January 1st, 2013

Gender Identity Disorder Case could set precedent

n September 2012, U.S. District Court Judge Mark L. Wolf determined that sex-reassignment surgery was the ‘only adequate treatment’ for Michelle Kosilek, who was previously known as Robert (Kosilek). The basis of this finding appears to be a diagnosis of ‘Gender Identity Disorder.’ Kosilek has been incarcerated in an all-male prison, serving a life sentence without parole for murdering his wife in 1990.

From its inception, this case has raised sharp division. The act itself destroyed the framework of a family. Children lose both parents when one parent kills another as one dies and the other goes to jail. It has been reported that Kosilek tried to castrate himself while incarcerated. One assumes he was trying self-help by way of surgery to eliminate his male sexual organs. Even if successful, the surgery could have resulted in his suicidal death.

He/She continues to want to change his/her gender from male to female and has changed his name and takes hormones. Kosilek sued the state for a sex-reassignment (change of gender) operation and is segregated from the remainder of the residents in the all-male prison.

The Commonwealth of Massachusetts has appealed the District Court’s ruling in this case. Politicians who have spoken publicly on this matter have objected to the use of public funds for the operation. Another argument against the operation is that Kosilek is a convicted felon who will remain in prison for life, therefore why provide him with any relief or anything beyond minimal support?

The argument is that there are those who believe someone in prison should not get better or more care than someone who is not a convicted felon. If someone outside of prison wanted or needed sex-reassignment surgery, who has not committed a felony, would the government pay for this operation?

This case may be different from others in one important area. Typically, experts testify differently for each side of the case. In a case such as this one, we would expect there to be “dueling” psychologists discussing the patient’s needs. We often see such “dueling” psychologists in child custody cases, where each side hires its champion. Each of the parties has its expert testify in a manner that supports its side’s position.

However, in this case, the doctors who testified who were employed by the Commonwealth of Massachusetts agreed that the surgery was necessary. This opinion places the Commonwealth in the position of trying to refute its own employees or find outside consultants to disagree with them. This situation seems unique.

The surgery will be expensive. Opponents object to the outlay of money for one convict as unacceptable. The perception may be that opponents regard this surgery as cosmetic and feel that counseling, medication and other remedies are available.

Proponents of the operation see it, as Judge Wolf found, to be the “only adequate treatment.” If it is the “only adequate treatment,” it is probably inhumane not to provide the treatment.

Costs are estimated at $50,000 to $80,000. Will the appeal be less expensive? Whether or not the Commonwealth loses the appeal, this situation could be more expensive. Appeals are expensive whether a party wins or loses.

Other issues to consider: Will there be any security issues if the operation is done in a hospital outside the prison? Can the surgery be done inside the prison? After the surgery, where will Michelle be imprisoned? Will she continue in her segregated cell in the male prison? Will she be transferred to a female prison? If transferred to a female facility, will she need to be segregated in the female facility? It may not be pertinent, but she did kill a woman, albeit a spouse with whom he/she had an emotional involvement. Will Michelle continue to need hormone treatment and/or require electrolysis?

It is possible that the Federal Court of Appeals will overturn the District Court’s ruling and return the matter to the status quo. The Court of Appeals would likely be giving the Commonwealth wider latitude in its treatment of care of prisoners than had been decided previously in this case.

Unlike Kosilek, most prisoners return to society after they complete their incarceration. This case raises the question of what the duty of the government is when holding a person in a jail or prison. Is the duty of care to maintain that person? Is physical health enough? Should there be a limit on the amount of money spent on one convict or one issue? Should ‘Gender Identity Disorder’ be treated like any other medical disorder? Is the duty of care higher than maintenance? Does the duty of care change depending on the crime, length of incarceration or possibility of parole? The resolution of these questions may resolve the ultimate legal question.

Whatever the Court of Appeals decides could result in a precedent for all prisoners’ treatments in the First Circuit in the United States. It is possible that the Court of Appeals might limit its opinion to some minor point. However, presently the case is unique and limited to its own facts. After the appellate decision, there could be a decision with wider scope and ramification for the treatment of all those held in governmental custody. And if this matter is appealed by either party to the United States Supreme Court, there may be a precedent set for the entire country. In its appeal, the Commonwealth of  Massachusetts should be careful of the possible outcomes.

Edward M. Stern, J.D., has a private law practice in Newtonville, Mass., Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

By Edward Stern J.D.

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