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?
OK, a few questions:
1. Is the inmate going to continue to live in the men’s prison after surgery?
2. If the inmate has the surgery, isn’t she then entitled to live in a women’s prison?
3. Since she killed her wife, won’t there be a security risk for other inmates in the women’s prison?
“Are you taking the view of the murderer who has a condition for which medical treatment is appropriate in some cases?”
Again, the murderer and his doctors. Yup.
I fail to see what his murdering someone has to do with the validity of his medical treatment.
So some authorities classify it as a mental illness, others as a condition for which medical treatment may be appropriate. Are you taking the view of the murderer who has a condition for which medical treatment is appropriate in some cases?
Nick,
“—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.”
Nope. MikeS is holding firmly to the high ground. The low ground has been occupied by those who disdain the life and sanctity of all life, even that of those who are adjudged criminal for whatever crime: stealing a loaf or killing a woman. For centuries. We left the medical middle ages in the 1940s. We left the psychic one in the 1990s(?). Let’s leave the middle ages behind us.
All three Abrahamic religions say that our first duty is to forgive. Is that for the benefit of the one who sinned? Not solely. It is for our benefit who have been wounded. That the sinner pays a price is one thing, and being murdered as a price is less popular now. But we do not deny medical treatment now.
Imagine! If we could cure this man so that he could function, is there reason to hold him in prison. Does his life incarcerated mean anything, other than the effect of deterring others—-which you know does not function.
Did not expect this view from you. And perhaps vice versa. Smile!
A bit more from Wikipedia:
Gender identity disorder in children is considered clinically distinct from GID that appears in adolescence or adulthood, which has been reported by some as intensifying over time.[5] As gender identity develops in children, so do sex-role stereotypes. Sex-role stereotypes are the beliefs, characteristics and behaviors of individual cultures that are deemed normal and appropriate for boys and girls to possess. These “norms” are influenced by family and friends, the mass-media, community and other socializing agents.[6] Since many cultures strongly disapprove of cross-gender behavior, it often results in significant problems for affected persons and those in close relationships with them. In many cases, transgender individuals report discomfort stemming from the feeling that their bodies are “wrong” or meant to be different.
Many transgender people and researchers support the declassification of GID as a mental disorder for several reasons. Recent medical research on the brain structures of transgender individuals have shown that some transgender individuals have the physical brain structures that resemble their desired sex even before hormone treatment.[7][8] In addition, recent studies are indicating more possible causes for gender dysphoria, stemming from genetic reasons and prenatal exposure to hormones, as well as other psychological and behavioral reasons. (See Causes of transsexualism).
One contemporary treatment for GID consists primarily of physical modifications to bring the body into harmony with one’s perception of mental (psychological, emotional) gender identity, rather than vice versa.[9]
importanttopics,
Michelle is transgender, medically identified as gender identity disorder. In general, it means that the essence of the person is one gender but they have the physical body of the opposite gender.
Gender identity disorder (GID) is the formal diagnosis used by psychologists and physicians to describe persons who experience significant gender dysphoria (discontent with the sex they were assigned at birth and/or the gender roles associated with that sex). It describes the symptoms related to transsexualism, as well as less severe manifestations of gender dysphoria. GID is classified as a medical disorder by the ICD-10 CM[1] and by the DSM-IV TR.[2] It is likely that the new version of the DSM will replace this category with “Gender Dysphoria.”[3] Some authorities do not classify gender dysphoria as a mental illness, including the NHS which describes it as “a condition for which medical treatment is appropriate in some cases.”[4]
Important,
I have to ask where you get this knowledge of what the doctors think?
“She just knows she is a woman and she needs a female body. The doctors agree. It is a necessary surgery for her mental health.”
The doctors agree that the patient should have the surgery. They believe the surgery will treat the patient’s mental illness They do not agree with the patient’s view that he is a woman. The patient is mentally ill mainly because he believes himself to be a woman.
That Judge is a pinko lingerie wearing clown. He’s probably plays fir the same team. He should be appealed for his bias.
Lexmanifesta 1, September 5, 2012 at 3:05 pm
Lost in all of these comments is any sense of outrage over Commisioner Dennehy lieing under oath to a Federal Judge. She won’t be prosecuted for perjury and she won’t lose her job. That to me is outrageous.
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The commissioner seems to have the same bias that others here have, the murderers aren’t entitled to mental health care. It’s not up to the judge who sees her perjury to charge her. Let’s see if she gets charged. In any case, I suspect she won’t be in her job for long, unless her superiors have the pov re: prisoner mental health issues.
Betty,
Exactly.
RWR was too damn liberal! He couldn’t get elected dog catcher today, that is if he was still alive.
Judges that go against the party line if appointment should be impeached from the bench and denied benefits.
Here’s the difference, Gyges. Contrary to what you suggested, the murderer and his doctors do not share the view that he is a woman. The doctors diagnosed him with a mental disorder because he thinks he is a woman. So, to say that he is really a woman that looks like a man, is to reject the view of the doctors and adopt the view of the doctors’ mentally ill patient.
“Are you taking the murderer’s view, that he is in actuality a woman?”
I’m taking the point of view of a person with a mental health need. Transvestites have a very difficult time, first in understanding themselves and then in dealing with the ignorance of the general public. She didn’t ask for a male body. She just knows she is a woman and she needs a female body. The doctors agree. It is a necessary surgery for her mental health.
The judge in this case, Mark Wolf, was appointed by Ronald Reagan. How ironic.
“Are you taking the murderer’s view, that he is in actuality a woman?”
Well, his and the doctors who are saying he should get the surgery. People who’ve committed crimes can have medical issues too.
Or is your problem with the idea that any person can need sex reassignment surgery?
“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.”
Frankly,
Would if chap you to have to pay anti-depressants? People who undergo sex reassignment surgery are heavily screened, and in the eyes of the medical professionals who give it, this is a necessary surgery, to the point where it could save his life.
Mike, on an intellectual level I understand and agree but on an emotional level this is very unsatisfying. I’m not saying its wrong, just uncomfortable.
“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.”
If we take the judge and the doctors at their word, this man is in fact a man, but he suffers from a severe mental illness known as gender identity disorder. In other words, this guy is crazy and thinks he’s a woman. The only proper treatment for such a disorder, the doctors and judge say, is to mutilate his genitals and give him hormones to artificially make him into what his deranged mind believes himself to be.
Are you taking the murderer’s view, that he is in actuality a woman?
Lost in all of these comments is any sense of outrage over Commisioner Dennehy lieing under oath to a Federal Judge. She won’t be prosecuted for perjury and she won’t lose her job. That to me is outrageous.