In recent years, television and film has increased its depiction of transgender individuals. Transgender characters are beloved by audiences in Orange is the New Black and Transparent. Although social acceptance is increasing, the legal rights and liberties for this community are slow and complex. One area in particular is our prison system.
Prisoners have limited rights when incarcerated and face common problems such as:
- Limited medical and mental care
- Unsanitary and poor prison conditions
The issue about prisoners’ rights arose again earlier this year when a federal appeals court ruled that a transgender inmate could get gender reassignment surgery.
Becoming Michelle Kosilek
In 1990, Michelle Kosilek, born Robert Kosilek, murdered her wife, Cheryl McCaul. Kosilek was subsequently convicted and sentenced to life in prison without parole. During her incarceration, Kosilek petitioned the Massachusetts Department of Correction (MDOC) for a sex change surgery.
Kosilek has been diagnosed with gender identity disorder and has filed many lawsuits against the Massachusetts Department of Correction:
- In 2000, Kosilek claimed that her Eighth Amendment rights were violated and was granted hormone replacement therapy and psychotherapy in 2002.
- In 2006, Kosilek sued the MDOC and claimed that its refusal to grant sex reassignment surgery was a violation of the Eighth Amendment. Kosilek’s main argument was that refusing to provide the surgery was a “cruel and unusual punishment.”
Is Gender Reassignment Surgery a Right for Transgender Prisoners?
According to the U.S. District Court of Massachusetts and First Circuit Court, sex change surgery is a constitutional right for transgender inmates.
In 2012, U.S. District Judge Mark Wolf ruled in favor of Kosilek and found that the MDOC had violated Kosilek’s constitutional rights when it denied her sex change surgery. The MDOC appealed Judge Wolf’s decision and the First Circuit Court of Appeals heard the case.
The First Circuit upheld Judge Wolf’s ruling and, in a 2-1 decision, ruled in favor of Kosilek. The court found that her Eighth Amendment rights were violated and stated, “…receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox.” The Massachusetts Department of Correction plans to appeal the decision made by the federal appeals court.
Opponents of the Court Rulings
Those that oppose the courts’ decisions and are against the gender reassignment surgery believe that:
- The MDOC has provided adequate medical and mental care to Kosilek- she has been given hormones and psychotherapy.
- It’s grossly inappropriate to use taxpayer money to fund the surgery.
Transgender Prisoners and Other Concerns
Everyone has differing opinions about this case and issue, but it is clear that our prison system needs to acknowledge the problems faced by its transgender prisoners.
- U.S. prisons have a general policy of housing inmates based on their birth assigned sex, regardless of current appearance or gender identity.
- This means a transgender woman with breasts may be housed in a prison with men.
- Only transgender inmates that have had genital surgery are housed according to their reassigned sex.
- Many prisons aren’t equipped to handle transgender inmates and do not provide hormone therapy, even if the treatment was prescribed prior to incarceration.
- Transgender inmates experience higher levels of violence in prison, particularly sexual violence.
Prison reform is slow and often unpopular. Improving the prison conditions for transgender prisoners will be difficult for correction departments, but ultimately, the catalyst for change may come down to court decisions.