Murderer’s Sex Change: Cruel, Or Just Unusual?

BY KELLY HEARD — When the Honorable Mark L. Wolf, a Massachusetts District Court judge, recently handed down a landmark ruling that Massachusetts taxpayers must foot the bill for a prisoner’s gender reassignment surgery, outrage ensued. Senator Scott Brown referred to the ruling as “an outrageous abuse of taxpayer dollars.” Brown’s opponent and Harvard Law School professor Elizabeth Warren agreed.

The outrage is understandable. Prisoner Michelle Kosilek—formerly Robert Kosilek—was convicted of murdering her wife, Cheryl Kosilek, in 1990 and sentenced to life without the possibility of parole. Mark Ohannessian, a relative of Cheryl Kosilek, indicated that the news is “torture” to her family.  Another Cheryl Kosilek relative is working with Senator Brown to ensure the surgery never happens.

The issue with which Chief Judge Wolf was faced was whether refusal to pay for Kosilek’s gender reassignment surgery would violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Chief Judge Wolf admitted that the decision was “unprecedented,” and yet he wrote that gender reassignment surgery was the only option because “there is no less intrusive means to correct the prolonged violation of Kosilek’s Eighth Amendment right to adequate medical care.”

Judge Wolf issued his ruling in the face of stiff opposition. Kathleen Dennehy, the Massachusetts Department of Corrections former commissioner, testified that the surgery would pose overwhelming security issues. Chief Judge Wolf struck down her testimony as “pretextual” and said the real reasons for opposing the surgery were “political controversy, criticism, scorn, and ridicule.”

The widespread opposition to Judge Wolf’s decision is understandable. After all, Kosilek committed a heinous crime. Furthermore, many Americans struggle to pay for even basic health care. Why should a murderer have the benefit of a taxpayer-underwritten procedure that many would consider elective?

That being said, Chief Judge Wolf got it right. Gender reassignment surgery is not always frivolous and unessential. Gender identity disorder is serious a mental illness. Kosilek has attempted castration and suicide—twice—as a result of previously being denied gender reassignment surgery. In cases like Kosilek’s, gender reassignment surgery is a medical necessity. As Ben Klein, a senior attorney at Boston-based Gay & Lesbian Advocates & Defenders, noted, the ruling “clearly recognizes that reassignment surgery is a legitimate life-saving medical treatment for transgender people,” which has “been recognized by major medical associations.”

As expected, the Massachusetts Department of Corrections plans to appeal the ruling. Until then, Chief Judge Wolf’s ruling reaffirms the constitutional rights of those suffering from gender identity disorder and brings to light the seriousness of the disorder and its consequences. Only education and awareness can overcome the societal stigma surrounding gender identity disorder and advance equal rights for those affected.

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