The recent decision of the U.S. District Court of the District of Massachusetts in Kosilek has been in the news primarily for the shock value of the court finding that the Department of Corrections had to provide gender reassignment surgery to Michelle Kosilek. The reasoning of this decision closely follows that of last year’s Brown v. Plata. Kosilek helps clarify what the Eighth Amendment requires of mental health treatment in prisons. But it also sheds light on an interesting lacuna in the American framework of basic civil and human rights.

Kosilek emphasizes certain language from Brown: “To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. . . . A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” As the Kosilek decision notes, Michelle Kosilek suffered extreme mental anguish as a result of severe gender identity disorder, which had led to attempted suicide. Furthermore, the DOC had recently settled a class action with the Disability Law Center (for the court’s approval of the settlement, see here) regarding the treatment of mentally ill inmates who were committing suicide at high rates. While that class action dealt more specifically with segregated confinement, the need for adequate mental health treatment at the DOC remains a highly visible issue.

The court found that the DOC had denied Kosilek the gender reassignment treatment on the grounds of fearing ridicule, particularly as public funds would be involved. The court found this to be an insufficient reason to abrogate Kosilek’s Eighth Amendment rights. Which makes good sense.

There is a curious irony in all of this. The court based its reasoning on the idea, in Brown, that the State’s obligations to provide adequate medical treatment follow from having deprived inmates of “the means to provide for their own needs.” Having undertaken this deprivation of liberty, the State is then obliged by the Eighth Amendment to provide basic human rights. But, as the court also emphasizes, Americans have no fundamental right to adequate health care. In other words, Michelle Kosilek would have no right to a procedure deemed medically necessary had it not been for the State taking him into custody for the murder of his wife.

The scorn and ridicule that the DOC anticipated has indeed appeared in the media, and draws upon two related strands: first, a suspicion of the true necessity of mental health treatment (and, more specifically, titillation at the idea of gender reassignment), and second, the recognition of the perversity that Kosilek only gained the right to adequate health care by being institutionalized. While the criticism on this second point often takes the form of denying that inmates should have such rights at all, I think the better lesson is the opposite: that it is an unfortunate consequence of our narrowly State-centric framework of rights that we only require basic human rights (such as access to medical treatment, including for mental health) for those under the custody of the State.

What I mean is that our basic framework of civil rights is built around protecting individuals from the State, saying little about affirmative obligations of the government to provide what would otherwise be considered basic human rights. Of course, whether we should have such affirmative obligations on the part of the government remains a contentious issue in America, but it is this narrow conception of rights that has led commentators (including Ruth Bader Ginsburg) to suggest that the U.S. Constitution is no longer an adequate model for contemporary constitutional design. Yet there is a narrow space in which affirmative human rights can find their way into American constitutionalism (in theory, if not in practice): in the treatment of those held under the custody of the State.

Why should we fight for affirmative rights? Despite the theoretical availability of quality medical and mental health treatment (among other things, like education), actual access remains far lower than it should be – particularly for access to mental health treatment, which remains stigmatized (especially in gender-related issues, such as Kosilek’s gender identity disorder). Rather than condemning the profligacy of the State in providing basic human rights for its most marginalized, we must continue to demand positive rights for all. Demanding humane treatment of inmates is substantively necessary, but can also be strategically valuable because it is one of the few spaces in our jurisprudence that recognizes the language of positive human rights.