Michelle Kosilek’s Dysphoria Spreads Among Federal Judges: A Glimpse of the Future

judge-cartoon-graphic-280x165Some prisoners in some states are complaining about their uncomfortable accommodations in prisons during the summer. They allege they are too hot. They have filed suit claiming the failure to air condition their cells violates the Eighth Amendment prohibition against cruel and unusual punishment.

I must remind you that Amendment applies only to action by state officials. The average person has no Eighth Amendment right to have air-conditioned homes if deprived of it by other than the state. I, for instance, have a wife that hates air conditioning. I am unable to drag her into federal court to gain some relief during this heat wave.

While reading about the hot prisoners I wondered what happened to Michelle Kosilek, formerly known as Robert Kosilek. She is doing life in prison for murdering her wife. Judge Wolf found that her rights under the Eighth Amendment were violated because the Massachusetts Department of Corrections refused to make available and pay for her sex transfer surgery. I wrote about it a long time ago saying Judge Wolf’s decision would not stand.

Massachusetts appealed Wolf’s decision. The Boston federal appeals court upheld Judge Wolf in a 2 to 1 decision. Two judges (Thompson and Kayetta) needed 90 pages to explain why Judge Wolf did not err; the 1 dissenting judge, Torruella, needed less than 30 to explain why he thought the other two were wrong.

Judge Toruella wisely started with Lest we lose sight of the rule that we are called upon to enforce, stretching it beyond the bounds of its intended purpose, it is perhaps appropriate to begin by reciting the text of the Eighth Amendment:” He set it out and said Judge wolf’s decision based on erroneous assumptions went beyond the limits of Eighth Amendment jurisprudence.

Judge Torruella concluded by writing: “The Eighth Amendment proscribes punishment, including punishment in the form of medical care so unconscionable as to fall below society’s minimum standards of decency. . . . Its boundary simply does not reach, however, to instances of care that, although not ideal, illustrate neither an intent to harm nor the obstinate and unwarranted application of clearly imprudent care.”

The Commonwealth unhappy with having lost the case asked for an en banc review of it before the five justices of the appeals court. There the two judges found themselves in the minority when the three other judges reversed Judge Wolf’s findings. They held that refusal to give Kosilek her sexual reassignment surgery was not a violation of the Eighth Amendment.

The majority noted that, The Eighth Amendment is meant to prohibit “unnecessary and wanton infliction of pain,” which is “repugnant to the conscience of mankind.” To prove a violation of the Eighth Amendment “a prisoner must satisfy both of two prongs: (1) an objective prong that requires proof of a serious medical need, and (2) a subjective prong that mandates a showing of prison administrators’ deliberate indifference to that need.”  

Analyzing the testimony before Judge Wolf the majority found in its 70 page opinion that Kosilek was receiving adequate medical treatment for her GID. It noted that there may be times when sexual reassignment surgery may be necessary for a prisoner but Kosilek had not shown that it was in her situation.

In a footnote the court explained: “The term “gender identity disorder” has recently been replaced with the term “gender dysphoria” in the medical community.” Dysphoria is defined as: “a state of feeling unwell or unhappy.”

The two judges (Thompson and Kayetta) whose decision was overturned (and I assume Judge Wolf can be put here also) suffered from extreme judicial dysphoria.

Judge Thompson astonishingly likened the decision to the separate but equal decision affecting ten million African-Americans, Plessy v. Ferguson, and the decision upholding the massive incarceration of Japanese during WWII, Korematsu v. United States. She in effect calls the majority bigots saying their decision: “aggrieves an already marginalized community, and enables correctional systems to further postpone their adjustment to the crumbling gender binary.

Wow! How can she possibly stand to be in the same room with those other judges, She seems to suggest no matter what the facts are the marginalized communities should prevail.

Judge Kayatta, likewise unhappy, responded by suggesting “no prison may be required to provide SRS to a prisoner who suffers from gender dysphoria” if certain experts are called. He continues: “Acknowledging that the majority may well be correct on the facts, I nevertheless decline the invitation to join the majority in embracing the authority to decide the facts.” 

He would have a decision upheld even when the facts do not support the judge’s conclusions. He would prefer not to engage in a search for the truth. He continued: “I suspect that our court will devote some effort in the coming years to distinguishing this case, and eventually reducing it to a one-off reserved only for transgender prisoners.”  He too alleged his colleagues are bigots having decided the case in the way it did because it involved transgender people.

Standing back one can only fear the future of American jurisprudence with these two judges both, Thompson (2010) and Kayatta (2013), recent appointments of President Obama. They are not interested in following the law but prefer to go outside it for the “marginalized community” and the “transgender prisoners.” 

Imagine how it will be once Hillary gets her storm troopers on the bench. Thanks will go to all those beguiled by the bluster of Trump. America is on the cusp of drastic and dire change. Thompson and Kayatta show us the future.

5 thoughts on “Michelle Kosilek’s Dysphoria Spreads Among Federal Judges: A Glimpse of the Future

  1. Dear Rather Not, Thanks for the positive comment. I googled your “haiku.” Can you explain how it relates to Gaga’s sing-song voice when storytelling? Gangsters rob a lot of money, then sit around (usually in a barroom) telling stories. Even when the stop being a gangster (like Gaga now), they love telling stories. Gaga has great World War II stories, seducing woman stories (some too obscene for the book), crime stories, etc.

    I didn’t realize his storytelling fit a numeric code until transcribing the tapes. I kept wondering why he would repeat certain sentences – but making them a little bigger or a little smaller. Is this the first non-children’s book in Western literature to have a numeric code? If you don’t know, does anybody reading Matt’s bog know?

  2. Matt
    I enjoy this blog a lot and appreciate it but what is your criteria for responding to comments? I have left 2 responses with the same comments/questions and you have not responded. I will ask here a third time but I would appreciate you sharing what your criteria is that way I dont waste my time responding with questions you wont answer here on the blog. Here is my THIRD attempt:

    1. What aspect of law enforcement among the New England area would you say has a direct pipeline to organized crime? In other words what section of law enforcement would you suggest one apply to if they have an interest in working against organized crime in area New England area.

    I often thought, and this is because of the media drive behind Bulger and Flemmi, that Salemme kind of flew under the radar in a strange way. No books written about him. One thing I cant wrap my head around is why is it that men like Bulger, Flemmi, and Salemme are NOT afraid of jail (specifically the prospect of getting raped and possibly gang raped). Also so many inmates get murdered in prison too, no? I understand that Bulger, Flemmi, and Martorano were tough guys because they used guns to murder but in prison one doesnt have guns to use so are they such tough fighters they feared no man?

    Whats your estimate month that Salemme goes to trial?


  3. The Constitution is being “interpreted” out of existence.
    Today’s judges have little respect for the law, for language, for facts. They act like an imperial judiciary. The Courts will worsen under Hillary: radical judicial activism will rule.
    2. A federal judge in Seattle said yesterday, “Black lives matter” and said, “Blacks are 20% of Americans but represent 40% of those shot by police.” He does not know that blacks are 13% of Americans and that blacks commit 50% of murders and blacks represent about 50% of those arrested for carrying weapons. Why is it shocking to a federal judge that those who are four times more likely to commit murders and four times more likely to carry guns are three times more likely to be shot by police?
    3. I remember in the St. Pat’s Parade case, Judge Hillar Zobel said the Parade was not entitled to First Amendment protection because it lacked “a unifying theme.” Thus, a state court judge implicitly declared that rambling speech or multi-themed expressions were no longer protected by the First Amendment. Astonishingly, every Massachusetts reviewing court upheld Zobel’s “reasoning”. As previously said, it took three-plus years for SCOTUS to say the Mass Courts acted “without lawful authority.”
    Think of it: Courts acting without lawful authority!!!! Not one judge, but about 20 judges, including Administrative Law judges, violated the clear constitutional rights of the Veterans. And the Boston Globe cheered on the evisceration of free speech rights.
    The only dissenting judge in Massachusetts was the honorable Joseph Nolan, who rightfully defended the First Amendment and whose dissent the Supreme Court adopted.
    4. With Hillary, you’ll get more Thompsons, Kayattas, and Zobels. On that one issue —judicial appointments —- every honest, law-abiding, constitution-respecting American should vote against Hillary.

  4. In Arizona joints, old cons teach the new-comers how to survive the heat without air-con.
    When its better than 110 degrees in the cell-house, sleep becomes problematic. The only way to lower one’s temp is to take a towel, and, fill it with ice-cubes. Twist it, then, tie it around your neck. Next, take a wet sheet, and, roll yourself up like a mummy. Now, you are ready for a few hours of fitful sleep. Always keep your shank handy. After a few weeks of constant oppressive heat, tempers can get short. The hacks on the block have to endure the heat as well as the inmates. The atmosphere can get very explosive.

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