Why the Michelle Kosilek ruling is not a terrible, horrible, awful thing (even though she might be).

It’s been quite a week for me.  Without getting into details not relevant to the subject of this post, suffice to say it was one filled with all kinds of trans community related drama.  So when I got home tonight and noticed there was some sort of controversy raging around a transgender inmate here in Massachusetts, I’ll be honest, I did everything I could to ignore it.  I’m just about on trans-issue overload as it is.

I made dinner, chatted with my roommates, watched part of a documentary about Johnny Carson until it stopped working.  Then watched some stuff about the great Improv director and teacher Del Close.

Then I made the mistake of going over to Facebook.

Why, oh why do I do these things?  Of course all the drama was right there, flooding my feed.  There were even a couple of messages from my Mother in my inbox, practically begging for my opinion.  So, finally, mainly for my Mom and because, okay, I’m a transgender advice columnist, so it’s sort of what I do…  I broke down and started surfing stories about Michelle Kosilek a convicted killer incarcerated right here in Massachusetts for the 1990 murder of her wife.

Kosilek, I should note for clarity, is also a transgender woman.

This is not the first time I’ve encountered her story.  Kosilek started her male to female gender transition while in the custody of the State 12 years ago.  She has also mutilated herself genitally and twice attempted suicide.  Without going into too many details, what is important to know is that her Doctor diagnosed SRS (Sex Reassignment Surgery) to be a medical necessity in her case.  A Federal Judge agreed with this earlier today and ordered the surgery to be provided by the State.

It will be completely unsurprising to anyone who has ever turned on the TV, Radio or Internet, or spoken to other human beings about anything out of the ordinary, and most especially about issues related to transgender folks, that this decision has caused a storm of controversy.

Those are the facts you need to know up front.  And yes, you can bet I have an opinion all my own.

I will say that the controversy seems to break down along much less partisan lines than I usually see in trans related debates.  I have seen both trans- and cisgender people who are shocked and appalled by this taxpayer funded freeloading surgery.  And I have seen both cis- and transgender folks agreeing that this is a reasonable and progressive decision by the court.

Everybody though seems to agree that it’s a very uncomfortable controversy.  “Wicked” uncomfortable even, this being Massachusetts.  I mean, look, this a person who killed their wife and is serving life in prison for the crime.  Not a nice individual.  A criminal.  A murderer!!  And if I’m going to go ahead and be really bitchy and judgmental about it (hell, I am a Pageant Queen, I’m allowed bitchiness occasionally…), kinda friggin’ creepy looking.  I mean, those eyes….

Anyway.  The one thing that’s for certain is that no one who cares about trans issues wants Michelle Kosilek to be our postergirl.  You can just almost picture the folks who have worked to oppose trans civil rights gleefully cackling like a Bond Villain, steepling their fingers while watching tonight’s news.

For our opponents, Michelle Kosilek must seem like the human embodiment of all the “Bathroom Panic” commercials used to scare people away from thinking critically and positively about Transgender Rights.  Either that or as sure proof of the Immanentizing of the Eschaton (go ahead, look it up, it’s a fun surf).

But what does it all really boil down to?  My dear readers who think so carefully about all things and never jump to hasty conclusions.  I can hear you asking!  What do you think Lorelei?  Is this taxpayer funded freeloading?  Enlightened legal progress?  Guide us!

Ooooooooookay, since you put it that way.

First, let me be clear, like many of you, I’m ragingly jealous!  Why should this murderer have surgery that I’m not sure I’ll EVER be able to afford myself, provided by our tax dollars?!?!?!  Why, when most insurance plans routinely deny this necessary surgery to perfectly law abiding transgender folks, should an incarcerated felon get it for free???

Well, I’ll tell you why.  Did you notice that phrase, “necessary surgery”?

Yeah, that’s really the only important thing here.  Forget the heinous crime.  Forget the super-creepiness of Kosilek herself.  And remember only that a Medical Doctor has given a diagnosis that without this life-saving surgery, an incarcerated human being under the enforced care of the State is at risk.

You see, inmates aren’t allowed to provide for their own medical treatment.  Or much of anything else for that matter.  While they are incarcerated, and Kosilek is for life, we as “The State” are required to take care of their basic needs.  We must feed them, house them, clothe them and if they are sick or broken, we have to try and fix them, make them healthy again.

For all of you who could give a Rat’s Ass about Trans Rights, this is the argument for you.  If we are a just and fair society, we must support the decision of the trained medical personnel who care for our prisoners.  If a Doctor deems a treatment necessary to the health of a person whose freedoms we have forcibly curtailed, we must not oppose that.  For that way lies a slippery slope.

If we, as laypeople, can say our taxes will not save this life.  Then where does it stop?  Wouldn’t it ease the taxpayer burden to allow those awful rapists to be consumed by cancer?  Should we really mend the broken hand of a sticky-fingered thief?  What about the junky drug dealer who contracted Hepatitis from a dirty needle before he was even arrested?  Do we save a few bucks off the ever-increasing deficit and say, “Sorry, no help for your suffering.”

No, I for one do not wish to live in a society that does not care for the least among us.  Though it could be argued that is the case already…

Michelle Kosilek’s prison appointed Doctor has deemed this a necessary procedure.  Therefor the Judge made the only ruling that was just and proper.

Not enough for you?  Okay, this next argument is for my trans-peeps who are upset that a prisoner is getting treatment they themselves have been denied.  Who hate that this heinous murderer is being handed the surgery we want so badly and so often struggle to attain.

I want you to breathe.  Listen to me.  Ready?  Receptive?

Okay.  This is legal precedent.  Which is good.

Very good.

A Federal Judge just said that a transgender/transsexual woman MUST be provided with SRS because it is a Medically Necessary Procedure.  That’s HUGE.  It opens up all kinds of avenues for good lawyers to argue that Insurance companies should cover SRS for all transgender people because a federal court has already ruled it medically necessary.  And if it’s a procedure that’s considered life saving for an inmate, then how can the insurance companies properly justify denying it to regular law-abiding folks like you and me?

And I’m quite sure if I can see this argument, there must be some of our opponents of Transgender Civil Rights out there who see the same thing and are very, very nervous about the outcome of all this.  Who will scream and fuss and cuss and do their damndest to strike this ruling down.

We may not much like our new postergirl.  If you’re like me, she may actively give you the willies!!  But we cannot have it both ways.  If we are trying to tell people that SRS is something we need.  Something we must have to be healthy, happy and whole.  Then we cannot deny the necessity of this procedure for anyone.  Even Michelle Kosilek.

So, I beg you to stop shouting at each other.  It will only make the work of our opponents in the overall struggle that much easier.  If we are already tearing at each other over this decision, they need hardly lift a finger to set us back.

I’m not asking you to like it.  I’m not even asking you to go to work tomorrow and tell all your coworkers how awesome it is that this Convicted Wife Murderer is getting SRS…

I’m just asking you to think about it carefully and rationally.  Think it all through.  And if you agree with me, then at the very least, please don’t throw any more wood on the media fire.

Thank you.


8 Responses to “Why the Michelle Kosilek ruling is not a terrible, horrible, awful thing (even though she might be).”

  1. 1 Liv Wyatt
    September 6, 2012 at 1:35 pm

    Once again, spot on the money. This legal precedent could be huge for the whole community. I appreciate how the cis world cannot possibly imagine this is a medically necessary procedure (after all, they can’t even imagine someone ever “wanting” to change their gender, much less needing to). Only when the medical profession steps up and says this is real and a medical necessity will we have the ammunition needed to get insurance providers (including the US government) to give us the care we so desperately need. By the way, the Judge who made the decision was no raging liberal.

  2. 3 Kelly
    September 6, 2012 at 4:24 pm

    I have read quite a lot of knee-jerk reactions about the ruling (not here, but in the blogosphere), and many are unfavorable. I anticipated the reactions from the press and from internet commenters when the ruling was announced. Many people have posted on the internet or have spoken in the news that they disagree with Judge Wolf’s ruling.

    However, here are arguments for it (while rebutting some of the things that I have heard):

    “Inmates shouldn’t get SRS.” This is much the same as “Inmates should not get normal medical care.” Inmates are indeed due normal medical care in the USA. And judges, lawyers, politicians, and people who write comments on the internet are not qualified to diagnose an inmate that they likely have never even seen. Gender Dysphoria, also known as Harry Benjamin’s Syndrome, is a real condition, and the doctors that did examine Michelle agreed that surgery is the proper treatment for her. SRS is normal medical care for many transgendered people.

    “But he’s a murderer.” Firstly, Michelle is a she. Secondly, this is more of a case of self defense, as Cheryl attacked Michelle. As is usual in the USA, if a person kills a transgendered person, they are often given a light sentence. If a transgendered person fights back, they are generally punished severely. That is the case here. It is also rather moot, since inmates should, as mentioned, be given normal medical care.

    “It’s an outrageous abuse of taxpayer dollars.” Inmates are due medical care, and it can cost money, and it prison costs are tax funded. Should we deny medical care to inmates because it costs tax money? It costs an average of $45,500 per year to keep someone in a Massachusetts prison, according to the latest figures. And the USA has more prisoners than any other country, both in sheer numbers (over two million), as well as per capita (more than one in a hundred). Overcrowding our prisons, and sentencing someone guilty of self-defense to life are abuses of taxpayer dollars, and is a poor way to treat US citizens. What is not mentioned in the stories is that the Department of Corrections has spent nearly a million dollars trying to deny Kosliek, and for that matter, Batista, medical care. One can ask which is worse, paying $20,000 (nominal cost) for normal medical care, or a million dollars trying to deny care? Rather than complain about the drop in the bucket (the price of SRS), complain about the habit of the USA to throw so many people in cages for so many years, as well as the million dollars of your tax money spent to fight the drop in the bucket.

    “But people who are free have to pay for SRS, why should a prisoner get it for free?” That is a good point. Many insurers do not cover SRS, and free transgender patients often need to pay for the surgery out of their own pocket. The problem here is not that a prisoner is getting medical treatment, but that many free people are being denied such treatment (or at least payment for such treatment) due to biases against transgendered people. If an insurance company refuses to cover care for transgendered people, or a politician creates laws against care for trans people, get angry at the guilty insurance companies and the politicians, not at an inmate. It is true that some people in the USA do not have insurance, or not adequate coverage, and that is a shame for the USA. Inmates cannot pay for their own care and are under state-regulated medical care. It is not their fault that that is the way that the prison system works.

    In Brown v. Plata, the SCOTUS has already stated:

    “To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates may actually produce physical torture or a lingering death. Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”

    A free person in the USA must obtain food, clothing, and medical care on their own. All such things are paid for by taxes for the incarcerated citizens, such as the surgery for Michelle Kosilek. Some have made the argument that it would be favorable for themselves to be incarcerated and obtain free SRS. Personally, I would prefer to be free and responsible for the cost or coverage for such medical care. Michelle Kosilek would prefer that option as well, but that is not possible.

    It is easy to stir people up with headlines such as “Taxpayers have to pay for murderer’s sex change!” And it does help inflame people and spread hate and fear, if those are one’s intentions.

    But what this all boils down to are these:

    1) Can the Department of Corrections deny adequate medical treatment?

    We have already seen that the SCOTUS said, “no”.

    2) Can the Department of Corrections deny adequate medical treatment in the case of a transgendered inmate—certainly we can discriminate against them, yes, especially surgery?

    That is still a “no”. O’Donnabhain v. Commissioner of Internal Revenue decided that treatment for gender dysphoria, including SRS, is valid medical treatment. And the doctors who diagnosed and evaluated Michelle Kosilek prescribed her proper treatment. The DoC fought to refuse such treatment, but Judge Wolf (in a decision that certainly made him a host of enemies, including death threats from the right) correctly ruled that Kosilek cannot be denied proper medical care.

    • 4 Linda Carragher Bourne
      September 6, 2012 at 9:57 pm

      Thank you, Kelly, for an engaging, honest and fair response to this, as I view it, “knee-jerk insanity.” You added even more to Lorelei’s comprehensive and straightforward piece..

  3. 5 Amberdextrix
    September 7, 2012 at 6:57 pm

    Somebody told me to come over here and pitch in my two cents since I’m no longer on Facebook, so here it is. I’m not really willing to argue about this, so I’m going to bow out afterwards.

    1. This ‘win at all costs, no matter what the cost to public opinion’ transgender community thinking is what has you thinking this is some kind of win, and it’s why the public generally despises you — and me, by proxy (thanks, by the way!). If you’ve already seen the public outcry to this (which was immediate the moment the judge handed this particular sentence down) and the intensity of loathing that this has brought out of people regarding transgender and transsexual alike, you could in no way construe this as some kind of ‘win’ for any of us. Unfortunately, ‘public relations’ never really enters the transgender community’s vernacular.

    2. I’m surprised this has to be pointed out, but this case is likely to be appealed. If and when it is and there is a loss (such as if the Supreme Court rules that cruel and unusual punishment doesn’t cover this or that it isn’t truly ‘medically necessary’), it can just as easily turn from a ‘win’ into a rather nasty setback.

    3. Even if this ends up being some kind of ‘win’, it is absolutely a Pyrrhic one. It has already been pointed out that there are twelve other inmates with ‘gender issues’ in Massachusetts alone, and if there are even more of these you can bet we will hit an all-time low on public opinion in that state. This individual might even cost other transgender and transsexual people their lives. But hey, at least Kosilek got theirs right?

    4. “In his closing statement, the prosecutor referred to the defendant on several occasions as a ‘liar’ who had constructed a ‘cunning charade’ to mislead the police. There was no objection. …the prosecution’s expert testified that: there were multiple wounds on the victim’s body; she was strangled by a wire and then a rope; she was conscious for at least fifteen seconds after strangulation began and remained alive for three to five minutes; and there were indications of a conscious struggle.”

    Kelly apparently didn’t read too deeply, where they stated, “With regard to deliberate premeditation, the evidence would permit a rational jury to infer that the defendant waited until the victim’s son was at work, that he approached his wife from behind with a wire, and strangled her by tightening the wire around her neck.” Kosilek *claimed* self-defense, it was never proven. But this is the community of believing anything some ‘trans’ person says over common sense and the ‘cisgender’, right? Us and them, us and them, repeat it until you mean it.

    So this is indeed your ‘poster girl’ in the end, transgender community: a pathologically lying, inherently selfish sociopath who committed a very male kind of premeditated murder because the wife might not have cared for cross-dressing in her clothes. Kosilek then claimed to not recall how it happened and how her corpse ended up naked in a car somewhere, selfishly getting everything desired in prison so far (hair removal, hormones, makeup, and women’s clothes). Kosilek claims to be a woman, and having been uncompromising that ‘self identity is law!’ beyond all semblance of logic and reason, Lorelei’s right… you can’t have it both ways. You have to kiss up to anything they claim, no matter how established a liar Kosilek is. This is the kind of ‘poster girl’ that represents everything wrong with you as a community.

    Kosilek should have been executed, not spoiled like a princess.

    I like how the surviving family of Cheryl has barely entered your thoughts over what really matters to you: yourselves. Things have truly come to the point of no return, and you have the ‘poster girl’ you deserve.

    • 6 Erisis
      September 7, 2012 at 8:38 pm

      You make some excellent points Amber. And in point of fact, I expect you are probably correct that this ruling will eventually be overturned.
      However, let me be absolutely clear. I am not arguing Kosilek’s innocence. Not even sort of. As near as I can tell, she’s guilty as sin. Nor have I seen anyone else, anywhere this story has popped up, trying to argue that Kosilek is innocent. If anything, the hue and cry is pretty unanimous that Kosilek is without a doubt a monster.
      I’m not trying to set up an argument against the penal system either. Or capital punishment. Michelle Kosilek was tried by a jury of her peers and found to be Guilty as hell. As near as I can tell there are no “mitigating circumstances” either. Kosilek committed the foul and brutal crime of murdering her wife in cold blood.
      No one is arguing this point. However, what I have attempted to do is strip away the emotionally charged rhetoric (which I notice you have made great use of yourself) and make a point about the rights of prisoners in a democratic society. That is the essence of my argument. In fact, the trans issue here is rather secondary.
      I will keep repeating the point that a certified, licensed and trained, prison appointed medical doctor has declared this as a necessary surgery for a life-threatening condition. A judge (a very conservative one) confirmed the legality of the Doctor’s diagnosis. That’s it.
      Does Kosilek deserve special treatment? Abso-fucking-lutely not. She deserves nothing more or less than the same treatment any other incarcerated felon has the Constitutional Right to receive. In this case, that amounts to a specific medical procedure for an unfortunately pre-existing condition.
      If you want to have a discussion of the Pros and Cons of Capital Punishment, that is an entirely different argument. In this case however, an execution was not ordered. Life in prison was.
      And frankly, since you insist on publicly rehashing the gory details of Cheryl Kosilek’s tragic death. I must return the question of whether the well-being of the surviving family and friends has entered into your own thoughts?
      Don’t you think for a minute that I don’t have a deep understanding of Public Relations. I’ve been an actor most of my life. I’ve been professionally involved in the entertainment industry on both sides of the camera/stage for years. Studied at Second city in Chicago, and lived and worked in Hollywood for a number of years. I also write a regular column for a bona-fide, printed on paper, newspaper with a wide distribution. Heck, I read Noam Chomsky for fun!
      That’s just the Cliff Notes of my bio.
      In fact, if you want a peek behind the curtain at the raison d’etre for this piece. I wrote it precisely because I was concerned at all of the social media postings and endless streams of comments I was seeing. People were genuinely, and not unreasonably, upset. Unfortunately, as someone who studies and works in media and public perception. I was afraid that all those “column inches” (to borrow a newspaper phrase) of controversy could serve only to upset those already hurt by Kosilek’s crime as well as become a public relations nightmare for perfectly law-abiding transgender AND transsexual folks who are just fighting for their basic civil rights.
      Still, thank you for your comment.

  4. November 27, 2012 at 3:43 am

    An excellent piece, Erisis!

    You nail the key point: given the circumstances of her imprisonment and current court rulings on the standards required under the 8th Amendment, and the medical findings in her case, if Michelle Kosilek does not qualify for surgery and receive it as “medically necessary treatment”, no one will.

    Because the judge would have to find the WPATH Standards of Care invalid in order to deny Kosilek surgery.

    And that would be bad.

    Erisis: “If you’re like me, she may actively give you the willies!!”

    Naw. I get the creeps, bad, contemplating the tangential connections in my life to this case… but Michelle Kosilek is a plain vanilla kind of murderer, killing out of anger, hatred, rage, fear, loss of self-control, loss of respect for the victim, her wife, as another human being.

    Amberdextrix: “the prosecution’s expert testified that: there were multiple wounds on the victim’s body; she was strangled by a wire and then a rope; she was conscious for at least fifteen seconds after strangulation began and remained alive for three to five minutes; and there were indications of a conscious struggle.”

    Yeah, plain vanilla premeditated murder, committed in the heat of passion, with feeble attempts made to cover it up. Pretty lame, in my opinion, and not exceptionally “evil”, just “very bad”.

    Having contemplated much worse spaces, relevant in my personal life, where you really can’t pretend to yourself that there’s a caring soul or much of anything human at all behind a murder… or series of murders, I’m appalled, but not truly horrified, by the facts of the Kosilek case.

    … try reading Joseph Wambaugh’s The Glitter Dome. Think about it.

    bonze anne blayk

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