Pandering in the Massachusetts Senate Race

As Arthur S. Leonard reports , the chief judge of the US District Court for Massachusetts last week ordered that the prison system in that state provide a transgender inmate with gender reassignment surgery. Michelle Kosilek is serving a life sentence, without possibility of parole, in the murder of the woman she married while living as a man. Noting that Kosilek has attempted both suicide and self-castration, the judge found that medical professionals working in the prison system consider the surgery medically necessary.

One of the most hotly contested US Senate races in the nation is underway in Massachusetts, and both candidates quickly criticized the judge’s ruling. Republican incumbent Scott Brown, who is trying to trim his conservative sails to match the state’s liberal electorate, especially with President Barack Obama on the ballot, nevertheless wasted no time in terming the decision “an outrageous abuse of taxpayer dollars.” His challenger, Elizabeth Warren, is a strong progressive and a Harvard law professor as well, so her statement was more temperate, even if its thrust paralleled that of Brown’s. “I have to say, I don’t think it’s a good use of taxpayer dollars,” she told a local radio station.

Both statements were unfortunate, pandering not only to society’s contempt for violent offenders but more significantly to its tendency to view transgender health issues as frivolous.

A court ruling in favor of a convicted murderer, of course, is not an opportune moment for an LGBT rights advance. But important principles are at stake here that transcend the specifics of this case. Given the disinclination in the Republican Party these days to engaging in nuanced discussion of any issue on which there is a quick crowd-pleasing answer, Brown’s response is not altogether surprising. It is more disappointing that Warren, whose work in the past few years on financial reform issues in Washington has demonstrated a laudable respect for intelligent analysis and humane values, felt the need for a craven response.

Our society imprisons offenders who break the law and threaten the public welfare. There is a broad consensus around stiff penalties when those offenses involve violence, severe injury, and death. Even regarding the death penalty, which most civilized nations reject, Americans have historically shown support, even if faith in that ultimate remedy has declined in recent years

Nobody, however, seriously argues that once imprisoned, inmates should not have their health needs attended to. An inmate with cancer would not be denied chemotherapy, no matter how expensive. Even in cases of non-life-threatening ailments –– broken bones, serious sprains, and the like –– we would not expect prisoners to spend the rest of their lives with deformities. Nor would anyone demand that a prisoner with bipolar disorder or another mental illness that is treatable live with the psychological pain it entails.

The Supreme Court has been quite clear that the Eighth Amendment’s bar on cruel and unusual punishment requires that prisons not show “deliberate indifference” to serious medical conditions suffered by inmates. There is irony here. A society that does not yet clearly have an obligation to provide health care to those outside of prison has one to those behind bars. That is a burden that society accepts when it takes away a person’s freedom, no matter how justified the choice of incarceration is

In the end, this debate is not about convicted killers getting expensive medical care. Or about them getting treatment they would not be owed if they had never committed their crime.

Instead, it is about whether we, as a society, take seriously the health needs of our transgender fellow citizens. When Scott Brown uses the word “outrageous,” he is talking much more about society paying for gender reassignment surgery than he is about it spending money on care for a killer. We’ve never heard a peep from him about other expensive medical treatments for violent offenders, even though, as with them, Kosilek’s care is deemed medically necessary.

This is a point we wish Warren understood and had the courage to articulate. We hope that conversations with experts in gender identity health issues can help bring her around.