Full opinion text
MEMORANDUM AND ORDER ON EIGHTH AMENDMENT CLAIM WOLF, District Judge. I. SUMMARY............................................................196 II. THE APPLICABLE STANDARDS.......................................205 III. FINDINGS OF FACT AND CONCLUSIONS OF LAW.....................212 AKosilek has a Gender Identity Disorder................................213 B.Kosilek I ..........................................................213 C.The Aftermath of Kosilek 1...........................................218 D.The Trial oí Kosilek II...............................................225 E.The Eighth Amendment Analysis.....................................229 1. Kosilek has a Serious Medical Need ...............................229 2. Sex Reassignment Surgery is the Only Adequate Treatment for Kosilek’s Serious Medical Need.................................230 3. Kosilek Has Satisfied the Subjective Prong of the Deliberate Indifference Test..............................................237 4. The Defendant’s Stated Security Concerns are Pretextual and do not Justify Denying Kosilek Sex Reassignment Surgery............238 5. Defendant’s Deliberate Indifference Will Continue and, Therefore, Kosilek is Entitled to a Narrowly-Tailored Injunction..............247 IV. ORDER...............................................................251 I. SUMMARY This is an unusual case for an obvious reason and another that is less evident. This case is unusual because a transsexual prisoner, plaintiff Michelle Kosilek, seeks an unprecedented court order requiring that the defendant Commissioner of the Massachusetts Department of Correction (the “DOC”) provide him with sex reassignment surgery to treat his major mental illness, severe gender identity disorder. This case is also unusual because until recently inmates suing for medical care have typically sought treatment that prison doctors were unwilling to prescribe. In this case, however, Kosilek is seeking the treatment that has been prescribed for him by the DOC’s doctors as the only form of adequate medical care for his condition. Such cases have recently become more common in Massachusetts because the DOC has repeatedly denied transsexual prisoners prescribed treatment for reasons that the courts have found to be improper. See Battista v. Clarke, 645 F.3d 449 (1st Cir.2011); Soneeya v. Spencer, 851 F.Supp.2d 228 (D.Mass.2012); Brugliera v. Comm’r of Mass. Dep’t of Corr., No. 07-40323, 2009 U.S. Dist. LEXIS 131002 (D.Mass. Dec. 16, 2009); Kosilek v. Maloney, 221 F.Supp.2d 156 (D.Mass.2002) (“Kosilek I”). Kosilek is serving a life sentence, without possibility of parole, for murdering his wife. Kosilek suffers from a gender identity disorder, which is recognized as a major mental illness by the medical community and by the courts. Kosilek is, therefore, a transsexual — a man who truly believes that he is a female cruelly trapped in a male body. This belief has caused Kosilek to suffer intense mental anguish. This anguish has caused Kosilek to attempt to castrate himself and to attempt twice to kill himself while incarcerated, once while he was taking the antidepressant Prozac. 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 hormones provide adequate relief. There are, however, some cases in which sex reassignment surgery is medically necessary and appropriate. This fact that sex reassignment surgery is for some people medically necessary has recently become more widely recognized. For example, in 2010, the United States Tax Court held that the costs of feminizing hormones and sex reassignment surgery are for certain individuals tax deductible as forms of necessary “medical care” for a serious, debilitating condition that is sometimes associated with suicide and self-castration, rather than nondeductible expenses for “cosmetic” treatment. See O’Donnabhain v. Comm’r of Internal Revenue, 134 T.C. 34, 70, 76-77 (U.S.Tax Ct.2010). Similarly, in 2010, the Seventh Circuit held that a state statute prohibiting hormone therapy and sex reassignment surgery for any prisoner violated the Eighth Amendment because such forms of treatment could be medically necessary to treat some inmates adequately. See Fields v. Smith, 653 F.3d 550, 556 (7th Cir.2011). In the instant case, Kosilek alleges that his rights under the Eighth Amendment are being violated by the DOC’s refusal to provide him with the sex reassignment surgery that, following the Standards of Care, the DOC’s doctors have found to be the only adequate treatment for the severe gender identity disorder from which Kosilek suffers. Kosilek still severely suffers from this major mental illness despite the fact that he is receiving psychotherapy and female hormones. After a long period of pretense and prevarication, DOC Commissioner Kathleen Dennehy testified in 2006 that she understood and accepted the DOC doctors’ view that Kosilek is at substantial risk of serious harm and that sex reassignment surgery is the only adequate treatment for his condition. However, she claimed that providing such treatment would create insurmountable security problems and that she denied Kosilek sex reassignment surgery because of those security considerations. Kosilek has proven, however, that the Commissioner’s purported security concerns are a pretext to mask the real reason for the decision to deny him sex reassignment surgery — a fear of controversy, criticism, ridicule, and scorn. Therefore, Kosilek has proven that the DOC is violating his rights under the Eighth Amendment. He has also established that this violation will continue if the court does not now order the DOC to provide the treatment its doctors have prescribed. Therefore, such an injunction is being issued. In summary, the reasons for these conclusions are as follows. 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 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 have long been held to have a right to humane treatment, including a right to adequate care for their serious medical needs. It may seem strange that in the United States citizens do not generally have a constitutional right to adequate medical care, but the Eighth Amendment promises prisoners such care. The Supreme Court recently explained the reason for this distinction: To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates may actually produce physical torture or a lingering death. Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. Brown v. Plata, — U.S. —, 131 S.Ct. 1910, 1928, 179 L.Ed.2d 969 (2011) (internal quotations and citations omitted). 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 otherwise been deliberately indifferent to it. The deliberate indifference test has an objective and subjective prong. To satisfy the objective prong in a case involving medical care, a prisoner must show that he has a serious medical need. 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 medical 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. Absent legitimate countervailing penological considerations, adequate care addresses the cause of the person’s suffering rather than merely the symptoms. As the Seventh Circuit recently wrote in finding that a statute prohibiting hormones and sex reassignment surgery for all prisoners violated the Eighth Amendment: Surely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional. Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture. Fields, 653 F.3d at 556 (citation omitted). An inmate is not entitled to ideal care or the care of his choice. Courts must defer to the decisions of prison officials concerning what form of adequate treatment to provide an inmate. However, courts must decide if the care being provided is minimally adequate. With regard to the subjective prong, to establish deliberate indifference it must be proven that the responsible official knows that the prisoner is at high risk of serious harm if his condition is not adequately treated. In certain cases even proof that a prison official knew that an inmate was suffering severely from a serious condition that was not being adequately treated might not violate the Eighth Amendment. As this court wrote in 2002: 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. Kosilek I, 221 F.Supp.2d at 161. In 2011, the First Circuit addressed this issue in Battista. In affirming an order that the DOC provide prescribed female hormones to a transsexual prisoner, the First Circuit stated that: Medical “need” in real life is an elastic term: security considerations also matter at prisons ..., and administrators have to balance conflicting demands. The known risk of harm is not conclusive: so long as the balancing judgments are within the realm of reason and made in good faith, the officials’ actions are not “deliberate indifference.” Battista, 645 F.3d at 454. However, as the First Circuit also explained in Battista, prison officials forfeit the deference to their decisions by the courts to which they are generally entitled when their stated reasons for refusing treatment are proven to be pretexts for a purpose that does not serve a legitimate penological objective. See id. at 455. Even if a violation of the Eighth Amendment is proven, a court may not issue an injunction unless it is also established that the violation will continue in the future. In addition, if an injunction is justified, it must be narrowly drawn to remedy the constitutional violation and not otherwise displace the discretion of prison officials. Therefore, in this case to obtain an order directing the DOC to provide sex reassignment surgery, Kosilek has been required to prove that: (1) he has a serious medical need; (2) sex reassignment surgery is the only adequate treatment for it; (3) the defendant knows that Kosilek is at high risk of serious harm if he does not receive sex reassignment surgery; (4) the defendant has not denied that treatment because of good faith, reasonable security concerns or for any other legitimate penological purpose; and (5) the defendant’s unconstitutional conduct will continue in the future. All of the requirements for an injunction ordering the DOC to provide Kosilek sex reassignment surgery have been met in the instant case, which is essentially a continuation of Kosilek I. In Kosilek I, a specialist retained by the DOC to treat Kosilek found that he was suffering from a severe gender identity disorder. Consistent with the Standards of Care, that doctor recommended that Kosilek be provided female hormones and, after a year of living as a female, be evaluated for possible sex reassignment surgery. After receiving that recommendation, the DOC fired the specialist and retained instead a Canadian doctor known for his view that hormones should never be prescribed for a prisoner, like Kosilek, for whom they were not prescribed before his incarceration. After trial, the court found that Kosilek did indeed have a serious medical need. It also found that Kosilek was being denied adequate medical care. More specifically, the court found that the Canadian doctor’s rigid “freeze-frame” policy, which had been adopted by the DOC, effectively prohibited DOC doctors from considering whether Kosilek should have hormone therapy and sex reassignment surgery, which were forms of treatment prescribed by qualified professionals for some, but not all, individuals suffering from gender identity disorders. As a result of that policy, no individualized medical evaluation had been done for the purpose of prescribing treatment for Kosilek’s serious medical need. Nevertheless, the court did not order Michael Maloney, the Commissioner of the DOC at the time, to provide Kosilek with female hormones for several reasons. First, it found that Maloney had not adopted the Canadian doctor’s policy with the intent to inflict pain on Kosilek or otherwise as a result of deliberate indifference. Rather, Maloney had not focused on Kosilek’s medical condition and did not have the understanding of Kosilek’s suffering necessary to justify a finding of deliberate indifference. The court also found that while Maloney had some sincere security concerns about providing Kosilek with hormones or sex reassignment surgery, his reluctance to authorize these treatments was substantially attributable to his fear of public and political criticism that any expenditure for hormones or sex reassignment surgery would be an improper use of public funds. As the court explained, however: “[S]ecurity is a legitimate consideration for Eighth Amendment purposes. A concern about political or public criticism for discharging a constitutional duty is not.” Kosilek I, 221 F.Supp.2d at 162. The court also did not issue the requested injunction because it expected that, educated by the decision in Kosilek I, Maloney would make future decisions concerning Kosilek in a manner that did not violate the Eighth Amendment. Id. at 192. The court concluded its summary in Kosilek I by stating that: 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. Id. at 162 (emphasis added). The First Circuit has cited Kosilek I as the first in a series of cases demonstrating the DOC’s “resistance” to providing adequate medical care for transsexual prisoners. See Battista, 645 F.3d at 454 (citing Kosilek I, 221 F.Supp.2d at 159-60; Brugliera, 2009 U.S. Dist. LEXIS 131002). In 2012, a district court found that the DOC continued this resistance in the case of Katheena Soneeya. See Soneeya, 851 F.Supp.2d at 248-50. If Maloney had remained the Commissioner of the DOC, he might have heeded the court’s warning that an injunction would issue if he denied Kosilek adequate medical care because of a fear of controversy or criticism. Despite testifying at trial that it would be impossible to reasonably assure Kosilek’s safety if he were given female hormones, Maloney subsequently revised his view. The DOC engaged a specialist in treating gender identity disorders to evaluate Kosilek and, in 2003, Maloney allowed Kosilek to begin receiving the hormone treatments that the specialist prescribed. Kosilek has since lived in the general population of a male prison, MCI Norfolk, with breasts and other feminine characteristics, without being assaulted or engaging in any sexual activity- However, in December, 2003, Maloney was succeeded as Commissioner by Dennehy. Dennehy was determined not to be the first prison official to provide an inmate sex reassignment surgery. Indeed, she testified that she would retire rather than obey an order from the Supreme Court to do so. Acting on this determination, Dennehy engaged in a pattern of pretense, pretext, and prevarication to deny Kosilek the sex reassignment surgery that the DOC doctors prescribed after Kosilek had completed more than a year of “real life experience” living as a female in prison. When a specialist retained by the DOC doctors recommended that Kosilek receive sex reassignment surgery, as Deputy Commissioner Dennehy participated in the decision to have him fired. When Dennehy became Commissioner, she halted certain prescribed treatments for Kosilek and other transsexual prisoners, purportedly to review their cases, and long delayed decisions on whether such treatments would be allowed. Departing from the DOC’s standard practice of relying on its doctors to retain specialists, Dennehy had the DOC hire Cynthia Osborne, a social worker who worked in the Johns Hopkins psychiatric department, which was long led by a doctor known for his religious and moral opposition to sex reassignment surgery. That department was also known for its view that a prisoner should never be provided sex reassignment surgery. Osborne had advised several states that sex reassignment surgery was not appropriate for each of the prisoners she had evaluated. Dennehy was not truthful when she testified that the DOC did not hire Osborne because of her predictable position that Kosilek should not receive sex reassignment surgery. In addition, Dennehy long falsely claimed that she did not understand whether the DOC doctors were recommending sex reassignment surgery for Kosilek. In this ease, Kosilek has proven that he still has a severe gender identity disorder. Although female hormones have helped somewhat, he continues to suffer intense mental anguish because of his sincere and enduring belief that he is a female trapped in a male body. That anguish alone constitutes a serious medical need. It also places him at high risk of killing himself if his major mental illness is not adequately treated. As the DOC doctors responsible for treating Kosilek and the experts who testified on Kosilek’s behalf credibly concluded, sex reassignment surgery is the only adequate treatment for Kosilek’s serious medical need. The DOC’s trial expert, Dr. Chester Schmidt, a psychiatrist from Johns Hopkins, proposed providing Kosilek with psychotherapy and antidepressants, rather than sex reassignment surgery. Dr. Schmidt’s recent work focuses primarily on medical billing procedures rather than treatment of gender identity disorders. Dr. Schmidt does not accept the Standards of Care, which as explained earlier are followed by prudent professionals. His approach to dealing with Kosilek’s condition would not be employed by prudent professionals in the community. Moreover, providing Kosilek antidepressants would not reduce his suffering to a level at which he would no longer have a serious medical need. Kosilek has already tried to kill himself once while taking Prozac and his experts credibly testified that he would remain at high risk of doing so again. Although Dennehy long falsely claimed that she did not know whether the DOC’s doctors were recommending sex reassignment surgery as medically necessary for Kosilek, she eventually testified at trial that she understood and accepted that Kosilek was at a significant risk of serious harm if not provided such treatment. She never claimed, let alone proved, that she believed that Dr. Schmidt’s approach would provide adequate treatment for Kosilek. Dennehy correctly concluded that she was not competent to make clinical judgments. Rather, Dennehy testified that she was denying the sex reassignment surgery prescribed for Kosilek solely because of insurmountable security concerns. Kosilek has proven, however, that this contention is not credible. As described in detail in the Memorandum, Dennehy testified untruthfully on many matters. This contributes to the conclusion that her stated reasons for refusing to allow Kosilek to receive the surgery were pretextual. In addition, Dennehy announced that security concerns made it impossible to provide Kosilek sex reassignment surgery without conducting the security review required by the DOC’s established procedures. Such a review would have included a written assessment from the Superintendent of MCI Norfolk, who had previously advised Commissioner Maloney that providing Kosilek female hormones would not create unmanageable security problems. Dennehy incredibly claimed that, despite Kosilek’s excellent record in prison and while being transported to medical appointments and court, there was an unacceptable risk that Kosilek would attempt to flee while being transported to get the treatment that he had dedicated twenty years of his life to receiving. In any event, Dennehy ultimately admitted that the safety of Kosilek and others could be reasonably assured by placing him in an onerous form of protective custody after receiving sex reassignment surgery. As explained in detail in the Memorandum, Dennehy did not decide to deny Kosilek sex reassignment surgery because of a sincere or reasonable concern for security. Rather, she was motivated by her understanding that providing such treatment would provoke public and political controversy, criticism, scorn, and ridicule. She had ample reasons to expect such a reaction. The Lieutenant Governor in whose administration Dennehy served publicly opposed using tax revenues to provide Kosilek sex reassignment surgery. Many members of the state legislature, including one who was close to Dennehy, did the same. In addition, the media regularly ridiculed the idea that a murderer could ever be entitled to such “bizarre” treatment. See, e.g., Brian McGrory, “A test case for a change,” The Boston Globe, June 13, 2000. Elected officials are entitled to express their views on whether a prisoner should receive sex reassignment surgery. The media has the right to comment critically on the conduct of prison officials and judges as well. Every citizen has a right to criticize public officials, including judges, too. However, a prison official acts with deliberate indifference and violates the Eighth Amendment if, knowing of a real risk of serious harm, she denies adequate treatment for a serious medical need for a reason that is not rooted in the duties to manage a prison safely and to provide the basic necessities of life in a civilized society for the prisoners in her custody. Denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose. It is precisely the type of conduct the Eighth Amendment prohibits. As the Supreme Court has explained, “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Therefore, “[t]he right to be free of cruel and unusual punishments, like other guarantees of the Bill of Rights, may not be submitted to vote; it depends on the outcome of no elections.” Furman v. Georgia, 408 U.S. 238, 268, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring) (internal quotation omitted). Prisoners who have lost their liberty by murdering others may understandably be unsympathetic candidates for the humane treatment that they denied their victims. However, as future Supreme Court Justice Anthony Kennedy wrote in 1979: “[T]he whole point of the [Eighth] [A]mendment is to protect persons convicted of crimes. Eighth [A]mendment protections are not forfeited by one’s prior acts.” Spain v. Procunier, 600 F.2d 189, 194 (9th Cir.1979). It is despised criminals, like Kosilek, who are most likely to need the protection of the Eighth Amendment and its enforcement by the courts. This court fully understands that special care should be exercised before judges intrude on matters of prison administration. It recently expressed this view in approving a settlement by the DOC of a class action in which it was alleged that the practice of placing mentally ill prisoners in prolonged segregation was unconstitutional, in part because it was causing many inmates to kill themselves. See Disability Law Ctr. v. Mass. Dep’t of Corr., No. CIV.A. 07-10463, 2012 WL 1237760, at *1 (D.Mass. Apr. 12, 2012). Like the district court in Battista, this court has been cautious in deciding to grant the relief sought in order to assure that it was both justified and necessary. See Battista, 645 F.3d at 455 (stating that district judge was initially “far from anxious to grant the relief sought” but did so after perceiving a “pattern of delays”). It has given the defendant many opportunities to consider relevant information and reconsider its decision to deny Kosilek sex reassignment surgery. It required Dennehy to read certain trial testimony so she could make a more fully informed decision on whether to permit the prescribed surgery. The court obtained the views of the DOC’s doctors and an independent expert on whether Dr. Schmidt’s proposed approach would provide Kosilek adequate medical care. In addition, it required Dennehy’s immediate successor as Commissioner, Harold Clarke, to report on whether he would reverse Dennehy’s decision. However, the DOC, through several Commissioners, has continued, without proper justification, to refuse to discharge its constitutional duty to provide Kosilek the adequate care required for his serious condition. It is evident that the defendant will continue to violate Kosilek’s Eighth Amendment rights if a court order is not issued. As the Supreme Court has held, “a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution.” Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Rather, as the Court more recently instructed: If government fails to fulfill [its] obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation. Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals. Courts nevertheless must not shrink from their obligation to enforce the constitutional rights of all persons, including prisoners. Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration. Brown, 131 S.Ct. at 1928-29 (internal quotations and citations omitted). Therefore, an injunction must issue in this case. As indicated earlier, any such order must be narrowly drawn to extend no further than necessary to correct the proven violation of the inmate’s federal rights. See 18 U.S.C. § 3626(a)(1)(A). In this case, Kosilek has proven that his Eighth Amendment rights have been violated by the DOC’s refusal to provide the sex reassignment surgery prescribed by its doctors. The court is ordering the defendant to take all of the steps reasonably necessary to provide Kosilek that treatment as promptly as possible. The court is not deciding where the surgery should be done or who should perform it. Nor is the court deciding where Kosilek should be incarcerated after the surgery. It is the duty of the DOC to make those decisions reasonably and in good faith. As indicated earlier, in another case before this court, the DOC recently demonstrated that it could and would properly discharge its constitutional duty to provide adequate medical care to mentally ill prisoners who were committing suicide at a high rate when held in segregated confinement. See Disability Law Ctr., 2012 WL 1237760, at *1. In that case the DOC worked long, hard, and successfully to develop innovative ways to address both the serious medical needs of those inmates and the genuine concerns for safety that they presented. As a result, a challenging class action was settled on a basis that this court found to be fair and reasonable. The DOC has an equal obligation under the Eighth Amendment to make decisions concerning Kosilek that are not cruel and unusual. It has long been well-established that it is cruel for prison officials to permit an inmate to suffer unnecessarily from a serious medical need. It is unusual to treat a prisoner suffering severely from a gender identity disorder differently than the numerous inmates suffering from more familiar forms of mental illness. It is not permissible for prison officials to do so just because the fact that a gender identity disorder is a major mental illness is not understood by much of the public and the required treatment for it is unpopular. Kosilek shares with every other inmate in the DOC’s custody the right to have decisions concerning him made by prison officials reasonably and in good faith in order to assure that he is not again subject to the cruel and unusual punishment that the Eighth Amendment prohibits. The court hopes that the DOC will in the future recognize and respect that right. II. THE APPLICABLE STANDARDS As the Supreme Court wrote in another case involving a transsexual inmate, “the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation omitted). The Eighth Amendment, in pertinent part, prohibits the infliction of “cruel and unusual punishments.” U.S. Const., Am. VIII. Such punishments are those that are “incompatible with the evolving standards of decency that mark the progress of a maturing society” or that involve the “unnecessary and wanton infliction of pain” on an inmate. Estelle, 429 U.S. at 102-104, 97 S.Ct. 285 (internal quotations omitted); see also Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The Eighth Amendment, therefore, “imposes duties on [prison] officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of inmates.” Farmer, 511 U.S. at 832, 114 S.Ct. 1970 (internal quotation omitted). The Supreme Court has recently explained the reasons for the Eighth Amendment, and the important values that it both represents and protects: As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. Brown, 131 S.Ct. at 1928 (internal quotations and citations omitted). Because incarceration “takes from prisoners the means to provide for their own needs,” society must provide for these basic needs or cause prisoners to suffer starvation, torture, and death. Id. “A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” Id.; see also Farmer, 511 U.S. at 832, 114 S.Ct. 1970; Kosilek I, 221 F.Supp.2d at 177-78. At issue in this case is a prisoner’s right to medical care. As indicated earlier, “prison officials must ensure that inmates receive adequate ... medical care.” Farmer, 511 U.S. at 832, 114 S.Ct. 1970. However, not “every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Estelle, 429 U.S. at 105, 97 S.Ct. 285. A mere accident or even negligence is insufficient. Id. at 105-06, 97 S.Ct. 285; see also Feeney v. Corr. Med. Servs., 464 F.3d 158, 162 (1st Cir.2006). “In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Estelle, 429 U.S. at 106, 97 S.Ct. 285; see also Braga v. Hodgson, 605 F.3d 58, 61 (1st Cir.2010); Flanory v. Bonn, 604 F.3d 249, 253-54 (6th Cir.2010). As the Supreme Court explained in Farmer, it must be proven that a prison official acted with “deliberate indifference” to a substantial risk of serious harm in order to establish a violation of the Eighth Amendment. 511 U.S. at 835-47, 114 S.Ct. 1970. The test for a violation of the Eighth Amendment has both an objective and a subjective component. See id. at 846 n. 9, 114 S.Ct. 1970; Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir.1991); De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir.2003). The objective component is satisfied where an inmate demonstrates that “he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834, 114 S.Ct. 1970. In cases involving a denial of medical care, an inmate must show that he has a serious medical need for which he has not received adequate medical care. See Kosilek I, 221 F.Supp.2d at 161; see also Estelle, 429 U.S. at 104, 97 S.Ct. 285. However, to violate the Eighth Amendment, a prison official must have a “sufficiently culpable state of mind, namely one of deliberate indifference to an inmate’s health or safety.” Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir.2011) (internal quotations omitted). This requirement is subjective. A prison official must know of the substantial risk of serious harm faced by the inmate in order to violate the Eighth Amendment. See id.; see also Farmer, 511 U.S. at 837, 114 S.Ct. 1970. However, even a prison official who knows of such a risk does not violate the Eighth Amendment if the denial of particular medical care is based on reasonable, good faith judgments balancing the inmate’s medical needs with other legitimate, penological considerations. See Battista, 645 F.3d at 454. The deliberate indifference requirement “follows from the principle that ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’ ” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson, 501 U.S. at 297, 111 S.Ct. 2321). As stated earlier, an inmate alleging a violation of the Eighth Amendment must first prove that he has a serious medical need. Generally, an inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm in order to prove a violation of the Eighth Amendment. See Farmer, 511 U.S. at 828, 835-43, 114 S.Ct. 1970. Therefore, “a serious medical need” is one that involves a substantial risk of serious harm if it is not adequately treated. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992) (“A ‘serious’ medical need exists if the failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’ ” (quoting Estelle, 429 U.S. at 104, 97 S.Ct. 285)). The First Circuit has also defined a serious medical need as one “ ‘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.’ ” Mahan v. Plymouth Cnty. House of Corr., 64 F.3d 14, 18 (1st Cir.1995) (quoting Gaudreault v. Mun. of Salem, Mass., 923 F.2d 203, 208 (1st Cir.1990)). Similarly, the Second Circuit has held that courts should look to the following factors in determining whether an inmate has a serious medical need: (1) whether a reasonable doctor or patient would perceive the medical need in question as “important and worthy of comment or treatment,” (2) whether the medical condition significantly affects daily activities, and (3) “the existence of chronic and substantial pain.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir.2003) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)). A serious medical need may be mental or physical. See Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir.1991) (stating that there is “no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart”) (internal quotations omitted). Therefore, deliberate indifference to an inmate’s serious mental health needs violates the Eighth Amendment. See id.; see also Clark-Murphy v. Fore-back, 439 F.3d 280, 292 (6th Cir.2006); Steele v. Shah, 87 F.3d 1266, 1269 (11th Cir.1996). With regard to the level of care to be provided, the First Circuit has stated that, “it is plain that an inmate deserves adequate medical care.” United States v. DeCologero, 821 F.2d 39, 42 (1st Cir.1987). “Adequate services” are “services at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards.” Id. at 43. Therefore, as this court wrote in Kosilek I, “reference to established professional standards is important to determining the adequacy of medical care.” 221 F.Supp.2d at 180. Adequate medical care is also treatment that is “the product of sound medical judgment.” Chance, 143 F.3d at 703. Sound medical judgment is based on the needs of the particular prisoner. “The failure to consider an individual inmate’s condition in making treatment decisions is ... precisely the kind of conduct that constitutes a substantial departure from accepted professional judgment, practice, or standards such as to demonstrate that the person responsible did not actually base the decision on such a judgment.” Roe v. Elyea, 631 F.3d 843, 862-63 (7th Cir.2011) (internal quotation omitted); see also Soneeya, 851 F.Supp.2d at 242, 249-50 (holding that the DOC violated a transsexual prisoner’s rights under the Eighth Amendment by relying on a blanket policy denying certain treatment, and stating that “[a]dequate care is based on an individualized assessment of an inmate’s medical needs in light of relevant medical considerations”); Kosilek I, 221 F.Supp.2d at 193 (“[D]ecisions as to whether psychotherapy, hormones, and/or sex reassignment surgery are necessary to treat Kosilek adequately must be based on an ‘individualized medical evaluation’ of Kosilek rather than as ‘a result of a blanket rule.’ ”) (quoting Allard v. Gomez, 9 Fed.Appx. 793, 795 (9th Cir.2001)). Absent legitimate countervailing penological considerations, adequate medical care typically requires addressing the cause of the inmate’s serious medical need rather than merely providing treatment to reduce the pain it causes. See Fields, 653 F.3d at 556. As indicated earlier, in holding that a state statute prohibiting hormone therapy and sex reassignment surgery for inmates with severe gender identity disorders violated the Eighth Amendment, the Seventh Circuit recently wrote that “[s]urely, had the [ ] legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional.” Id.; see also Wolfe v. Horn., 130 F.Supp.2d 648, 653 (E.D.Pa.2001) (although transsexual inmate was prescribed Prozac for depression, there was a fact question precluding summary judgment as to whether inmate received any treatment for transsexualism); West v. Keve, 571 F.2d 158, 162 (3d Cir.1978) (providing aspirin rather than recommended post-operative treatment may not constitute adequate medical care); Sulton v. Wright, 265 F.Supp.2d 292, 300 (S.D.N.Y.2003) (“[E]ven if an inmate receives ‘extensive’ medical care, a[n] [Eighth Amendment] claim is stated if, as here, the gravamen of his problem is not addressed.”). However, the fact that an inmate is entitled to adequate medical care does not mean that he is entitled to ideal care or to the care of his choice. See DeCologero, 821 F.2d at 42; DesRosiers, 949 F.2d at 18; Barron v. Keohane, 216 F.3d 692, 693 (8th Cir.2000); Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir.1997); Fernandez v. United States, 941 F.2d 1488, 1493-94 (11th Cir.1991). Prison officials have the right to exercise discretion in deciding which of several adequate treatments is chosen for a prisoner. See DeCologero, 821 F.2d at 42-43; DesRosiers, 949 F.2d at 19-20. Therefore, “[s]o long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation.” Chance, 143 F.3d at 703 (emphasis added). Moreover, “a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Therefore, if a prisoner satisfies the objective component of the test by establishing the denial of adequate medical care to treat a serious medical need, he must also demonstrate that prison officials had a “sufficiently culpable state of mind” — that of “ ‘deliberate indifference’ to an inmate’s health or safety.” Leavitt, 645 F.3d at 497. This component of the test is subjective. It does not require deliberate intent to harm an inmate, but does require that the official know of the substantial risk of harm to the inmate. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970; Battista, 645 F.3d at 453. Specifically, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970; see also Flanory, 604 F.3d at 254; Chance, 143 F.3d at 702; De’Lonta, 330 F.3d at 634. State of mind “is often inferred from behavior.” Battista, 645 F.3d at 453. Deliberate indifference to the serious medical needs of an inmate may be “evidenced ‘by denial, delay, or interference with prescribed health care.’ ” Id. (quoting DesRosiers, 949 F.2d at 19); see also Johnson v. Wright, 412 F.3d 398, 404 (2d Cir.2005) (“[A] deliberate indifference claim can lie where prison officials deliberately ignore the medical recommendations of a prisoner’s treating physicians.”); Durmer v. O’Carroll, 991 F.2d 64, 68 (3d Cir.1993) (sending inmate to several specialists after first doctor prescribed expensive physical therapy for a stroke could violate the Eighth Amendment, depending on doctor’s motives). Similarly: while a single instance of medical care denied or delayed, viewed in isolation, may appear to be the product of mere negligence, repeated examples of such treatment bespeak a deliberate indifference by prison authorities to [inmates’] agony ... Indeed, it is well-settled in [the Second] [C]ircuit that a series of incidents closely related in time ... may disclose a pattern of conduct amounting to deliberate indifference to the medical needs of prisoners. Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.1977) (internal quotation omitted); see also Guglielmoni v. Alexander, 583 F.Supp. 821, 826 (D.Conn.1984) (same). Certain constraints facing prison officials are relevant to the subjective state of mind component of the Eighth Amendment test. See Wilson, 501 U.S. at 303, 111 S.Ct. 2321. More specifically, “assuming the conduct is harmful enough to satisfy the objective component of the Eighth Amendment claim, whether it can be characterized as ‘wanton’ depends upon the constraints facing the official.” Id. (internal citation omitted); see also DesRosiers, 949 F.2d at 19. As the Supreme Court reiterated in 1993, the inquiry into whether deliberate indifference has been proven is “an appropriate vehicle to consider arguments regarding the realities of prison administration.” Helling v. McKinney, 509 U.S. 25, 37, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). The duty to reasonably assure inmate security is one of the realities of prison administration and, therefore, is relevant to the deliberate indifference analysis. See Farmer, 511 U.S. at 833, 114 S.Ct. 1970; Battista, 645 F.3d at 454-55. More specifically, in addition to an inmate’s medical needs, “security considerations also matter at prisons ... and administrators have to balance conflicting demands. The known risk of harm is not conclusive: so long as the balancing judgments are within the realm of reason and made in good faith, the officials’ actions are not ‘deliberate indifference.’ ” Battista, 645 F.3d at 454 (quoting Farmer, 511 U.S. at 844-45, 114 S.Ct. 1970). Therefore, the deliberate indifference test “leave[s]ample room for professional judgment, constraints presented by the institutional setting, and the need to give latitude to administrators who have to make difficult trade-offs as to risks and resources.” Battista, 645 F.3d at 453. Prison administrators are usually entitled to deference by the courts in their judgment concerning what is necessary to discharge their duty to maintain institutional security. See Whitley v. Albers, 475 U.S. 312, 321-22, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). However, deference does not extend to “actions taken in bad faith and for no legitimate purpose.” Whitley, 475 U.S. at 322, 106 S.Ct. 1078; see also Fields, 653 F.3d at 558. Rather, prison officials forfeit their right to deference when their stated, legitimate grounds for refusing treatment are proven to be pretextual, and the plaintiff establishes that the “balancing judgments” were not “within the realm of reason and made in good faith.” Battista, 645 F.3d at 454-55. This is true even if those officials were not motivated by a “sinister motive or ‘purpose’ to do harm to” the inmate. Id. at 455. Because deference is not due to actions taken “for no legitimate purpose,” Whitley, 475 U.S. at 322, 106 S.Ct. 1078, prison officials may be found to be deliberately indifferent if they deny adequate treatment for a serious medical need for reasons that are not rooted in the responsibility to preserve internal order and discipline, and maintain institutional security. See Battista, 645 F.3d at 454-55; cf. Fields, 653 F.3d at 558 (deference not appropriate where blanket ban on hormone therapy not shown to have any security benefit). Such a denial of treatment in the face of a known risk of serious harm to an inmate, taken without reasonable, good faith penological justification, is the sort of “unnecessary and wanton infliction of pain” that the Eighth Amendment prohibits. Hope v. Pelzer, 536 U.S. 730, 737, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (“[A]mong unnecessary and wanton inflictions of pain are those that are totally without penological justification.”) (internal quotations omitted); White v. Farrier, 849 F.2d 322, 325 (8th Cir.1988) (stating, in a case involving a transsexual prisoner, that “[a]etions without a penological justification may constitute an unnecessary infliction of pain”). As explained in Kosilek I, the cost of adequate medical care is not a legitimate reason for not providing such care to a prisoner. See 221 F.Supp.2d at 182. More specifically: [I]t would not be reasonable to deny an inmate adequate medical care because it would be expensive to do so. Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 705 (11th Cir.1985); Harris v. Thigpen, 941 F.2d 1495, 1509 (11th Cir.1991). “Lack of funds ... cannot justify an unconstitutional lack of competent medical care and treatment for inmates.” Ancata, 769 F.2d at 705. Id. As the Eleventh Circuit stated in 1991: We do not agree that “financial considerations must be considered in determining the reasonableness” of inmates’ medical care to the extent that such a rationale could ever be used by so-called “poor states” to deny a prisoner the minimally adequate care to which he or she is entitled. Minimally adequate care usually requires minimally competent physicians. It may also sometimes require access to expensive equipment, e.g. CAT scanners or dialysis machines, or the administration of expensive medicines. Harris, 941 F.2d at 1509 (quoting district court opinion); see also Wilson, 501 U.S. at 301-02, 111 S.Ct. 2321 (Court unaware of any officials ever attempting to use a cost defense to avoid the holding of Estelle ); Fields, 653 F.3d at 556 (“[A]t oral argument ... [the state] disclaimed any argument that [the statute prohibiting hormone therapy or sex reassignment surgery] is justified by cost savings”); Chance, 143 F.3d at 704 (finding that plaintiffs allegations that doctors “recommended extraction [of tooth] not on the basis of their medical views, but because of monetary incentives,” if proven, would contribute to a showing of deliberate indifference on the part of the defendants); Durmer, 991 F.2d at 68-69 (finding that evidence that doctor wanted to avoid providing physical therapy to a prisoner because it “would have placed a considerable burden and expense on the prison and was therefore frowned upon throughout the prison health system” might contribute to a showing of deliberate indifference); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.1986) (“We find no other explanation in the record than budget concerns for denying Jones’s surgery. Budgetary constraints, however, do not justify cruel and unusual punishment.”); Gates v. Collier, 501 F.2d 1291, 1320 (5th Cir.1974) (“Where state institutions have been operating under unconstitutional conditions and practices, the defenses of fund shortage and the inability of the district court to order appropriations by the state legislature, have been rejected by the federal courts.”); Soneeya, 851 F.Supp.2d at 243 (“Cost of treatment, however, may not be used as a reason to deny an inmate medically necessary care.”); Rosado v. Alameida, 349 F.Supp.2d 1340, 1349 (S.D.Cal.2004) (“[C]ase law suggests that the high costs associated with the [liver] transplant procedure do not preclude success on a deliberate indifference claim.”); Renelique v. Doe, No. CIV.A. 99-10425, 2003 WL 23023771, at *15 (S.D.N.Y. Dec. 29, 2003) (“[Constitutionally deficient medical care of inmates cannot be justified by a facility’s lack of funds.”). Nor would it be permissible for a prison official to fail to provide adequate medical care to a prisoner because it would be unpopular or politically controversial to do so. As noted earlier, the Supreme Court has explained that “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Barnette, 319 U.S. at 638, 63 S.Ct. 1178. “The right to be free of cruel and unusual punishments, like other guarantees of the Bill of Rights, may not be submitted to vote; it depends on the outcome of no elections.” Furman, 408 U.S. at 268, 92 S.Ct. 2726 (Brennan, J., concurring) (internal quotation omitted). “The whole point of the [Eighth] [A]mendment is to protect persons convicted of crimes. Eighth [A]mendment protections are not forfeited by one’s prior acts.” Spain, 600 F.2d at 194. Finally, with regard to the generally applicable legal standards, the fact that this case only involves a request for declaratory and prospective injunctive relief, rather than monetary damages, has significance. In order to obtain an injunction, an inmate must prove that a prison official was, at the time of trial, “knowingly and unreasonably disregarding an objectively intolerable risk of harm, and ... will continue to do so.” Farmer, 511 U.S. at 846, 114 S.Ct. 1970. In addition, if a prisoner proves that he has been deprived of adequate medical care in violation of the Eighth Amendment and that a court order is required to correct that violation, under the Prison Litigation Reform Act (the “PLRA”) the injunction issued must be “narrowly drawn, extend[ ] no farther than necessary to correct the violation of the Federal right, and [be] the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). The PLRA also provides that “[t]he court [must] give substantial weight to any adverse impact on public safety or the operation of the [prison] system caused by the relief.” Id. The foregoing general principles concerning the Eighth Amendment as applied to the alleged denial of adequate medical care provide the following framework for analyzing Kosilek’s claim. To prevail in this case, Kosilek must prove that: (1) he has a serious medical need; (2) sex reassignment surgery is the only adequate treatment for it; (3) the defendant knows that Kosilek is at high risk of serious harm if he does not receive sex reassignment surgery; (4) the defendant has not denied that treatment because of good faith, reasonable security concerns or for any other legitimate penological purpose; and (5) the defendant’s unconstitutional conduct will continue in the future. If Kosilek proves that he is entitled to relief, the injunction issued must be narrowly tailored to remedy the violation of his Eighth Amendment rights and not unnecessarily restrict the discretion of prison officials. III. FINDINGS OF FACT AND CONCLUSIONS OF LAW The following facts have been proven by a preponderance of the credible evidence at a 28-day trial, in which the court had the opportunity to observe the witnesses and to consider the extent to which their testimony was corroborated or contradicted by other evidence that was introduced. Some of the following facts were also found in Kosilek I, and their correctness was confirmed, rather than undermined, by the credible evidence presented in the instant case. See 221 F.Supp.2d at 156. A. Kosilek has a Gender Identity Disorder It is not disputed that Kosilek has long had a gender identity disorder. As indicated earlier, gender identity disorder is widely recognized by the medical community and the courts as a major mental illness. See, e.g., Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition — Text Revisions (“DSM-IV-TR”); Farmer, 511 U.S. at 829, 114 S.Ct. 1970; Battista, 645 F.3d at 450. As also described earlier, the Tax Court has recently characterized gender identity disorder as “a serious psychologically debilitating condition.” O’Donnabhain, 134 T.C. at 61. In Kosilek I, this court found that while a gender identity disorder is a major mental illness, it is not “necessarily a serious medical need for which the Eighth Amendment requires treatment” because “[a]s with other mental illness, gender identity disorders have differing degrees of severity.” 221 F.Supp.2d at 184. The evidence in the instant case confirmed that “merely because someone is a transsexual, it does not inexorably follow that he or she needs” any particular form of treatment. Farmer v. Moritsugu, 163 F.3d 610, 615 (D.C.Cir.1998); see also Kosilek I, 221 F.Supp.2d at 184. Therefore, it is necessary for the court to decide, among other things, the current severity of Kosilek’s gender identity disorder and what is necessary to treat it adequately. These, and the other relevant questions, are best understood in the context of the facts found in Kosilek I. B. Kosilek I As described more fully in Kosilek I, “Kosilek has long held a strong and persistent belief that he is a woman trapped in a man’s body.” 221 F.Supp.2d at 163. The belief was steadily manifest before Kosilek was ten years old. He suffered regular abuse, including being stabbed by his stepfather, because of his announced desire to live as a girl. Kosilek later obtained female hormones that were prescribed by a physician in exchange for sex. As a result of taking the hormones, Kosilek “ ‘felt normal’ ” for the first time in his life. While in a drug rehabilitation facility, Kosilek 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, after McCaul became angry when she found Kosilek wearing her clothes, Kosilek murdered her. He then fled and was arrested in New York while wearing female clothing. While awaiting trial, Kosilek again took female hormones in the form of birth control pills that were illegally provided by a guard. He also tried to obtain treatment, including eventually by filing the suit that resulted in the 2002 decision in Kosilek I. Kosilek hired an expert who recommended psychotherapy with a qualified specialist in gender identity disorders, but the Bristol County Sheriff denied him this treatment. Kosilek then twice tried to kill himself before his trial, once while he was taking the antidepressant Prozac. In addition, Kosilek attempted to castrate himself. In 1992, Kosilek was convicted of murder and sentenced to life in prison without the possibility of parole. At MCI Norfolk, a medium security male prison operated by the DOC, Kosilek began living like a woman to the maximum extent possible. He had his name legally changed from “Robert” to “Michelle” and did everything he could to present himself as a female. Prior to 2002, Kosilek had not been assaulted sexually while in the custody of the DOC at MCI Norfolk. Nor did he voluntarily have sexual relations with any other inmate. At the time of both Kosilek I and the instant case, the DOC contracted with the University of Massachusetts Correctional Health Program (“UMass”) to provide medical services, including