The Delusion of Transgender Prisoner Rights

The “civil rights revolution” fought in the middle of the 20th century was a battle for the hearts and minds of the American public, as well as a political and legal campaign. The new medium of television brought pivotal events into America’s living room—everything from the soaring words of the Rev. Martin Luther King, Jr. to Bull Connor’s use of fire hoses and police dogs to suppress protests in Birmingham, Alabama. The NAACP and other civil rights groups filed lawsuits challenging segregation, but the ultimate victory came legislatively—as a result of a transformation of Americans’ attitudes regarding race, following a painful, candid public dialogue about freedom and equality.

In contrast to this model, the current movement to confer radical legal rights upon transgender prisoners is being waged clandestinely—without political consensus—relying primarily on federal court litigation brought by a network of well-organized special interest groups. Instead of encouraging an open public debate of the issues, the proponents of transgender prisoner rights use the conventions of political correctness to silence or ignore their opponents. The LGBT activists advocating transgender prisoner rights are merely impersonating the civil rights movement. “Transgender” status is a form of mental illness, not a protected classification.

Recently, after a decade of hard-fought litigation under the “cruel and unusual punishment” provisions of the Eighth Amendment, two convicted murderers serving life sentences—one in Massachusetts and the other in California—failed in their separate bids to compel the states to provide them with sex-change surgery while they were incarcerated, arguing that it was necessary “medical treatment” for their condition, gender-identity disorder, or “gender dysphoria.” Earlier this year, the California inmate, Jeffrey Norsworthy, convinced federal district court Judge Jon Tigar (based in San Francisco) that a taxpayer-funded vaginoplasty was required by the Eighth Amendment, even though no appellate court in America has ever recognized the right of a transgender prisoner to receive gender reassignment surgery while incarcerated.

Norsworthy calls himself “Michelle-Lael,” and—as has become de rigueur these days—the prison psychiatrist, journalists, and even Judge Tigar’s decision pointedly refer to Norsworthy as a woman and invariably use his feminine moniker, even though he is anatomically still a man, is incarcerated in a men’s prison, and is legally named Jeffrey Norsworthy. Apart from the novelty of Tigar’s ruling—no California inmate had ever received vaginoplasty while in custody—and the dubiousness of the “cruel and unusual punishment” rationale upon which it was based, the most striking aspect of the decision is the reverence and uniformity with which the “progressive” elements of the medical, media, and legal establishments “saluted” to the notion that a man becomes a woman simply by “identifying” as such. I am getting slightly ahead of myself, but this is an illustration of how liberals enable the “transgender” delusion.

When I was growing up, the stereotypical “mental case” was a man who had delusions that he was Napoleon Bonaparte (complete with hand in waistcoat). In the common depiction, harboring (or expressing) such thoughts would be sufficient for someone to be led away to the lunatic asylum in a straitjacket. These days, if the “Call me Caitlyn” precedent is followed, a more enlightened generation of mental health professionals would presumably call the patient “Emperor” and suggest a course of treatment consisting of replicating Napoleon’s historic garb (complete with iconic bicorne hat), palace décor, and obsequious courtiers. In other words, a modern shrink would “treat” someone with a Napoleon delusion by adopting the patient’s delusion. This is, in effect, the approach used for “transgender” prisoners diagnosed with “gender dysphoria,” who are given female hormone treatments and electrolysis for facial hair removal, allowed to wear women’s clothing, make-up, and hair styles, referred to with female names and feminine pronouns, and generally regarded as being the opposite sex. Thanks to the triumph of political correctness, the rest of society is forced to accept these conventions lest they be labeled “homophobic,” ignorant, or even bigoted. (Actually, the modern therapeutic response is even worse, also including as a treatment option atavistic surgical intervention—with vaginoplasty replacing a prior generation’s prefrontal lobotomy.)

As it turns out, before the Ninth Circuit had the chance to reverse Judge Tigar on the merits, Norsworthy was granted parole, making Tigar’s ruling moot. I commented on this in an op-ed for the Los Angeles Daily Journal on May 27, 2015, “Taxpayers may avoid paying for sex change.” The LADJ piece prompted a heated letter to the editor by a prominent civil right lawyer in San Francisco, who strongly objected to my insistence on referring to Norsworthy as a man, which the offended reader considered “ignorant,” “hurtful,” and “disrespectful.”

The parallel Massachusetts case involved a convicted murderer named Robert Kosilek (who now goes by “Michelle”), who sued to compel the Massachusetts Department of Corrections to provide him with a sex-change operation. A federal district judge in Boston ruled in Kosilek’s favor, as did a divided panel of the First Circuit Court of Appeals. Ultimately, however, the full First Circuit ruled against Kosilek, and on May 4, 2015, the U.S. Supreme Court declined to review the case. After more than a decade of litigation, and at one point briefly tasting the fruits of victory, Kosilek finally reached the end of the road.

After extensive litigation, then, the leading “test cases” for the proponents of taxpayer-funded sex-change operations for transgender prisoners ended in defeat. The First Circuit reversed the trial court ruling in favor of Kosilek (and the U.S. Supreme Court denied cert.), and Norsworthy was paroled with his genitals intact (saving the taxpayers an estimated $100,000). Was this a decisive setback for the cause of transgender prisoner rights? Not at all. Using the NAACP/civil rights litigation model, advocates for transgender prisoner rights view themselves as a “movement.” They will keep litigating—in multiple venues—until they win, confident that the other side’s resolve will eventually weaken, and then falter. An intensely focused special interest group with adequate resources can, especially with the assistance of “insiders” in the legal establishment and the legal academy, outlast the dispersed attention span of the general public.

There are several recent developments in the area of transgender prisoner rights, none of them encouraging. The first is that California Attorney General Kamala Harris, on the heels of what appeared to be an imminent (and hard-fought) victory for the state of California in the Norsworthy case, agreed—in another case, there being about 400 transgender prisoners in California alone—to provide sex-change surgery for Rodney Quine (who calls himself “Shiloh”), a litigious convicted murderer serving a life sentence in a California state prison. While this settlement will not be a binding precedent in future cases, as a practical matter California’s willingness to provide vaginoplasty surgery to Quine will make it harder to oppose it for other prisoners in future cases. For example, because state policy is to house male prisoners (even transgenders) in men’s prisons, the state has long contended that permitting sex-change operations would create prison security problems by exposing the transgender prisoner to an increased risk of sexual assault by male inmates. In the Quine case, the state agreed to reassign him to a women’s prison when the surgery is completed. California’s agreement to provide a sex-change operation for Quine will surely lead to more—not less—litigation by other transgender prisoners.

Second, on September 3, 2015, the U.S. Court of Appeals for the Ninth Circuit held in Avendano-Hernandez v. Lynch that an illegal alien and convicted felon who happened to be transgender cannot be deported to Mexico because (disregarding the contrary findings of an immigration judge and the Board of Immigration Appeals) the prisoner (whom the Ninth Circuit insisted on referring to as a woman) is “more likely than not” to be tortured if returned to Mexico. The Ninth Circuit criticized the immigration judge for referring to the prisoner as a male, even though he is genetically, anatomically, and legally a man. The Ninth Circuit found a likelihood of future torture by government officials based on prior incidents of harassment and sexual assault against Avendano-Hernandez by rogue police officers, even though Mexican law has subsequently been modified to protect the transgender community. While the full impact of this decision remains to be seen, it is reasonable to assume that some number of illegal aliens facing deportation to Mexico will claim transgender status in order to remain in the United States.

Third, San Francisco Sheriff Ross Mirkarimi, fresh from the Kate Steinle sanctuary city murder controversy, has announced that, by year end, jails under his local control will begin housing transgender prisoners based on their “gender preference.” In other words, male prisoners who “identify” as women (most of whom have intact male genitalia) will be housed with female prisoners, and female prisoners “identifying” as men will be housed with male prisoners. Many male prisoners, including transgender prisoners, have a history of violence against women (Kosilek, for example, murdered his wife). While removing them from other male prisoners may protect them from the increased risk of sexual assault in jail, housing transgender men with female prisoners presents the risk of assault against women. Placing transgender female prisoners in proximity with men poses the same risk. The San Francisco Chronicle reports that “The training for staffers and inmates will include learning the importance of using proper pronouns.” Does anyone seriously believe that men and women can safely coexist in the close quarters and physical intimacy of a jail, regardless of their “gender identification,” without the increased risk of sexual assault? As with sanctuary city status, this strikes me as a politically correct pose that will surely lead to violence.

The subject of transgender prisoner rights is important, for several reasons. First, the “transgender rights movement” operates with little public visibility or scrutiny, yet it boasts an impressive infrastructure of organizations (such as the Gay & Lesbian Advocates & Defenders), legal clinics, and affinity groups, lavishly funded by foundations, which have been busy for well over a decade advancing the interests of a minuscule percentage of the population. From a public choice standpoint, how does this make sense? For reasons I cannot fathom, under President Obama the DOJ Civil Rights Division considers the treatment of prisoners with “gender dysphoria” to be an important issue. Is genital mutilation (vaginoplasty) now a civil right? Are convicted murderers like Jeffrey Norsworthy the new Rosa Parks? How can a status that is malleable, variable, and inherently subjective (“identifying” with one or more genders) be equated to a truly immutable characteristic, such as race?

Second, and relatedly, there is a nearly total disconnect in attitudes about transgenders (and in particular transgender prisoners) between the liberal legal and judicial establishments, on the one hand, and “the rest of the country” on the other. My prior pieces on this topic have elicited comments (from various audiences, ranging in age, sophistication, and ideological fervor) that are uniformly outraged. Aside from my annoyed correspondent from San Francisco (hardly a typical reader), I have yet to hear from someone who agrees with Judge Tigar. What are we to make of a legal doctrine that is embraced with religious zeal by certain federal judges and viewed as completely idiotic by everyone else? Does this explain the low profile the movement maintains, perhaps with the complicity of a sympathetic media? Is this a healthy situation in a democracy that depends on respect for the rule of law? What accounts for the relative dearth of critical commentary in this area? Are knowledgeable academics and lawyers unwilling to speak out due to fears of professional ostracism and accusations of bias? If so, how do we rid ourselves of the poisonous climate of PC that chills essential debate? Do critics silently ignore the developing trend, hoping it will go away? (It won’t.) How do we bridge the cultural divide that separates certain intellectual elites and the average citizen?

Finally, the entire apparatus of this movement is, in my view, bogus. The Eighth Amendment standard used, based on Trop v. Dulles (1959) (“the evolving standards of decency that mark the progress of a maturing society”) is antiquated and non-originalist. The “reasoning” of the Norsworthy and Kosilek district court decisions was slapdash and unpersuasive. The “science” behind the diagnosis of “gender dysphoria” is suspect; not long ago, the American Psychiatric Association considered homosexuality to be a mental disorder. In this post-One Flew Over a Cuckoo’s Nest age, treating mental illness with surgery seems primitive and barbaric. Even the concept of “transgender”—indulging the delusion that one can alter the gender of one’s birth simply by “wishing” it to be so—seems to be a product of our collective self-absorption and narcissism, and a profound denial of common sense. Gender dysphoria was savagely—but deservedly—mocked in the 2005 South Park episode, “Mr. Garrison’s Fancy New Vagina.” Sometimes parodies can lead us to the truth.

So I monitor developments in this area with the same morbid fascination coal miners used to monitor the canary in the mineshaft, and for the same reason. The miners were concerned about the presence of an invisible pollutant that could render them ill or unconscious. The canary was a warning sign—their protection—against a silent, lethal threat to their survival. So it is with the issue of transgender prisoner rights. If and when this doctrine takes hold in our legal system, and settled law allows convicted murderers routinely to obtain expensive medical procedures not available to law-abiding, tax-paying citizens, the “canary” will have died. When wearing lipstick and putting on a dress can prevent an illegal alien from being deported, it is time to evacuate the mineshaft. When male prisoners are housed with females, and vice versa, it is time to sound the alarm. When judges pretend that a man is a woman—and insist that others do likewise—simply because the man asserts his “identity” as a woman, something dangerous is going on. I track these developments to know when to abandon hope for a classical liberal legal system based on reason, logic, and the rule of law. So should you. We are in this mineshaft together, after all, breathing the same air. The “canary” is our common sentinel.

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