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Dennehy's fear of public disfavor was not unfounded.
Transgender Persons and the Law
I was reminded of these facts recently when listening to a friend tell me about a federal prisoner who was seeking treatment for Gender Identity Disorder, or transsexualism as it has been called. The doctor that she (using the preferred pronoun) has to see for her medications told her that if it were up to him, she'd receive no medications, no treatment at all and that the policy he had to follow -- by law -- was "stupid." I am told that the doctor insisted on calling the prisoner "Mr." and "Sir" even after she asked him to just use her last name. The doctor has come up with excuse after excuse to deny her the proper level of medications to assist her in her transformation to female. While I admit that I really don't understand the gender disorder conundrum, I couldn't help but feel bad for her. Maybe even a bit angry at the doctor.
Attitudes like that of the doctor are, for better or worse, no longer acceptable in the public forum. Nor are they legal, for that matter. This point was made quite clearly in a recent decision by a federal judge in the U.S. District Court for the District of Massachusetts, who ruled that the Massachusetts Department of Corrections would be required to provide full Gender Identity Disorder (GID) treatment to a convicted murderer, Michelle (formerly Robert) Kosilek. The order directed the DOC to provide Kosilek with sex reassignment surgery, the final step in the transgender journey. The state had vigorously objected over the years in the litigation that culminated in the September ruling.
U.S. District Judge Mark L. Wolf's 62-page opinion took the DOC, and especially its former Commissioner, Kathleen Dennehy to task. He ruled that they had deliberately interfered with Kosilek getting medical treatment for his disorder, via a pattern of "pretense, pretext and prevarication." Judge Wolf found that Dennehy was "determined not to be the first prison official to provide an inmate with sex reassignment surgery." He plainly called her untruthful as to her vague claims of "security" concerns as a basis for denying Kosilek the treatments he so badly needed (Kosilek has been in treatment for two decades, and at one point even tried to castrate himself, an event that is, according to the medical literature, quite common in severe GID cases like Kosilek's). While Judge Wolf did not use the female pronouns for Kosilek as most recommend, he quoted extensively from contemporary transgender treatment guidelines to reach his decision, which he deemed necessary to avoid subjecting Kosilek to, in constitutional terms, cruel and unusual punishment.
According to Judge Wolf, former Commissioner Dennehy "was motivated by her understanding that providing such treatment would provoke public and political controversy, criticism, scorn, and ridicule." Indeed, Dennehy testified at a hearing that she would "rather retire than obey an order from the Supreme Court" to give Kosilek further treatment.
Dennehy's fear of public disfavor was not unfounded. Even Judge Wolf himself took some hits for simply presiding over the case over the 12-year odyssey that the legal proceedings entailed. In 2000, a prominent columnist for the Boston Globe, a liberal stalwart if there ever were one, wrote that Kosilek was making "a complete and utter fool out of an otherwise thoughtful and respected federal jurist, U.S. District Judge Mark L. Wolf."
Judge Wolf, however, was not dissuaded. This is not surprising. He has had a long career, first as a hardnosed federal prosecutor, and then as a federal judge who has presided over some tough cases, including several mob trials, and a suit against the FBI by victims of Whitey Bulger's murderous gang, in which active federal agents participated in murders and other crimes. He was not intimidated by a long campaign of adverse media attention engineered by Dennehy and others who sought to sway public attention to the case, which included television interviews with Dennehy dubiously claiming that it would be a security risk to take Kosilek to the hospital. Instead, he ruled that the DOC would have to provide Kosilek with treatment in line with national and international standards, and the recommendations of several treatment professionals who had treated Kosilek. This would include sex reassignment surgery. Denying such treatment would constitute cruel and unusual punishment as envisioned by the Eighth Amendment. Judge Wolf wrote, "elected officials, the media, and members of the public have every right to express their opinions on matters of interest to them. Nevertheless, prison officials must comply with the Eighth Amendment, and cannot deny prisoners adequate medical care because of costs concerns, or fear of political controversy or public criticism."
The Kosilek case was decided in September. The Commonwealth will surely appeal. It is not clear whether Kosilek has received further treatment, but Dennehy did, indeed, retire before the case was decided. What does it all mean? Well, for one thing, it appears that American culture is in fact changing. Even as the Dennehys of the world do their best to hold it back, it seems clear that our progress as a nation is going to include recognizing the rights of some citizens we've long held down. The homosexuals, the transgender community, and others who were denied any legal protections are now entitled to some of the basic rights the rest of us have enjoyed without a second thought.
I talked about the Kosilek case with my friend. He said that the transgender prisoner who was having problems getting her medications from the prison doctor was seeking legal action, too. If what she says is true, it doesn't sound like that doctor is going to be working at the prison much longer. And rightly so. Times have changed.
Christopher Zoukis, Contributing Writer: Christopher Zoukis is the author of Education Behind Bars (Sunbury Press, 2012), a comprehensive guide to prison education. Mr. Zoukis blogs at here and here. He's a PEN American Center award winning writer, legal commentator, and American Bar Association member (Criminal Justice Section/Section of Litigation). See... (more...)