Archive for Kosilek

Transgender Inmate: Analysis

The strange and unfortunate decision by the full Appeal Court of the First District in the Michelle Kosilek case gets not only my thoughts yesterday. The insightful legal view today came from Jennifer Levi, director of the Transgender Rights Project at Gay & Lesbian Advocates & Defenders (GLAD).

She has been involved in the case and similar ones for a long time. She too expressed surprise and disappointment at the 3 to 2 panel majority’s finding that Kosilek could be denied sexual-reassignment surgery. That came despite the strong majority of Department of Corrections medical and mental health professionals saying such treatment was necessary.

Levi would not be backed into saying what the motivations of the three-judge majority was in denying treatment or in overruling trial judge Mark Wolf’s decision. She did concur with dissenting Judge Ojetta Thompson’s inference. That opinion noted the difficulty many have in thinking about what they find “strange…immoral…unfamiliar.”

See the scathing dissent to understand the legal issues and the flaws in Tuesday’s decision. The 117-page ruling, majority and dissents, is here. Fortunately, Judge Thompson in the lead dissent covered the content of the majority decision thoroughly. You can start on page 71. Judge Mark Wolf’s original 128-page decision from two years ago is here. He shows his work and analyzed all the ideas and details.

She discussed the dismal and daunting options left to Kosilek, who can appeal to the SCOTUS or live with the DOC’s solution of hormone treatments and cosmetics instead. No decision on appeal has been made.

She spoke of the implications of this ruling. Not only does this imply that the DOC can deny such surgery to transgender inmates, this can extend to other medical treatments. Largely, under Eighth Amendment standards, we provide necessary care for the likes of heart disease, broken bones and such. Yet, here the majority ruled that the DOC is not allowed to shop for doctors to support its denials (footnote on page 57), but can take a second, minority opinion if it chooses. Likewise, the majority ruled on what seems to be a red herring of pre- and post-operative security concerns for Kosilek. From her prison behavior and from the experiences with other transgender inmates, Wolf was correct in dismissing such arguments, I say.

Click below to listen in as Levi discusses both the Eighth-Amendment issues and the relationship between the district’s Court of Appeals panels. She does not see how this case even qualified for a full en banc review.

I’ll keep tabs on this case and follow up as necessary. It is a sad ruling.

~Mike

icon for podpress  Kosilek Analysis [22:43m]: Play Now | Play in Popup | Download

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Slapping Down Transgender Inmate

In a Scalia-level travesty, the federal Court of Appeals here considered the case of Michelle Kosilek a second time and a 5-judge panel overrules both a 3-judge version and the US District Court trial judge, Mark L. Wolf. By 3 to 2, they denied sex-reassignment surgery to the transgender inmate. That decision rejected the previous courts’ reasoned findings that the MA Department of Corrections was violating Kosilek’s Eighth Amendment right to avoid cruel and unusual punishment by denying surgery.

See the scathing dissent to understand the legal issues and the flaws in Tuesday’s decision. The 117-page ruling, majority and dissents, is here. Fortunately, Judge Thompson in the lead dissent covered the content of the majority decision thoroughly. You can start on page 71.

Judge Mark Wolf’s original 128-page decision from two years ago is here. He shows his work and analyzed all the ideas and details.

This is a real and serious blunder that will not understand. That is scant comfort to Kosilek, who has been fighting for surgery for over a decade into her life sentence. Her remaining hope is a SCOTUS hearing. Of course, as of today we don’t know her intent or if the SCOTUS would hear the appeal.

I spoke of the decision, but honestly, you can’t do better than reading Thompson’s dissent.

icon for podpress  Michelle Kosilek [19:04m]: Play Now | Play in Popup | Download

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