The transgender community in this nation has come a long way. State-by-state, city-by-city, business-by-business progress has been made through the passage of non-discrimination laws and policies to protect trans people against workplace and housing discrimination, hate violence, and health care discrimination. We are at the cusp of adding more federal protections against employment, housing and health care discrimination with increased support of the Employment Non-Discrimination Act and the LGBT non-discrimination provision in the Affordable Care and Patient Privacy Act. As LGBT communities begin to celebrate some of the sweeping victories of equality across the country, and the narratives of constitutional and human rights permeate the media, there is silence on the rights and stories of LGBT people behind bars.
Today, I am going to break that taboo with the story of Michelle Kosilek and her over 20-year fight to receive necessary medical treatment behind bars.
Kosilek is a trans woman who was found guilty of murdering her wife. She is currently serving a life sentence without the possibility of parole at the men's prison in Norfolk, Massachusetts. Since 1992, Kosilek has been battling the Massachusetts Department of Corrections (MA DOC) in federal court to obtain medical treatment related to her gender dysphoria. Last week, the 1st U.S. Circuit Court of Appeals affirmed the district court's ruling from last year that the MA DOC's denial of sex reassignment surgery, to treat Kosilek's severe gender dysphoria, is cruel and unusual punishment. As the 118-page decision from the 1st Circuit illustrates, the history of Kosilek's case spanned over two decades, including two trials and two fact-intensive decisions by the district court.
Contrary to some reports from the media, this is the second U.S. Court of Appeals decision to affirm a trans inmate's right to medically necessary health care, including hormone therapy and sex reassignment surgery. The first case took place in the 7th Circuit in 2011.
Both the district court and 1st Circuit acknowledged and accepted the facts presented by the medical experts in the case. As the 1st Circuit recognized, "[W]here at least three eminently qualified doctors testify without objection, in accord with widely accepted, published standards, that Kosilek suffers from a life-threatening disorder that renders surgery medically necessary, and the fact finder is convinced by that testimony, we are at a loss to see how this court can properly overrule that finding of fact."
While the outcome of Kosilek's case is circulating across the nation, there is little to no mention of her life story. You do not have to read far into the court documents to learn of Kosilek's tumultuous childhood laced with regular abuse "because of her expressed desire to live as a girl." Her teenage years and early adulthood "were marred by arrests, incarcerations, beatings, heavy drinking, drug use, and a stint as a prostitute." While not every member of the LGBT community has gone through similar experiences, Kosilek's story resonates with many of us.
Exclaiming the state should not use taxpayers' dollars to fund Kosilek's surgical treatment, loud dissent from the conservative media (such as Fox News and Bill O'Reilly) is completely devoid of the fact that Kosilek's medical providers recommended surgery.
There is no logical defense to categorically denying trans inmates sexual reassignment surgery. MA DOC is routinely paying for prisoners' hip-replacements and treatments for cancer and heart disease funded by taxpayers, and these treatments are far more costly than sex reassignment surgery. In Kosilek's case, nearly all the medical experts agreed sex reassignment surgery is the most effective treatment to prevent any further attempts of self-harm and suicide by Kosilek. Anyone with common sense would realize the amount MA DOC spent to defend their bias is far more than the cost of Kosilek's surgery.
It is no secret among advocates that state prisons frequently deny trans inmates transition-related medical care; however, since 2011 laws have begun to change. Transgender inmates in federal prisons, halfway houses, and prisons that contract with the U.S. Bureau of Prisons, have the right to receive an evaluation and, if applicable, a treatment plan for gender dysphoria that is consistent with the current standards of care. This right applies whether an inmate is diagnosed with gender dysphoria before incarceration or while incarcerated.
In the end, Kosilek's case will have significant implications for incarcerated trans individuals. As Chief Justice Earl Warren once said, "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Withholding life-saving medical treatment to those who are incarcerated is unacceptable. The courts must enforce the constitutional rights of everyone, including incarcerated trans people.
As the 1st Circuit appropriately held, "receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox."
Cecilia Chung is a senior strategist at the Transgender Law Center.