John Crisp - Sex-change operation for inmate would be humane

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By the time he was 10 years old, Robert Kosilek had already begun to think of himself as a girl in a boy's body. He was abused as a child. When he announced that he wanted to live as a girl, his stepfather stabbed him. Eventually, Kosilek found a physician who would prescribe female hormones for him in exchange for sex.

Later, Kosilek met a volunteer counselor named Cheryl McCaul, who believed that she could cure him of his transexualism by marrying him. It didn't work. When she discovered Kosilek wearing her clothes in 1990, she became angry. Kosilek strangled her and, convicted of murder, he was sentenced to life in prison without parole. He's in a Massachusetts prison.

This unseemly tale rose into prominence on Sept. 4, when the U.S. District Court for Massachusetts ordered the commissioner of the Massachusetts Department of Correction to provide Kosilek -- now known as "Michelle" -- with sex reassignment surgery as soon as possible, at taxpayer expense.

The consternation was immediate. According to The Wall Street Journal, Massachusetts Sen. Scott Brown called the decision "an outrageous abuse of taxpayer dollars." He encouraged state officials to appeal the decision. The media capitalized on the sensational story, and Internet petitions developed quickly to provide citizens with the opportunity to object to the court's finding.

The reaction is understandable. Why should taxpayer money be used to provide the luxury of sex reassignment surgery for a murderer like Kosilek? For that matter, why provide a heart bypass or liver transplant -- or nearly any medical procedure -- for someone who's in prison for life?

Good questions, but the answers aren't as obvious as many bloggers and commentators might imagine. In fact, the court's detailed ruling in Kosilek's favor runs to 126 pages of worthy reading for anyone who wants to understand this issue at any depth beyond its surface.

Kosilek isn't the sort of character who generates much sympathy, but that fact doesn't exclude him -- or her -- from the rights and protections of the Eighth Amendment to the Constitution, which rejects the use of "cruel and unusual punishments" in our judicial system. The court established in considerable detail that Kosilek is a victim of severe gender identity disorder, a condition that often results in intense mental anguish of the kind that can lead to self-mutilation and suicide.

In fact, Kosilek attempted self-castration and tried to kill himself several times. The court established at length and convincingly that mental anguish is as genuine and painful as physical anguish.

And because Kosilek is in the custody of the state, the state assumes an obligation to provide her with an opportunity to maintain a decent level of human dignity. A federal judge found that in Kosilek's case, this was impossible without sex reassignment surgery. Forcing Kosilek to continue in her current mental state would be akin to torture.

The ordinary man on the street and common sense may disagree, but the courts and the Constitution see it otherwise. Perhaps we can take some consolation in the fact that the cost of a few -- even quite a few -- sex reassignment operations is a small price to pay for what we get in exchange, a justice system that goes out of its way to err on the side of decency, humanity and dignity.

Does Kosilek deserve all of this consideration at the taxpayers' expense? Probably not. But if we began to think in terms of what our worst wrongdoers actually deserve, we'd soon be back to chopping off hands and heads, burning at the stake and other forms of torture.

In any case, this really isn't about Kosilek. The fact that he was dealt a truly rotten hand in life, and then made it worse with murder, shouldn't determine anything about how we administer justice and compassion, especially if we value a system that's firmly grounded in law and human dignity rather than revenge.

(John Crisp teaches in the English Department at Del Mar College in Corpus Christi, Texas.)

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