The Eighth Amendment and an Inmate’s Right to Gender Reassignment Surgery: Should Taxpayers Have to Pay?

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BY: Kathy Tran, Guest Contributor

Editor’s Note: The Campbell Law Observer has partnered with Judge Paul C. Ridgeway, Resident Superior Court Judge of the 10th Judicial District, to provide students from his Law and Public Policy seminar the opportunity to have their research papers published with the CLO.  The following article is one of many guest contributions from Campbell Law students to be published over the summer. 

For the first time, in Kosilek v. Spencer, the United States Court of Appeals for the First Circuit upheld an Eighth Amendment violation of an inmate’s right to gender reassignment surgery. The district court issued an order requiring the Massachusetts prison system to provide gender reassignment surgery to a prisoner.  The prisoner, Michelle Kosilek, was born and is still anatomically male.  Kosilek has long suffered from gender-identity disorder and “has believed himself to be a women cruelly trapped in a man’s body.” This was a unique decision; the court declared that gender reassignment surgery is medically necessary for a transsexual inmate.

So What’s The Problem?

The issue that arises from this decision is whether taxpayers should be required to pay for prisoners to have gender reassignment surgery.  Currently, there are some prisons and detention centers that are paying for the reassignment surgery with taxpayer dollars.  However, those prisons only pay for the surgery when an inmate has reached a certain point in his/her hormone therapy, and the prison feels the surgery is necessary to keep the particular inmate safe.  Yet, due to the recent decision in Kosilek v. Spencer, gender reassignment surgery must now be paid for by the prison system.  The consequence of this decision means that taxpayers are now footing the bill for a surgery that transgender people could not get through their own private insurance plan.

What Is Gender Identity Disorder?

Gender identity disorder, which has recently been renamed as gender dysphoria, is defined as “the strong, persistent feeling of identifying with the opposite gender and discomfort with one’s own assigned sex.”  Gender dysphoria is distinguished from homosexuality.  Instead, individuals that live with gender dysphoria identify with members of the opposite sex and often dress and use mannerisms associated with the opposite sex. However, gender identity disorder presents itself differently between individuals, and must persist over time to be considered as the disorder.

Gender dysphoria is a psychiatric condition recognized by the mental health community that varies in terms of severity and required treatment.  For gender dysphoria to be considered a “’mental condition,’ the impairment or distress must rise to such a level that it causes a significant adaptive disadvantage to the person or cause personal mental suffering.”  It is uncertain as to what exactly causes gender dysphoria.  However, the prevailing theories “suggest that it may be caused by genetic (chromosomal) abnormalities, hormone imbalances during fetal and childhood development, defects in normal human bonding and child rearing, or a combination of these factors.”  For those that suffer from gender dysphoria, common symptoms include severe impairment of social and occupational functioning as well as psychiatric conditions like anxiety, depression and suicidal thoughts.

In serious cases, treatment and therapy may be needed to treat this mental condition.  There are several types of treatment available for individuals with gender dysphoria including psychological intervention, hormone therapy, counselling, and gender reassignment surgery.  Gender reassignment is the last method of treatment that health care professionals may use to treat gender dysphoria.  The surgery is considered a “very effective and appropriate treatment for transsexualism or profound gender dysphoria.”  In 2012, it was estimated that the procedure ranges from $30,000 to $80,000 absent health insurance.  Currently, insurance companies do not have duty to cover gender reassignment surgery and the requirements for genital reconstructive surgery are strict.  Therefore, Medicare and most major insurance providers do not cover the surgery presently.

Even though gender dysphoria is a serious health condition that often leads to depression and even suicide in transgender individuals, the question becomes whether gender reassignment surgery should be provided for inmates at the cost of taxpayers.

The Eighth Amendment and an Inmate’s Right

In Kosilek v. Spencer, the court ruled that the Department of Corrections’ refusal to pay for Ms. Kosilek’s surgery amounted to cruel and unusual punishment under the Eighth Amendment. Michelle Lynne Kosilek (born Robert Kosilek) was convicted of murdering her wife, Cheryl Kosilek, in 1990 and sentenced to life in prison without the possibility of parole.  Ms. Kosilek has since been diagnosed with gender dysphoria and for the last twenty years Michelle has been living as a woman in an all-male prison. During her time in prison, she has received hormone treatments for her gender dysphoria, but argues that the treatments alone are not enough.  Ms. Kosilek urges that a sex-change operation is necessary, arguing the state has a duty to provide it. “Everybody has the right to have their health care needs met, whether they are in prison or out on the streets,” Michelle says.

She further argues that the operation is not a choice, but rather a medical necessity for her.  Ms. Kosilek has attempted self-castration and attempted suicide twice due to her mental condition.  The judge in this case ruled that by denying Ms. Kosilek’s request for the surgery would constitute a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.  In his 2002 opinion, Judge Wolf wrote that “‘[i]t may seem strange that in the United States citizens do not generally have a constitutional right to adequate medical care,’ ‘but the Eighth Amendment promises prisoners such care.’”

The Eighth Amendment protects prisoners from “cruel and unusual punishments” covering an array of different actions taken by prison officials concerning inmates.  Specifically, Estelle v. Gamble established that the Eighth Amendment protects against the “deliberate indifference to serious medical needs of prisoners.”  Thus “to establish that an Eighth Amendment violation occurred by denial of medical treatment, the prisoner must demonstrate: (1) a serious medical need, (2) the prisoner received no adequate treatment for this serious medical need, (3) the prison officials knew of the prisoner’s serious medical need, and (4) prison officials made the decision to withhold treatment due to “bad faith and for no legitimate purpose.”

Therefore, by denying Ms. Kosilek the gender reassignment surgery there is a violation of the third prong.  She has a serious medical need and without treatment would suffer from further suicide and self-castration attempts, mental breakdowns, and continued depression.  The Court stated that there is a legitimate purpose for Ms. Kosilek’s surgery and as such there is no reason as to why she should be denied for the surgery.  To do so would be a violation of the Eighth Amendment.

More recently, a Northern California Judge also directed the state to grant a transgender inmate’s gender reassignment surgery—making it the second time in the nation’s history. In this case, Michelle-Lael Norsworthy (born Jeffery Bryan Norsworthy) was convicted of murder and sentenced to state prison in the 1990s.  While in prison she started living as a woman and was later diagnosed with sever gender dysphoria.  Although California corrections officials argued Ms. Norsworthy received proper medical care for over 15 years, including counseling and hormone therapy, the U.S. District Court Judge ruled that the by denying her the gender reassignment surgery constituted a violation of her constitutional rights.  In his ruling, the Judge wrote that “the weight of the evidence demonstrate[ed] that for Norsworthy, the only adequate medical treatment” was to have the surgery.

Between the recent California ruling and the Kosilek ruling, it seems the current trend in the courts is to provide gender reassignment surgery to prisoners suffering from severe gender dysphoria.  Consequently, a prisoner suffering who suffers from severe gender dysphoria essentially receives benefits of taxpayer dollars.

 To Pay or Not To Pay?

Gender Dysphoria is a serious health condition with dangerous consequences including depression and suicide in transgender individuals.  It has been suggested that the antagonism towards gender reassignment surgery for convicted felons is due to the skepticism and general ignorance of gender-related health care.  The issue of expending tax payer dollars on the surgery is not about a “lack of sympathy or cynicism of the reality of gender dysphoria as a serious medical condition” but rather whether the “gender reassignment surgery is a basic human right.”  Many believe that an inmate spending the rest of their life in prison for murder, and who’s already receiving hormone therapy and counseling, is not entitled to the surgery as a basic human right. This is especially true when private insurance companies deny surgery coverage to law abiding citizens.

Additionally, while gender reassignment surgery may be required for inmates in situations similar to Kosilek, many less culpable people suffering from gender dysphoria do not have the ability to obtain gender reassignment surgery.  Individuals that rely on the federal government for health insurance care through programs such as Medicaid, Medicare, and military health insurance programs, have almost no access to gender reassignment surgery even if it is from a clinical perspective “medically necessary” because gender reassignment surgery is prohibitively expensive.  Many state regulations and statutes regarding Medicaid and Medicare, are hostile to providing beneficiaries access to gender reassignment surgery.  States such as Iowa, Minnesota, and New York have “specifically prohibited the use of funds for gender reassignment surgery, even if the surgery is medically necessary.”  Additionally, CHAMPUS which provides health care insurance coverage for those in the armed forces, veterans, and their families similarly prohibits the use of its funds for gender reassignment surgery. Not only does CHAMPUS prohibit the surgery but goes one step further in prohibiting any treatment for gender dysphoria despite any determination of medical necessity. The statutes and regulations controlling federal entitlement programs have also, at least somewhat, limited the medical benefits for transgender person.

In light of the recent rulings in California and Kosilek, a dichotomy has emerged. The state of California and Massachusetts must now provide medically necessary gender reassignment surgery for convicted inmates suffering from gender dysphoria, however, those with the condition who depend on the government for medical care funding outside the prison system cannot receive the surgery despite being a law-abiding citizen.  Judge Wolf, the presiding judge in the Kosilek case, acknowledged that prisoners may receive better care for the disorder than many law-abiding Americans.  Additionally, several state legislators have publically opposed using taxpayer funds to pay for the gender reassignment surgery with one senator stating that allowing the surgery would not be a “good use of taxpayer dollars.”  There has also been much backlash in the media regarding the entitlement to gender reassignment surgery paid by tax dollars.

These two recent court decisions have left an incredible impact on the jurisprudence concerning transgender inmates.  If gender reassignment surgery is deemed medically necessary for a transgender inmate, and the request for treatment is denied, the Eighth Amendment is probably violated.  However, the consequences of these decisions have brought to light an inequality in the United States health care system.  Though prisoners with a medical need for gender reassignment surgery have a right to receive this treatment, those outside the prison system that rely on the government for health care cannot receive the same treatment.  Unfortunately, challenges to this inequality will not likely correct this injustice.  Therefore, as long as insurance companies and federal programs do not provide gender reassignment surgery for private individuals, and are not required to cover the surgery, states should not be required to give the surgery to convicted murderers who are to remain in prison for the rest of their lives.

Kathy Tran is a 2015 graduate of Campbell Law School. She can be reached by email at 

k_********@em***.edu











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