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?
valerie:
“It’s frustrating when people commenting on transsexuality and law don’t understand the basic science.”
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Ne’er a truer word was ever spoken. But that Golden Rule aside, I must stand corrected in my assumption that one’s genetics is the primary cause of most all physical characteristics including one’s endocrine system. But maybe it’s the mother’s fault. I am enlightened every day.
“One issue” people are tedious and I’ll take you up on your suggestion of anti-depressants.
As to one’s genetics influencing one’s endocrine system, that is often true, but I was referring, clearly, to gestational endocrinology, something dominated by exogenous steroids. It’s why there’s a high correlation with the use of DES, an artificial estrogen, during pregnancy and female identification and gynephillic sexual orientation. i.e. More women and more women who like women.
Expertise in one particular issue does not make me a one-issue commentator, anymore than Moynihan was a one-issue person with regards to the Guaranteed Annual Income. I’ve also written about entitlements, constitutional precedent, the wage-productivity relationship, parliamentary supremacy, etc.
That trans people face an egregious set of circumstances in which their rights to security of the person, privacy, free expression, freedom from cruel and unusual punishment, etc. are abridged by government action and private actions sanctioned by government does not make it the sole political issue I care about, merely one that receives insufficient attention.
“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.”
Thank you Bill Clinton for setting the precedent. Im positive for Ms Dennehy it was a “personal matter” and none of the court’s business.
Howabout anti-depressants?
valerie:
“Whether the source of a chemical that causes mental distress is endogenous and easily preventable or exogenous, there’s no moral difference.”
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We’re not talking morality here. That’s the province of the angels. It’s a legal matter and a narrow one at that. If it’s proven medically necessary and denied, its cruel and unusual in the same way an unset broken leg would be. if it’s designed to correct an error of nature, the state has no obligation to pay or proceed. The beef is with her genes, not her jailers.
“The beef is with her genes, not her jailers.”
It’s frustrating when people commenting on transsexuality and law don’t understand the basic science. If there’s a beef, it’s with her gestational endocrinology (weeks 10-13) of gestation.
Would a congenital heart defect be similarly refused treatment?
valerie:
“Transition medicine does not meet the test for a right that would be withdrawn in the case of felony.”
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Had the state not conceded the necessity of the surgery there would be no case here. I find no established right for “transition medicine” paid for with tax dollars for convicted felons. The right was freedom from cruel and unusual punishment in violation of the 8th Amendment in this rare circumstance.
Would you find the forced androgenation of someone assigned female and identified as such to be cruel-and-unusual punishment? Whether the source of a chemical that causes mental distress is endogenous and easily preventable or exogenous, there’s no moral difference. The treatment of Breanna Manning has been similar, with her jailers attempting to exacerbate her gender dysphoria.
Valerie:
“Mespo there are reasonable limits, but those limits tend to bear some relation to the degree to which they infringe upon the rights of others.”
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Maybe that’s what you should have said initially then. Over the top rhetoric doesn’t play well here.
Would ‘rights are not conditional on maintaining good behavior generally’ have met with your satisfaction? But again, good behavior isn’t the question in that case, infringement on the rights of others is.
valeriekeefe:
“At some point we have to recognize that rights are not contingent on good behavior. They are rights.”
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Huh? I notice his “right” to freedom is certainly conditioned on his “good behavior.” Newsflash: All of our rights are conditioned on “good behavior.” Trying exercising your right to interstate movement while blistering down the highway at 90 miles per hour some time if you don’t believe me.Some call that the responsibility of free citizens, but why let a little bedrock American political philosophy get in the way of your condescending rant.
Mespo there are reasonable limits, but those limits tend to bear some relation to the degree to which they infringe upon the rights of others. You can’t drive at 90 mph because you’re endangering the safety of others, for example. Transition medicine does not meet the test for a right that would be withdrawn in the case of felony. There’s no increased likelihood of recidivism, in fact, given transition medicine’s propensity for reducing the risk of self-harm, one wouldn’t be surprised if it would reduce the likelihood of recidivism, both inside and outside an institution.
Denying needed medicine to a prisoner is illegal. Denying transition medicine, which doctors avow to be medically necessary, is cissexist.
Nick,
It is said that Bari is the den of iniquity steered by Balkan gangs. True?
But the district produces some of my favorite wines.
Due Palme is one producer who is very reliable and reasonably priced. Then there is volcanico (name?) grape which I love. But Blouise is the expert on that one, and probably on many others. She does not brag.
Matts,
I’ve been promised a….hungarian paprica meal by a hungarian lady, with east german partner.
hungarian paprica meal by a hungarian lady. Not eaten yet.
I found her foto very enthralling. Very sympathetic. It was taken, it is written(?) at arrest. How far along with hormonal treatment at that point? Her femininity shines clearly I “feel”. (And I am proud of my feelings. An essential part of being human.)
I say keep it. Just wish that Z’s PR foto would not be used and my selection used instead. The face of psychopath is terrible to see.
Valerie,
you snowed me with cissexism etc. Will get back after my sociology exam.
Smile.
Google, a copy of whipping girl, or for that matter, an understanding of latin (cis is to trans as hetero is to homo and we surely have no problem accepting heterosexism is still a position that finds its way into policy) would have sufficed.
I think your choice of a photo for this woman was clearly prejudicial. You’re, I tend to think, better than that, Johnathan.
Also, most of the security concerns in question relate to the idea that she would be raped and otherwise assaulted if left in men’s prison (as though genital morphology is what would trigger abuse…) again, in a state that claims to have passed a non-discrimination act, covering employment and housing, but not public accommodations, it would be quite a stretch for the Commonwealth of Massachusetts to argue that a prison was a public accommodations. The clientele tends to be a select group, no?
At some point we have to recognize that rights are not contingent on good behavior. They are rights.
At some point as well we’ll have to recognize the tort caused in maintaining a system of coercive birth assignment that endangers lives, harms earning potential, and is, essentially, an act of societal negligence, given the reams of evidence of harm caused by institutional cissexism.
bettykath,
They had to pay for the beer themselves. That’s why she wouldn’t tap a new keg.
Matt, Girls don’t tend bar, but women do.
Mespo doesn’t know anything.
I was at the Enlisted Club at the Concord Naval Weapons Station, and the bartender girl gave me a glass of flat beer. I said give me a different beer, this one’s flat. She said no, and you aren’t getting your money back until the keg is empty. I sat down at a table with some jarheads, and one of them said don’t worry she does that to us too.
Hilarious Mespo!
Nick,
I’m a rednick from eastern Oregon. Won’t say what I did in San Diego. Long Beach too, maybe? How about overseas? Never got arrested until I moved to Wisconsin.
Used to drink beer with the Marines.
Matt, Firstly, it’s” Nick.” The Italian pecking order is pretty simple. The farther north the “higher class”, the more southern, the more peasant. And Sicilians..hell they’re Northern Africa, not Italian. I didn’t make these silly rules but all ethnic groups have some sort of caste system. My family is from Naples and Bari[near the heel], we’re knuckle draggers.
On the Navy fights..we spend winters in San Diego. I’ve never seen a Navy/Marines bar brawl, but I’ve heard some tales. SD is a great city.
Mr. Spinelli,
Two of my best friends in the Navy had Italian ancestry. Neither of them was from Sicily.
There was a Sicilian guy who was in the same division I was in. The Sicilian guy insisted, I’m not Italian, I’m Sicilian. One of the other Italian guys said that’s right.
The Sicilian guy picked a fight with me. He didn’t win.