Transgender Exceptionalism Should Not Cloud Legal Analysis

JURIST Guest Columnist Jennifer Levi, Transgender Rights Project Director at Gay & Lesbian Advocates & Defenders, says that constitutional protections must be consistently upheld by our courts regardless of how marginalized or unpopular the person to whom they apply may be...

The Commonwealth of Massachusetts recently announced that it will appeal a decision in which Judge Mark Wolf of the US District Court for the District of Massachusetts ordered the Department of Corrections (DOC) to provide gender reassignment surgery (GRS) for a transgender woman currently serving a life sentence.    

The decision marks the first time that a court has ordered corrections officials to provide GRS to an inmate. Throughout our nation's prison systems, most transgender inmates receive little or no medical care for the underlying medical condition of gender identity disorder (GID). For instance, it was only last year that the federal Bureau of Prisons (BOP), in response to the lawsuit Adams v. Federal Bureau of Prisons, reversed its "freeze frame" policy in which treatment for any person with GID was kept frozen at the level provided at the time he or she entered the federal prison system and was denied to any inmate who came into the system with no diagnosis or treatment plan. The BOP now provides, at least according to its formally stated policy, for the treatment needs of transgender inmates on a case-by-case basis.

The Kosilek ruling has been the subject of intense public and political criticism, with a number of high profile politicians reflexively speaking out in opposition to the decision. However, they have seemingly no knowledge or information about the medical condition, much less the facts of this particular case.

Media coverage and popular criticism has centered around three central themes. The first theme has been that GRS is inessential medical care. The second theme is that, as a convicted murderer, Michelle Kosilek should not receive medical care that those outside prison walls may not be able to afford. The third theme has been articulated less clearly, but is no less evident, and it is that no matter what anyone thinks about medical care or prison justice, there is no way to rationally understand how a transgender person in prison can be entitled to this care. I call this third theme "transgender exceptionalism."

One troubling feature of the criticism leveled at the Kosilek ruling is that nearly no one challenging it has read it. If they had, they would understand that, as to the first two themes about the medical nature of the treatment and the question of whether an incarcerated inmate must be provided such treatment, there is nothing new jurisprudentially in Wolf's opinion. Much of his decision reiterates what he found as legal and factual matters in a preliminary decision issued in the case over a decade ago — matters well-grounded in incontrovertible legal analysis.

In his decision, Wolf held what every court to have addressed the issue has held: GID is a serious and legitimate medical condition recognized by medical professional organizations and identified in all major medical texts. Wolf also found that there is an established course of treatment (known as the Harry Benjamin Standards of Care, named for the endocrinologist who pioneered them) that includes hormones and GRS in appropriate circumstances and that the denial of treatment for a patient with severe GID leads to serious self-harm, mutilation and likely suicide. As the record in the case shows, Kosilek did mutilate her own genitals and twice attempted suicide.

In a 2002 decision regarding Kosilek's claim, Wolf did not find DOC liable for the denial of Kosilek's care because, in an abundance of caution, he found that prison officials may not have been aware of the seriousness of Kosilek's medical condition or the seriousness of medical consequences if her condition remained untreated. Wolf did, however, also make two other important points. First, he said that DOC could not deny medical care to Kosilek based on cost. Indeed, inmates routinely receive treatment the public may perceive as unduly expensive, such as dialysis and Hepatitis C medication. Wolf also acknowledged that DOC-raised safety concerns (both Kosilek's and that of the public) could, depending on their realness and strength, be a legitimate basis for denying care. Given the detailed nature and clarity of its decision, Wolf observed that it expected the DOC would comply with its constitutional obligation to provide adequate medical care and declined to order specific treatment at that time.

Following the 2002 decision, the DOC provided Kosilek with female hormones and psychotherapy in accordance with the Harry Benjamin Standards of Care. Kosilek's medical care, however, was short-lived. When the DOC commissioner originally named in the case stepped down and was replaced by a new commissioner — who was in total opposition to providing medical care for transgender inmates — the care and treatment of transgender inmates at the DOC, including that of Kosilek, was halted. The new commissioner, Kathleen Dennehy, terminated Kosilek's hormone therapy, fired the expert retained by DOC's own doctors after he recommended GRS as the only appropriate treatment for Kosilek and departed from established protocol in refusing to allow DOC doctors to retain specialists. Dennehy herself hired a social worker from a discredited gender clinic who was known to advocate against the provision of GRS for transgender patients.

Perhaps most damningly, while Dennehy continued to say that providing surgery created a safety risk (apparently both to Kosilek and other inmates), she failed and refused to undertake the kind of safety assessment that would have been routine in any other case in which a prison official raised the issue of medical treatment creating such a risk. As Wolf noted of Dennehy in his more recent decision, "she testified that she would retire rather than obey an order from the Supreme Court" to provide GRS to an inmate.

At the heart of the decision was Wolf's finding that the DOC "engaged in a pattern of pretense, pretext and prevarication," to deny Kosilek the treatment that every DOC doctor to ever evaluate her had prescribed.

So, while the public focus on this case has made it a Rorschach test for discussion of matters relating to the legitimacy of medical care for transgender people and the appropriateness of the degree of justice for inmates commanded by the Eighth Amendment of the US Constitution, neither issue will feature prominently, if at all, in the appeal. The issue of what level of medical care is appropriate for any given patient is legally well-settled. That assessment is one for doctors to make and not one which could or should be decided by public opinion — as anyone with any number of stigmatized or popularly misunderstood conditions from HIV to schizophrenia to Epstein-Barr virus would agree. Like it or not, the Supreme Court has long held that the very purpose of our Bill of Rights protections is to "withdraw certain subjects from the vicissitudes of political controversy" and "to place them beyond the reach of majorities and [government] officials." 

Properly understood, this case is not about the legitimacy of medical care for transgender people or the baseline of care that has to be provided to prisoners to ensure that we retain our position as a civilized society. Indeed, the Commonwealth itself has publicly disclaimed any challenge to the underlying legitimacy of the condition of GID or the need for its care and treatment in the prison setting.

Rather the case asked and answered a question about whether the court would allow "transgender exceptionalism," by which I mean whether the court would allow a government official to ignore every established rule or policy simply because the person to whom the rules or policies would apply happened to be transgender. Fortunately, Wolf held that a decision by government officials based on "fear of controversy" is "not the result of a good faith balancing judgment and is not reasonable." That ultimate decision is in the finest tradition of civil rights analysis and one which anyone who agrees — that constitutional protections must be upheld by our courts regardless of how marginalized or unpopular the person to whom they apply — ought to support.

Jennifer Levi directs the Transgender Rights Project at Gay & Lesbian Advocates & Defenders (GLAD) and is a law professor at Western New England University. She co-edited Transgender Family Law: A Guide to Effective Advocacy, the first book to address legal issues facing transgender people in the family law context and provide practitioners the tools to effectively represent transgender clients.

Suggested citation: Jennifer Levi, Transgender Exceptionalism Should Not Cloud Legal Analysis, JURIST - Hotline, Oct. 16, 2012, http://jurist.org/hotline/2012/10/jennifer-levi-grs-kosilek.php.


This article was prepared for publication by Stephen Krug, an associate editor for JURIST's Professional Commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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