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?
ID:
Sing away there minstrel. No one fled the field. The opponent, having been continually knocked from her mount simply withered away. Only the fool stays in the arena after the contest is over — as I see you’ve done. Tootles my Nordic friend. Keep up your English studies.
But despite the Valerie’s of the world who find any inconvenienced gender confused person as a poster child for their cause,
For one, denial of care is far more than an inconvenience. For two, in my experience, trans people are by far the LEAST confused about their gender as a group. It takes a level of self-evaluation to seek a solution as routinely derided as this.
most folks believe this miscreant has forfeited both our sympathy and our respect for his emotional problems.
She, that is the appropriate pronoun to use in this case, and your withdrawl of it in this instance demonstrates your cissexism, demonstrates your belief that the rights of trans people are conditional on good behavior unrelated to any public good beyond a desire to take petty revenge, has emotional problems in the way that a sailor contracting scurvy has metabolism problems. It is an easily treated condition that is brought to remission by giving her what everyone else has: Endocrinology suitable for her neurological sex.
At any rate good for most people. But the constitution is not dependent upon majoritarian prejudice. When it has been the results have been catastrophic.
Had it not been medically necessary to have this procedure and had it been, as many suspected, just one more manipulation by this felon,
Other than you, some radical feminists, and some ultramontaine Catholics, name people who argue that transition medicine is not medically necessary. Other than you and some other internet cissexists, name people who argue that this transition is medically unnecessary.
I would have suggested fighting his “right” to publicly funded surgery to the Supreme Court.
You already have. Frequently. You’re attempting to do so now, like the confederate officer who offered his sword in surrender with one hand and fired his pistol with the other.
Sometimes you follow the law even as you hold your nose. This is one of those times.
When I said I expected the same treatment for war criminals, did you think I was then making them poster children for my cause? While I care both about constitutional law and ending cissexism in law, the former concern is mainly for those who are not currently imperiled. I similarly am in favour of animal cruelty laws not because they protect animals but because they reduce our own capacity for learned sadism.
At any rate, I did not agree to a Lincoln-Douglas debate without limit. If you have nothing new of substance to say, other than to throw ad hominem attacks and then to argue that they are true when they are objected to, I will be moving on to more important things.
Messpo,
You fled the field casting base insults after you.
In no way can you proclaim yourself a winner.
You are just one of those deposed kings running aronnd,
calling themselves Count, and posing in the same old clothes as before. Never to come to grips with reality.
Who the insane person is is clear in my mind.
We will have our victory party. Your noises do not disturb. You only provide an incentive for more celebration.
Trollis
Waldo:
“Meso, “I thought I did answer it. Hint: Think is it medically necessary? If “yes” check “we pay for it.” If “no” we don’t.”
That’s doeos not seem consistent with what you wrote earlier. Previously, you wrote “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.”
I’m glad that you now repudiate your previous statement …”
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You and ID need to get together in this self-proclaiming victory party of yours. Apparently your English needs some work too since there is nothing in my statements that is inconsistent with the rather easily understood point that the state owes its prisoners only necessary medical care ( a concept that is apparently fraught with unfathomable mental blurriness for you) and not some elective procedure to make them feel better about themselves and to rectify some perceived error of nature.
Kosilek twisted a wire and a rope around his innocent wife’s neck and killed the person who trusted him the most. He then left her lifeless body in a car at a shopping mall and denied his involvement for years until his own twisted conscience finally did him in. Coward to the end, he blamed alcohol and even his victim for his crime. A master manipulator he now seeks state funds for medically necessary procedures which I concede he has a right to receive.
But despite the Valerie’s of the world who find any inconvenienced gender confused person as a poster child for their cause, most folks believe this miscreant has forfeited both our sympathy and our respect for his emotional problems. Had it not been medically necessary to have this procedure and had it been, as many suspected, just one more manipulation by this felon, I would have suggested fighting his “right” to publicly funded surgery to the Supreme Court.
As I said, it’s a rare case and making this bast*rd out as some poor victim is an insult to the real victim here whose name is all but forgotten in our zeal to ensure the well-being of this person who has no such concern for those to whom he owed that duty the most.
Sometimes you follow the law even as you hold your nose. This is one of those times.
ID:
No retreat here simply proving my point about ol’ Valerie’s maniacal obsession to have the last word on the topic once her arguments –such as they are — were refuted and her “expertise” questioned. Anyone who would equate a comment about her “easlly offended psyche” with a challenge to her sanity certainly merits a discussion of her sanity. It also calls into question that of her cheerleaders. Root on ID, like most trolls, you’ll be gone soon enough.
Congratulations Valerie.
He resisted two days in a row on the drone question.
Yours was a quick victory.
And he slank out throwing abuse of the simplest kind. Not worthy to be here, IMHO. He debases the forum. And that is my opinion of his qualities. And he is welcome to his. I don’t share them.
But we need bad examples too. But not so stubborn as he.
Messpo,
“but no less single-minded in her defense of the murderer’s right to be well at public expense”
Is that what irritates you? My god, would you deny her care if she had a heart attack?
Are you homophobic? No, you say. Then why are you genderchange phobic? Both are no longer proscribed.
So why does the state pay for heart care and not for life saving care on medical grounds for aid assisting gender adjustment.
Where is your sense of justice? The court did not sentence her to prison without care. Did they? So why should you even open your mouth opposing it?
I said to you that it was like playing tennis against a wall. The ball always comes back, what ever you do.
Discussion here Ăs often disheartening for that reason.
The examples are many, so shan’t cite them. Regarde les.
My apologies for intruding on your argument. Still making the mistake in getting involved in other’s battles.
Meso, “I thought I did answer it. Hint: Think is it medically necessary? If “yes” check “we pay for it.” If “no” we don’t.”
That’s doeos not seem consistent with what you wrote earlier. Previously, you wrote “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.”
I’m glad that you now repudiate your previous statement and would not base a decision upon whether the condition was or was not a genetic one, but instead whether it was or was not medically necessary.
Of course that begs the question: what makes you think Kosilek’s surgery was not medically necessary? Kosilek thought it was. The Massachusetts DOC thought it was. All the doctors who reviewed examined Kosilek or reviewed the medical records thought it was. The judge thought it was. Just curious if you have some special training, knowledge or experience with respect to gender identity disorder that leads you to disagree with everyone involved in the case or whether it’s just an opinion you pulled out of thin air.
Who gives a rats ass if some inmate gets his nuts cut. It happens all the time. I am just blown away with all of this dialogue going on.
valerie:
I’m ecstatic with your unending approval of the 8th Amendment and am anxiously awaiting your equally spirited defense of Cheryl Kosliek’s right to live. I’m likewise enthralled with your almost obsessive desire to get the last word in here.
In deference to your easily offended psyche, please have at it now without any reply from me or consider this comment moot, void ab initio, or just invisible.
Well, when your closing argument is based on innuendo regarding my sanity, there’s little to say in response.
Of course Cheryl Kosliek had the right to live, and our response in the event of a murder is to investigate, charge, try, and convict her murderer, imprison her until such time as she is not considered a serious risk to reoffend, and then, if released, monitor her activities for life, as per parole conditions.
I’d advocate the same treatment for war criminals too. We do ourselves no favours by arguing that our respect for basic rights is situational not with regard to the danger faced, but our societal outrage. To do so weakens the argument that we are a society of laws, merely a pack of majoritarian thugs, willing to selectively protect and punish as the Sentencing Gap(s) show(s), as the wrongful death of Tyra Hunter showed. I note your lack of hangin’s-too-good-for-’em umbrage at the treatment of that woman’s killers. Only when an opportunity arrives to torture a transsexual do you advocate denial of care.
MTF: Way to keep it classy… oy.
ID:
Presto! Your genie has returned without refutation of any countervailing argument but no less single-minded in her defense of the murderer’s right to be well at public expense and with a bit of frustrated rhetoric thrown in.
Call it magic!
Let’s see, I pointed out that transition medicine saves lives, and your response is how dare we pay to incarcerate someone. I am also single-minded in my defense of a felon’s right to adequate nutrition at public expense, safe accommodation at public expense, freedom from assault, common, aggravated, and sexual, at public expense… you know, that whole 8th amendment thing.
Yeah, mespo, you did not back down on the drones. But I never said you did. You just let yourself be mollified and quieted down like a gentled horse.
And why is it that when I question Messpo’s facts and especially where he gets them, (no source given) and he uses them as a “final” argument, cinching (sorry) the discussion.
How does that, or anything else I said, qualify as disparaging? Have heard the accusation before. It is less well grounded for every time I hear it.
Arguing with you two is meaningless. Valerie disappeared. She saw how true it is, what I said about Mespo.
It is a shame that she left. Did not mean to take over.
But offer a weaker target and the attack will move over to that target. Simple military tactics. And perhaps legal too.
Have the last word. It is on me. If it makes you feel better.
Don’t know what foolishness gets me into other peoples arguments. Luckily I got it from the side I have no respect for in this question.
Valerie, where are you. Bye, bye for me. Gotta finish my wokked shrimp.
Frankly I got tired of the duckspeak and the willful refusal to recognize that medicine that reduces lifetime mortality with the same degree of success as treating Syphillis does is somehow not medically necessary. When someone disagreeing has to go through four iterations before arguing that surely, my version of the facts was clearly what they meant all along and implied as such, I’m not much interested in another round of that level of circular masturbation. It’s like arguing with Germaine Greer.
ID,
By the way, I almost forgot to thank you for agreeing with me that I am perfect. I can’t even get my wife to agree to that! 🙂
ID,
I will let you do the work. Off the top of my head, I have disagreed on Mespo on some of the issues related to Obama and the civil liberties questions. If I remember correctly, you never responded to my request for documentation, but I gave you the hint and Mespo has confirmed it as well. By the way, the only bugle I answer to is the breakfast bugle. Why is it that when someone does not agree with you that you have to attempt to disparage their character or independence? My comment concerning Anne Romney was a legitimate one since she owns horse. I do not and do not care for horses.
ID:
No one here has the obligation to do your research for you. If you want proof start reading in the archives.
Malisha:
It’s from the appellate opinion.
idealist:
“You were downed 1500 times by arguments ”
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Thanks, but your scoreboard needs rewiring and just for your info we are not compelled to back off our opinions here in America just because a plurality (or even a majority) of folks are slow to come around to the correct point of view.
Bottom line is that my opinion stands until some court says it’s illegal.
By the way, rafflaw and I have disagreed on topics many times. We just have enough respect for each other’s opinions based on years of reading them to be gracious about it.
You should try it sometime.
Mespo, where did you find the write-up of the original case, NOT the “sex change for a prisoner” case but the “dead wife” case?
For some reason I am interested in it. I would like to read the charges, etc. — not that I don’t appreciate your abstract, just that it’s kind of fascinating. Was he a physician? Was he represented by counsel?
Rafflaw,
Re-reading your comment again I’m gonna come with a challenge you made to me once. “Where is your proof”?
Back up your statements. Any proof. If these are opinions, that¨s OK. But don’t say them as facts, as thaose you are obliged to prove.
Your obedienr student,
Once taught, twice shy.
Further, implying that my argumentation has a relation with Romney’s wife falls on its own face.
Do you always descend to the depths so quickly?
Waldo:
““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?”
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I thought I did answer it. Hint: Think is it medically necessary? If “yes” check “we pay for it.” If “no” we don’t.
Given the vague parameters of your question, who knows what you have in mind in terms of severity of the condition.