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December 16, 2014

Split en banc First Circuit reverses judgment that sex-change operation was medically necessary for imprisoned murderer

Sex changeAs reported in this AP article, a "divided federal appeals court on Tuesday overturned a ruling ordering Massachusetts prison officials to provide taxpayer-funded sex-reassignment surgery for an inmate convicted of murder." Here are the basics:

Michelle Kosilek, born Robert Kosilek, is serving a life sentence for killing spouse Cheryl Kosilek in 1990.  Kosilek has waged a protracted legal battle for the surgery she says is necessary to relieve the mental anguish caused by gender-identity disorder.

In 2012, U.S. District Judge Mark Wolf became the first judge in the country to order sex-reassignment surgery as a remedy for an inmate's gender-identity disorder. Courts around the country have found that prisons must evaluate transgender inmates to determine their health care needs, but most have ordered hormone treatments and psychotherapy, not surgery.

Wolf's decision was upheld by a three-judge panel of the 1st U.S. Circuit Court of Appeals, but prison officials appealed and won a rehearing before the full appeals court.

In a 3-2 ruling Tuesday, the full 1st Circuit found that Kosilek failed to demonstrate that prison officials violated the Eight Amendment prohibition against cruel and unusual punishment by not providing the surgery.

The court noted that the state Department of Correction has provided treatment for Kosilek's gender-identity disorder, including female hormones, laser hair removal and psychotherapy. The court also noted the department's concerns about protecting Kosilek from sexual assaults if she completes her gender transition. She is currently housed in a male prison but hoped to be transferred to a female prison after the surgery.

"After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment," Judge Juan Torruella wrote for the majority.

Two judges disagreed with the majority. In a sharply worded dissenting opinion, Judge Ojetta Rogeriee Thompson suggested that Kosilek would not have had to fight a long battle for constitutionally adequate medical care if she was not seeking "a treatment that many see as strange or immoral."

"Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter's protraction," Thompson wrote.

The full 100+ page ruling is available at this link, and the majority opinion gets started this way:

This case involves important issues that arise under the Eighth Amendment to the U.S. Constitution.  We are asked to determine whether the district court erred in concluding that the Massachusetts Department of Correction ("DOC") has violated the Cruel and Unusual Punishment Clause of the Eighth Amendment by providing allegedly inadequate medical care to prisoner Michelle Kosilek ("Kosilek").  More precisely, we are faced with the question whether the DOC's choice of a particular medical treatment is constitutionally inadequate, such that the district court acts within its power to issue an injunction requiring provision of an alternative treatment -- a treatment which would give rise to new concerns related to safety and prison security.

After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment.  We therefore reverse the district court's grant of injunctive relief, and we remand with instructions to dismiss the case.

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December 16, 2014 at 09:18 PM | Permalink

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Comments

Sex change operations are cosmetic, like a rhinoplasty. Only lawyer intimidation and the resulting PC made it more than just that. Being heavy is an involuntary trait. All fat prisoners should demand a tummy tuck and liposuction.

Lawyer stupidity knows no bound.

Posted by: Supremacy Claus | Dec 17, 2014 7:11:12 AM

The institution's own doctors found the surgery appropriate as did the district judge (with the job of fact-finding here), the latter appointed by Reagan. The medical need here was determined by special circumstances of the case, more compelling than your garden variety case of a transsexual prisoner. Then, you had original panel agreeing.

I realize the tabloid fodder of the case, but doubt the 3-2 second guessing here warranted.

Posted by: Joe | Dec 17, 2014 9:33:51 AM

The taxpayers are supposed to pay money for a surgery to cut some convicts weenie off????? Come on Professor. This article is a spoof.

Posted by: Liberty1st | Dec 17, 2014 11:05:09 PM

Joe. I respect your role, to defend the Twilight Zone thinking and outcomes of the lawyer dumbass.

Question. He has his 100% cosmetic and medically unnecessary operation (if he does not get it, he stays healthier and at much less risk of surgery than if he does get surgery). Does he then get moved to a woman's prison, where is in hog heaven gazing on fat ladies in the shower, being a male dog under all that bullshit? If he finds someone to marry, will it be a female, and he prefers to be called a lesbian, or will it be a male, and he prefers to be called a homosexual? Should we respect his demand, to zing it to the authorities, in a horrific and expensive prank, and refer to him as her?

Or will he stay in the men's prison and start a busy prostitution business? If he is to be isolated, what is the point of changing sexes?

The doctors should have their licenses suspended, the original judge needs to be removed or impeached.

Explain again who is suffering the biggest cruelty at the hands of the lawyer dumbass, the prisoner or the taxpayer, shelling out a $million dollars to please this victim of the system?

Posted by: Supremacy Claus | Dec 18, 2014 2:02:53 AM

Expand your horizons -- the doctors here signed off on it.

The "lawyer dumbass" move there is to pretend they (or judges) know better. After two levels of courts decided otherwise, three judges thought they knew better.

Ditto in the marijuana thread. Our stupid drug policy isn't really their fault.

Posted by: Joe | Dec 18, 2014 11:02:58 AM

This is horse itShay. Cut his weeny off and let it go at that. Gender this and gender that. Next they will have a right to a dog and pony show.

Posted by: Liberty1st | Dec 20, 2014 11:15:41 PM

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