Just a brief remark on Joe’s recent post regarding prisoner sex change operations. I think that Professor Kaimi Wenger’s post on this topic is a must-read. A taste:
Mr. Kosilek’s noisy insistence on receiving a sex change as treatment for his gender identity disorder could well result in conservative legislative reactions, and ultimately less receptive judicial environments for things like habeas claims about more egregious physical abuse of inmates. And if that happens, it strikes me that cases like Mr. Kosilek’s result in a net negative for prisoner’s rights.
On the other hand, my inner liberal idealist insists, shouldn’t I be particularly concerned about the rights most likely to be infringed? What use is a system of prisoners’ rights, if it stops short of actually protecting rights that might be controversial? And on the same vein, I’m at least somewhat wary of signing on to anything that looks like a retreat in prisoner’s rights. Retreat is seldom good, is it?
Finally, though, my inner conservative speaks, and argues that maybe prisoner’s rights are oversold, anyway. Does the Constitution really require a sex change for an inmate? Maybe that’s a standard remedy for that disorder in the 90210 zip code, but most people with that disorder get along okay, don’t they? Just how gold-plated does our inmate care have to be, anyway? Isn’t there some reasonableness cap?
I guess what I draw from Professor Wenger is that it is important not to let the visceral ridiculousness of this case get in the way of reasonable analysis. As Joe’s post indicates, two of the DOC’s own experts testify that this operation is “medically necessary.” One can advocate a “tough-luck” approach to the correctional system (though I think depriving inmates of admittedly necessary medical care is pushing it), but this is precisely the type of case where we need to risk the (overwhelming) urge to mock and dismiss the claim.
Not a critique, just a caution.