An Update On "Cruel And Unusual"

As is generally the case, whenever Wisconsin Public Radio presents a call-in show on a controversial issue, they have a representative of the opposite side of the argument come on later in the week. Today, Republican State Representative Scott Suder was available to defend the bill he penned banning Department of Corrections inmates from receiving any kind of treatment for gender identity disorder. This includes hormone therapy, which is what the current court case settles around, and gender re-assignment surgery, which I didn't cover in my previous post.

As stated in the ACLU's press release, their case in Wisconsin is predicated on federal court rulings determining that doctors, not state officials, should determine the proper medical care for those incarcerated by the state. A federal judge has issued a preliminary injunction stopping the law from taking effect until the legal challenges are sorted out.

Representative Suder's attempts to justify his misguided bill were such instructive examples of the Republican mindset on issues of medical science, sexuality and fiscal responsibility, that I thought it would be interesting to take a look at a some of his arguments.

First, Suder claims there is a "raging debate" going on in the medical community as to whether or not gender identity disorder is "real", which is simply not true. I reviewed about a half-dozen medical resources, including WebMD, the Gale Encyclopedias of Psychology and Medicine, and The Diagnostic and Statistical Manual of Mental Disorders, and none of these indicated any debate as to the existence of GID. Quite the opposite, in fact. Now, there is some debate as to whether or not hormone treatments are the best remedy, but that sort of debate goes on continuously in many areas of medical science.

The "raging debate" then, is not a medical one, but an ideological one. It's actually quite similar to the "evolution vs. intelligent design" debate; it's nothing more than religious fundamentalists rejecting science because it doesn't agree with what they want to believe. I found plenty of conservative Christian resources purporting to "debunk" the existence of GID, much in the same way they "debunk" evolution. Basically, they don't accept the existence of GID because it doesn't conform to the gender roles laid out in the Biblical books of Genesis and Leviticus. While that may be fine for one's personal beliefs, it is certainly no basis for creating state-wide legislation. Suder's bill is nothing more than another attempt to legislate conservative religious beliefs into law.

However, even if there really was a debate about the existence of GID in the medical community, that still doesn't justify (or excuse) Suder's bill. The purpose of our elected government officials is not to settle scientific debates legislatively. Even if a debate existed, Suder is guilty of picking the side he (and/or his supporters) want to be true. Scientific facts are not set or determined by legislative action, which is essentially what Suder would be doing, assuming his "raging debate" actually existed.

The second defense Suder makes is that most taxpayers don't believe in GID and don't want their tax money used to support such frivolous costs. As pointed out in my previous post, the costs to the taxpayer are practically negligible, at least for hormone therapy. Further, taxpayer ignorance is not a good basis for passing legislation, any more than their spiritual beliefs are. The necessity of medical care is never determined by a popular vote; it's determined by qualified medical professionals and should remain that way.

Besides, tax money is always used in ways to which certain taxpayers will object. That's one of the features of taxation that make it useful; it gets unpopular but necessary programs funded. The courts have long held that the medical care of prison inmates is the responsibility of the state and that medical professionals should determine what kind of care is appropriate. To do otherwise is to run afoul of the Eighth Amendment. If Suder and his supporters believe that the denial of medical care should be part of the prison sentence, then he should introduce legislation to that effect.

Third, Suder attempts to use the "slippery slope" argument by claiming that the transgendered will be "lined up" to get into the Wisconsin corrections system so they can get free "cosmetic surgery". Suder's true opinion of the transgendered really shines through in this statement, I think. Clearly those with GID are just financial opportunists waiting for a handout from the state. Never mind that the current four inmates to whom this law applies were already paying for their own hormone therapy before being incarcerated. Suder is obviously just an old-fashioned bigot, with a trendy new "those people" group to single out.

As to the issue with gender reassignment surgery: while it goes beyond the scope of the ACLU's lawsuit, the same standard applies. While such surgery is generally not covered by private insurance, it is also not strictly cosmetic in the sense that Suder is trying to invoke. It's not a boob-job or a facelift, it's a treatment for a medically recognized physical and psychological disorder. Suder's claim here is again anchored in his misguided belief that somehow GID is just a big conspiracy and doesn't really exist. My son had cosmetic surgery to fix a cleft lip and pallet, which was certainly medically necessary. Labeling a surgery "cosmetic" does not make it frivolous, as Suder is obviously implying.

Finally, Suder makes the well-worn claim that the federal judge who placed an injunction on this law is nothing but a "radical judicial activist acting as a super-legislature". Now initially, this led me to believe that Suder was completely ignorant of the judicial review process, which would probably make his qualifications as a state representative pretty questionable. However, an intrepid caller to the show had the same thought and asked Rep. Suder if that was the case; to which he claimed it was not. According to Suder, the very fact that the judge even believed that the law might be Unconstitutional under the Eighth Amendment, makes the judge a judicial activist. Apparently Suder believes that a good "strict constructionist" would see that the denial of medical care, while ruled a violation of said Amendment at the federal level, has an intrinsic exception for those who have medical conditions which Suder doesn't believe exist. That's quite an interesting basis for judicial review, in my opinion.

Clearly, Suder knows his law is likely Unconstitutional and probably expected the challenge. As one caller this morning put it, it's all part of the "God, guns and gays" agenda of the Wisconsin GOP. The key to that agenda is getting conservative Christian voters to the polls in the fall, and sadly nothing seems to accomplish that quite like the specter of gay rights blossoming somewhere in the state. This motivational tool works even more effectively once the ACLU gets involved, as most conservatives believe the organization to be eroding American morality. Except, of course, when a conservative feels their own civil rights being impinged upon (*cough*Rush Limbaugh*cough*).

In any case, it seems likely that Suder's law will not stand for long. It's nothing more than an example of a political opportunist picking on a tiny, unpopular minority to bolster support in an election year. That Suder appeals to majority opinion to justify his law is only more evidence that it should be subjected to judicial challenge. Majority rule doesn't determine civil rights in America (at least, not yet).