Should State Pay for Convict's Sex Change?

Nov. 27, 2009— -- A Massachusetts inmate recently lost a bid for state-funded electrolysis treatments. But the prisoner, who has changed names from Robert to Michelle Kosilek, is still pursuing his case to have the state of Massachusetts pay for a sex-change operation in order to complete a gender transformation that started almost 20 years ago.

That puts Kosilek squarely in the middle of a debate over just what kind of medical care prisoners are entitled to, especially in an era of strained state budgets.

When Cheryl Kosilek's strangled body was found dumped in the back seat of a car in 1990, focus immediately turned to her husband Robert. Robert Kosilek had fled the state but was arrested in upstate New York and eventually returned to face charges in his wife's murder.

By the time Kosilek entered the courtroom for his trial, his hair was shoulder length. He dressed as a woman and his name was Michelle.

After he was convicted and sentenced to life in prison, Kosilek sued the state to get it to pay for hormone treatments, electrolysis and a sex-change operation. Kosilek's attorneys argued that he suffered from gender identity disorder, and to deny him treatment would constitute "cruel and unusual punishment" and violate the Eighth Amendment.

Kosilek won numerous lawsuits, and for several years received hormone injections and electrolysis treatments paid for by the state. Those treatments ended last October.

Kosilek is not the only transgender inmate to request or receive such care. Eight transgender inmates in Wisconsin also took their requests for medical treatments related to gender disorder to court. And a Colorado inmate asked the state to provide him with a gender identity specialist, hoping it would lead to sex-change surgery.

Cash-Poor States Look for Guidance

The situation is so vexing to prison administrators that, as recently as a month ago, the National Commission on Correctional Health Care drafted a position statement titled "Transgender Health Care in Correctional Settings."

It reads in part: "When determined to be medically necessary for a particular inmate, hormone therapy should be initiated and sex reassignment surgery considered on a case-by-case basis."

But at what cost?

Electrolysis treatments run about $500 each. A sex-change operation can cost somewhere in the neighborhood of $20,000. Add the cost of regular hormone shots and treatment for transgender inmates adds up.

State Health Care? For Transgender Inmates?

Citing strained state budgets, Massachusetts State Senator Bruce Tarr has introduced a bill that, if passed, would prevent any "public funds" from being "expended for the purpose of sex reassignment surgery for any person in the custody of any jail or prison." The law would also extend to other treatments for inmates with gender disorders.

A similar law was passed in Milwaukee several years ago.

Tarr said that in his view, "reasonable people" agree that treatment for gender identity issues would be an "inappropriate expenditure" when the state of Massachusetts is in the middle of a budget crisis.

"The state budget overall is facing a budget deficit of between $2-4 billion. The governor recently made big cuts in the parole and probation programs. And one of our chief justices indicated that if there are any more cuts to the court system, they will have trouble delivering "justice as we know it" -- and then we have an inmate who wants $20,000 for a sex-change operation," said Tarr.

But advocates, like John Knight, a staff attorney for the ACLU's Lesbian, Gay, Bisexual, Transgender and AIDS Project, argued that while the individual cost of treatment may seem high, the cost of denying the treatment could turn out to be even more expensive.

"If inmates are denied treatment, they can become depressed and suicidal. They can even engage in self-castration. ... those kinds of issues will end up costing the state a lot more in the long run," said Knight.

Knight argues the state is simply not allowed to deny "medically necessary" treatment to inmates. He says the need for that treatment must be determined by a medical professional, not by state legislators.

Edward Harrison, president of the National Commission on Correctional Health Care, agreed: "The dynamic that we struggle with on a daily basis is that the Constitution, the Supreme Court and many, many lawsuits say that we must provide adequate health care to inmates, and when we don't, there are bad outcomes. It can wind up in a lawsuit that can end up being tremendously expensive."

Of course, one person's "adequate health care" is another's "inappropriate expenditure" -- particularly when, says Tarr, many states "are struggling to balance the most basic elements of their budgets."

In just a few weeks, Kosilek will again be in court to make his latest bid for the state of Massachusetts to pay for his sex-change operation.