Judge Approves Taxpayer Paid Sex Change Operation for Prisoner

A lot of tax money goes into our prison system. Prisoners are housed, fed and taken care of by the state at the expense of law-abiding citizens. Courts have ruled that prisons must be a humane residence or else it violates the 8^th Amendment’s ban on cruel and unusual punishment. Critics of the “humane prison” policy have painted an image of ludicrous prisons, where prisoners have steak dinners, free medical care and free college education, all thanks to the non-criminal taxpayer. Judge Wolf’s approval of Michelle Kosilek’s request for a sex change operation has only given the opponents of “humane prisons” more ammunition for their argument that prisons are no longer the punishments they were meant to be.

Michelle Kosilek, born Robert Kosilek, was imprisoned in 1990 for the murder of his wife, Cheryl Kosilek. While imprisoned, doctors for the Massachusetts Department of Corrections diagnosed Michelle with gender identity disorder: that Michelle honestly believed he was a woman trapped in a man’s body. This belief led Michelle to attempt suicide at least twice. Michelle was injected with female hormones to “alleviate” the pain resulting from his condition. Doctors, however, stated that only a sex change operation could cure Michelle of his disorder. Prison Commissioner Dennchy refused to allow the operation on the grounds that the operation would pose a security risk in the prison and that the operation would prove to be extremely controversial. Judge Wolf gave an injunction ordering that the prison provide Michelle the operation, though the details of when and where the operation would take place would be left to the prison.

The commissioner’s instinct was correct; the case has caused an uproar over the use of tax dollars. Judge Wolf’s reasoning, however, may be strong enough to withstand any appeal made by the state of Massachusetts. The 8^th Amendment of the Constitution states no cruel or unusual punishment may be inflicted. Courts accept that it would be cruel to deprive prisoners of necessary medical treatment for medical problems. Psychological disorders are considered medical problems and gender identity disorder is currently considered a psychological disorder. It is unconstitutional for a prison to deprive a prisoner of necessary medical treatment for a psychological disorder. Therefore, it would be unconstitutional for Commissioner Dennchy to deprive Michelle Kosilek a sex change operation for the treatment of his gender identity disorder.

Dennchy’s arguments against the operation are not compelling enough to justify denying the operation. Judge Wolf found little evidence for the claim that the operation would endanger the prison and there needs to be some evidence for the state to justify depriving a prisoner of a constitutional right. Avoiding a political controversy is never a reason to make a legal decision, although Judge Wolf did state in his decision that the legislative was free to amend the laws to counter his decision.

Since the reasoning is such a long chain, Judge Wolf’s logic could be attacked at any point along the way. It could be that the gender change operation is not a “necessary” medical treatment for the patient’s condition, or that psychological disorders are not a medical problem worthy of treatment. The latter is too radical for too many states, as many states are committed to the idea that they should try to rehabilitate prisoners and “curing” prisoner psychological disorders is a large part of that policy. The former attack on the Judge’s decision is strengthened by the doctors’ testimony that such an operation is necessary to “save” their patient. The fact that the doctors are hired by the state only makes the doctors’ opinions stronger.

The remaining counterargument is the strongest, but also the most troubling. It would be possible for the state to argue that gender identity is not a psychological disorder at all. As a matter of fact, the American Psychological Association has taken gender identity off the list of psychological disorders so this part of the judge’s reasoning is already incorrect! This leaves Michelle Kosilek and the LGBT community which supports him in an ironic place. Transgender persons have been trying for decades to sway the APA that they are not mentally ill for wanting to change their gender, but right when they achieve that victory, the courts find that transgender persons in prison must be mentally ill in order for them to change their gender.