Appeals court: Sex reassignment surgery must be provided

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If anybody wants to understand why I find that line of argumentation funny, let's look at the individual decision-makers. Looking at the individual decision-makers will show that that argument is fantasy and has no basis in reality:

1.) The judges in the Kosilek and other cases. First, case law establishes that neither cost nor controversy is a legitimate reason to deny prisoners the only minimally adequate treatment for their serious medical needs. Second, judges have to rule on the case at hand. Any judge that would deny an injunction on the basis of, Well, educational and rehabilitative programs would be better, would get blown out on appeal. Judges had to attend to the facts and the law in the case, and nothing more.

2.) The activists for transgender rights. Trans people and our allies fight for our rights and we've established groups and enlisted the services of other groups to do so, because it's something we care very much about. Talking about the starving children in Darfur won't change that, and it shouldn't.

3.) The insurance companies. When insurance companies write categorical exclusions for transgender health care into their policies, they aren't thinking, That's because educational programs would be better. Rather, they know the law and regulations would permit it and they know that it would allow them to minimize claims without sacrificing customers.

4.) State insurance regulators. When the state insurance regulators determine that exclusions of transgender health care would violate their state anti-discrimination laws and issue regulations prohibiting such exclusions (as they have in 5 states and DC), I'm certain, But educational programs would be better, never crossed their minds. Rather, they were dealing with discrimination and worked to put a stop to it.

5.) The Departmental Appeals Board (DAB) in the HHS. National coverage determinations (NCD), such as "NCD 140.3 Transsexual Surgery," need to be based on the medical and psychiatric research. When the DAB found that the NCD excluding sex reassignment surgery was based on old and outdated evidence, they made a ruling indicating so and moving onto the next step of the process. Nothing about Educational opportunities would be better ever came up, and why on God's green earth should it have?

6.) The HHS itself. Last year, the HHS opened up comments to consider ways to address inequalities in health care and many of the comments addressed transgender issues, including unequal access to non-transition-related care and the common lack of access to transition-related care. The people at the HHS are not likely to think, Well, we could address inequalities in trans people's access to health care, but what about educational and job programs instead? Rather, they are going to look at what their options are to determine where inequality is and work to address it where they can, where doing so is within their authority.

I really think the kind of position that I addressed above is not helpful, and does nothing to further debate. It is a denizen of Cloudcuckooland that bears no relation to what we can actually do to solve problems of inequality.

Educational and job programs aren't going to help much when someone has serious mental or physical medical issues that affect their functioning. They need treatment for that.

Education for prisoners is a good and important thing because I've read it can help to greatly reduce recidivism rates but this isn't an either/or thing.

I'm not disagreeing that people can suffer trapped in their bodies,if the surgery would make them feel happy about themselves I wish they could have it.Im just not where the line should be drawn.Won't you have overweight inmates claiming now they need gastric by pass because they suffer from poor body image?
I didn't just mention education but also mental health resources.Many people in prisons are there because they never had mental health care or have substance abuse programs.
I don't believe there are any starving children in prison.

Actually that may be necessary for some prisoners if their weight is harming their health and all other attempts at weight loss has failed.

I'm kind of against it as I've read too many stories about people having lifelong health problems or even dying because of that surgery and I believe in fat acceptance but there are some people that can benefit from that surgery I suppose.

Prisoners have a right to have their medical and mental health problems treated.

I get that.I just don't know how anyone would ever decide who gets what surgery or who pays for it.people could claim they need rhinoplasty because their nose causes them to feel inferior,or that they would have more self esteem with breast implants.And to them it may really cause distress.I'm not saying it's the same as being trapped in the wrong body.

I don't know much about rhinoplasty or its indications; nevertheless, for a court to have ordered sex reassignment surgery for Kosilek, in accordance with case law, then 5 criteria must have been met, which make up the objective and subjunctive prongs of the deliberate indifference test:

OBJECTIVE PRONG
1.) The inmate has a serious medical need.
2.) There is at least one minimally adequate treatment for that serious need.

SUBJECTIVE PRONG
3.) The prison officials must know about the serious medical need and the minimally adequate treatment or treatments for it, as well as a substantial risk of harm resulting from not providing it, either from report from the prison's doctor or where the officials would reasonably infer it.
4.) There is no valid penological purpose for denying at least one of the minimally adequate treatments. Cost and controversy do not count, except that where there are multiple minimally adequate treatments then the prison officials may pick the one most convenient to the operation of the prison; security concerns and safety risks may count, but they must be reasonable and made in good faith.
5.) Even with the first 4 criteria met, the prison officials have been and are likely to continue to ignore the inmate's need for medical care, as specified in the 1st and and 2nd criteria.

If all 5 criteria are found to be met at trial, then the prison officials are found to be violating the Eighth Amendment's prohibition of cruel and unusual punishment and the court must issue an injunction ordering that at least one minimally adequate treatment for the inmate's serious medical need be carried out.

In Kosilek's case, here is how the courts have said how the deliberate indifference test in her case was met:

OBJECTIVE PRONG
1.) Kosilek has severe GID, resulting in severe psychopathology, including attempts at suicide and auto-castration.
2.) The prison's doctors have found that the only minimally adequate treatment for Kosilek's GID is sex reassignment surgery (SRS) in addition to continued psychotherapy and hormonal therapy, in accordance with the standards of care which are established in the medical and psychiatric literature.

SUBJECTIVE PRONG
3.) The prison's doctors notified the prison officials that criteria 1 and 2 were met and that not taking action would likely lead to a deterioration of Kosilek's condition, with the potential for more attempts at suicide and auto-castration.
4.) It was clear that the prison officials had made up their minds at the outset that they would not willingly provide SRS to Kosilek. As the District Court noted in its ruling, Commissioner Dennehy had "testified that she would rather retire than obey an order from the Supreme Court to [provide SRS to Kosilek]" (Kosilek v. Spencer, District Court for the District of Massachusetts, p. 12); Dennehy also lied under oath about her knowledge as specified in criterion 3 (p. 99). (If you're wanting to establish that you're acting in good faith, that kinda crud is not the way to go. Stuff like that likely greatly hurt the credibility of the prison officials in the eyes of the judge.) As well, the court found that the prison officials made up their mind about not providing SRS at the outset and did not follow the established procedures for determining whether providing SRS to Kosilek would present a security concern or safety risk. The court thus found that the reasons given for denying Kosilek SRS were neither reasonable nor made in good faith, and so the court could not defer to the prison officials. (For more details, please see the link to my blog post at the bottom of my post. A link to the ruling is also provided there.)*
5.) Considering the past behavior of the prison officials, it was clear that without an injunction, they would continue to deny Kosilek the SRS she needs.

Therefore, the court found that the prison officials were engaged in deliberate indifference in violation of the Eighth Amendment's prohibition of cruel and unusual punishment and had no choice but to issue an injunction.

I don't know much about rhinoplasty, or how prison officials could be deliberately indifferent about it, but if you have more details to provide, I'd be happy to hear them.

*I review the security concerns here:

http://beneficii.blogspot.com/2013/12/a ... -used.html

If someone had trouble breathing because of a deviated septum I agree they would need corrective surgery for that,but not because they think their nose is unattractive.My thoughts on the slippery slope is that other inmates that don't really have valid issues for any type of elective surgery might try to get them by saying"well they had this done,so now it's my right to have plastic surgery because I don't like the way I look."
I am not trying to trivialize what someone is going through that really feels they have no way to be happy but to have a sex change.

They can get a court to order it if their case meets the long-established deliberate indifference test (see post above). If not, then no court would order it to be provided. I don't think the slope is as slippery as you worry it might be.

I don't think I have to. Medical professionals from all over the globe have done their research on this condition and devised a way to treat it. It is their opinion that counts. Yours is irrelevant in this matter.

Wait until you have gallstones one day. They don't have to be treated. Unless the gallbladder becomes infected, cholecystectomy is just an elective surgery. It's entirely possible to live with severe gallstones symptoms. You'll merely spend much of your time sitting there holding your belly and SCREAMING your lungs out, but it won't kill you. It's just pain. Physical, emotional, it's all the same in the end.

The crucial difference is that I've yet to hear from a single gallstone sufferer who opted to end his own life. Whereas countless transgender individuals are driven into suicide by severe gender dysphoria and depression (the latter partially caused by the lack of acceptance and understanding, so thanks a lot for contributing to a trans-hostile environment). Maybe you should tell their grieving relatives that no GID sufferer is going to die without surgery.

I don't think we're talking about the same degree of emotional pain and distress here. Nor are we talking about the same category of medical problem, seeing that GID is very much a biological condition. Brain scans show that transgender individuals really have characteristics of the opposite sex on the neurological level. Meaning that "born/trapped in the wrong body" is not just a figure of speech, as it is in the case of a thin person trapped in an obese body. Transgender people really do have a body that produces the sex hormones of the opposite sex and develops the wrong set of genitals.

As for your earlier viagra argument: My initial impulse was to agree with you, probably because we've all been raised in largely Christian societies that think of an erection as something dirty and sexual activity as a sinful luxury rather than a biological need. But upon further thought, this too is a matter of impaired bodily function and not just a self-esteem issue. A penis that can no longer perform in the way that a healthy male genital organ does is as much of a medical concern as a deviated septum causing impaired breathing, or walking difficulties caused by knee joint weakness. None of this is life-threatening, but that goes for the vast majority of medical problems.

Finally, you mentioned spending priorities in another post. I think that's a false dilemma. The US is the richest country in the world in terms of public wealth and GDP. Far less wealthier countries have universal medical care inside and outside of prisons, and better schools systems with "free" (tax-funded) university education to boot. Not to mention more social equality, almost no poverty and very little crime. This shows that money is not the issue here, money distribution is. Both within the American population with its insane gap between rich and poor, and within the federal budget that is largely wasted on defense and war spending.

The fabricated outrage about things like GID treatment in prisons is but a smokescreen to detract voters from the real problems. Problems such as utterly pointless wars with insane ongoing costs, or the sad fact that the people who own your elected officials don't pay anything near their fair share of taxes.

So, for clarity, are you suggesting that the State's exposure for medical care of prisoners is limited to illness or injury arising while the prisoner is incarcerated; or medical conditions that are potentially lethal?

I have suffered from depression so badly that I would have done anything I thought it would have helped,I would never wish that feeling of misery and hopelessness on anyone.If anything can be done to help someone out of that pit,I agree it should be done.
I agree that most of our spending goes to the military and not to those who need assistance,be it health care,food or housing.
As for Viagra,my issue is that the pharmaceutical companies spend their time inventing drugs that they can get a big profit off of,but not drugs like new treatments for malaria because people in the third world don't have cash or nice insurance plans.
As I said before,my worry is that others will try to get some type of surgery just because they want it,not because they need it.That does not mean I don't want the people who really need the help to not get it.
People can also be so miserable with their bodies for many reasons,I went to school with a girl with anorexia.She really was a skinny as a concentration camp victim.Her suffering over her body was tremendous,you can't say she didn't have extreme emotional distress over it.

There are already plenty of checks on this kind of behavior: the prison doctors, the medical literature, and the prison officials themselves (subject to oversight by the courts). Also, the District Court as early as 2002, in Kosilek I, already determined that sex reassignment surgery may be necessary in certain cases. The same theoretical determinations were made in Fields v. Smith (2011) and De'lonta v. Johnson (2013). Even with all this, there has not been an explosion of demands for nose jobs or tummy tucks or anything of the sort.

If the prison doctors and the medical literature support an inmate getting a specific treatment, which is approved by the prison officials (or where the prison officials are found in court to be deliberately indifferent for not providing it and therefore in violation of the Eighth Amendment), would you have a problem with it? In what types of cases? Please be specific as to your criteria.

I don't have any problem with people getting help for things that truly distress them.I don't think someone should get penis enlargement surgery because they feel like less than the average man.Not saying this has happened.I have seen Medicaid defrauded by slimy individuals.A former friend had a deal with a chiropractor and they bilked Medicaid and she got enough ill gotten funds to get a new vehicle.
And some people fall through the services,I can't get the neurological testing my psychiatrist wants me to have because no neurological physician in this area accepts Medicaid and I don't have the twelve hundred dollars to pay for myself.I know I won't suffer and die without the testing,but I think it would give me some closure and more understanding about my own issues.
I truly wish that everyone had the health care they needed.
Sometimes I do have a problem getting what I think across,I think in a combo of images and words,sometimes I can't really express what I mean to say in words.In no way did I mean to come across as uncaring about the suffering of others.

Miss Lizard,

I agree. Our health care system is in poor shape.