4:04am

Thu September 6, 2012
Law

Mass. Prison Reviews Court's Transgender Ruling

Originally published on Thu September 6, 2012 8:17 am

Transcript

RENEE MONTAGNE, HOST:

Prison officials in Massachusetts say they are still reviewing a federal court decision in Boston ordering them to provide sex-change surgery for a prison inmate. Critics are urging officials to appeal what they call an outrageous abuse of taxpayer funds. But as NPR's Tovia Smith reports, the decision this week reflects national trends of prisons treating gender identity disorder as a legitimate medical condition deserving treatment like any other.

TOVIA SMITH, BYLINE: Advocates are the first to concede the inmate's not the most sympathetic poster-child for transgender rights. Michelle Kosilek was still known as Robert when he was convicted of strangling his wife to death in 1990 and sentenced to life in prison. But even still, Mara Keisling, head of the National Center for Transgender Equality, says Kosilek is entitled to the surgery.

MARA KEISLING: Whether you like murderers or not - and I would say most of us don't - we cannot deny them medical care. It is against our Constitution.

SMITH: The federal judge in Boston agreed that denying the surgery would violate the Eighth Amendment, barring cruel and unusual punishment. There is, quote, "no less intrusive means," the court said, to provide Kosilek adequate medical care.

JOE SULMAN: I think you can imagine after 20 years of fighting for this, she's incredibly emotional. And I think now she sees the light at the end of the tunnel.

SMITH: Attorney Joe Sulman says Kosilek first sued the prison to get hormone treatment, and then again for surgery, meantime twice attempting suicide and even self-castration.

SULMAN: She has been, you know, suffering, I mean, really her whole life by being in the wrong body. And, you know, she has been waiting to become her true self for the longest time.

SMITH: Years ago, sex-change surgery was seen by courts as elective and cosmetic, but this week's decision is the latest of several affirming gender identity disorder as a legitimate condition that deserves treatment as much as cancer or a broken leg. Last year a federal court ruled that a Wisconsin law barring treatment amounts to, quote, "torture." And a federal tax court also ruled the surgery a medical necessity and tax-deductible.

Also, the federal prison system recently settled the lawsuit by agreeing to provide the treatment. Jennifer Levi, attorney with Gay and Lesbian Advocates and Defenders, called this week's decision courageous, if not entirely ground-breaking.

JENNIFER LEVI: It really is just so well-established that you can't deny basic medical care. And there's also no question in the medical community about the legitimacy of the underlying condition. If anything, I would say a decision to the contrary would be shocking.

SMITH: The court rejected arguments that allowing the surgery would create security concerns, but left prisons to figure out how and where to house the inmate. Typically, those transitioning from male to female are held in a male facility and isolated if there are security concerns. Transgender advocates call that inhumane, saying it's often better to house those inmates - even if they've not had surgery - with women.

Jeffrey Perry, a former Massachusetts legislator and now special sheriff, says that's problematic, and managing an inmate during surgery, he says, even more so.

JEFFERY PERRY: This person's a convicted murderer. You're not dropping him off at the waiting room of the hospital and picking him up two weeks later. This is going to be someone who's going to have to be transported to and from and guarded the entire time, not only during the actual surgery, but during the convalescing. And those costs are high. I think people have the right to be upset.

SMITH: Perry says it's especially wrong to offer a convicted murderer medical surgery that's often not even covered by private insurance. The judge acknowledged the concern, noting it may seem, quote, "strange" that prisoners would be guaranteed a higher level of medical care than citizens in general.

Tovia Smith, NPR News. Transcript provided by NPR, Copyright NPR.

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