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:
“And finally, I’d like to take the opportunity to note that you’ve once again made a lazy-ass implication regarding my mental health, because, frankly, the merits of the argument don’t seem to be enough for you to make your case effectively.”
*******************
Nope, I think your preceding paragraph does a much better job than anything I could say. Equating moral outrage over murder with negligent or work place related fatality? You’re out there.
mespo, you linked to the current revision of the DSM-V, which is still in progress. It is not likely to change much between now and the final draft for publication. What they are doing now is editorial polishing of the definitions and the language. The diagnostic categories and criteria are pretty well set.
Here is the DSM-IV-TR nomenclature which is currently the standard until the DSM-V is ratified and adopted:
http://www.geekbabe.com/annie/feature/dsmiv.html
valerie:
“Nothing’s bringing Cheryl back… so yes, you’re completely right that this classical conservative is not moved to displays of false heroic outrage over her long-cold corpse. ”
*********************
Your sympathy for the real victim in this case is touching and demonstrative of what I said before — you’re a one issue person. Thanks for showing the entire readership. You completely identify with the killer out of your sense of moral outrage over his proclaimed injustice with no sense of outrage over the murder his wife. If cold blooded murder doesn’t move you to outrage, I suggest you pick up a copy of the DSM-V TR and find out why.
And just to keep you batting an impressive .1000 in the error department, here’s the APA in the DSM-V TR calling what we’re talking about “Gender Identity Disorder”:
http://www.dsm5.org/proposedrevisions/pages/sexualandgenderidentitydisorders.aspx
DSM-5 is not yet published but is expected next year so we don’t know what the APA will call it unless your allegiance to the cause affords you clairvoyance along with omniscience. But hey, why let a little erroneous fact cloud up an whole series of big erroneous facts?
You’re on a roll.
Cheryl is the real victim in a previous case which is being used prejudicially in this case.
And yes, I’ve been following the DSM V working group which, on an unrelated note, includes some of the worst possible people in the field to be set on such an issue. At any rate, they’ve proposed using Gender Dysphoria as the diagnostic criterion so that they can look progressive while keeping the same misogynistic (skirts on someone CAMAB = problem / pants on someone CAFAB, hell almost all masculine presentation on someone CAFAB = not problem) criterion.
These are some of the most inflexible people I could think to name, regarding trans people, regarding anyone, really, which I find ironic since Zucker and Blanchard are draft dodgers, but whatever. The language isn’t going to change, just like the Public Option wasn’t seeing its way back into the Affordable Care Act. Grow up.
And yes, murder doesn’t tend to move me to outrage any more than any other death caused by venality or negligence. The 43,000 men killed a year due to the workplace-related-fatalities gap, the 6,000 killed by coal pollution, the hundred or so killed every day on two-lane highways, the 150 or so killed daily due to lack of medical insurance in the United States (though that will likely change quickly) or hell, the child dying every three days due to accidental gun death… ALL OF THESE summon more anger for me.
And finally, I’d like to take the opportunity to note that you’ve once again made a lazy-ass implication regarding my mental health, because, frankly, the merits of the argument don’t seem to be enough for you to make your case effectively. I’d say you’re better than that, but experience is dictating otherwise.
valerie:
Though your unending replies are a wealth of silliness this one seems to top the cake:
“At any rate good for most people. But the constitution is not dependent upon majoritarian prejudice.”
Maybe you mean the protections of the first ten amendments but regardless you are wrong. Majoritarian prejudice (as well as majoritarian bias) it precisely what it depends upon. It’s a democracy and the Constitution depends entirely on popular support lest it be popularly changed. What you fail to realize is that your murderous little poster boy (and that’s what he was when he killed) could have his (and those in a class with him) 8th Amendment rights stripped away instantly on a vote by Congress or the States. He’s got no inviolate right to medical treatment to correct his gender confusion (By the way, GC doesn’t mean he confused about his gender; it means he has Gender Identity Disorder and feels he’s a man in a woman’s body in simple terms. There’s that expertise of your showing through again). He gets that right through the largesse of the majority who deign to tolerate this little speck of dirt’s rights to be free from cruel punishment on the grounds of protecting all our freedoms.
I do enjoy your self-proclaimed victories. You, ID, and Waldo need a group hug. Just remember self-proclaimed victories are the most fleeting kind and you really should know to argue around here with more than the tired old “You’re right because you’re right” approach.
BTW still waiting for your moral outrage at this man for killing his wife. Oh, I got the clinical version you posted before. Just wondering if your love for the issue clouds your take on the very real immorality on display by your poster boy. You’re a tad too sympathetic to a cold blooded killer for my liking. We have to accord him his rights; we don’t have to be giddy about it.
Nothing’s bringing Cheryl back… so yes, you’re completely right that this classical conservative is not moved to displays of false heroic outrage over her long-cold corpse. It’ll do no good beyond making someone rubbing gravel through their hair look good.
It is the conservative that seeks to uphold that which is good in people, even criminals. The liberal that seeks merely to punish for breaking society’s rules. Of course, having no sense of history, one imagines that definition of liberal and conservative is long lost on you.
As to pronoun use, I’m sorry, but transition is not the process by which one changes sex. One cannot change sex, but rather, the underlying neurological sex that, when matched with an inappropriate coercively assigned sex at birth, results in Gender Dysphoria (they don’t call it GID anymore, not in the DSM V), is there at birth. To argue otherwise betrays your cissexism on the issue (the overriding theme of your argument for denial of care).
And the amending formula requires a congressional majority as well as majorities in 3/4ths of the state legislatures, so no, constitutional rights are not suspended on a simple vote.
valeriekeefe 1, September 7, 2012 at 9:14 pm
That’s an interesting argument from the family, boiling down to essentially:
This surgery [and other transition medicine but please, let’s try to get the audience thinking scalpel-penis so they infer the person we’re arguing against is aberrant not just because of the whole murder deal] is completely unnecessary but if we allow it in prison, since it’s so ridiculously difficult to access, trans people are so desperate for this basic treatment that they will kill others to end the pain of gender dysphoria just like they currently most frequently kill themselves.
The logic… it’s not there, or it is, but not in the way they want it to be.
======================================================
There’s a clinic in Colorado.
http://www.nytimes.com/1998/11/08/us/sex-change-industry-a-boon-to-small-city.html?pagewanted=all&src=pm
Waldo 1, September 6, 2012 at 11:24 am
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.
========================
How about Susan Smith in South Carolina? A few of the jailers there got the clap.
Waldo 1, September 6, 2012 at 11:20 am
Had the state not conceded the necessity of the surgery there would be no case here.
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.
===========
How about patently stupid incompetent nonsense from judges, including federal judges. I know from experience.
Argue your case? What experts? You’re being a hypocrite. Is that unusual?
idealist707 1, September 6, 2012 at 11:42 am
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.
================
Did you watch the miniseries “Coma.” Rather boring and mundane.
What happens if you’re one of the humans that becomes cattle? Make sure you’re not on the wrong side of the picture.
valeriekeefe is Skippy in disguise.
Malisha 1, September 6, 2012 at 11:25 am
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.
=====================
I recently heard a TRUE story about a woman in eastern Oregon who shot her husband in the back of the head with a .22 while he was asleep. He was sleeping backed up in a recliner. The bullet traveled across the top of his skull and lodged just above his nose. He told people he thought the furnace had exploded.
She called one of her friends just before the shooting and said I have to get the dog out of there. Reports have it the dog hated her, so how she was able to get the dog out of there I don’t know. She didn’t go to jail.
The guy she shot told her, I know who shot me. She relocated.
idealist707 1, September 6, 2012 at 8:12 am
Matts,
I’ve been promised a….hungarian paprica meal by a hungarian lady, with east german partner.
==================
My ex-wife is half Hungarian, half German. She used to threaten me with knives.
She was a good cook though. She bought lots of spices.
OK, I have been reading up on the case (murder of wife) itself that led to this imprisonment. I still cannot find any reference saying Kosilek was a physician (it would do some violence to the “First, do no harm” principle to strangle someone with rope AND wire, huh?) — but I found that the victim’s family is now “breaking their silence” [I hate that phrase, first time I have used it] about their attitude about this.
“I appeared on the Dr. Drew show this evening to debate the “wisdom” of a judicial ruling ordering Massachusetts prison officials to provide sex-reassignment surgery to an inmate convicted of murdering his wife. I was the only voice against this outrageous abuse of taxpayer dollars — there were three for and Geller against.
“It is not an established fact that gender reassignment is medically necessary, on par with heart surgery or cancer treatment. And even if one grants that gender reassignment is medically necessary, Kosilek is a convicted murderer — he nearly decapitated his wife. He is serving life with no parole. A sex change operation? Really? I can just see all the transgenders in want of a sex-change operation committing serious crimes, getting serious time, filing serious lawsuits.
“The family of the nearly beheaded dead spouse fiercely opposes this gift. Please sign their petition.
“Murder victim’s family speaks out against husband’s taxpayer-funded sex change (thanks to Fern)
“BOSTON (FOX 25 / MyFoxBoston.com) The family of murder victim Cheryl Kosilek is speaking out against the taxpayer-funded sex change operation recently awarded to the man who killed her by a Massachusetts judge.
“Cheryl met her husband, Robert Kosilek, at a rehabilitation facility where she volunteered. Family members say Cheryl thoguth she could help Robert conquer his demons.
“In May 1990, Cheryl arrived home to find Robert dressed in her clothes and a fight ensued.
“Marlee Gomes, cheryl’s cousin, tells FOX 25 that Robert strangled Cheryl with a wire and attacked her until she was almost decapitated. He then drove her body to the Emerald Square Mall and left her in the car, naked. Robert reported her missing shortly after.
“Robert is currently serving a life sentence and recently won a long battle to get a sex change paid for by the state.
“You don’t know what’s it’s like to know that your cousin was murdered like that and now he’s being treated like a God,” says Marlee Gomes.
“For Marlee, her biggest problem with the verdict isn’t that taxpayers will be footing the estimated $20,000 bill for the surgery. She says it is more about the message the verdict sends to Kosilek and other people who want such a surgery or need a life saving surgery, but cannot afford it.
“What do they have to do? Go out and commit a crime to get the surgery that they absolutely need to have,” says Marlee.
“Cheryl’s family has started an online petition (http://www.change.org/petitions/commonwealth-of-massachusetts-overturn-ruling-on-taxpayer-funded-sex-change-for-convicted-murderer) asking for the judge in the case to reconsider his verdict and think about Cheryl…
“[Timothy McCaul] [that was the 15-year-old son of the victim, step-son of the convicted murderer] said Kosilek cooked him a steak dinner and that the two of them talked about commonplace things. After dinner, he said, Kosilek became worried about his wife’s absence and began calling hospitals and police stations, McCaul said.
“Later, he said, Kosilek told him that [Cheryl Kosilek] had gotten into an accident. Then, he said, Kosilek left to talk with detectives at the North Attleboro police station.
“McCaul also testified that Kosilek had shaved off his beard on the day of the killing – the first time he had done so in a year. He said Kosilek had last shaved his beard when he entered a treatment program after Cheryl kicked him out of the house for drinking.”
Wow, damn crazy case. Especially the body being naked in the back of the car and grilling the victim’s kid a steak.
That’s an interesting argument from the family, boiling down to essentially:
This surgery [and other transition medicine but please, let’s try to get the audience thinking scalpel-penis so they infer the person we’re arguing against is aberrant not just because of the whole murder deal] is completely unnecessary but if we allow it in prison, since it’s so ridiculously difficult to access, trans people are so desperate for this basic treatment that they will kill others to end the pain of gender dysphoria just like they currently most frequently kill themselves.
The logic… it’s not there, or it is, but not in the way they want it to be.
Valerie
Priceless list of STDs! Thank you (and Mark) for a wonderful conversation. It was as delicious and Buckley and Gore. I hope you stick around.
Alright person with an alias and no writings to respond to, I shall… um… what on Earth are you talking about?
Eat your heart out on that fried shrimp.
Must have gone to the gray matter, some STDs take over your brain. Then again, I suspect somehow you knew that.
Considering I referenced lifetime fatality of Syphilis, which for someone with any sense of history, would have been read as a reference to the parallel with Tuskegee, I believe “no duh,” would serve as an appropriate rejoinder.
VK,
Is your regular monologue anything akin to STD? I am going to have to spell out to you what STD stands for? You’re a bigger idiot than your writings suggest.
Sexually Transmitted Disease.
You were missing an article so I assumed you were referring to a proper noun. Also STD is akin to VD in that it is an incorrect and antiquated term. The modern method of referring to a Sexually Transmitted Infection is just that.
Also from Wikipedia:
STD may refer to:
Sexually transmitted disease
Short term disability
Subscriber trunk dialling, also known as subscriber toll dialling, allowing subscribers to dial trunk calls without operator assistance.
Doctor of Sacred Theology (Sacrae Theologiae Doctor)
São Tomé and Príncipe dobra, the ISO 4217 code for the currency of São Tomé and Príncipe
Sigma Tau Delta, an English honor society (acronym for “Sincerity, Truth, and Design”)
Standardization, a common abbreviation for “standard”
Standard deviation, a statistical measure
State transition diagram, a graphical representation of a state transition for a finite state machine
Scottish Football League Third Division
Sunbeam-Talbot-Darracq, one of the many incarnations of the Sunbeam Car Company
Grupo Santander, The New York Stock Exchange symbol
Saves the Day, an American punk rock/emo/indie music band
Schaffer The Darklord, a Nerdcore Rapper from Queens, New York.
Severe Tire Damage (band), a rock and roll “garage” band from Palo Alto, California
Severe Tire Damage (album), a 1998 album by the band They Might Be Giants
Stabbing The Drama
Small Target Drone
Subtropical depression, weather abbreviation
C++ Standard Library
Saturation Transfer Difference, NMR experiment
STD, followed by an integer, is a designation of an RFC that has been accepted as an Internet Standard
Stroud railway station (National Rail code) in Stroud, Gloucestershire, England
Scheduled Time of Departure, the time advertised by an airline (or other transport company) as the time a flight (or other form of transport) is due to start its journey.
std, the set direction flag instruction on x86 compatible CPUs, opposite of cld
Mayor Buenaventura Vivas Airport, in Santo Domingo, Venezuela (IATA code STD)
Considering the nature of the conversation, and that it was my writing style that was being compared to STD, I did believe I required clarification as to whether I was being compared to the cheekily surreal lyrics of one of my favorite bands, a nerdcore rapper, a programming language, or one of the many other, for want of a better word, sensical, comparisons available.
VK,
Is your regular monologue anything akin to STD?
You’re gonna have to expand those acronyms before I can answer you with any accuracy.
Mespo, just as you backtracked on your ridiculously foolish statement that the genetic basis for someone medical condition was somehow relevant to whether the state does or should provide medical care, I am happy to see that you now concede that this was a medically necessary treatment for Kosilek.
Oh, and the plural of Valerie does not contain an apostrophe.