Sexual identity, prison and the law

Court ordered sex reassignment surgery for convicted murderer ... Transsexuals' rights to medical treatment in prison ... Cruel and unusual punishment ... 8th amendment ... Political and media storm over judge's decision ... Reassurance for Bradley Manning's female alter-ego ... Stephen Keim and Benedict Coyne report 

Michelle Kosilek: trapped in the wrong body

THE difficulties faced by transgender individuals in an unsympathetic environment have been highlighted by the public revelation in pre-trial hearings of Bradley Manning's struggle with gender identity disorder.

Another long running legal battle has raised emotions and emphasised the importance of principle in dealing with vexed questions that involve the rights of prisoners.

The Massachusetts Department of Correction has resisted at almost every turn the granting of recommended treatment to prisoners in its care who are affected by gender identity disorder.

That resistance is on show in a judgment delivered on September 4 last year, by Federal District Court Judge Mark Wolf.

Judge Wolf's decision directed Commissioner Luis S. Spencer to forthwith take all of the actions reasonably necessary to provide prisoner, Michelle Kosilek, with sex reassignment surgery as promptly as possible.

Kosilek, formerly Robert, murdered his wife by strangling her. He disposed of the body and fled to New York State.

For that crime Kosilek is serving a life sentence without the possibility of parole. Kosilek believes that he is a female trapped in a male body.

This belief has led him to attempt self-castration and suicide while incarcerated. At the time he was taking the antidepressant Prozac.

History

The litigation involving Kosilek's quest for treatment has been running since 2000.

In a major judgment delivered on August 28, 2002, Judge Wolf declined to grant injunctive relief on the basis that the Department of Correction, now that it was better informed of its obligations, would provide hormone and other preliminary treatment to Kosilek.

That confidence was, for a time, justified. 

The then Commissioner of the Department, Michael Maloney, allowed Kosilek to begin female hormone treatment therapy in 2003 and, since that time, the prisoner has lived in the general male prison population with breasts and other feminine characteristics without being assaulted or engaging in any sexual activity.

Commissioner Dennehy comes and goes 

Mahony was replaced by Kathleen Dennehy as commissioner.

Previously, under Mahony, Dennehy had been involved in cherry picking advice so as to refuse Kosilek the appropriate treatment recommended by the medical experts who advised the department.

After becoming commissioner, Dennehy immediately terminated treatments then being provided to transsexual prisoners, including Kosilek, saying that she wanted to review the situation.

She then hired so-called experts on Gender Identity Disorder who were known for their committed religious beliefs. 

Dennehy was found by Judge Wolf to have given false evidence both as to her knowledge of the recommendations received from the department's retained doctors and her concerns about security issues.

Her claims were contradicted by documents she wrote herself. She was also involved in manipulating news coverage of the issue.  

Dennehy said she would resign from her position rather than oversee the provision of gender reassignment surgery to a prisoner.

On this occasion she was true to her word, leaving Spencer as her successor and the named defendant in the proceedings.

The Eighth Amendment

Judge Wolf: painstaking

Kosilek's litigation is based on the prohibition of cruel and unusual punishments in the Eighth Amendment of the US Constitution.

The prohibition has long been applied to the provision of basic needs of prisoners including medical care.

In Brown v Plata 131 S. Ct. 1910 (decided May 23, 2011), the Supreme Court confirmed and emphasised the obligation of the courts to act to remedy breaches of the Eighth Amendment involving failure to provide basic requirements of prisoners, including mental health care.

In applying the Eighth Amendment to conditions of prisoners, a careful jurisprudence has developed.

A number of criteria must be satisfied involving both the situation of the prisoner and the state of knowledge and belief of the prison administrators.

Judge Wolf painstakingly considered these tests in the light of the evidence before him.  

On that evidence he found that through his gender identity disorder, Kosilek has a serious medical need and that gender reassignment surgery is the only adequate treatment for that need.

Further, the Department of Correction (through Dennehy and then Spencer) is fully aware that Kosilek is at high risk of serious harm if he does not receive the surgery; the failure to provide the treatment was not based on good faith, reasonable security concerns or any other legitimate penological purpose; and, without an order being made, the unconstitutional refusal of adequate health care would continue into the future.

Public Controversy

Judge Wolf acknowledged in his judgment the public controversy associated with providing unusual and expensive surgery to prisoners, specially prisoners convicted of serious crimes.

Engagingly he sets out the contents of newspaper articles which, effectively, call him an idiot on the issues arising in the case. He also sets out the opinions of politicians opposed to prisoners receiving gender reassignment surgery.

But Judge Wolf was not intimidated.

Drawing on venerable jurisprudence from different eras, he restated that the Bill of Rights was intended to withdraw certain subjects from the realm of political debate; that the right to be free of cruel and unusual punishments may not be submitted to vote; and that even prisoners who have committed the most despicable acts are protected by the Eighth Amendment.

Lessons

The litigation and the controversy go on.

Activists in the transsexual community point out (as does Judge Wolf) that heart surgery or treatment for hepatitis does not raise the same emotional heat.

It is the medical needs of the transsexual community, not Kosilek's murder of his wife, that cause senators and journalists to rush to the barricades.

In November, Kosilek was back in court seeking an order that the electrolytic hair removal process, part of the treatment cut short by evidence, be resumed.

In December, Kosilek's lawyers were awarded $700,000 in costs - the price of all-out resistance to what was medically and legally the correct course of action.  

Bradley Manning has already received an excess of the wrong medical treatment during his pre-trial imprisonment.

His unpopularity among the opinion makers of American politics is well-known. If he does require treatment for gender identity disorder in prison he will, no doubt, face another difficult struggle.

The battle for him and others will be made a little easier by the experience of Michelle Kosilek and the lawyers who stood up for her constitutional rights. 

Stephen Keim and Benedict Coyne