In a major new ruling, US District Court Chief Judge Mark Wolf has ordered that Massachusetts must pay for the sex reassignment surgery of Michelle Kosilek, who was convicted of murdering his wife. The opinion in Kosilek v. Spencer, 2012 U.S. Dist. LEXIS 124758, contains a long and detailed analysis by Judge Mark Wolf of the United States District Court for the District of Massachusetts. It also contains a stinging finding of untruthful testimony by Commissioner of the Massachusetts Department of Corrections Kathleen Dennehy. Michele Kosilek was originally Robert Kosilek (shown here after killing his wife Cheryl Kosilek in 1990).
Kosilek challenged the refusal of the Commissioner of the Massachusetts Department of Corrections to provide him with sex reassignment surgery to treat his major mental illness, severe gender identity disorder. He had previously tried to castrate himself and twice attempted suicide.
What has not been widely reported in the press is that the DOC admitted that the surgery was necessary and medically sound.
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. 2 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.
Wolf explained that sex reassignment surgery has also been found as medically necessary by the federal government and the denial of such surgery found to violate the rights of prisoners by the United States Court of Appeals for the Seventh Circuit. See Fields v. Smith, 653 F.3d 550, 556 (7th Cir. 2011).
With the concession of the state, the case turned on an unsupported and undefined security fear by the DOC. Also working in the favor of Kosilek was a prior trial and ruling in his favor in the district court on the underlying facts — facts given great deference on appeal.
Then there was the court’s view of the lack of truthfulness by the Commissioner Dennehy:
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 [*21] 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.
The 129-page ruling details a largely uncontested factual record, replete with expert medical and psychiatric experts on the basis for the surgery. It is without question the most detailed analysis on this question that I have read. Wolf concludes:
In summary, the court is persuaded that the decision to deny Kosilek sex reassignment surgery is not the result of a good faith balancing judgment and is not reasonable. See Battista, 645 F.3d at 454. Rather, that decision was based on fear of criticism and controversy, articulated at times as a concern about cost to the taxpayer. Neither cost nor fear of controversy is a legitimate penological objective. This court may not defer to the defendant’s decision to deny Kosilek sex reassignment surgery because deference does not extend to “actions taken in bad faith and for no legitimate purpose.” Whitley, 475 U.S. at 322; see also Battista, 645 F.3d at 454. Because there is no penological justification for denying Kosilek the treatment prescribed for him, he is now being [*156] subject to the “unnecessary and wanton infliction of pain” prohibited by the Eighth Amendment. Hope, 536 U.S. at 737 (internal quotation omitted); see also White, 849 F.2d at 325. Therefore, Kosilek has proven that, as in Battista, the DOC has violated the Eighth Amendment by being deliberatively indifferent to his serious medical need. 645 F.3d at 455.
What do you think?
The thought of our legal system entertaining the possibility of granting a gender sex change for this inmate on tax payer’s money is extremely disturbing. This person has been incarcerated for murder. It appears that only AFTER this person was in prison did he claim a gender disorder. It appears that he originally claimed self-defense in a domestic argument, in which he experienced hot tea spilled on his genitals and ultimately, strangled his wife.
As far as I am concerned, the only mental health problem this individual has is the guilt of sinful killing of another human being. Let him take that guilt up with his higher power. He claims he will commit suicide if he does not receive a sex change. How far is the legal system going to allow his threat of suicide to obtain whatever else he will want while serving a life sentence for murder. Every time an inmate cries anxiety and depression, we tax payers should pay for his wants and wills? He gave up his freedom of want and will the day he murdered another human being.
Our Nations’ government (and politicians) can write laws and lobby for abortion rights, gay marriages, and demand Obama healthcare, but these same policy makers cannot write a law on elective surgery for prison inmates that cost tax payers thousands of dollars? Who is paying for this dude’s defense attorney? How does an inmate afford legal counsel on this matter short of more tax payer dollars? What attorney even thinks this is right?
I am a woman that has to shave the hair on my body and/or look for every product on the market to remove hair from my body. Will the Federal Government please set aside billions of dollars for us hairy women to subsidize our hair removal costs.
The Court should never have approved female hormone therapy for this inmate to begin with. This dude (who was born and identified at birth as a male) who entered into marriage with a woman and bore a child and then killed his wife, needs deeper psychiatrist therapy, rather than giving into his woes of a sex change surgery.
Send him to a mental health hospital for a while, and return him to jail for the crime he committed… murder.
valeriekeefe 1, September 8, 2012 at 1:11 pm
Because I refuse to stand on someone’s corpse to make cheap political points? Classy. And why would the police care? Because I don’t share your attitude that one piece of True Crime (TM) committed by someone whose motives are still not entirely clear but still, obviously wrong is more worthy of displays of false outrage than someone who kills, by pretending not to know, to improve his company’s share price by three cents? That’s a level of cynicism I would only have ascribed to Noam Chomsky.
It is maudlin to make the leap from me not feeling any particular anger over this death in relation to other deaths, though clearly here, we have an offender who should be and is locked away… problem solved… to what you’re implying. But again, I’m not drawn to displays of false heroism.
And that goes right as well as left. At the same time, I’m arguing with certain unidirectionalist-feminists that yes, premeditated murder is worse than rape. I did not think I would find someone who took the contrary position, but there it is. I remain interested in saving the maximum amount of lives and creating the greatest amount of utility.
You go ahead and stand on someone who can’t speak to make your voice heard, have the last word, unless you decide to crow that I ran away, in which case I’ll respond to whatever ad homonym argument is flung forth.
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I’m not convinced you’re dangerous, but I think you might be.
valeriekeefe 1, September 7, 2012 at 10:25 pm
Nothing’s bringing Cheryl back… so yes, you’re completely right that this classical conservative is not moved to displays of false heroic outrage over her long-cold corpse. It’ll do no good beyond making someone rubbing gravel through their hair look good.
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Go away. The cops need to find out who you are.
Because I refuse to stand on someone’s corpse to make cheap political points? Classy. And why would the police care? Because I don’t share your attitude that one piece of True Crime (TM) committed by someone whose motives are still not entirely clear but still, obviously wrong is more worthy of displays of false outrage than someone who kills, by pretending not to know, to improve his company’s share price by three cents? That’s a level of cynicism I would only have ascribed to Noam Chomsky.
It is maudlin to make the leap from me not feeling any particular anger over this death in relation to other deaths, though clearly here, we have an offender who should be and is locked away… problem solved… to what you’re implying. But again, I’m not drawn to displays of false heroism.
And that goes right as well as left. At the same time, I’m arguing with certain unidirectionalist-feminists that yes, premeditated murder is worse than rape. I did not think I would find someone who took the contrary position, but there it is. I remain interested in saving the maximum amount of lives and creating the greatest amount of utility.
You go ahead and stand on someone who can’t speak to make your voice heard, have the last word, unless you decide to crow that I ran away, in which case I’ll respond to whatever ad homonym argument is flung forth.