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

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.

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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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