Judge may stay his ruling ordering sex-change operation for killer, pending appeal

By Brian Ballou, Globe Staff

The US District Court judge who ruled earlier this year that a convicted killer be allowed to undergo a sex-change operation at the state’s expense said Monday he is leaning toward ordering a stay of the surgery pending an appeal of his ruling by the Patrick administration.

Judge Mark Wolf said he will make a final decision Tuesday on whether to suspend surgery for Michelle Kosilek pending the appeal. But in strong terms, he instructed the state Department of Correction to continue making arrangements for the procedure, including finding a suitable doctor and location.

Wolf cautioned the attorneys representing the state, saying delays on the part of the Correction department in making arrangements for the surgery would amount to contempt of his order.

“I don’t assume that officials are going to be in contempt of court orders,” Wolf said. “It’s very important they don’t be. I know I’ve ordered something that is unpopular and misunderstood, but unless the order is reversed, it has to be obeyed.”

Even with the appeal in place, there was no legal barrier to Kosilek undergoing sexual-reassignment surgery.

Kosilek’s facial hair was the focus of much of Monday’s hearing. Her attorneys argued that her electrolysis treatments, part of her gender transformation from male to female, should continue despite resistance from the Department of Correction.

But Wolf also indicated that he would be unlikely to order the state to arrange more electrolysis treatments because the procedure was not part of his order granting the sex-reassignment procedure.

“I did consider it a bit, and I will consider it more, but it’s not where I’m at at the moment,” Wolf said.

Fran Cohen, Kosilek’s attorney, argued that the facial hair removal was incomplete when it came to a halt after six weeks.

Robert Dierner, a medical expert who met twice with Kosilek and determined that the electrolysis was not necessary, testified that Kosilek appeared to exaggerate the growth of her facial hair.

For example, Dierner testified, during one evaluation Kosilek said going several days without shaving would result in a full beard.

“I didn’t think that was possible,” Dierner testified on behalf of the state Department of Correction.

Kosilek strangled his wife, Cheryl, in Mansfield in 1990 and dumped her body in a car at the Emerald Square Mall in North Attleboro. Kosilek then fled to New York State before being arrested.

Kosilek, who was convicted as Robert Kosilek but appeared at trial dressed like a woman, legally changed her name to Michelle in 1993 and has been living as a woman in an all-male prison in Norfolk since the conviction.

In September, Wolf issued a landmark ruling that taxpayers must pay for Kosilek to undergo sex-reassignment surgery for a transsexual prison inmate because the surgery is the only adequate care for his serious mental illness, gender identity disorder.

Kosilek first sued the Department of Correction in 2000, arguing that its refusal to pay for a sex-change violates her Eighth Amendment right against cruel and unusual punishment. The department has consistently opposed Kosilek’s request.

Wolf ruled that the department has violated the Eighth Amendment.

The Patrick administration has appealed Wolf’s decision to the First Circuit Court of Appeals.

Wolf advised the state it will likely have to pay for the attorney’s fees in the case, which are currently at about $800,000.

Brian Ballou can be reached at bballou@globe.com. Follow him on Twitter @GlobeBallou.