Judge Orders Sex-Change Operation for Prisoner: Two Views
In a first-of-its-kind ruling, a federal judge in Boston has ordered Massachusetts authorities to provide a taxpayer-funded sex-change operation for a transgender prisoner.
Chief U.S. District Judge Mark Wolf said he based his ruling on the recommendations of doctors at the commonwealth’s Department of Correction who prescribed sex-reassignment surgery as “the only form of adequate medical care” for Michelle Kosilek.
Kosilek, who used to go by “Robert,” is serving life in prison without the possibility of parole for the 1990 murder of his wife.
Judge Wolf, describing his 126-page order as “unprecedented,” said that denying Kosilek the surgery was a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.
Prison officials opposed the operation, saying they couldn’t provide security for Kosilek were he to receive a sex change — an argument Judge Wolf described as “pretextual.” Several state legislators publicly opposed using taxpayer funds to pay for the sex-reassignment surgery
Convicted wife killer Michelle (née Robert) Kosilek is hardly a sympathetic figure, and Federal District Court Judge Mark Wolf will not win any popularity contests for ordering the Massachusetts Department of Corrections to provide Kosilek with sex change surgery for her severe “gender identity disorder.” It’s “an outrageous abuse of taxpayer dollars,” Senator Scott Brown blustered predictably, although he favors spending many more taxpayer dollars to appeal Wolf’s ruling in the hope that “common sense” will ultimately prevail.
Actually, common sense as well as constitutional law has prevailed, as Judge Wolf’s lengthy, deliberate decision in Kosilek v Spencer makes clear. Kosilek suffers from a recognized, “major mental illness. … He truly believes that he is a female cruelly trapped in a male body,” which Kosilek has sought to escape through castration and suicide. (All court documents refer to Kosilek as a “he,” although she self-identifies as a woman.) Treatment with female hormones (ordered by an earlier court decision) did not provide relief, and Department of Correction (DOC) doctors concluded that surgery “is the only form of adequate medical care for his condition.”
Providing prison inmates with adequate care for severe illnesses seems, if not commonsensical, than minimally humane; it is also mandated by 8th Amendment prohibitions on cruel and unusual punishment. If Kosilek were suffering from cancer, or from schizophrenia or another “major mental illness,” even Scott Brown might not be offended by her request for treatment, and Kosilek would probably not have had to file a federal lawsuit to obtain it. Some may consider basic medical care for prisoners a form of coddling, but constitutional provisions requiring it are well established. Kosilek’s case is controversial because of public skepticism about her illness and the extent of her suffering.
In fact, Judge Wolf found that state officials acted in bad faith to deny Koselik treatment for political, not penological, reasons. The judge found and stressed repeatedly that former Corrections Commissioner Kathleen Dennehy “engaged in a pattern of pretext, pretense, and prevarication” because she feared that providing sex change surgery to an inmate (particularly a convicted murderer) would “provoke public and political controversy, criticism, scorn, and ridicule.”
Someone who wants a sex-change operation but cannot afford the expensive surgery is pretty much out of luck. Most insurers will not cover the operation, considering it elective surgery.
But Robert Kosilek doesn’t need luck. He has a federal judge on his side.
By virtue of having murdered his wife, Kosilek is an inmate in the Massachusetts state prison system. Kosilek, who has received hormone treatments and is living as a woman in an all-male prison as Michelle Kosilek, will get the sex-reassignment surgery — courtesy of Bay State taxpayers.
U.S. District Judge Mark Wolf ruled Tuesday that surgery is the ‘only adequate treatment’ for Kosilek’s ‘serious medical need.’
Wolf’s ruling is ludicrous and sets a ridiculous precedent. By Wolf’s logic, prison inmates now enjoy privileges and rights — to free, elective surgery in this case — that the general population does not. The state Department of Corrections should pursue every possible appeal available in this case.