A federal judge has suspended the previously approved sex change operation for a Massachusetts man imprisoned for killing his wife. US District Judge Mark Wolf, called his previous order approving the surgery “unpopular and misunderstood” but acknowledged that this unpopular decision was sounds based on the principles of the 8th Amendment that forbid “cruel and unusual punishment.” Independent state psychiatrists have determined that the surgery is appropriate medical care for gender identity disorder, an accepted mental illness.
The procedure previous under scrutiny is electrolysis treatment to remove body hair that is usually associated with men. Kosilek has currently received seven such treatments in 2007 for the removal of chest hair and facial hair. Treatments were then discontinued after the Massachusetts Department of Correction determined that any remaining hair could be removed through less drastic procedures.
Lawyers for Kosilek are arguing that the only reason that the Corrections Department allowed even these seven treatments was to keep the issue from being fully litigated at trial. District Judge Mark Wolf has already denied Kosilek any further electrolysis treatments twice, and the DOC is arguing that this should be the end of the matter. However, Wolf did not rule on a subsequent request for electrolysis while ordering sex change surgery for Kosilek.
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Although the DOC lawyers would love to make the Kosilek case a referendum on social norms and use the prisoner’s current situation against her, the fact is that electrolysis is deemed to be a legitimate and necessary procedure for the process of a sex reassignment. On top of this, there is a legitimate argument that the Department of Corrections must consider any condition that is deemed a “serious medical need” for a corrections inmate.
Kosilek definitely fits the bill for this type of medical need. It was argued that the murder of Cheryl Kosilek was due to Michelle’s gender identity disorder. District Judge Wolf has also himself found that Kosilek is “a man who truly believes that he is a female cruelly trapped in a male body,” affording him eighth amendment protection to be shielded from cruel and unusual punishment, which would include an insufficient sex reassignment procedure.
Dissemination of rights has nothing to do with whether or not the beneficiary of a certain case is the most morally attractive person. Kosilek may be the worst messenger for this type of precedent; however, it does not negate her right to the constitutional protections that we all consider automatic.