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Convict's sex-change bid to get a second review

Prisons chief will reconsider killer's request

A federal judge is weighing whether to order the state to provide sex-change surgery for inmate Michelle Kosilek. A federal judge is weighing whether to order the state to provide sex-change surgery for inmate Michelle Kosilek. (LISA BUL/ASSOCIATED PRESS/1993 FILE)
Email|Print|Single Page| Text size + By Denise Lavoie
Associated Press / April 2, 2008

The new commissioner of the state's prison system said yesterday he plans to reexamine the case of a convicted killer suing the Department of Correction for a sex-change operation.

Prison officials have strenuously opposed a request from Michelle Kosilek to have the surgery, saying it could make her a target for sexual assault by other inmates.

But Harold Clarke, who took over as correction commissioner in November, said he has not decided whether to continue to fight Kosilek's request.

"I need to take a look at the information presented before I arrived and, with a fresh set of eyes, closely scrutinize it," Clarke said, following a status hearing in US District Court on Kosilek's lawsuit.

Robert Kosilek was sentenced to life in prison for murdering his wife, Cheryl, in 1990. Kosilek legally changed her name to Michelle in 1993 and has been living as a woman in an all-male prison in Norfolk.

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.

In 2002, US District Judge Mark Wolf ruled that prison officials had failed to adequately treat Kosilek's gender identity disorder, but stopped short of ordering the state to allow the operation. Wolf found that the department had not violated Kosilek's Eighth Amendment rights because Kosilek did not prove that the correction commissioner had shown "deliberate indifference" to Kosilek's medical needs.

Kosilek, 58, sued again in 2005, saying the hormone treatments, laser hair removal, and psychotherapy she has received since Wolf's 2002 ruling were not enough to relieve her anxiety and depression.

For the last year, Wolf has been weighing whether to order the Department of Correction to allow the surgery. Several medical specialists who testified for Kosilek, as well as several doctors retained by the department's health provider, said they believe the surgery is medically necessary for Kosilek, who has twice tried to commit suicide in prison. Other specialists hired by the department said Kosilek does not need the surgery.

Wolf ordered Clarke to attend yesterday's hearing after Kosilek's lawyers said they wanted to hear Clarke's position on the case. Kosilek's lawyers added that Clarke formerly headed the prison system in Washington state, which housed a transsexual murderer from New Hampshire.

Clarke said he is willing to testify in the Kosilek case, but a Correction Department lawyer asked for more time so Clarke can review previous testimony in the case. Clarke is scheduled to testify on May 12.

Kathleen Dennehy, Clarke's predecessor, testifying in June 2006, said that if Kosilek were allowed to have a sex-change operation, it would pose insurmountable security risks.

Dennehy said prison officials believed Kosilek would become a target for sexual assault in either a male or female prison. Dennehy also said she would resign if she was ordered to allow Kosilek to have the surgery.

Clarke said he doesn't believe it would come to that. "I don't think I'd resign if the court ordered" the sex change, he said. "It's a very serious matter that I think deserves my close attention."

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