Full opinion text
THOMPSON, Circuit Judge. Twenty years after prison inmate Michelle Kosilek first requested treatment for her severe gender identity disorder, the district court issued an order requiring the defendant, Luis S. Spencer, Commissioner of the Massachusetts Department of Correction (the “DOC”), to provide Kosi-lek with sex reassignment surgery. The court found that the DOC’s failure to provide the surgery — which was said by a group of qualified doctors to be medically necessary to treat Kosilek’s condition— violated Kosilek’s Eighth Amendment rights. The DOC appeals the district court’s order. Having carefully considered the relevant law and the extensive factual record, we affirm the judgment of the district court. I. BACKGROUND A. Gender Identity Disorder and Sex Reassignment Surgery The concepts of gender identity disorder and sex reassignment surgery sit center stage in this case and feature prominently in this opinion. Therefore, before we go any further, we provide a little context. As this court has explained, gender identity disorder is “a psychological condition involving a strong identification with the other gender.” Battista v. Clarke, 645 F.3d 449, 450 (1st Cir.2011). It is a disorder recognized by the American Psychiatric Association, which describes gender identity disorder as having two components. American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition-Text Revision 576 (2000) (“DSM-IV-TR”). The first is “evidence of a strong and persistent cross-gender identification, which is the desire to be, or the insistence that one is, of the other sex.” Id. The second is “evidence of persistent discomfort about one’s assigned sex or a sense of inappropriateness in the gender role of that sex.” Id. This current diagnosis of gender identity disorder grew out of an earlier diagnosis of transsexualism, which first appeared as an official disorder in the third edition of the DSM, published in 1980. Judith S. Stern & Claire V. Merkine, Brian L. v. Admin, for Children’s Services: Ambivalence Toward Gender Identity Disorder as a Medical Condition, 30 Women’s Rts. L. Rep. 566, 567-68 (2009). In the 1950s and 1960s, research began to show that a “eombination of psychotherapy, hormone treatment, and surgical reconfiguration of the genitalia” could be used to treat gender identity disorder. Id. at 571. This idea gained traction in the 1960s and 1970s, id., and as we will discuss more fully below, this triadic approach is still utilized by many practitioners today. Sex reassignment surgery in particular has been performed in North America since at least the 1950s, and it hás been estimated that as of January 2006, 30,000 sex reassignment surgeries have been performed in the United States. Id. at 571-72. With this bigger picture in place, we move on to the facts of this case. We again note that this case has an over twenty-year history. This has included two trials and two lengthy, fact-intensive decisions issued by the district court, the latter of which is the subject matter of this appeal. Because of this, and because the district court’s opinion was so fact-intensive, it is necessary for us to lay out a good deal of background. B. Kosilek’s Conviction Michelle Kosilek, née Robert, who is sixty-four years old, was born and still is anatomically male. Kosilek suffers from gender identity disorder. This has resulted in Kosilek’s long-held belief that she is a woman cruelly trapped in a man’s body. Kosilek, who spent some of her childhood in an orphanage, suffered regular abuse as a child, in part because of her expressed desire to live as a girl. As she grew older, she alternated between living as a man and a woman. Kosilek’s teenage and early adult years were marred by arrests, incarcerations, beatings, heavy drinking, drug use, and a stint as a prostitute. Sometime in the 1980s, Kosilek married Cheryl McCaul, a volunteer counselor at a drug rehabilitation facility, who Kosilek met while being treated there. McCaul thought she could cure Kosilek’s gender identity disorder, but Kosilek’s desire to be female did not go away. In 1990, Kosi-lek murdered McCaul. Kosilek fled the area but was ultimately apprehended in New York. Kosilek awaited trial at the Bristol County Jail. While there, Kosilek, who had taken female hormones many years earlier, started taking female hormones (in the form of birth control pills) that she illicitly obtained from a guard. She also, at her own expense, consulted with a gender identity disorder specialist, though she was not allowed to undergo any treatment. While awaiting trial, Kosilek twice tried to kill herself; one attempt was made while she was taking the antidepressant Prozac. Kosilek also attempted self-castration. Kosilek was eventually tried and, in 1992, was convicted of McCaul’s murder and sentenced to life in prison without the possibility of parole. She was turned over to the DOC and since 1994 has been residing in the general population at MCI-Norfolk, a medium security male prison. There Kosilek started living, to the extent possible, as a woman, legally changing her name from Robert to Michelle. C. Kosilek’s Lawsuits In 1992, Kosilek filed a pro se complaint against the DOC in the United States District Court for the District of Massachusetts. See Kosilek v. Maloney, 221 F.Supp.2d 156 (D.Mass.2002) (“Kosilek I”). Kosilek alleged the DOC was denying her adequate medical care in violation of the Eighth Amendment. Kosilek sought damages and an injunction ordering that she be provided with sex reassignment surgery. The case was assigned to Judge Mark L. Wolf, and proceeded for some years with the parties engaging in discovery and motion practice. Meanwhile, in December 2000, having not yet received the relief she was seeking, Kosilek filed this case-a second pro se lawsuit against the DOC and some of its medical providers. See Kosilek v. Spencer, 889 F.Supp.2d 190 (D.Mass.2012) (“Kosilek II”). Again the gravamen of Kosilek’s complaint was that the DOC was denying her adequate medical care in violation of the Eighth Amendment by not providing her with sex reassignment surgery. This case also went to Judge Wolf. In February 2002, Kosilek’s first lawsuit, Kosilek I, finally proceeded to a non-jury trial. Due to some pretrial skirmishing, only Kosilek’s claim for injunctive relief remained (her damages claim was gone). The trial lasted a couple of weeks. D. The Kosilek I Decision On August 28, 2002, Judge Wolf issued his decision. See Kosilek I, 221 F.Supp.2d at 156. The court explained that to make out an Eighth Amendment violation, both an objective and a subjective component must be satisfied. In short, the objective component requires that the inmate has a serious medical need that has not been adequately treated. The subjective piece, on the other hand, focuses on the state of mind of the prison officials and requires that they were aware the inmate was at risk for serious harm. The court found that Kosilek suffered from a severe form of gender identity disorder that caused her great mental anguish. It went on to hold that this disorder was a serious medical need within the meaning of the Eighth Amendment. To address the issue of what types of treatment might be warranted, the court looked to the Harry Benjamin Standards of Care (the “Standards of Care”), which it found to be the accepted protocols used by professionals in the United States to treat gender identity disorder. The Standards of Care indicated that, depending on the severity of an individual’s gender identity disorder, psychotherapy alone or psychotherapy along with the administration of female hormones could constitute sufficient treatment. In other instances, however, sex reassignment surgery was medically necessary. The court found that, despite DOC doctors recommending that Kosilek receive female hormones and possibly surgery, the DOC, which at the time was headed up by Commissioner Michael Malo-ney, had not provided Kosilek with any of the treatment prescribed by the Standards of Care. The court chronicled the steps taken by Maloney to avoid providing Kosilek with treatment. First, when an expert hired by the DOC, Marshall Forstein, M.D., recommended psychotherapy and hormones for Kosilek, and also, that she be allowed to consult with a surgeon who specialized in sex reassignment surgery, the DOC terminated its relationship with Dr. Forstein. Maloney then made it clear to DOC doctors that he did not want to provide Kosi-lek or any transgender prisoner with hormones or surgery, and the DOC proceeded to find a Canadian doctor, Robert Dickey, M.D., who believed inmates should never be considered for sex reassignment surgery. Dr. Dickey advocated a “freeze-frame” policy whereby transgender individuals would be frozen in the frame in which they entered prison. For instance, only persons receiving hormones before they were in prison would get hormones in prison. Despite Maloney having little familiarity with the rationale behind Dr. Dickey’s philosophy on the treatment of gender identity disorder, and not having read the Standards of Care, Maloney adopted Dr. Dickey’s freeze-frame policy for the DOC. Dr. Dickey testified at trial, but the court did not find him persuasive because he did not subscribe to the Standards of Care, which the court found that prudent professionals follow, and his approach did not allow for individual assessment. The court found Kosilek’s experts credible and relied on their testimony to find that the objective component of the Eighth Amendment had been satisfied, namely that Kosi-lek had a serious medical need that had not been adequately treated. But the court found Kosilek had fallen short of establishing an Eighth Amendment violation because the subjective component of deliberate indifference had not been satisfied. Maloney, the court con-eluded, knew many facts from which he could have inferred Kosilek would suffer serious harm if her gender identity disorder was not treated, but he did not actually draw that required inference. Instead Judge Wolf found Maloney’s refusal to allow Kosilek treatment was “rooted in sincere security concerns, and in a fear of public and political criticism as well.” The end result: because there was no Eighth Amendment violation, the court did not order the DOC to do anything. Nonetheless, Judge Wolf expected it would do something. He wrote: “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.” E. The After-Effects of Kosilek I Following the court’s dictate, lots of activity ensued at the DOC. First, the DOC lifted its freeze-frame policy around December 2002. In its place went a policy allowing inmates suffering from gender identity disorder to receive a level of treatment commensurate with that which they were receiving upon entering prison (including receipt of hormones), but also providing for increased or decreased treatment if it was determined to be medically indicated by the University of Massachusetts Correctional Health Program (“UMass”), the entity under contract with the DOC to provide medical (including mental health) services to all inmates. Prior to the implementation of any progressive or regressive treatment changes, the DOC’s Director of Health Services and the Commissioner were required to consider whether the changes would result in any safety or security concerns. A couple of months later, in February 2003, the DOC brought in a gender identity specialist, David Seil, M.D., to evaluate Kosilek. Dr. Seil interviewed Kosilek and reviewed her medical records, and then conveyed his findings and recommendation in writing. Per DOC policy, which required any recommendations involving gender identity disorder to go to both UMass’s Medical Director and its Mental Health Program Director, the report went to Kenneth Appelbaum, M.D., who held the latter position. Dr. Seil wrote the following. Like Drs. Forstein and Dickey before him, he diagnosed Kosilek with gender identity disorder. He found Kosilek’s “gender dyspho-ria intense,” and though Kosilek had done what she could to obtain relief by living as a woman, her basic disorder had been left untreated during her incarceration. Dr. Seil, who noted that Kosilek had been living as a woman in a male prison without security issues thus far, indicated that the Standards of Care “need[ed] to be observed.” He further found that Kosilek was not currently suicidal because she then felt some power over her pursuit of becoming a woman. Dr. Seil made several recommendations. First, Kosilek should be provided with estrogen therapy, electrolysis (specifically, permanent facial hair removal), and access to gender-appropriate personal items, such as female clothing and make-up. Additionally, Kosilek should be allowed to see the therapist she had been treating with, master’s-level psychologist Mark Bur-rowes, more often than once a month. Further, feminizing procedures, such as rhinoplasty (plastic surgery performed on the nose) or breast augmentation, should be considered in the future. Finally, Dr. Seil noted that sex reassignment surgery was the last step in treating gender identity disorder. He explained that, as provided in the Standards of Care, an evaluation of the necessity of the surgery must wait until after a patient has lived as a woman for at least a year. While Kosilek had been living as a woman for many years, she had not had the benefit of hormone therapy and electrolysis. Therefore Dr. Seil recommended that after Kosilek had a year of hormone treatment under her belt, an experienced gender identity specialist should evaluate her to determine whether surgery was needed. The DOC began implementing Dr. Seifs recommendations. In April 2003, Kosilek started treating with an endocrinologist to develop a hormone therapy treatment plan. Concomitantly, per DOC policy, the security implications of Kosilek receiving hormones were assessed. On July 29, 2003, Luis Spencer, now the DOC Commissioner but then the Superintendent of MCI-Norfolk, reported to then DOC Commissioner Maloney that he did not believe there were any current security concerns with Kosilek being provided estrogen therapy, but once Kosilek began to exhibit physical changes security concerns might have to be reevaluated. And so on August 26, 2003, Kosilek began female hormone treatment. Then, starting in October 2003, Kosilek was provided with certain gender-appropriate items, such as female undergarments and make-up. As neither Dr. Seil nor the endocrinologist Kosilek was treating with had made specific recommendations as to whether feminizing procedures were needed, none were provided. The DOC did find a facility willing to provide Kosilek with electrolysis and, after a security review of the facility was conducted, electrolysis treatments were scheduled for November the following year. In December 2003, Kathleen Dennehy, who had been the DOC’s Deputy Commissioner under Maloney, was elevated to Commissioner. Right away she informed the staff she wanted to “regroup on this GID stuff.” And she wanted Kosilek reevaluated before approving “laser hair removal or anything else.” As of September 2004, Kosilek had been on hormones for a year and, pursuant to the Standards of Care and Dr. Seil’s recommendation, was eligible to be evaluated for sex reassignment surgery. The issue of conducting evaluations for prisoners with gender identity disorder was taken up at executive staff meetings, attended by UMass and DOC personnel, around this time. Those typically in attendance from the DOC included Susan Martin, the DOC’s Director of Health Services, and Gregory Hughes, the< DOC’s Director of Mental Health and Substance Abuse Services, as well as a couple other DOC officials. Representing UMass was its Mental Health Program Director Dr. Appelbaum, along with some additional UMass personnel. At one meeting, Dr. Appelbaum spoke about retaining the Fenway Community Health Center (the “Fenway Center”), a Boston healthcare facility focused on serving the lesbian, gay, bisexual, and transgender community. Hughes, however, had some reservations; he felt the Fenway Center might be too sympathetic to the prisoners and too quick to recommend treatment. Dr. Appelbaum countered, stating the Fenway Center’s approach represented the norm rather than the exception and there really were not many other providers in the area with whom to consult. Hughes said he had spoken with a Johns Hopkins gender identity specialist, Cynthia Osborne, a licensed social worker, who was working with the Virginia and Wisconsin departments of corrections, which had also been sued by transgender prisoners. It was noted on the meeting minutes that Osborne “may do more objective evaluations,” and was “[m]ore sympathetic to DOC position.” Despite Hughes’s qualms about the Fen-way Center and the possible option of using Osborne, the DOC went ahead with retaining the Fenway Center. Kosilek was evaluated by Kevin Kapila, M.D., and Randi Kaufman, Psy.D., who conducted a ninety-minute interview with her and reviewed her medical records. The doctors issued their report with several findings on February 24, 2005 (the “Fenway Report”). As had been documented in the past, Kosi-lek “clearly fit[ ]” the diagnosis for gender identity disorder. Kosilek had been on hormone therapy and living full-time as a woman for seventeen months by that time. Kosilek’s ability to live as a woman, her good behavior, and her absence of conflict with others, suggested, according to the doctors, an “intense motivation, as well as a real adaptability to her environment.” They noted her favorable response to the use of hormones, electrolysis, and use of feminine products. But, they noted, Kosi-lek was still “quite distressed,” and given Kosilek’s “previous suicide attempts, her ongoing distress, and lack of other goals in her life,” the doctors found it was quite likely Kosilek would attempt suicide again if she was not provided with sex reassignment surgery. Kosilek had a serious medical need, they felt, and there was a substantial risk of harm if her disorder was left untreated. The report went on to note that Kosilek had moved successfully through the steps outlined in the Standards of Care, there had not been any adverse reactions to Kosilek’s feminized appearance, and Kosi-lek had benefitted psychologically from her changes. Drs. Kapila and Kaufman concluded Kosilek was likely ready for sex reassignment surgery. The surgery, the doctors opined, would provide Kosilek with full relief from the symptoms of gender identity disorder and likely increase her chance of survival. The ultimate recommendation of the specialists retained by the DOC as advised by its own doctors: Kosilek should be given the surgery. Unhappy with the Fenway Report, the DOC turned to the Johns Hopkins gender identity specialist, Cynthia Osborne, whose name had been batted around at the earlier DOC meeting. The DOC asked Osborne to conduct a peer review of the Fenway Report and she agreed. The report, along with other evaluations conducted of Kosilek, were sent to Osborne on April 12, 2005. In the meantime, on April 15, 2005, Dr. Appelbaum, who at the time was a defendant in this lawsuit along with UMass and some other doctors, filed (at the district court’s request) a status report. It advised the court of Drs. Kapila and Kaufman’s sex reassignment surgery recommendation for Kosilek. Dr. Appelbaum also said he had advised the DOC of the doctors’ recommendation and had informed them he was unaware of any medical reason why Kosilek should not receive the surgery. The court responded with an April 25, 2005 order directing the DOC to provide a report addressing potential security concerns should Kosilek undergo the surgery. It also directed the DOC to indicate whether it was going to provide Kosilek with the surgery recommended by the Fenway Center doctors. A few days later, on April 28, 2005, the DOC responded to the UMass status report. The letter was penned by Susan Martin (recall she was the DOC Director of Health Services) and sent to Dr. Ap-pelbaum and UMass’s Medical Director, Arthur Brewer, M.D. (also a defendant). Dennehy and other DOC officials were copied. Martin maligned Dr. Appelbaum’s status report, asserting that the DOC did not consider it an adequate review of the Fenway Report or a clear explanation of UMass’s recommendation. Martin requested that the UMass doctors make clear whether they thought Kosilek should be operated on. She also wanted answers to various questions relating to, among other things, the surgery’s logistics, such as who would perform it, the recovery process, and the success rate. Drs. Appelbaum and Brewer, in a May 10, 2005 response letter to the DOC, clarified their stance on the Fenway Report. As they explained, UMass deferred to the Fenway Center and stood behind the doctors’ sex reassignment surgery recommendation for Kosilek. They were aware of no mental health barriers to Kosilek being operated on and the next step was finding a surgeon. It appeared there were no physicians in Massachusetts who could perform the surgery, so some out-of-state practitioners were suggested. The doctors also offered to look into the logistics of providing the surgery. In the interim, Osborne completed her review of the Fenway Report. She chronicled her findings in a report dated May 20, 2005, which she sent to the DOC. It began with the caveat that Osborne had not conducted a clinical evaluation of Kosi-lek and her report was based solely on her review of the Fenway Report and some of the other evaluations of Kosilek. Though she did not doubt Kosilek met the criteria for gender identity disorder, Osborne went on to lodge numerous criticisms against Drs. Kapila and Kaufman’s approach. First, Osborne disparaged the Fenway Report for not addressing the issue of whether Kosilek was suffering from any personality disorders. She opined that “[c]larity regarding the presence, absence, nature and severity” of any personality disorder, especially given that clinicians had at one point diagnosed Kosilek with antisocial personality disorder, was critical because its presence could complicate a gender identity disorder diagnosis. Osborne also argued that threats of suicide and self-harm signal serious mental illness apart from gender identity disorder, which demands treatment and, in fact, counsels against providing sex reassignment surgery. She thought the Fenway Report had given short shrift to this issue. Osborne then turned her focus to the Standards of Care, expressing her concerns that they did not translate well into a prison environment. She wrote: “In my view, providing surgery, or even hormones, to incarcerated individuals, is an undeniable lowering of the Standards, and an explicit violation of the criteria regarding sociopathy and suicidality.” While Osborne recognized the Standards of Care as helpful, she noted they had no regulatory authority. Also, there was no universal consensus in the psychiatric community about what constituted medical necessity in the treatment of gender identity disorder. She criticized the Fenway Report for failing to address other possible treatment options for Kosilek or to provide an adequate explanation for its surgery recommendation. Kosilek, in Osborne’s eyes, had an unrealistic expectation that she was owed certain treatments and Kosilek would instead benefit from a thorough assessment for psychiatric disorders and treatment designed to address any such disorders along with her gender identity disorder. On May 25, 2005, the back and forth between the DOC and UMass continued. Martin sent Drs. Appelbaum and Brewer another criticism-laced letter. While the doctors had answered some of the DOC’s questions, they had not provided a comprehensive review of the appropriateness or necessity of surgery for Kosilek. Citing the DOC’s Eighth Amendment obligations, Martin lamented that neither UMass nor the Fenway Report had offered guidance on whether surgery was “a medical necessity for Kosilek.” Finally, Martin informed them of the DOC’s engagement of Osborne to review the Fenway Report and enclosed a copy of Osborne’s report. Martin asked UMass to review the report and give the DOC its ultimate recommendation as to the appropriateness of surgery for Kosilek. The same day Martin fired off her letter, a news piece, which was highly negative toward Kosilek and her quest for surgery, appeared on a local television station. Commissioner Dennehy had been interviewed for the piece on May 16, and one of her comments made it on air. A Massachusetts state senator, who had filed legislation seeking to prohibit the state from paying for sex reassignment surgery for inmates, also spoke to the reporter. “When you go to prison you lose some rights. You also lose your rights to get a sex change operation,” he stated. The senator, who was an acquaintance of Den-nehy, had called Dennehy on her cell phone to advise her that he would be participating in the news piece. The piece concluded with the reporter indicating: “Later this week, the state will tell the federal court that sex surgery for Michelle Kosilek would result in a security nightmare.” Despite the security concerns the DOC expressed to the media, Dennehy and her staff had yet (as of the time she was interviewed) to officially convene to conduct their internal security review. Not until May'19, three days after her interview, did they actually meet. In attendance were Dennehy, DOC counsel, Superintendent Spencer of MCI-Norfolk, and Superintendent Lynne Bissonnette of MCI-Framingham, the women’s prison where Kosilek might be sent were she to undergo surgery. Dennehy did not have the benefit of written reports from Spencer or Bissonnette, despite DOC policy calling for the superintendents to make such recommendations, because (as Dennehy later testified) the security concerns seemed self-evident. On June 10, 2005, the DOC brought the court back into the loop, finally filing the status report which the court had ordered back on April 25. The DOC informed Judge Wolf it had decided not to provide Kosilek with sex reassignment surgery. In support of its decision, the DOC attached Osborne’s report. It also attached the court-ordered security report, which was principally authored, by DOC attorneys with input from Dennehy. The security report, which said it was based on Dennehy’s thirty years of correctional knowledge and experience, as well as the experience of colleagues she had spoken with, stated the following. Allowing the surgery to go forward “would create substantial safety and security problems for DOC.” She claimed that out-of-state surgery, which appeared to be the only option based on a dearth of doctors in Massachusetts, would cause “complex security and logistical issues” and might give Kosilek a chance to escape custody. Kosi-lek’s post-surgery confinement was also a cause for concern. Dennehy argued Kosi-lek would be at risk for sexual assault if she were to remain in a male prison, and housing her in a female prison would come with its own host of problems. Specifically, Dennehy anticipated “serious climate issues” since the majority of the women at MCI-Framingham had histories of trauma and it was well known that Kosilek had killed her wife. The women might pose a threat to Kosilek and vice versa. Kosilek would need to be isolated and restrictively confined in either prison and this, Dennehy concluded, might be deleterious to Kosi-lek’s mental health. Citing these concerns, along with what she perceived as an unclear stance from UMass on whether surgery was necessary, and given Osborne’s critiques of the Fenway Report, Dennehy indicated that the DOC was denying Kosilek’s request for surgery. After the status report was filed with the court, the DOC and UMass continued to clash over what the DOC perceived to be UMass’s equivocations. Drs. Appelb-aum and Brewer directed a June 14, 2005 letter at the DOC. Calling the DOC’s statements in its previous letters and status report “disingenuous,” the doctors emphasized that it was not within then-purview to decide whether surgery is medically necessary for Kosilek as that term is contemplated by the Eighth Amendment. UMass, they explained, had consistently relied on the expertise of outside consultants, all of whom had said the same thing. The doctors again underlined that solely from a clinical perspective it appeared that Kosilek should be offered surgery. On October 7, 2005, Drs. Kapila and Kaufman prepared and issued another report, this one a response to Osborne’s critiques of their Fenway Report, which they sent to UMass and which UMass passed on to the DOC. Citing medical literature and studies, the doctors took aim at Osborne’s criticisms, explaining why her challenges to their recommendation for surgery were clinically unfounded or irrelevant. The report also argued that Kosi-lek was stable, not currently suicidal, and a good candidate for surgery. The doctors strenuously insisted that their recommendation of surgery was an informed clinical judgment rooted in Kosilek’s gender identity disorder diagnosis, her marked mental health improvement since being provided hormones and being allowed to live as a woman, and the well-documented effectiveness of surgery. The doctors reiterated their recommendation that Kosilek be provided with the surgery. Dr. Appelbaum submitted this report to the DOC on October 17, 2005, restating UMass’s endorsement of the original Fenway Report’s recommendations and requesting that the DOC issue a decision approving those recommendations. As to the status of Kosilek’s lawsuit, as of July 2005, Kosilek had let all the medical provider defendants (Drs. Appelbaum and Brewer, and UMass, among others) out of the case. That same month she filed an amended complaint, this time with the benefit of an attorney, with Dennehy as the sole named defendant. Kosilek no longer sought damages, she only requested injunctive relief requiring the DOC to provide her with adequate medical care, including sex reassignment surgery. The case went to trial a little less than a year later. F. The Kosilek II Trial 1. Round One of Testimony The non-jury trial, which like Kosilek I was presided over by Judge Wolf (by then Chief Judge), began on May 30, 2006. Testimony initially went until the end of June, with multiple witnesses testifying. First the court heard from George Brown, M.D., a practicing psychiatrist who helped author the Standards of Care, and who testified as an expert on Kosilek’s behalf (he also testified in Kosilek I). As he had done back in 2001, Dr. Brown evaluated Kosilek and reviewed her medical records. He prepared a written report, and in it diagnosed Kosilek with chronic and severe gender identity disorder. He did not think she met the criteria for antisocial personality disorder. Dr. Brown also did not think Kosilek was trying to game the system, writing that he was “hard pressed to develop a rational explanation for why someone would work so fervently to obtain this serious, painful surgery” other than as a means to treat gender identity disorder. Dr. Brown also opined that Kosilek had met or exceeded the readiness criteria for sex reassignment surgery. Among other things, she had completed a more than two-year monitored, real-life experience living as a woman while incarcerated. Further, he wrote, Kosilek had “received an unambiguous diagnosis of severe gender identity disorder from no fewer than nine mental health professionals who have interviewed her, many of whom are recognized international experts in the field of gender identity disorder.” Dr. Brown stressed, “[n]o further treatment or real-life experience is necessary,” and Kosilek should receive the surgery, which Dr. Brown deemed “medically necessary.” Hammering the point home, Dr. Brown testified, consistent with his written report, that the hormones and psychotherapy Kosilek was receiving, though they had helped relieve her dysphoria, were “[a]bso-lutely not” sufficient to eliminate the serious risk of harm Kosilek faced, up to and including suicide. When asked whether sex reassignment surgery was medically necessary, Dr. Brown stated: “Absolutely. If I can walk away from these proceedings with one point being clear in people’s minds, it’s that.” Without surgery, he added, “the degree of likelihood of [Kosi-lek] suffering serious medical consequences up to and including suicide are exceedingly high.” As for antidepressants, they are for the treatment of patients with major depressive disorder, which Dr. Brown stressed Kosilek did not have. With regards to gender identity disorder, such antidepressant medications had been shown to be “very ineffective” as they might only slightly relieve some depressive symptoms but would not treat the underlying gender identity disorder. Only surgery, Dr. Brown testified, had the “significant potential” to cure Kosilek’s medical condition. Next came Dr. Kenneth Appelbaum’s testimony. The Fenway Center doctors, he said, had significant experience in the area of gender identity disorder and were well-trained, credentialed, and knowledgeable. He thought their assessments were typically reasonable and consistent with the approaches followed by most other medical providers. In general, Dr. Ap-pelbaum did not see why the DOC would need to consult with Osborne (an out-of-state, master’s-level social worker) given that it had already received the recommendations of the Fenway Center doctors (a local physician and. doctoral psychologist), who were, in Dr. Appelbaum’s mind, highly experienced in dealing with gender identity disorder. As- for Osborne, Dr. Appelb-aum recalled that the DOC’s Hughes had commented that she would be more sensitive to the DOC’s concerns because she did not believe sex reassignment surgery was appropriate in the corrections setting. Finally, Dr. Appelbaum testified that from his conversations with Kosilek’s treatment team at the prison, it was his understanding Kosilek had shown good adjustment being on hormones and receiving therapy. Dr. Randi Kaufman from the Fenway Center then took the stand. She reiterated the conclusion she made in her report, in particular that Kosilek had successfully completed the real-life experience contemplated by the Standárds of Care. She also testified that, to a reasonable degree of medical certainty, there was a “very high likelihood” Kosilek would attempt suicide if denied treatment for her gender identity disorder. Though Kosilek benefitted from being on hormones, Dr. Kaufman felt Kosi-lek had a level of gender identity disorder that could not be treated with anything less than surgery. “She’s done all the things that people do to change their gender presentation,” she said, and “[t]here really isn’t anything left except for surgery.” Kosilek had a medical need for the surgery. Mark Burrowes, a licensed mental health counselor with a master’s degree in. counseling psychology, who had been treating Kosilek for four or five years, also testified. Kosilek, he agreed, was ready for sex reassignment surgery. Not having the surgery would be detrimental and could result in Kosilek making an attempt on her life. Suicide monitoring would not be an adequate alternative to surgery since Kosilek’s male genitalia still caused her distress. Finally, Michelle Kosilek was called by her attorneys. She spoke about her life at MCI-Norfolk. Generally she got along quite well with most of the people there, though a small percentage of the correction officers gave her a hard time. Kosilek had, since she got to prison, worked on a daily basis. She testified that the hormone treatments had made her a little less depressed but she continued to feel distress over her body. Kosilek, who said she was not currently suicidal, felt the hormones were not enough and she needed surgery. She did not want to continue living with her male genitalia and, if denied surgery, antidepressants and psychotherapy would not help matters. The DOC then put on its case. First, Chester Schmidt, M.D., a psychiatrist at the Johns Hopkins School of Medicine, and associate director of the Johns Hopkins Center for Sexual Health and Medicine, testified as an expert for the DOC. He became involved in this case through his connection with Cynthia Osborne. As to his general approach for treating patients with gender identity disorder, Dr. Schmidt stated he does utilize the Standards of Care but thinks of them more as protocols or guidelines, as opposed to actual standards of care. He does not agree with the idea, set forth in the Standards of Care, that sex reassignment surgery is medically necessary in patients with severe gender identity disorder. In fact, Dr. Schmidt did not recall ever seeing a case where he thought surgery was medically necessary. It was his and his Johns Hopkins colleagues’ practice to neither advocate nor speak against a patient’s desire for surgery, but to leave it in the hands of the patient. He would not send a letter of recommendation to a surgeon on behalf of a patient, but he would release his file to the surgeon and simply indicate he saw no contraindications to surgery. After giving his general overview, Dr. Schmidt turned his focus to Kosilek, whom he had personally evaluated in November 2005. Kosilek did meet the criteria for gender identity disorder, he concluded. However, Dr. Schmidt did not believe surgery was medically necessary as Kosilek, he theorized, had made an “excellent adaptation” without surgery thus far. He also felt the real-life experience contemplated in the Standards of Care was virtually impossible to replicate in prison. But besides this barrier, Dr. Schmidt admitted he did not see any contraindications to surgery. Should Kosilek become depressed if she did not receive the surgery, Dr. Schmidt thought she could be treated with antidepressants and psychotherapy, and managed in a medical facility should her suicidal desires become severe. This latter scenario was a possibility, as Dr. Schmidt recognized Kosilek’s risk of suicide based on what she had said and done in the past. But, Dr. Schmidt opined, psychotherapy and medications could effectively reduce Kosilek’s dysphoria to a level where she was no longer at risk for serious harm. Next Cynthia Osborne, the Johns Hopkins social worker and DOC consultant, gave testimony echoing Dr. Schmidt. By the time of trial, she had met with and interviewed Kosilek. Osborne agreed with Kosilek’s severe gender identity disorder diagnosis. Yet, like Dr. Schmidt, in general, she did not believe the real-life experience called for by the Standards of Care could happen in a prison environment. Also, Kosilek was not, in her opinion, a good candidate for sex reassignment surgery, nor was it medically necessary, because Kosilek had responded very well to hormone treatment. Rather, Osborne thought support groups or group therapy could be used to treat Kosilek effectively. Kosilek’s threats of suicide if denied surgery did not change Osborne’s mind on what treatment was warranted. Indeed, she minimized concerns about suicide by noting that any good mental health system would know how to deal with a patient’s suicidality. Osborne, again like Dr. Schmidt, did not fully agree with the Standards of Care’s statement that sex reassignment surgery is medically necessary in cases of severe gender identity disorder. Luis Spencer, then still Superintendent of MCI-Norfolk, also testified for the DOC. He explained the set-up at MCI-Norfolk, describing it as having one of the more secure perimeters in Massachusetts. It is surrounded by walls on all sides, an electrified fence, and guard towers which are manned twenty-four hours a day, seven days a week. Approximately one-third of the inmates at MCI-Norfolk, Spencer explained, are serving a life sentence and one-third have committed sexual felonies. Spencer also testified about Kosilek. She had adjusted fairly well to life at MCI-Norfolk and had not reported any threats or harassment from other inmates. As of the time of trial, no security concerns involving Kosilek had arisen; however, Spencer had some apprehension going forward should Kosilek receive the surgery. He would have “grave concerns” putting Kosilek back in the general population with the full anatomy of a female. Spencer worried that she could be raped or assaulted and he saw no alternative but to house her in the high-security Special Management Unit. This unit was a standalone secure building where Kosilek would remain in her cell twenty-three hours a day and could only leave when shackled and escorted by two guards. The questioning also briefly touched on Kosi-lek’s threats of suicide were she .not to receive the surgery. Spencer said his policy is not to negotiate with inmates who threaten suicide, as to do so would undermine his and the staff’s authority. Rather, he would implement the DOC’s mental health policy and take the appropriate steps to guard a suicidal inmate’s safety. Gregory Hughes, who was the DOC’s Director of Mental Health and Substance Abuse Services until 2005, and who holds a master’s degree in social work, was questioned next. Hughes testified about the aftermath of Kosilek I and the DOC’s efforts to comply with the court’s decision. His role included overseeing and facilitating the services supplied to Kosilek, and in particular making happen the independent evaluation Judge Wolf ordered in Kosilek I. He testified about his dissatisfaction with the Fenway Report, questioning its thoroughness and its heavy reliance on Kosilek’s self-reporting. He was concerned that the doctors had not reviewed any of Kosilek’s medical records or mental health history or interviewed other people to verify Kosilek’s self-reports. And while Hughes knew the- doctors suggested surgery, he said he was uncertain about whether there were other recommendations and what next step the DOC should take. Because he was concerned with the Fenway Report’s quality, Hughes had decided to contact Osborne. Hughes also testified that he reported his concerns about the report to Drs. Appelbaum and Brewer and that the DOC sought their thoughts during staff meetings. Hughes recalled the doctors saying there were no contraindications to surgery but did not believe they used the term “medically necessary.” Robert Dumond, who was the Director of the DOC’s Research and Planning Division, and who had previously provided mental health screenings at MCI-Fram-ingham, testified on the DOC’s behalf. Dumond, who had a master’s degree in psychology and experience in the areas of victimization and sexual assault in the prison system, was asked by the DOC to consider the risk factors for post-operative individuals in prison. Placing Kosilek at MCI-Framingham post-surgery, he responded, could “destabilize[ ] the safety and security of the institution” and create a risk for Kosilek to become a victim or victimizer. Arthur Beeler was also called by the DOC to testify about security issues. Beeler, a thirty-year employee with the Federal Bureau of Prisons, was warden at the Federal Correction Complex, Federal Medical Center in Butner, North Carolina (the record refers to Buckner, North Carolina; however, the correct name of the town is Butner). Beeler toured MCI-Norfolk and MCI-Framingham, spoke with Superintendent Spencer, and reviewed the DOC’s mental health policies in preparation for his testimony. In his opinion, Kosilek was currently safe and secure at MCI-Norfolk, based in part on the set-up of the facilities and her cell and the fact that Kosilek had never been assaulted there. Beeler indicated that he “would be very concerned” about placing Kosilek in the women’s general population at MCI-Framingham and was satisfied that the mental health procedure at MCI-Norfolk was sufficient to address inmate suicide ideation and behavior. Beeler cautioned against giving in to an inmate’s threats of suicide, likening it to opening Pandora’s box. Beeler was not permitted to testify specifically about whether security concerns should preclude Kosilek from getting surgery because, the court found, he was not sufficiently informed about “the facts concerning Kosilek” because Beeler had not looked at her disciplinary or medical records. Susan Martin, the DOC’s Director of Health Services during the relevant time period, was next up. After speaking some about the contractual relationship between the DOC and UMass, Martin turned to the Fenway Center’s evaluation of Kosilek. Like Hughes, she was not satisfied with the evaluation. Martin did not think the Fenway Report was very thorough and she raised this concern to UMass at the time. Though Martin knew the Fenway Center doctors were recommending surgery, she did not think they were clear enough about what exactly needed to happen and when. Because of these perceived omissions, Martin decided to have Osborne review the report. When asked about UMass’s role, Martin indicated she thought it was UMass’s job to determine whether the Fenway Center’s recommendations “were medically necessary and clinically sound,” and UMass, she said, would not do this. She considered it UMass’s responsibility to find a surgeon, and simply providing the DOC with a list of possible surgeons was not sufficient. Next came DOC Commissioner Kathleen Dennehy’s testimony. If faced with a court order compelling the DOC to provide Kosilek with sex reassignment surgery, Dennehy said she would probably retire before implementing something she considered unsafe. And based “strictly [on] safety and security concerns” she said she would still veto the surgery even if UMass told her it was medically necessary and even if Kosilek would likely attempt suicide if denied the surgery. (Dennehy claimed she was still awaiting clear direction from UMass.) When asked, Dennehy acknowledged her awareness of the negative public attention that Kosilek’s bid had been receiving. She admitted she knew that a Massachusetts senator, who she was friendly with and who had spoken in the news piece, vocally opposed sex reassignment surgery for inmates and was pushing for legislation to put a stop to its provision. She also said she knew of the Massachusetts Lieutenant Governor’s opposition to surgery for transgender inmates. Finally, Lynne Bissonnette, Superintendent of MCI-Framingham, was called upon to discuss the feasibility of Kosilek’s post-operative placement there. She explained the set-up at MCI-Framingham. The women lived in multi-person rooms or dormitory-style housing units, with the exception of the women in the segregation or medical units who had single cells. For the most part the buildings at MCI-Fram-ingham were surrounded by a single, non-electrified twelve-foot-high fence. There had been, Bissonnette indicated, no prisoner escapes during her three-year tenure at Framingham. As for the population at the facility, according to Bissonnette, a large majority of the women there had been victims of domestic violence or sexual assault. Also, a majority had mental health issues with about a half receiving medication for those issues. Bissonnette stated that if a woman could not effectively be maintained by the mental health professionals at the prison, she was sent for inpatient treatment at a Massachusetts Department of Mental Health facility, where security was not the equivalent of what was provided at the prison. And whereas Massachusetts provides a special secure hospital for male prisoners, Bridgewater State Hospital, she explained that no comparative facility exists for women. Bissonnette’s testimony then turned to Kosilek specifically, whose criminal record she had reviewed. Bissonnette did not think Kosilek was an appropriate candidate to be housed at MCI-Framingham post-operatively and noted several concerns. First, Bissonnette considered Kosi-lek a flight risk based on the weak perimeter at MCI-Framingham, the length of Kosilek’s sentence, and the fact that Kosi-lek had fled Massachusetts after killing her wife. Second, Bissonnette worried about the lack of available inpatient mental health care. Kosilek would have to be sent to a less secure hospital for the general public should she require care. Third, Bissonnette considered Kosilek both a potential predator and victim within the inmate population — a predator because Kosi-lek had strangled her wife and a victim because a large proportion of MCI-Fram-ingham’s population had been the victims of domestic violence and sexual abuse and might seek to harm her. Further, and for essentially those same reasons, Bisson-nette felt Kosilek would have a negative effect on the prison population. In light of all of these concerns, were Bissonnette required to house Kosilek, she would put her in the Close Custody Unit, the single cell segregation unit, where inmates cannot hold any employment and are placed in restraints whenever they leave the cell. Since Kosilek is serving a life sentence, Bissonnette expressed concern that housing her in an environment this restrictive for such an extended period of time would have a negative impact on Kosilek’s mental health. On cross-examination Bissonnette made a few concessions. She agreed that MCI-Framingham currently houses approximately forty offenders who are serving life sentences for murder. Further, the institution houses in the general population inmates who are convicted of heinous crimes against children alongside prisoners who are mothers. Bissonnette explained that if inmates are perceived to experience trauma based on the presence of other inmates, there are policies and procedures in place to follow (such as simply ordering a cell transfer) and the mental health and security staff would respond appropriately. Though Bissonnette again acknowledged Kosilek could be housed in the Close Custody Unit safely, she persisted that this was not the “best setting for any inmate over a long period of time.” 2. Responses to the First Round of Testimony After the first bout of testimony, which concluded at the end of June 2006, Judge Wolf then directed the UMass doctors to review Dr. Schmidt’s testimony and to inform the court whether the latter’s proposed approach was within prudent professional standards. Drs. Appelbaum and Brewer responded in a report filed with the court on September 18, 2006. They continued to endorse the Fenway Center doctors’ conclusion that Kosilek had a serious medical need requiring surgery. In their opinion, Dr. Schmidt’s proposed alternative course of psychotherapy, medication, and suicide watch fell “outside the bounds of acceptable professional standards” and would not constitute “adequate medical care.” Such interventions would “likely do little” to reduce Kosilek’s dys-phoria or the risk of harm to her. Only surgery, they concluded, could do this, and there was “no good clinical reason to withhold that treatment at this time.” The judge also ordered Dennehy to review the evidence presented at trial and decide whether the DOC would reverse its position on surgery for Kosilek. After doing so, Dennehy indicated to the court that Drs. Appelbaum’s and Brewer’s testimony confirmed what she suspected (but apparently did not previously find clear): that the doctors believed surgery was medically necessary. Dennehy stood firm though; she advised Judge Wolf that her decision not to allow sex reassignment surgery for Kosilek remained. Her safety and security concerns with providing surgery, which Dennehy called “alarming and substantial,” had not changed. 3. Second Round of Testimony Testimony resumed in early October 2006, with various witnesses taking and retaking the stand. First came Dr. Appelb-aum, who emphasized several points. Ko-silek had a serious medical need because there was a serious risk of harm if she was not adequately treated; and he had informed Dennehy of this. Antidepressants were unlikely to effectively treat Kosilek because the source of her distress was her gender identity disorder and medication would not target this underlying condition. Rather, surgery, he explained, was the “recognized and appropriate treatment” and the only treatment “likely to significantly relieve, if not eliminate Miss Kosi-lek’s distress.” Dr. Kevin Kapila from the Fenway Center also spoke. He called Kosilek’s gender identity disorder “one of the more severe cases” he had ever seen and he testified about the report he and Dr. Kaufman had written. In his opinion, Kosilek had a serious medical need and there was a substantial risk of harm if she was not treated with surgery. Dr. Kapila also testified that he thought Dr. Schmidt’s recommendation was unreasonable. Specifically, Dr. Kapila (who had reviewed Dr. Schmidt’s testimony) opined to a reasonable degree of medical certainty that Dr. Schmidt’s plan to treat Kosilek with psychotherapy and medication was inadequate. Pointing to his own evaluation of Kosilek after she had been receiving psychotherapy and hormones for seventeen months, Dr. Kapila noted her symptoms had still not resolved; “she still was dealing with discomfort around having male genitalia.” Dr. Schmidt’s approach would not deal with this core problem — only surgery could— and, Dr. Kapila continued, one tries to treat the problem, not merely the symptoms. Dr. Kaufman then got recalled. While she agreed Kosilek’s dysphoria had improved as a result of receiving hormone treatments and gender-appropriate items and clothing, Dr. Kaufman persisted in opining that Kosilek still had a serious medical need and if she did not receive surgery there was a substantial risk of serious harm. Despite all the treatment Kosilek had received, she still continued to experience severe dysphoria. Like Dr. Kapila, Dr. Kaufman did not think the treatment advocated by Dr. Schmidt was adequate. It is important to distinguish between depression and dysphoria, she said, and Dr. Schmidt’s treatment would not sufficiently address the latter. UMass’s Medical Director, Dr. Arthur Brewer, was up next. He had little to add to the testimony of the other medical providers because, as medical director, he was not involved in UMass’s mental health program and had no role in Kosilek’s treatment. His position remained the same as in his and Dr. Appelbaum’s September 18, 2006 letter, which supported the Fenway Center doctors and criticized Dr. Schmidt’s approach. Judge Wolf then again heard from Commissioner Dennehy. She accepted that Kosilek had a serious medical need but said she had previously been confused about whether surgery was medically necessary. While she had now “deduced” UMass’s opinion on the appropriateness of surgery for Kosilek, she had not changed her thoughts on the security and safety concerns related to providing such surgery. Absent these concerns, Dennehy agreed she would have no reason to interfere with any medical order for treatment. The court questioned Dennehy about her awareness of any publicity surrounding Kosilek’s case. Dennehy was generally aware of a couple of articles appearing in the Boston papers and admitted skimming one. She also knew about an article on a national news media website. In general she tried not to read newspaper articles that involved her and she never thought about what the public and political reaction would be if the DOC allowed Ko-silek to have surgery. 4. The Court-Appointed Expert After hearing all the witnesses each side wished to present, Judge Wolf decided to appoint an expert in order to help him decide whether the care proposed by Dr. Schmidt was objectively adequate. See Fed.R.Evid. 706 (providing that the court may on its own initiative appoint an expert). After soliciting the parties’ thoughts on who to appoint, Judge Wolf selected Stephen Levine, M.D., on October 31, 2006. Dr. Levine practiced at the Center for Marital and Sexual Health in Ohio and was a clinical professor of psychiatry at Case Western Reserve University School of Medicine. The court informed Dr. Levine that Kosilek had been living as a woman in prison and instructed him to treat this case as if Kosilek were just another patient out in free society, without all the issues attendant to her being incarcerated. A month later, Dr. Levine, who did not interview Kosilek, issued a written report. Commenting on the views held by Drs. Brown and Schmidt, he noted they “reflect the current polarities within psychiatry” with each of their respective positions having merit. He wrote that “Dr. Schmidt’s view, however unpopular and uncompas-sionate in the eyes of some experts in GID, is within prudent professional community standards.” In addition to submitting his report, Dr. Levine also testified on December 19, 2006. At first, he reiterated that the treatment recommended by Dr. Schmidt, though perhaps not popular, was within prudent professional standards. He thought Kosilek had obtained a good amount of relief from being on hormones and dressing as a woman and was probably as feminine as she was going to be; surgery would be “icing on the cake” he said. Dr. Levine, like Dr. Schmidt, stopped short of saying that Kosilek would try to kill herself if she was denied surgery. He thought it was just a possibility and Kosilek’s impulse could perhaps change over time. And, he added, even if Kosilek received the surgery, it was possible that, having nothing left to fight for, she could still experience an emotional crisis and contemplate suicide. In general, Dr. Levine had criticisms of both Dr. Schmidt’s and Dr. Brown’s reports, but he thought they were both reasonable. During questioning by Judge Wolf, it seemed Dr. Levine had not followed some of the court’s directives about not taking into account the fact that Kosilek was in prison. Presuming Kosilek would never be free, Dr. Levine did agree Kosilek had lived a real-life experience as a woman in prison. He also believed she essentially met all the eligibility and readiness requirements for surgery under the Standards of Care. Dr. Levine opined that providing Kosilek with surgery, assuming she had met the real-life experience requirement, would be consistent with prudent professional practice. And although Dr. Levine had earlier in his testimony found Dr. Schmidt’s approach to be prudent, he clarified that putting aside issues such as cost and security, it would not be within prudent professional standards to deny Kosilek surgery. After hearing Dr. Levine’s testimony, the court asked the UMass doctors to prepare a written letter indicating what treatment the DOC would propose as a possible alternative to surgery. In a letter filed with the court on February 22, 2007, Dr. Brewer indicated that, after consulting with Drs. Kapila and Kaufman, he felt that, if denied surgery, Kosilek should receive psychotherapy and should continue to receive hormones and feminine clothes and items. However, Dr. Brewer hastened to add what Drs. Kapila and Kaufman had repeatedly advised him: such treatment was “likely going to be ineffective to relieve Ms. Kosilek’s distress and may well result in self harm or suicide.” 5. Third Round of Testimony Trial picked back up on March 15, 2007, with Kosilek again calling Dr. Kaufman, as well as an additional witness, Dr. Marshall Forstein of Harvard Medical School and the Cambridge Health Alliance. Dr. Forstein, who had evaluated Kosilek on behalf of the DOC around the time of Kosilek I (and testified in that trial), evaluated Kosilek again in 2005. Kosilek called on Dr. Forstein to address whether surgery was appropriate and if psychotherapy would be a reasonable alternative to surgery. Sex reassignment surgery, Dr. For-stein opined, was the only reasonable treatment for Kosilek for preventing the potential for self-mu