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?
Rafflaw,
What a surprise. When you hear the bugle, you mount up.
But do you have any weapons besides loyalty.
Now that was nasty and I apologize. It is so easy to backslide into old habits.
But you are perfect, (won’t say what) and I am not.
But I do know when you always will show up.
Have anything to say about the drone issue and Mark’s controversy with the gang on that? They forgave him as soon as he changed the subject. As I wrote, he can be very amiable, off his hobby horse. Do you have one too?
Hope you two don’t take this too seriously. Am not contesting your place in the pecking order. Just Mark’s too common carbon copy of the argumentation technique here. NEVER constructive. Avoid always the points scored by your opponent. Standard for politicians and debaters I guess. Never was either.
BTW, I don’t recall ever seeing you mounted.
Mark,
Good but not adequate answer. You were downed 1500 times by arguments on the drone issue, but you denied it all, sticking by your opinion. Which is OK by me, I have no beef with that. But don’t come claiming facts now. Quotes from Wikipedia won’t do as such. Good some things, not for how people are created and formed over 25 years.
ID,
I don’t always agree with Mespo, but he doesn’t make arguments because he is “stubborn”. He makes them because he believes in them and usually gives very cogent reasons why. Like anyone else here on Prof. Turley’s blog, his ego is no different than the rest of us. Not being a horse person I can’t comment on what kind of horse he prefers. Maybe Ann Romney can answer that one for you.
“What part of “medically necessary” don’t you understand?
I understand it just fine. Now since I answered your question, I’ll ask mine again. This time would you please answer instead of dodging it?
This is your quote: “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.”
Based on your quote, here was my question to you: “So, you believe that the state should have no obligation to provide medical treatment to a prisoner with sickle cell anemia?”
It’s not that difficult of a question. How about an answer?
idealist:
Funny no one disputes my information merely it’s source. I’ll keep my horse if you don’t mind. I can see more clearly with it than some on the ground.
valerie:
You sympathy for a person who ruthlessly murdered his spouse is better served elsewhere. He’d get the constitutional minimum if I was in charge and not an aspirin more.
Here are the facts of the gruesome murder of Cheryl Kosilek by “Michelle” in what he said the was “self-defense. His other defense was mental impairment based on alcohol and drugs that was rejected by the jury” :
[Cheryle Kosilek’s] body was discovered in the back seat of her automobile in a shopping mall parking lot in North Attleborough on the evening of Sunday, May 20, 1990, after the mall had closed for the evening. She had been strangled with a rope and a wire.
A taxicab driver testified that he picked up the defendant from the same mall on the afternoon of May 20 and drove him to a store located about one-half mile from the defendant’s house in Mansfield. That evening, police in North Attleborough received a telephone call from the defendant
stating that his wife had not come home that evening and asking whether there had been any report of an automobile accident in which she might have been involved. The police told the defendant that they had located his wife’s automobile, and they asked him to come to the police station, which he agreed to do. At the defendant’s request, an officer was sent to pick him up and bring him to the station. [Note 3] At the station, Lieutenant Michael Gould informed the defendant that “a body was found in the back seat” of his wife’s automobile. Gould questioned the defendant about his actions and the victim’s actions during the day. The defendant stated that the victim had gone to work for part of the day and intended to stop at the mall on the way home; he also said that he had spent the day working around the house. [Note 4]
The following day, May 21, 1990, the defendant was again asked to come to the police station to speak with Gould. During the interview, Gould advised the defendant that he was a suspect and informed him of his Miranda rights. Gould told the defendant that the police had spoken with the victim’s son, Timothy McCaul, who had lived with the defendant and the victim. McCaul told the police that he had been working during the day of the murder, that he called home at about 5 P.M. to ask for a ride home, and that no one answered the telephone. The defendant noted that Timothy often dialed wrong numbers, and he suggested that he may have been in the shower at the time of the call and failed to hear it. During this second interview with police, the defendant excused himself to go downstairs for cigarettes. Once downstairs, the defendant called up to the officers that he was going to get a lawyer, and left. [Note 5]
On May 22, 1990, shortly after midnight, the defendant was involved in an automobile accident in Bedford. When a police officer arrived at the scene, he observed the defendant, dressed in women’s clothing, seated in his vehicle, which had crashed into a stop sign and some shrubs. The officer administered field sobriety tests, determined that the defendant was not intoxicated, and called a taxi to drive the defendant home.
Two days later, on the afternoon of May 24, 1990, police in New Rochelle, New York, stopped the defendant for speeding. After the officer observed a bottle of vodka, two-thirds full, and two cans of beer in the automobile, and smelled alcohol on the defendant’s breath, he arrested the defendant for driving while intoxicated and brought him to the police station. At some point, the defendant remarked to the arresting officer, “You would be drunk too if the police thought you killed your wife.” Later, at the New Rochelle police station, the defendant stated, “Look, I had a fifteen year old son and a wife. I can’t call my wife. I murdered my wife. Now, I need to call a psychiatrist now.” The defendant was taken to the psychiatric unit of a New York hospital and subsequently was brought back to Massachusetts by the Massachusetts State police.
About two and one-half years later, in October of 1992, the defendant gave a series of recorded interviews to a television news reporter. An audiotape recording of one of the interview sessions was played for the jury. During the interview, the defendant stated that: on the day of the murder, he and the victim had been in an argument; the victim threw boiling tea into the defendant’s face; he then knocked the victim down; she grabbed a butcher knife and chased the defendant into another room, threatening to kill him; he picked up a piece of wire that had been on a table; and this was all he was able to recall until he woke up days later in the hospital. The defendant stated in the interview that he “probably, because of the trauma of it . . . went into a black out at that moment.” He also said, “Apparently, I did take her life. It was probably in self-defense.”
Mespoo,
Are you doing your research at Wikipedia. Smells like it. When did you become a genetic expert?
And have you challenge Valerie on her other areas of expertise and showed them to be false claims, then you can not logically call her a one-issue person.
…………………
Valerie,
Messpo is reknown for being stubborn. He stood out for 2 successive days defending drones against in effect all his buddies. Stonewall they could call him.
I would prefer Stonehead instead.
But he is a nice guy when off his hobby horses. Quite loving in fact. Something there to examine but my stethoscope has too short a range.
………..
Mark,
Get yourself and your ego off that horse.
valerie:
“Expression and genetics are two different things,”
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They are, but they are clearly related which was, of course, my rather obvious point.
Dysphoria is a mental and emotional condition and the pain is usually “unverifiable.” The mortality rate springs from depression and suicide. That’s hard to pin on one cause. The steroid treatment and surgery also have a morbidity rate which seems to escape your scrutiny.
Like I said, you’re one issue and one-sided.
Fatalities resulting from DVT due to exogenous estrogen: 4.2/100,000/lifetime.
Fatalities resulting from hyper alkemia due to spironolactone therapy: Stats don’t exist, but if the only people taking spironolactone were trans people, then an estimated 2/100,000/year
Fatalies resulting from low-dose-asprin useage: 10.4/100,000/year
Yes, treatments have side-effects. In the case of HRT, those side-effects are negligible.
valerie:
To suggest DES in not involved in gene modification through androgen receptors which, inter alia, regulate the male phenotype is a bit disingenuous. Androgen receptors regulate gene expression via transcription factors as you well know.
Expression and genetics are two different things, as anyone paying attention to average height by country or BMI by income group could easily attest.
ValerieKeefe,
Don’t bunch me with the others in the pronoun choice meme. I saw she was a woman as soon as I saw the picture, and so declared in a comment.
No comments tothe contrary, I presume that I am the only man here who has (mistakenly) taken a surgically changed gender changer to bed after 5 minutes acquaintance. Since I told this tale earlier here, no one has volunteered similar experiences. I was sympathetic to her and did all the right things, but could’t get it up for intercourse. Mind over matter does not always work.
As for these nuts who get upset by those who depart from their norms, including those who differ on what bread one should eat, they are just nutty. Soon new laws and norms will come. And they will find ways to undermine justice and communicate with code words, etc. End of rant.
My standpoint is clear and I am proud of it.
Waldo:
“So, you believe that the state should have no obligation to provide medical treatment to a prisoner with sickle cell anemia? Certainly not the law and, IMHO, a morally dubious proposition.”
************************
What part of “medically necessary” don’t you understand?
Again, given that untreated gender dysphoria carries a lifetime mortality risk of 30%, treatment is indeed “medically necessary,” and like most chronic pain, is diagnosed through self-reportage.
Malisha,
Say what you will, they can stop birthing if they want to and we will have no issue. Storks have stopped bringing them and the machines are not ready to take over yet.
Of course, we might find surrogate uterii, but the outcome might not be the one desired. A horse placenta might be not right for a human fetus. But we won’t know until it is studied and tried in mammal to mammal trials. In 30 years we might get around to human to surrogate womb trials.
Meanwhile I hoping that all the glad faces and round belllies I see here will be an ongoing view.
OK, couldn’t help it. Professor Turley tells us that Inmate Kosilek “was convicted of murdering his wife as a man.”
I got confused.
I thought, “that’s a new one; I wonder if he would have been convicted if he had murdered her as a woman.”
It also began to worry me.
@Malisha
First of all, wrong pronouns, though I don’t blame you, that’s been a consistent meme in this discussion, from the original post onward.
Though to be sure, given the sentencing gap, if Kosilek had been female-assigned, statistics suggest it is likely she would’ve received a shorter sentence.
So, you believe that the state should have no obligation to provide medical treatment to a prisoner with sickle cell anemia? Certainly not the law and, IMHO, a morally dubious proposition.
Idealist, you point out, with respect to women: “They can’t say no to birthing, but can cook lousy food.”
Some have successfully “said NO to birthing.” That may not last, though. If the right to “say no to birthing” is taken, my recommendation is that all women cook lousy food, and only lousy food, from that moment forward until all men are brought to their…until the men starve or something. Or until the men all go to MacDonalds.
Let’s not be naive. Do you really think the State of Massachusetts conceded the necessity of the surgery and then went to war against paying for it, using a sham security concern as their best defense? I’ve done lots of litigation and parties do not knowingly concede winnable defenses. If Massachusetts thought they had a chance to win the case on the issue of whether or not this surgery is necessary, why didn’t they argue it? I’m sure Massachusetts conceded necessity because that’s what their own experts and told them. If they didn’t have a leg to stand on with respect to necessity, then it would be frivolous to argue it. And, you don’t want to make patently frivolous arguments in front of any judge, and much less a federal judge.
ValerieKeefe,
“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.”
Where have you been hiding? You are so welcome here.
So much happening on the medical front other than genetics affecting our capabilities, pathologies, immunities etc etc.
Latest for me is the effect that the placenta has on child intelligence. Article in Sciientific American which defines my level.
Live in Stockholm since 44 years and my use of English reflects this, of course not ignoring other factors.
Looking forward to more from you.
valerie:
“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,”
****************************
Not to quibble with your self-proclaimed expertise, but pray tell how does DES affect human reproduction. Why, of course, it alters genes and gene pathways.
No, it competes-out the production of testosterone, making it more difficult to activate androgen receptors.
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.
Hear hear.