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Court: Trans inmate must receive gender reassignment surgery

National LGBT Bar Association, Gay News, Washington Blade

The First Circuit Court of Appeals ruled a trans inmate must receive gender reassignment surgery. (Image via wikimedia)

A federal appeals court ruled on Friday that a transgender inmate incarcerated for murdering her spouse must receive taxpayer-funded gender reassignment surgery that was prescribed by her doctors.

In a 2-1 decision, a three-judge panel on the First Circuit Court of Appeals ruled that denying the procedure to Michelle Kosilek, who was sentenced to life in prison for murdering his spouse in 1990, amounts to cruel and unusual punishment under the Eight Amendment to the U.S. Constitution.

The 90-page ruling was written by U.S. Circuit Judge Ojetta Rogeriee Thompson, an Obama appointee, who asserted the Massachusetts Department of Corrections denied Kosilek essential medical care by withholding from her gender reassignment surgery.

“Those findings — that Kosilek has a serious medical need for the surgery, and that the DOC refuses to meet that need for pretextual reasons unsupported by legitimate penological considerations — mean that the DOC has violated Kosilek’s Eighth Amendment rights,” Thompson writes.

The ruling upholds a decision from U.S. District Judge Mark Wolf in 2012 asserting Kosilek has a right to gender reassignment surgery. The decision was controversial — even among progressive leaders. Then-U.S. Senate candidate Elizabeth Warren (D-Mass.) said she didn’t think the surgery was a good use of taxpayer dollars.

Transgender rights groups lauded the decision from the First Circuit on the basis that prisoners — even those who are transgender — have a right to medical care during their incarceration.

Mara Keisling, executive director of the National Center for Transgender Rights, said the ruling “affirms the increasing consensus among the courts” that transgender-related health care is a right protected under the Constitution.

“Prisoner or not, people should have access to the healthcare they need,” Keisling said. “For some of us, that means sex reassignment surgery. While we celebrate today’s ruling, we know there’s more advocacy needed to ensure that all transgender people have access to basic and necessary healthcare.”

Ilona Turner, legal director for the Transgender Law Center, said the First Circuit ruling upholds a constitutional right to essential medical treatment in prison.

“It is well established that the failure to provide essential medical care to people in prison is unconstitutional and amounts to torture,” Turner said. “This decision affirms that we as a society do not allow people to be tortured when they are in government custody.”

Afflicted with drug and alcohol problems at an early age, Kosilek in 1992 was sentenced to life in prison after strangling her spouse Cheryl McCaul, a volunteer counselor at a drug rehabilitation facility. The incident took place after McCaul caught Kosilek wearing her clothing.

Kosilek is serving her sentence in MCI-Norfolk, a medium security male prison, where she legally changed her name from Robert to Michelle. She must receive gender reassignment surgery through taxpayer-provided funds because, as an inmate in prison, she lacks access to her own finances for the procedure.

The estimated cost for male-to-female reassignment is $7,000 to $24,000. A footnote in the First Circuit decision notes that figure “pales in comparison to the amount of money it seems the state will be expending to defend this lawsuit.”

U.S. Circuit Judge Juan Torruella, a Reagan appointee who wrote the dissent in the decision, said he doesn’t find any reason to require Massachusetts to provide gender reassignment surgery to Kosilek when other treatments are available.

“[G]iving due consideration to countervailing security concerns and based on a review of the record that shows the DOC’s proposed care was not outside the realm of professionalism, I cannot say that the DOC has failed to adequately care for Kosilek’s GID or callously ignored her pain,” Torruella writes.

The decision could be appealed to the full First Circuit or the U.S. Supreme Court. The office of Massachusetts Attorney General Martha Coakley declined to comment on the next steps in the lawsuit.

Cara Savelli, a spokesperson for the Massachusetts Department of Correction, said the court ruling is under review.

“We are closely reviewing the lengthy decision issued today by the First Circuit Court of Appeals on this matter to determine next steps,” Savelli said.

18
Jan
2014

Groups support trans woman in lawsuit

gavel, law, court, gay news, Washington Blade

Several groups have asked the U.S. District Court for permission to file a “friend of the court” brief to support Finkle.

Last fall a lawsuit was filed against Howard County in federal court by Tomi B. Finkle, 59, a retired police sergeant, claiming discrimination based on her gender identity after she was rejected for a volunteer police mounted patrol position. According to the Baltimore Sun, six advocacy organizations have filed arguments in federal court on behalf of Finkle.

The American Civil Liberties Union, its Maryland chapter, the Free State Legal Project, Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center have asked the U.S. District Court for permission to file a “friend of the court” brief to support Finkle.

The groups argue against the county’s motion to dismiss the suit stating case law supports Finkle’s claim of discrimination and she does not have to prove the county knew her transgender status, as county lawyers have argued. The county stated in court filings that Finkle cannot sue for job discrimination because a voluntary position is not employment.

Finkle expressed appreciation for the support of the groups but neither she nor her lawyer had requested it. No hearing date has been set in the case.

16
Apr
2014

Jerry Brown pressured to sign trans bill

California, Gov. Jerry Brown, Gay News, Washington Blade

California Gov. Jerry Brown. (Photo public domain)

SACRAMENTO, Calif.—California LGBT rights groups continue to urge Gov. Jerry Brown to sign a bill into law that would require the state’s public schools to allow transgender students to use restrooms and join sports teams that are consistent with their gender identity and expression.

The National Center for Lesbian Rights, Equality California, the Transgender Law Center, GSA Network and Gender Spectrum on July 8 sent a letter to Brown that urged him to sign Assembly Bill 1266 or the School Success and Opportunity Act that the state Senate approved last week.

The bill passed in the California Assembly last month.

“Transgender youth deserve a safe, non-discriminatory school environment that encourages them to learn and participate fully, just like everyone else,” the advocacy groups’ letter states.

10
Jul
2013

National LGBT groups: ‘Trayvon deserves justice’

Trayvon Martin, gay news, Washington Blade

Trayvon Martin (Photo released into the public domain by the family of Trayvon Martin)

A coalition of 34 national LGBT rights organizations and the ACLU issued a joint statement late Monday expressing solidarity with the family and supporters of teenage shooting victim Trayvon Martin following the acquittal on Saturday of the Florida man charged in his death.

“We cannot begin to imagine the continued pain and suffering endured by Trayvon Martin’s family and friends,” the statement says. “We stand in solidarity with them as they continue to fight for justice, civil rights and closure.”

The statement adds, “Trayvon Martin deserves justice and his civil rights. We support the organizations and community leaders who are urging the federal government to explore every option to ensure that justice is served for Trayvon and that his civil rights are honored and respected.”

The National Black Justice Coalition, a national LGBT group; and the National Gay and Lesbian Task Force initiated the statement, which the groups are calling an open letter entitled “Trayvon Deserves Justice.”

Nearly all of the most prominent national LGBT groups signed on to the statement, including the Human Rights Campaign, the National Coalition of Anti-Violence Programs, GLAAD, the Transgender Law Center, and Parents and Friends of Lesbians and Gays (PFLAG).

The statement comes two days after a jury of six women in Sanford, Fla., found neighborhood watch volunteer George Zimmerman not guilty of second-degree murder and manslaughter for the February 2012 shooting death of 17-year-old Martin, who was unarmed.

The case triggered a heated debate throughout the country over racial profiling, with back civil right leaders and many supporters arguing that Zimmerman assumed Martin was a criminal because he was black. Zimmerman is white and Hispanic.

Zimmerman told police he followed Martin after seeing him walking through his gated community. He claimed he shot Martin in self-defense after the two got into a fight and Martin allegedly knocked him down and began pounding his head into a cement sidewalk.

Prosecutors noted that Martin was living in the community with his father and had done nothing wrong. They told the jury Zimmerman was responsible for his death by starting a confrontation based on the false assumption that Martin was a potential criminal.

The statement by the LGBT organizations stops short of a national online petition circulated by the National Association for the Advancement of Colored People (NAACP) that calls for the U.S. Justice Department to prosecute Zimmerman on one or more federal civil rights law violations.

Attorney General Eric Holder said on Monday that the Justice Department he heads is continuing an investigation into the case begun last year. He said the department would make a determination on whether or not to prosecute Zimmerman based on “the facts and the law.”

The national LGBT organizations said in their statement that the advocacy for justice and civil rights should not end with the final outcome of the Justice Department’s investigation into the Trayvon Martin case.

“[W]e will honor Trayvon Martin by strengthening our commitment to end bias, hatred, profiling and violence across our communities,” the statement says.

“We represent organizations with diverse lesbian, gay, bisexual and transgender constituencies. Our community has been targets of bigotry, bias, profiling and violence,” says the statement. “We have experienced the heart-breaking despair of young people targeted for who they are, who they are presumed to be, or who they love…”

LGBT activists in the D.C. area were expected to participate in protests over the Zimmerman verdict planned for Saturday in cities throughout the country. Details on the time and location of any D.C. area protests had yet to be announced as of late Monday.

Following is the text of the statement by the national LGBT organizations and the names of the groups that signed it:

An Open Letter: Trayvon Deserves Justice

We cannot begin to imagine the continued pain and suffering endured by Trayvon Martin’s family and friends. We stand in solidarity with them as they continue to fight for justice, civil rights and closure. And we thank everyone who has pushed and will continue to push for justice.

Trayvon Martin deserves justice and his civil rights. We support the organizations and community leaders who are urging the federal government to explore every option to ensure that justice is served for Trayvon and that his civil rights are honored and respected. But our work does not end there: we will honor Trayvon Martin by strengthening our commitment to end bias, hatred, profiling and violence across our communities.

We represent organizations with diverse lesbian, gay, bisexual and transgender constituencies. Our community has been targets of bigotry, bias, profiling and violence. We have experienced the heart-breaking despair of young people targeted for who they are, who they are presumed to be, or who they love: Rashawn Brazell, Lawrence King, Ali Forney, Brandon Teena, Brandon White, Matthew Shepard, Marco McMillian, Angie Zapata, Sakia Gunn, Gwen Araujo and countless others.

Every person, regardless of race, religion, sexual orientation or gender identity, must be able to walk the streets without fear for their safety.

Justice delayed is justice denied and in the words of Dr. Martin Luther King Jr. “a right delayed is a right denied.” We honor Trayvon by seeking justice for all people.

All Out
American Civil Liberties Union
Believe Out Loud
BiNet USA
Bisexual Resource Center
Center for Black Equity
CenterLink: The Community of LGBT Centers
Consortium of Higher Education LGBT Resource Professionals
Equality Federation
Family Equality Council
Freedom to Work
Gay, Lesbian & Straight Education Network
Gay-Straight Alliance Network (GSA Network)
GetEQUAL
GMHC
GLAD
GLAAD
Harvey Milk Foundation
Human Rights Campaign
Immigration Equality
Lambda Legal
Movement Advancement Project
National Black Justice Coalition
National Center for Lesbian Rights
National Coalition of Anti-Violence Programs
National Gay & Lesbian Chamber of Commerce.
National Gay and Lesbian Task Force
National Minority AIDS Council
National Queer Asian Pacific Islander Alliance
Out & Equal Workplace Advocates
PFLAG National
The Trevor Project
Trans Advocacy Network
Transgender Law Center
Trans People of Color Coalition

16
Jul
2013

Calif. governor signs transgender students bill

Jerry Brown, California, gay news, Washington Blade, transgender students

California Gov. Jerry Brown on Monday signed a bill that requires public schools to guarantee transgender students have equal access to on-campus facilities and programs. (Photo via Wikipedia)

SACRAMENTO, Calif. — California Gov. Jerry Brown on Monday signed a bill into law that requires public schools to provide transgender students with equal access to restrooms, athletic teams and other on-campus programs.

LGBT rights groups described the measure as “historic” as they applauded Brown for signing it.

“We commend Gov. Brown for standing up for transgender equality,” Equality California Executive Director John O’Connor said.

The measure – Assembly Bill 1266 – passed in the California Assembly in June, but Brown faced mounting pressure from LGBT advocacy groups to sign it.

The National Center for Lesbian Rights, Equality California, the Transgender Law Center, GSA Network and Gender Spectrum on July 8 sent a letter to Brown that urged him to sign Assembly Bill 1266 or the School Success and Opportunity Act.

“Transgender youth deserve a safe, non-discriminatory school environment that encourages them to learn and participate fully, just like everyone else,” the advocacy groups’ letter states.

“There should be certainty that every kid has the chance to go to school and be treated equally and fairly,” said bill sponsor Sen. Mark Leno in June.

14
Aug
2013

Medicare to examine ban on gender reassignment surgery

transgender, caduceus, medicare, gay news, Washington Blade, health

HHS is set to reconsider the ban on Medicare-provided gender reassignment surgery. (Image public domain)

The Obama administration is set to re-examine the ban that prohibits Medicare from covering gender reassignment surgery, according to a memorandum obtained Tuesday by the Washington Blade.

The document from the Department of Health & Human Services, dated Dec. 2, finds that the reasoning for the ban is “not complete and adequate” to support denying Medicaid coverage for transgender people seeking the procedure.

The HHS Department Appeals Board states the ban — which is codified as National Coverage Determination 140.3 — “fails to account for development in the care and treatment” for transgender people over the course of the last 30 years.

The next step, the memo states, is proceeding into a “discovery” phase for the taking of evidence to determine whether the ban can be justified.

Mara Keisling, executive director of the National Center for Transgender Equality, said “there really isn’t that much to say” at this point in the process.

“This is really a preliminary step,” Keisling said. “It’s a good sign, but we have more to go on this.”

Masen Davis, executive director of the Transgender Law Center, was optimistic the ban would be lifted following the discovery process.

“Current Medicare standards are based on science from the 1960s, so it’s about time for a review,” Davis said. “Because the current scientific evidence overwhelmingly shows that sex-reassignment surgeries are effective and medically necessary treatments for some transgender individuals, we are hopeful the board will find the exclusion is not supported.”

The DAB initiated the review of the ban on Medicare-provided gender reassignment surgery in response to a request filed in March by a quartet of LGBT advocates: the National Center for Lesbian Rights, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders and civil rights attorney Mary Lou Boelcke.

The challenge was filed on behalf of Denee Mallon, a 73-year-old transgender woman in Albuquerque, N.M. A Medicare recipient, Mallon was recommended to have gender reassignment surgery by doctors to treat her gender dysphoria

In a joint statement provided to the Washington Blade in response to the HHS memorandum, the ACLU, NCLR and GLAD expressed optimism that DAB would come to the conclusion after discovery that the ban on Medicare-provided gender reassignment surgery should be lifted.

“Because the current evidence overwhelmingly shows that sex-reassignment surgeries are effective and medically necessary treatments for some individuals with gender dysphoria, we are hopeful the Board will find the exclusion is not supported,” the statement says.

According to the memorandum, the ban was put in place in 1989 as a result of a 1981 report from the National Center for Health Care Technology, an arm of HHS. The report concluded “transsexual surgery not be covered by Medicare at this time” because of the high rate of complications and questions about whether it was effective in treating gender identity disorder.

“Transsexual surgery for sex reassignment of transsexuals is controversial,” the regulation states. “Because of the lack of well controlled, long term studies of the safety and effectiveness of the surgical procedures and attendant therapies for transsexualism, the treatment is considered experimental. Moreover, there is a high rate of serious complications for these surgical procedures. For these reasons, transsexual surgery is not covered.”

Despite the institution of this policy, the American Medical Association and the American Psychological Association support gender reassignment surgery for transgender people as a means to treat gender identity disorder.

Notably, the Centers for Medicare & Medicaid didn’t put up a fight in response to the request from LGBT advocates to lift the ban. According to the memo, CMS notified the board in June that it wouldn’t submit a response to their request to lift the ban.

Neither HHS nor CMS responded to the Blade’s request for comment on the determination or why it declined to defend the ban.

It’s unclear when the discovery period for reevaluating the ban on Medicare-provided gender reassignment surgery will come to an end. Shawn Jain, a spokesperson f0r the ACLU, said his organization doesn’t know when the process will be complete.

11
Dec
2013

Trans inclusion clarified for insurance providers

transgender, caduceus, medicare, gay news, Washington Blade, health

(Image public domain)

SAN FRANCISCO — California’s Department of Managed Health Care has issued guidance clarifying the obligations of the state’s health plans under the Insurance Gender Nondiscrimination Act, the San Diego Gay and Lesbian News reported last week.

The department confirmed that the state’s Insurance Non-Discrimination Act of 2006 guarantees all people the right to access coverage for medically necessary care regardless of their gender identity or gender expression, the article said. It also said patients who are denied coverage can appeal the decision for review by the department.

A 2008 study conducted by Transgender Law Center found that an alarmingly high rate of transgender patients were denied coverage for essential health care: 15 percent were outright denied gender-specific care such as pap-smears or prostate exams just because they were transgender, the San Diego Gay and Lesbian News reported.

17
Apr
2013

Year in Review: EEOC issues landmark decision banning trans bias

The U.S. Equal Employment Opportunity Commission (EEOC) ruled in April that job discrimination against employees due to their gender identity is equivalent to sex discrimination under existing federal law.

Transgender advocates joined legal experts in calling the ruling a historic development that provides transgender people in the public and private sector workforce with full coverage under Title VII of the U.S. Civil Rights Act of 1964.

“[W]e conclude that intentional discrimination against a transgender individual because the person is transgender is, by definition, discrimination ‘based on…sex,’ and such discrimination therefore violates Title VII,” said the commission in its 5-0 ruling.

The decision was handed down as part of its resolution of a case filed by the Transgender Law Center on behalf of Mia Macy, a transgender woman who charged that she was denied a job as a ballistics technician with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives’ lab in Walnut Creek, Calif.

Macy alleged that ATF officials were in the process of hiring her but claimed the job was no longer available due to budget cuts after she informed them she was transitioning from male to female. She learned later that ATF gave the job to someone else.

Masen Davis, executive director of the Transgender Law Center, said it would be hard to overstate the significance of the EEOC decision.

“Transgender people already face tremendous rates of discrimination and unemployment,” Davis said. “The decision today ensures that every transgender person in the United States will have legal recourse to employment discrimination and with it a way to safeguard their access to vital employment benefits such as health insurance and retirement savings plans.”

27
Dec
2012