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Michelle Kosilek, Gender Non-Conformity, and Prisoner Rights

After appealing her case for nearly ten years, Michelle Kosilek, a Massachusetts inmate serving a life-sentence for a murder she committed in 1990, finally won the right to sexual reassignment / gender confirmation surgery subsided by the Massachusetts Department of Correction. A district court recently ruled that Michelle Kosilek, born Robert Kosilek, is entitled to her procedure on the grounds that it serves as the “only adequate treatment” for her “gender identity disorder.” (The nomenclature makes me cringe.) The absence of sexual reassignment / gender confirmation surgery, the court found, would violate Kosilek’s Eighth Amendment right to protection against cruel and unusual punishment.

Over a week has elapsed since this story first broke and in that time I’ve read around fifteen articles—some supportive, some antagonistic, and all clunky in their application of transgender terminology—on Michelle Kosilek’s victory.

Now, although I’m by no means a scholar of gender or sexuality, I’m sorry to say that most op-eds miss the point entirely.

At its core, this story isn’t about a unitary publicly-financed medical procedure for a Massachusetts inmate; all prisoners (county, state, federal) benefit from taxpayer-subsidized health care plans that cover extraordinarily expensive surgeries. I ask: are taxpayers really that apoplectic about paying for an M->F sexual reassignment / gender confirmation procedure that costs between $10,000-15,000 when they already fork over, on average, roughly the same for already existing, legally required inmate health care? Have a look:

Situating the court’s ruling as a matter of public “fiscal” concern has served as a marvelously successful diversionary tactic.

The real debate here is about the public’s perception of normality, disorder, and gender non-conforming individuals. What does it mean, I wonder, that Michelle Kosilek’s legal team won their case only by framing their appeals in and through the language of “disorder?” “Gender identity disorder,” after all, is formally classified as a “medical disorder” by the International Statistical Classification of Diseases and Related Health Problems (ICD-10) and the Diagnostic and Statistically Manual of Mental Disorders (DSM-IV). Could Ms. Kosilek have won her lawsuit without leaning on the rhetoric of pathology, deviance, aberration?

Simply put, the public’s general vitriol of Ms. Kosilek’s legal demands hinges on collapsing the distinction between what is “normal” and what is “common.” Arguments grounded in appeals to the “common” should not a priori invite assertions of normality. Normality is a question of value; commonality is a question of statistic variation.  (As an aside, I’m fully aware that Kosilek’s conviction of murder strongly attenuates public notions of deservedness and so I wonder how reactions to Kosilek’s lawsuit might differ had she been convicted of a non-violent crime.)

Contrary to popular belief, that which is deemed socially “normal” relies on a series of political judgments that may not actually reflect what is “common.” Here’s an example: Although it’s normal to vote in a presidential election (voting is a subjective value maintained by our collective support of the democratic process), it is not common (typically less than 50 percent of eligible voters actually cast a ballot). In order to accept the position that (cis)gender or (hetero)sexual conformity is “normal,” however, it must first be naturalized. And a norm can only be naturalized if it’s thought of as a fact, rather than a value.

But this story isn’t about immutable social facts; it’s about the evaluative criteria we use to mark human bodies as “normal” or pathological. It’s a story that demonstrates which types of bodies and behaviors are politically legitimate and worthy of the rights, immunities, and protections guaranteed by the Constitution.

Prisoners are people. Transgendered individuals are people. And if the Eighth Amendment doesn’t protect all people, then it’s quite frankly unconstitutional.

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