A DISCUSSION OF LAW AND JOURNALISM

Murderer in Prison Gets a Sex Change

By Ryan Morrison

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.

Comments

15 Comments »

15 Responses

  1. Andrew Merola says:

    Very well written article and i can see your position on this, but imho, michelle/robert can screw themselves and deal with it. if they want to cut off there penis or commit suicide that there decision. This isnt cancer, this isnt going to cause your death by ignoring it. YOU may CHOOSE to Take your life, but thats your choice. i fully support euthanasia, assisted suicide etc… but to have a highly expensive unneccessary surgery on the taxpayers dime is absurd….. id compare it similarly to a Boob job. You could make the same argument. This person suffers from “boob size dilemma” and could rise to the level of serious medical situation, bc the person could take their own life out of there psychological issue, but does that mean the taxpayer should pay 10grand for every female inmate that wants a free tit job? i dont think so, and i think the same principles apply here.

  2. Anonymous says:

    I don’t see why we can’t just put a strait-jacket on this lunatic. Yes, going through a sex-change would stop him from trying to castrate himself, but that is far more expensive than some simple physical restraints. I don’t believe that a murderer deserves our money to go through an operation when we can handle the problem in a more simple and far less expensive manner. If he can’t handle the discomfort of being restrained at all times then he should stop trying to kill himself! Also, if an inmate persistently attempted suicide because they suffered from Cleithrophobia (fear of being locked inside an enclosed space), would we set them free? I don’t think so. He would just have to deal with it. Kosilek should deal with it too.

  3. Mike Monroe says:

    ^^ that was me by the way.

  4. Anonymous says:

    Both of the above commenters put my thoughts perfectly into words. Without gender reassignment surgery, she’s not unsafe. She’s unhappy, which she most certainly deserves to be.

  5. WHAT IS THE WORLD COMING TO??? says:

    THAT’S ALL. JUST WHAT IS THIS WORLD COMING TO? RIDICULOUS. AND THAT SOMEONE DIED AT THIS GUY’S HANDS MAKES IT, IN FACT, SHAMEFUL.

  6. Sam says:

    You are all haters. This is a troubled human being, who was trying to hurt him/her self, even while on medication. Doctors for the prisons examined the prisoner and recommended he surgery.

  7. Sam says:

    You are all haters. This is a troubled human being, who was trying to hurt him/her self, even while on medication. Doctors for the prisons examined the prisoner and recommended he surgery.

  8. Jason says:

    This fairy deserves castration and a hanging not surgery from my pocket

  9. Anonymous says:

    I find it interesting that most of the comments against allowing this surgery for Michelle involve how it’s morally wrong, not a severe health concern, only “psychologically threatening” and not “life threatening”, as if the two are mutually exclusive, etc and avoiding the only valid argument against it, being “I don’t want my taxes paying for it”. However, even that argument is invalid due to the fact that there is a legal responsibility for “necessary medical care” in correctional facilities. If the surgery is deemed necessary, due to the fact that the person in question would have their life and well being threatened, then the surgery is necessary and protected under the law.

    I find it disgusting that I share atmosphere with anyone who would compare GID (potentially soon to be renamed/edited or withdrawn from the DSM) with wanting a “boob job”. It’s that blatant lack of scientific education which makes the US an easy target for criticism from the global scientific/humanitarian community. You should be ashamed of yourself, but I know you’re actually proud of that ignorant comparison.When you’re done patting yourself on the back, go read a book.

  10. Claud Skate says:

    Your tax dollars aren’t paying for it. The insurance companies are. Stop your crap.

  11. Mike says:

    And the fact that insurance companies would pay for it is the reason why health insurance is so expensive. I work in the medical field and I see countless tests and procedures done on a regular basis that are unnecessary, and are only performed so the docs can see a reimbursement from insurance. More insurance payouts means more expensive premiums. And to Mr. Anonymous: instead of attacking a person that you may not know for something they said, just attack and argue what they said. Grow up

  12. Mike says:

    oh and… the guy is in prison… who do you think is paying insurance??? Taxes.

  13. At least im brave enough to put my name behind my statements. And yes, you’re right i do stand by my statement and beliefs, and i recognize the standpoint youre coming from. I understand the argmuent, and i understand the line of thought that would justify this for you. I will never know what its like to be tortured on the inside because i felt i was in the wrong body. And i’ll even defend the rights of that person to have that procedure Covered by insurance, even tho it usually isnt. HOWEVER, what i Do NOT stand for, is the fact that this person is in prison for murder. He Lost His Rights. Thats what prison is, an unfun place to be. Thats kinda the POINT of it. If he’s so tortured that he takes his own life, fine, You could probably same the same for many inmates. I recognize that this person is medically sick, but my definition of proper care while in a prison would be to KEEP YOU ALIVE, not make you happy with yourself. My argument has NOTHING to do with its my tax dollars, tho im not a fan of that either, my argument is that is an ELECTIVE procedure, not a required one to keep the individual alive.

  14. Wendy says:

    A women’s life was taken , her husband took her last breath , her last heart beat , he took away a daughter, a sister, a cousin a friend , he took away her holding a baby for the first time , the joys of the holidays with people she loves , he took her happiness , her LIFE , yet We should worry about HE wants to be a Her, HIS punishment should be remaining what HE came into this world as Not what HE took out I this world, a women he promised to
    Love, honor , cherish through sickness and health ,NOT MURDER ! Let’s take the money being wasted on this waste and donate it to protect women against spouse abuse or the number one killer in women heart attacks and breast cancer or give it to a family that can’t get proper medical treatment for a REAL medical condition, this is a WANT not a requirement , I am sure his wife would WANT to be alive today , let HIM remain a HIM , punishment is due for taking a precious life , looking at HIS picture HE does not make a proper women anyway, THEN wants to be in a women prison after killing a women ? Would
    Not they be at risk ? This is so
    Sick !

  15. Carrie Simms says:

    Ridiculous ridiculous ridiculous.

    People want to kill themselves all the time in prison. Understandable. But to let them get their wish so they won’t? To let them get something that they wouldn’t get if they weren’t in prison?

    Shameful shameful shameful.

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