A Victory for the “Movement”

The big news about transpeople is not something which is likely to help us win friends and influence people.  On the other hand, the headlines are of some interest.  Transgender-inmate ruling is movement’s latest win says the AP’s Megahn Barr.  

So I guess we have won recognition as a “movement”.  On the other hand Michelle Kosilek is not going to win us any friends.  Federal Judge Mark Wolf has ordered a state-funded gender reassignment surgery for Kosilek, who during her transition in 1990 murdered her wife, Cheryl McCaul.  He strangled her with wire and left her body in the trunk of a car at a mall in North Attleboro, MA.  Kosilek is currently serving life without parole.

Wolf has ruled that Kosilek has suffered from gender identity disorder (newly rechristened “gender dysphoria”) since she was a young child, was “born in the wrong body” (Goddess, I hate that phrase), began taking hormones while in prison and requested treatment for her disorder.  Such treatment was denied.  As a result Kosilek twice has tried to commit suicide and also has attempted self-castration.  For 12 years her attorneys have been arguing that the Constitution states that she has the right to treatment for her condition.

There are two reasons people balk at this.  First, a lot of people think violent inmates don’t deserve good medical treatment.  If I were McCaul’s sister, I might welcome news of Kosilek’s suffering.  I’d want her to hurt as much as possible.  I’d be outraged that a murderer could get care that many law-abiding people can’t.

But we don’t do justice according to the wishes of the angriest and most wounded among us.  The system turns on punishment, not revenge – on the denial of liberty, not of all other rights.  We are supposed to adhere to higher standards of humanity than those of the people we imprison for violent crimes.  That’s what gives us the credibility to sit in judgment in the first place.

The Eighth Amendment, which prohibits cruel and unusual punishment, is central to those standards.  Withholding medical treatment violates that prohibition.  And the law is clear that prisons must treat not just symptoms, but the underlying illness – not just Kosilek’s depression, but the disorder that causes it.

Yvonne Abraham, Globe columnist

Of course, the second reason people reject the concept is that our condition is not considered a legitimate illness.  People view us as freaks…as not part of “We, the people”.  So corrections officials and politicians have understandably rejected the advice of medical doctors for fear of losing their jobs…or future political viability.

The defendants first claimed that they were not being deliberately indifferent to Kosilek’s needs, stating that they did not know there would be safety concerns involved.  But DOC Comissioner Dennehy actually fired a doctor who recommended surgery for Kosilek and when another doctor called in Fenway Health for consultation, overruled that and brought in a doctor who was known to oppose reassignment surgery to do the analysis.

When made aware of the danger by court decision, the commissioner changed stance, claiming that providing surgery for the plaintiff would raise security concerns.

It is conceivable that a prison official, acting reasonably and in good faith, could perceive an irreconcilable conflict between his duty to protect the safety of inmates and his duty to provide a particular inmate with adequate medical care. If so, his decision not to provide that medical care might not violate the Eighth Amendment because the resulting infliction of pain on the inmate would not be unnecessary or wanton. Rather, such a decision might be reasonable. The Supreme Court has held that “prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.” Farmer, 511 U.S. at 845; see also White[], 849 F.2d [at] 325 [] (“Denial of medical care that results in unnecessary suffering in prison is inconsistent with contemporary standards of decency and gives rise to a cause of action under 42 U.S.C. §1983. Actions without penological justification may constitute an unnecessary infliction of pain.”) (emphasis added).

Kosilek v Spencer

As described below, in the instant case the court is persuaded that defendant’s stated reasons for denying Kosilek the care the DOC doctors have prescribed are not reasonable and made in good faith.  Rather, they are pretextual.  More specifically, Kosilek has not been denied sex reassignment surgery because of a good faith belief that his security, or anyone else’s, could not be reasonably assured if he is provided sex reassignment surgery.  Rather, the defendant has refused to provide the only adequate treatment for Kosilek’s serious medical need in order to avoid public and political criticism. This is not a legitimate penological purpose.  Therefore, the defendant’s conduct is wanton and violates the Eighth Amendment.

–Judge Wolf, Kosilek v Spencer

The Judge based his conclusion on the fact that Dennehy, as deputy commissioner, was involved in decisions previously rejected that claimed that sex reassignment surgery was not an appropriate use of taxpayers’ money, that she participated in the firing of Dr. Seil for recommending said surgery, halted Kosilek’s treatment in 2003, and that, while claiming that she did not know that the surgery was the sole treatment for Kosilek’s condition, wrote to the Director of the Bureau of Prisons, “[o]ur medical providers[,] the Commonwealth’s medical school, is supporting their consultant’s recommendation for the surgery !!!!!!”.

It is not permissible for prison officials to [deny treatment] just because the fact that a gender identity disorder is a major mental illness is not understood by much of the public and the required treatment for it is unpopular.

–Judge Wolf, Kosilek v Spencer

I admire a man with principles.

The Order:

1. Judgment shall enter for plaintiff Michelle Kosilek.

2. Defendant shall take forthwith all of the actions reasonably necessary to provide Kosilek sex reassignment surgery as promptly as possible.

3. The possible award of reasonable costs and attorneys fees, pursuant to 42 U.S.C. §1988, is reserved for future consideration.

1 comment

    • Robyn on September 8, 2012 at 12:59 am

    …in the way that some movements try to increase the numbers in their ranks.  But it is a movement for equal rights.

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