Sex change and inmate rights
posted by Kaimipono D. Wenger
And now, from the Department of Most-Likely-to-Make-Your-Conservative-Cousin’s-Head-Explode, comes this one. The headline pretty much says it all: “Convicted Killer Asks Judge to Force State to Pay for Sex Change.” The news story delivers on the promise of the headline, too:
A man serving a life sentence for the murder of his wife is asking a federal judge to order the state to pay for a sex-change operation for him, saying that denying him the surgery amounts to cruel and unusual punishment. . . . Kosilek sued the Department of Correction for the second time last year, saying that numerous psychiatrists who had examined him — including two of the DOC’s own experts — had determined that a sex-change operation is “medically necessary.” “We ask that gender identity disorder be treated like any other medical condition,” said Kosilek’s attorney, Frances Cohen.
What do we think of these kinds of accounts? As someone who considers himself a left-leaning moderate, I haven’t yet arrived at any consensus on this story.
My first reaction comes from my pragmatic side; it is the cynical observation that these kinds of cases are very, very politically inexpedient. These are the kinds of cases that inflame popular prejudices, and ultimately lead to the scaling back of protections for defendants and prisoners everywhere. We can point to numerous incidents across the country of prisoners assaulted by guards, or kept in horrendous conditions — yet popular perception on prisoner’s rights is likely to be disproportionately skewed towards things like sex changes for convicts. That popular perception hurts prisoners everywhere.
Mr. Kosilek’s noisy insistence on receiving a sex change as treatment for his gender identity disorder could well result in conservative legislative reactions, and ultimately less receptive judicial environments for things like habeas claims about more egregious physical abuse of inmates. And if that happens, it strikes me that cases like Mr. Kosilek’s result in a net negative for prisoner’s rights.
On the other hand, my inner liberal idealist insists, shouldn’t I be particularly concerned about the rights most likely to be infringed? What use is a system of prisoners’ rights, if it stops short of actually protecting rights that might be controversial? And on the same vein, I’m at least somewhat wary of signing on to anything that looks like a retreat in prisoner’s rights. Retreat is seldom good, is it?
Finally, though, my inner conservative speaks, and argues that maybe prisoner’s rights are oversold, anyway. Does the Constitution really require a sex change for an inmate? Maybe that’s a standard remedy for that disorder in the 90210 zip code, but most people with that disorder get along okay, don’t they? Just how gold-plated does our inmate care have to be, anyway? Isn’t there some reasonableness cap?
(The inner pragmatist speaks up again here, and wonders how much broad drug-treatment intervention could be financed for the price of one or two costly surgeries).
So I’m not sure where I stand, in the end. I suspect that the news account of the case will result in a few predictably vitriolic and shrill conservative responses, which will be easy to parry and mock. On the other hand, there are at least some valid concerns underlying the conservative critique of high-cost inmate care — it can’t be high-dollar surgeries for everyone everywhere, can it? If the reasonableness line happens to exclude Mr. Kosilek, I doubt for now that I’ll be too sad. (Though perhaps my co-bloggers or our commenters can make arguments, one way or another, to convince me otherwise).