Sex change and inmate rights

And now, from the Department of Most-Likely-to-Make-Your-Conservative-Cousin’s-Head-Explode, comes this one. The headline pretty much says it all: “Convicted Killer Asks Judge to Force State to Pay for Sex Change.” The news story delivers on the promise of the headline, too:

A man serving a life sentence for the murder of his wife is asking a federal judge to order the state to pay for a sex-change operation for him, saying that denying him the surgery amounts to cruel and unusual punishment. . . . Kosilek sued the Department of Correction for the second time last year, saying that numerous psychiatrists who had examined him — including two of the DOC’s own experts — had determined that a sex-change operation is “medically necessary.” “We ask that gender identity disorder be treated like any other medical condition,” said Kosilek’s attorney, Frances Cohen.

What do we think of these kinds of accounts? As someone who considers himself a left-leaning moderate, I haven’t yet arrived at any consensus on this story.

My first reaction comes from my pragmatic side; it is the cynical observation that these kinds of cases are very, very politically inexpedient. These are the kinds of cases that inflame popular prejudices, and ultimately lead to the scaling back of protections for defendants and prisoners everywhere. We can point to numerous incidents across the country of prisoners assaulted by guards, or kept in horrendous conditions — yet popular perception on prisoner’s rights is likely to be disproportionately skewed towards things like sex changes for convicts. That popular perception hurts prisoners everywhere.

Mr. Kosilek’s noisy insistence on receiving a sex change as treatment for his gender identity disorder could well result in conservative legislative reactions, and ultimately less receptive judicial environments for things like habeas claims about more egregious physical abuse of inmates. And if that happens, it strikes me that cases like Mr. Kosilek’s result in a net negative for prisoner’s rights.

On the other hand, my inner liberal idealist insists, shouldn’t I be particularly concerned about the rights most likely to be infringed? What use is a system of prisoners’ rights, if it stops short of actually protecting rights that might be controversial? And on the same vein, I’m at least somewhat wary of signing on to anything that looks like a retreat in prisoner’s rights. Retreat is seldom good, is it?

Finally, though, my inner conservative speaks, and argues that maybe prisoner’s rights are oversold, anyway. Does the Constitution really require a sex change for an inmate? Maybe that’s a standard remedy for that disorder in the 90210 zip code, but most people with that disorder get along okay, don’t they? Just how gold-plated does our inmate care have to be, anyway? Isn’t there some reasonableness cap?

(The inner pragmatist speaks up again here, and wonders how much broad drug-treatment intervention could be financed for the price of one or two costly surgeries).

So I’m not sure where I stand, in the end. I suspect that the news account of the case will result in a few predictably vitriolic and shrill conservative responses, which will be easy to parry and mock. On the other hand, there are at least some valid concerns underlying the conservative critique of high-cost inmate care — it can’t be high-dollar surgeries for everyone everywhere, can it? If the reasonableness line happens to exclude Mr. Kosilek, I doubt for now that I’ll be too sad. (Though perhaps my co-bloggers or our commenters can make arguments, one way or another, to convince me otherwise).

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7 Responses

  1. Someone tangentially involved in a similar case (reg commentor) says:

    Gender identity disorder is real and serious. It’s a psychological disease, and it’s been known to lead to, e.g., suicide. If there’s a surgery to prevent that, why not?

    (Posted anon to avoid crossing the line between “cases at work” and “internet discussion”.)

  2. Simon says:

    A story on a different but related issue was reported by Ann Althouse last month, provoking a fairly spirited round of discussion; the issue at hand was a man who claimed that as a pre-op “transsexual” who had been taking female hormones, he should not be incarcerated in a men’s facility. My argument in that situation was that the real problem was that the state had previously made the mistake of ratifying his illness by amending the gender displayed on his drivers license, thereby fostering the reaonsable expectation that he would enjoy the legal status of his “new gender”. Of course, I also made clear there that I join Tammy Bruce in declining to accept that GID is anything other than a form of mental illness that should be treated as such, not with surgery, but with pyschotherapy where possible and pharmacological solutions otherwise. It remains a mystery tome why GID – alone among variants of apotemnophilia – is treated with slavish indulgence of the sickness.

    That general disapprobation, of course, controls in this case. His lawyer is surely correctr that he should be treated, but I simply don’t buy that “treatment” for a chap with this disorder involved GRS. It involves actual treatment. It has become desparately unfashionable in America to tell someone that they not only cannot have what they want, but that,in fact,what they want is not the best course of treatment for them. We are far more concerned with pandering and performing unnecessary surgery, all because we have made a fetish of refusing to tell a man that he is mentally unbalanced and needs treatment. It is not a perfectly valid lifestyle choice to mutilate oneself, and the misguded effort to remove the moral opprobrium from any human activity has only gone to encourage it.

    This is, though, all happening in Massachusetts, the one-state argument for federalism. Indiana is now accepting political refugees from MA…

  3. this case has been in the news, off & on, awhile. By all accounts, this guy done nothing on his own to further his sex-alteration agenda before killing his wife.

    Some observations: if this is a first of its kind, I’d think it’d be kind of hard to argue that denying the operation qualifies as “unusual”

    also, since I’m guessing this kind of operation doesn’t come cheap and, accordingly, can’t be had by all – should killing your wife really give you special access to that which others cannot get?

    ..and since the guy/gal’s in jail for life w/out parole, I’m hoping that the impact on the person’s sex life of not having the operation will have no impact on the final decision.

    finally, if a federal judge does order the operation – expect that order to become Exhibit A in once again explaining to the public why the appointment/confirmation of federal judges is so important…which many of you can then easily “parry and mock” your way to once again screwing up a great opportunity to retake the Congress.

  4. bill says:

    Policy thought: Most criminals are men. Perhaps sex change is (or in volume, could become) a cheaper cost-avoidance than long-term incarceration?

    (tongue firmly in cheek)

  5. Simon says:


    Perhaps that could be an optional punishment for men convicted of rape: they could avoid life imprisonment by electing to be subjected to gender reassignment surgery. Such a punishment has the potential to be both punitive and prophylactic.

  6. Brien H says:

    Rather than enter into the holier-than-thou dodge and parry play acting that blogging has become how about looking at this in a different light altogether? No vitriolic shill needed and I’m very conservative fically and morally. The thing we fail to see in people is the nearly insane levels to which we will go to satiate their own egos, physical gratifications and hedonistic tendencies. How many on top of the world so to speak people have we seen give up the things that matter most for a fleeting shot at fame, a line of drugs or other addictions seemingly unable to stop themselves from zoning in on the bug zapper of life?

    I don’t truly care if the constitution has an outlet, or verbal hole in it large enough to slam an endzone bill-at-the-expense-of-taxpayers touchdown in it. Once we lost the right to common law (once known more appropriately as common sense) we have to real legal footing to stand on because we know that smoke, mirrors or substance eventually someone will nick a bit of my hard earned credits and pay for something I or you find abhorrent.

    The sad thing is that the shrill voices winning in the who get to spend my tax revenue is increasingly going to those who are doing things that set people on less equal ground than ever before. (now there’s another good thread). An example from my area is that apparently a cross in San Diego constitutes the establishment of religion.

    Let’s look at the motivational possibilities here for a man in a life sentance situation.

    If I were incarcerated in an all male prison for life and I was in a cell with another man and I was experiencing the high probability of being raped on a regular basis I would rather cut the little man off and get transferred to a place with some women. Get me a psychiatrist and a ticket out of hemroid hell!

    Or, maybe the repeated raping has demeaned the man so severely that his phyche has been altered to believe that he just needs the proper plumbing to continue being a submissivly abused man.

    His hatred for women is so complete that he will stop at nothing to get at the throat of just one more before he dies.

    A little lonely man in a cell forgotten by all who never dreamed he’d be caught for offing his wife now just craves more attention and coddling and cannot think of another way to cry out for attention except to shock the world with a revelation that he might be in the wrong body. Change me to the other version I want to try that for awhile at taxpayer expense.

    Why doesn’t anyone ever feel like they are in the wrong body, of a too evolved species and want to have “Species Reassignment Surgery”? I’m too human can you make me more simian I feel like an ape in a man’s body.

    The funny thing is that gender identity disorientation presupposes that there is some essence that can somehow be transferrred or trapped into a wrong body otherwise it should be treated as a delusional state with the proper meds. Giving in to the patient and saying they have this issue means the medical community must understand or at least percieve the concept of a spirit.

    Go figure

  7. raleigh,nc says:

    My question is who or whom is doing a Favor for a Favor and what does the judge get out of it?

    Raleigh, NC