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LAWRENCE HARMON

Judge goes too far in sex change ruling

Robert Kosilek, foreground, in 1993; and in 1990, background.

ASSOCIATED PRESS/PHOTO ILLUSTRATION/GLOBE STAFF

Robert Kosilek, foreground, in 1993; and in 1990, background.

Credit US District Judge Mark Wolf with courage for being the first federal judge to order a taxpayer-funded sex change operation for a transsexual prisoner. But don’t credit him with a wise decision.

Wolf has been wrestling with this issue for more than a decade. In 2002, he ruled that inmate Michelle Kosilek (formerly Robert) was entitled to treatment for a gender identity disorder, a psychiatric illness characterized by anguish over one’s sex. He left it up to medical professionals to figure out a course of treatment. Shortly thereafter, Kosilek began a regimen of female hormone treatment and psychotherapy. That seemed like a humane solution. The case should have stopped there.

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Kosilek, however, continued to press for a sex change operation, arguing it was the only way to alleviate the pain of being a female trapped in a male’s body. And this week, Wolf arrived at the same conclusion, ruling that anything less than “sex reassignment surgery’’ would be a “violation of Kosilek’s Eighth Amendment right to adequate medical care.’’ In short, Wolf ruled that withholding the surgery would rise to the level of cruel and unusual punishment.

This ruling flies in the face of common sense and our better instincts. A layperson is easily overwhelmed by Wolf’s 126-page ruling and his skill at advancing legal arguments. But one thing can’t be obscured by legal citations: Courts require public support to remain credible. And this ruling strays incredibly far from what might be considered a midpoint of the public will. By giving Kosilek a vagina, Wolf could be giving a heart attack to the judiciary.

Wolf also eviscerated former Correction Commissioner Kathleen Dennehy for testifying that a sex change operation would create insurmountable security problems at MCI Norfolk. Instead, according to Wolf, she was motivated by a fear of “political controversy, criticism, scorn, and ridicule.’’ Maybe Wolf is right about that. But it’s easier for a federal judge with lifetime job tenure to bear up under such pressure.

A lot of people won’t get past the idea of being forced to foot the bill for vaginoplasty for a guy who murdered his wife in 1990 and is now serving a life sentence without parole. But this ruling should get under the skin of everyone, including law-abiding sufferers of gender identity disorder. They don’t get to invoke their Eighth Amendment rights when their private insurers reject coverage for sex change operations. Gender-trapped Medicare recipients are told to tough it out because federal regulators deem the surgery “experimental.’’ Same goes for low-income people covered under MassHealth, which considers sex change surgery “unproven’’ or “medically unnecessary.’’

Last year, Kosilek told an AP reporter that “everybody has the right to have their health care needs met, whether they are in prison or out on the street.’’ But he’s dead wrong about that. Only someone who commits a crime and is sent to prison can claim such a right. That is why Wolf’s decision to push the limits on what should be deemed adequate health care is so enraging.

This ruling should get under the skin of everyone, including law-abiding sufferers of gender identity disorder.

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Wolf put a lot of stock in medical experts, especially prison doctors, who testified that Kosilek might kill herself if denied the surgery. The prisoner has made some attempts. But the fact that Kosilek is drawing breath today after more than 20 years’ imprisonment — including a long period without hormone treatments — undermines that argument. If the goal is to keep Kosilek safe from self-harm, it can be done with psychiatric medication and careful observation.

Many prisoners are stunningly manipulative. Some maim themselves in the hopes of receiving pain medication. Others weave elaborate cons because they have nothing else to do. There may be more going on in Kosilek’s mind than Wolf or the psychiatrists know. It’s another reason why Wolf should have looked for a more moderate way to ensure humane treatment for the prisoner.

Let’s accept, however, that Kosilek suffers from a severe case of gender identity disorder. Had he not murdered his wife, he would be free to pursue a sex change operation that helps some people to improve their social lives, sexual relationships, job performance, and capacity for happiness. But what makes anyone think that such treatment goals apply to lifers?

Kosilek, a convicted killer, has been sentenced to prison to protect the public, not to reach her full potential as a woman.

Lawrence Harmon can be reached at harmon@globe.com.
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