On May 20, 1990, Cheryl Kosilek went to the Emerald Square Mall in North Attleborough, Massachusetts. She never made it home alive. Her body was found in the back of her car in the parking lot; she had been strangled to death.
Cheryl’s husband, Robert Kosilek, was eventually convicted of her murder in the first degree and sentenced to life in prison. While in prison, Robert Kosilek legally changed his name to Michelle Kosilek and instituted legal proceedings against Massachusetts to accommodate his treatment for gender-identity disorder. At that time, U.S. District Judge Mark Wolf ruled in Kosilek’s favor, arguing that Kosilek was entitled to taxpayer funded treatment for the disorder. Treatment initially included hormone therapy and electrolysis but did not include gender reassignment surgery.
Kosilek recently sued again, arguing that gender reassignment surgery was medically necessary for his care. This week, Judge Wolf agreed with Kosilek, finding that Kosilek was a transsexual and “truly believes that he is a female cruelly trapped in a male body.” The disorder has resulted in at least two suicide attempts and one unsuccessful effort to castrate himself.
The Judge ruled that refusing the surgery violated Kosilek’s Eighth Amendment rights against cruel and unusual punishment for inmates. Judge Wolf agreed that the surgery is the “only adequate treatment” for Kosilek’s condition and ordered that it go forward – at taxpayer expense.
In fact, the Judge took pains to emphasize that cost should not be a factor in the determination of whether to grant medical treatment. He reiterated his earlier findings that “the cost of medical care is not a legitimate reason for not providing such care to a prisoner.” Additionally, he found that it is not permissible to “fail to provide adequate medical care to a prisoner because it would be unpopular or politically controversial to do so.”
And unpopular it is. Most private insurers will not bear the cost of transgender surgery and it is completely likely that Kosilek, if not in prison, would not have been able to afford the treatments – including meds and significant mental health therapy – that she has been granted while in prison. The requested surgery will add to the cost of that health care to the tune of about $25,000, a cost which will be paid for by taxpayers, a fact that is not looked upon kindly in a tough economy.
Although the ruling is unpopular, it’s not completely unprecedented. While no prisoner has ever received court-ordered transgender surgery before, the U.S. Tax Court ruled in 2010 that treatment for gender identity disorder (GID) qualifies as a medical expense under the Tax Code, and is therefore deductible. In that case, Rhiannon O’Donnabhain (then Robert Donovan) underwent sex-change and breast augmentation surgeries in order to complete her transformation from male to female. She claimed the costs of the procedures on her federal income tax return as a medical deduction, arguing that the procedures were medically necessary and not for cosmetic reasons. The IRS turned her down and she appealed, saying that the procedures should qualify as a medical expense; the Court partially agreed ruling that the surgery was necessary but the breast augmentation was not (it was ruled to be cosmetic).
The decision in that case was controversial because not only are taxpayers split on the issue of GID, medical authorities are, too. The medical field has not unanimously agreed on the existence and/or treatment of GID. In fact, there were significant differences of opinions as to Kosilek’s care, as referenced in the opinion, with some professionals arguing that Kosilek should receive anti-depressants and be placed on a suicide watch as opposed to the surgery. Similarly, in the O’Donnabhain matter, the Court was quick to draw a line between what is medically necessary versus what is cosmetically desirable. Those arguments can sometimes bleed into each other in these matters, as they do with say, obesity. In fact, the treatment of various disorders, addictions and compulsive behaviors have consistently been a source of debate, examining the question: when is a lifestyle a choice and when is it a condition?
Judge Wolf clearly didn’t resolve this issue in his court but he did make a statement about what was considered humane and appropriate in his view. Whether the Commonwealth will appeal his decision remains unclear.
After the surgery, the Department of Corrections will determine the best way to proceed which likely involves the transfer of Kosilek to a woman’s prison.
You can read the entire opinion here (it’s 128 pages long!).
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