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to Section One | to Arts & Entertainment
posted Friday, December 19, 2014 - Volume 42 Issue 51
No surgery for Trans prisoner, First Circuit says
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No surgery for Trans prisoner, First Circuit says

by Mike Andrew - SGN Staff Writer

A Transgender prisoner does not have a right to gender reassignment surgery, the First Circuit Court of Appeals ruled on December 16. Their ruling overturns the decision of a federal district judge who ruled that denying the woman surgery violated her Eighth Amendment protection against cruel and unusual punishment.

Michelle Kosilek, now 65 years old, was convicted of murdering her then-wife Cheryl McCaul in 1990. She is serving life without parole in a Massachusetts men's prison.

In 2000, Kosilek informed prison officials that she is a woman, and filed suit to get medical treatments to facilitate her transition. In 2002 she won counseling and hormone therapy, and also received electrolysis for a short time in 2008.

In 2006 she requested gender reassignment surgery, and when that was denied she sued the Massachusetts Department of Corrections. Her medically diagnosed gender dysphoria causes her a high level of depression, anxiety, and stress, she said, and only surgery will alleviate the symptoms.

In 2012, U.S. District Judge Mark Wolf ruled that the Massachusetts Department of Corrections had violated Kosilek's constitutional rights by denying sex reassignment surgery. The judge also blasted then-Corrections Commissioner Kathleen Dennehy for engaging in 'pretense, pretext, and prevarication' to deny Kosilek the treatment.

Wolf wrote that Dennehy had 'testified untruthfully on many matters' while lobbying the state legislature for a law that would prohibit her from providing gender reassignment surgery to inmates.

Wolf then ordered the Department of Corrections to provide Kosilek with the surgery.

Massachusetts Governor Deval Patrick appealed Wolf's ruling, bringing the matter to the First Circuit. The appellate court decision was sharply split, with three judges of the five-judge panel voting to reverse Wolf, and two voting to uphold his decision.

Writing for the majority, Judge Juan R. Torruella indicated that prison administrators were best suited to determine whether security issues trumped the rights of Trans inmates to medically necessary health care.

Judge Wolf, Torruella added, had wrongly substituted his own beliefs on medical care for expert opinions, since expert witnesses did not unanimously agree that Kosilek's current health care was constitutionally inadequate.

In her dissenting opinion on this resolution, Judge O. Rogeriee Thompson charged that social prejudice against Trans citizens played a large part in her colleague's decision to reverse Kosilek's access to health care.

'I am confident that I would not need to pen this dissent, over 20 years after Kosilek's quest for constitutionally adequate medical care began, were she not seeking a treatment that many see as strange or immoral,' Thompson wrote. 'Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter's protraction.'

'The precedent the majority creates is damaging,' she added. 'It ... aggrieves an already marginalized community, and enables correctional systems to further postpone their adjustment to the crumbling gender binary.'

Gay and Lesbian Advocates and Defenders, which assisted with Kosilek's lawsuits, condemned the First Circuit decision.

'I am appalled by this decision, which means that Michelle Kosilek will continue to be denied the life-saving medical care she needs and has been seeking for years,' Jennifer Levi, director of GLAD's Transgender Rights Project, said in a statement.

'It is difficult or impossible to imagine a decision like this one - that second-guesses every factual determination made by the trial court - in the context of any other prisoner healthcare case. This decision is a testament to how much work remains to be done to get transgender people's healthcare needs on par with others in the general public.'

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