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Diane Dimond: Sex-Change Operation? Prisoners’ Rights Have Run Amok

In Kosilek case, gender-reassignment surgery is hardly 'medically necessary'

Recently, I wrote about the sometimes deadly lack of air conditioning for prisoners during our blisteringly hot summers. Despite several inmate deaths in cell blocks with temperatures as high as 130 degrees, I got a raft of reader emails taking me to task for being too soft on convicts.

This week, I turn the tables to announce my absolute, unequivocal opposition to a pro-prisoner court order you may find positively shocking. I know I did.

The prisoner at the center of the controversy is named Michelle Kosilek. But up until 1993, this person was known as Robert Kosilek. In 1990, Robert’s wife, Cheryl, who was already distraught over his drinking, came home to find him dressed up in her clothes. A fight ensued, and the trial court found Robert was guilty of strangling Cheryl with a wire and abandoning her naked body in the family car outside a local mall.

Just before Kosilek went on trial for Cheryl’s murder in 1993, he declared he was a woman trapped in a man’s body and legally changed his name to Michelle. Kosilek appeared in court with long, luxurious hair and wearing eye makeup, rouge, women’s glasses, slim cut jeans and a set of dangling circle earrings. Despite self-identifying as a female, upon conviction, Kosilek was sentenced to an all-male prison in Norfolk, Mass., to serve life in prison without parole.

Over the years, Kosilek’s attorneys have repeatedly filed motions asking the court to order sex-reassignment surgery for the convicted murderer. In 2002, after specialists testified Kosilek did, indeed, suffer from severe gender identity disorder, the court allowed Kosilek to begin receiving taxpayer-funded psychotherapy, female hormone injections, laser hair removal, and access to women’s underwear and makeup. All of that wasn’t enough for Kosilek’s peace of mind, however. Court documents revealed Kosilek attempted self-castration and twice attempted suicide in prison.

Now, let’s pause here so I can be clear. I have no doubt that gender identity disorder exists and that it can be psychological hell for those who are born this way. But there are lots of people on the outside struggling with Kosilek’s problem, unable to come up with the money for a gender reassignment operation. Do we afford convicted killers health-care rights that law-abiding citizens don’t have?

The answer is yes, according to a recent decision from U.S. District Court Judge Mark Wolf.

“It may seem strange that in the United States citizens do not generally have a constitutional right to adequate medical care, but the Eighth Amendment promises prisoners such care,” Wolf wrote in ruling that the state of Massachusetts must pay for the prisoner’s sex-change operation. To do otherwise, Wolf ruled, would constitute cruel and unusual punishment.

Now, stop and think about this a minute. Here is a person who lives in the general population of an all-male prison. It may be one thing for him to dress up like the character Klinger from the old M.A.S.H. TV series, but it might be something altogether more dangerous for Kosilek to actually become transgendered and think nothing will change within his testosterone-driven prison community.

Wolf heard testimony from prison officials about the unique security problems Kosilek’s case would present, but he dismissed the argument. As it stands now, Kosilek gets his free operation, but the state could appeal to the U.S. Supreme Court, which would delay things.

Other states have grappled with similar federal cases filed by prisoners wanting a sex-change operation, but I couldn’t find one where a judge actually ordered taxpayer-funded surgery.

Wolf’s apparently groundbreaking decision seems so shortsighted to me. He made it sound as if he had no choice in the matter, that it was a “medical necessity” for this prisoner. It’s as if the judge forgot the state has already bent over backward to accommodate this prisoner’s numerous wishes over the years.

I’m not the only one who is outraged by this. After the ruling, U.S. Sen. Scott Brown of Massachusetts said Kosilek’s surgery would be “an outrageous abuse of taxpayer dollars.” A niece of Cheryl Kosilek nearly begged the state to quickly appeal the decision, saying: “As far as I’m concerned, he deserves nothing. If he wants to attempt suicide ... let him.”

Wolf’s written ruling didn’t address what would happen to Kosilek after the operation. Would she be left to fend for herself in the all-male population or be transferred to a women’s prison? What if Kosilek decides she is unhappy with the results and wants further surgery? And, most important, what signal does this send to all the other poor but law-abiding souls who cannot afford the psychotherapy, the hormones, the gender-reassignment surgery? For the truly desperate, it seems to be an invitation to commit a really serious crime so they can advance their goal of changing sexes.

I can see providing a prisoner a heart transplant or expensive cancer treatments so they don’t die. That, to me, fits in the “medically necessary” category. But to those Kosilek sympathizers who declare granting this operation is humane, I asked them one question: How humane was Robert Kosilek when he pulled that wire around his wife’s neck and tugged on it until it nearly took her head off? He’s gotten enough rewards for his murderous behavior.

Diane Dimond is the author of Cirque Du Salahi: Be Careful Who You Trust. Click here for more information. She can be contacted at .(JavaScript must be enabled to view this email address) or follow her on Twitter: @DiDimond.

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