« Has Aaron Sorkin always been unwatchable? | Main | In Search of Helpful Legal Scholarship -- Where to Invest Your 2 Cents »

Thursday, September 06, 2012

Judge Wolf's Brave Decision

On Tuesday, the Chief Judge of the United States District Court of the District of Massachusetts ordered the state's Department of Correction (DOC) to provide gender reassignment surgery to transgender prisoner Michelle Kosilek.  Convicted of murder in 1992, Kosilek is serving a sentence of life in prison for the killing of her wife, whom Kosilek had married while living as a man.  While incarcerated in men's prisons, Kosilek has transitioned to living as a woman.  Judge Wolf's decision, which you can access here, was immediately derided by most news outlets under headlines like  "Massachusetts must pay for murderer's sex-change surgery."  and "Killer Wins Sex-Change Surgery on State's Dime." However, Judge Wolf's 128-page opinion defies these predictable put-down's.  

The decision describes Kosilek's gender identity disorder, which has lead Kosilek to attempt self-castration and suicide, and recounts the conclusion of medical experts, including the DOC's own health-care personnel, that surgery is the appropriate response to this serious medical need.  (Kosilek is already receiving hormones and other forms of treatment).  Most interesting, Judge Wolf pulls no punches in identifying what he believes to be the real source of the DOC's reluctance to provide surgery, writing that: "[t]he Commissioner's purported security concerns are a pretext to mask the real reason for the decision to deny [Kosilek] sex reassignment surgery--a fear of controversy, criticism, ridicule, and scorn." 

The opinion forthrightly charges former DOC Commissioner Kathleen Dennehy with engaging in "a long period of pretense and prevarication" during which she "falsely claimed" that she did not understand that DOC's doctors were recommending sex reassignment surgery for Kosilek.  Instead, it charges, Dennehy was "motivated by her understanding that providing such treatment could provoke public and political controversy, criticism, scorn, and ridicule."  In fact, the opinion recounts, "Dennehy was determined not to be the first prison official to provide an inmate sex reassignment surgery," and "she testified that she would retire rather than obey an order from the Supreme Court to do so."  This fear, Judge Wolf writes, is not an adequate basis on which to deny a prisoner treatment for a serious medical need. 

The court acknowledges that "[i]t may seem strange" to provide this treatment to an inmate when "in the United States citizens do not generally have a constitutional right to adequate medical care." Nonetheless, Judge Wolf writes, "the Eighth Amendment promises prisoners such care,"  citing the Supreme Court's 2011 decision in the California over-crowding case, Brown v. Plata.

As the court points out, other important Eighth Amendment cases, including Farmer v. Brennan, which established the deliberate indifference standard, involved transgender prisoners.  Similar to other areas of the law, cases involving the most marginalized can determine the rights of all: in this case approximately 2.3 million incarcerated persons in the U.S. who may develop a serious medical need at some point.  Indeed, transgender prisoners' cases have been at the leading edge of Eighth Amendment doctrine regarding medical care and failure to protect.

In issuing its decision, the court has opened itself up to some of the scorn that the DOC apparently feared.  The prosecutor who pursued Kosilek's murder conviction expressed mixed emotions about the decision in the Boston Herald saying, "[i]t seems absurd.  A guy who's doing life for murdering his wife wants to get a sex-change operation so he can feel good . . . . [But on the other hand] a person who is held has a right to be treated for illness."  

The court's brave opinion in Kosilek demonstrates determination to uphold the rule of law in the face of public anger.  Some will commend Judge Wolf for doing the right thing despite the fact that the plaintiff is a convicted murderer.  But I admire the Kosilek opinion for recognizing the need to enforce the Eighth Amendment because so many view the plaintiff as an unlikable felon.  It's worth a read.

Posted by GiovannaShay on September 6, 2012 at 05:51 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Judge Wolf's Brave Decision:


Paul, I'll take "bold." Orin, this decision was a straight-forward application of doctrine; given the facts as described in the opinion, the right result. I described it as "brave" because of the foreseeability of the media backlash, and also because, in an area where courts can take cover by deferring to prison authorities' choices, this court "called" corrections officials on what it saw as their "prevarication" and delay.

Posted by: Giovanna Shay | Sep 7, 2012 2:20:36 PM

I tend to agree with Paul Horwitz. I once wrote a blog post (that I can't seem to find right now) cynically noting that in our legal culture, a judicial decision is labeled "brave" when the speaker passionately agrees with it as a policy matter but realizes it is probably wrong as a matter of precedent. I have no idea if Judge Wolf's decision is persuasive as a matter of precedent, or what Gio's policy preferences are. But I have found that such decisions are the ones that usually end up being labeled "brave."

Posted by: Orin Kerr | Sep 7, 2012 12:11:59 AM

I have to agree with the last two commenters that the fact that a decision may win plaudits from academics is not enough to disprove the label of bravery. That said, I rather think it stretches or even degrades the term "bravery," unless Judge Wolf faces, say, credible death threats or complete ostracism as a result of this decision, as opposed to merely receiving some bad press and badly handwritten letters. He is, after all, a federal judge in a relatively peaceful time with life tenure. As judges go, Frank Johnson was brave. This seems more like bold than brave.

Posted by: Paul Horwitz | Sep 6, 2012 10:53:20 PM

Agreed 100% with Giovanna. To think that approval from academia is important to practitioners is.. well... let's just say, is to be quite mistaken about our place in the ladder of prestige. Bad headlines matter a million times more.

The decision is brave for other reasons, too. It invites institutional and conservative critique of the slippery-slope variety, and I say this after years of observing the way CA has reframed its approach toward old and infirm inmates whose healthcare is very expensive.

Posted by: Hadar Aviram | Sep 6, 2012 10:09:16 PM

Andy, The fact that the decision is likely to be supported in the academy (or by others familiar with the legal doctrine) does not change that it has been over-simplified and sensationalized in the popular media. Hard to believe, I know, but I bet popular opinion is still more shaped by the headlines than by law review articles.

Posted by: Giovanna Shay | Sep 6, 2012 6:20:02 PM

...of course that's not to criticize the opinion, although perhaps relying on the Eight Amendment has the perverse consequence that it relies on arguing that those seeking sex changes are ill (to argue from the left, here).

Posted by: AndyK | Sep 6, 2012 6:10:36 PM

"Brave?" Really? How is a decision widely lauded (and anticipated to be lauded, I'm sure) by the legal academy "brave?" Can you point to any serious opposition in the legal academy to this decision? Honestly, that such an absurd victim complex would continue to persist is either sad (if just ignorance) or pernicious (if part of a larger marketing campaign).

If anything, your point that "transgender prisoners' cases have been at the leading edge of Eighth Amendment doctrine regarding medical care and failure to protect" should prove that these are sexy cases that get ample pro-bono support.

Posted by: AndyK | Sep 6, 2012 6:08:35 PM

The comments to this entry are closed.