THE BLOG
12/19/2014 06:47 pm ET Updated Feb 02, 2016

'Cruel and Unusual Punishment' of the Entire Trans Community

Court cases generally deal with individuals, though on occasion class actions encompass many more. A recent First Circuit Court of Appeals decision regarding one trans woman, Michelle Kosilek, serving a life sentence for murder in a Massachusetts men's prison, was decided 3-2 on appeal on a claim brought under the Eighth Amendment to the U.S. Constitution. The Appeals Court decided en banc that the denial of her request for genital reconstruction surgery was not an infliction of "cruel and unusual punishments," yet by staging this en banc appeal of a previous Appeals Court 2-1 decision in favor of Kosilek, and disregarding the District Court Chief Judge's determination of the medical and security facts of the case, this Court inflicted, by extension, cruel and unusual punishment on an entire class of people -- transgender Americans.

This is an example of bad law based on bad medicine being applied to a bad person. Kosilek is a convicted murderer, and, as a friend of mine recently commented, she looks in news photos not only like a person who has committed murder but who is eager to do so again. The choice of photo is probably deliberate, to create that impression. She's so unlikeable that when the District Court ruled in her favor in 2012 many trans women erupted in outrage on Facebook that she was going to get taxpayer-funded surgery while they would have to continue to do without. Of course, once we incarcerate someone it becomes the state's obligation to provide reasonable medical care, and the status of others plays no role in that decision.

It's in the progress of this case over the past 20-plus years where the malice is clearly evident. As dissenting Judge Kayatta said, had he been the trial judge he might have ruled against Kosilek. The medical evidence as presented was in conflict and confusing, and based on a reading of the WPATH (World Professional Association for Transgender Health) Standards of Care as being "flexible," there is no obvious reason why denying surgery should necessarily be viewed as "cruel and unusual punishment." Kosilek has been receiving all the other usual treatment for Gender Dysphoria. We know that most trans women do not undergo surgery, and we've been de-emphasizing the significance of genital surgery in our advocacy for years. It's no longer as important as it used to be, because the culture has changed and understanding of human biology has improved. Whereas in the '60s gender identity was thought to be focused entirely on sexual penetration, which was the focus of the Hopkins team that started the first academic institution program including sex reassignment surgery, that attitude has been consigned to the trash.

Our understanding today, in 2014, is that the Standards are flexible because for some trans persons surgery is medically necessary, while for others it isn't. The medical community has come to consensus on this, with the exception of a few biased stragglers. The problem for Kosilek, who believes surgery is necessary in her case, and the trans community at large today as a result of this do-over at the Court of Appeals, is that this entire process was run in a biased manner by the Massachusetts Department of Corrections and now the en banc Court.

How do I know this? I happen to know the physicians who were called in by the DOC to oppose the determination of their own medical team (with their allies at the Fenway LGBT Community Health Center in Boston), who determined surgery was necessary. "DOC's Director of Mental Health and Substance Abuse Services, Gregory Hughes, suggested consulting with Cynthia Osborne, a gender identity specialist employed at the Johns Hopkins School of Medicine who had experience working with other departments of correction regarding GID treatment," according to Judge Torruella.

Lo and behold, Osborne of Hopkins, the GID "expert," invites Chester Schmidt and Stephen Levine, well known as right-wing extremist physicians when it comes to trans persons. Schmidt followed Paul McHugh, the notorious trans hater, to Hopkins in the late '70s, and Stephen Levine is a big fan of Anne Lawrence and the Michael Bailey (The Man Who Would Be Queen) crowd who think most trans women are mentally ill men. Chester Schmidt has never recommended surgery for any trans woman, and Stephen Levine wrote about Anne Lawrence's book, Men Trapped in Men's Bodies:

I admire the nifty title of this book. Lawrence . . . skillfully exposes the fallacy of the culturally accepted trope, 'I am a woman trapped in a man's body.' Both clinicians and persons with gender dysphoria can benefit from following her reasoning. Lawrence has a prodigious capacity to be logical. . . . Readers should be prepared for the power of Lawrence's logic - it may have lasting positive consequences on their understanding of the inner world of many transgendered males.


Levine thinks trans women are comic, despises WPATH for being influenced by lay trans members, and is quite happy to misgender the bulk of the community. Judge Torruella, who wrote the opinion, claimed that :

The DOC did not engage in a frenzy of serial consultations aimed at finding the one doctor out of a hundred willing to testify that SRS was not medically necessary. Rather, it made a considered decision to seek out a second opinion from an expert previously considered in its initial selection process.

As I'm sure the Judge knows, the DOC didn't need to "engage in a frenzy of serial consultations." The trans community's political adversaries know where to go without having to break a sweat and make a "considered decision" -- to Hopkins where McHugh and Schmidt are still associated, and from them to others like Levine. It's the professional anti-trans crowd, which includes the like of political professionals like Peter Sprigg of the Family Research Council and his allies. Bring in a couple of the boys, let them sow some doubt, and it provides the Court with an easy path to their foregone conclusion.

This isn't a secret with the Court. District Court Chief Judge Mark Wolf, who presided over the original bench trial, clearly exposed the political machinations behind the scenes which included hostile state senators plotting with the DOC Commissioner, Kathleen Dennehy. Judge Torruella noted as much. And yet, as dissenting Judge Thompson points out, the Court violated its protocol by calling for an en banc panel and then disparaging their own District Court's Chief Judge's determination of the facts of the case. As Judge Thompson put it:

The majority turns a blind eye to binding precedent, opting instead to cobble together law from other circuits and non-Eighth Amendment jurisprudence to formulate a standard of review that, though articulated as one of variable exactitude, amounts to sweeping de novo review. Armed with the ability to take a fresh look at findings that clearly warranted deference, the majority easily steps into the trial judge's shoes -- the inarguable superiority of the judge's ability to marshal facts, assess motive, and gauge credibility all but forgotten. The parameters set by the majority foretold the result. It concludes that the Massachusetts Department of Correction did not violate Michelle Kosilek's constitutional rights. That conclusion is erroneous, the majority's analytical path to it is misguided, and the fact that this case is even subject to en banc scrutiny in the first place is wrong. And so I dissent.

This is "cruel and unusual punishment" applied to the entire trans community. As Judge Thompson concludes, in a very powerful statement:

I am confident that I would not need to pen this dissent, over twenty years after Kosilek's quest for constitutionally adequate medical care began, were she not seeking a treatment that many see as strange or immoral. Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter's protraction. Whether today's decision brings this case to a close, I cannot say. But I am confident that this decision will not stand the test of time, ultimately being shelved with the likes of Plessy v. Ferguson, 163 U.S. 537 (1896), deeming constitutional state laws requiring racial segregation, and Korematsu v. United States, 323 U.S. 214 (1944), finding constitutional the internment of Japanese-Americans in camps during World War II. I only hope that day is not far in the future, for the precedent the majority creates is damaging. It paves the way for unprincipled grants of en banc relief, decimates the deference paid to a trial judge following a bench trial, aggrieves an already marginalized community, and enables correctional systems to further postpone their adjustment to the crumbling gender binary.

While this case has nothing to do with the postulated "crumbling gender binary," it may very well end up before the Supreme Court. If it does, I hope our side comes prepared to destroy the credibility of those -- medical, correctional, political and legal -- who seek to demonize our community, and prevent "prejudice and fear of the unfamiliar" from swaying a majority of Justices.