A Massachusetts inmate serving life in prison for murder is in court demanding the state pay for a sex-change operation:
The case of Michelle — formerly Robert — Kosilek is being closely watched across the country by advocates for other inmates who want to undergo a sex change.
[…]
Kosilek, 58, was convicted of strangling his wife in 1990. He claimed he killed her in self-defense after she spilled boiling tea on his genitals.
…
Naturally, expert witnesses are lining up to defend Kosilek, and a law firm is representing him pro bono:
Two other doctors retained and paid for by the department’s outside health provider, the University of Massachusetts Correctional Health Program, at a cost of just under $19,000 said they believe the surgery is medically necessary for Kosilek. Two other doctors who work for the health provider agreed with that.
In addition, two psychiatrists who testified for Kosilek recommended the surgery. A Boston law firm representing Kosilek for free paid for those experts but would not disclose the cost.
Aside from the propriety of taxpayers paying for a sex change operation (which Kosilek may or may not have been able to pay for himself had he not been in prison), corrections officials are correct that having a (now) woman in a male prison could pose significant problems. It is almost a given that should the operation be performed, Kosilek would petition to be moved to a women’s prison to protect his own safety.
Also, note the interesting correction at the bottom of the story:
(This version CORRECTS `himself’ to `herself.’)
Kosilek hasn’t had the sex change yet, so technically he is still a man – apparently the newspaper thought so, too. It would be interesting to find out who compelled them to change the story to portray Kosilek as a female – and in the process perhaps avoid their own lawsuit.
As noted in the story, Wisconsin went through a similar situation in 2004 when inmate Scott (now Donna Dawn) Konitzer was denied genital gender reassignment surgery by the Department of Corrections and sued the state. Department policy had been to provide hormone therapy to those who had been receiving it for a year before their incarceration, but surgery was not provided as an option. As Kosilek now has, Konitzer claimed denial of the procedure constituted “cruel and unusual punishment” in violation of the Eighth Amendment to the U.S. Constitution.
As a result of Konitzer’s lawsuit, the Wisconsin Legislature actually passed into law a ban on both hormone therapy and gender reassignment surgery. Naturally, that new law has been challenged in U.S. District Court in Milwaukee.
17 Comments
Here’s the deal, Kosilek is a woman. She is a pre-operative transgendered woman, but a woman. And being a woman in all but genitalia she is already in danger in a man’s prison.
I’d recommend transfering her to a prison medical facility for her safety, but no sex reassignment surgery.
Why not compromise? Give Kosilek a few medical instruments and let him do it himself.
I can accept a certain level of, shall we say, fluidity to human sexuality. But I do not believe that God, nature, evolution, the Master Plan or what have you, meant for there to be knife incisions, removals and/or attachments of vital parts, and hormone dumping. That’s just interference with the natural order that goes much too far. And there are probably underlying mental health issues that need resolution instead carving human beings Mr. Potato Head-style. Where is the AMA on this? And at long last, there is no way taxpayers should have to pay for this insanity.
It says a lot about the legal profession that a firm has taken his/her case pro bono.
Anybody know what is the Constitutional basis of the Wisconsin lawsuit? I assume it is Eighth Amendment. What part of punishment is denying public funds for elective surgery?
I doubt that the newspaper’s correction stemmed from fear of lawsuit rather than adherence to the Associated Press style guide on how to handle pronouns for the transgendered.
According to PACER, the law firms who are doing this case pro bono are Bingham McCutchen LLP and Dechert LLP. Defendants include the University of Massachusetts Medical School. It is Case No. 1:00-cv-12455-MLW (D. Mass.).
Kellogg,
This makes it too easy. If I’m a male in a supermax facility for really bad people, then the best way to improve my situation (short of a successful escape) is to get myself transferred to a women’s prison, where even there I would be segregated from the general population. It’s a wonder more guy’s havn’t figured out what Corporal Klinger did.
Nevins: Sex reassignment is very unpleasant (I have a friend who went through it). The hormonal changes are distinctly uncomfortable, the surgeries are painful, the learning curve of dealing with your new plumbing is high…when you’re at an intermediate stage (which can last for years) it’s exceedingly unpleasant…
Plus, if you do not in fact believe yourself to be in the wrong-gendered body, you then have to live the rest of your life in the unpleasant situation that drives transsexuals to switch in the first place (unpleasant enough to make people voluntarily undergo all the stuff I listed above).
That’s a high price to just get into a nicer prison (where many inmates won’t consider you a real woman, and will harass you accordingly).
Folks, ask Zoe about mtf transiting. And she never planned on changing sex.
Normally the prospective transexual needs to go through counseling, then hormone therapy and passing as the other gender before the surgery takes place.
BTW, AA, God is perfect, the world aint. Things happen that wouldn’t if the world were perfect. There are XX individuals who are male at birth. There are XY individuals who are female at birth. There are people out there who have ambigious genitalia, rudimentary or nonexistent genitalia, or mixed genitalia. Then you have those who’s brains don’t match their privates. Life isn’t about what should be, life is about what is. That includes people with the wrong parts. We have the resources to correct such errors, God gave us free will, so I say we correct the mistakes and stop fussing about it. Or would you rather we enact laws against it and clog up the courts with useless prosecutions?
But looking at this case:
https://www.overlawyered.com/2004/06/ultimate_in_buyers_remorse.html
I wonder how long until the DoC gets sued for allowing the Sex Change.
I seem to remember an article out of Johns Hopkins, one of the first to perform these operations, that showed no improvement in emotional outcome from the surgery and that they were choosing to stop performing them.
What next – bleaching negros? Solly Cholly, this is cosmetic surgery. Not on my dime.
This really brings into play two concepts, the first being the whole idea of sex reassignment surgery, and the second being what level of medical treatment prisoners are entitled to (which obviously is at taxpayers’ expense). The gender issue has been pretty well established as legitimate in many cases, however bizarre it may seem to many of us. It seems like a reasonable position to take, however, to say that a certain level of medical necessity must be established before a prisoner is entitled to a procedure.
He/she is not necessarily out of line to ask for it, but I doubt the State is violating the constitution in saying no.
First off, I’m all for the transgendered.
It’s the fact that these convicted criminals are trying to force the state (and hence the taxpayers) to pay for their gender reassignment surgery that gives me a problem.
Most, if not all, of law-abiding transgendered people have to pay for their own reassignment surgeries. Many can’t afford them at all.
There are also millions of hard-working, law-abiding citizens without health insurance who can’t afford procedures and medications that would save, extend, or drastically improve their lives.
It’s crueler and more unusual punishment to let good, lawful citizens go without treatment that to let this lifer go without a state-funded vagina.
Maybe she can afford one herself like everyone else, starting with all the funds her lawyers are spending on experts right now.
Alan Kellogg: Kosilek is NOT a woman. Kosilek has not had the operation yet, and is not legally a woman.
And the sad but true fact is that sex-reassignment surgery does not really turn a man into a woman anyway. All it can do is make a person superficially appear as a woman, and change his legal status on paper. But this is an outward illusion only. It does not change DNA or hormones (which must be supplied for life) and will not allow him to ever give birth to a child.
And to everyone: believe it or not, no matter how silly you think this case is, the UK is actually worse. You can see here:
http://shieldofachilles.blogspot.com/2007/06/americans-your-tax-dollars-at-work.html
I hope the logic used by most of the commenters here is still used once I get out of law school, it’ll make my job a lot easier.
1. GID is in the DSM-IV and the accepted treatment for severe GID is surgery.
2. That being the case, withholding treatment of a mental disorder is “cruel and unusual” punishment.
3. Without surgery, the inmate will be held in a prison based on their genital configuration. Since they will be targets in most prison settings, they are usually kept in solitary confinement. Again, cruel and unusual punishment.
The figures I’ve seen saying SRS (sex reassignment surgery) costs $52,000 dollars. That’s a highly inflated figure. Even the most expensive surgeon in the US is $26,000. The surgeries are performed in Thailand for as little as $1600.
The answer is quite easy. Either remove GID from the DSM, or pay for the surgery. The cost of doing the surgery within the prison system would be minimal compared to the cost of litigating this out.
PS. The John Hopkins study is old, and is from a known evangelical that has done work for the Catholic Church.
But he’s not biased….
“The cost of doing the surgery within the prison system would be minimal compared to the cost of litigating this out.”
Yes… this ONE surgery. Once established as a “right”, it will not be just this ONE surgery, I assure you.
Not to mention that this is also about what’s RIGHT, not just about what’s cheap.
Gosh, where to begin?
The standard rate in most textbooks for Transsexuality is 1 in 30,000. It’s more than that, but the measured cost of providing health insurance coverage for surgery in the general population is 11c a year.
There seems to be a fear that there will be massive numbers of (presumably gay) males queuing up to be castrated. Think about that, and you can see how absurd it is.
My surgery in Thailand cost $16,000 US – but I went to the most expensive surgeon there. Necessary, as the normal operation requires a normal male anatomy to start with, and this surgeon’s procedure doesn’t.
From a legal viewpoint, I refer you to “Re Kevin in Perspective” in the Deakin Law Review 2004.
Re Kevin – Significant findings of Justice Richard Chisholm in respect of the expert medical evidence in that case as to the causation of transsexualism and as strongly affirmed by the Full Court on appeal
quote
At paragraph [247]: ‘In my view the expert evidence in this case affirms that brain development is (at least) an important determinant of a person’s sense of being a man or a woman. No contrary opinion is expressed. All the experts are very well qualified. None was required for cross-examination, nor was any contrary evidence called’.
At paragraph [248]: ‘In my view the evidence is, in essence, that the experts believe that the brain development view is likely to be true, and they explain the basis for their beliefs. In the circumstances, I see no reason why I should not accept the proposition, on the balance of probabilities, for the purpose of this case.’
At paragraph [252]: ‘The traditional analysis that they are “psychologically” transsexual does not explain how this state came about. For example, there seems to be no suggestion in the evidence that their psychological state can be explained by reference to circumstances of their upbringing. In that sense, the brain sex theory does not seem to be competing with other explanations, but rather is providing a possible explanation of what is otherwise inexplicable’.
At paragraph [253]: ‘In other words (as I understand it) the brain of an individual may in some sense be male, for example, though the rest of the person’s body is female’.
At paragraph [265]: ‘In my view the argument in favour of the “brain sex” view is also based on evidence about the development and experience of transsexuals and others with atypical sex-related characteristics. There is a vast literature on this, some of which is in evidence, and I can do no more than mention briefly some of the main points’.
At paragraph [268]: ‘It seems quite wrong to think of these people as merely wishing or preferring to be of the opposite sex, or having the opinion that they are’.
At paragraph [270]: ‘But I am satisfied that the evidence now is inconsistent with the distinction formerly drawn between biological factors, meaning genitals, chromosomes and gonads, and merely “psychological factors”, and on this basis distinguishing between cases of inter-sex (incongruities among biological factors) and transsexualism (incongruities between biology and psychology)’.
At paragraph [272]: ‘In my view the evidence demonstrates (at least on the balance of probabilities) that the characteristics of transsexuals are as much “biological” as those of people thought of as inter-sex’.
At paragraph [136]: ‘I agree with Ms Wallbank that in the present context the word “man” should be given its ordinary contemporary meaning. In determining that meaning, it is relevant to have regard to many things that were the subject of evidence and submissions. They include the context of the legislation, the body of case law on the meaning of “man” and similar words, the purpose of the legislation, and the current legal, social and medical environment. These matters are considered in the course of the judgment. I believe that this approach is in accordance with common sense, principles of statutory interpretation, and with all or virtually all of the authorities in which the issue of sexual identity has arisen. As Professor Gooren and a colleague put it:-
“There should be no escape for medical and legal authorities that these definitions ought to be corrected and updated when new information becomes available, particularly when our outdated definitions bring suffering to some of our fellow human beings”.’
end quote
Changing one’s external, apparent gender to match the constant, internal one you’ve had since birth is difficult, to say the least. There are huge medical and social problems. Having legal absurdities too does not help.
I believe the Wisconsin denial of hormones is incontestably a barbarity. As for surgery, if the competent medical authorities rule that surgery is necessary to keep someone alive and sane, the legislature should not gainsay them – regardless of the nature of that surgery.
If a prisoner were outside, she probably would have to pay for it herself. But if it’s medically necessary, shuldn’t insurance pay for it? And you’re paying a share of insurance, aren’t you? So why quibble about, essentially, paying insurance-charges-as-taxes?