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?
Good point waldo. I guess it’s the American people that we have to thank for this.
Woosty you are correct. Medical issues are medical issues. If we are going to incarcerate people we have to treat them humanely. The Mass. prison system is not Gitmo where the rule of law has been watered down and degraded.
We should pay for these things because one would hope that as a society we are morally/ethically superior to those we incarcerate. In this case the evidence is we are torturing this man because of his need for an operation. However, if you wish we ca go back a hundred years or so, when all through the world the punishment for most crimes was death.~Mike Spindell
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yup.
but it also should not be that a prisoner has more right, access and coverage than those who have not abandoned abiding by the rule of law in society. And going back a hundred years or so is just what some($$$$$$heads) would gleefully have us do.
Single payer health care…..solves even this bizarro twilite zone predicament.
Mike S. and Waldo, I agree with both.
He may have appeared as a man when he committed the crime, but he was a woman. He has always been a girl or a woman, He just didn’t look like it.
The poster displays his ignorance. It’s a FEDERAL judge requiring the surgery based on FEDERAL law (i.e., the US Constitution). The Massachusetts state government, in the form of the Department of Corrections, was the one denying the surgery and arguing that it should not be required to pay for it.
I think 99% of people who ever hear about this story will never delve into the opinion itself or try to understand understand either the law or the facts in this particular case. Sounds like the judge made the legally correct ruling. However, just like the McDonald’s coffee case, I fear the opinion will be used to reinforce various prejudices.
The state of Massachusetts should have provided this ”Beast” with the means for self Imolation……….. Or a good strong rope! The ‘PUBLIC’ is not required to pay for elective surgery, especially for murderers……….
What about Lola or Walk on the Wild Side?
There is a song about this.
Notice the lyrics “tweeter was a boy scout before she went to Vietnam” and “Jan said to the monkey man I’m not fooled by tweeter’s curl … I knew him long before he ever became a jersey girl” …
Mike, “Torture” is hyperbolic, I agree the surgery is warranted but you give up the moral high ground by calling his lack of this surgery as torture, and you diminish those who have experienced torture. It’s like folks who throw around calling people Hitler cavalierly.
OMG you have got to be kidding
“This kind of crap is another reason this country is in debt.Prisoners harass the system with lawsuits over crap like this. If this is supposed to keep him from taking his life, too bad. He took a life he had no right to, let him commit suicide. Why are we obligated to try to stop him.”
“I’m not quite as rabid as Pat but it does sort of chap me to have to pay for this for prisoners.”
“in MA that government is one that forces them via taxation to pay for a murderer’s sex change, in addition to his daily sustenance, education, entertainment, health care, etc., most likely until he dies. Clearly, the people of MA are highly evolved.”
Pat, Frankly and Neil,
We should pay for these things because one would hope that as a society we are morally/ethically superior to those we incarcerate. In this case the evidence is we are torturing this man because of his need for an operation. However, if you wish we ca go back a hundred years or so, when all through the world the punishment for most crimes was death.
Why is this surprising….. It’s been established federal case law for years….
Then we need to change the law… to include the words, With exceptions for convicted Felons or murderers……
I suggest the the State of Massachusetts arrange for this Murderer, to ”ACCIDENTLY” die on the operating table. Happens all the time……..
The medical profession declared the surgery medically necessry. Since the prisons are required to provide medically necessary treatment it is obvious the rules are he should receive it.
Elective surgery, not a requirement for the state to pay for these.
I think people get the government they deserve, and in MA that government is one that forces them via taxation to pay for a murderer’s sex change, in addition to his daily sustenance, education, entertainment, health care, etc., most likely until he dies. Clearly, the people of MA are highly evolved.
I have to admit to mixed emotions about this. I’m not quite as rabid as Pat but it does sort of chap me to have to pay for this for prisoners. If it were part of some larger rehabilitation effort that would allow her to rejoin society I probably would feel better about it but I don’t see it that way. If he had not killed his wife how would he make this change?
The court did its job and came to the right conclusion.
This makes me so angry. Prisoners have too many rights. They should be allowed to sue over issues surrounding the legal proceedings that along with what they did, put them where they are. He took a life as a man, let him face punishment as a man. This kind of crap is another reason this country is in debt.Prisoners harass the system with lawsuits over crap like this. If this is supposed to keep him from taking his life, too
bad. He took a life he had no right to, let him commit suicide. Why are we obligated to try to stop him.
There seems to be a good case that this surgery would be warranted. We have a friend who is a shrink in a Federal Prison and their nightmare are inmates committing suicide. I’m not a bleeding heart but it seems like the right thing to do. Being a taxpayer I would hate it if I lived in the Bay State.
These situations are becoming more and more common. However, even back in the early 80’s sex reassignment was an issue in corrections. When we lived in Chicago, my wife was a casemanager @ Federal MCC in Chicago. MCC’s are basically Federal jails in major US cities, used for housing defendants awaiting trial, or convicted inmates awaiting assignment to a Federal Prison. In smaller cities the Federal Bureau of Prisons just contracts w/ the local County jails. A person was arrested in 1982 on drug charges and put on my wife’s caseload. He was in the process of reassignment surgery. He had long hair and breasts via hormones, but he still had a penis. The MCC had male and female floors and this posed a problem as to what floor he should be assigned..or reassigned, as it were. There was also a question as to whether he should be given his hormones while incarcerated. Do you think he was given his hormones while awaiting trial and what floor do you think he was assigned?