Judge Draws Ire for Approving Inmate Sex-Change Operation, But Was He Wrong?

by DonaldScarinci@yahoo.com on September 29, 2012 · 0 comments

in Constitutional Law

A federal judge in Massachusetts is facing criticism after approving a request by a convicted murderer to undergo a sex-change operation while serving life in prison.

The case highlights that breaking new ground in the law is sometimes extremely unpopular.

As reported by the Wall Street Journal, Robert Kosilek, who now goes by the name “Michelle,” is serving life in prison without the possibility for parole for the 1990 murder of his wife.  He has been diagnosed with severe gender identity disorder, and doctors with the Massachusetts Department of Correction have stated sex-reassignment surgery as “the only form of adequate medical care.”

Given this recommendation, Chief U.S. District Judge Mark Wolf stated that he had little choice but to overturn the decision of the Department of Corrections to deny the surgery. While acknowledging that his ruling is unprecedented, Wolf held that denying Kosilek the surgery would violate his constitutional rights, namely the Eighth Amendment’s ban on cruel and unusual punishment. As he noted, the constitutional guarantee “embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.”

“In this case Kosilek has proven that he still has a severe gender identity disorder. Although female hormones have helped somewhat, he continues to suffer intense mental anguish because of his sincere and enduring belief that he is a female trapped in a male body,” the opinion states.

Wolf also found that the reasons offered by the Department of Correction for denying the sex-change operation, which primarily involved security concerns, were a pretext to mask the real reason for denying the request—“a fear of controversy, criticism, ridicule, and scorn.” By denying Kosilek’s right to needed medical care, prison officials had violated the Eight Amendment.

Wolf did acknowledge that Eighth Amendment seems to give prisoners greater rights than the average American citizen, particularly when it comes to medical care. He cited Brown v. Plata, 131 S. Ct. 1910, 1928 (2011), in which the Supreme Court recently explained the reason for this distinction.

In that case, the Supreme Court stated, “To incarcerate, society takes from prisoners the means to provide for their own needs…Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”

Therefore, while many may not like the end result of Judge Wolf’s ruling, it is the law.

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