Ensuring access to gender reassignment surgery for transgender inmates has emerged as a hot topic in the transgender rights movement amid recent developments in court cases filed on behalf of inmates.
Mara Keisling, executive director of the National Center for Transgender Equality, said ensuring prisoners have access to gender reassignment surgery is “the same issue” as making sure private insurance pays for the procedure, which many providers refuse to cover.
“The priority is to get society to understand that this is medically necessary care and as such, it is illegal for employers not to have plans covering it because you’re discriminating against certain employees,” Keisling said. “It’s just as illegal, except it’s unconstitutional, to deny it to prisoners.”
Major medical and psychological groups, including the American Medical Association, have endorsed gender reassignment surgery as treatment for gender dysphoria.
On Monday, the U.S. Supreme Court announced it has declined to hear a lawsuit filed on behalf of Massachusetts transgender inmate Michelle Kosilek, who was prescribed gender reassignment surgery in prison but then denied the procedure by the Massachusetts Department of Corrections. As a result of being denied treatment, Kosilek has self-mutilated and has twice attempted suicide.
Kosilek has been serving a life sentence since the early 1990s, when she was convicted of murdering her spouse, Cheryl McCaul, by strangulation. Kosilek killed her spouse following an altercation after McCaul discovered Kosilek wearing women’s clothes.
The U.S. First Circuit Court of Appeals in an “en banc” ruling affirmed the state’s ability to deny her the procedure. Now that the Supreme Court has declined to hear the lawsuit, the case is at an apparent dead end and the appeals court ruling will be the final word on the matter.
Keisling said the Supreme Court had the opportunity to put the issue to rest by taking up the case.
“It’s hard to know what kind of reasoning they have for not granting cert,” Keisling said. “Sometimes it’s they don’t think it’s ripe, sometimes they don’t want to handle it, sometimes they don’t have enough time. We have no reason to know what it is, but for now the decision in the First Circuit stands.”
On the same day the Supreme Court indicated it wouldn’t hear the case, California Attorney General Kamala Harris filed a request before the U.S. Ninth Circuit Court of Appeals seeking to halt gender reassignment surgery for Michelle-Lael Norsworthy, a transgender inmate at Mule Creek State Prison in Ione, Calif., as her case proceeds on appeal.
Norsworthy, who’s serving time for second-degree murder, was denied the procedure by the California Department of Corrections & Rehabilitation, but granted gender reassignment surgery as a result of an order from U.S. District Judge Jon Tigar.
In both these cases, attorneys representing the transgender inmates say denying them the procedure constitutes cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution.
Kellan Baker, a senior fellow at the LGBT project for the Center for American Progress, said ensuring access to gender reassignment surgery in prison is “a major priority” for transgender advocates across the country.
“The denial of medically necessary care to transgender people who are incarcerated is harmful on the individual level and also undermines the very real needs and basic humanity of transgender people everywhere,” Baker said. “Respecting a person’s identity should never come with a qualification.”
Ezra Young, an attorney at the New York-based law office of Jillian T. Weiss, has handled pro bono insurance appeals for transgender people for seven years and said there’s no reason to deny gender reassignment surgery for transgender people in prison or otherwise.
“I do not see a difference between seeking care for our incarcerated brothers and sisters and seeking care for folks through private and public insurance,” Young said. “Moreover, I do not believe that the promise of health equality for all trans folks is diminished by simultaneously pursuing coverage for incarcerated persons and those on the outside. In both cases, we have wide swaths of our community who are unable to access quality, safe, medically necessary care for no reason other than institutional, systemic, and deep-seated personal biases against trans people.”
Young sought to allay potential concerns among transgender people themselves that incarcerated individuals like Kosilek can obtain gender reassignment surgery at the taxpayer’s expense, but for the population, the procedure remains out of reach.
“I understand it is frustrating that a convicted murderer had a chance at getting the same medically necessary care that you need but currently can’t get in many places because of legal impediments and anti-trans bias,” Young said. “However, denying Kosilek and those like her access to medically necessary care will not make your journey any easier, and most definitely will not help us change the structural and institutional barriers that prevent all trans folks from living free from bias.”
Transgender people in prison who seek gender reassignment surgery must obtain it at taxpayer’s expense because incarcerated individuals don’t have access to personal finances. Estimates of the initial cost of the procedure for male-to-female transgender people range from $7,000 to $24,000, while estimates of the cost for female-to-male transgender people exceed $50,000.
It should be noted these expenses pale in comparison to the cost incurred by the state to fight granting the procedure to inmates through the appeals process.
Babs Siperstein, a New Jersey-based transgender advocate who’s a member of the Democratic National Committee, said she’s “come around” to believe transgender people in prison should have access to the procedure.
“As a small business owner, I pay medical insurance for myself, for my employees,” Siperstein said. “I look at people who are incarcerated and, say, ‘Hey! Why should they get more than me?’ But then I look at it [and say], ‘Hey! This is basic medical care. If we have to rely on physicians for what’s basic and necessary medical care, why shouldn’t we do it for everyone?”
The sense that granting prisoners access to gender reassignment surgery should be a priority is pervasive among transgender advocates. One group that has yet to weigh in on the issue is Log Cabin Republicans. Asked by the Blade about the position of the organization, Gregory Angelo, Log Cabin’s executive director, replied, “LCR has not taken a position on this issue at the present time.”
High-profile Dems oppose procedure for inmates
Now that many high-profile Democrats, such as President Obama, have “evolved” to support the once highly contentious idea of same-sex marriage, transgender rights issues have begun to command more attention. But that doesn’t necessarily mean otherwise progressive Democrats support gender reassignment surgery for inmates.
When running for U.S. Senate in 2012, progressive champion Elizabeth Warren was asked during a radio interview about a lower court ruling granting Kosilek gender reassignment surgery and she replied, “I have to say, I don’t think it’s a good use of taxpayer dollars.” Her Senate office hasn’t responded to multiple requests from the Washington Blade over the course of this year on whether her views have since changed.
Meanwhile, Harris, who’s considered a champion of LGBT rights in California, has elected to appeal on behalf of her state a court order granting gender reassignment surgery for a transgender inmate. The attorney general takes this action as she pursues the Democratic nomination to succeed Barbara Boxer (D-Calif.) in the U.S. Senate.
Siperstein said she’s “extremely disappointed” Harris has sought to appeal this decision as she continues to seek public office and questioned the candidate’s commitment to transgender rights.
“I would think that any political candidate, or any public servant, that would fight to prevent basic and necessary medical treatment for any person would be incompetent to serve,” Siperstein said. “How can you trust any public servant, any elected official, who fights to prevent basic and necessary medical service for any person? Who’s next?”
The attorney general’s office has insisted Harris is appealing the order on behalf of a decision made by other state officials, but her obligations as California’s top attorney haven’t stopped her before from seeking alternative means to protect LGBT rights. Harris refused to defend Prop 8 before the Supreme Court, which resulted in a decision by the court letting a lower court decision stand restoring marriage equality to the state.
More recently, Harris requested a court order to allow her to refuse to certify a ballot measure that would make gay sex a crime punishable by death, even though attorneys general in California are required to provide an official title and summary for proposed initiatives.
Jon Davidson, legal director for Lambda Legal, said Harris’ decision to defend withholding gender reassignment surgery to a transgender inmate is her own choice.
“Even where the decision is made to defend an unconstitutional practice, there’s nothing that dictates the tactics of that defense, particularly once a court has found there are likely ongoing constitutional violations,” Davidson said. “The choice to appeal a preliminary court order and to seek to delay its implementation is just that — a choice. It’s also a very unfortunate one, given that what is at stake here is potentially life-saving treatment that is widely recognized as medically necessary for some people suffering from gender dysphoria.”
Amid continued opposition from public officials to granting gender reassignment surgery to transgender inmates, Keisling said more education on the issue is necessary.
“We haven’t made this one clear yet, but the principles are pretty rock solid here,” Keisling said. “It is illegal to deny prisoners health care. If a prisoner breaks their leg, you have to set it, if they get cancer, you have to treat it, and it is almost unanimously agreed upon by modern medicine that the medical treatments we’re talking about are medically necessary. So, it’s obvious that they don’t think Michelle Kosilek is a particularly sympathetic character, or that Chelsea Manning is a particularly sympathetic character, but that’s not about whether it’s right or not.”
On the similar legal track as efforts to ensure transgender inmates have access to gender reassignment surgery is litigation seeking hormone treatment for trans people who are incarcerated.
Following a lawsuit filed by the Southern Poverty Law Center on behalf of Ashley Diamond, a transgender inmate, the Georgia Department of Correction announced a new policy to diagnose and treat inmates with the condition. The U.S. Justice Department intervened in the case, filing a brief stating the Eighth Amendment mandates individualized assessment and care for gender dysphoria.
A higher-profile case is that of Chelsea Manning, who’s serving a 35-year sentence in military prison for leaking thousands of pages of top secret documents while serving in the U.S. Army. Following a lawsuit filed by the American Civil Liberties Union, Fort Leavenworth in Kansas elected to provide Manning hormone treatment during her incarceration — an apparent first for military prison in the United States.
Although legal challenges for inmates seeking gender reassignment surgery remain difficult and, in at least one case, has reached a dead end, Keisling said she envisions victory at some point as a result of one lawsuit or another.
“The LGBT movement has some of the best legal minds in the country, and they’re going to keep bringing these suits and they’re going to win, and people will or won’t be ashamed of themselves later,” Keisling said. “But this is about a pretty straightforward thing, this is just settled law, you can’t withhold medical treatment from prisoners no matter what they did whether you were a shoplifter, or smoked a joint, or murder somebody.”