Federal judge rules transsexual inmate should receive surgery

Federal judge rules state must provide sex reassignment surgery for Michelle Kosilek, who was convicted as a man of murdering his wife

I thought I'd bring this to P&C, since it seems like good P&C fodder in a lot of ways, and I've had some interesting (I think) thoughts on it.

The argument goes, more or less, like this: This person is in prison for life without possibility of parole, as a ward of the state. The prison doctors have said that she needs to receive SRS (sex reassignment surgery, kind of an outdated term) for her continued well-being. She's repeatedly tried to kill herself, self-harmed, etc. On practical grounds, it makes sense to do this because just one life flight trip to the hospital when she was bleeding out cost way more than the surgery will cost. On humanitarian grounds, it makes sense to do this because she's clearly in great suffering and there's no other known cure for gender dysphoria. (Not everybody needs or has SRS, but some process of transition is the only thing that's ever been shown to reduce the feelings of dysphoria.) On legal grounds, the state acts as the legal guardian of prisoners, and has a responsibility to provide required medical care as prescribed by the state's own doctors (who in this case prescribed SRS).

Kosilek is a horrible horrible person who has done unforgivable things. But that doesn't mean that it's okay to refuse to meet her medical needs out of some sense of squeamishness or outrage, particularly when the state's own doctors say it has to be done for her well-being.

So, being trans myself, I have to applaud this decision.

Now for the hard part.

There's another side to the decision that's very very troubling, involving a great deal of moral hazard. You see: there are a lot of young, desperate trans people out there. Many of them end up in the sex trade when they have difficulty finding other work, and they're desperate to keep paying for their treatment and saving for surgery. Some would do almost anything to get the treatment they need, the only thing that gives them hope of being able to stop hurting.

I think you see where this is going.

If you're desperate for treatment, and you know that if you're in prison and demonstrate suicidal tendencies over your gender dysphoria that the state is required to provide treatment up to and including surgery, and if you're considering doing sex work to make money for your treatment... yeah, prison is going to look at least a little appealing.

That's not to say, of course, that the state doesn't have the responsibility to provide these things in desperate cases. In cases that are less desperate, I think the state has the right to say "you're dealing with this okay, you can do this on your own once you get out". (Although, of course, that opens up another big can of worms: when does a suicide attempt move from being a mock attempt to being a real attempt?) But in truly desperate cases, where the prison doctors say "this is necessary for the prisoner's well-being", the state should not second-guess the doctors. If they say it's needed, it's not an elective procedure. You can be sure that prison doctors are weighing carefully whether something is needed or not, and making their choice after thinking it over carefully. But they have a great responsibility as well, because prisoners generally have [em]no[/em] other recourse. They can't go get a job and try to afford the insurance or medical procedures they really want. Especially if they're imprisoned for life.

No, the real problem is on the other side: It's not that prisons are required to provide prescribed treatments to prisoners, it's that the American health care industry is not. Many insurance companies treat trans surgery as an elective, cosmetic procedure. But for some people, it really really isn't. There are other things that are treated this way that have nothing to do with trans issues, but I think that the insurance companies can easily choose to categorize trans stuff this way primarily because it doesn't affect many people, and because those people do not have much of a voice to speak out with.

Certainly, there is more likelihood outside of the prison system that someone can find a corrupt doctor willing to prescribe just about anything—but it doesn't have to be "sure, you got a prescription from any old doctor you wanted to, we'll take their advice". It just has to allow for the possibility with a fair review of the facts of the case. I personally don't think that many people who [em]aren't[/em] trans are going to start lining up to get their stuff chopped off in any case, but most trans folk would be willing to jump through a few hoops to have our insurance cover things. (Heck, there are enough hoops we have to jump through just getting to the point where surgery makes sense.)

Anyway, those are my thoughts. To summarize: Prisoners deserve whatever procedures the prison doctors say they need to have, and officials should not be able to refuse that on any grounds. The knowledge that prisons are required to provide certain forms of care in certain desperate situations is troubling, because there are some very desperate people in the trans population. And the real travesty is that in some ways prisons provide better medical care than most of us can get—but it's not because they shouldn't, it's because the health care industry should do better.

Thoughts?

I don't think the state should pay for elective surgery and if someone wants to kill themselves over it, oh well that is their right.

Then again I just had a long day at work and later when I read this thread again maybe I'll be more charitable.

Is there any possibility that this case could be built upon to persuade/force insurance companies to drop the "elective" status of SRS surgery? At the very least, we've got a federal judge agreeing with a group of physicians that it can be medically necessary for some. I think getting PCORI to stand behind SRS surgery would be a good starting goal. They can't make any insurance companies cover anything, but I'd imagine their support of it could lend a bit of weight.

Stengah: Yeah, there's been some thought in that direction. Having a publicized case where a judge says "Look, if the doctors say it's needed, it's needed" for this issue is good in that way. On the other hand, this [em]specific[/em] case is a bit of a mess because of the uproar. Nobody likes seeing a murderer get anything at all.

Well, for what reason do you categorize it as elective? The department of corrections doctors deemed it mandatory. So who decides, and how?

And in general, no, prisoners are not allowed to commit suicide. So it's not exactly their right. In fact, it's the state's responsibility to save their lives if they try (which the state has done multiple times in this case, at great expense.)

If an inmate had some life-threatening condition for which the appropriate treatment was major surgery, would that be elective? What if it's not life-threatening, but results in unremitting pain? What if it's a psychological condition that results in mental anguish and responds well to medication?

In this case it's a condition that results in severe mental anguish and has no known treatment other than surgery.

Hypatian wrote:
Stengah: Yeah, there's been some thought in that direction. Having a publicized case where a judge says "Look, if the doctors say it's needed, it's needed" for this issue is good in that way. On the other hand, this [em]specific[/em] case is a bit of a mess because of the uproar. Nobody likes seeing a murderer get anything at all.

True, it would certainly be better if the prisoner wasn't in jail for murder. It muddies thing on whether the state's refusal to comply with earlier rulings are due to who the patient is, or what the patient wants. If I had to guess I'd say it's both, but it'd be interesting to see how hard they'd fight against providing the surgery for a non-violent ward.

I agree with you that the health care industry should do better, some potential questions come to mind;

Given that she is in jail how can she pass some of the typical requirements of getting SRS, such as living as a woman for an amount of time? It would seem the entire transition process would have to be rather expedited for practical reasons however this raises ethical questions as those processes have been put in place in the general public for a reason.

When does the system transfer her to a female prison? I would think being the only female in an otherwise all male prison is a recipe for disaster. Likewise if they want her to go the standard route of taking hormones for a while first then it could be a safety issue once it becomes visually clear to the other prisoners that something is up.

There would also need to be some means of establishing that self harm and attempted suicide is not the appropriate way to get what you want in prison else it sets precedent with the potential for any number of demands.

edit *don't mind me

Yeah. I imagine that she's been evaluated pretty specifically to try to rule out the possibility that the self-harming is just to put pressure on the system.

From the images I've seen (see the article above), I'm pretty sure she's been receiving hormones and been living as a woman for some time now.

And as for transfer to another prison, etc. I have no idea. There are a lot of practical concerns involved, it's true.

As for SRS not working: True. For some people, it's not something they need. For some people, it's not enough. But if somebody needs it, there's nothing else that's going to help. It could be that it still won't help, but should that mean it shouldn't be attempted? There's no way to know if it will help or not but trying, when it's clear that hormones alone are not enough.

According to the article she's been living as a woman in an all-male prison since 1993. It didn't go any further into it than that though.

As for not being an appropriate way to get what you want, I'd say that would be determined by what the want was, and how strongly it was felt. The state's medical professionals have already determined that this particular want is necessary to her mental well-being, so that hurdle has already been overcome in this case.

Edit - wrong pronouns in places

My feelings are that people in prison shouldn't be treated better then people not in prison.

Elliottx wrote:
My feelings are that people in prison shouldn't be treated better then people not in prison.

I share that, but my solution would be to treat people outside of prison better, not treat prisoners worse.

Ah yes safe bet on the hormone front there.

As for it not working I had a further thought immediately after writing that which made me scratch it, there are many medical treatments which we give people, both in prison and otherwise, which may not work.

Stengah wrote:

I share that, but my solution would be to treat people outside of prison better, not treat prisoners worse.

Absolutely this, no one should feel they have to commit a crime or go to a questionable hospital in a foreign country in order to tend to their medical needs.

Certainly seems like a tough discussion.

What if a prisoner was suicidal because she felt her boobs were too small (or the male equivalent) should the state give out a boob job?

Stengah wrote:
Elliottx wrote:
My feelings are that people in prison shouldn't be treated better then people not in prison.

I share that, but my solution would be to treat people outside of prison better, not treat prisoners worse.

I am for that too, so long as my first statement is true I'm okay with it. It's funny, this is one of those things where my mind goes boolean on me. This is a good thing if it gets people to talk more about helping and supporting transsexuals who aren't in jail.

Stengah wrote:
Elliottx wrote:
My feelings are that people in prison shouldn't be treated better then people not in prison.

I share that, but my solution would be to treat people outside of prison better, not treat prisoners worse.

Agreed, but I can't imagine that there's hundreds or thousands of prisoners are lining up for SRS.

In general, I think medical coverage for prisoners should lag behind, not proceed, medical coverage for citizens. If the average citizen doesn't receive a treatment, a prisoner shouldn't get it either. Once a treatment is provided for most citizens, then it should be made available to prisoners.

The person is a ward of the state. The doctors say the surgery is medically necessary. So the surgery gets done. Full stop. Case closed.

If you don't want to pay for sex change surgeries in prisoners, then don't lock them up.

Does Medicaid cover the cost of this surgery?

Funkenpants wrote:
Does Medicaid cover the cost of this surgery?

I believe that only California covers gender reassignment surgery under Medicaid.

Malor wrote:
The person is a ward of the state. The doctors say the surgery is medically necessary. So the surgery gets done. Full stop. Case closed.

If you don't want to pay for sex change surgeries in prisoners, then don't lock them up.

Yeah, that doesn't work out so well in practice.

California's citizens are paying a bloody fortune to take care of an aging prison population. Just because you're in jail doesn't mean you should get medical care, especially if taxpayers aren't getting the same level of care. Cancer riddled murderers and rapists shouldn't be getting taxpayer funded treatment while productive members of society suffering the same--but don't have insurance--get told to f*ck off and die.

It doesn't matter if you are a ward of the state. You are a criminal. You get the table scraps of the state, not the sit at the right hand of the governor. Only after every other citizen gets medical care should a criminal get the same.

And yet, prisoners (unlike all other citizens, and yes they are citizens) have no other recourse but the state. They're probably not insured. They probably don't have resources of their own (and if they do have money, I suspect they can be made to pay for their own treatment). They can't work to make money to pay for health care. Our health care system is stupid, but at least people living normal lives outside of prison have a chance to take care of themselves. In imprisoning them, we have made ourselves responsible for taking care of their well-being.

You'd suggest we just let them die? Perhaps in agony from a condition that causes severe pain, when they not only have not been given the death penalty, but certainly haven't been sentenced to long-term torture before death? America's pretty sh*tty on human rights, but not nearly [em]that[/em] sh*tty.

Edit: It's not that the state is somehow special in providing better care to prisoners than to citizens. It's that the state has an obligation to treat prisoners fairly (the eighth amendment), and has no excuse to let them suffer. The fact that insurance companies [em]can[/em] get away with letting their customers suffer is horrible and tragic, and is one reason that I don't believe we'll ever had good health care until it is socialized: concerns about profit should never override medical decisions.

(And I think that paragraph above addresses your point, Funkenpants.)

Barab wrote:
Certainly seems like a tough discussion.

What if a prisoner was suicidal because she felt her boobs were too small (or the male equivalent) should the state give out a boob job?

That would probably be body dysmorphic disorder, if they really feel that way. There are known treatments that help with that--and in fact, surgery often makes things worse.

Hypatian wrote:
You'd suggest we just them die? America's pretty sh*tty on human rights, but not nearly [em]that[/em] sh*tty.

We've let 50+ million citizens be completely uninsured for years and years so, yes, we are that sh*tty.

Just because you're in jail doesn't mean you should get medical care,

Bullsh*t. If you're going to deprive someone of their liberty completely, and make them completely dependent on the state for everything, then you need to give them excellent medical treatment.

If that's too expensive, then don't lock up so many goddamn people.

Hypatian wrote:
They can't work to make money to pay for health care. Our health care system is stupid, but at least people living normal lives outside of prison have a chance to take care of themselves. .

But we have people who aren't able to afford healthcare even though they have jobs and presumably are in the category of being able to take care of themselves. Unless we assume that everyone who is poor and sick deserves what they get because they can't get better jobs, it's hard to see fairness in giving convicted murders and their ilk better health insurance than we give the poor.

Hypatian wrote:
Edit: It's not that the state is somehow special in providing better care to prisoners than to citizens. It's that the state has an obligation to treat prisoners fairly (the eighth amendment), and has no excuse to let them suffer.

The eighth amendment says we should not impose cruel or unusual punishment. The equal protection clause says similarly situated citizens should be treated the same. As regards healthcare, prisoners who get the same opportunities for healthcare from the state as medicaid recipients are getting equal treatment.

I don't see how treating prisoners the same as medicaid recipients would be cruel and unusual punishment.

Funkenpants wrote:
I don't see how treating prisoners the same as medicaid recipients would be cruel and unusual punishment.

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.

Malor wrote:
The person is a ward of the state. The doctors say the surgery is medically necessary. So the surgery gets done. Full stop. Case closed.

This is where I stand on the subject of whether the judge made the right ruling. In my opinion, it is not appropriate for a judge to play doctor.

Whether the treatment is medically necessary is a separate (and FAR more complex) topic.

That's for doctors to decide, and the prison doctor said it's necessary. So it needs to get done.

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.

Malor wrote:
That's for doctors to decide, and the prison doctor said it's necessary. So it needs to get done.

My point was that one doctor's decision is not necessarily in line with what the AMA or WHO would consider correct. So once again, that's a separate conversation or debate to be had, but irrelevant to the judge's decision (which I already noted that I support for this very reason).

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

One of my mother's best friends died because Medicaid wouldn't cover the surgery that removes excess skin once you've lost a bunch of weight, despite her doctor trying over and over again to tell them it was medically necessary because of other medical conditions which made her susceptible to infections. They argued back and forth for almost two years, but then she got a staph infection and died of it.

The part that really chapped me was that no one on their end was ever held accountable for it, but her heirs can sue that doctor for malpractice.

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.


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.

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.

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.