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?
Malisha,
Can only concede on the Soup. And will also say that there was, as usual, more behind the brief sentence than it contained. But the latter you must take the blame for, just as MikeS did for using 10 words instead of 30.
I think, although not sure, that after the years of “parsing” by psychiatrists of mentally/emotionally/socially sick persons, that the guards are sufficientlt instructed and the routine well prepared to handle such problems as you anticipate.
As I previously said, this person will need protective custody. And might even as implied liked to be appreciated as a woman, but hardly in this prison by these men?
I speak from my supernaturally inspired POV, as usual. And thus am all-knowing although impotent in my powers. Good on that.
Dare I mention again my night spent in bed with a trangender surgically modified “woman” in 1962?
That was not long after Christine Jurgenson, if I recall the name right. This was in Los Angeles.
ID707, you’re right when you say I “have no idea what the reasons behind his killing of his wife were” — I actually took a minute to look it up but couldn’t find much about his “reasons.” Apparently he strangled her. I don’t know much more than that, although it poses some more interesting questions. (Strangulation doesn’t require a weapon or very much planning.)
Whoever said he was a multi-millionaire physician, I couldn’t find that out either, but obviously it could be discovered; I don’t know whether it is germane or not. I simply asked some questions. Those questions had to do with issues that could come up, and that obviously will come up now that there is a precedent for requiring surgery at state expense for gender changes.
More than “murderers are in prison” is at issue, though, in my opinion. People in prison are going to be coexisting with murderers — indeed, people outside of prison also coexist with murderers. But a man (which he was at the time) murdering his wife is a particular kind of crime in some, if not most, instances. It can involve issues of unusual levels of resentment and feelings of intense victimization; it can involve issues of peculiar situational relationship-based emotional disorders. I can imagine the situation would really be beyond the general habit-based day-to-day training and functioning of most of the guards in a women’s prison.
About the cooking thing, here’s a challenge from “left field”: Hungarian Chicken Liver Dumpling Soup.
Matt J.,
My chili and my bean soup is excellent. I add a little chorizo to the bean soup at times. The rest I give you ón a walkover. Can you do a real Spanish brown sauce. Takes 5 hours. And can you do a sole a la Walewska? What do you do with the spine and rib bones?
Come on, challenge me back.
Nick,
No thinking person wants to be associated with American culture. Mu words too nasty for you? Well, that’s how it is for me. That is also why I am here, the culture reeks a bit less here..
Milord,
Cute but not true. Putting all in the same basket and saying they are the same is definitely not empirically sound.
It took the reading of many comments before I could sort the trolls from the thoughtful. As Prof. Turley’s blog is a legal blog, the primary consideration in comments should primarily, though not exclusively, address the legal issues rather than the social, medical or philosophical issues. Insofar as the legal precedents for the decision are well established in law there can be no argument other than with the law, itself. The commenters for whom only personal prejudice informs their post (apparently from an ideological or theological point of view) will not be swayed by logic. I suspect they are intellectually aligned with those folks who believe The Flintstones is a documentary.
http://en.wikipedia.org/wiki/Jean_Harris
She shot him in the abdomen five times with a .25 caliber revolver. He laid down on the bed and said you’ve done it now. She set at the foot of the bed and talked to him while he bled to death.
As an Italian I can say unequivocally there is NOTHING unmanly about cooking. And, it can help get you laid if you’re a great cook.
Waldo 1, September 5, 2012 at 4:34 pm
The more difficult question is should the DOC have to pay for the surgery.
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They locked him up, that means they’re responsible. Should they pay for the surgery? No.
Kosilek was a multimillionaire doctor before killing his wife. Had he chosen, he could easily have sought treatment and paid for it himself before he committed the crime he was sent to prison for (which, IIRC, was the culmination of decades of abuse he inflicted on his wife.) And yet he chose not to, until he had exhausted his own fortune and could put the cost on the Commonwealth.
No sympathy from this quarter.
idealist707 1, September 5, 2012 at 4:10 pm
Well I have cooked for myself since I was 12. I got better over the years finally making a decent
spaghetti sauce at 26. So what, am I transgender. Nope, but the ladies and men at the club for nudists seemed disturbed by a man fixing food for his girlfriend and him in the common kitchen on our club island. Small things upset some people.
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I can make extremely good lasagna and potato salad. I can also make really good bean soup and chili.
The guy knows he has a male body. He views himself as a women only in the sense of his gender identity, not in the sense that he thinks he has a woman’s body. That dissatisfaction with his sex (male) is what his disorder is all about. Apparently in his case it is so bad that it has led to depression and suicide attempts. No one says the guy is “crazy” in the sense of being psychotic or delusional. I’m not a doctor and haven’t studied his medical records, so it’s kinda difficult to disagree with the doctors that sex reassignment surgery is necessary and medically sound in his case. In fact, even the Massachusetts Department of Corrections apparently agrees with that view. Do you think the doctors and the DOC are both wrong? If so, what are your medical qualifications and what is the basis for your opinion? Honestly, that’s the least controversial part about this story. The more difficult question is should the DOC have to pay for the surgery.
nick spinelli 1, September 5, 2012 at 4:22 pm
id, As I’ve said, I believe this surgery is warranted. I simply don’t believe those who don’t believe as I do are torturers.
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Give him the surgery and leave him(her) in a male prison. I think that’s what he(she) wants.
id, As I’ve said, I believe this surgery is warranted. I simply don’t believe those who don’t believe as I do are torturers. In my opinion that’s extreme. I think words like torture, Hitler, hate, and even love are overused and misused. We live in a sensationalized, hyperbolic culture where heroes are super heroes and villains are satan. I refuse to be part of it and use extreme words conservatively. To each their own, paisan.
Malisha,
You must be kidding:
“. Since she killed her wife, won’t there be a security risk for other inmates in the women’s prison?”
You have no idea what the reasons behind his killing of his wife were. He may require protective custody. But at least “she” will be in the gender
role that is appropriate for her. That administrative decision will require juridical challenging if the record of the Mass. DOC says anything.
Neil 1, September 5, 2012 at 2:50 pm
Good point waldo. I guess it’s the American people that we have to thank for this.
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Yeah!
I caught a snapshot of them carousing in the desert:
Folks let me tell you….but first BettyKath’s quote from Wikipedia.
“…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.”
Well I have cooked for myself since I was 12. I got better over the years finally making a decent
spaghetti sauce at 26. So what, am I transgender. Nope, but the ladies and men at the club for nudists seemed disturbed by a man fixing food for his girlfriend and him in the common kitchen on our club island. Small things upset some people.
Massachusetts is stupid. No wonder Kerry and Du(whateverhisnameis) didn’t get elected. Do you get a purple heart because you got scratched? What happens if the aide can’t find your comb for you.
Don’t brag about how much money your wife has when you’re debating W, moron. W’s family has more money than your wife does.
If he wants to get his wanker turned in he should have to pay for it him(her)self.
“3. Since she killed her wife, won’t there be a security risk for other inmates in the women’s prison?”
Um, wouldn’t this be true for EVERY person that killed someone of the same gender?
BettyKath,
“….including the NHS which describes it as “a condition for which medical treatment is appropriate in some cases.”[4]”
Thanks. Now the mental diagnose stigma will be removed, leaving only a medical call to be made. How will that call be handled do you think.