- - Thursday, December 18, 2014


In a rare triumph this week for judicial restraint, a federal appeals court in Boston overturned a lower-court ruling, telling the state of Massachusetts that it doesn’t have to pay for reassigning a prisoner’s sex — or “gender,” as the excessively delicate insist. (Nobody ever called Marilyn Monroe a genderpot.)

The 3-2 ruling by the 1st U.S. Circuit Court of Appeals further strikes a blow for common sense, that uncommon commodity that lies so grievously wounded in the federal courts.

Michelle Kosilek, born Robert Kosilek 65 years ago, was convicted of first-degree murder in the death of his wife, Cheryl McCaul. She was strangled with rope and piano wire, and police discovered her nude body with her head nearly severed. Kosilek, who was sentenced to life without parole, was said to have suffered from “gender-identity disorder” even before marrying Mrs. McCaul. He changed his name legally to Michelle after he got to prison, where he dresses as a woman even though he still has his gentleman parts. He had sought to compel the Massachusetts Department of Corrections to pay for the surgery to turn him into a woman, and until Tuesday had found sympathetic ears in federal court, though he no doubt had considerable work ahead to become a lady.

In 2012, U.S. District Court Judge Mark L. Wolf ordered Massachusetts to pay for his surgery. The ruling by Judge Wolf — an appointee of President Reagan, demonstrating that goofy decisions are not limited to judges appointed by Democratic presidents — was upheld in January by a three-judge panel. The panel held that “gender confusion” was a legitimate medical condition and that the state did not have a valid reason for refusing to correct it. The court dismissed the corrections department’s security concerns about whether to house Kosilek in a men’s or women’s prison after the surgery was completed. A halfway house might sound like a solution, but probably not good for a confused prisoner who had tried to reassign his wife’s head.

Tuesday’s appeals court decision, written by Judge Juan R. Torruella, another Reagan appointee, said the surgery was not medically necessary and held that the state of Massachusetts had not violated the Constitution’s prohibition of cruel and unusual punishment. Judge Torruella doubted that the founders envisioned the Eighth Amendment being construed to require a state to pay for changing a man into a woman, or that a state’s refusal to do so would constitute “cruel and unusual punishment.”

A dissent, written by Judge Ojetta Rogeriee Thompson, appointed by President Obama, called Tuesday’s ruling “flatly incorrect” and “misguided” and said “It aggrieves an already marginalized community and enables correctional systems to further postpone their adjustment to the crumbling gender binary.” No doubt it does, and crumbling gender binaries can take their place with penumbras and emanations in the court’s lexicon of substitutes for plain language. Only in the brave new world, with its excess of sexes — or genders — can sex-change surgery be treated no differently from a tonsillectomy.

To no one’s surprise, the usual suspects are aghast. The American Civil Liberties Union is highly critical of relieving Massachusetts taxpayers of the burden of Kosilek’s elective surgery. The larger lesson from the Kosilek case is that Judge Thompson’s fanciful dissent must not be lost on the new Senate, that one of its most important duties will be to block Mr. Obama’s radical judicial nominees. The message from the voters of November included neither penumbra nor emanation, but plain English.

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