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?
Matt, As they say around here, I’m Eyetalian. Pass the Eyetalian dressing. Drives me nuts, I’m surrounded by Krauts, Pollacks, Micks and Norwegians[I don’t a slur for them except Quisling..they really don’t like that].
This was my non pc comment for the evening. Just keeping the First Amendment alive.
ID707,
I don’t have an M-16. But I do have Hungarian Paprika. And I just bought a six pound bulk sized bag of Hillshire Farm Polska Kielbasa.
You know the worst is (actually there are many worsts)
that I don’t think we have a kosher deli in Stockholm. We got lots of good jews. Maybe I should ring the reception at the media magnates and ask if they know. Don’t dare ring the Israel embassy or I’ll get a visit from Mossad.
Watch out Matts if Nick starts to wax rhapsodic on you.
Matt Johnson,
Re your question to mr spinelli. LOL!!!!
I’ll send you some smoked Spanish paprica in an plastic bag in an envelope, but fear the customs dog
will start sneezing and it will get sent to some lab some place and the FBI will visit you just to be certain you are not doing something against all the 100 million laws we have. How in the hell they can know which one to charge you with after 15 minutes, a short visit, is hard to understand.
I think our sleuth, Mr Spinelli, would suggest it is due to their skills in planting dope on suspects. So wait for the SWAT squad and pull out your M-16 in the meanwhile.
Mr. Spinelli,
Are you Hungarian?
id, Sounds very Bohemian.
idealist707 1, September 5, 2012 at 7:38 pm
The Spanish brown sauce is the basis of all good French sauces. Heavenly. I’ll check the ingredients and get back. The secret is the cooking time. No shortcuts.
You got me on the bean soup. Was the chili powder also for the soup? Lime juice, hmmm.
Ever tried smoked spanish paprica powder?
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I don’t use paprika powder in my chili or bean soup, but I do have paprika powder.
According to the ingredient list “Spice Islands selects only sweet California chili peppers to dry and grind for our premium quality Paprika. Use this vibrant spice to add a mild, yet festive flavor and color to add a broad range to dishes.”
I also have Colman’s Mustard Powder and Schilling Ground Rep Pepper, but I usually don’t use it.
Nick,
Of course not. Bean soup is for comfort for a bachelor evening or a base for a beer evening with buddies.
I don’t know why, but I like to get on the high wire for first time guests. The shrinks here have an
answer, but screw them for the nonce.
So I do something fancy and never done before when guests(friends) are coming. One of the best, not flashiest, but good was as follows.
Moose sirloin, fresh mushrooms, duck liver paste, onions, millefeuille (thousand leaves of dough with butter brushed between each layer), and some patience preparing, browning etc before the oven. Making a lean wine sauce adds a nice touch over the top after slicing and serving.
It was mightily appreciated, particularly by the guy who gave me the moose sirloin. The only romance in the relationship he had had was with my girlfriend before I came into the picture. So he and I played squash together amicably.
Pat:
How was that cart ride from the Dark Ages? Are you staying or just visiting?
nick spinelli 1, September 5, 2012 at 7:32 pm
Gentlemen, gentlemen..I love bean soup and the recipes sound great. But, unless it’s a special woman, bean soup won’t get you laid. It probably won’t even get a woman into your house. Some lavender scented candles. A nice salad that includes artichokes. A pasta or chicken dish that includes capers, lemon and cheese or any combo. A rich chocolate dessert. Make sure you have a supply of extra large condoms..in the bedroom, on the dining room table would be too blatant. Or, you could just go the Elliot Spitzer route but dinner is cheaper.
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How about Burger King because you’re going to have to pay.
Thirty seconds of something? I’m not saying it isn’t extremely pleasant, but it has it’s price.
The Spanish brown sauce is the basis of all good French sauces. Heavenly. I’ll check the ingredients and get back. The secret is the cooking time. No shortcuts.
You got me on the bean soup. Was the chili powder also for the soup? Lime juice, hmmm.
Ever tried smoked spanish paprica powder?
I was in Los Angeles a few times. Didn’t do much except drink beer.
Do you know something, I’m glad I didn’t make the same mistake.
I know what you’re talking about.
Gentlemen, gentlemen..I love bean soup and the recipes sound great. But, unless it’s a special woman, bean soup won’t get you laid. It probably won’t even get a woman into your house. Some lavender scented candles. A nice salad that includes artichokes. A pasta or chicken dish that includes capers, lemon and cheese or any combo. A rich chocolate dessert. Make sure you have a supply of extra large condoms..in the bedroom, on the dining room table would be too blatant. Or, you could just go the Elliot Spitzer route but dinner is cheaper.
Just to correct any misunderstanding re transgender surgically modified “woman” affair in Los Angeles.
She thought I was a man. She was right.
I thought she was a woman. I was wrong. The equipment was womanly but not original equipment factory installed.
No deal was made.
I think it only natural that women resist cooking.
Because it is expected. They can’t say no to birthing, but can cook lousy food. I got in all my contacts only one good meal, and that was tuna fish out of a can on top of pasta. Says a lot. The sex offered was fine however.
idealist707 1, September 5, 2012 at 5:36 pm
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.
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I use smoked sausage with the bean soup. The chili is a secret.
The secret ingredient with the bean soup is lime juice. I also use two tablespoons of chili powder.
I came back to the Turley/Cusack thread just an hour ago. Waded through some very good homestretch commenting.
Here is what I posted there and re-post here for eventual discussion. Abuse can’t be avoided but will be ignored.
Not that I expect any notice at all. It is not a “good” rant. Just wanted some to see it in spite of it coming late.
———————————–
“It is some hours overdue to post here, but here goes.
First a little levity, Blouise had the lead a long while if the curve and the back stretch, then Woosty began to creep closer in one daring move, but sudddenly from nowhere comes a charging elephant passing these fillies as if they were standing still, leaving them in a cloud of dust at the finish line.
You have all guessed at this point who the elephant is.
Yep, MikeS.
Although I am not on good terms with him, I am for reasons of again chiming in when sensible principled but practical matters are advanced, as I also see them, then I feel obliged, in the service of mankind’s advancement with my aid, to express my agreement.
I would also like to add the following. 60’s style ground-up resistance, type OWS is doomed to failure.
“They” are simply better organized thanks to the 60’s experience. The streets are theirs, not ours.
BUT, under the cover and shield of organizing a political party which will offer an alternative, a channel for channeling your opinions (FWTAW), and a real possibility to effect things without meeting the cops in the street…..WHAT IS THERE TO LOSE BY GOING THE INTERNET ROUTE. It will mean choosing a state or the whole nation and trying to make a difference to make waves which have political effect—SOMEWHERE.
It may be attractive to the independents. It will require the political savvy of the folks Blouise mentioned and Denenson who I mentioned in a comment with a link.
Who is willing to do something and what to get it launched. Any secret contacts? Keep them to yourself.
The NSA is listening. For myself, I can not organize a cleaing of a bathroom, much less a campaign on the net or the ground.”
Edited now.
Michelle should be housed in the women’s prison. She is now partially, and will in future be, a woman.
I would hope the prison has means of determining the degree of danger one inmate presents to another and takes appropriate measures. This may not actually be the case, but we can hope.
GED exams are a national program. Two reasons that they will change a name on a diploma: federal witness protection program and gender reassignment.
as to the cooking thing: I can boil a mean kettle of water and I can boil an egg. Frying an egg gets a bit tricky. : )
Milord 1, September 5, 2012 at 5:17 pm
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.
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Can you make the car run with your feet?