Crime Library: Criminal Minds and Methods

Transgender Inmates in American Prisons: Is the Michelle Kosilek Case a Precedent for Gender Reassignment Surgery?

Michelle Kosilek. Prison photo.

As the awareness and acceptance of gay, lesbian, bisexual and transgender individuals in the United States is increasing at a surprising rate, it seems that many are still at odds with one component of the LGBT community: transgender Americans.

While the LGBT rights movement often seems dedicated to gay men and women, the transgender rights movement has been an interesting addition to popular culture over the past few years, particularly when it comes to the rights of transgender individuals serving time in prison for violent crimes such as rape and murder.

Slowly, but surely, the government has been implementing laws and lifting bans so the LGBT community are seen as equals in society, but what happens when a transgender inmate wants a gender-reassignment surgery while behind bars?

Well, that’s when things start to get interesting.

One of the most intriguing and drawn out cases involves Michelle Kosilek, a convicted murderer from Massachusetts who has sued the Massachusetts Department of Correction repeatedly in order to obtain gender reassignment.

Born as Robert Kosilek in 1955, Michelle strangled her wife in 1990 and since her incarnation over two decades ago, has been working with transgender and gay rights activists in order to deal with what many consider “gender identity disorder.”

Robert Kosilek.

This past September, U.S. District Judge Mark Wolf finally granted her request, in addition to saying that the state should pay Kosilek’s legal fees, for which the sum is around half a million dollars.

Many legal experts and scholars are trying to analyze this drastic shift for transgender inmates, as well as if the Kosilek case will serve as a precedent.

While homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders in 1973, the May 2013 version of the manual will have a more transgender-friendly wording for those who identify as a different sex than they were born.

“Gender Identity Disorder” will now be known as “Gender Dysphoria.”

Although it may seem like a small change, it may mark progress on what the insurance companies, government and general public deem acceptable when granting “necessary” medial procedures for transgender inmates.

A majority of insurance companies consider gender reassignment surgery an elective procedure, which is often the catalyst for many of these lawsuits in the first place; both inside and outside of the prison walls.

According to the group Stop Prisoner Rape, more than 200,000 men are raped behind bars each year, which is often a selling point for transgender rights activists in pushing for gender reassignment surgery, in addition to housing those who identify as female in a women’s prison.

Those living as male, but undergoing hormone treatment or in varying stages of transitions are often the first targets for rapists in prison.

In 2008, then Republican Massachusetts state Sen. Scott Brown filed legislation to ban the use of taxpayer money to pay for the surgery for inmates in response to Michelle Kosilek.

The amendment did not make it into law, and after hearing the decision of Judge Mark Wolf, Brown was not quite impressed.

“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,” Brown said in a statement. “I look forward to common sense prevailing and the ruling being overturned.”

Of course, those on the other side of the issue are elated with the recent news.

“It’s great to see a judge recognize that transition-related health care is medically necessary health care and that transgender prisoners are entitled to the same health care that other folks who are incarcerated receive,” Kristina Wertz, director of policy and programs at the Transgender Law Center in San Francisco, told CBS News in September 2012.

I’m not quite sure how I feel about the issue of transgender reassignment in prison, but it’s a little hard for me to feel sympathy for any individual – gay, straight, transgender, whatever – that has committed a heinous crime that has taken an innocent life from our earth.

However, I do believe that transgender Americans (and those abroad) who identify as a sex different from the one they were born should be given access and treatment in order for a transition.

Could you imagine living every day as somebody you aren’t?

I can’t.


The Transgender Prisoner and the Eighth Amendment: Should the State Fund an Inmate’s Gender Reassignment Surgery?

Jeffrey Hartinger is a writer who lives in New York City. You can visit his website at www.thewhygenerationusa.blogspot.com.

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