The papers report today that an inmate in a Massachusetts state prison, doing a life term for the murder of his wife, is suing the Department of Corrections to force it to provide a sex change operation as part of his medical care. Naturally, this is not the first case of this kind to reach the federal courts. Nevertheless, there seems to be no sure answer as to whether the inmate, Robert/Michelle Kosilek, will prevail.
Last year, the Court of Appeals for the Fifth Circuit considered a request by a transsexual inmate for hormone treatment and held that, while the Constitution does require prisons to provide some treatment for transsexuals, the denial of hormones where not medically necessary to prevent death or injury is not unconstitutional. That court also considered the "disruption" to the all-male prison that might be caused by the presence of a transsexual. This mirrored an earlier holding by the Seventh Circuit that it isn't a violation of the constitution if "the inmate merely disagrees with the type of treatment offered. A violation occurs in a case where there had been a total failure to provide any kind of medical attention at all.” Kosilek is already receiving hormone treatment as a result of a court order.
Kosilek's best bet, it appears, rests on a 2003 decision by the Fourth Circuit. There, the court ruled that a prison was required to provide hormone treatment to an inmate who, according to the evidence, would definitely harm herself if the treatment was withdrawn. Kosilek has testimony from psychiatrists that he will commit suicide if he doesn't get a sex change.
Of course, Massachusetts is in the First Circuit, and the opinions of one circuit are not binding on the courts of the other circuits. That said, we'll just have to wait and see what happens.
Photo: There's no good, family-friendly picture to go with a story about a sex change operation, and the available pictures of Robert Kosilek are protected by copyright. So instead, we offer you this fine photo of a Brazilian soccer player from the '60s and '70s named Kosilek. That's him in the middle.
add to digg
add to stumble upon
add to reddit
