Warren's transgender transgression

What we can learn from the Senate candidate's alarming remark
By EDITORIAL  |  September 13, 2012


To understand Chief US District Judge Mark Wolf's landmark ruling ordering the state of Massachusetts to provide taxpayer-funded sex-reassignment surgery for a transgender prisoner, you need to understand this: a "sex-change operation" is not cosmetic surgery.

Wolf is a tough-minded judge. We can imagine him (at one level) being amused at the talk of his courageous decision, while appreciating (on another level) that this was a ruling that would stir political passions.

Both, of course, are true.

But what Wolf did was relatively simple and straightforward. The 126-page order laid out Wolf's thinking, which was comprehensive, impressively sweeping, and inclusive. In essence, Wolf connected a finite series of dots: prisoner has a recognized medical condition; prisoner has the right to medical treatment; doctors retained by the state Department of Corrections recommend an operation for the prisoner. Conclusion: the prisoner has a right to that surgery.

A complicating factor in this case is that the prisoner, who for many years has identified herself as Michelle Kosilek, was in 1993 convicted of a brutal murder. At the time of the crime, Michelle was named Robert, and the victim was Kosilek's wife.

Kosilek is an unsympathetic poster child for prisoner or transgender rights. And those two issues are central to this case.

It has long been established that to deny convicts medical treatment is not just inhumane, it is unconstitutional. Letting medical conditions go untreated violates the US Constitution's prohibiting against cruel and unusual punishment. Prison authorities do not have the right to determine if it is a good investment or a wise use of public funds to fix prisoners' teeth or to allow them to be treated for cancer. They have no choice, no discretion in these matters.

Kosilek has been receiving hormone treatment for approximately nine years after specialists diagnosed Kosilek with gender identity disorder (GID). That medical term is, in itself, misleading. It is not a disorder to an individual who thinks, feels, and perceives as a woman but is born with the body of a man. It is the existence they know.

Nonetheless, issues surrounding GID are not frivolous; they are medically recognized as legitimate and serious by the American Medical Association and the American Psychological Association.

Although doctors and psychiatrists are still fine-tuning aspects of diagnosis and treatment for individuals who find themselves psychologically at odds with the gender they were assigned at birth, there is agreement that transgender people have some form of dysphoria, also a recognized medical condition that can lead to depression or self-destructive behavior. In Kosilek's case, this manifested itself in to two suicide attempts.

There are a range of medical responses to gender dysphoria. In some cases, sex-reassignment surgery is considered necessary.

What Wolf's order did was to recognize that transgender convicts have the same right as other prisoners to medical treatment. To deny Kosilek treatment for her dysphoria would be akin to denying convicted former Speaker of the House Sal DiMasi treatment for his cancer (although the US Department of Justice did shamefully play Russian roulette with DiMasi's medical condition in a failed attempt to coerce his to assistance in a political-corruption investigation).

Wolf — could the judge be engaging with irony? — writes, "It may seem strange that in the United States citizens do not have a constitutional right to adequate medical care, but the Eighth Amendment promises prisoners such care."

1  |  2  |   next >
Related: President Obama, Award-worthy, Tax time?, More more >
  Topics: The Editorial Page , editorial, transgender, prisoners
| More

Most Popular
Share this entry with Delicious
  •   MERCY AND SAL DIMASI  |  March 13, 2013
    When it comes to showing a modicum of mercy to some of those convicted of federal crimes, Barack Obama is shaping up to have the worst track record of any president in recent memory.
  •   NEXT, MARRIAGE EQUALITY  |  March 05, 2013
    On March 27 and 28, the US Supreme Court is scheduled to hear arguments in two cases that could essentially put America on the road to full marriage equality.
  •   THUS SPAKE MARKEY  |  February 26, 2013
    Last week, Congressman Ed Markey inadvertently injected some daring political thinking and a touch of historical imagination into the race to fill the US Senate seat vacated by John Kerry's appointment as secretary of state.
  •   DRONES: 10 THOUGHTS  |  February 20, 2013
    Foreign drone attacks are almost (but not quite yet) as American as apple pie.
    America is a prisoner of the War on Terror, which military and diplomatic policy makers once called the Long War.

 See all articles by: EDITORIAL