Crime Library: Criminal Minds and Methods

The Transgender Prisoner and the Eighth Amendment: Should the State Fund an Inmate’s Gender Reassignment Surgery?

Robert Kosilek.

Robert Kosilek, then 39, was already transitioning to become a woman when he killed his wife, Cheryl McCaul, during an argument. He strangled her to death, nearly decapitating her in the Mansfield, Massachusetts, home they still shared. Panicked, he dragged her body to his car, and drove to the Emerald Square Mall in North Attleboro, about 20 minutes away. He left his wife’s corpse in the mall parking lot and fled the state. Police caught up to him in New Rochelle, New York.

In 1993 Kosilek was found guilty and sentenced to life in prison without parole. He had unsuccessfully claimed that he had killed his wife in self-defense—he says that he’d become frightened and upset when McCaul poured boiling hot tea on his genitals.

That same year, while held in Norfolk County Jail, Robert Kosilek had legally changed his name to Michelle Kosilek. But prison would make it difficult for Kosilek to achieve her dream of becoming a woman. She’d have to rely on the state’s decisions about her treatment, but planning—and funding—a convicted killer’s sex-change wasn’t going to be a popular cause. Yet a judge would eventually determine that the United States Constitution mandated it.

(While court documents and the state of Massachusetts use “he” and “him” in referring to Kosilek, Crime Library, like most media sources, follows the convention of using pronouns in line with the subject’s self-identification.)

Prison and a Change of Identity

By 2002, Michelle Kosilek, housed in a medium-security men’s prison, was getting frustrated. She took legal action. Kosilek was suffering from depression and anxiety and claimed that this could be alleviated only by undergoing the reassignment surgery that would complete her efforts to live as a woman. Her lawyers alleged that, in failing to provide her with adequate medical care in the form of gender-reassignment surgery, the state was inflicting unnecessary pain on a prisoner and thus violating the United States Constitution’s Eighth Amendment which prohibits cruel and unusual punishment. She’d been diagnosed with gender identity disorder, and the accepted treatment for this condition is to take steps to live as the gender with which one identifies. The US legal system recognizes a state’s duty to provide health care to its prisoners.

Michelle Kosilek.

In 2002, District Judge Mark Wolf, a Reagan appointee, ruled in favor of the state. Judge Wolf did agree that the state was failing to give Kosilek proper medical treatment, but he did not believe that the neglect was deliberate, so the state simply had to take the appropriate action to rectify that now. He ordered a medical evaluation for Kosilek, mandating that she should receive therapy and, if the experts who treated her recommended it, female hormones.

This was progress, but not quite what Kosilek was asking for. She was prescribed hormones, she wore female undergarments and cosmetics, and she was undergoing laser hair-removal. But she was housed in a men’s prison, and she still wanted gender-reassignment surgery.

By 2005, she’d twice attempted suicide and tried to castrate herself. At a court hearing, her hair was down to her waist and she wore a skirt and tight sweater. She again requested that the state permit (and pay for) her $7,000 – $50,000 gender-reassignment surgery.

A National Issue

Michelle Kosilek wasn’t alone. Three other Massachusetts prisoners were receiving hormone treatments, but none were scheduled to undergo gender-reassignment surgery. Transgender prisoners in other states had petitioned for gender reassignment surgery too, but none of them had succeeded. Wisconsin even passed a law prohibiting funding for such surgery after a challenge from Donna Dawn Konitzer.

Konitzer began receiving hormone therapy while incarcerated at the Wisconsin Resource Center in Winnebago. As Scott Konitzer, she’d been convicted of numerous armed robberies and the stabbing of another inmate; she is serving a 123-year sentence. She sued the Wisconsin Department of Corrections in 2005, demanding a sex-change operation. Conservative lawmakers fought back, passing the Inmate Sex Change Prevention Act, which not only barred tax dollars from funding her surgery, but could have ended her hormone treatments.

In Colorado, a similar fight was underway. Christopher Grey had been convicted of molesting an underaged girl over a period of five years. Taking the name Kitty Grey, she grew out her hair and took hormones that gave her breasts. Unsurprisingly, she was harassed by male prisoners in Colorado’s Limon Correctional Facility. She wanted gender-reassignment surgery because that could permit the state to send her to a women’s facility, so she sued for the right to see a psychologist specializing in gender issues. State officials refused to pay for what they deemed an elective medical procedure, and maintained that further hormone treatment or an operation wouldn’t solve the problem of which institution she could be safely placed in.

That Grey was convicted of molesting a girl certainly complicated her case in the eyes of prison management. But another Colorado prisoner, the less-known Phillip or Sabrina Trujillo, was facing the same problem. Trujillo’s imprisonment began when she stabbed, in self defense, she says, a lover who was enraged at finding that she wasn’t a biological female. She now felt she was in the wrong body and the wrong prison.

Similar examples are scattered in prisons across the country–the decision in Michelle Kosilek’s suit may become an important legal precedent.

A Trial Begins

Lawyers for the Massachusetts Department of Corrections argued that it was unreasonable to expect the state to pay for a surgery that many private insurers don’t cover. They also insisted that the surgery could actually put Kosilek at a greater risk of assault, whether she remains in a male prison or is moved to a women’s facility.

The 2005 trial included testimony from 10 experts. Two experts paid for by the state, Baltimore psychotherapist Cynthia Osborne and John Hopkins University psychiatry professor Chester Schmidt, had advised the Department of Corrections that Kosilek did not need the surgery. But two experts hired by the University of Massachusetts Correctional Health Program, which provides health services for the department of corrections, disagreed based on Kosilek’s suicide and castration attempts. Their dissent was supported by two more doctors from inside the Correctional Health Program. Two psychiatrists testifying for Kosilek’s legal team at the trial also recommended surgery.

Scott Brown, a republican state senator at the time and currently up for re-election as US senator against Elizabeth Warren, introduced a bill prohibiting the state from paying for prisoners’ gender reassignment. The bill failed in committee.

While awaiting the ruling, Kosilek was not permitted to receive hair-removal treatment or endocrinological counseling. She submitted another complaint to the court in February of 2008, alleging that the treatment plan laid out by Judge Wolf in 2002 was now being neglected. In August, Judge Mark Wolf agreed that Kosilek suffered psychological harm without the treatment, and that it needed to be resumed.

A Radical Decision

By August 2011, new legal developments pushed Kosilek’s lawyers to resume their work. The First US Circuit Court of Appeals had ruled in favor of another transgender inmate in the Massachusetts prison system. The court had ruled that the Department of Correction had shown deliberate indifference in denying Sandy Battista’s request for hormone treatment. Battista, convicted of raping a child, had been in prison since 1983. The Department of Corrections had refused her request for hormone treatment, maintaining that it would put her at greater risk of sexual assault from the male prisoners with whom she was housed. A judge, deciding that he could not trust that prison officials were responding to Battista in good faith, ordered that she be given hormone treatment and female clothing.

That same month, that Wisconsin law prohibiting the state from paying for prisoners’ gender reassignment was declared unconstitutional by the Seventh Circuit Court of Appeals.

US District Judge Mark Wolf

US District Judge Mark Wolf finally had an answer in September 2012. In a 129-page ruling, Wolf outlined former Corrections Commissioner Kathleen Dennehy’s questionable defenses in refusing Kosilek’s treatment. In an attempt to avoid controversy, Dennehy disregarded the accepted medical and psychiatric guidelines on gender identity disorder in favor of political considerations. As Wolf bluntly wrote: “Dennehy testified untruthfully on many matters.”

Wolf believed that the state was in fact violating the 8th Amendment in refusing the surgery, and—in a reversal of his earlier ruling—that this was a deliberate neglect and that the state would continue this violation unless the court issued an order mandating it. Accordingly, he ruled that Massachusetts would have to permit and to pay for Kosilek’s gender reassignment surgery. Wolf also ruled that, on top of the surgery, the state would be responsible for Kosilek’s legal costs. Her attorney, Frances Cohen, estimates those costs at half a million dollars.

Wolf’s ruling frames it as a clear-cut problem with a humane response. He says that Michelle Kosilek suffers from a legally and medically recognized disorder, and that, as a matter of course, the state is responsible for providing its prisoner with the disorder’s appropriate treatment protocol. While Wolf notes that in some instances of gender identity disorder the treatment may not need to extend beyond clothing and other visual presentation or hormones, he believed that proper treatment for Kosilek—given that she’d attempted suicide and tried to castrate herself—would entail surgery.

The Massachusetts Department of Corrections maintains that it was providing Kosilek with adequate medical treatment. Democratic Governor Deval Patrick backs up the department; his administration has appealed Wolf’s decision. And US senate candidates Scott Brown and Elizabeth Warren have both stated that the state shouldn’t be responsible for Michelle Kosilek’s gender-reassignment surgery.

Sources on following page.

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