Supreme Court Refuses Kosilek Case: Is That Really a Good Thing?


PrisonThe Washington Blade reports that on Monday, the U.S. Supreme court declined to hear the case of Michelle Kosilek, an inmate who had sued to have her Sex Reassignment Surgery covered by the state of Massachusetts as a medically necessary procedure.

Michelle is serving a life sentence and is required by U.S. law to have her medical care provided by the prison system. According the Blade, she had mutilated herself and twice attempted suicide without the surgery. An appeals court had previously ruled that she is not entitled to the procedure. The basis of that decision was that current medical standards do not mandate such a procedure and that the court should not overrule medical practice.

The Supreme Court’s denial leaves Kosilek without legal options.The lower court decision stands, so the state does not need to provide surgery. She is a prisoner, and therefore cannot change health care providers or go elsewhere, even were she free to choose an occupation paying enough to afford it. In short, she cannot have SRS.

Surprisingly, to me at least, the transgender community is of mixed mind on whether Kosilek should receive her surgery. The National Center for Transgender Equality supported the case against Massachusetts when it went before the First U.S. Circuit Court of Appeals. In their press release, they make the point that “people who are incarcerated and cannot provide for their own care have an unquestionable, constitutional right to adequate medical care.”

However, many transgender people disagree. On this forum, one transgender woman said, “No convicted felon should get a free SRS unless it is also free to all law-abiding transsexual citizens of this country.” “It should not be available to anybody at tax payer’s expense unless it is under a medical insurance program for which the recipient has paid premiums,” said another.

While no group as large as the American transgender community will ever completely agree on anything, we are shooting ourselves in the collective foot if we don’t vigorously oppose the circuit court’s ruling.

While many see a march of progress inevitably leading to insurance coverage for SRS as a medical necessity, that is far from guaranteed. We could hope doctors finally understand and acknowledge the crushing toll gender dysphoria takes on so many of us but without an outcry from we who really understand, expecting it to happen on its own is, at the very least, optimistic.

Of course it’s only natural to begrudge something we had to earn when someone else received it free, especially if, as in Kosilek’s case, it came from a criminal conviction. It turns our sense of rewards and punishment on its head. As one forum member put it, “This may mean that gender dysphoric people who can’t afford medical treatment and SRS could become criminals and go to prison for treatment.” The feeling is understandable that folks jailed for wrongdoing should wait their turn behind those of us who’ve worked hard for it for years.

But lifesaving medical care is a right in this country, for those in prison and those who aren’t.

A right.

Not a privilege. Not something to be taken away as punishment. Not something you need to prove yourself worthy for. Not something we get to decide who gets and who doesn’t.

Would we deny Kosilek an appendectomy? If she had a life-threatening aneurism, would we deny her surgery to repair it? Clearly those would not be the actions of a humane civilization.

Therefore, the question that matters, the only question that matters is whether Kosilek’s SRS is medically necessary. If it’s lifesaving surgery, she must have it. There’s no middle ground, no room for waffling. The only choice is to offer it to her.

So the questions the courts, and the transgender community needs to answer is this:

Does she need SRS or is it just something that would be nice?

We need to think carefully about the consequences for all of us if there is any answer other than, “Of course she does.”


About Author

Suzi Chase writes about transgender issues through both fiction and non-fiction. She has had careers in teaching and software engineering and has raised two children.


  1. My vote goes with “Of course she does.” Anything else goes against basic humanity in that Michelle Kosilek plainly is dysphoric and in need of GRS. She’s already being punished by being in jail, why pile on some more punishment to make her feel even more miserable.

  2. MichelleZelda on

    I can see the point of the “Of course she does” side of it, but I don’t think she is necessarily entitled to it. Perhaps down the road or something, with good behaviour, but a free pass for surgery would open up the floodgates for other people in the community to commit crimes to get their surgery done on the taxpayers’ dollar. I’m trying to see it from my understanding of the American healthcare system.

    • That’s how I see it too Michellezelda. If they came up with some kind of protocol for allowing elective surgery that could be done if they have money and with some kind of good behavior incentive? But then the pendulum swings the other way for prisoners wanting any kind of elective cosmetic procedures if they can afford it. And then managing this new protocol? Oh, I don’t think that will ever get off the ground.

      it would just have to come down to redefining GRS as a medically necessary procedure first that IS covered by most insurance companies. Until that happens, there is no way prisons should have to pay for it.

      Some states Do though…..

  3. Veterans only receive HRT and psychological therapy… GRS /SRS is not provided for us but yet a inmate serving life is demanding free surgery? On top of that, veterans still pay out of pocket for private health-care and for use of VA services. And if we don’t have our own insurance we must pay the IRS that penalty Obamacare produced, on top of the fees we must pay to the VA, which depends on any disabilities and our income. I don’t support this lawsuit at all. She doesn’t deserve another dime out of my pocket.

  4. *
    This case should spark further calls for some form of universal health care.

    It is absurd to me that other transsexuals would be so jealous of another who managed to secure her GCS / SRS no matter how difficult her circumstances. Kosilek would hardly be getting her surgery for ‘free’; with universal coverage, this specious counter-argument against Kosilek would fall apart for obvious reasons.

    Yes, healthcare is a right guaranteed to all under our Constitution’s ‘General Welfare’; thus, yes, GCS / SRS is a right and a necessity, not a convenience, even when incarcerated for whatever reason.

    Put yourself in her shoes, er, prison slippers.

  5. If She is diagnosed with Gender Dysphoria then She should be allowed SRS. All Trans Women, whether Pre-Op or Post-Op are all too well familiar with GD and all of it’s associated problems. Give Her the Surgery! Medicaid/Medicare patients get SRS for Free or reduced cost and while they are not felons the SRS is still paid for by Tax Payers. It’s not that big of an expense so again, give Her the Surgery!

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