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September 4, 2012

Federal district court concludes sex-change operation medically necessary for transgender prisoner

42911660-robert-kosilekAs effectively reported in this new post at the WSJ Law Blog, "a federal judge in Boston has ordered Massachusetts authorities to provide a taxpayer-funded sex-change operation for a transgender prisoner."  Here is more about the ruling from the WSJ Law Blog (which also provides this link to the opinion):

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, who used to go by “Robert.”

Kosilek 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.”...

Specialists have diagnosed Kosilek with severe gender identity disorder, and since 2003 he has been receiving female hormones. Kosilek lives in the general population of an all-male prison in Norfolk, Mass. Despite the hormone treatment and psychotherapy, Kosilek has attempted to castrate himself and twice tried to commit suicide, according to court documents....

A spokeswoman for the Massachusetts Department of Correction, Diane Wiffin, said, ”We are reviewing the decision and exploring our appellate options.” A lawyer for Kosilek, Frances Cohen of Bingham McCutchen LLP, said she was “pleased and gratified that we got such a thoughtful and full decision from the chief judge.”

The ruling in this case is sure to engender lots of talk-show discussion, but I encourage readers of this blog to take the time to at least read the introduction to the opinion (which itself runs 23 pages) before expressing any views on the merits of the decision.  Everyone should, of course, read all 126 pages of the full opinion before reaching any firm conclusion about the ruling and whether and how an appeal to the First Circuit might proceed.  But I will be content to hear comments after a review of the introduction, which should be sufficient to allow at least informed initial judgments about whether this is just another example of Reagan-appointed federal judges going all crazy activist in a high-profile health care case.

September 4, 2012 at 05:00 PM | Permalink


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Why do we even have to read the opinion? This result is preposterous. I don't know when "medically indicated" became the same as what is required by the 8th Amendment, but that's simply horrible law.

Posted by: federalist | Sep 4, 2012 6:22:58 PM

It's not just medically indicated, but medically necessary. The 8th amendment obviously requires that prisoners be provided medically necessary treatments.

Given precedent, at least in the 1st circuit, this is clearly the right decision.

However, I'm a bit skeptical of how everything these days seem to be a psychological disorder. Not knowing the science behind determining whether there is an actual disorder or psychologists just wanting to label everything I can't really comment.

The general idea though that somehow the constitution requires the state provide sex reassignment surgery seems absurd. That is certainly not what was the 8th A. was ever meant to do. I'm just not sure where the line is to be drawn. Especially by non medical expert judges.

Posted by: Matt | Sep 4, 2012 7:45:58 PM

When a state prisoner is serving a life sentence I would say that the only medical treatment required by the federal constitution is that which would prevent other prisoners from becoming ill and just enough treatment to keep the subject inmate from suffering needless pain.

There should be no requirement when speaking of such an offender to provide actual cancer treatment for instance, only pain relief. I would treat this case in a similar manner. And why the hell would the state /stop/ a prisoner serving a life sentence from committing suicide? That is sheer idiocy.

I would be more than happy if all prisoners (whether serving a life sentence or not) were given the option of a opiate or barbiturate overdose.

Posted by: Soronel Haetir | Sep 4, 2012 8:11:41 PM

A preliminary factual question: Do most insurance companies pay for sex change operations? Or is that considered too experimental, exoctic or medically unproven for them to be willing to shell out?

Posted by: Bill Otis | Sep 4, 2012 8:34:11 PM

MY GOD! the world is ending!

WE ALL agree.

I think the judge issuing the order is a BIGGER WACKO then the one who asked for it in the first place!

Sorry just how is being MALE so friggin medically hurtful that is is NECESSARY he be turned into a woman!

If he thinks god has fucked up so bad when he was made MALE he's welcome to ask for a suicide pill so he can take it up with him direct!

Posted by: rodsmith | Sep 4, 2012 9:47:38 PM

One should consider a sex change operation to be cosmetic, like a face lift. The patient wants to look a certain way, but it entirely cosmetic and elective surgery.

Transgender people do not have a higher rate of mental illness, nor a higher rate of suicide. They are otherwise normal people with a preference for a certain look.

If this decision stands, then a blepharoplasty (eyelid update, and removal of bags under the eyes) has the same constitutional protection.

I would like to know if the judge's campaign was funded by plastic surgeons. This would be a massive rent seeking victory for the plastic surgeons, taxpayer funded, expensive, entirely elective surgery at taxpayer expense.

Posted by: Supremacy Claus | Sep 4, 2012 10:35:11 PM

Making the assumption that the procedure was medically necessary (not a huge assumption to make, seeing as how apparently docs for the DOC -- not exactly a known criminal coddler -- were recommending the surgery as "the only form of adequate medical care" for Mrs. Kosilek, why is this an issue? I mean, I know why it's newsworthy, but AFAIK sexual or gender identity disorder is an actual thing, albeit rare.

Posted by: Guy | Sep 4, 2012 10:55:06 PM

"medically indicated"/"medically necessary"--words. The issue is whether the 8th Amendment requires the states to pay for this. The answer is no. The 8th Amendment doesn't require that every "disorder" be treated. In other words, whatever docs decide collectively is not binding on the states.

This isn't hard.

Posted by: federalist | Sep 5, 2012 12:21:01 AM

Medical necessity implies damage to health if a procedure does not take place. Be specific. What damage would take lace if the sex change operation were no done? I am frustrated by the effects of aging on my face. But a face lift is not medically necessary.

Posted by: Supremacy Claus | Sep 5, 2012 1:18:17 AM

"Do most insurance companies pay for sex change operations?"

Depends on the insurance company; there are plans that do indeed cover it. I don't know enough to say if "most" do. It is not considered to be an experimental procedure or medical procedure; that I do know.

Posted by: Daniel | Sep 5, 2012 2:28:44 AM

Sorry, that should have read "medically unproven" rather than "medical procedure".

Posted by: Daniel | Sep 5, 2012 2:30:29 AM

They say that bad cases make bad law. However, this case is so patently absurd (I think lots of people would think this story was actually a hoax) that, unfortunately, it may be time for a bad law.

Posted by: alpino | Sep 5, 2012 3:23:12 AM


Inmates deserve medical care, correct? Don't you think that a psychiatric condition that causes things like attempts at self-castration and multiple suicide attempts warrants treatment? If the accepted course of treatment is sexual reassignment surgery, shouldn't that be provided? (I guess that last question is more rhetorical, since I know your answer is no, but I'm interested to know where the hangup is).

Posted by: Guy | Sep 5, 2012 9:17:51 AM

Guy --

The problem is scarcity. We have only so much money (as those urging early release constantly remind us). The main problem is not that this operation is exotic and not something the taxpayers who will foot the bill would find bizarre at best. The main problem is that it just costs so much.

The country is sixteen trillion dollars in the hole. We can't afford to live the way we thought we could. Everyone, prisoners included, is going to have to live with less.

This operation may be "medically indicated," but cheaper treatments are fiscally indicated. Thought experiment: If the operation cost fifty million dollars, would you still say the court could require it? If not, it becomes a matter of the allocation of money, not constitutional imperative, and thus a matter for the political branches, and not the judicial branch, to decide.

Posted by: Bill Otis | Sep 5, 2012 9:39:43 AM

Guy, what started out as the obvious--a prison couldn't simply stand by and let prisoners suffer from disease, injury what have you--has transmogrified into a right to sex reassignment surgery. That simply turns the 8th Amendment into a requirement that prisons do whatever some doctor thinks is medically indicated. That isn't the law, nor should it be. To repeat, the case law which arose from things like prisoners ignoring broken bones, easily treated diseases etc. has now reached its logical extreme, and this decision should be a caricature of our judicial system, but unfortunately, it's just typical. The idea that a state should have to pay for this exotic surgery is beyond nuts. Doctors don't have the ultimate say over what is constitutionally required medical care, and taxpayers shouldn't have to pay for this.

Murderers simply don't get to demand that the state make such expenditures. It really is that simple.

Posted by: federalist | Sep 5, 2012 9:48:40 AM

Yes, Doug, why should we read the opinion? When I think something is obviously wrong, I don't feel to need to read the other side. It's a waste of my limited resources. This includes when "whatever some doctor thinks is medically indicated" is deemed required or "doctors at the commonwealth’s Department of Correction" ... which doesn't quite seem like the same thing, but ...

Why is "right to sex reassignment surgery" deemed required in this specific case, Mr. Reagan appointee? Well, the attempts to castrate, kill and degree of mental anguish puts him in a different stance than many a transsexual who wants such surgery. They might convince a doctor to provide it but less so to find it compelling. The "exotic" nature of the surgery is unclear -- people have sex change operations. There are rarer surgeries. What is specifically special about this sort? Does precedent rely on mere cost conclusions?

The procedure btw doesn't cost "50 million dollars." Yes, prisoners live with "less." But, they still have the right (per precedents that a lower court judge follows, even if s/he thinks them stupid) to health care that at times is expensive. If "doctors at the commonwealth’s Department of Correction" think such and such of thing is required, seems to me at least reasonable to believe it is. You know, we aren't talking the ACLU here. Such doctors are aware of fiscal limits and so forth.

Reference is made to a limit to health care here to "just enough treatment to keep the subject inmate from suffering needless pain." Is that actually the standard? And, given the facts here, and how alternative treatment was found by prison doctors to NOT meet it, where does that take us? Basically, the talk show nature of the procedure is immaturely (with respect) apparently affecting the analysis here. I say this w/o concluding the specific case is correct. But, some other "exotic" procedure that might seem stupid and might cost some money IS covered by precedents, like it or not.

Posted by: Joe | Sep 5, 2012 11:17:46 AM

It's tough for me to buy into a sex-change operation for people in prison. However, I'm a lawyer, not a doctor or psychiatrist. As the opinion notes, sex reassignment surgery is standard medical practice for patients with a disorder as severe as Kosilek's. The court heard the evidence and found that the head of the prison system was "prevaricating" about the reasons for opposing the surgery and was actually motivated by fear of public backlash.
As for the cost, a quick Google search showed that male-to-female sex-change surgery costs about $17,000 to $24,000. A kidney transplant runs about almost $90,000 for the first year. Dialysis costs about $44,000 per year. So a sex change operation is really "small change" in the general run of medical treatment that prison systems routinely provide. Do we really need to worry that a flood of inmates will suddenly demand sex-change operations?
Compare the cost of a sex change operation with what the Massachusetts has spent over the years on litigation to avoid providing the procedure.
Even with those facts I'm still scratching my head about this one, but if I'm really going to disagree with the judge on this one, it should be based on something other than just a gut feeling.

Posted by: Bryan Gates | Sep 5, 2012 12:13:53 PM

Bill & federalist:

But we give out expensive medical treatment to sick inmates all the time. And I believe the wording used was that SRS was that it was the only adequate medical care available, not that it is medically indicated. Something may be medically indicated, but also may not be the only adequate care available -- may seem like a fine difference, but an important one.

We give out expensive medical procedures all the time. We give heart surgeries, brain surgeries, chemo, etc -- when they are needed. I take it that they cost money, too. Also, the SRS is most likely a one-off thing, whereas chronically ill inmates are continuing costs (e.g. multiple heart surgeries, multiple rounds of chemo) and yet we don't institute "death panels" to determine when an inmate has gotten too expensive to provide care for.

So then why not provide necessary medical treatment for this inmate as well?

Posted by: Guy | Sep 5, 2012 2:11:40 PM

I find nothing extreme or tortured in the reasoning and the result from this district court judge. This is no doubt because I've come to know several transgendered people in St. Louis in my own participation in LGBT issues over the past 30 years. The transgendered person I know best had the remarkable good fortune to work for a boss whose father was a physician and who stressed to the employer that my friend's need for the surgery was no joke, but a serious medical need.

In light of the truly liberating impact of this surgery on my friend's life and her basic well-being, this ruling seems not only totally plausible, but exemplary. I particularly commend this portion of the judge's opinion, at pages 18-19:

As the Supreme Court has explained, “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” W.Va. State Bd. Of Educ. V. Barnette, 319 U.S. 624, 638 (1943). Therefore, “[t]he right to be free of cruel and unusual punishments, like other guarantees of the Bill of Rights, may not be submitted to vote; it depends on the outcome of no elections.” Furman v. Georgia, 408 U.S. 238, 268 (1972) (Brennan, J., concurring) (internal quotation omitted). Prisoners who have lost their liberty by murdering others may understandably be unsympathetic candidates for the humane treatment tht they denied their victims. However, as future Supreme Court Justice Anthony Kennedy wrote in 1979: “[T]he whole point of the (Eighth) [A]mendment protections are not forfeited by one’s prior acts.” Spain v. Procunier, 600 F.2d 189, 194 (9th Cir. 1979). It is despised criminals, like Kosilek, who are most likely to need the protection of the Eighth Amendment and its enforcement by the courts.”

Posted by: David Hemingway | Sep 5, 2012 5:32:17 PM

"That simply turns the 8th Amendment into a requirement that prisons do whatever some doctor thinks is medically indicated."

I share this concern, too. While I think that doctors and other medical professionals can inform the law I do not think they have a right to dictate to the law; that would ultimately create serious democratic problems. What I do not have a good feel for is just how much weight the judge gave to the medical opinion in reaching his decision.

Posted by: Daniel | Sep 5, 2012 6:18:24 PM

Guy and Joe --

Your reasoning suggests that there is no limit on the amount of money a judge can order the taxpayers to cough up for a prisoner's medical care. Is that in fact your position?

Posted by: Bill Otis | Sep 5, 2012 10:40:08 PM

Bill --

No. I haven't really considered what limits should be placed on medical care. What I said was that we already dish out expensive medical care for sick inmates, and I would imagine that in some cases we spent in excess of what the SRS would cost, do I don't think the expense is exactly novel to the prison system.

From the hip, though, do I think that DOC docs should be required to exhaust all extraordinary measures to treat a patient? No. But I do think care that is medically necessary should be provided, and I don't think that SRS qualifies as an extraordinary measure. It's the course of treatment for a recognized, albeit rare, psychiatric condition.

Posted by: Guy | Sep 6, 2012 5:11:14 PM

that's true guy! BUT in all your examples we are talking about if they don't get it..THEY DIE!

in this case if he stays the MAN he was born as. he will live! probably not comfortable...but last time i looked comfortable wasn't even guaranteed when FREE never mind IN PRISON!

Posted by: rodsmith | Sep 6, 2012 7:55:39 PM

rodsmith --

I don't know -- I'm not a doctor -- but multiple suicide attempts and attempts at self castration caused by an underlying psychiatric condition seem kind of serious and potentially fatal if not treated.

Posted by: Guy | Sep 7, 2012 1:43:44 AM

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