Federal judge presses state prison boss to prepare for possible Kosilek sex change surgery

By John R. Ellement, Globe Staff

A federal judge has ordered the state’s prison chief to swear under oath he is making an earnest effort to find a surgeon willing to perform gender reassignment surgery on convicted killer Michelle Kosilek, who killed his wife as a man but now identifies himself as a woman.

Michelle Kosilek

In a ruling filed in US District Court, Judge Mark Wolf ordered Correction Commissioner Luis S. Spencer to sign status reports detailing the search for a surgeon under oath, and to also swear under the pains of perjury that he has personally read Wolf’s seven-page order.

“The court finds that it is appropriate to require more detailed monthly reports, signed under oath by Spencer … to determine whether there is any possible willful disobedience,’’ Wolf wrote.

Last September, Wolf ruled that Kosilek’s Eighth Amendment right against cruel and unusual punishment was being violated by the Department of Correction because the state agency had balked at providing taxpayer-financed gender reassignment surgery for the inmate.

Wolf ruled that Kosilek, who identified as Robert Kosilek when he strangled his wife, Cheryl McCaul, in 1990, is entitled to the surgery because it is a medically necessary treatment for her gender identity disorder.

But Wolf then ruled that the surgery would be put on hold while the Patrick administration appeals his controversial decision — provided that the Department of Correction prepares to have the surgery quickly performed, should the long-running legal battle quickly end.

In his newest order, Wolf wrote that the Department of Correction and Spencer appear to be ignoring his instructions. The state, the judge wrote, has assigned a deputy superintendent to search for the surgeon, and officials have had one conversation about the issue with two doctors who work for the Department of Correction, but have done nothing else since Nov. 20.

“The court is concerned that the pattern of resistance and delay regarding adequate medical care for transsexual prisoners … may be continuing,’’ Wolf wrote, drawing on the findings of the Court of Appeals for the First Circuit in another transsexual prisoner case.

Department of Correction spokeswoman Diane Wiffin said the agency would not comment because of the pending litigation.

Wolf has also ordered the state to pay Kosilek’s legal team, led by Frances S. Cohen of Bingham McCutchen LLP, $700,000 in legal fees. Cohen and her firm have been working on the case since 2000 and have told Wolf they would waive all legal fees in return for the Department of Correction dropping its appeal and providing Kosilek the surgery.

Estimates for the cost of the surgery range from $7,000 to $50,000.