It wasn’t so long ago when even in this state the mere mention of gay, lesbian or bisexual issues in schools or prisons could start a sex panic in the press. Back in the 1980s it seemed as if that’s what many of our community leaders spent a good deal of time doing: putting out political brush fires caused by a teacher merely mentioning his or her same-sex partner in school, or an explicit AIDS education pamphlet making its way into the hands of a middle school student.
Fortunately, at least in this state, we are a long way removed from those days. Would that we could say the same for transgender issues. It’s probably the best sign I can think of regarding how far transgender people have to go in the court of public opinion that U.S. Senate candidate Elizabeth Warren joined Scott Brown in condemning the infinitely reasonable U.S. district court decision ordering the Massachusetts Department of Corrections (DOC) to pay for gender reassignment surgery for prisoner Michelle Kosilek.
Michelle is the male-to-female prisoner who was living as a straight man named Robert when he was married to his wife Cheryl. Robert was eventually convicted of first-degree murder for Cheryl’s 1990 killing. Michelle is serving time for that murder.
It’s bad enough when a convicted spouse killer asks for sympathy from the general public. It’s quite another when that sympathy involves transgender medical treatment, which already pushes people’s irrational buttons, including those of 24 Democrats in our state Legislature who joined 26 Republicans in calling for the DOC to appeal Wolf’s ruling.
There are several questions that need to be answered, and truth be told they are all answered in the exceedingly rational and lucid ruling by Wolf, who is a Reagan appointee. I have asked people who have been debating me online about Kosilek if they have read’s Wolf’s decision, and not one person has done so. Go figure.
This is why we leave these matters to judges and medical professionals rather than members of the general public carrying the modern day equivalent of pitchforks and torches as they go after the transgender monsters in our midst.
There is much muddled thinking out there about the Kosilek case, but the chief questions about which people seem to be confused are these: How much medical care is owed to the incarcerated? How do prison officials decide whether something in medically necessary? Is the treatment of what is called gender dysphoria a medically necessary treatment?
Courts decided long ago that, if we are going to incarcerate people, prison officials are obligated under the Eighth Amendment prohibition against cruel and unusual punishment to provide medically necessary care to prisoners, regardless of the crimes for which they are convicted. If you go back through the history of these court decisions, it’s clear that if the courts had not intervened countless times, most prison officials would feel justified by public sentiment and budget concerns to provide no medical care at all to prisoners no matter how sick.
But courts are designed to protect the powerless and unpopular from the whims of popular opinion, and they have done so in similar cases. This includes decisions that set forth what constitutes medical necessity. “Some factors courts have considered in determining whether a ‘serious medical need’ is at issue are,” according to the ACLU, “whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of comment or treatment; whether the medical condition significantly affects daily activities; and the existence of chronic and substantial pain.”
Judge Wolf did not pull this decision out of thin air. He relied on the opinions of medical professionals with experience in transgender issues who said that Kosilek’s treatment reaches the level of medical necessity. And that is as it should be.
Note that medical necessity does not have to include—and this is a major source of confusion amongst the general public—that the medical condition be imminently life threatening. A good example would be schizophrenia, which is not in itself a life-threatening condition, but which most of us would agree deserves to be treated in prison because it is appropriate medically and constitutes good prisoner management.
Which brings us to a final point: in reading letters to the editor, comments on newspaper web sites, and stupendously ill-informed opinion pieces in the wake of the Kosilek decision, there seems to be some confusion about whether transgender people deserve medical treatment or just need a few counseling sessions.
This depends on the transgender person, of course, but in itself being transgender is not a mental illness. This has reached the level of settled medical fact amongst informed physicians. It is a medical condition, pure and simple. If a transgender person needs mental health treatment, it is because of the rest of the world’s reaction toward them (or some other external factors) and not because being transgender in itself makes a person mentally ill.
Don’t forget: these are the same questions people used to ask about lesbians and gay men. In time, we will move past them for transgender people, as well.