Sunday, November 3, 2013

Does the 8th amendment require providing sex change operations to inmates?

I recently stumbled upon an interesting article giving an update on the case of convicted murderer Michelle Kosilek. Kosilek, who was born a man but suffers from gender-identity disorder, is serving a life sentence for strangling her wife. The article can be read here. while my original blog post on the subject can be read here.

The author writes "we impose conditions that cause pain and suffering—when, for instance, we withhold surgery that would bring a prisoner’s body into harmony with her consciousness"

I think this glosses over an important distinction between deprivation and infliction. Both can sometimes count as cruel and unusual punishment, but one is worse than the other. Actively inflicting pain on someone with a weapon or tool or device of some sort seems different to me, and more cruel, than the failure to give them something which might relieve pre-existing distress. The state did not give this woman gender identity disorder; she's had it since birth, she lived with it for the first 41 years of her life, and had she not murdered someone she might continue to live with it to this day. The state is not the cause of her discomfort.

Another important and related distinction is between prevention and provision. If this woman, or other charities/family members acting on her behalf, had the financial means to pay for this treatment on their own, and the State of Massachusetts was physically preventing that by refusing to allow her out of jail for the operation, perhaps that would be cruel. Keeping the woman in her uncomfortable state on purpose, to intentionally exacerbate her discomfort, is just unnecessary. But the woman is not asking for permission to temporarily leave prison so that she can receive this treatment on her own dime; she's demanding that the taxpayers of Massachusetts buy it for her, that they in fact confer a boon upon her which she would not have received at their expense had she never murdered someone in the first place. Considering law-abiding transgender people suffer due to their inability to afford this operation every day, and the government is not legally obligated to provide it to them, this strikes me as problematic.

Also, there is a slippery slope argument. If “adequate” healthcare is includes sex change operations, where is the limit on what prisoners are entitled to at taxpayer expense? Do we have to pay for preventive care? What about daily multivitamins to ensure they get enough calcium and don’t develop osteoporosis? Must we provide dental floss and Listerine and foot powder and sunblock and condoms and chapstick and Vaseline and Tylenol? These things are “healthcare” in that they can potentially improve one’s health or alleviate irritating bodily symptoms, but they’re still inaccessible luxuries to most of the world’s inhabitants, and we certainly wouldn’t equate the government’s failure to provide it to them with the infliction of a “cruel and unusual punishment”. If the government is to bequeath them on a group of people as an act of charity, you’d think inmates should be last on the list.

No comments:

Post a Comment