treatment for it. Rather, the decision on how to deal with Kosilek and any other prisoner suffering from a gender identity disorders was, as a practical matter, made by Maloney in his capacity as the Commissioner of the DOC, in consultation with his attorneys, mental health professionals, and several members of his staff. Therefore, Maloney is the person on whom the court must focus in determining whether the deliberate indifference required to establish a violation of the Eighth Amendment has been proven in this case. Maloney previously served as the head social worker for the DOC. Maloney testified, however, that he was not qualified to make medical judgments. Rather, he has to seek advice from the medical professionals, particularly in this matter Drs. Ap-pelbaum and Packer of the University of Massachusetts Medical School. That institution has a three-year, $18,000,000 contract to provide mental health services to inmates in the custody of the DOC. In about April 2000, a meeting to discuss this case and the possible issuance of guidelines for dealing with inmates with gender identity disorders was planned. In anticipation of that meeting, Dr. Packer spoke with the attorneys for the DOC and others who worked for Maloney. As a result, he understood “from the get go” (meaning “immediately”) that Maloney did not want to provide Kosilek or any other inmate hormones or sex reassignment surgery. Dr. Packer had no experience with gender identity disorders. To prepare for the meeting with Maloney, he did a search of the medical literature. He found a 1996 article by Dr. Robert Dickey and others in Canada, “Transsexuals within the Prison System: An International Survey of Correctional Services Policies,” which had been published in Peterson, et al., 14 Behavioral Sciences and the Law 219-29 (1996). On April 18, 2000, Dr. Packer sent a memorandum to Dr. Appelbaum and several members of Maloney’s staff, but not to Maloney himself. In that memorandum, Dr. Packer distilled what he characterized as “the gist of the article.” Ex. 12. He wrote that the authors had conducted a survey of sixty-four prison programs from Europe, Canada, Australia, and the United States, and reported that “[n]one had a policy that allowed for sex reassignment surgery and ‘the vast majority of respondents indicated that there were no circumstances whereby sex reassignment would be considered for an already incarcerated transsexual.’ ” Id. Dr. Packer also wrote that in Dr. Dickey’s view: “The best principle in management of transsexuals is to ‘freeze-frame’ the inmate at the state he or she was at on the date of their arrival in the system, i.e., maintain the status quo.” Id. According to Dr. Packer’s memorandum, “pursuant to this approach: Inmates should be maintained on hormones only if they had previously been a candidate for sex reassignment surgery and if they were prescribed by a recognized expert in treating gender disorders.” Id. On April 28, 2000, Maloney met for about thirty minutes with his attorneys, Drs. Appelbaum and Packer, John Noo-nan, Director of the DOC Health Services Division, Hughes, and Kathleen Dennehey, the DOC Deputy Commissioner. Hughes and Drs. Appelbaum and Packer were seeking Maloney’s ultimate decision on how to deal with Kosilek and any other transsexual inmates in the custody of the DOC. Maloney felt that the purpose of the meeting was to provide him with professional advice on what to do about a policy for inmates with gender identity disorders, rather than to discuss Kosilek. However, the instant lawsuit prompted the meeting and the decision to develop such a policy. Kosilek was discussed. As of April 28, 2000, Maloney had not read Dr. Forstein’s report. He was told that Dr. Forstein had diagnosed Kosilek as having a gender identity disorder and was recommending that Kosilek receive the treatment that was available in the community. Maloney was not then told, and did not then know, that Kosilek had twice attempted suicide and had also tried to castrate himself. Maloney had not read Dr. Dickey’s article or Dr. Packer’s memorandum purporting to summarize it. Among other things, the Dickey article, but not Dr. Packer’s memorandum, reported that twenty-seven of the sixty-four jurisdictions surveyed stated that they would decide on a case-by-case basis whether to initiate hormone therapy for an inmate and three more jurisdictions stated that they would consider initiating such treatment reasonable. Ex. 17, at 222. The article also reported that thirty reporting jurisdictions indicated that the risk of sexual assaults on transsexual inmates “was likely no higher than that faced by non-transsexual inmates,” while another twenty-two stated that the risk of sexual assaults was “unknown.” Id. at 223. Maloney also had not read the Standards of Care. Nor was he told what they prescribed. At the April 28, 2000 meeting, Maloney’s attorneys discussed the judicial decisions in other cases involving transsexuals. Ma-loney was told that no reported case had held that the Constitution required initiating hormones for a prisoner not taking hormones before being incarcerated. Rather, he was told that court decisions indicated that mental health counseling was sufficient treatment for an inmate with a gender identity disorder. Maloney was told that Medicaid did not pay for hormone therapy or for sex reassignment surgery. In addition, Maloney was also told that Dr. Dickey’s article advocated the freeze-frame approach in dealing with inmates with gender identity disorders. At the meeting, Maloney expressed sincere and serious concerns about security within the prison if Kosilek or any other inmate were to receive hormones or sex reassignment surgery. Maloney understood that twenty-five percent of the inmates in his custody were sex offenders. He was worried that a person with breasts, living as a female in a male prison, would create a risk of violence that could injure prison guards, as well as inmates. He felt that even allowing an inmate to have make-up could facilitate attempts to escape. In addition, Maloney stated that he did not have the authority to place a person sentenced as a male in the female prison, MCI-Framingham, so that was not an option. In April 2000, Maloney believed that only three inmates having gender identity disorders had been in the custody of the DOC during the previous twenty-eight years. Although he did not say so at the April 28, 2000 meeting, Maloney did not regard sex reassignment surgery as an appropriate use of taxpayers’ money. Maloney and his colleagues, including Hughes, thought that any such expenditure would be politically unpopular. Maloney did not want to authorize hormones or sex reassignment surgery for Kosilek or any other inmate unless he was legally obligated to do so. Maloney announced at the April 28, 2000 meeting that he would adopt a freeze-frame policy for inmates having gender identity disorders. The DOC would provide hormones to any inmate who had previously been prescribed hormones, probably place that person in the general population of the prison, and deal with any security issues that might arise. The DOC would not, however, initiate hormones for an inmate for whom hormones had not been prescribed prior to his incarceration. Drs. Appelbaum and Packer did not think that a medical or clinical decision had been made concerning Kosilek or any other inmate. Rather, they believed that an administrative decision had been made — one that prohibited certain forms of treatment for inmates with gender identity disorders who were not receiving prescribed hormones prior to their incarceration. Dr. Appelbaum, who had read the Standards of Care, and Dr. Packer, who had not, each thought that Maloney’s administrative decision was clinically reasonable. They did not, however, express this view at the April 28, 2000 meeting. As directed by Maloney at the April 28, 2000 meeting, Dr. Packer drafted “Guidelines for Mental Health Treatment of Inmates with Gender Identity Disorder” (the “Guidelines”) to implement Maloney’s decision concerning transsexual prisoners. As Dr. Packer testified, he was not then knowledgeable about individuals with gender identity disorders. At the time he drafted the Guidelines, Dr. Packer was still not aware of the Standards of Care. Maloney approved the Guidelines. Drs. Appelbaum and Packer issued them on May 15, 2000. The Guidelines expressly apply only to inmates who were not on prescribed hormones prior to being incarcerated. Ex. 3 at 1. They state that they would need to be modified for individuals who were receiving hormones previously. Id. The Guidelines prohibit hormones and/or sex reassignment surgery from being provided for inmates who were not receiving hormones prior to incarceration because the “Department of Corrections has determined that [opportunities for the Real Life Experience that is recommended prior to sex reassignment surgery] cannot be afforded inmates since security and operational concerns do not allow inmates to dress and function as members of the opposite sex.” Id. The Guidelines permit Kosilek, as an individual who has not received prescribed hormones prior to incarceration, and others similarly situated, to receive “supportive therapy” to help “the inmate cope with the distress and stress associated with the desire to be of the opposite sex and the inability to change within the prison environment.” Id. In essence, the Guidelines provide that DOC personnel should try to help Kosilek and any other inmate having a gender identity disorder to cope with his plight, but categorically preclude the forms of treatment generally provided in the community in this country — no matter how severe and painful the inmate’s mental illness may be — if the inmate was not receiving prescribed hormones prior to his incarceration. After April 28, 2000, but prior to approving the Guidelines issued on May 15, 2000, Maloney read Dr. Forstein’s report. Accordingly, when the Guidelines were promulgated, Maloney understood that there were risks associated with the failure to treat a gender identity disorder, including the risk of acute depression, self-mutilation or autocastration, and suicide. He also knew that Dr. Forstein, at least, thought that there was a great risk that Kosilek would again attempt suicide if his gender identity disorder was not properly treated. However, following the April 28, 2000 meeting and prior to approving the Guidelines Maloney also learned that before Dr. Forstein’s report was received DOC clinicians had not perceived a risk that Kosilek would commit suicide. In any event, Maloney believed that many inmates present a risk of suicide. He knew that some succeed in killing themselves. Maloney thought, however, that established DOC procedures would prevent Kosilek from doing so. Consistent with this belief, the Guidelines provided for “crisis intervention as needed,” in addition to “supportive therapy.” Id. On May 19, 2000, a mental health treatment plan (the “Treatment Plan”) consistent with the new Guidelines was issued for Kosilek. Ex. 1, at 41. Dr. Packer asked DeWees to prepare it. Dr. Packer had still not read the Standards of Care or spoken to either Dr. Forstein or Dr. Dickey- The Treatment Plan’s primary stated goal was to help Kosilek develop “coping mechanisms to relieve [the] stress” related to his gender identity disorder. Id. Kosilek was to be offered bi-monthly individual treatment “to develop self-soothing strategies without violating DOC rules.” Id. DeWees told Kosilek that self-soothing strategies meant “to think pretty thoughts.” Feb. 4, 2002 Tr. at 72. Another therapist said that other self-soothing strategies included “counting to ten” and “telling yourself it is not worth it to get into trouble.” Id. at 72-73. DeWees told Kosilek and Dr. Packer that the Treatment Plan offered Kosilek nothing. She also told Dr. Packer that she did not feel that the plan permitted her to provide therapy to Kosilek. Dr. Packer disagreed. After the Guidelines were issued, Malo-ney sought additional information concerning how other jurisdictions dealt with inmates with gender identity disorders. He contacted officials in Nebraska and New York, and was told that they do not have separate units for inmates with gender identity disorders. Maloney also caused his staff to send out a survey to other jurisdictions. With one exception, however, he did not read the results or the somewhat misleading summary of them that was prepared. Maloney did see the faxed response to the survey from the United States Bureau of Prisons. It indicated to Maloney that the Bureau of Prisons adhered strictly to a freeze-frame approach. Maloney felt that was significant because he regarded the Bureau of Prisons as a large, quality “organization that you look to for direction when you’re a Commissioner of Corrections.” Feb. 6, 2002 Tr. at 43. The Bureau of Prisons’ response to the survey also stated that inmates with gender identity disorders were not more likely to be subject to physical or sexual assaults than other inmates. Ex. CCC. As discussed in § IV.3, infra, the Bureau of Prison’s policy was not as rigid as Maloney understood it to be. While it did establish a presumptive freeze-frame approach, in contrast to the DOC’s policy, it permitted exceptions to be made in appropriate cases and established a procedure for doing so. In June 2000, Dr. Forstein was asked by representatives of the DOC whether his recommendations for treating Kosilek in prison would differ from those in his March 15, 2000 report, which addressed what he would prescribe if Kosilek were in the community rather than incarcerated. When Dr. Forstein stated that his recommendations regarding what was required to treat Kosilek adequately were not altered by the fact that Kosilek was incarcerated, the DOC terminated its relationship with him. The DOC then retained as a consultant Dr. Dickey, an author of the article found by Dr. Packer. Dr. Dickey works at the Clarke Institute of Psychiatry, an organization in Canada that deals with gender identity disorders, among other things. Dr. Dickey and his colleagues at the Clarke Institute do not use the Standards of Care, which are regularly relied upon by experts in the United States and elsewhere for treating gender identity disorders. Rather, Dr. Dickey and his colleagues impose more rigorous requirements before prescribing hormones or authorizing sex reassignment surgery. More specifically, Dr. Dickey and his colleagues require, at a minimum, a real life experience during which a person lives for a year in the community as a member of the opposite sex before prescribing hormones. In Dr. Dickey’s opinion, it is impossible for a person to have a real life experience in prison. Dr. Dickey’s approach would almost always preclude initiating hormones for an inmate for whom they had not been prescribed prior to incarceration. However, Dr. Dickey testified that a blanket policy prohibiting the initiation of hormones is “too strong.” On August 8, 2000, the court granted Maloney’s motion to dismiss Kosilek’s claims against him, in his individual capacity, for money damages, finding that Malo-ney had qualified immunity concerning those claims. Therefore, the sole remaining issue became whether Kosilek is entitled to injunctive relief because Maloney is violating Kosilek’s rights under the Eighth Amendment. Dr. Dickey evaluated Kosilek on February 16 and 17, 2001, in preparation for the trial of this case. In his view, while Kosi-lek had a gender identity disorder, as defined by the DSM-IV TR., Kosilek did not have a major mental illness. Dr. Dickey found Kosilek to be clear, coherent, and rational. Because he does not believe that a person can have a real life experience in prison, Dr. Dickey does not consider Kosi-lek to be a candidate for sex reassignment surgery. Dr. Dickey has “some concern” about providing Kosilek with hormones. In his opinion, doing so would create a false hope that Kosilek would eventually receive sex reassignment surgery. However, Dr. Dickey testified that he would not totally rule out prescribing hormones for Kosilek. The fact that Kosilek has no chance of rejoining the community “confounds” that determination for Dr. Dickey. Nevertheless, if a treating professional found that Kosilek was depressed and not able to function because of his gender identity disorder, Dr. Dickey would recommend a trial of hormone treatment to determine whether that would improve his condition. On September 14, 2001, the court denied Maloney’s motion for summary judgment. In doing so, the court raised the question of whether it would be medically possible and legally sufficient for the DOC to prescribe medication for Kosilek that would reduce his psychological pain to the point where his gender identity disorder was not a “serious medical need,” without treating Kosilek’s underlying condition in any way. Trial was scheduled for November 2001. On October 16, 2001, Kosilek’s mental health Treatment Plan was revised by Hughes, who is not a doctor and had never seen Kosilek, at least for the purposes of evaluation or treatment. Ex. 14. The stated purpose of the revised plan (the “Revised Treatment Plan”) was to address Kosilek’s acknowledged gender identity disorder and “history of depression as evidenced by previous reported suicide attempts and recent self-reports of depressed mood.” Id. The Revised Treatment Plan stated that “[treatment will be provided by a licensed Mental Health Professional with knowledge of treatment issues pertaining to Gender Identity Disorder. In addition, the treating clinician will obtain consultation from Dr. Robert Dickey when necessary.” Id. at 1. Responding to the question raised by the court on September 14, 2001, the Revised Treatment Plan for the first time provided that “[t]he option of a psychopharma-cological evaluation is readily available to determine if symptoms might be ameliorated by psychotropic medications.” Id. at 2. In preparing the Revised Treatment Plan, Hughes did not ask anyone or consider how hormones might affect the risk that Kosilek would commit suicide or mutilate himself. There is no psychiatrist at MCI-Norfolk. In October 2001, Mark Burrowes was the social worker assigned to work with Kosilek. At that time, Burrowes had no training or experience working with individuals having gender identity disorders. He and several colleagues received about two hours of training on gender identity disorders prior to trial. According to Burrowes, it was “strange” that a treatment plan for Kosilek was prepared without his participation. This was the only time that Burrowes was not involved in developing the treatment plan for an inmate for whom he was responsible. Burrowes has met with Kosilek since the plan was issued in October 2001. In his opinion, the Revised Treatment Plan is not adequate to keep Kosilek from attempting suicide if he loses this case. In Burrowes’ view, the Revised Treatment Plan is deficient because it makes no provision for therapy with anyone with expertise in gender identity disorders or for hormones. Id. at 54, 56. Burrowes also testified that because the Revised Treatment Plan “does not include treatment via hormonal therapy, this plan is basically nothing.” Id. at 56. As Kosilek testified, medications such as Prozac have at times been helpful in alleviating his emotional distress. However, as Dr. Brown credibly explained, treating depression with drugs, without addressing the causes of it, may actually increase the risk of suicide by giving depressed individuals the energy to act that they lacked previously. The fact that Kosilek has once attempted suicide while taking Prozac in jail indicates the risk of relying on medication alone in his case. Kosilek has, at times, refused to cooperate fully with DOC therapists assigned to assist him in the past because they lacked expertise in dealing with gender identity disorders. Kosilek would, however, cooperate with a doctor who was properly qualified to address his condition and any social worker working with that doctor. As Dr. Dickey acknowledged, it would not be appropriate for him or any of his colleagues at the Clarke Institute to attempt to treat Kosilek because Dr. Dickey’s role as a witness in this case would reasonably preclude the level of trust necessary for a proper therapeutic relationship. As DeWees and Burrows, the DOC employees responsible for dealing directly with Kosilek, as well as Drs. For-stein and Brown testified, the DOC’s treatment plans for Kosilek have not been adequate to treat his condition. As indicated earlier, those plans have not been developed pursuant to the DOC’s usual procedures. The Revised Treatment Plan did not result from a clinical decision by a doctor or social worker concerning Kosi-lek’s condition and particular medical needs. Rather, it was derived from an administrative decision by Maloney that created a blanket policy prohibiting initiation of hormones for inmates for whom they were not prescribed prior to their incarceration. Even Dr. Dickey agrees with Drs. Forstein and Brown that a rigid blanket policy prohibiting the initiation of hormones in every case is not appropriate. This court concurs. As a result of that blanket policy, however, no clinical assessment of Kosilek’s individual circumstances and medical needs has been made. Rather, major forms of the treatment provided in the community in the United States pursuant to prudent professional standards have been eliminated as options by an administrative decision made by Maloney, who acknowledges that he is not qualified to decide what treatment is medically necessary for a particular inmate. Maloney did not, however, adopt his policy in order to punish Kosilek. On April 28, 2000, Maloney was not aware of certain critical facts and had not actually inferred that there would be a substantial risk of serious harm to Kosilek- — -in the form of at least intense psychological pain, and quite possibly suicide or self-mutilation — as a result of the policy he decided to adopt. Although Maloney read Dr. Forstein’s report, including the part describing Kosi-lek’s attempts to kill and castrate himself, before approving the Guidelines, he still did not infer that Kosilek’s condition created a substantial risk of serious harm to him. Nor did Maloney reach this conclusion prior to testifying at trial. The DOC’s policy concerning gender identity disorders differs from its policy concerning other serious illnesses. As Hughes explained, if an inmate were depressed because he had cancer, the DOC would not limit its efforts to addressing the depression. Rather, it would also attempt to cure, or at least diminish, the cancer by providing care that would be regarded as adequate in the community. In any event, the court finds that the services now being offered to Kosilek are not sufficient to diminish his intense emotional distress, and the related risks of suicide and self-mutilation, to the point at which he would no longer be at a substantial risk of serious harm. Maloney knows that the DOC medical staff regularly refer inmates to outside specialists if they present problems that are beyond the competence of the professionals who are on staff. The court fully accepts Maloney’s testimony that if the doctors from the University of Massachusetts who are engaged to provide mental health care to inmates decided to bring in a specialist to treat Kosilek, he would not interfere. Such medical judgments are “what [he is] paying them for.” Feb. 6, 2000 Tr. at 111. Indeed, Maloney sincerely believes that he has “never in [his] career interfered with a doctor’s order for treatment and [has] no intention of doing so in the future,” with regard to Kosilek or anyone else. Id. at 113. Hughes credibly testified that if a qualified expert recommended that hormones be initiated for Kosilek, Hughes would consult Drs. Appelbaum and Packer. If they concurred, Hughes would recommend that Maloney follow that advice because that would be a medical judgment made by qualified professionals. A decision to prescribe hormones for Kosilek would not be unprecedented. According to Dr. Brown, the federal Bureau of Prisons settled a case in which he participated by agreeing to provide hormones to Yolanda Burt, who had used only “black market” hormones before being incarcerated. If a doctor retained by the DOC recommended that Kosilek receive hormones, Maloney and Hughes would continue to have security concerns. Kosilek is now safely living, as much as possible, as a female at MCI-Norfolk. He has, however, been abused at other facilities. In any event, the DOC policy contemplates continuing hormones for any inmate for whom they were prescribed prior to inca