Federal judge rules transsexual inmate should receive surgery

Funkenpants wrote:
Stengah wrote:

Well, the state is not responsible for providing medical care to its poor citizens, but the state is responsible for providing medical care to its prisoners, so treating prisoners like any other poor person is unconstitutional.

Well, that's about what the judge says. We'll see if his reasoning holds up on appeal, assuming the state appeals. Which it might not do.

Department of Correction spokeswoman Diane Wiffin said the state agency has received Wolf’s ruling.

“We are reviewing the decision and exploring our appellate options,’’ Wiffin said today.

I wouldn't be surprised if they did, as they've been fighting against it since 2000.

It depends on why they were fighting it. If they were worried about public outrage if they approved the surgery, then they can point to the court order if somebody screams about this in Mass and just pay for the treatment. If they're worried about setting a precedent, then they're more likely to appeal.

Farscry wrote:
momgamer wrote:

Insurance companies and Medicaid deciding what is medically necessary and what is not is a whole 'nother can of worms.

Gah, I'm not talking about them. I'm talking about the actual medical community. i.e. letting doctors handle medicine and keeping insurance, medicaid, the courts, etc out. All I meant is that for now, the specialist doctor handling the case made a call, and it's appropriate for the judge to support it. If there's a debate to happen, it should happen amongst the medical community.

But there are plenty of others here who have been blatantly suggesting that we should limit what is done to prisoners to what we do for people on Medicaid. That was the point I was making.

Funkenpants wrote:

It depends on why they were fighting it. If they were worried about public outrage if they approved the surgery, then they can point to the court order if somebody screams about this in Mass and just pay for the treatment. If they're worried about setting a precedent, then they're more likely to appeal.

"Denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose,” Wolf wrote. “It is precisely the type of conduct the Eight Amendment prohibits.”

Wolf also concluded that if he does not explicitly order the DOC to provide the surgery, leaders of the DOC will never do it on their own.

“The DOC, through several commissioners, has continued, without proper justification, to refuse to discharge its constitutional duty to provide Kosilek the adequate care required for his serious condition,’’ Wolf wrote. “It is evident that the defendant will continue to violate Kosileks’ Eight Amendment rights if a court order is not issued.”

If they were only concerned about public outrage, they could have accepted the first court's decision instead of fighting it all the way to a federal court. There's already a precedent set that the state is required to provide medically necessary procedures for inmates, so the only precedent they could be fighting against was that SRS surgery was medically necessary. And as Farscry already said, that's a decision best left to the medical community, not the corrections community. In this case, the state's own doctors are telling them it's medically necessary, so the best the state can say is that they disagree with their own professional's findings.

Funkenpants wrote:
Stengah wrote:

Which brings us back to treating those not in prison better, not treating prisoners worse. The solution would be to make it so that all medicaid recipients would have SRS covered, not to withhold it from prisoners as an additional form of punishment.

You can always lobby to get SRS covered by medicaid in states. Until that happens, treat prisoners like any other poor people. Equal treatment is fair.

Just wanted to go back to this one more time: Free people always have options. They can use a second mortgage to pay for procedures (and do). They can work multiple jobs and live in bad conditions to save money. One resource I've come across recommends TS people on a very tight budget get rid of their car in order to save money they could be setting aside for later procedures. (Really!) They have the choice of going overseas for less expensive surgery (yes, the savings are there even after the cost of an airplane ticket--but the risks are there, too). And looking forward to the day you can manage it could be a way to get by. Transition isn't exactly a fast process, so someone can say to themselves "I can't afford this now, but if I save and save and save I'll get there, and I'll survive until then."

A prisoner doesn't have any of these choices, no matter what. They have no income nor any costs, they can't save up, they can't take out a loan. And in the case of a sentence of life without parole, they can never look forward to a time where they do have a choice. They are completely, [em]completely[/em] at the mercy of the state.

That doesn't mean they get everything they want. The state is obliged to feed and house them under reasonable conditions--that doesn't mean the food is awesome or that the environment is wonderful. But it does mean that the food is more nutritious than many poor people have, and they certainly have better housing arrangements than many homeless people. Should those also be taken away, under the principle that other non-prisoner citizens get by with less, so prisoners are obliged to do so as well?

I submit that the only reasonable argument against providing SRS is that it's an optional non-necessary procedure, and that the only reasonable people to make that decision are doctors. The fact that the doctors in this case were the [em]state's own doctors[/em] is significant as well. One presumes that, being in the employ of the state, they would not categorize this as a medical necessity without some reason. Would other doctors have made a different determination? Possibly. There have been many years for the defendants to bring in such experts to evaluate, however, and their argument seems to instead be based on the idea that it would be "difficult to provide security", rather than on any medical basis.

It is a great shame that our prisoners are in some ways treated better than ordinary citizens. However, that is because we presume (I think falsely) that ordinary citizens are capable of changing their situation if only they try. And we make no such presumption of prisoners who can will never receive anything from anyone [em]but[/em] the state.

Finally, just for reference, here's a report about a similar case not involving trans issues: Ky. officials torn over expensive surgery for death-row inmate.

Hypatian wrote:

Just wanted to go back to this one more time: Free people always have options.

Only if they have wealth. A poor free person doesn't have more options than a prisoner with a fancy lawyer and a million dollar defense fund.

Hypatian wrote:

I submit that the only reasonable argument against providing SRS is that it's an optional non-necessary procedure, and that the only reasonable people to make that decision are doctors.

It's an optional, non-necessary medical procedure. Would someone die because they don't get the treatment? The answer is no. Ergo, they don't need the procedure.

It would only be considered a medical necessity if doctors could definitively show that the patient would die without receiving the sexual reassignment surgery during the sentence.

OG_slinger wrote:

It's an optional, non-necessary medical procedure. Would someone die because they don't get the treatment? The answer is no. Ergo, they don't need the procedure.

It would only be considered a medical necessity if doctors could definitively show that the patient would die without receiving the sexual reassignment surgery during the sentence.

And repeated nearly successful attempts to commit suicide don't qualify, apparently? Even if it costs more to deal with them than to provide the surgery?

Also: Thank you for your understanding. I'll make sure to remember if my gender dysphoria ever reaches such an extreme point that I don't [em]really[/em] need SRS.

Edit:

Sorry, that last was a bit snarky. But seriously: I don't feel a pressing need right now to have my boy bits off. I don't know if I ever will. But, I am looking at spending $20k-$50k on procedures that I [em]do[/em] feel that I need, and which involve going through a great deal of pain and social stigma. And I experience a tremendous amount of regret that I didn't have the resources to do this in the past, because it's going to be much much harder now than it was then. I also know that my feelings are pretty mild compared to some peoples'--we're talking kids who take out a pair of scissors at age 6 because they know their body is wrong and they have to do something about it.

This stuff is not something you can brush off, and the attitude that it is is infuriating precisely because that's the sort of argument that's made to keep it from being covered by many insurance plans. It's no more valid in this case than it is in numerous other cases of people who aren't in prison, and it should absolutely be covered by insurance and by public health care for those in need.

OG_slinger wrote:

It's an optional, non-necessary medical procedure. Would someone die because they don't get the treatment? The answer is no. Ergo, they don't need the procedure.

It would only be considered a medical necessity if doctors could definitively show that the patient would die without receiving the sexual reassignment surgery during the sentence.

The prison's doctors have already stated that they found it to be medically necessary, so why argue that point?

Edit - using danger of imminent death as your basis for whether something is medically necessary is going to classify a lot of things as "optional." Broken legs? Meh, they can just sit in their cell, they don't need to walk to live. Chronic physical pain? No need for treatment, they can't die from it directly. Cancer? Well, sometimes is goes away for no reason we can find, and many people have cancer but die from something else unrelated, so we can't definitively say it would kill them if we don't treat it.

Hypatian wrote:

And repeated nearly successful attempts to commit suicide don't qualify, apparently? Even if it costs more to deal with them than to provide the surgery?

No, repeated, nearly successful attempts to commit suicide shouldn't matter for sh*t during sentencing. Allowing it to matter would mean that anyone could get a massively reduced sentence by merely threatening to do damage to themselves: "Yes, I killed five people during that bank robbery, but if you make me serve more than a day in jail I'll totally hurt myself..."

Hypatian wrote:

Also: Thank you for your understanding. I'll make sure to remember if my gender dysphoria ever reaches such an extreme point that I don't [em]really[/em] need SRS.

Edit:

Sorry, that last was a bit snarky. But seriously: I don't feel a pressing need right now to have my boy bits off. I don't know if I ever will. But, I am looking at spending $20k-$50k on procedures that I [em]do[/em] feel that I need, and which involve going through a great deal of pain and social stigma. And I experience a tremendous amount of regret that I didn't have the resources to do this in the past, because it's going to be much much harder now than it was then. I also know that my feelings are pretty mild compared to some peoples'--we're talking kids who take out a pair of scissors at age 6 because they know their body is wrong and they have to do something about it.

This stuff is not something you can brush off, and the attitude that it is is infuriating precisely because that's the sort of argument that's made to keep it from being covered by many insurance plans. It's no more valid in this case than it is in numerous other cases of people who aren't in prison, and it should absolutely be covered by insurance and by public health care for those in need.

Just so we're entirely clear on this, we were talking about making taxpayers pay for SRS for prisoners, people who have violated the law. You're asking that they get an optional medical treatment before law-abiding citizens get treatment they need to stay alive. You're essentially saying that a shaved trachea and a vaginoplasty takes precedence over a prisoner getting chemotherapy for a cancer that will kill them during their sentence. It doesn't.

If you want to have a discussion about why those procedures aren't covered by private insurance, I'd be more than happy to join, but basing the conversation on the principle that prisoners should get SRS on demand isn't legitimate.

before law-abiding citizens get treatment they need to stay alive

If they're under detention, we have to treat them. That's just morally required. If you don't want to spend that money, then don't lock people up. If you think it's okay to leave people untreated simply because they're imprisoned, then I hope you never get the finger pointed at you. We imprison more of our population than any other nation by a huge margin, so it's very, very easy to be put in jail here. If you're willing to turn off your empathy as soon as someone is called a criminal, well, consider that that horrible criminal might someday be you.

Criminals are still human, and they are still citizens, and there is just a minimum standard level of care. Procedures prescribed by a doctor are included.

You're essentially saying that a shaved trachea and a vaginoplasty takes precedence over a prisoner getting chemotherapy for a cancer that will kill them during their sentence. It doesn't.

You're right. They both should be treated, if it's medically necessary. If there's not enough money to treat both, then you need to come up with the money from somewhere else, and stop locking up so many people.

I think this thread is an interesting contract with Norway's treatment of their prisoners: they're actually hiring friends for the biggest mass murderer in their history.

OG_slinger wrote:

No, repeated, nearly successful attempts to commit suicide shouldn't matter for sh*t during sentencing. Allowing it to matter would mean that anyone could get a massively reduced sentence by merely threatening to do damage to themselves: "Yes, I killed five people during that bank robbery, but if you make me serve more than a day in jail I'll totally hurt myself..."
...
Just so we're entirely clear on this, we were talking about making taxpayers pay for SRS for prisoners, people who have violated the law. You're asking that they get an optional medical treatment before law-abiding citizens get treatment they need to stay alive. You're essentially saying that a shaved trachea and a vaginoplasty takes precedence over a prisoner getting chemotherapy for a cancer that will kill them during their sentence. It doesn't.

If you want to have a discussion about why those procedures aren't covered by private insurance, I'd be more than happy to join, but basing the conversation on the principle that prisoners should get SRS on demand isn't legitimate.

Dude, the prison's doctors flat out said it was the only treatment for a serious medical issue.

He wrote that prison officials were being “deliberately indifferent” to Kosilek’s medical needs and violating her Eight Amendment rights against cruel punishment, noting that prison doctors recommended the surgery as the only treatment for a serious medical issue.

She's not just making this up to have some fun, and she's still going to be in jail.

Besides all that, if the state's own doctors say that the only treatment for the actual, serious medical condition your hypothetical murderer has was a one-day sentence, then the state has to set that sentence at one day, or they'd be violating his 8th amendment rights. I'm not aware of anyone having a medically diagnosed fatal 24-hour limit on prison exposure, but it's your hypothetical.

My thinking basically goes like this:

People don't want to see prisoners being treated better than non-prisoners.
The State has a duty of care to prisoners in its charge.
The State does not have a duty of care as regards the health of its citizens to the same extent as they can purchase private health insurance.

If you want prisoners to be treated the same, then let them purchase private health insurance. Otherwise accept the State must follow through with its duty of care. If you think that's being treated better than non-prisoners then let prisoners earn money and pay for their food and accomodation as well. If the State mandates that their ability to meet the responsibility for their own well-being is taken away from then it has to meet them itself.

As for whether insurance funds - private or public - should be the arbiters of whether a procedure is medically necessary or not, I'm not sure why the argument is even on the table. If a policy holder is denied SRS and kills themselves, no-one is accountable. If a prisoner is denied SRS and kills themself, the State is accountable.

OG_slinger wrote:

Just so we're entirely clear on this, we were talking about making taxpayers pay for SRS for prisoners, people who have violated the law. You're asking that they get an optional medical treatment before law-abiding citizens get treatment they need to stay alive. You're essentially saying that a shaved trachea and a vaginoplasty takes precedence over a prisoner getting chemotherapy for a cancer that will kill them during their sentence. It doesn't.

If you want to have a discussion about why those procedures aren't covered by private insurance, I'd be more than happy to join, but basing the conversation on the principle that prisoners should get SRS on demand isn't legitimate.

I think that's the primary distinction I'm trying to make: This isn't a case of on-demand. This is a case of "this prisoner has been determined by qualified medical authorities over the course of many years to be in critical need of this treatment". There is no evidence that this is going to take precedence over other medically necessary treatments. And there is also no provision in the law that allows some patients to be treated while others aren't (either in favor of SRS over cancer treatment or vice-versa.)

And yet, even though this is the cheaper solution, the more humane solution, and the medically indicated solution, it was refused--and refused, in the judgement of the court, on the basis of avoiding bad publicity. That's not about the cost to the state, the availability of care to others who need it, or anything like that--because the evidence would suggest allowing the surgery [em]in order to save money[/em]. (Helicopter ambulance rides don't come cheap, and prisons are not equipped for major trauma.) It's not, as the corrections department argued, about being able to insure the security of the prisoner. (The same security problems presumably already applied for emergency medical transport and care.)

In fact, Judge Wolf found that state officials acted in bad faith to deny Koselik treatment for political, not penological, reasons. The judge found and stressed repeatedly that former Corrections Commissioner Kathleen Dennehy "engaged in a pattern of pretext, pretense, and prevarication" because she feared that providing sex change surgery to an inmate (particularly a convicted murderer) would "provoke public and political controversy, criticism, scorn, and ridicule."

She fabricated security concerns, "falsely claimed" not to know whether doctors "viewed sex reassignment surgery as medically necessary," and coordinated comments to the media with a state senator who sponsored legislation barring the use of tax dollars to provide sex reassignment surgery to inmates. In other words, she lied, shamelessly and repeatedly: "Dennehy testified untruthfully on many matters."

Going back to the question of whether people can self-harm to force the prison into taking certain actions, later in that article they talk about Judge Wolf's opinion regarding the amount of effort that was required here, and why it would not be used for more frivolous cases. After noting that most people wouldn't consider attempted self-castration to be worth the risk, he sums up with:

Judge Wolf wrote:

(I)n this case to obtain an order directing the DOC to provide sex reassignment surgery, Kosilek has been required to prove that: (1) he has a serious medical need; (2) sex reassignment surgery is the only adequate treatment for it; (3) the defendant knows that Kosilek is at high risk of serious harm if he does not receive sex reassignment surgery; (4) the defendant has not denied that treatment because of good faith, reasonable security concerns or for any other legitimate penological purpose; and (5) the defendant's unconstitutional conduct will continue in the future.

Edit:

Oh, and I wanted to note that the reason I expressed frustration and brought up private insurance was not to emphasize the point that private insurance should have to cover this. It was to emphasize the point that it is [em]incorrect[/em] to call this "elective" care. It is contrary to the stated views of the AMA and the APA, and contrary to my own experience and that of many others.

And yet a very large portion of the population feels free, without much thought, to instantly classify it as unnecessary. That willingness to snap to judgement seems to stem not from considered thought and research into the issue, but from a visceral gut reaction. Those who are in a position to think about this long and hard and dispassionately, with the medical and psychological background to really test the matter, have determined otherwise.

So, I ask: Is it reasonable to reject the claims of medical and psychological experts, in favor of the common man's gut reaction?

Insurance companies don't have to be reasonable, they just have to ensure that they keep getting customers. The legal system, on the other hand, is required to respect expert opinions. And that, I think, is why the courts have frequently ruled against the state and for transsexual inmates. (In all prior cases, that was the state refusing to provide hormone replacement therapy to inmates, which is something even the very poor can afford.)

Edit Edit:

Oh, and I'm also less worried now about the possibility of a crime wave caused by desperate trans folk who hope that the state will be forced to provide them with what they need. (Yes, overstating that a bit--not enough people that desperate to really produce a crime wave.) After reading more of what Judge Wolf wrote, I think that he has set the bar pretty high, and that there's no reason to expect the state to be required to provide SRS to anyone who is going to leave incarceration in a reasonable amount of time.

Minor point:

It was to emphasize the point that it is incorrect to call this "elective" care. It is contrary to the stated views of the AMA and the APA, and contrary to my own experience and that of many others.

Classification of surgeries in order of OR assignment priority are "elective," "urgent," and "emergent," if I recall the hierarchy correctly. It depends on how imminent death is. The point of the classification is to determine whether or not the patient's health can or cannot be optimized prior to the procedure. If he's dying of a heart attack, the broken leg can wait, really. Most cancers can wait, too, unless no optimization is possible while the tumor is active.

Such procedures could be classed, and are often referred to, as "elective" procedures on OR schedules for this reason. It's not the same as "unnecessary."

Unless you're dealing with the American insurance and Medicaid systems, which can arbitrarily decide what they call elective (which for them is a code-word for unnecessary) or not and just as arbitrarily decide whether or not to pay for them, completely independently of the medical profession's definitions/standards/opinions.

momgamer wrote:

Unless you're dealing with the American insurance and Medicaid systems, which can arbitrarily decide what they call elective (which for them is a code-word for unnecessary) or not and just as arbitrarily decide whether or not to pay for them, completely independently of the medical profession's definitions/standards/opinions.

Honestly, I can't fathom how it's gotten to the point where insurance companies are dictating medical decisions - medical decisions that affect their bottom line, no less. It looks frickin' insane from the outside.

My point was that "elective" could be used in a manner that didn't mean "unnecessary," so it's sometimes correct to call it as it is.

It looks insane from the inside, too.

We already have death panels; they're called insurance companies. But, frequently, it's not even a panel, it's just an individual adjuster.

OG_slinger wrote:

Just so we're entirely clear on this, we were talking about making taxpayers pay for SRS for prisoners, people who have violated the law. You're asking that they get an optional medical treatment before law-abiding citizens get treatment they need to stay alive. You're essentially saying that a shaved trachea and a vaginoplasty takes precedence over a prisoner getting chemotherapy for a cancer that will kill them during their sentence. It doesn't.

If you want to have a discussion about why those procedures aren't covered by private insurance, I'd be more than happy to join, but basing the conversation on the principle that prisoners should get SRS on demand isn't legitimate.

I am not sure I get your thoughts here, OG. The doctors have said it is a necessary procedure but you keep talking about how it is an "optional medical treatment"

So would it be correct to say that if this surgery was considered necessary for the patient's life you would be ok with the state paying? And in that case isn't your issue with the doctor who said it was necessary and not with the procedure itself?

Then for you the question, I think, would come down to who decides is a procedure is necessary, correct? And if that is correct, who in your opinion should decide if a procedure is necessary?

A doctor has said the SRS is required. Is there any sort of recognition for this on a national level (recommended best practices, published findings, etc.)? It seems a bit arbitrary to establish state-wide or nation-wide policy based on a single opinion.

Kraint wrote:

A doctor has said the SRS is required. Is there any sort of recognition for this on a national level (recommended best practices, published findings, etc.)? It seems a bit arbitrary to establish state-wide or nation-wide policy based on a single opinion.

Aside from the AMA, among other organizations? (That was just the first link that popped up when I searched for AMA transgender.)

Overall, the generally endorsed recommended best practices are the WPATH standards of care. Version 7 has just recently been published.

Hypatian wrote:

Aside from the AMA, among other organizations? (That was just the first link that popped up when I searched for AMA transgender.)

Overall, the generally endorsed recommended best practices are the WPATH standards of care. Version 7 has just recently been published.

Thanks for the links. It is good to know that this is backed up by some level of professional consensus.

Just wanted to share this opinion piece from [em]Jurist[/em], because I think it does a great job of summing up the core issues of the case, including all of the stuff raised in this thread. (The case is currently going to be appealed, after the great public outcry over the decision.)

Transgender Exceptionalism Should Not Cloud Legal Analysis