Taxpayers to Provide Gender Reassignment Surgery for Inmate

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It is questionable whether the common taxpayer would be comfortable with footing the bill for an inmate’s gender reassignment surgery.  Some may not consider this surgery to be medically necessary.  Such was not the case when a federal judge in Massachusetts ordered gender reassignment surgery be provided to inmate Robert Kosilek, as it was the only adequate treatment for his mental condition.  Kosilek was convicted of murdering his wife in 1990.  He was sentenced to life in prison without parole and is now incarcerated under the name Michelle and considers himself a woman (and will be referred to hereafter as such).  During her incarceration, she has suffered mental anguish as a result of gender identity disorder, which has caused her to attempt castration and suicide.  On September 4, Judge Mark Wolf ruled for the first time to provide sex reassignment surgery for an inmate.

It may appear that Kosilek was granted sexual reassignment on arbitrary grounds; however, Kosilek filed suit after being denied proper medical treatment as early as 1999.  After having been incarcerated, the prison did not provide her with adequate treatment even though she both requested treatment that was prescribed by her doctors.  After a court’s ruling in 2002 that Kosilek was denied medical treatment because of security concerns and public criticism, she began receiving psychotherapy as well as hormone treatments.  Even with this treatment, along with others such as laser hair removal, Kosilek still suffered from extreme depression and anxiety related to her gender identity disorder.

Judge Wolf ordered that gender reassignment would be the only adequate treatment, which U.S. Sen. Scott Brown considers “an outrageous abuse of taxpayer dollars.” ⁹   Kosilek said she was denied the surgery in the ‘90s, even after she offered to pay for the surgery herself.  A taxpayer rebellion is likely to ensue after the judge’s ruling, considering that the taxpayers’ money that will fund Kosilek’s surgery.

In explaining her medical need for the surgery, Kosilek compares her level of necessity to inmates requiring heart surgery.  However, it may be easier for taxpayers to understand footing the bill for heart surgery rather than gender reassignment surgery, which can range from $30,000 to $80,000. ¹⁰  However, the U.S. Tax Court held in 2010 that hormone treatment and surgery for gender reassignment is a necessary form of medical care for qualified persons, which makes it tax deductible.  In response to the mounting taxpayer revolt, Kosilek shared her feelings and said, “to those who don’t understand gender identity disorder, I understand that there is a reluctance to even think about this in a serious vein because to the average person who is uninformed, it may be truly bizarre.” ¹¹   Kosilek also expressed that she endured years of the pain associated with gender identity disorder, including feelings of being a girl trapped in a boy’s body.

Ben Klein, a senior attorney at Gay & Lesbian Advocates & Defenders (GLAD) in Boston, is confident the ruling provides an important medical finding that reassignment surgery is a possible “legitimate life-saving medical treatment for transgender people.” ¹²  However, this ruling could also present problems with inmates wanting other uncommon surgeries.  Inmates wishing to benefit from Wolf’s ruling would also have to prove that prison officials were not concerned with meeting their medical needs.  This showing would need to be based on a lack of proper medical care instead of bias.

In this case, Wolf was not satisfied with the female hormones and psychotherapy Kosilek was receiving and said her continued anguish was a “serious medical need” that presented a high risk for suicide if the problem was not treated.  Wolf did not see any other way to correct the violation of Kosilek’s Eighth Amendment right and provide her with adequate medical care.  According to Wolf, Kosilek was denied a gender reassignment surgery prescribed by The Department of Correction doctors based on social bias against the procedure.  Wolf’s ruling expressed society’s influence on such a procedure in stating, “denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose. It is precisely the type of conduct the Eighth Amendment prohibits.” ¹³

Similar decisions support Judge Wolf’s ruling.  The U.S. Court of Appeals for the First Circuit upheld a lower court decision in 2011 that supported an inmate’s right to receive hormone treatment for his gender identity disorder.  Also, the U.S. Court of Appeals for the Seventh Circuit invalidated a Wisconsin law that denied hormone treatment for inmates suffering from the same disorder. ¹⁴

It is undetermined whether Kosilek will still be a security threat after returning to prison as a female.  Prison officials have not yet decided whether she will be transferred to the female detention facility for her safety.  Time will tell whether the floodgates will open for suits filed for “adequate medical care,” or if Senator Brown is correct in saying  the future will show “common sense prevailing and the ruling being overturned.” ¹⁵  The Department of Correction has declined to comment, other than to say that they “are reviewing the decision and exploring appellate options.” ¹⁶  Either way, it may be the beginning of a controversy over what constitutes a valid medical condition, and whether taxpayers should be responsible for fixing those conditions.