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 Tuesdayâ€™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 Wolfâ€™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.