Prisoner’s Right to Gender Reassignment Surgery

Michelle Kosilek, previously known as Robert, is currently serving a life sentence without the possibility of parole. Kosilek murdered his wife in 1990, although that isn’t what she will be remembered for. Her lawsuit to receive a gender reassignment surgery has made its way through the First Circuit Appeals Court, and unless the Massachusetts Department of Corrections continues to fight the case, Kosilek may be remembered as the inmate whose case made it cruel and unusual punishment to deny a gender reassignment surgery for individuals with severe gender identity disorder.

Naturally, this has all sorts of groups of people kicking and screaming about “taxpayer funded sex changes.” But before people who oppose this type of procedure get ahead of themselves, they can take solace in knowing that nothing in the law is that simple. What Kosilek’s case presents is actually a rather complex constitutional issue.

How Is This an Eighth Amendment Issue?

The Eighth Amendment allows us to ensure that those who have been accused of crimes receive humane treatment while serving their debt to society. For example, as a civilized society, we would take issue with prisoners being forced to sleep on a bed of rusty nails or having to eat bugs instead of nutritional meals.

One way a prison violates the Eighth Amendment is by failing to provide an inmate with adequate medical care. This essentially means that if a physician determines an inmate must receive treatment, then prison officials must provide that treatment. Delaying, denying, or interfering with the treatment may be enough to trigger a violation of the Eighth Amendment.

Since Kosilek had been diagnosed with gender dysphoria, the doctor’s called for gender reassignment surgery. The prison officials, however, decided that a hormone treatment would be sufficient to correct the issue. Kosilek brought legal action against the prison to receive the full treatment recommended by the doctors. Reviewing the case, the First Circuit Court of Appeals ruled the Kosilek’s Eighth Amendment rights were being violated since the prison’s treatment was deemed “incomplete.”

Will This Create a Slippery Slope for Gender Reassignment Surgery?

Not at all. Surgery must be medically necessary. Surgery is not medically necessary when it is “experimental, investigational, elective, cosmetic, or optional in any meaningful sense.” Thus, anyone seeking a cosmetic surgery would legally be denied.

What about Tax Payer Dollars?

Taxes seem to be a big concern for everyone, and rightfully so. Why should taxpayers pay for expensive surgeries for prisoners? Consider the alternative: if a prisoner does not receive proper, doctor-recommended care, then he or she will invoke legal actions that will create court costs and attorney’s fees that are paid for by the government.

If Kosilek’s case goes to the Supreme Court, Massachusetts tax payers may have to pay legal expenses in the six figures. This bill could be cut out of the picture altogether by a simply going forward with a considerably less expensive surgery.