"Conflicted Emotions About Kosilek Case"

Petitioner is a transsexual who is currently serving a 20-year sentence in an all male federal prison for credit card fraud. Although a biological male, petitioner has undergone treatment for silicone breast implants and unsuccessful surgery to have his testicles removed. Despite his overtly feminine characteristics, and his previous segregation at a different federal prison because of safety concerns, see [lower court opinion], prison officials at the United States Penitentiary in Terre Haute, Indiana, housed him in the general population of that maximum security prison. Less than two weeks later, petitioner was brutally beaten and raped by another inmate in petitioner's cell.

This was from a passionate concurring opinion by Justice Blackmun in a prison rights case (with a mixed result as this article marking its twenty years anniversary notes). It shows that sometimes transsexual rights arise in the prison context though someone there for credit card fraud is more sympathetic than a murderer.  As the article notes, ironically Justice Souter in the more restrictive majority opinion avoided pronouns while Blackmun used masculine ones ("him").  The use of the feminine by the defense was still notable though these days insisting to use "him" there would be mostly left to conservative voices.

Michelle Kosilek's long and convoluted journey continued today when the First Circuit* decided en banc (showing its size, the ruling was 3-2) to overturn a ruling that allowed her to have sex reassignment surgery (SRS).  The Reagan appointed district judge had determined that given the facts of her case and the decisions of the institution's own doctors, that was compelled by the 8A. The details are pretty blatant -- including a suicide attempt -- and your garden variety transsexual might not have such a compelling argument. One dissent noted this -- we trust district judges with fact-finding and the decision was reasonable. Such would be my feeling. The other dissent was more passionate, ending with a comparison to Korematsu and Plessy. 

Taking it as quite possible that the nature of the condition here motivated the majority opinion, thus it is a black mark for transsexuals generally, I think comparing it the nation-wide segregation or the interment of a hundred thousand or so people is a bit much all the same.  The case is pure tabloid fodder -- paying thousands of dollars for a sex change for a convicted murderer. But, there is a minimum standard of care required when you imprison people.  The doctors themselves deemed this required. It wasn't just a prisoner saying "he" wanted to look pretty or something. Tabloid reaction alone shouldn't be grounds to overturn expert findings.  Seems arbitrary and discriminatory.

I have read a bit about transsexualism and won't claim to be some sort of expert on the matter. The flexibility of gender is pretty clear to me. The next step where you actually have a sex change operation is the big one. But, secondary sexual characteristics are not the only reason, I'd think, that I am a male.  It does ultimately seem to arise in the brain.  The matter is somewhat fascinating to me -- the complexity of the human animal and all.  Anyway, the medical experts here should be trusted.  Sorry, Sen. Warren. IOW, the details have to be taken as they come. Chelsea Manning in some fashion might have  different issues.  Case by case. 

Hard cases are said to make bad law. We should not let cases like this color too much the fight for transsexual rights generally.  Sex change operations are the most extreme issues here in an area with a range of concerns, including the right to voluntarily transition, live as a gender that does not match your apparent sex and so forth. Same sex marriage is one area that arises here -- for a subset, transsexuals are involved, including those states that legally deem chromosomes to be the test.  In some states where SSM is not recognized, this has the somewhat crazy result of a de facto SSM being allowed, since one party is legally not the sex most people think. Life does have its absurdities.

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* The 1CA basically covers New England and its small size probably explains why Puerto Rico was tossed its way, even though that area to me seems more appropriately combined with the Second Circuit (NY etc.).  It at times appears to be somewhat conservative, so it is not totally apparent to me if it would in fact overturn the anti-SSM Puerto Rico district ruling.