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Black and Pink Celebrates Michelle Kosilek's Victory; Healthcare is a Human Right

Black and Pink joins Michelle Kosilek in her celebration of winning access to gender affirming surgery due to a decision handed down by U.S. District Judge Mark Wolf. We celebrate Kosilek’s victory as she has won access to medically necessary surgery. Kosilek and her doctors have fought for nearly 10 years for access to this surgery; for many in her position that length of time would be unbearable. All people, regardless of gender, race, class, incarceration status, or any other identity marker, should be entitled to adequate and humane health care; it is a travesty that this is not a reality in the United States today. Kosilek’s access to necessary care should be the norm rather than the exception. This ruling reminds us all of the enormous amount of work there is still to be done.

Transgender individuals and communities are disproportionately impacted by lack of and inadequate health care, whether that be access to mental health clinicians, hormone therapies, surgeries, or even the basics of a safe primary care physician. Kosilek’s victory should not divide LGBTQ communities, but rather inspire work for greater access to healthcare for all. Not all transgender people want or need gender affirming surgeries, but anyone who does should have full access to it, whether they are in prison or not. It was recently reported by a National Business Group on Health survey that more and more companies are covering gender affirming medical care from hormone therapy to surgeries. Other employers, and certainly MassHealth, should follow in this trend.

An unspoken and pivotal aspect of the Kosilek case is the impact of the Prison Litigation Reform Act (PLRA). In 1996 Congress passed the Act that supposedly reduces the number of “frivolous” lawsuits coming before the courts. In reality it has resulted in greater suffering in prisons and the refusal of courts to get adequately involved. In 2009 Human Rights Watch released a 50-page report on the Prison Litigation Reform Act and declared that the PLRA violates human rights, stating in the report that, “the PLRA in many cases operates to deprive prisoners of an effective remedy—or indeed, any remedy at all—for violations of their rights.”

Even with the outrageous requirements of the PLRA, Kosilek was able to show “deliberate indifference” in the prison’s refusal to provide medically necessary care. Judge Wolf even stated that former Commissioner of Corrections, and current self-proclaimed prison reformer, Kathleen Dennehy’s real reasons for denying Kosilek Gender Affirming Surgery was not due to real issues of security but rather the Commissioner’s “fear of controversy, criticism, ridicule and scorn.” While Kosilek’s case sets precedent for a particular health need, the case does nothing to challenge the continued abuses of the Prison Litigation Reform Act.

The Sylvia Rivera Law Project describes how “overpolicing and profiling of low income people and of trans and gender non-conforming people intersect, producing a far higher risk than average of imprisonment, police harassment, and violence for low income trans people.” They go on to describe that once confined to a prison consistent with their birth sex, prisoners are often “Denied access to hormones and other trans-specific health care… Forced to change gendered characteristics of appearance in prison (made to cut hair, give up prosthetics, clothing). This results in mental anguish and increased exposure to harassment and violence because appearance may conform even less to gender identity.” Black and Pink recognizes that denial of gender affirming surgery is but one form of abuse experienced by transgender people in prison, in addition to sexual, physical, verbal and mental abuse. The abuse of transgender people in prison, particularly transgender women of color, is pervasive and part of a larger system of oppression.

Black and Pink will fight alongside prisoners, such as Kosilek and Ophelia De’Lonta in Virginia, for immediate access to basic needs, but our struggle is for an end to mass incarceration and the abolition of the prison industrial complex. The only way to create the healthy communities we strive for is to include campaigns that shut prisons down; that end criminalization of people of color, LGBTQ people, poor people, im/migrants, Muslims, political dissidents and others; and that lift up transformative justice practices rather than punishment. We encourage all people to get involved and to include an analysis of the prison industrial complex in their work towards justice.

Click HERE for an essay written by Anastasia, an incarcerated transwoman in Arizona who is a member of Black and Pink. Her letter was published in our September 2011 Newsletter, which is mailed to nearly 2,000 LGBTQ prisoners across the country. Her voice, and the voices of other incarcerated transgender women, must be heard as the ruling in Michelle Kosilek’s case will impact these women the most.

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Black & Pink is an open family of LGBTQ prisoners and “free world” allies who support each other. Our work toward the abolition of the prison industrial complex is rooted in the experience of currently and formerly incarcerated people. We are outraged by the specific violence of the prison industrial complex against LGBTQ people, and respond through advocacy, education, direct service, and organizing.

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