Update* Mass Gov may repeal Judge Wolf's ruling. Details at the bottom of the post.
Surprisingly there are many within the trans community who are in agreement with the victims family. Not so surprising though in light of how rule conscious our community is, its the essence of our validity. They feel that Michelle Kosilek should not receive a state funded sexual reassignment surgery. Many feel that since they have absolutely no chance at becoming whole at state expense, why should a murderer, any murderer be granted SRS.
Then there are some within our community who would argue that denying Michelle Kosilek SRS would essentially confirm what corporations contend, that this surgery is elective and cosmetic. The people in this corner believe that would be counter productive to fight against Michelle Kosilek surgery as it is central to our argument that SRS is a medical necessity as we fight to get that option added to medical plans. Humanists further argue its even even more important she be granted this state funded surgery since it would allow Michelle Kosilek to be correctly housed while incarcerated.
How do you feel?
*Update via Washington Post:
"BOSTON — Massachusetts Gov. Deval Patrick says his administration is reviewing a judge’s ruling ordering state prison officials to pay for sex reassignment surgery for a transgender inmate."I'm unclear what Gov. Deval Patrick meant when he said the ruling 'went against the state". Perhaps 'the state' he is referring to is the vocal component of his constituency opposed to the Judges ruling?
"Patrick said Monday no decision has been made on whether to appeal last week’s decision by U.S. District Court Judge Mark Wolf, who ruled the surgery was medically necessary to treat Michelle Kosilek’s “serious medical need."
"Patrick notes the ruling went against the state, which opposed the surgery. But the Democrat also calls the judge “thoughtful and scholarly” and says the state wants to fully evaluate the opinion before deciding what to do."
In which case our own Zoe posting as aebrain made a very good case in her comment on the WP article writing that "The Governor has a problem."
Correct me if I'm wrong but essentially, Zoe pointed out the Governor's problem is one of political survival VS Constitutional law.
18 comments:
6 earcurerI think we need to quit appealing to emotions and focus on the law. A conservative judge found that denying this kind health care in this case amounts to cruel and unusual punishment. If this decision is supposedly wrong then folks need to show how the judge errored in his interpretation of the law.
In particular, since the SCOTUS has found on numerous occasions that denying appropriate health care to any prisoner without a penological purpose violates the 8th amendment, then why is this appropriate treatment exempt from that.
It's necessary to show any one of three things:
1. That there was a penological purpose here - that will be difficult since the defendants admitted there was not, they only denied treatment to avoid popular outrage.
2. That the treatment was not appropriate - again, difficult as the defendants admitted it was, they could hardly do otherwise given the mountain of evidence produced about this particular medical case, as well as in general.
3. That transsexual prisoners should be treated in ways that would for any other prisoner be considered cruel and unusual punishment, but for them it is not. This excuse was not offered explicitly, just the one that treating appropriately them would be unpopular, so they should be tortured.
Read the ruling.
I agree it's disgraceful that law-abiding trans people are treated worse than convicted murderers, but it's constitutionally impossible to treat convicted murderers any worse than they already are.
If you consider this situation unacceptable, one must either repeal the 8th amendment so as to allow the torture of prisoners, or introduce legislation to stop the torture of trans people outside.
Nonsense, Zoe. It's not a binary situation, and denying Kosilek a sex change is not cruel, it's not unusual and it's neither arbitrary nor capricious!
The use of the 8th Amendment in this situation is morally unjustified. I'll go so far as to say it is an immoral use of the amendment!
The standard that has to be applied is "Would Kosilek die without treatment?" The answer is: no. If she dies by her own hand, that's one thing and that would be an entirely separate issue. If she's miserable, well there's nothing in The Constitution that says society has to grant happiness. Especially to convicted murderers! (Besides which, the "pursuit of happiness" is in the Declaration of Independence.)
Is the state being capricious, torturing Kosilek? You're advancing that argument. Well, you have to ask what torture is. Torture is generally considered to be the active application of pain and/or suffering. Standing by while someone is miserable doesn't fit that definition. Indeed, it becomes impossible to argue that the state is torturing Kosilek by denying the expensive, "quality of life" treatment sought. Kosilek does not have cancer. Blackmailing society - "I'll kill myself if I don't get this care!" - is not considered by the 8th Amendment. (And I think you'll find the SCOTUS very disdainful of such arguments.) Kosilek is not being tortured; whether the prison system could do a better job housing her, etc is a different debate. Whether she'll be miserable isn't a concern for society. (She's never getting out of prison.)
I also do think you have to consider the crime and the way it was carried out. Kosilek garroted his wife and then lied to try and get away with it. *He* was given life without parole because the death sentence wasn't available. If Michelle Kosilek is miserable for the rest of her miserable life, well - that's too bad. He should have thought of that before cruelly murdering his wife.
Kosilek does not deserve the treatment. Will that make life miserable for her? Sure. I don't have a problem with that.
Great post. thanks for sharing. Transsexual
So, Carolyn, if she was in chronic physical pain you'd be ok with denying her pain medicine, since that wouldn't be torture according to your definition?
That's not what I said, Jennifer.
I'll grant that it's possible to derive such a conclusion from my attempt to stay within the limits of a simple blog comment; however, such a conclusion wouldn't be accurate.
I'll rephrase it: Physical pain should be alleviated; mental anguish is a different consideration, with its own complexities. A prisoner, like any law-abiding citizen, should have reasonable expectation of safety, even if they neglected (as Kosilek did) to consider that their victims deserved as much.
If someone is depressed while serving a sentence - sure, let them have access to a therapist. If they're suicidal, put them suicide watch. If they are seeking personal happiness, a better quality of life, like Michelle Kosilek is? Well, that's a different question. I do not see any societal obligation to guarantee Michelle Kosilek anything but as safe an incarceration as might be managed. Considering her crime, society is providing more than she provided her victim.
Contrary to Zoe's conclusion, the 8th Amendment is not a framework for anyone's happiness or quality of life! And it most certainly is not a foundation for an all-encompassing social policy!
As I said, I don't have a problem with Michelle Kosilek spending the rest of her life wishing things had gone differently. She decided to kill her wife, and then did so. She is now trying, and might even succeed, to manipulate society into giving her something she desperately wants. Where do we, as law-abiding citizens, draw the line? (Please don't pretend there isn't one.) Michelle Kosilek's happiness is not society's responsibility. Her incarceration is.
@Carolyn,
One of the responsibilities of that incarceration is under the 8th Amendment, is for society to take care of the medical needs of incarcerated prisoners.
“It is not permissible for prison officials to [deny treatment] just because the fact that a gender identity disorder is a major mental illness is not understood by much of the public and the required treatment for it is unpopular.”
US District Court Chief Judge Mark Wolf
The irony, Monica, is that there's a banner ad running across the top of this blog asking people to sign a petition to have gender disorder not classified as a mental illness!
Personally, I don't see gender disorder as a mental illness. (I believe it's more in the "nature screwed up" order of things.) Even if it was a mental illness, society is not responsible for Michelle Kosilek's happiness. If you think society is, you'll have to explain to me how.
Carolyn, there is no irony involved. I published this article asking for conversation about this particular topic without identifying my personal beliefs for a reason.
I want to know what people think of this, and it all boils down to a yes or no. Its our community and a conversation that needs to be held.
I really do appreciate everyone who has commented and/or taken the poll and encourage more from our community to do the same.
Thanks,
Kelli Busey
planetransgender
Michelle Kosilek's case is actually more complex than what it is usually presented as - apparently there was a lot of spousal abuse directed at Michelle before she killed her wife.
However, that's not really relevant: Yes, trans prisoners should be provided with transition-related care up to and including surgery, no ifs, no ands, no buts, and no exceptions. There is no valid ethical argument for denying them this care.
I first banned Carolyn Ann from my blog during a discussion in which CA insisted that a trans woman who had been convicted of rape had no right to be considered a woman. In other words, CA seems to believe that being able to transition should be a privilege and being correctly gendered is something that people have to earn, and if said people are not "good enough" then they should never be allowed to transition nor be addressed as a member of the correct gender.
As such, CA seems to be of the opinion that being a prisoner revoke's one's human rights, which is an ethically untenable and morally abhorrent stance.
Thanks Lisa,
Well spoken.
The simple truth is he and Kosilek is a he garroted his wife in a vicious and premeditated manner in order to make it easier for him to crossdress. He stuffed her body in the trunk of her car, drove it to a Mall parking lot and left her to rot in the trunk. He then called the police and said his wife was missing and he withdrew money from their joint account and went on a girl cloths buying spree.
I gather most of you have no idea what a garrote is but the one he used on his beautiful wife was a piece of wire with wood on the end. It is a tool assassins use and is a specialty of covert operations, special forces, and seal teams because it is the quietest way to kill and enemy since even suppressed weapons are not silent.
The preferred method is to sneak up behind the enemy and slip this over their neck and jerk it tight severing or severely damaging the region and it is not entirely impossible to nearly sever the head if the victim is weak, a woman, and the user is strong, burly and tough cab driver like Mr Kosilek.
He originally concocted the "I am transsexual" bullshit in the hopes of getting a conviction based on diminished capacity. He was screened by both his own lawyers Psychiatrists and court Psychiatrists and there was no indication of transsexualism initially. By the time of the trial 3 years after the murder he was suddenly transsexual and then transgender when that became the new buzzword.
Denying Mr. Kosilek a sex change is neither cruel nor unusual punishment. His medical condition does not place him in danger of death in a painful manner. He is allowed to dress as a girl in the men's general population. His claims of attempted suicide and so forth were debunked as false because as one official it is impossible to keep inmates from killing each other or themselves.
It is insulting to the woman he butchered for a state to be forced to spend exorbitant amounts of money on a cold blooded murderer.
I bet if he was offered parole he would drop the demand of as sex change in a heart beat. All you pathetic wankers that support this fetishistic transvestite are supporting the wrong party here.
This will hopefully end up in the US Supreme Court where it will be squashed like it should. Too bad someone in the general population just doesn't off this disgusting piece of garbage and save the state and us from this pathetic assholes fantasies.
Post update>
Mass Gov.Patrick: Court Ordered SRS for Trans Inmate "Went Against The State". Political survival VS 8th Amendment?
Carolyn Ann Grant you have led comments with...
"I'm not sure why you're annoyed about my pointing out an irony?"
and
"Kelli, you're still not explaining why the 8th is relevant"!
I haven't offered any opinions or emotions as I have clearly indicated. Your confrontational style is beginning to derail this conversation and that will not be tolerated.
If you wish to engage others in constructive conversations about this topic I will I will continue to offer this space to you.
If you continue trying to make this conversation about you I will ban you also.
Have any of you read the ruling (all 128 pages of it)?
It's available here and answers most if not all of the objections.
I can also recommend these two legal journal articles. Transsexual Prisoners: How much treatment is enough? and EXAMINING THE ISSUE OF "CRUEL AND UNUSUAL PUNISHMENT" PRESENTED BY AN INCARCERATED TRANSSEXUAL.
The 8th amendment does not require only "basic" treatment or "life-saving" treatment. It requires "appropriate" treatment, though that does not have to be the best available, merely adequate, medically necessary.
What I don't understand is why isn't anyone thinking about the victim? She is layi.g in a grave while the man is sitting in prison possibly getting a very expensive surgery to make like more comfortable for him/her. What makes his wants more important than other prisoners? I'm sorry, but I think its a injustice to law abiding citizens who can't even afford health care for basic needs a murderer would be able to have this expensive & unneccesary treatment. This doesn't just affect the trans community but everybody. He/she is in prison for murder. He/she shouldn't have this rally of support. Would
you support a "cis" rapist or child molester who wanted a procedure that was not medically neccessary just because it helps feel "comfortable"?
Kimberly, you have a valid point. It is wrong in that sense that a murderer should have 'better' health care than ordinary law abiding citizens have but in this case 'better' isn't better it's a constitutional guarantee.
Can we pick and choose which constitutional amendment we should uphold? Thanks to Zoe we have a copy of the judges ruling. Check out her last comment for the link.
For the first time since planetransgender began in 2007 I was forced to ban a person from commenting on this blog.
I did this with great reluctance and only after repeatedly informing this individual in a rational manner why her comments were unacceptable.
I also deleted some of Carolyn Ann Grant's later comments as they turned from the intelligent to inflammatory.
Your co habitator on planetransgender,
kelli
Post a Comment