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Michigan bill would bar gender reassignment surgery in prison

In a move that activists call unnecessary and based on bigotry, Rep. Tom Hooker (R-Byron Center) wants to make sure that Michigan taxpayers do not foot the bill for any gender assignment surgeries Michigan prisoners may need as part of their treatment.

Hooker readily admits he knows of no case where a Michigan prisoner has had gender reassignment surgery. But in an interview with the Grand Rapids Press, he explained why he thought the legislation was important to Michigan:

“It’s something that’s kind of a common sense thing. I’d much rather be proactive than reactive,” said the Byron Center Republican. “It’s definitely something we want to prevent.”

Equality Michigan, a statewide advocacy group for lesbian, gay, bisexual and transgender rights, quickly condemned Hooker’s proposal. Denise Brogan-Kator, who is herself transgender, issued the following statement on the legislation:

“Representative Hooker’s bill is ill-conceived and is yet another attack on the gay and transgender population of Michigan by this Legislature. To the best of my knowledge, only one other state – Wisconsin – has ever passed such a bill and the federal courts struck it down as unconstitutional. Lawmakers should not be in the business of legislating medical care and should not be substituting its judgment for that of the medical profession in such matters. For Representative Hooker to dance to the tune played by Mr. Glenn, the head of an organization labeled as a hate group by the Southern Law Poverty Center is the very antithesis of the “common-sense” he purports to be exercising. I extend an offer to Mr. Hooker to meet with me and discuss this issue in greater detail.”

The SPLC labeled the national American Family Association an extreme anti-gay hate group last year. Officials there said the label did not necessarily apply to the local affiliates because the organization had not had a chance to review their activities and statements to make such a determination.

And Kator is correct, a similar law pass in 2005 by the Wisconsin legislature was struck down as unconstitutional by the 7th Circuit Court of Appeals in August. The court ruled that gender reassignment surgery is no different than any other kind of medical treatment. “Surely,”, the course said, “had the Wisconsin Legislature passed a law that DOC inmates with cancer must be treated only with therapy and painkillers, this court would have no trouble concluding that the law was unconstitutional.”

Gender identity disorder is a recognized mental health problem and is treated with therapy, hormone replacement therapies and gender reassignment surgery. In addition to those therapies, the transgender person is encouraged to live his or her life as the gender they believe they are, rather than the gender assigned at birth. In fact, gender reassignment surgery is not an option for transgender persons until and if they complete a period of time living publicly and completely as their self-identified gender. Mental health officials have argued that refusing treatment for transgender patients can lead to dire consequences, including suicide.

And Equality Michigan is not the only organization condemning the Hooker legislation. David Holtz, executive director of Progress Michigan, slammed Hooker for not paying attention to job creation.

“Voters want their lawmakers to be spending every available minute working to help businesses create jobs,” said Holtz. “That’s what Tom Hooker should be doing, not trying to find a solution for a problem that doesn’t exist.”

Not every group is opposing the legislation. Gary Glenn, president of the American Family Association of Michigan, says the legislation is important.

“Given that it’s already risen as far as the second highest court in the land in a neighboring state, we agree with Rep. Hooker that it’s prudent to act to protect Michigan taxpayers before it becomes an issue in our prison system,” Glenn said. “It doesn’t make sense to passively let legislators or judges in other states set policy for Michigan taxpayers.”

Glenn points to an 8th Circuit Federal Court of Appeals ruling which ruled state prison system are not obligated to use Medicaid funding to pay for a gender reassignment procedure for a woman transitioning to a male. That ruling was made in 2001.

“As to the 7th Circuit’s decision on Wisconsin’s law, the 8th Circuit U.S. Court of Appeals in 2001 ruled just the opposite, that taxpayers are not obligated to pay for prison sex-change operations,” Glenn said. “Michigan is in the entirely separate and somewhat conservative 6th Circuit, where hopefully we’d get the same result as the 8th rather than the 7th. Eventually, especially because of the conflict between different circuit courts, it appears likely to be decided by the U.S. Supreme Court, but that could be years away.”

Between the Lines Newspaper, a weekly newspaper for the LGBT community, also reported on the story. The newspaper spoke with Russ Marlan, spokesperson for the Michigan Department of Corrections.

Marlan consulted with the chief medical officer who said that MDOC would not provide sex change operations.

But, Marlan added, “if there ever was a circumstance where somebody had a medical need for such a thing, it’s certainly possible and allowable under our health care contract right now.”

Marlan said the chief medical officer knows of a transgender inmate who self-injected silicone into his breasts. The silicone is now leaking into his organs and blood. “There’s a health risk there with what’s happening to him so we’re certainly going to provide treatment for that,” Marlan said. The silicone will be removed from the inmate’s body. The inmate asked for silicone breast implants as a replacement, but the chief medical officer said the inmate will receive a prosthesis to wear instead.

“We provide medically necessary care and we want to keep prisoners healthy,” Marlan said. “It’s good for them, it’s good for their families … when 95 percent of them return to society we want to have them healthy. That helps control our long-term costs as well.”

The MDOC has a full policy related to dealing with prisoners diagnosed with gender identity disorder. That policy says that the disorder “represents serious medical needs which may not be ignored.” The policy lays out how MDOC medical officials are required to diagnose the disorder, as well as how plans dealing with treatment of gender identity disorder. Those actions include individual housing, access to gender appropriate clothing and hormone replacement therapy. Gender reassignment surgeries are identified as a possibility, but only in “extraordinary circumstances.”

Surgical procedures for initiation, advancement, or maintenance of sex reassignment shall not be performed except in extraordinary circumstances as determined by the Chief Medical Officer, and the Director.

It is unknown how Hooker’s legislation will play in the Republican-controlled House and Senate. Both chambers have attempted to move legislation which would limit the rights of LGBT people since taking office in January, including attempts to ban health care benefits for same-sex partners. Michigan Attorney General Bill Schuette is suing to prevent such benefits from being implemented for state workers, claiming in part that the benefits discriminate based on sex.

Julie Nemecek, a transgender activist fired from the conservative Christian Spring Arbor University in Jackson county, also weighed in on the legislation.

“The action of Representative Hooker is the worst kind of pandering. Without bothering to check with the Michigan Department of Corrections or authorities on a condition described by the American Medical Association as a ‘serious medical condition,’ Rep. Hooker is against something that he isn’t sure is happening because the American Family Association says he should be against it,” Nemecek said. “Keeping inmates from necessary psychological and medical care is cruel and unusual punishment. For some diagnosed with gender identity disorder, surgery is a necessary treatment prescribed by a doctor. Even the IRS recognizes this surgery as a legitimate medical expense for those able to pay for it. Courts have increasingly called this kind of legislation unconstitutional. Is there a basis, other than bigotry, to deny a treatment that is less expensive than other covered treatments? Proposed legislation should not be based on the ideas of Gary Glenn’s hate-based organization.”

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