By Glenn Cohen
Last week, as I mentioned before, Judge Wolf (D. Mass) ruled that Michelle Kosilek, who was born as a man but has received hormone treatments and lives as a woman in an all-male prison, was entitled to the sex re-assignment surgery that the Department of Corrections’ doctor ordered as the treatment necessary for Kosilek’s Gender Identity Disorder. The court found this result compelled by the 8th Amendment of the U.S. Constitution after accepting a finding that Kosilek was at risk of serious self-injury. Kosilek is serving a life sentence for murdering his/her wife.
The ruling has been very controversial. The question is why? On one level this might be thought of as a general reflection of antipathy towards murderers, or towards the transgendered. But I think if we cut deeper there are three more interesting things that might be going on. I say “might” very explicitly, treat these as hypotheses, and certainly don’t mean them to be exhaustive.
Here they are:
Reaction 1: “I am working my A—off to afford insurance for my family, and murderers are getting it for free.”
One source of frustration with this ruling is the idea that prisoners are entitled to health care provided by the state when other individuals have to struggle to buy it. This is in part a result of the Court’s 8th Amendment jurisprudence, but the logic behind it is fairly easy to state: when the state blocks all other access to health care, it must provide that health care to those prisoners. Like so many inequality arguments, there is both a leveling down solution (prisoners should not get sex re-assignment) and a leveling up (everyone with severe gender identity disorder should have access to the procedure). I think one particularly interesting reaction of the latter variety stems from the fact that in many states Medicaid won’t fund the procedure, such that it is better (in this respect) to be in prison than a poor but law-abiding citizen.
Reaction 2: “I understand that we need to treat these murderers for HIV or cancer, but c’mon, the guy wants to be a girl. That’s F-cked up. He needs to see a psychiatrist, not a surgeon. What you do with your money is your business, but there is no way my tax dollars should go for THAT.”
In more polite terms, we might say there is a kind of Cartesian dualism at work in this reaction. There is physical illness: germs, cancer, gangrene. Then there are people who just don’t like their lives. While it may be less socially acceptable these days to have this attitude towards sex reassignment and gender identity disorder, this reaction sometimes bubbles up in one of my classes in which I provide my students a reading on Apotemnophilia, a condition in which people are obsessed with the idea of cutting off their limbs. I have blogged before about some very hard questions relating this disorder to gender identity disorder and body dysmorphic disorder. In general, as someone drawn to welfarism, I find strange many of the law’s ways of treating bodily integrity as exceptional. All conscious experience is mediated by the brain, and all inputs thereto are physical in some sense. Whether the route to that experience is via contact with my body or another means seems beside the point to me, something I will perhaps write up in greater detail another time.
Reaction 3: “He is supposed to suffer. I am happy this is happening to him.”
One of the things that is interesting about this reaction is that the suffering of Kosilek resulting from having gender identity disorder in prison without reassignment is an unintended if predicted effect of Kosilek’s imprisonment. In a recent Legal Theory article, Adam Kolber has recently asked whether such unintended punishments “counts” for criminal law theorists, , and as usual makes some provocative and fascinating observations. Maybe we can get him to blog about it for us soon….
