Ruling overturned on sex-change surgery for Mass. inmate
Source: Boston Globe
A divided federal appeals court in Boston on Tuesday overturned a lower courts ruling that a transgender Massachusetts prison inmate, convicted of committing a domestic murder, was entitled to taxpayer-funded sex change surgery.
The ruling by the First US Circuit Court of Appeals came after a 2012 ruling by US District Judge Mark Wolf, who ordered the surgery after finding that the states failure to provide it violated the inmates Eighth Amendment protection against cruel and unusual punishment.
In January, a three-judge panel of the appeals court upheld Wolfs 2012 decision, but the state of Massachusetts then asked for an en banc, or full bench, review, which led to Tuesdays ruling.
The ruling came in the case of Michelle Kosilek, who was born Robert Kosilek. Kosilek is serving a life sentence for killing her wife, Cheryl Kosilek, in 1990.
Read more: http://www.bostonglobe.com/metro/2014/12/16/federal-appeals-court-overturns-ruling-ordering-sex-change-surgery-for-mass-prison-inmate/WqBuLuGI14yZ6nVoFCIfjK/story.html
A good decision in my opinion
LeftyMom
(49,212 posts)It shouldn't be restricted to the wealthy or the deserving. It's vital for the health and well-being that trans people have access. Period.
KinMd
(966 posts)or if people want to start a "go fund me" site ..I'm good with it
LeftyMom
(49,212 posts)That's how being incarcerated works. She can't get a paper route and save up.
The idea that she should pay for this health care and not other care is rooted in the idea that transpeople aren't deserving or that their medical needs aren't real and it's inherently transphobic.
KinMd
(966 posts)LeftyMom
(49,212 posts)and that's increasingly understood. It's sad that MA is bigoted and backward on this matter, but progress is inevitable.
Warpy
(111,359 posts)However, I'd need to look very carefully at a man in for murdering his wife to make sure he wasn't trying to get into a women's prison because he thought it would be easier.
All people going in to gender reassignment surgery get counseling. Let's hope this inmate gets a counselor with an excellent bullshit detector.
Then of course it should be paid for. It should be paid for for anyone with gender dysphoria who wants it done by single payer outside the jug and Medicaid inside it.
GGJohn
(9,951 posts)IMO, this is a good ruling.
LeftyMom
(49,212 posts)"I need insulin/ this tumor removed/ a wheelchair"
"You should have thought about that before you went to prison"
If you think trans health care is different somehow that's bigoted. Period.
Response to LeftyMom (Reply #7)
Post removed
LeftyMom
(49,212 posts)These statistics are even worse in prison. Gender confirmation (note: "sex change" is outdated at best) greatly reduces those risks.
GGJohn
(9,951 posts)Once again, she wouldn't have this problem if she hadn't gotten herself incarcerated.
MillennialDem
(2,367 posts)the fucker in gauze and be done with it.
They should have thought about it before they got incarcerated.
cstanleytech
(26,319 posts)the taxpayers should pay for it? I mean I could understand if its reconstruction due to treatment for cancer or even a reduction due to her breast size being to big and causing her back problems but otherwise I am not so sure.
LeftyMom
(49,212 posts)Because gender dysphoria is a well recognized condition and conformation surgery is the accepted treatment. We don't need absurd analogies that disregard the reality of trans people's existence or the seriousness of their concerns.
MillennialDem
(2,367 posts)medical necessities by all reputable medical associations. Society has catching up to do.
I've never been at death's door, but I can tell you right now I would much rather have any of the non-life threatening physical injuries and pain that I've had for life rather than live one more day as a man...
happyslug
(14,779 posts)See the opinion I posted below, the court ruled that given that at trial there was two different set of medical opinion as to the need for Sex Reassignment Surgery, the courts have to leave such decision up to the Department of Corrections if the Department of Corrections is paying for the medical care.
Please note, at trial the issue was simply was Sex Reassignment Surgery actually needed in this case. At Trial some doctors said yes, one said no, and in such disputes it is up to the Department of Corrections to make the decision of who to go with AND such a decision is NOT cruel and unusual punishment.
Please note even the doctors who said Sex Reassignment Surgery was NOT needed at the present time, mentioned it may be needed in the future.
Reter
(2,188 posts)They say for teeth implants, it has to come out of my own pocket. That's a hell of a lot more necessary than a sex change.
MillennialDem
(2,367 posts)missing tooth for life than live one more day as a man.
And even if you disagree, why do you think because your healthcare won't pay for implants we shouldn't also pay for gender reassignment? It's not a race to the bottom.
Nye Bevan
(25,406 posts)If it was really an "unusual" punishment then convicted murderers would be provided with such free surgery on a regular basis.
nomorenomore08
(13,324 posts)Now, sex reassignment surgery may be a bit more of a gray area, but nearly anyone in the medical or psychiatric profession would still consider it a medical necessity for certain patients with severe gender dysphoria.
Note that I say this not because I have particular concern for this woman's individual case, but in the interest of fairness and equality in healthcare more generally. Including among inmates.
happyslug
(14,779 posts)The court then ruled that based on the evidence presented in this case, that was NOT the case in this case.
You had a dispute as to NEED for such surgery in this case and in such cases the Court decided to defer to the decision of the prison. If there had been NO Dispute as to the need for such surgery OR that the prison had decision to approve the surgery, the court would have approved of such surgery. The decision on such treatment is up to the Prison NOT the Prisoner WHEN THEY IS A DISPUTE AMONG MEDICAL EXPERTS ON THE NEED FOR THE TREATMENT.
When they is no dispute, it can be ordered.
happyslug
(14,779 posts)Earlier in the opinion the Court defined the following two abbreviations:
GID stands for "gender identity disorder", through the court acknowledge the term "gender dysphoria" is the preferred term, they stayed with GID to stay consistent with prior decision in this case.
DOC stands for "Massachusetts Department of Corrections"
SRS - sex reassignment surgery.
http://media.ca1.uscourts.gov/pdf.opinions/12-2194P2-01A.pdf
First lets look at what the Department of corrections were doing for the Plainitff, as found by the court:
Kosilek was evaluated by Dr. David Seil, a gender identity specialist, who prescribed a course of treatment to alleviate the mental distress -- often referred to as "dysphoria" -- associated with her GID. In line with Dr. Seil's recommendations, in 2003 the DOC began providing Kosilek with
significant ameliorative treatment aimed at directly addressing the mental distress caused by GID. In addition to continued mental health treatment, she was provided female, gender-appropriate clothing and personal effects, and electrolysis was performed to permanently remove her facial hair. Kosilek also began a course of hormonal treatments recommended by an endocrinologist. These treatments resulted in "breast development and shrinkage of her testicles." All of the treatments described continue to be offered to Kosilek to the present day.
After a long discussion the court reported the following as a finding of the Department of Corrections:
The Department of Corrections then address the issue of housing and after a long discussion made the following point:
Given the stated infeasibility of housing Kosilek in the general population of either MCI-Framingham or MCI-Norfolk, the report considered segregated housing in a protected ward. It expressed concern, however, about the possible deleterious impact on Kosilek's mental health caused by any housing solution that required long-term isolation. The report also noted that it was not within the DOC's ability to create a special ward for prisoners with GID, given that these prisoners present a significant range of criminal histories, security ratings, and treatment needs that are antithetical to co-housing.
On June 10, 2005, citing both its internal review of safety and security and Osborne's reported concerns regarding the appropriateness of SRS, the DOC informed the district court that it had chosen to continue Kosilek's current ameliorative treatment, but not to provide her with SRS.
At trial one doctor said the following:
Thus you had two competitive plans on treatment for this prisoner, one involving SRS, the other NOT involving SRS and it was up to the Department of Corrections to pick which option. The trial judge said the Department of Correction had other agendas and for those reason opt to skip SRS, but the Court of Appeals said, they will defer to the Department of Corrections when it comes to such decisions.
Now before the court made its decision, it did state on law on this issue:
(1) an objective prong that requires proof of a serious medical need, and
(2) a subjective prong that mandates a showing of prison administrators' deliberate indifference to that need.
As to the first prong the Court pointed out that while the report by the treating physician recommended SRS, the need for SRS was brought into question in the actual trial by two other physicians, thus no conclusive evidence that SRS was needed to solve a serious medical need of the Plaintiff.
Now the court also addressed the second prong of the test:
With that finding the court then made its decision,, basically given the dispute as to the need for SRS in this case, it is up to the Department of Corrections to decide which one is the best option and they can consider housing in that decision.
Given the positive effects of Kosilek's current regimen of care, and the DOC's plan to treat suicidal ideation should it arise, the DOC's decision not to provide SRS does not illustrate severe obstinacy or disregard of Kosilek's medical needs. DesRosiers, 949 F.2d at 19 ("[T]he complainant must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain." . Rather, it is a measured response to the valid security concerns identified by the DOC. Battista, 645 F.3d at 454 ("Medical 'need' in real life is an elastic term: security considerations also matter at prisons. . . ." ; Cameron, 990 F.2d at 20 ("Nothing in the Constitution mechanically gives controlling weight to one set of professional judgments." . Having reviewed the record before us, we conclude that Kosilek has failed, on these facts, to demonstrate an Eighth Amendment violation. Accordingly, we reverse the district court's order of injunctive relief and remand this case to the district court with instructions to dismiss the case.
Android3.14
(5,402 posts)While sympathy and accommodation are appropriate, providing surgery at taxpayer expense to a prison inmate for what are merely complicated cosmetic alterations is inappropriate.
Regular cosmetics, antidepressants and counseling will work for far less.
MillennialDem
(2,367 posts)dysphoria.
Usually some or all of the steps in the gender confirmation process are required. Again these are generally the steps - as I said SOMETIMES some of the steps can be omitted.
For male to female:
Hormones (testosterone blockers and estrogen)
Facial Hair Removal (electrolysis or laser)
Voice Therapy/Training (estrogens do not alter voice)
Facial Feminization Surgery
Breast Augmentation
Body Contouring (rarely needed)
Orchiectomy
Vaginoplasty
For female to male:
Hormones (testosterone... and rarely estrogen blockers)
Masectomy
Metoidioplasty and/or Phalloplasty
Voice Therapy (rarely needed - testosterone usually alters voice)
Facial Masculinization Surgery (rarely needed)
Android3.14
(5,402 posts)I'm saying that counseling and antidepressants can help a person deal with the depression in a prison environment brought on by gender identity issues, and that providing that counseling and drug therapy is an appropriate response by the state. It is a cost-effective way to make the stay in prison tolerable.
I have empathy and respect for those who suffer from gender identity problems. However gender is genetic, and no amount of surgery will change an XY chromosome pair to an XX or the inverse. Additionally, the sex change process is a cosmetic process that does not change actual gender, but only the appearance of gender.
I'm glad that we have the procedure available, especially if it helps a person to find happiness, but I do not think taxpayers should pay for a convicted murderer to receive the surgery.
MillennialDem
(2,367 posts)Um, what do you mean by "drug therapy"? Do you mean anti depressants or hormones or both? Because I've been treated with several antidepressants in relation to some of my own gender dysphoria and they didn't do squat. They either did nothing, made me feel like I was completely numb (less sadness but no joy at all), or gave me horrendous headaches and horrible nightmares.
Your second paragraph is very offensive to me as a trans person. First of all, many of us do not have ordinary XX or XY chromosomes - people with kleinfelter's syndrome seem highly prone to being trans. Secondly, chromosomes are meaningless anyway. It is possible for a person who has never had any medical treatments to have the complete wrong chromosomes and you would never be able to tell - there are several conditions that can cause this, but androgen insensitivity disorder is probably the most well known. In case you don't know what that it is, it is a person with XY chromosomes who should have developed as a male but as the name implies they are insensitive to androgens - ie testosterone does not masculinize them. So they develop as female instead since that is the "default" human form.
Tell me, if you found out tomorrow that you or a loved one has the opposite chromosomes or an unusual chromosome set, such as XXY or XO or XXX would that change a thing?
I also don't understand what you mean by actual gender vs appearance of gender? Can you be more specific? There is only appearance of gender and mental state. Any other definition such as chromosomes or fertility have counter examples.
And lastly, since we're forsaking some (or all?) medical treatment for a convicted murderer, where does the slippery slope stop? I can tell you many conditions which are treated in prisons are more tolerable (for me anyway) than gender dysphoria ever was. I'm guessing you'd require all life saving treatments for a prisoner (even a murderer) but would you pay to treat a broken hand? A broken foot? A broken finger?
I'm honestly glad you will never experience the sting of gender dysphoria, it really is hell.
Android3.14
(5,402 posts)Any person with gender issues has my sympathy and emotional support, even convicts. That has little to do with what i would do monetarily, and what is the obligation of the state to respond to those issues
By drug therapy, I mean antidepressants, not hormone therapy. And if a convicted killer feels less sadness and no joy because of the drugs, then it is what it is.
With the genetic disorders you mentioned, those would be a separate class of problems, which is unrelated for a number of reasons. If, however, a convicted killer had either of those conditions, it would still be inappropriate for the taxpayer to fund the surgery.
As far as your statement "there is only the appearance of gender and mental state", you are incorrect. Actual gender is the biological sex of the animal by genetics, whether male, female or intersex (Klinefelter's Syndrome, hermaphrodite, etc. ) You are conflating "gender" and "gender identity".
A person of any gender may have one (or more?) of any number of gender identities, but their chromosomes stay the same, at least with current technology.
Consider this. If you had a choice between a surgical solution with hormone replacement, or a solution with a similar morphological outcome in which you could alter your sex at the genetic level, which would you choose? The latter of course. Your own gender dysphoria is a condition with which I can empathize. If we had universal healthcare, I would support that the procedure be on the list. It does not, however, mean I want to pay for a sex change operation for a convicted killer before I would for a free and law-abiding citizen.
As far as the slippery slope, there really is none. The idea that because the state refuses to pay for a sex change operation on a convicted killer this leads to the state refusing to pay for a splint for a broken finger is ludicrous. You need to provide evidence that withholding a specific medical procedure to prisoners has led to the elimination of all medical treatment.
MillennialDem
(2,367 posts)you respect my right to self determination, but I really don't think you get how truly hard being trans is. I mentioned before that I would easily eat any physical injury I've ever had - PERMANENTLY over being forced to live as a man. I'd cut off an arm or leg myself with a rusty knife no problem too if it was that vs live as a man. Again, I really don't think you get how bad it is.
As for your "actual gender" stuff, ok we're playing with semantics and definitions. Really what you said is absolutely not universally what people (even non-trans) think that means, but that's ok. We'll go with it from now on, I understand what you're saying.
Having said that, why are you focused on chromosomes? Really, what damn bit of difference does it make if someone's chromosomes say XX or XY? I've never been genetically tested and they absolutely could be XX for all I know. Is it likely? No, but it is absolutely possible. Would it change a thing for you if you found out you had a chromosomal abnormality?
http://en.wikipedia.org/wiki/XX_male_syndrome
As for your "consider this" hormones and standard treatment vs "chromosomal treatment" you don't know me. What you said is ABSOLUTELY false. I'm a non-op (which I hope does not get you thinking I'm not a real woman or some such crap) so I wouldn't want a chromosomal change - and even if the procedures were absolutely IDENTICAL in results, just one results in XX and one results in XY, I guess the chromosomal change - ie XX but still a non-op trans woman...... would be preferable, but only for one reason - in case someone decided to genetically test me to prove I wasn't a real woman for some damn reason. I doubt that would ever happen, though. I'm not an aspiring professional athlete.
The slippery slope does not exist. I was not saying we should deny prisoners finger splits if they break a finger, I was saying WHY give them splints if we don't also give them gender reassignment? Nothing further.
Android3.14
(5,402 posts)There are so many contradictions in what you say you would do (cut off limbs, apparently several), what you want (never live as a man), what you claim to have done (embraced the trans lifestyle without a sex-change operation), what you think transgender murderers should have (government funded sex-change operations because that is the only way a transgender can truly be who they want) and the other verbal spaghetti, I must conclude that further debate is unhelpful at best.
Good luck.
MillennialDem
(2,367 posts)I have a dick. Yeah. Get over it.
I also have long hair, been on hormones for over a decade, have all my legal documents changed and have had a face job (more important and expensive than sex change) and a boob job. I look like a woman for all intents and purposes with my clothes on.
There was not a single contradiction in my post.
One_Life_To_Give
(6,036 posts)Setting aside my own doubts about the benefits of SRS to Ms Kosilek. This ruling sets a precedent that will be used nationwide in determining how to care for incarcerated individuals with Gender Identity Disorder. Wouldn't be surprised to see a Dr. Zucker referenced in a multitude of cases as justification for prison officials transphobic judgements.
Also question that by 24months post SRS, that you couldn't put a transwoman into a female prison system.
Historic NY
(37,453 posts)its elective surgery.
KinMd
(966 posts)MillennialDem
(2,367 posts)casts?
Android3.14
(5,402 posts)Elective surgery is surgery that is scheduled in advance because it does not involve a medical emergency.
This is cosmetic surgery, which is even less "elective" than "elective surgery."
MillennialDem
(2,367 posts)I don't know how much to be offended by telling me surgery for my condition is cosmetic and less than elective. I said that in another response that I really am glad you don't know the sting of gender dysphoria. I could not live another day in this world as a man.
But why are you drawing the line at surgery vs non surgical treatments? Really what is the difference between paying for a cast for a prisoner and paying for a surgery outside of the cost? Yes one is surgery and the other is not but why the dividing line at surgery? Neither is technically required to live so I can't see any kind of emergency vs elective vs cosmetic argument here.
In this case I know what's in question is a particular surgery, but would you deny hormones to a transgender inmate too? Those are not surgery. How about facial hair removal or voice therapy - those are also not surgeries.
Android3.14
(5,402 posts)This particular slippery slope argument is ludicrous until you provide evidence to support it. The offense you feel is unintentional and counter to my actual regard for persons in your dilemma. Pragmatically, my language is correct.
One_Life_To_Give
(6,036 posts)International Journal of Transgenderism
World Professional Association for Transgender Health
Standards of Care for the Health of Transsexual,
Transgender, and Gender-Nonconforming People, Version 7
http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisory-committee/glbt-resources/lgbt-health-resources.page
Attached AMA link includes the Wpath and many more documents and medical experts on the subject.
happyslug
(14,779 posts)Read the opinion, which I posted above, the court clearly stated that such surgery MAY be medically necessary. The problem was in this case the evidence at trial did NOT clearly indicate such treatment was needed in this case. Two doctors testified it was NOT needed in this case.
At that point the Court of Appeals said the Trial Court had to defer to the Department of Corrections decision as to which medical experts to follow NOT rule otherwise. Thus the Court of Appeals ruled that the decision of the Department of Corrections must be upheld if there is any question as to medical necessity. The Trial court did NOT do that and thus the Court of Appeals reverses the decision of the Trial Court and ordered the case dismissed.
Android3.14
(5,402 posts)eom
One_Life_To_Give
(6,036 posts)It seems odd that the DOC would choose a hospital/Dr in Baltimore when there are so many fine institutions and Dr's right here. Until you consider that Johns Hopkins discontinued performing SRS in 79 and the head of Psychiatry there was a critic of the practice. And that their regular health specialist UMASS had recommended Fenway Health which is very open and accepting of the trans community.
happyslug
(14,779 posts)You may not LIKE John Hopkin's position but that is something to be taken up with the Massachusetts Department of Corrections NOT the court AND not it litigation UNLESS you can show that John Hopkins is completely out of the range of opinion on this subject. That is the LAW. Any complaints should be directed at the Massachusetts Department of Corrections NOT the court.
One_Life_To_Give
(6,036 posts)It's seen as equivalent to asking Rumsfeld if the US should invade Iraq. That is why most people prefer a more neutral party to referee the debate. From which we have the independent expert;
Dr. Levine
acknowledged his belief that prudent professionals would generally
not deny surgery to a fully eligible individual. Still, he
hesitated to declare Dr. Schmidt's approach medically unacceptable.
happyslug
(14,779 posts)Thus we back to the Department of Corrections and how it made its decision NOT the court decision. The court kicked it back to the Department of Corrections that is all.
happyslug
(14,779 posts)Read the opinion which I posted above. In that decision the Court had to deal with the fact that two of the doctors that examined the prisoner testified that the surgery was NOT NEEDED. At that point the Court of Appeals said it was up to the Department of Corrections to determine which opinion to follow and the courts would follow that decision.
MillennialDem
(2,367 posts)happyslug
(14,779 posts)The court was quite clear if there was no medical dispute as to the need for such surgery, the court would have ordered it. The problem was the lack of medical uniformity in this case and the lack of uniformity meant the Court had to defer to the Department of Corrections when it came to deciding between the two medical positions.
MillennialDem
(2,367 posts)Odin2005
(53,521 posts)happyslug
(14,779 posts)The majority decision made several findings:
1. The Department of Corrections had not only permitted the Prisoner to wear women's clothes but had given her hormone treatment and other treatment SHORT of Sex Reassignment Surgery. i.e did everything needed to treat her as a woman EXCEPT the Surgery.
2. It was clear the Prisoner identified herself as a woman and was upset about having male genertia.
3. The Department of Corrections have done everything to accommodate the Prisoner sex change EXCEPT do the surgery AND transfer her to a female prison.
4. In cases where they was no medical dispute of the need for such surgery, Sex Reassignment Surgery was the best way to handle cases like this.
5. Two doctors testified that in this case Sex Reassignment Surgery was NOT needed for the other efforts being done by the Prison was sufficient to minimize the problems associated with being a woman in a male body.
The decision of the Court of Appeals was based on the above paragraphs. There was evidence to support the need for such surgery AND evidence that such surgery was unneeded. In such cases the Court of Appeals ruled that the Courts would defer to the Department of Corrections and its decision in such case. The Court rule that the courts uphold whatever the Department of Corrections had decided to do in cases where there was medical dispute as to the need of such medical treatment. Such deference is NOT Cruel and Unusual Punishment for the issue of the need for medical treatment was in dispute. When they was no medical dispute, then it would be Cruel and Unusual Punishment to deny such treatment, but that is not the factual situation in this case.
The case is interesting for it goes into what is the legal requirements in such cases AND in any case involving Prisoners and the Cruel and Unusual Punishment clause in the Bill of Rights. We may disagree with the decision but it is a good review of the law.
KinMd
(966 posts)but object to the state paying for the surgery for a murderer who nearly decapitated his victim (who also had a 15yo son from a previous relationship).
madville
(7,412 posts)"Democratic Senate candidate Elizabeth Warren said today she disagrees with a federal judges decision to grant a convicted killers request for a sex-change operation. I have to say, I dont think its a good use of taxpayer dollars, Warren, a Harvard Law School professor, said in an interview on WTKK-FM."
happyslug
(14,779 posts)It was during the election of 2012 and both candidates adopted the same approach, it was a question to them of the best use of tax money NOT care of a prisoner.
http://www.huffingtonpost.com/2012/09/29/michelle-kosilek-ruling-transgender_n_1924424.html
http://www.salon.com/2013/08/23/americas_prisons_fail_transgender_inmates/