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It looks as if the state of Massachusetts may owe Michelle Kosilek her legal fees in the long-running legal battle over her medical treatment for transgender medical care, which is sure to make right-wing radio hosts’ heads explode on-air.

This is the fault of the State of Massachusetts, by the way. The state knew long ago that it was wrong as a matter of long-settled case law, and it chose to fight this in court despite being told it was legally wrong by the judge. The state chose to fight this because it looked good to the public to fight this.

Which brings me to my column in Bay Windows for last week, in which I detailed why I think Judge Mark Wolf’s decision ordering the state to pay for Kosilek’s transition from male to female was the correct one.

For which I’ve explained to several people over the last week: Look, I think it’s strange that a person in prison for murder gets her transgender medical care for free, while transgender (and other) people on the outside with little health insurance (or none at all) have to find the money somehow to pay for their treatment.

But the answer to this is not to require judges to decide against something that is clearly constitutional. You either change the Constitution to ban cruel and unusual punishment “except for convicted first degree murderers” (good luck with that) or you get non-incarcerated  people better health insurance. But those are your choices.

Your discomfort with a person’s crimes or with transgender people is not reason enough for a judge to carve out an illegal exception to constitutional law. I know that is how people wished the law worked, but it’s just not.

Anyway, here is part of my column from last week. You can read the entire column here.

It’s bad enough when a convicted spouse killer asks for sympathy from the general public. It’s quite another when that sympathy involves transgender medical treatment, which already pushes people’s irrational buttons, including those of 24 Democrats in our state Legislature who joined 26 Republicans in calling for the DOC to appeal Wolf’s ruling.

There are several questions that need to be answered, and truth be told they are all answered in the exceedingly rational and lucid ruling by Wolf, who is a Reagan appointee.  I have asked people who have been debating me online about Kosilek if they have read’s Wolf’s decision, and not one person has done so. Go figure.

This is why we leave these matters to judges and medical professionals rather than members of the general public carrying the modern day equivalent of pitchforks and torches as they go after the transgender monsters in our midst.

There is much muddled thinking out there about the Kosilek case, but the chief questions about which people seem to be confused are these: How much medical care is owed to the incarcerated? How do prison officials decide whether something in medically necessary? Is the treatment of what is called gender dysphoria a medically necessary treatment?

Courts decided long ago that, if we are going to incarcerate people, prison officials are obligated under the Eighth Amendment prohibition against cruel and unusual punishment to provide medically necessary care to prisoners, regardless of the crimes for which they are convicted. If you go back through the history of these court decisions, it’s clear that if the courts had not intervened countless times, most prison officials would feel justified by public sentiment and budget concerns to provide no medical care at all to prisoners no matter how sick.

But courts are designed to protect the powerless and unpopular from the whims of popular opinion, and they have done so in similar cases. This includes decisions that set forth what constitutes medical necessity. “Some factors courts have considered in determining whether a ‘serious medical need’ is at issue are,” according to the ACLU, “whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of comment or treatment; whether the medical condition significantly affects daily activities; and the existence of chronic and substantial pain.”

Judge Wolf did not pull this decision out of thin air. He relied on the opinions of medical professionals with experience in transgender issues who said that Kosilek’s treatment reaches the level of medical necessity. And that is as it should be.

I suggest you read Wolf’s decision. It really is quite reasonable from a legal standpoint.

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