State correction boss says six out-of-state doctors willing to perform sex reassignment surgery on murderer Michelle Kosilek

By John R. Ellement, Globe Staff

The state has identified six surgeons willing to perform sex reassignment surgery on convicted killer Michelle L. Kosilek, but none of the doctors currently perform operations in Massachusetts, according to an affidavit filed by Correction Commissioner Luis S. Spencer.

In fact, according to Spencer’s filing in US District Court in Boston, which was made public Tuesday, there are no doctors in Massachusetts or New York who regularly perform the complex surgery, forcing the state to search the nation for doctors both qualified for the task and willing to perform it on a killer serving a life sentence.

The names of the doctors and the facilities where they currently work were redacted from the affidavit under an order from US District Court Judge Mark Wolf, who sparked controversy last year when he ruled that the state is violating Kosilek’s constitutional rights by not providing sex reassignment surgery at taxpayer’s expense.

A Department of Correction spokeswoman, citing the DOC policy of not commenting on pending litigation, declined to comment on the filing. Five of the six doctors signaled they would be willing to operate on Kosilek in the Bay State if given approval by the medical authorities, the affidavit said.

The court papers stated Kosilek would need 10 to 14 days of post-surgery hospitalization to reccover from the surgery.

Gunner Scott, spokesperson for the Massachusetts Transgender Political Coalition, said there may be Massachusetts-based surgeons who perform sex reassignment surgery, but it was not immediately clear if they were proficient in the type of surgery Kosilek requires.

Regardless, Scott said, the DOC has shown a willingness to hire out-of-state medical experts when it supported their legal arguments, and now should not be allowed to delay Kosilek’s surgery on the grounds that no Massachusetts doctor would participate.

Wolf, in his landmark ruling, concluded that Kosilek’s Eighth Amendment right against cruel and unusual punishment is being violated because the medical profession now considers sex reassignment surgery a valid medical treatment for gender identity disorder.

Kosilek was born Robert Kosilek. As a man, he strangled his wife, Cheryl, in Mansfield in 1990 and dumped her body in a car at the Emerald Square Mall in North Attleborough. Kosilek then fled to New York state before being arrested. He appeared dressed as a woman at his trial.

Kosilek was convicted of first-degree murder in January 1993 and is serving life imprisonment without the possibility of parole.

The Globe refers to Kosilek as a woman because that is her preferred gender.

The Patrick administration is appealing Wolf’s ruling. While the case is winding its way through the courts, Judge Wolf has put Kosilek’s surgery on hold, provided that the DOC make an earnest effort to have a surgical team ready to go once the appeal is resolved.

Irked at what he perceived as delay tactics by the DOC, Wolf earlier this year ordered Spencer to swear under oath that he had read Wolf’s order and that he demonstate, also under oath, that the DOC was working to find the right doctor for the task.

“This affidavit demonstrates that, far from ‘foot-dragging,’ the Department has made substantial progress in taking the steps reasonably necessary to provide Kosilek with [sex reassignment surgery] promptly should the appeal’’ fail, Spencer wrote.

Spencer wrote that having identified potential surgeons, planning will now focus on getting permission for the out-of-state doctors to work in the Bay State, choosing a hospital willing to host Kosilek, and planning how many correctional officers will be needed to guard Kosilek while he is recovering from the surgery.

Separately, Wolf has ordered the state to pay Kosilek’s attorneys, led by Boston lawyer Frances Cohen, to collect $700,000 in legal fees for representing Kosilek since 2000.