Murderer in Prison Gets a Sex Change
When I write articles for this website, I always keep in the back of my mind the possibility of a future employer reading what I’ve written. I certainly voice my opinions and have teetered on going overboard once or twice, but never before have I decided to argue for a side that no one seems to support (well right now, it’s 97 percent who disagree with me according to this poll)
This week, U.S. District Judge Mark Wolf ordered prison officials in Massachusetts to provide sex-reassignment surgery for a transgender inmate.
Think that’s ridiculous? Well, if you do, you’ll really like this: Michelle (born Robert) Kosilek is serving a life sentence for murdering her wife and has no possibility of parole. (The court opinion referred to the prisoner as “she”, though the surgery had not yet been performed, and I will, too).
I’ll allow you some time to scream at your computer monitor before continuing. Believe me, I hear you.
“Why the hell should tax payers have to pay for this?” “This surgery is for a sex change, for god’s sake, a choice, not a remedy for something universally agreed to be medically necessary.” “Plenty of people who haven’t killed their wives would love to have this surgery, but don’t, because they can’t afford it. So why should a murderer get this operation for free, when hardworking, law-abiding citizens can’t?”
Like I said, I hear you. But now take a second to hear me.
Michelle Kosilek was in prison for committing the most heinous of crimes, murder. So what? In the United States, prisoners are given treatment for their serious medical conditions regardless of their crimes. End of discussion. So the only questions that matter are whether this prisoner suffers from a serious medical condition and whether gender reassignment surgery is necessary for treatment.
Both these questions were heavily addressed in Judge Wolf’s 126-page decision. In his ruling, Judge Wolf determined gender reassignment surgery was the “only adequate treatment” for a “serious medical need.” He writes: “The court finds that there is no less intrusive means to correct the prolonged violation of [Ms.] Kosilek’s Eighth Amendment right to adequate medical care.”
The media has had trouble explaining exactly how Judge Wolf arrived at his decision; allow us.
For a successful Eighth Amendment claim, it is not enough for an inmate to prove that he has not received adequate medical care. He also must show that the prison officials responsible for his care have ignored a serious medical need.
Ms. Kosilek satisfied this requirement. She has tried to not only castrate herself, but also attempted suicide twice, once while on Prozac. The Department of Corrections’ own doctors diagnosed her with Gender Identity Disorder and the Seventh Circuit recently stated in Fields v. Smith that Gender Identity Disorder is a serious medical condition, comparing the denial of treatment for it to the denial of treatment for cancer. Treatment of the condition can sometimes be adequately addressed with psychological counseling while other, more extreme, cases require the use of hormone therapy — or gender reassignment surgery.
Judge Wolf makes sure to note that while an inmate is not entitled to ideal care or the care of her choice, courts must decide if the care being provided is minimally adequate. And the judge determined, based on the testimony of medical professionals, that gender reassignment surgery was necessary for Michelle Kosilek’s survival, that refusing the gender reassignment surgery did not rise to minimally adequate care.
Simply put, in order to grant the surgery Judge Wolf required that Michelle Kosilek show that: 1) She has a serious medical need (check); 2) Sex reassignment surgery is the only adequate treatment for it (check); and 3) The prison officials know that she is at a high risk of serious harm if she does not have the surgery (check).
The judge also required that the plaintiff prove that 4) The prison officials have denied the surgery for reasons other than reasonable, good faith, reasonable security concerns or any other legitimate penological purpose, and 5) By refusing the surgery, the prison officials’ conduct would continue to violate the Eighth Amendment.
Despite the prison officials’ best attempts to show that allowing Michelle Kosilek to have the sex reassignment surgery would make her a “target for sexual assaults by other inmates,” Judge Wolf ruled that factors 4 and 5 above were met, too, and ruled that it would be up to the prison officials to decide how and where to house the prisoner after the surgery.
According to Judge Wolf, the real reason for denying Michelle Kosilek surgery was “a fear of controversy, criticism, ridicule and scorn.” I agree. Just check comments on the Internet. The decision is being met with outrage.
But, like it or not, the law is on the prisoner’s side.
Meghan Lalonde contributed to this article.