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Federal appeals court upholds Mass. inmate’s right to taxpayer-funded sex change surgery

Kosilek in 1993 and in 1990.
Kosilek in 1993 and in 1990.Credit: Globe File Photos

A federal appeals court in Boston today upheld a judge’s ruling that a transsexual inmate convicted of murder is entitled to a taxpayer-funded sex change operation as treatment for her severe gender identity disorder.

In a ruling that was a first of its kind, a three-judge panel of the US Court of Appeals for the First Circuit said courts must not shy away from enforcing the rights of all people, including prisoners. “And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox,” the court said.

“Having carefully considered the relevant law and the extensive factual record, we affirm the judgment of the district court,” the court said in a 2-1 ruling, which could still be appealed to the full appeals court or to the US Supreme Court.

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The ruling came in the case of convicted wife killer Michelle L. Kosilek. Formerly named Robert Kosilek, she struggled for years with feelings that she was a woman inside a man’s body. Kosilek’s wife, Cheryl, thought she could cure Kosilek, the court said. But Kosilek strangled her in Mansfield in 1990 and dumped her body in a car at a mall in North Attleborough.

Kosilek began battling state prison officials in 1992, the year she was convicted, seeking the surgery, eventually filing two lawsuits.

Kosilek lost her first case. But in a controversial September 2012 decision in the second case, US District Court Judge Mark Wolf ordered the surgery to take place, finding that Kosilek had a serious medical need that could only be adequately treated with the surgery. Wolf also found there was no legitimate reason to deny the surgery and that doing so would be a violation of Kosilek’s right to adequate prison medical care under the Eighth Amendment, which bars cruel and unusual punishment.

The appeals court found today that Wolf was “well-placed to make the factual findings he made, and there is certainly evidentiary support for those findings. Those findings — that Kosilek has a serious medical need for the surgery, and that the DOC [Department of Correction] refuses to meet that need for pretextual reasons unsupported by legitimate penological considerations — mean that the DOC has violated Kosilek’s Eighth Amendment rights. The court did not err in granting Kosilek the injunctive relief she sought.”

The appeals court ruling is the first time an appeals court has ruled that a sex change operation was necessary for a prisoner suffering from gender identity disorder, though it follows a series of rulings in Massachusetts and across the country that have affirmed that some type of medical care is constitutionally required.

Dissenting Judge Juan R. Torruella wrote that he believed Wolf went too far in concluding that refusal by the state to provide the surgery rose to a violation of Kosilek’s constitutional protections.

“The Eighth Amendment proscribes punishment, including punishment in the form of medical care so unconscionable as to fall below society’s minimum standards of decency,’’ Torruella wrote.

He added: “Its boundary simply does not reach, however, to instances of care that, although not ideal, illustrate neither an intent to harm nor the obstinate and unwarranted application of clearly imprudent care. Respectfully, I would reverse.”

Despite today’s ruling, it’s not clear if the surgery will take place any time soon. The surgery has been on hold since Wolf’s ruling while Governor Deval Patrick’s administration appealed.

The DOC identified one out-of-state doctor willing to perform the surgery, after no surgeon in Massachusetts expressed a willingness to take on the task.

But the doctor — whose name is blacked out in court papers — does not currently have the approval of the state Board of Registration in Medicine to perform the surgery on Kosilek or anyone else, according to court records.

Kosilek, 64, has been staying in a men’s prison in Norfolk while taking hormones and developing female physical qualities. Under Globe policy, Kosilek is being referred to as a woman because that is the gender with which she identifies.

Gay & Lesbian Advocates & Defenders issued a statement hailing the ruling.

“Like the district court before it, the First Circuit has affirmed that constitutional rights belong to everyone,” said Jenifer Levi, director of GLAD’s Transgender Rights Project. “The Appeals Court affirmed that the District Court properly found that Michelle Kosilek needed this lifesaving medical care. If she needed treatment for cancer or heart disease, this case would never have wound up in court. If we are to call ourselves a civilized society, there is a baseline of care that has to be provided to all prisoners, including prisoners who are transgender.”

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