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The papers report today that an inmate in a Massachusetts state prison, doing a life term for the murder of his wife, is suing the Department of Corrections to force it to provide a sex change operation as part of his medical care. Naturally, this is not the first case of this kind to reach the federal courts. Nevertheless, there seems to be no sure answer as to whether the inmate, Robert/Michelle Kosilek, will prevail.
Last year, the Court of Appeals for the Fifth Circuit considered a request by a transsexual inmate for hormone treatment and held that, while the Constitution does require prisons to provide some treatment for transsexuals, the denial of hormones where not medically necessary to prevent death or injury is not unconstitutional. That court also considered the "disruption" to the all-male prison that might be caused by the presence of a transsexual. This mirrored an earlier holding by the Seventh Circuit that it isn't a violation of the constitution if "the inmate merely disagrees with the type of treatment offered. A violation occurs in a case where there had been a total failure to provide any kind of medical attention at all.” Kosilek is already receiving hormone treatment as a result of a court order.
Kosilek's best bet, it appears, rests on a 2003 decision by the Fourth Circuit. There, the court ruled that a prison was required to provide hormone treatment to an inmate who, according to the evidence, would definitely harm herself if the treatment was withdrawn. Kosilek has testimony from psychiatrists that he will commit suicide if he doesn't get a sex change.
Of course, Massachusetts is in the First Circuit, and the opinions of one circuit are not binding on the courts of the other circuits. That said, we'll just have to wait and see what happens.
Photo: There's no good, family-friendly picture to go with a story about a sex change operation, and the available pictures of Robert Kosilek are protected by copyright. So instead, we offer you this fine photo of a Brazilian soccer player from the '60s and '70s named Kosilek. That's him in the middle.
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As a post-op transsexual woman, I have to say that anyone who "transitions" while in prison needs to be very very carefully screened. I have my own theories:
Any person who made the gender change (regardless of whether or not they have had genital surgery) should be able to continue hormone treatments and should be able to finish thier transition. I know my life would totally suck if it were not for my estrogen. It affects more than body tissue, it affects the brain as well. Estrogen therapy makes me feel more balanced mentally.
Any person who claims "I will commit suicide unless I get so and so" seriously needs to be examined. Yes for the right person, this surgery is life saving. It was for me. But I never once said, give me the op or I will "off" myself. That's a sure sign of other mental disorders perhaps disorders that eclipse gender identity issues. And trust me, to get this op requires the approval of 2 shrinks, an endocrinologist (the doctor who administers the hormones) and a willing surgeon(who doesn't feel that the potential surgical applicant is not a crackpot). It's not so easy to get.
I would take my theory one step further and say that anyone who was already living as a woman before prison should be held in a women's prison, and vice versa. Given enough time, contra-sex hormone therapy has a destructive effect on the existing gonads (meaning preganancies etc are not an issue).
I have in my life met a great many homeless transsexual women who are rejected by thier families. With nowhere to live and no options, there is simply life "on the streets". What kind of signal does a society want to send about some of it's most vulnerable citizens? The point here being that there are a great many non-violent offenders in our prison system. Once they are in, all they know is violence and destruction. And anyone who is feminine in a hyper-masucline environment is not going to survive for very long without giving in to the system of oppression. A transsexual woman who is arrested for prosititution, for example, and then thrown into a male prison is in a very grave danger of either allowing forced sex or die. No sane person would ever stick a female-at-birth woman in a men's prison, so why should it be different for transsexual women? Once they are out, all they know is violence, rape and beatings are okay. Isn't the purpose of prison to "reform" a person, so that they will never commit a crime again? Or to make them so numb to violence that they continue a life of crime once they are out?
A Massachusetts post-op
(who prefers to remain anonymous)