Transgender-inmate ruling movement's latest win

Ruling shines light on what advocates see as worst form of discrimination

By Meghan Barr
Associated Press

Years ago, in a darkened parking lot in the middle of the night, Kathy Padilla would meet with fellow transgender people who sought support from one another in a society that treated them like outcasts.

How things have changed since then for transgender men and women in America, who have made great strides in recent years toward reaching their ultimate goal: to be treated like ordinary people. On Tuesday, they won another victory when a judge from the U.S. state of Massachusetts became the first to order prison officials to provide sex-reassignment surgery for a murder convict, saying it was the only way to treat her gender-identity disorder.

The ruling marked the latest milestone in the increasing visibility of a class of people once roundly derided as freaks or used as a punch line.

“Now there are transgender delegates at the Democratic National Convention,” said Padilla, a 55-year-old transgender woman from Philadelphia who has been an advocate since 1984. “And a number of transgender people have been invited to the White House.”
In recent years, more than a dozen states have revised anti-discrimination laws to include transgender people, giving them hate-crime protection and providing rights as basic as restroom access. Transgender officials have helped raise the movement’s profile by winning elective office in city halls, landing coveted appointments in the White House and, yes, sending delegates to political conventions.
The Massachusetts court ruling, though, shines a light on what many advocates view as the worst form of discrimination still faced by transgender people: lack of access to medical care.

“Transgender people are still denied health care access all the time,” said Mara Keisling, executive director of the National Center for Transgender Equality. “There’s insufficient training, insufficient cultural competency, and insufficient humanity sometimes.”

Transitioning from one sex to another can involve a variety of treatments, including hormone therapy, but the most expensive one is a sex-change operation, which can cost up to $20,000. Even though the American Medical Association and other medical experts recommend coverage of services for transgender people, a small but growing number of companies that actually provide it — including Apple, Accenture and American Express — are still the exception.

Federal health care that covers treatment for gender-identity disorders is virtually nonexistent, with no services for federal employees, veterans or Medicare recipients.

U.S. Senator Scott Brown of Massachusetts, who as a state senator filed unsuccessful legislation in the late 2000s to ban the use of tax money to pay for the surgery for prison inmates, said surgery for the inmate at the center of Tuesday’s ruling would be “an outrageous abuse of taxpayer dollars.”

“We have many big challenges facing us as a nation, but nowhere among those issues would I include providing sex change surgery to convicted murderers,” he said in a written statement. “I look forward to common sense prevailing and the ruling being overturned.”
In July, Leon Rodriguez, director of the federal Department of Health and Human Services’ office for civil rights, sent a letter to an advocate reaffirming that federal health care funding extends to medical needs of transgender people. But the agency also said insurers are not required to cover “transition related surgery.”

The nation as a whole has not yet embraced the idea that a gender reassignment surgery is a medically necessary procedure that could have dramatic health benefits, advocates say.

“If somebody doesn’t receive treatment, it can lead to very serious incidents of self-harm,” said Jennifer Levi, a professor of law at the Center for Gender and Sexuality Studies at Western New England University in Springfield, Massachusetts. “One of the things that the judge recognized is that there’s a lot of public misunderstanding about the experience of transsexualism. And there’s a lot of bias and prejudice.”

In the Massachusetts case, the judge noted that inmate Michelle Kosilek’s gender-identity disorder has caused her such anguish that she has tried to castrate herself and twice tried to commit suicide. Kosilek was named Robert when married to Cheryl Kosilek and convicted of murdering her in 1990.

While courts around the United States have found that prisons must evaluate transgender inmates to determine their health care needs, most have ordered hormone treatments and psychotherapy. Wolf is the first judge to order sex-reassignment surgery as a remedy to gender-identity disorder.

“There are still people who believe that being a transgender person is a choice, or exotic or bad,” Keisling said. “And you know, those people are becoming fewer and fewer all the time.”

“More and more people in the public are recognizing that transgender people are people,” Keisling said. “And that being a transsexual or having gender identity is an actual, real, core component of a person’s identity.”

Some notable rulings on transgender people

Some court rulings in recent years on transgender people’s access to gender-related medical care:

— In 2010, the U.S. Tax Court found that the costs of female hormones and sex-reassignment surgery were deductible as medical expenses in the case of a Massachusetts woman. Rhiannon O’Donnabhain, who was born a man, sued the Internal Revenue Service in 2007 after the agency rejected a $5,000 deduction for about $25,000 in medical expenses associated with the surgery, finding it was a cosmetic procedure and not medically necessary. The Tax Court found that O’Donnabhain should have been allowed to deduct the costs of her treatment for gender-identity disorder.

— In 2011, the 1st U.S. Circuit Court of Appeals in Boston upheld a lower court judge who found that the state Department of Correction had shown deliberate indifference to the medical needs of another transgender inmate by repeatedly denying her request for female hormone treatments. The court found that the Department of Correction’s claim that its decision in the case of Sandy Battista was based on security concerns had been “undercut by a collection of pretexts, delays and misrepresentations.”

— In 2011, the 7th U.S. Circuit Court of Appeals in Chicago upheld a ruling striking down a 2005 Wisconsin law that banned publicly funded hormone therapy for a group of inmates who identify as transgender women. The appeals court found that the law violated the constitutional ban on cruel and unusual punishment by denying medical treatment. “Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture,” the court wrote.

— In 2011, the 11th U.S. Circuit Court of Appeals in Atlanta ruled in favor of a former Georgia state legislative aide who was fired after revealing plans for sex reassignment. The court upheld a lower court’s ruling that Vandy Beth Glenn was the victim of sex discrimination. Glenn, formerly known as Glenn Morrison, said she was fired in 2007 after telling her boss she planned to proceed with her gender transition and would begin coming to work dressed as woman.

— On Tuesday, a U.S. district judge ordered Massachusetts prison officials to provide taxpayer-funded sex-reassignment surgery to a transgender inmate serving life in prison for murder, saying it is the only way to treat her “serious medical need.” Michelle Kosilek has received hormone treatments and now lives as a woman in an all-male prison. The judge left it up to the Department of Correction to decide where she will be held after the surgery.