By: Christine Nicco/TRT Reporter—
In the final stretch on the eve of the Massachusetts primary race for Attorney General, what you say and what you mean counts, especially in this highly contested election. In the final NECN televised debate, the candidates, Assistant District Attorney Maura Healey and former State Rep. and Senator Warren Tolman, shared their dissimilar views about a transgender case that has been the focus of several court battles in the commonwealth.
The case is that of Michelle Kosilek, a transgender inmate incarcerated for murdering her wife in 1990. Despite the fact that the courts have ruled in her favor multiple times, the prison system has repeatedly denied Kosilek trans-related medically necessary care.
NECN Moderator, Jim Braude, asked the candidates if they would continue to contest Kosilek’s right to necessary medical care all the way to the U.S. Supreme Court.
“At some point, matters run their course … given the history of that case and the way it’s been heard so many times before different courts, I’d be concerned about putting tax payer’s money at use for further appeal and litigation. … I think it’s worked its way through the court system appropriately,” responded Healey. [pullquote]“The Kosilek judge as already indicated that the legal fees before appeal were in excess of $500,000. In other cases, like Battista v. Clarke, where the first circuit upheld a transgender inmates right to hormone treatment, there is an outstanding fee petition of over $800,000 against the state. … If Tolman was basing this decision solely on saving taxpayer money, he would not be advocating for further litigation.”—Attorney Neil Minahan, who received the 2012 Pro Bono Publico Award from the American Bar Association for the Battista case.[/pullquote]
Tolman’s response displayed a lack of understanding regarding necessary medical care for transgender inmates and rather expressed a deep concern for the precedent that the case ruling would signify, not necessarily the rights of Kosilek to receive indispensable care.
“… Well, if there is a cost of trying these cases there is also a cause of precedent here and to have people like this individual who killed ‘his’ spouse and then have these operations done with taxpayer’s dollars, that’s an expense as well,” Tolman said. “So, I’d be concerned about the precedent setting value with that. If there was a constitutional rule that we could continue the challenge, I would support the governor’s decision to proceed along those lines.”
Braude further inquired, “To the Supreme Court?”
“If necessary,” said Tolman.
Leaders and members of the transgender, LGB and allied communities immediately shared their reaction to Tolman’s responses and their concern that a right to medically necessary care is being provided to some inmates, but not others.
Neal Minahan, a Boston attorney depicted by the National LGBT Bar Association as one of the country’s “Best LGBT Lawyers Under 40,” who for the past six years has also been named a “Rising Star” by Super Lawyers Magazine (2009-2014), was clear that Massachusetts needs “an attorney general that upholds the constitution, despite popular opinion.”
“To be clear, Tolman is not saying prisoners cannot have access to medical care, but just transgender prisoners—that reveals an ignorance about the transgender community that is troubling,” said Minahan. “We cannot have an Attorney General who allows his prejudices and fear of public opinion overrule medical evidence or well established law. Tolman’s comments reveal an ignorance of the overwhelming medical evidence that sex reassignment surgery is a medically necessary, life-saving treatment for some transgender people.” [pullquote]”Tolman’s comments reveal an ignorance of the overwhelming medical evidence that sex reassignment surgery is a medically necessary, life-saving treatment for some transgender people.”—Attorney Neil Minahan[/pullquote]
Echoing a similar sentiment, Jennifer LEVI, Director, Transgender Rights Project of Gay & Lesbian Advocates & Defenders, explained it in terms of the principles of constitutional law.
“The Kosilek case is about protecting every incarcerated person’s right to adequate medical care including the rights of transgender inmates,” said Levi. “Agreeing to abide by the court’s judgment reflects an understanding that a right to medical care in prison should not turn on a person’s transgender status or, for that matter, the type of crime with which they were charged. On the other hand, to say that taxpayer money should not be spent on essential medical care for someone in prison because of the nature of the crime goes against well-established American principles of constitutional law.”
GUNNER Scott, Transgender Activist/Advocate and former Executive Director of the Massachusetts Transgender Political Coalition, MTPC, does not “condone the crime Kosilek is convicted of” but stressed that the medical treatment needed does not have to do with “her crime, it is about her being transgender.”
“As I watched the debate between Attorney General candidates Maura Healey and Warren Tolman, for a few seconds I thought Tolman had morphed into Republican Charlie Baker of 2010,” said Scott. “His comments about continuing to fight the court’s decision on providing medically necessary treatment to transgender prisoner Michelle Kosilek were no different than when Baker used transgender people as a cheap and easy way to rile people up with his own sensational false claims.”
Minahan, also a featured legal expert for The Wall Street Journal, The New York Times, The Boston Globe, The Boston Herald, USA Today, and CNN’s OutFront with Erin Burnett, reiterated the importance of impartiality needed in the AG’s office, which also includes the rights of all inmates.
“The AG cannot pick and chose who gets medical treatment and who does not—that is the foundation of the 8th amendment protection against cruel and unusual punishment,” said Minahan. “We can assume a prisoner serving a long sentence has been convicted of a crime, which would offend our moral sensibilities—that does not change the fact that incarcerated people retain certain rights. In fact, incarcerated people are the only people in this country to have a constitutional right to medical care, food, clothing, and shelter. The punishment for their crime is jail, not denial of necessary medical care.” [pullquote]“His comments about continuing to fight the court’s decision on providing medically necessary treatment to transgender prisoner Michelle Kosilek were no different than when Baker used transgender people as a cheap and easy way to rile people up with his own sensational false claims.”—Gunner Scott[/pullquote]
According to MASON Dunn, current Executive Director, MTPC, “ensuring that all transgender people have access to inclusive and compassionate health care, free from discrimination is one of MTPC’s” commitment. Dunn cited the importance of Kosilek’s case, which sets “the groundwork for understanding that access to medically necessary treatment is a fundamental human right.”
“It is of vital importance to our community that elected officials, in Massachusetts and nation-wide, show compassion and understanding for transgender identities,” said Dunn. “Furthermore, candidates who advocate for the rights of transgender people in all avenues of government are assets to the movement for transgender equality.”
The taxpayer’s money spent on numerous proceedings in this case was also key to Minahan’s reaction.
“Tolman’s statement that the cost of surgery is too much for taxpayers to bear ignores the fact that the State will be required to pay millions of dollars in legal fee awards for the handful of transgender prisoner cases currently being litigated,” said Minahan. “The Kosilek judge has already indicated that the legal fees before appeal were in excess of $500,000. In other cases, like Battista v. Clarke, where the first circuit upheld a transgender inmates right to hormone treatment, there is an outstanding fee petition of over $800,000 against the state. That is in addition to the litigation costs an expert fees the state has already paid in defending these cases. If Tolman was basing this decision solely on saving taxpayer money, he would not be advocating for further litigation.” [pullquote]“She has led on issues of LGBT youth homelessness and safe schools. Maura has run two major divisions of the AG’s office, knows how to lead, and has a clear vision for the office. Her practical and no-nonsense answer to the question about the Kosilek appeal, shows she will uphold everyone’s constitutional rights and focus the resources of the office on issues that matter to the people of Massachusetts.” —Attorney Neal Minahan[/pullquote]
Joining in the fight for incarcerated transgender and all inmates’ rights was also Christopher OTT, Communications Director, ACLU of Massachusetts.
“It would be a shame for Massachusetts to continue to fight the constitutional requirement that all prisoners be provided medically necessary care while they’re incarcerated.”
According to Minahan, the AG’s Office needs a leader, a defender of people’s rights, and someone who is not afraid to fight for the rights of the people—all of the people.
“Maura has a history of defending the LGBT community. She as the intellectual force behind the states challenge of the federal defense of marriage act,” explained Minahan. “She has led on issues of LGBT youth homelessness and safe schools. Maura has run two major divisions of the AG’s office, knows how to lead, and has a clear vision for the office. Her practical and no-nonsense answer to the question about the Kosilek appeal, shows she will uphold everyone’s constitutional rights and focus the resources of the office on issues that matter to the people of Massachusetts.”
Polls are open tomorrow, Tuesday, September 9th, from 7 a.m. – 8 p.m. For more information about voting, candidates, etc., visit www.sec.state.ma.us/ele/.