QUEER VOICES
09/29/2012 11:33 am ET Updated Feb 02, 2016

Michelle Kosilek Ruling Sparks Debate Over Rights Of Transgender Prisoners

For years, Michelle Kosilek has been asking the Massachusetts prison system for "sex-change" surgery.

Born Robert Kosilek, she went to jail in 1992 for murdering her wife and at that point, changed her name and "began living like a woman to the maximum extent possible," according to a recent court ruling.

In 2003, after Kosilek sued the state for refusing to grant her hormone therapy and a sex-change operation -- now more commonly known among transgender advocates and medical professionals as gender confirmation surgery -- a judge ruled that the therapy was necessary treatment.

This month, the same judge ordered the state Department of Correction to provide surgery as well, marking the first time in the United States that a federal judge has ordered this type of surgery for an inmate. Transgender advocates praised the court's ruling and called it step forward, but this week the state appealed the ruling, citing safety concerns and insisting that the treatment isn't necessary.

The ruling sparked a public and highly charged debate on the rights of transgender prisoners, which has played out against growing awareness of the complexities of incarcerating transgender people. For several decades, courts have weighed in on where prisons should place transgender inmates, how they should protect them from sexual attacks and what sorts of medical treatments and therapies prisons should provide. Advocates have offered a variety of solutions, but generally agree that decisions should be made on a case-by-case basis.

In Kosilek's case, advocates said that a sex change is the only "adequate treatment" for Kosilek's "condition," and cite the testimony of medical experts who have argued on Kosilek's behalf in court over the last decade. Kosilek tried to kill herself twice while in prison and, according to court documents, attempted "self-castration."

Both candidates in the state's hotly contested Senate race, including Elizabeth Warren (D), an outspoken champion of most gay causes, have supported the state's appeal.

"I have to say, I don't think that's a good use of taxpayer dollars," Warren said of the ruling in a local radio interview. Sen. Scott Brown (R) also said the surgery would be an "outrageous abuse" of public money.

In criticizing the ruling, Warren and Brown both echoed a widespread attitude.

"I think that the public has a very difficult time with this case for two reasons," said Randi Ettner, a psychologist and the chairwoman of the World Professional Association for Transgender Health’s Committee for Incarcerated Persons. "The first being that gender is the most misunderstood area of human behavior so many people don't accept that this is a legitimate medical reason. The second is the age old question: Why do people who are incarcerated often get medical treatments that people who are living freely in society don't get access to?"

Ettner cited the judge's latest ruling for Kosilek, which accused the Department of Correction of violating the constitution's Eighth Amendment, prohibition against "cruel and unusual punishment." In his decision, U.S. District Judge Mark Wolf wrote that, "denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose. It is precisely the type of conduct the Eighth Amendment prohibits."

In its arguments before the court throughout both trials, the state repeatedly cited security concerns among the reasons why it shouldn't have to provide the treatment. But officials from the DOC didn't refute that Kosilek would benefit from a sex change, and DOC doctors confirmed that such a treatment would be necessary.

In the past, doctors have generally been reluctant to provide services to transgender inmates; the medical establishment and insurance companies often saw these treatments as "elective." But as research sheds light on the needs of transgender people, that's beginning to change.

In 2005, for example, the American Medical Association filed an amicus brief for a different case arguing that "hormone therapy and [sex-reassignment surgery] are medically necessary and effective therapeutic treatments for many people diagnosed with [Gender Identity Disorder]." The American Psychiatric Association and other prominent organizations have made similar statements.

In the ruling now facing appeal, Wolf dismissed the DOC's arguments as "pretext" and said that officials at the prison went out of their way to deny services to Kosilek. "Dennehy [the department's commissioner] was determined not to be the first prison official to provide an inmate sex reassignment surgery. Indeed, she testified that she would retire rather than obey an order from the Supreme Court to do so," Wolf wrote.

A press statement from Diane Wiffin, the director of public affairs for the DOC, said the department maintains that the court "failed to give due deference to the fact that the Department has and continues to provide adequate medical treatment to address inmate Kosilek's gender identity disorder." She added, "We also found the opinion improperly discredits the legitimate safety concerns trained correctional professionals testified will arise if sex reassignment surgery is performed."

The hearing date for the new appeal has not been set. Advocates, however, remain confident that the recent ruling will stand.

“Constitutional rights belong to everyone, even the least loved, least popular people among us," said Jennifer Levi, a transgender rights advocate for the Gay & Lesbian Advocates & Defenders.

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