Massachusetts: Sex Change Ordered for Transgender Prisoner; Court Finds that Two DOC Commissioners Lied

The en banc First Circuit Court ofAppeals is considering whether to order the Massachusetts Department of Correction (MDOC) to comply with a federal district court’s order requiring that a transgender prisoner suffering from Gender Identity Disorder (GID) be provided with sex reassignment surgery at the state’s expense.

Massachusetts officials appealed to the full First Circuit after a three-judge panel of the court voted 2-to-1 in January 2014 to uphold a landmark ruling by U.S. District Court Judge Mark L. Wolf in the case of Michelle Kosilek, who is serving life without parole.

Wolf held that Kosilek, 65, was denied the surgery not for legitimate medical reasons, but rather due to pressure on the MDOC not to use state funding for sex reassignment surgery for prisoners – even though GID is considered by medical professionals to be a legitimate, serious mental health condition.

In a 129-page, September 4, 2012 order, Judge Wolf found that former MDOC Commissioner Michael Maloney had repeatedly lied and engaged “in a pattern of pretense, pretext and prevarication” that was designed to conceal the real reasons for denying Kosilek surgery; those reasons, according to Wolf, included fear of public and political outcry, criticism, ridicule and scorn.

Since early childhood, Michelle Kosilek, who was born Robert, felt she was the wrong gender. Following years of struggle with her gender identity, Kosilek believed a drug counselor, Cheryl McCaul, who said “that his transsexualism would be cured by ‘a good woman.’”

McCaul couldn’t have been more wrong. She married Kosilek, but after becoming furious when she caught Kosilek wearing her clothes in 1990, Kosilek strangled her, abandoned her body in the trunk of their car and fled.

“He showed up at his trial in a dress, calling himself Michelle, telling anyone who would listen that his inner woman was trying to overcome his, well, outer man,” the Boston Globe reported. “Even his lawyer seemed unsure whether to call him he or she.”

Kosilek was convicted of murder in 1992 and sentenced to life without possibility of parole; she obtained a legal name change from Robert to Michelle.

After Kosilek twice tried to commit suicide and attempted to castrate herself, GID experts recommended psychotherapy. Prison officials ignored those recommendations. By 2002, Kosilek was at high risk of suicide due to her severe, untreated mental health condition.

MDOC’s own expert recommended that Kosilek receive treatment with female hormones and be evaluated for sex reassignment surgery after a year of living as a female. That was not what then-MDOC Commissioner Michael Maloney wanted to hear.

“Maloney did not regard sex reassignment surgery as an appropriate use of taxpayers’ money,” the district court found. “Maloney and his colleagues ... thought that any such expenditure would be politically unpopular. Maloney did not want to authorize hormones or sex reassignment surgery for Kosilek or any other inmate unless he was legally obligated to do so.”

Kosilek filed suit, and on August 28, 2002 the court found that her GID constituted a serious medical condition. The court did not order the MDOC to take action, though, because “it expected that the DOC would begin to treat” Kosilek, and found she had failed to prove that Maloney was deliberately indifferent to her serious medical needs. See: Kosilek v. Maloney, 221 F.Supp.2d 156 (D. Mass. 2002).

The MDOC revised one of its policies in December 2002, and the following year Kosilek began undergoing evaluation for treatment. In August 2003 she began taking estrogen hormones, and two months later was allowed to begin wearing female undergarments.

However, MDOC Deputy Commissioner Kathleen Dennehy replaced Maloney in December 2003, and immediately “began taking a series of actions intended to delay, and ultimately deny, the medical care that was being prescribed for Kosilek.”

“Dennehy was determined not to be the first prison official in the United States to authorize sex reassignment surgery for an inmate,” Judge Wolf found. “Indeed, she testified ... that she would retire rather than obey an order of the Supreme Court to do so.”

Departing from longstanding MDOC policy to rely on its doctors to retain specialists, Commissioner Dennehy took the unprecedented step of hiring Cynthia Osborne, a licensed social worker who was “sympathetic to the DOC’s opposition to providing sex reassignment surgery and other treatment.” The district court found that “Dennehy was not truthful when she testified that the DOC did not hire Osborne because of her predictable position that Kosilek should not receive sex reassignment surgery.”

In early 2005, while claiming she did not understand that MDOC doctors were recommending sex reassignment surgery for Kosilek, “Dennehy selectively gave interviews to some members of the media in an effort to demonstrate that she was responsive to the political and public opposition to using tax revenues to provide a prisoner sex reassignment surgery.”

As the trial in Kosilek’s federal lawsuit began in the spring of 2006, public officials and the media continued to object to her request for a sex change. “Dennehy was aware of these statements, and the wide-spread public hostility to providing sex reassignment surgery for prisoners,” the court noted.

Ultimately, Judge Wolf found that “Dennehy testified untruthfully on many matters. This contributes to the conclusion that her stated reasons for refusing to allow Kosilek to receive the surgery were pretextual.”

Dennehy resigned in April 2007, and Harold W. Clarke was named commissioner seven months later. “The court directed Clarke to consider some of the evidence presented at trial and decide whether” he would allow Kosilek to receive surgery. However, on April 4, 2008, “seventeen State Senators sent a letter to Clarke” which, the district court wrote, “would have reasonably been interpreted as a veiled threat that appropriations for the DOC might be reduced if Clarke reversed Dennehy’s position” as to providing sex realignment surgery. Further, “on April 8, 2008, twenty-five State Representatives wrote to Clarke to express ‘outrage’ at the request that taxpayers fund a ‘sex-change’ operation for Kosilek.”

Clarke received and understood the message. On May 7, 2008 he informed the court that safety and security concerns implicated by providing the surgery were “insurmountable.”

However, the “stated reasons for denying Kosilek the care the DOC doctors have prescribed are not reasonable and made in good faith,” the district court held in its September 4, 2012 order. “Rather, the defendant has refused to provide the only adequate treatment for Kosilek’s serious medical need in order to avoid public and political criticism. This is not a legitimate penological purpose.”

“Elected officials are entitled to express their views on whether a prisoner should receive sex reassignment surgery. The media has the right to comment critically on the conduct of prison officials and judges,” the court added. “Every citizen has a right to criticize public officials, including judges, too.”

Regardless, Judge Wolf noted that the Supreme Court has held the Eighth Amendment’s prohibition against cruel and unusual punishment, which extends to the denial of treatment for prisoners’ serious medical needs, “may not be submitted to vote; it depends on the outcome of no elections.”

Wolf wrote that “it is despised criminals, like Kosilek, who are most likely to need the protection of the Eighth Amendment and its enforcement by the court. Denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose.”

The district court therefore ordered the MDOC to provide Kosilek’s prescribed sex reassignment surgery “as promptly as possible,” as it was “evident that the defendant will continue to violate Kosilek’s Eighth Amendment rights if a court order is not issued.” The order was directed at MDOC Commissioner Luis Spencer, who had replaced Clarke in 2011.

In upholding Wolf’s order on January 17, 2014, a First Circuit Court of Appeals panel wrote that receiving medically necessary treatment is a constitutional right that must be protected “even if that treatment strikes some as odd or unorthodox.”

The appellate court affirmed the district court’s findings, including “that Kosilek has a serious medical need for the surgery, and that the DOC refuses to meet that need for pretextual reasons unsupported by legitimate penological considerations,” concluding that Judge Wolf “did not err in granting Kosilek the injunctive relief she sought.” See: Kosilek v. Spencer, 740 F.3d 733 (1st Cir. 2014), rehearing en banc granted, 2014 U.S. App. LEXIS 2660.

However, in appealing the three-judge panel’s ruling to the full Court of Appeals, the state contended during oral argument in May 2014 that Kosilek does not need sex reassignment surgery because she has already received a substantial amount of treatment, including female hormones, psychotherapy and laser hair removal to make her more feminine.

“While we acknowledge the legitimacy of a gender identity disorder diagnosis, DOC’s appeal is based on the lower court’s significant expansion of the standard for what constitutes adequate care under the Eighth Amendment, and on substantial safety concerns regarding Ms. Kosilek’s post-surgery needs,” the MDOC said in a statement.

“The clinician didn’t say you must have this surgery, but that if you want it you can get it,” MDOC attorney Richard McFarland told the appellate court. He added that only 5% of people diagnosed with GID actually undergo sex reassignment surgery.

Kosilek’s lawyer, Joseph Sulman, responded that the treatment already received by his client has alleviated “some of her pain, but she still suffers from severe mental anguish that cannot be treated without the surgery.”

He added: “Under the Eighth Amendment, the standard is that prisoners are entitled to adequate medical care, minimally adequate medical care, not the care of their choice or optimal care. In this case, the doctors hired by the prison said that this is her minimally adequate care. That she has a serious medical need that can only be treated by [surgery].”

McFarland also argued that serious security issues could result from housing Kosilek at an all-male facility. He told the appellate court that if Kosilek received the surgery, her notoriety could create a dangerous environment for her among other prisoners.

But Circuit Judge William J. Kayatta, Jr. said the only reason Kosilek is considered notorious is because she has “consistently pursu[ed] her rights through the U.S. Constitution.” He noted that the corrections department already holds other infamous prisoners; also, the First Circuit panel remarked in its January 2014 ruling that the Washington Department of Corrections has “housed a post-operative female transgender inmate, also serving a life sentence for murdering a female relation,” without experiencing security-related issues.

The Court of Appeals’ en banc decision remains pending. If the MDOC loses the appeal, it would be the first state prison system required to provide sex reassignment surgery.

Additional sources: www.cbs12.com, www.abc15.com, www.wcvb.com, Boston Globe

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