Michelle Kosilek, Barney Frank and Prisoner Sex Changes

If Barney Frank seriously wants to be an ally for trans people, the absolute first thing he could do is stop talking about anything at all to do with trans people.

To be fair, the media has this bad habit of considering him a superior authority to absolutely anyone who’s genuinely trans, and keeps asking him about our issues, regardless of how unhelpful trans people consider him to be.  This time, it’s Metro Weekly’s Justin Snow who thinks the man who keeps supplying the far right with seeming penis-predators-in-the-washrooms validation should be considered an authority on things trans.

Naturally, Barney Frank takes the side of those who think that incarcerated trans people should be denied medical treatment.  He does so without thinking about how if one part of treatment for gender dysphoria is not considered medically necessary, then any of it (hormone therapy, etc) is inevitably called into question.  He also does so regardless of any of the resulting consequences… such as maintaining the status quo of having transsexed women subject to institutionally-sanctioned rape by being housed with male prisoners, or else to solitary confinement for the duration of their sentences.  Barney Frank’s only caveat is that he thinks that an incarcerated transsexual woman should be able to “present herself as a woman, and that should be honored by the prison system” — because that’s apparently our only important issue.  Way to be an ally.

Just Deserts?

I won’t deny that the Kosilek ruling can be angering, but the fact of the matter is that fighting for rights means defending the right to make mistakes (even abhorrent ones) without being singled out for uniquely disparate punishment above and beyond what is experienced by everyone else.  Both fighting for justice and providing justice are not always glorious pursuits.  This is because sometimes, justice sucks.

That may sound crass, condescending or flippant.  It’s honestly not meant to be.  But inevitably, it’s the only reasonable conclusion one can come to, like it or not, following the ruling of a federal judge in Boston that the state had violated Michelle Kosilek’s constitutional rights in denying her sex reassignment surgery (SRS / GRS).  This is the kind of thing that may leave a bad taste in one’s mouth, but is a part of the responsibility that a society takes on when it incarcerates people.  Matt Kailey summed it up well:

“First of all, we have to examine whether or not federal, state, and local governments should pay for medical care for their prisoners. If the answer is yes, then the decision could go no other way. If transition is, in fact, medically necessary, and if, in fact, a civilized government provides health care to those who it incarcerates, then the government must provide medically necessary care to all its prisoners. It cannot discriminate on the basis of some false morality, or on the “worthiness” of the individual receiving the care.

“We either treat our prisoners humanely or we don’t, and providing necessary health care is the humane thing to do. It’s not a matter of who “deserves” it and who doesn’t. It’s a matter of whether or not we are going to provide it to our prisoners – period.”

This is not about what a person deserves.  A case could be made that the death penalty is deserved, but I’m a little too cynical about the legal system to support capital punishment.  Growing up in Canada, I became socially aware at a time when serial killer Clifford Olson — who confessed to murdering 11 children and youth — used the lack of knowledge on where their bodies could be found to barter a $100,000 payday for his wife and son, and would have instead been able to use that to leverage his way out of a death sentence if we had one.  I watched the Paul Bernardo / Karla Homolka trials roll out, in which each played their role in the rape and murder of three teens (including Homolka’s sister) against the other in order to reduce their sentence.  Homolka at first appeared to have been intimidated and manipulated into participation, but ongoing proceedings demonstrated far more involvement and initiative — even so, Homolka was released after serving 12 years and is now living in Guadalupe with a new husband and three children.  People that we might consider most deserving of the sentence can often avert it if they have the notoriety or the economic stature to obtain highly-skilled legal representation.  The heaviest punishments usually go to the David Milgaards and Steven Truscotts — people who are too poor, too disenfranchised and too socially isolated to mount a defense… the kind of people for whom our legal system starts with a presumption of guilt, and leaves them with a difficult quest to prove their innocence.  And where the death penalty exists in the U.S., we regularly hear of its usage for people like Terry Williams (who would have been executed Wednesday, except that a judge ruled in favour of a new sentencing hearing):

“At trial, the jury was informed that Terry had prior convictions for a 1982 armed robbery and the 1984 killing of Herbert Hamilton, which Terry committed at ages 16 and 17, respectively. The jury never learned, however, that both Herbert Hamilton and Amos Norwood had sexually abused Terry, or that both killings directly related to Terry’s history of sexual abuse by these and older males, which began when Terry was only six years old. In fact, jurors heard very little about Terry’s childhood, which was marked not only by over a decade of sexual abuse, but by years of physical and emotional abuse, neglect and abandonment by those who were supposed to love and care for him…”

Not surprisingly, Williams is also African-American.  Race, social class, disability and other characteristics are often factors in who receives the worst punishments.  So I don’t see how anyone seriously committed to social justice can support the death penalty.

And if we incarcerate them instead, then we have a duty to treat prisoners humanely and provide medically necessary care.  We don’t designate one inmate as being deserving of medical care and another not.  There is no scaled treatment based on the degree of the crime — which is actually a good thing, because otherwise you open the system up to grotesquely abusive subjective decisions, and bureaucrats stretching policies in ways that suit their own biases.  So whether you were convicted of murder or busted for smoking pot, you get the same medical treatment.

And under what is usually a black-and-white framework, treatment for gender dysphoria is either medically necessary, or it’s not.  Any special exemption is typically going to be applied to the whole treatment track, unless some rationale can be given for differentiating — and “I agree with hormone therapy but not surgery” doesn’t cut it.  And if it’s medically necessary, then criminal justice has to be applied in balance with humanitarian justice.

Unclear Canadian Precedent

This road has been traveled before.  In Canada, funding sex reassignment surgery for inmates was made policy after an August 2001 ruling by the Canadian Human Rights Tribunal in favour of Synthia Kavanagh was upheld by a federal court in 2003 (although it appears at least one other inmate was funded as far back as the early 1980s).  In 2010, the Conservative government singled the procedure out for special exemption when it issued a directive ordering Correctional Services Canada to stop funding the surgery anyway, but funding is still listed as CSC policy.  So currently, it’s currently unclear whether the federal Conservatives have backed down on this order, or are instead ignoring the policy and legal precedent.

Kavanagh receives no special sympathy from trans people because of sharing a trans history, either: so did the person she murdered in 1987 (Lisa Black).  But her example does also illustrate how trans status suddenly seems to further justify special punishment — including Sun Media’s ongoing special attention to any conflicts Kavanagh has behind bars (not usually considered newsworthy for anyone else), or the special furor that the Sun raised when they characterized post-operative medical stents used for surgical aftercare as “letting her have sex toys.”

Medical Necessity

And the medical evidence supports SRS as being a medically necessary procedure.  For this reason, many public health care systems have been adding GRS to their coverage, including those of France, Sweden, Brazil, Chile, and Argentina.  The American Psychiatric Association and American Medical Association both stress that sex reassignment surgery is a medical necessity, and a 2008 resolution by the AMA emphasized that insurance companies should cover the procedure.  The private sector has also recognized this, and corporations that have added health plan coverage to their benefits programs include Apple, Chevron, General Mills, Dow Chemical, Chubb, American Airlines, Kellogg, Sprint, Levi Strauss, Eli Lilly, Best Buy, Nordstrom, Volkswagen’s U.S. division, the University of Pennsylvania, Whirlpool, Xerox, Raytheon and Office Depot.  Statistics are not gathered in Canada, but according to the Human Rights Campaign’s Corporate Equality Index (CEI),  over 200 major U.S. businesses now include trans-inclusive health care coverage featuring surgical transition-related care, including 50% of Fortune 500 companies — an increase of over 1500% in that group since 2002.  I’ve written extensively on the medical necessity, if anyone wants to read precisely why.

It’s not covered everywhere, though.  The reason the AMA wrote their 2008 resolution was to urge health insurance companies to stop making a special exemption for SRS.  The fact that many insurance companies don’t cover GRS for non-incarcerated people is their failure, one which needs to be remedied soon.  But it is not otherwise related to this ruling, and we can’t put prisoner care on hold until the rest of society gets with the program.  Moreover, Kosilek’s ruling strengthens the case for overall medical coverage, while enabling a special exemption for her does the same for everyone else, as well.

The Repercussions

Michelle Kosilek did something despicable, and was given a sentence designed to reflect that. The sentence was not supposed to include denial of medical care, nor the secondary consequences of this decision, which include institutionally-sanctioned rape in a male correctional facility.  Housing prisoners solely according to genitalia remains an ongoing problem that needs to be addressed, but as long as it remains the status quo, we need to acknowledge that this consequence is the most frequent result of the denial of GRS.  Michelle Kosilek was not sentenced to a lifetime of rape, and certainly doing so would be considered cruel and unusual punishment.

The other option sometimes resorted to is solitary confinement, which has been decried as a form of torture, and at the very least (as argued by Lambda Legal this summer to the Senate Judiciary Subcommittee on the Constitution, on Civil Rights, and Human Rights) “causes excessive harm by denying inmates services and programs, external support systems, and human interactions upon which they rely for survival.”  Often, solitary confinement has also resulted in other abuses by prison systems, and even a rise in rapes by prison guards.

St. Barney’s Dissent

But Frank disagrees, stating, “They’re making a mistake if they think it’s a general trans issue.”

According to Frank, Kosilek should seek other means to pay for the surgery rather than taxpayer dollars.

So given his previous support of there being a public health care option at all, either Barney Frank is arguing for a special exemption of incarcerated trans people from health care coverage, or else a special exemption of all trans-specific treatment from health care coverage.

In some ways, I’m almost curious as to which it is.  But in the long run, Barney Frank can do more to be a trans ally by not answering that — or any other trans-related question.  And media can be allies by not providing “our side of the story” by putting the question to people who are obviously grossly underinformed at best… if not demonstrably transphobic.

(Crossposted to The Bilerico Project.)