When Madness Stops Being Notable

The following news story is an example historians will use in the future to note the general madness that has afflicted our age.

A divided federal appeals court in Boston on Tuesday overturned a lower court’s ruling that a transgender Massachusetts prison inmate, convicted of committing a domestic murder, was entitled to taxpayer-funded sex change surgery.

The ruling by the First US Circuit Court of Appeals came after a 2012 ruling by US District Judge Mark Wolf, who ordered the surgery after finding that the state’s failure to provide it violated the inmate’s Eighth Amendment protection against cruel and unusual punishment.

In January, a three-judge panel of the appeals court upheld Wolf’s 2012 decision, but the state of Massachusetts then asked for an en banc, or full bench, review, which led to Tuesday’s ruling.

The ruling came in the case of Michelle Kosilek, who was born Robert Kosilek. Kosilek is serving a life sentence for killing her wife, Cheryl Kosilek, in 1990.

The court ruled 3-2, with Judges O. Rogeriee Thompson and William J. Kayatta Jr. filing separate dissenting opinions.

“We are faced with the question whether the [state Department of Correction’s] choice of a particular medical treatment is constitutionally inadequate,” the court said in the majority opinion.

“After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment,” said the opinion, which was written by Judge Juan R. Torruella.

Kosilek and the DOC — under successive administrations, both Democratic and Republican — have battled in the courts for decades over what medical treatment, clothing, makeup should be provided to deal with Kosilek’s gender identity disorder.

Wolf ruled in 2012 that the only medically appropriate treatment for Kosiliek’s condition was the surgery, which would be paid for by the state since Kosilek is a state prison inmate.

But the appeals court ruled Tuesday that Wolf had wrongly substituted his own judgment for the medical professionals, who did not unanimously endorse the surgery as the only appropriate solution for the condition that all sides acknowledged contributed to a depressed mental state and suicide attempts by Kosilek.

Wolf also went too far by “circumvent[ing] the deference owed to prison administrators’’ under federal laws when the issue is the safety of prison inmates, Torruella wrote.

“The prison administrators in this case have decades of combined experience in the management of penological institutions, and it is they, not the court, who are best situated to determine what security concerns will arise,’’ Torruella wrote.

The ruling said the DOC made a valid argument when it expressed concern about the safety of Kosilek and women prisoners he potentially could be housed with once the surgery was done.

“The DOC’s security report reflected that significant concerns would also arise from housing a formerly male inmate — with a criminal history of extreme violence against a female domestic partner — within a female prison population containing high numbers of domestic violence survivors,’’ Torruella wrote.

In a statement, Public Safety Secretary Andrea Cabral said the DOC accepts as true that Kosilek suffers from gender identity disorder diagnosis, and added that was not the issue that the latest round of Kosilek litigation was resolved by the courts on Tuesday.

“The First Circuit Court of Appeals ruled that the medical and mental health care provided to Kosilek by the DOC did not violate the Eighth Amendment of the U.S. Constituion,’’ Cabral said in the statement.

“While we acknowledge the legitimacy of a gender identity disorder diagnosis, DOC’s appeal was based on the lower court’s significant expansion of the standard for what constitutes adequate care under the Eighth Amendment, and on substantial safety and security concerns regarding Ms. Kosilek’s post-surgery needs,’’ Cabral said in the statement.

In a statement, the Transgender Rights Project of Gay & Lesbian Advocates & Defenders (GLAD) noted that it had joined the legal battle on Kosilek’s behalf.

“I am appalled by this decision, which means that Michelle Kosilek will continue to be denied the life-saving medical care she needs and has been seeking for years,’’ Jennifer Levi of GLAD said. “This decision is a testament to how much work remains to be done to get transgender people’s health care needs on par with others in the general public.”

In a passionate dissent, Judge O. Rogeriee Thompson compared the majority’s conclusions to those drawn by the judges who upheld the constitutionality of the separate but equal doctrine for African-Americans in the late 19th century and the judges who approved internment of Japanese-Americans during World War II.

Like the rulings in those cases, Plessy v. Ferguson and Korematsu v. United States, the Kosilek ruling will not stand the test of time, she wrote.

The majority, Thompson wrote, ruled the way they did, in part, because the surgery Kosilek seeks is considered “strange or immoral. Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter’s protraction.’’

“The precedent the majority creates is damaging,” she added. “It paves the way for unprincipled grants of en banc relief, decimates the deference paid to a trial judge following a bench trial, aggrieves an already marginalized community, and enables correctional systems to further postpone their adjustment to the crumbling gender binary.’’

Kayatta, writing separately, said, “Scientific knowledge advances quickly and without regard to settled norms and arrangements. It sometimes draws in its wake a reluctant community, unnerved by notions that challenge our views of who we are and how we fit in the universe.”

“The notion that hard-wired aspects of gender may not unerringly and inexorably correspond to physical anatomy is especially unnerving for many,” Kayatta said.

10 thoughts on “When Madness Stops Being Notable

  1. “In a statement, the Transgender Rights Project of Gay & Lesbian Advocates & Defenders (GLAD) noted that it had joined the legal battle on Kosilek’s behalf.”

    I seriously doubt that they actually care about Kosilek; it’s just a chance to remove one more penis from the world. 🙂

  2. Oh no, that’s not Arabic, and she’d be very upset to think that people think it is! That’s her own form of dating her posts, in defiance of the new-form “CE” or “Common Era” people are using now. It goes back to this post, from the summer of 2013: http://www.barnhardt.biz/2013/06/06/starting-thursday-off-right-and-notation-change/

    It’s Latin, and stands for
    Anno
    Reparatae
    Salutis
    Humanae

    “In The Year Of The Reparation Of Human Salvation”

    She says it’s older than “AD”, and uses it now on all her dates. (She’s very serious about how corrupt the modern era is.)

    • I did not know that. I went looking for a source, but nothing jumps out to me and I’m not that interested. It’s a mouthful so I’ll stick with Era Vulgaris.

  3. I’m unfamiliar with Ann Barnhardt. I looked at her blog and I keep seeing what I suspect is an acronym before dates. I tried to look up “ARSH” but nothing makes sense. In Arabic, it means authority or high place, but I don’t think that’s the meaning here.

    Regardless, it is good to see mokita getting picked up elsewhere.

  4. I know, I’m old and can’t possibly understand “sexual binary” dis-function. A man wants to be a woman so society should pay for it? I want to be a king, I know I was born to be a king but I am stuck in a peasant’s body. I need society to make me a king.

    • The real madness, it seems, is that the courts take seriously these claims. The convict has nothing but time. He’s in jail with nothing better to do. He fills that time filing complaints. I don’t blame the cons for finding ways to be a nuisance. The courts should know better and cut this off, so to speak, before it ever gets to this point.

  5. One presumes that this inmate’s suicide attempts were not succesful.

    So be it. If he/she wants to end it all then that is their choice.

    If however the attempts were a so-called “cry for help” then it leaves me cold. As someone once said: “I only acknowledge cries for help when they actually use the word ‘help.'”

  6. News flash. After 25 years in stir the prisoner wants to be a bitch for real.
    I’d think the taxpayer might be happy to make him a eunuch, but that’s all he gets.

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