Massachusetts Gov. Patrick Appealing Transgender Inmate's Landmark Ruling

Posted by Justin Snow
September 27, 2012 5:15 PM |

Massachusetts Gov. Deval Patrick (D) is facing criticism from the LGBT community after announcing his administration will appeal a federal court's ruling earlier this month that the state must pay for sex-reassignment surgery for a transgender prison inmate.

DevalPatrick.jpgIn September, U.S. District Court Chief Judge Mark Wolf ruled that Michelle Kosilek is entitled to the surgery under the Eighth Amendment protecting her from cruel and unusual punishment.

"This fact that sex reassignment surgery is for some people medically necessary has recently become more widely recognized," Wolf wrote in a 129-page ruling issued on Sept. 4. Moreover, he ruled it was the "constitutional duty" of the Department of Corrections to grant her the surgery.

But according to the Patrick administration, Kosilek, who has been given hormone treatments, has already been provided adequate medical treatments.

"Following a thorough review of the decision, we believe the court failed to give due deference to the fact that the Department has and continues to provide adequate medical treatment to address inmate Kosilek’s gender identity disorder," said Diane Wiffin, a spokesperson for the Massachusetts Department of Correction, according to The Boston Globe. "We also found the opinion improperly discredits the legitimate safety concerns trained correctional professionals testified will arise if sex reassignment surgery is performed."

The 63-year-old Kosilek legally changed her name from Robert to Michelle in 1993 after being convicted of strangling her wife to death in 1990. She has been serving a life sentence without parole in a prison for males since January 1993.

Kosilek sued the Massachusetts Department of Correction in 2000 on the grounds that refusing her gender reassignment surgery as recommended by her doctors was equal to cruel and unusual punishment. According to court documents obtained by CNN, Kosilek previously tried to castrate herself and has twice attempted suicide.

Twelve years after Kosilek first filed suit, Wolf agreed, ruling that the Department of Correction had violated Kosilek’s Eighth Amendment right protecting her from cruel and unusual punishment.

"Denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose," Wolf wrote. "It is precisely the type of conduct the Eight Amendment prohibits."

Although the historic ruling was applauded by LGBT advocates, it immediately faced criticism from many politicians in the state.

In the high-profile Senate race between Republican Sen. Scott Brown and his opponent Elizabeth Warren, who hopes to reclaim the Senate seat once occupied by Ted Kennedy for the Democrats, both candidates rebuked the district court’s ruling.

"I have to say, I don't think it's a good use of taxpayer dollars," Warren told a Boston radio station, agreeing with Brown, who called the ruling "an outrageous abuse of taxpayer dollars." Brown also argued that the ruling should be overturned.

Massachusetts Rep. Barney Frank (D), the longest-serving out gay member of the House of Representatives, declined to comment on the case.

Now that Patrick’s administration has said they will appeal the decision, transgender-equality advocates are crediting misperceptions about gender identity for the lack of support for the ruling, particularly from Democrats who are usually the LGBT community’s strongest allies.

In a statement released Wednesday, Sept. 26, Jennifer Levi, Transgender Rights Project director for Gay & Lesbian Advocates & Defenders, said there was no legal ground for the appeal.

"Constitutional rights belong to everyone, even the least loved, least popular people among us," Levi said. "Prisoners have a right to necessary medical care, and this is indisputably medical care, as the very strong district court decision established."

Joining in Levi's criticism was Gunner Scott, executive director of the Massachusetts Transgender Political Coalition. Scott said he was "very disappointed" in Patrick's decision.

"Care that is medically necessary for prisoners cannot be denied based on public opinion," Scott added.

Nevertheless, the Democratic governor is standing behind the appeal. In a radio interview with WTKK-FM, Patrick echoed the statement made by the Department of Corrections yesterday.

"It's not a reflection of a point of view about gender-identity disorder," Patrick said. "Apparently, that is a real disorder. And, indeed, Kosilek has been getting treatment for that disorder. The question is whether it should go all the way to surgery, and what the implications are for the safety of Kosilek and other inmates, in that event."

[Photo: Gov. Deval Patrick (Courtesy of Wikimedia Commons).]

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