By Jillian Weiss
Originally published on Advocate.com October 10 2012 3:00 AM ET
I think most people abhor crime and criminals, and are not interested in providing the gold standard of anything for jailed criminals. At the same time, however, it is only a vocal few who long for us to adopt Kwan Li So No. 22 (widely considered the world’s cruelest prison) as a model for our penal institutions.
On Sept. 4, a federal court ruled in favor of inmate Michelle Kosilek, who sued the state claiming that her constitutional rights under the Eighth Amendment, alleging deliberate indifference by prison officials to her medical needs, had been violated.
The court noted at the beginning of its opinion that the case is not only unsusual because Kosilek is a transsexual woman seeking sex reassignment surgery to treat major mental illness, but because inmates usually claim treatment that prison doctors are unwilling to provide. Kosilek, by contrast, seeks medical treatment that has been prescribed by the Department of Corrections doctors as the only form of adequate medical care for her condition. In addition, the Massachusetts federal courts have repeatedly found that the DOC has improperly denied transsexual prisoners medical treatments as standard operating procedure.
Kosilek, who is serving a life sentence for murdering her wife, is not a sympathetic character. The idea that she gets free medical care, while there are many Americans struggling to get even a minimum level of care, is abhorrent. But anger at transsexual prisoners for this state of affairs is misplaced. As the U.S. Supreme Court has noted, society takes from prisoners the means to provide for their own needs, and supplies: food, clothing and necessary medical care. As that court has said, “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.” Legally, prison medical care is not required to be the best possible, but it does have to at least avoid intentionally ignoring a serious medical need. Here, the court found that prison officials embarked on a campaign of conspiracy, prevarication, and firing of doctors who indicated that Kosilek had a serious medical need. They bought hired gun doctors to back up their case, from facilities headed by people with religious and moral objections to any sex reassignment surgery for anyone.
Kosilek’s history includes a belief in her female nature since before the age of 10, and suffering of regular abuse for it, including being stabbed by her stepfather because of her announced desire to live as a woman. She met her wife, Cheryl, at a drug rehabilitation facility, where Cheryl, her counselor, told her that a good woman would cure transsexuality, and they married. When Cheryl found Michelle dressed in her clothes, Cheryl flew into a rage, and a fight ensued resulting in Cheryl’s death. After the sheriff denied Michelle treatment while awaiting trial, she twice tried to kill herself and once to castrate herself. The courts, after hearing medical testimony, found that Michelle had a particularly severe form of gender identity that caused her constant mental anguish and constituted a serious medical need. She is still suicidal.
As a transsexual woman myself, I know what that feels like. It is a desperate, constant, haunting feeling of wrongness, and it burrows into your soul and makes itself at home at every hour of the day and night. You can ignore it for a while, and then it comes back like a hydra. I also found myself in desperate situations, because we are given little quarter anywhere in society, where I could have easily been involved in criminal activity and imprisoned, instead of completing graduate school and becoming the professor and lawyer I am today. I also thought of suicide, before, but I never have since, thank goodness.
Rep. Barney Frank, who graduated from Harvard College and Harvard Law School, and Prof. Elizabeth Warren, a former Harvard law school professor, have both come out against the court’s decision. They should know better, especially Frank, who has himself suffered from irrational anti-gay hatred. I cannot fathom that they believe their public statements. If they do, then we must abjure them. A bare desire to harm a politically unpopular group is never a legitimate government interest. That’s what our Supreme Court said about laws designed to harm gay people. The human dignity required by our Constitution constrains us to no less an opinion in the case of Michelle Kosilek or any other prisoner with a serious medical need.
DR. JILLIAN T. WEISS is a professor of law and society at Ramapo College of New Jersey