It was just your normal, everyday love story. Boy meets girl and they fall in love and get married. The boy is battling a gender identity disorder and murders his wife and goes to prison for the crime. There he, who now lives as a she, though biologically male, is put in with the male prison population. There she’s endured numerous sexual assaults at the hands of her fellow male inmates, not to mention dealing with the mental anguish of living with gender identity disorder. Now, she’s asking the state to pay for her gender reassignment surgery.
Michelle Kosilek, born Robert, was arrested for the murder of her wife in 1992. Since then, she has as much as possible lived her life in prison as a woman.
In early September, a Massachusetts district court judge ordered the state correctional system to pay for Kosilek to undergo the entire process of gender reassignment. In the groundbreaking 126-page decision, the judge ruled that the $20,000 procedure was medically necessary for Kosilek and denying her the surgery was a violation of her 8th amendment right to adequate medical care.
Last Wednesday, the state announced its intention to appeal the ruling.
Most of the general public’s knowledge of transgender people comes from horrific pop culture sources, the seminal example being The Silence of the Lambs, or that one contestant from America’s Next Top Model and a handful of Law and Order: SVU episodes.
But increasingly, gender identity disorder (GID) is regarded by the medical community as a real disease requiring actual treatment, usually culminating in gender reassignment surgery. In 2005, the American Medical Association filed a supporting brief in an unrelated case stating that for people with GID, gender reassignment surgery was medically necessary.
Today, the current standard for medical care for inmates falls under the purview of the 8th Amendment. Inmates are uniformly entitled to receive adequate medical care and are eligible for procedures that are deemed medically necessary. There has long been a tension in ensuring that inmates are not subjected to cruel and unusual punishment and providing them with free, top of the line, taxpayer-funded healthcare.
The entirety of this issue rests on the definition of medical necessity. On one hand, it’s easy to empathize with the plight of Kosilek, suffering from GID in a world of rigid gender definitions where her differentness makes her vulnerable to constant attacks. GID is a real disease that needs treatment. However, as difficult as her disorder is, she is also a convicted murderer.
There is no telling how many people out there suffer from GID and are unable to afford their necessary treatments and surgeries. Kosilek should not benefit from the largesse of the public because she committed a crime.
Allowing Kosilek to have the surgery could set a slippery slope of a precedent. There are numerous other elective procedures that could also be deemed medically necessary based on underlying psychological conditions. We need to rethink the definition of medically necessary. That definition should be limited to things that could be treated if any other, non-convicted murder walked into an emergency room. No one can just walk into an emergency room and request a gender reassignment surgery; it’s not an emergency procedure. It’s a long, drawn out process requiring hormone treatments and therapy.
An inmate needs an appendix removed? We can all agree that that’s a medical necessity. However, if you kill your wife and dump her body in a shopping mall parking lot, you forfeit your right to freedom, to vote and to have taxpayer-funded gender reassignment surgery.
Brittany Sharkey is a third-year law student from Oceanside, Calif. She graduated from NYU in 2010 with a degree in politics. Follow her on Twitter @brittanysharkey.
