Is Denying Treatment to Transsexual Inmates 'Cruel and Unusual'?

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When a prisoner tries to commit suicide and self-mutilate, it's a sign of a serious medical condition -- one that the state has a duty to treat.

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Kosilek in court in 1993 (AP)

Convicted wife killer Michelle (née Robert) Kosilek is hardly a sympathetic figure, and Federal District Court Judge Mark Wolf will not win any popularity contests for ordering the Massachusetts Department of Corrections to provide Kosilek with sex change surgery for her severe "gender identity disorder." It's "an outrageous abuse of taxpayer dollars," Senator Scott Brown blustered predictably, although he favors spending many more taxpayer dollars to appeal Wolf's ruling in the hope that "common sense" will ultimately prevail.

Actually, common sense as well as constitutional law has prevailed, as Judge Wolf's lengthy, deliberate decision in Kosilek v Spencer makes clear. Kosilek suffers from a recognized, "major mental illness. ... He truly believes that he is a female cruelly trapped in a male body," which Kosilek has sought to escape through castration and suicide. (All court documents refer to Kosilek as a "he," although she self-identifies as a woman.) Treatment with female hormones (ordered by an earlier court decision) did not provide relief, and Department of Correction (DOC) doctors concluded that surgery "is the only form of adequate medical care for his condition."

Providing prison inmates with adequate care for severe illnesses seems, if not commonsensical, than minimally humane; it is also mandated by 8th Amendment prohibitions on cruel and unusual punishment. If Kosilek were suffering from cancer, or from schizophrenia or another "major mental illness," even Scott Brown might not be offended by her request for treatment, and Kosilek would probably not have had to file a federal lawsuit to obtain it. Some may consider basic medical care for prisoners a form of coddling, but constitutional provisions requiring it are well established. Kosilek's case is controversial because of public skepticism about her illness and the extent of her suffering.

In fact, Judge Wolf found that state officials acted in bad faith to deny Koselik treatment for political, not penological, reasons. The judge found and stressed repeatedly that former Corrections Commissioner Kathleen Dennehy "engaged in a pattern of pretext, pretense, and prevarication" because she feared that providing sex change surgery to an inmate (particularly a convicted murderer) would "provoke public and political controversy, criticism, scorn, and ridicule."

She fabricated security concerns, "falsely claimed" not to know whether doctors "viewed sex reassignment surgery as medically necessary," and coordinated comments to the media with a state senator who sponsored legislation barring the use of tax dollars to provide sex reassignment surgery to inmates. In other words, she lied, shamelessly and repeatedly: "Dennehy testified untruthfully on many matters."

This is, after all, a shocking (if not surprising) case involving "an outrageous abuse of taxpayer dollars," but not for the reasons cited by Senator Brown. It's a shocking example of a morally corrupt official willing to waste a great deal of public money disingenuously litigating a legitimate demand for necessary medical treatment, in service to her political agenda.

But it's worth stressing that Dennehy was not alone in defying the state's obligation to provide inmate medical care. As the First Circuit Court of Appeals observed in Battista v Clarke, the Massachusetts Corrections Department had a habit of wrongly denying treatment to inmates with gender identity disorder. After prolonged litigation, convicted rapist Sandy Battista (who also tried to castrate himself) won a federal injunction requiring that she be treated with female hormones and given access to women's clothes, after the trial judge found that he could not trust state officials, perceiving in their behavior "a pattern of delays, new objections substituted for old ones, misinformation and other negatives."

Official resistance to treating transsexual prisoners may or may not lessen in the aftermath of the Kosilek case. Public opposition to Wolf's ruling is easily provoked. It's easy to sensationalize and misrepresent. Critics claim that it will lead to a rash of false gender identity disorder claims or frivolous lawsuits demanding other presumptively frivolous treatments, like cosmetic eyelid surgery.

But, as Judge Wolf dryly observed, it's unlikely that any healthy male prisoner will try to castrate himself in order to receive female hormones. And anyone who takes the time to read his ruling (it's quite accessible) will discover that 8th Amendment claims for medical treatment must clear a very high bar. An inmate must demonstrate that officials acting in bad faith have denied him adequate (not ideal or superior) medical treatment for a serious illness, and that the bad faith denial of treatment will continue, absent a court order. (He might also have to spend years in litigation.) As Judge Wolf wrote:

(I)n this case to obtain an order directing the DOC to provide sex reassignment surgery, Kosilek has been required to prove that: (1) he has a serious medical need; (2) sex reassignment surgery is the only adequate treatment for it; (3) the defendant knows that Kosilek is at high risk of serious harm if he does not receive sex reassignment surgery; (4) the defendant has not denied that treatment because of good faith, reasonable security concerns or for any other legitimate penological purpose; and (5) the defendant's unconstitutional conduct will continue in the future.

This was not a frivolous claim, unless perhaps you agree with one critic of Judge Wolf's ruling who opined that prison inmates should experience some "pain." That's a harsh and maybe not unpopular view, and the official infliction of gratuitous pain and suffering, at issue in the Koselik case, is probably not unusual. But it is cruel, it should be barred by the 8th Amendment, and a society that applauds it has a tenuous claim to decency.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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