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Free sex change for prisoner is distasteful, but justified

The public is certainly justified in feeling outraged that a convicted murderer might get a sex-change operation at taxpayer expense, while private insurers are free to deny coverage to law-abiding citizens who seek such surgery. Basic fairness suggests that prisoners shouldn’t get better care than law-abiding citizens — but the sad reality is that they do all the time. Prisoners are covered; more than 15 percent of the national population is not.

But federal Judge Mark Wolf’s painstakingly argued decision makes a persuasive case that, under the law, the prisoner now known as Michelle Kosilek is entitled to the surgery because it is medically necessary, not an elective procedure. Any backlash, as understandable as it may be, should be directed instead at the vast inequities in the health care system — and at the lack of clear standards about how far states must go in providing health services to prisoners.


In 1990, Michelle Kosilek, then known as Robert, strangled his wife and left her body in the trunk of a car in the parking lot of a North Attleborough mall. Kosilek was convicted of first-degree murder and sentenced to life without parole. Two years later, Kosilek requested treatment for a gender identity disorder. In the subsequent two decades, Kosilek has been in an ongoing fight with the Massachusetts Department of Correction about, first, whether she was entitled to receive hormone treatment, and, now, a sex change. On Wednesday, Wolf ruled that the Correction Department is committed, through longstanding policies, to provide inmates with medically necessary treatment, and that, based on extensive testimony by prison doctors, a sex change is the “only adequate treatment for [Kosilek’s] condition.”

Thus, Wolf decided, failing to address the underlying cause of the gender identity disorder, rather than just providing hormones, which only treat the symptoms, was unconstitutional under the Eighth Amendment, which forbids the denial of medically necessary treatment.


The problem, of course, is that Kosilek would almost certainly have to pay out of pocket for this procedure if she weren’t in prison. Sex-change operations are not covered by Medicare, Medicaid, MassHealth, or by most private insurance plans. No one doubts Kosilek’s disorder is serious. She has attempted suicide and castration. It just seems incongruous that one of the few ways Kosilek can get this procedure done for free is by being a felon.

But society has had to look beyond these types of arguments before. Why, after all, should a prisoner receive three square meals when law-abiding children go hungry? Overall, Massachusetts is obliged to provide medically necessary procedures to its inmate population, nothing more or less. Sometimes, that takes the form of cancer care, sometimes an HIV drug. The outer limits of this obligation aren’t well defined; one can imagine prisoners who could come to need far more expensive treatments. But the obligation exists, and it applies to Kosilek’s case, as anomalous as it may seem.