After arguing her case for over ten years, Michelle Kosilek, a Massachusetts inmate serving a life-sentence for a murder she committed in 1990, finally won her right to sexual reassignment/gender confirmation surgery subsided by the Massachusetts Department of Correction. 

In early September U. S. District Court Chief Judge Mark L. Wolf ruled that Michelle Kosilek, formerly Robert Kosilek, is entitled to her requested procedure because it serves as the “only adequate treatment” for her “gender identity disorder.” (The nomenclature makes me cringe.) The absence of sexual reassignment/gender confirmation surgery, the judge found, would violate Kosilek’s Eighth Amendment right to protection against “cruel and unusual” punishment.

As expected, Wolf’s ruling has been met with thinly concealed contempt among Massachusetts politicians and citizens, including Governor Deval Patrick and candidate for U.S. Senate Elizabeth Warren, who have argued vociferously against Kosilek’s right to a medically necessary, taxpayer-funded “treatment.”

Many incensed citizens, however, were relieved earlier this week when Massachusetts officials declared their intention to appeal Judge Wolf’s decision. 

As a result of the impending appeal, scores of articles—some supportive, some antagonistic, and nearly all clunky in their application of transgender terminology—have been written on Michelle Kosilek’s battle with the Commonwealth of Massachusetts. 

Unfortunately, most commentaries fail to confront what’s really at stake for Kosilek and other members of the transgender community—the question of which types of bodies and behaviors are worthy of legal protection—and instead have settled for more innocuous debates on the political philosophy of public taxation for inmate medical services.

Make no mistake: this story isn’t about a single publicly-financed medical procedure for a Massachusetts inmate. Why? Well, because all prisoners already benefit from taxpayer-subsidized health care plans that often cover extraordinarily expensive surgeries. 

I ask: are taxpayers really that enraged about the prospect of paying for an M->F sexual reassignment/gender confirmation procedure that costs around $17,000  when they already fork over, on average, roughly the same annually for already existing, “constitutionally adequate” health care services for inmates? According to research conducted in 2009 by the American Correctional Association the state of California, for instance, spent roughly $16,000 per inmate, per year for all inmate health care services. 

Framing the court’s ruling as fiscally burdensome has served as a marvelously successful diversionary tactic.

The real debate here is about the public’s perception of normality, disorder, and gender non-conforming individuals. What does it mean that Michelle Kosilek’s legal team won their case only by framing their appeals in and through the language of “disorder?” “Gender identity disorder,” after all, is formally classified as a “medical disorder” by the International Statistical Classification of Diseases and Related Health Problems (ICD-10) and the Diagnostic and Statistically Manual of Mental Disorders (DSM-IV). Could Ms. Kosilek have won her lawsuit without adopting the rhetoric of pathology, deviance, or aberration? I think not. And this is precisely the problem. 

Simply put, the public’s hostility toward Ms. Kosilek’s legal demands is generated, in philosophical terms, by collapsing the distinction between what is “normal” and what is “common.” Arguments grounded in appeals to the “common” must never automatically invite assertions of normality. “Normal” is a question of value; “common” is a question of statistic variation. (As an aside, I’m fully aware that Ms. Kosilek’s conviction of murder strongly influences public notions of deservedness, but I’d still argue that the public would remain unsupportive even if she had been convicted of a non-violent crime.)

Contrary to popular belief, that which is deemed socially “normal” relies on a series of subjective political judgments that may not actually reflect what is “common.” Here’s an example: Although it’s decidedly normal to vote in a presidential election (voting is a deeply-held value maintained by our collective support of the democratic process), it is by no means common (typically less than 50 percent of eligible voters actually cast a ballot). Therefore, in order to accept the position that (cis)gender conformity is “normal” it must first be naturalized. And a norm can only be naturalized if it’s thought of as a fact, rather than a value.

But this story isn’t about immutable social facts; it’s about the evaluative criteria we use to mark and rank human bodies as “normal” or pathological. Kosilek’s lawsuit represents a struggle over which types of bodies and behaviors are politically legitimate and therefore worthy of the rights and immunities guaranteed by the Constitution. 

Love ‘em or loathe ‘em, prisoners are people. Transgendered individuals are people. And if the Eighth Amendment doesn’t protect all people, then it’s quite frankly unconstitutional.