Mass. to appeal inmate sex change surgery ruling

By STEVE LeBLANC Associated Press Published: Sep 26, 2012 at 6:03 PM PDT
Mass. to appeal inmate sex change surgery ruling
In this Jan. 15, 1993 file photo, Robert Kosilek sits in Bristol County Superior Court, in New Bedford, Mass
BOSTON (AP) — Massachusetts will appeal a federal judge's decision to grant a convicted murderer's request for sex reassignment surgery, prison officials announced Wednesday.

The state Department of Correction said that it believes the medical care Michelle Kosilek is receiving is adequate and that the court didn't address what it says are legitimate safety concerns of protecting her in prison.

U.S. District Judge Mark Wolf ruled this month that the surgery is the only adequate treatment for Kosilek's gender-identity disorder, a condition Wolf said is a "serious medical need." He said denying surgery violated Kosilek's Eighth Amendment rights. It was the first time a judge has ordered prison officials to provide sex-reassignment surgery to an inmate.

Kosilek, now 63, was named Robert when married to Cheryl Kosilek and was convicted of her 1990 murder. Kosilek has received hormone treatments and lives as a woman in an all-male prison.

"The Department's argument will not center on whether this surgery is a necessary and appropriate treatment for an individual with this particular disorder," DOC spokeswoman Diane Wiffin said in a statement.

"Our responsibilities lie with providing certain levels of medical treatment and keeping the inmates in our care and the public at large safe. We believe appealing this decision will allow us to meet those critical responsibilities," Wiffin said.

Prison officials have repeatedly cited security risks in the case, saying allowing the surgery would make Kosilek a target for sexual assaults by other inmates. Wolf has called that a "pretext" and noted that the department's own medical experts testified that they believe surgery was the only adequate treatment for Kosilek, who has twice tried to commit suicide.

Wolf's ruling led to an outcry among some legislators. They said Kosilek isn't entitled to the taxpayer-funded surgery, which can cost up to $20,000 and is considered elective by many insurance companies.

Advocates said they are disappointed but expect the judge's decision will be upheld.

"Constitutional rights belong to everyone, even the least loved, least popular people among us," said Jennifer Levi, transgender rights project director for Gay and Lesbian Advocates & Defenders. "Prisoners have a right to necessary medical care, and this is indisputably medical care, as the very strong district court decision established."

Kosilek's attorney, Frances Cohen, said she had no immediate comment because she hadn't seen an appeal.

Republican state Senate Minority Leader Bruce Tarr, who had urged the appeal, said, "Requiring the state to fund a medical procedure for a first-degree murderer that many private citizens cannot afford and that those receiving medical coverage from the state do not have the option to receive undermines the public's confidence in government and our institutions of corrections and justice."

Courts around the country have found that prisons must evaluate transgender inmates to determine their health care needs. Most have ordered hormone treatments and psychotherapy.

In a telephone interview from prison last week, Kosilek told the AP that she cried in relief when she learned of Wolf's ruling. She said people who don't understand gender-identity disorder may see it as "bizarre" but "this is who I am. This is who I have always been."