Thursday, September 06, 2012

Conflicted Emotions About Kosilek Case

Usually when we have a federal court case that advances trans human rights I'm so giddy with excitement about it I'm usually posting info about the fresh legal victory on the blog as fast as I get the opinion and can read it and the synopsis of it.

But in this particular case that involves trans prisoner Michelle Kosilek in Massachusetts, I like many transpeople are conflicted about it. 

Kosilek ended up in prison for while transitioning, strangling her wife Cheryl McCaul Kosilek in 1990 and leaving the body in the trunk of a car at a North Attleborough, MA  mall parking lot.   She was sentenced in 1992 by a Massachusetts court to life without parole for that crime.

While there she changed her name in 2003 and began taking hormones to facilitate her transition.  She asked for treatment of her GID issues which was denied.  Kosilek has tried to castrate herself and kill herself twice, and filed an initial lawsuit she won in 2002 in which US District Court Chief Judge Mark Wolf permitted treatment for her GID issues just short of the SRS.  

Kosilek filed the second suit in 2005 with the trial beginning in May 2006.  It resulted in Judge Wolf ordering on Tuesday Massachusetts state prison officials to provide sex-reassignment surgery for her after finding that SRS is the only adequate care for her serious gender identity disorder.  

Judge Wolf also noted that the treatment for Michelle Kosilek had been prescribed by Department of Correction doctors, and that the only justifications for denying the treatment were based on public opinion.

Wolf wrote in his opinion: “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 also noted that the treatment for Michelle Kosilek had been prescribed by Department of Correction doctors, and that the only justifications for denying the treatment were based on public opinion.  

By the way conservafools, before you start ranting about 'activist judges', Judge Wolf was a Reagan appointee 

What is making us in the trans community queasy about this ruling is that although it's a federal court legal victory recognizing that GID is a medical condition in which SRS is the treatment for it,  we're worried that this one is going to cause a little turbulence for our movement.

US Sen. Scott Brown (R-MA) who while a member of the Massachusetts Senate tried to sponsor a law to ban SRS and hormone treatments for trans prisoners in reaction to this case has already decried the decision as "a waste of tax dollars' and called for an appeal of it.

Um Scott, just an FYI moment for you, some of those tax dollars are earned and paid every April 15 by transgender residents of Massachusetts as well.  

We in the trans community are nervously aware of the individuals and groups who have no problem hating on us.  It's also easy to hate on people in prisons and believe it's a waste of taxpayer dollars to give them 'three hots and a cot', especially when that prisoner murdered someone.  

You have both morphing into the problematic visage of Michelle Kosilek.  To pour gasoline on this combustible mix of transphobic negativity, add the fact she just won a legal case to provide her with an SRS surgery that many people still regard as frivolous or cosmetic and this ruling comes down in the middle of a contentious political campaign season..  

But let me make this point crystal clear. 
No one in the trans community, myself included, is condoning what Kosilek did.   I find it particularly odious and distasteful when I'm writing posts on a monthly basis about African descended trans women being killed and the perpetrators of those trans murders have yet to be brought to justice and Kosilek took someone's life.   It's also infuriating to me that we can barely get anyone to pay attention to the fact. that young African-American transwomen are unnecessarily dying.

Gender Identity Disorder is a recognized medical condition. Under the Constitution's equal protection clause in the 14th Amendment and the cruel and unusual punishment clause in the 8th Amendment, recently backed up by the 2010 Fields vs Smith case, you cannot deny a person hormones or SRS if they are transgender especially if they were being treated for GID before incarceration.

Unlike Scott Brown's unsuccessful attempt in Massachusetts, Wisconsin in reaction to the Kosilek case in 2004 successfully enacted a law banning SRS and hormones for trans prisoners that got struck down by Fields v Smith for those constitutional violations. 

But there's also a legal principle at stake here that was upheld in this case.  Just like everything else in life, crime and punishment issues are riddled with gray areas.

Prisoners still have constitutional rights that just because they are incarcerated can't and shouldn't be suspended or abridged because public opinion demands retribution or revenge for their crimes or it would cause problems in these public officials re-election campaigns or public relations headaches.

Speaking of public relations headaches, we can count on our haters and right wing media to seize on this case and rant about it on right wing talk radio and the Conservosphere for a few weeks. 

But trans community, I also need to point out that some of our legal victories have come from prisoners like Kosilek and Dee Farmer successfully filing lawsuits to stand up for their human rights and organizations such as TGI Justice , Lambda Legal and GLAD standing up for them. 

In the process of winning those federal suits defending their human rights, they expanded rights for us trans people that are in the 'free world' in the process.

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