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Federal judge approves gender reassignment surgery for convicted murderer

Tuesday, September 4, 2012

BOSTON — A federal judge on Tuesday ordered the Massachusetts Department of Corrections to provide taxpayer-funded gender reassignment surgery to an inmate serving life in prison for murder, “because it is the only way to treat her serious medical need.”

In a 126-page ruling, U.S. District Court Chief Judge Mark Wolf said that the treatment for Michelle Kosilek had been prescribed by Department of Correction doctors, and that the only justifications for denying the treatment were based on public opinion.

This the first time that a federal judge has ordered corrections officials to provide gender reassignment surgery for a transgender inmate.

Michelle Kosilek

According to court documents, Kosilek, a transgender female inmate, first sued the Department of Corrections 12 years ago. After two years of litigation, Kosilek — in her first appearance before Wolf — won the right to receive hormone treatments, although Wolf stopped short of ordering the gender reassignment surgery.

Kosilek sued again in 2005, arguing that the surgery is a medical necessity.

In his ruling Tuesday, Wolf found that surgery would be the “only adequate treatment” for Kosilek, and that “there is no less intrusive means to correct the prolonged violation of Kosilek’s Eighth Amendment right to adequate medical care.”

Corrections officials have repeatedly argued that allowing Kosilek to have the surgery would make her a target for sexual assaults by other inmates.

Wolf, a Reagan appointee to the federal judiciary, disagreed — security concerns are “either pretextual or can be dealt with,” he wrote.

Kosilek who is serving a life sentence, has been housed in an all-male correctional facility in Norfolk, Mass., after being imprisoned for the 1990 murder of her spouse Cheryl Kosilek. Wolf said it would be up to prison officials to decide how and where to house Kosilek following the surgery.

Diane Wiffin, a spokeswoman for the Department of Corrections, said the agency would have no immediate comment on the ruling, but said the department is “reviewing the decision and exploring our appellate options.”

Kosilek, in a 2011 interview with the Boston Globe, said that the surgery is a medical necessity, not a frivolous desire to change her appearance.

“Everybody has the right to have their health care needs met, whether they are in prison or out on the streets,” Kosilek said. “People in the prisons who have bad hearts, hips or knees have surgery to repair those things. My medical needs are no less important or more important than the person in the cell next to me.”

Kosilek’s lawsuit has become fodder for radio talk shows and Massachusetts lawmakers, who said the state should not be forced to pay for a convicted murderer’s sex-change operation – which can cost up to $20,000 – especially since many insurance companies reject the surgery as elective.

Kristina Wertz, Director of Programs and Policy for the Transgender Law Center in San Francisco, told LGBTQ Nation that “there is a strong medical consensus that health care related to gender transition is medically necessary for transgender people.”

“We are heartened to see the court recognize that transgender people who are incarcerated are entitled to the same access to medically necessary services that all people in prison should receive,” said Wertz, in an email statement.

To date, inmates in Colorado, California, Idaho and Wisconsin have been unsuccessful in obtaining approval for gender reassignment surgery, making similar arguments in lawsuits that denying the surgery violates the U.S. Constitution’s protection against cruel and unusual punishment.

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Filed under: Massachusetts

32 more reader comments:

  1. So…a law-abiding citizen can die from cancer when they can’t afford treatment, but a murderer can get a sex change on taxpayer money? Screw that.

    Posted on Tuesday, September 4, 2012 at 9:30pm
  2. yeah… I’m sorry, but I’m with Janae… prison is supposed to be punishment.

    Posted on Tuesday, September 4, 2012 at 9:33pm
  3. This is a crock of shit. Excuse my language. But this is in no way a life or death medical issue. The man is going to rot in prison and obviously already has mental issues since he murdered someone. If he ever does get out of prison he should then pay for his own damn gender reassigment surgery. Not be granted the opportunity under our tax money. That’s bullshit and this story does nothing but shed more negative light on homosexual and trans people.

    Posted on Tuesday, September 4, 2012 at 9:33pm
  4. In other words. This should not be a gay issue.

    Posted on Tuesday, September 4, 2012 at 9:34pm
  5. Disgusted. I know perfectly law abiding people who can’t afford the surgery, so why does a murderer in prison deserve one over any of them? Stupid Judge!

    Posted on Tuesday, September 4, 2012 at 9:46pm
  6. I don’t see this as a reason to celebrate either.

    Posted on Tuesday, September 4, 2012 at 9:47pm
  7. I highly dissagree with this. If they’ve been in prison this long make them work for payment for it! I cant afford shit for surgery or regular medical treatment. STUCK on Disability and Food Stamps the rest my life Medicaid aint going to cover it anytime soon. So Im stuck suffering trying to save up with the little 698 or so I get a month and they get this freebie? Not even close to fair. I cant even find a medical doctor or therapist locally thats medicaid covered and transgender friendly. AVNREINAREOINTAE! So freakin frustrated over this!

    Posted on Tuesday, September 4, 2012 at 9:50pm
  8. Unless a psychiatrist can prove not having the surgery would impede on the rehabilitation process, it’s not necessary and I think it’s going to look bad on the transgendered community (the vast majority of which are NOT convicted murderers). I don’t see anything in the article about this being a part of her rehabilitation so I don’t see why it was medically necessary.

    Worth noting though, prison isn’t for punishment. The countries with the lowest crime rates certainly don’t think so. It’s for rehabilitation in the best case scenarios, and creating an environment where they are safe and others are safe from them in the worst. Our crime rates our high because we do nothing to stop people from become repeat offenders, have absolutely no follow up, and basically isolate those who are released.

    Posted on Tuesday, September 4, 2012 at 9:51pm
  9. I think this is an issue about the fair use of scarce public funds in ways that serve society best. I think this decision fails that test.

    Posted on Tuesday, September 4, 2012 at 10:05pm

    Posted on Tuesday, September 4, 2012 at 10:22pm
  11. Yeah, not sure I’m down with this.

    Posted on Tuesday, September 4, 2012 at 10:31pm
  12. This is bullshit pure and simple when u elect to kill someone u do not get to say the public has to pay for a surgery u elect to have because u decided to start hormone therapy in or out of prison u lost that right to choose when u decided that another person’s life was no longer relevant. WTF People this isn’t an LGBT issue it’s an inmate manipulating the system issue

    Posted on Tuesday, September 4, 2012 at 11:04pm
  13. Not ok with this that fucker should rot on hell

    Posted on Wednesday, September 5, 2012 at 4:27am
  14. Thanks for making the LBGT community stupid you asshole

    Posted on Wednesday, September 5, 2012 at 4:28am
  15. Sorry the LGBT stupid phone

    Posted on Wednesday, September 5, 2012 at 4:28am
  16. I believe they should allow her to have the surgery, If SHE can pay for it, not US.

    Posted on Wednesday, September 5, 2012 at 4:41am
  17. I do not believe that the taxpayer should have to pay for this. We wouldn’t if she were free & on Medicare/Medicaid, so why should we when she’s a convicted murderer?

    Posted on Wednesday, September 5, 2012 at 5:16am
  18. This lesbian says “No”.

    Posted on Wednesday, September 5, 2012 at 6:43am
  19. This is awful. I can’t believe I actually agree with Scott Brown, but it really is a terrible abuse of taxpayer money. This is the kind of thing that makes us look really, really bad. I’ve had some trouble getting past the whole surgical intervention aspect in my own journey to accepting and embracing transgenderism – entitlement-riddled bullshit like this just doesn’t help.

    Posted on Wednesday, September 5, 2012 at 7:11am
  20. Well since she’s in there for life, they should at least have her pay for it through her imprisonment related work. According to psychologists it is a medical necessity for individuals with gender dysphoria, and even though this case does not set precedent, one day all insurance providers will hopefully cover this (until there is universal healthcare which I don’t see coming anytime soon). All of that doesn’t take away from the fact that she committed a horrible crime for which is is paying with lifetime imprisonment. Just saying. Prisons in my opinion should be about real rehabilitation not just punishment since most inmates one day will be released into the general population. Just my two cents.

    Posted on Wednesday, September 5, 2012 at 9:08am
  21. im sorry but this really pisses me off, why the fuck r they using taxpayers money to pay for it, she is in their for life because she murdered someone, im sorry she wants to change her gender but then she should have obeyed the law and not hurt anyone and she could be out and live her life the way she wants. she should pay off the surgery by doing extra work around the prison or working on a big project for the county or state she is serving her time, this is exactly part of the reason our justice system is so fucked up, because we waste money that should go to more important things and it is paying for an unneccesary surgery

    Posted on Wednesday, September 5, 2012 at 11:39am
  22. hmm interesting

    Posted on Wednesday, September 5, 2012 at 1:46pm
  23. And the rest of us have to pay for ours, not fair. And have to fight with insurance companys.

    Posted on Wednesday, September 5, 2012 at 1:54pm
  24. Not fair?? Really? Wonderful step forward!

    Posted on Wednesday, September 5, 2012 at 1:59pm
  25. Not really. I’m all for transgender rights, but in my opinion, when you commit a crime, like killing your spouse, your rights are rescinded except for the basics. So she is uncomfortable in the body she was born with – what about lower cost alternatives such as ad-seg, anti-depressants, etc. to easy her comfort level. The correctional administration needs to look at the cost/benefit analysis of performing the surgery vs. special needs housing etc. Also, I was once told by a TG person that she had to take immense amounts of female hormones to maintain her femininity. In the long run, what will happen with the long term use? Are we going to eventually have to pay for that person’s cancer treatment as well? Don’t get me wrong, if a law-abiding citizen makes the decision to go through and pay for the transition, that’s one thing. When someone in the system gets it, that’s another. Her victim’s rights were not honored.

    Posted on Wednesday, September 5, 2012 at 2:14pm
  26. Thomas Hodges, why not tell the family he destroyed by murdering someone that its fair. You think its a step forward to reward a MURDERER with free healthcare? Shame!

    Posted on Wednesday, September 5, 2012 at 2:26pm
  27. Well said Krista!

    Posted on Wednesday, September 5, 2012 at 2:40pm
  28. Upon killing someone (In the case of murder and not defense), you should be stripped of everything. Health care for those who deserve and need.

    Posted on Wednesday, September 5, 2012 at 2:50pm
  29. All prisoners get free healthcare, clothing, food as well as other necessities anyway…but i totally disagree with this. American citizens who abide by the law are getting more and more destitute everyday that passes. I dont understand this at all. We cant get free necessities so why should criminals? Everybody NEEDS healthcare but why should we pay for someone elses if we cant afford it ourselves.

    Posted on Wednesday, September 5, 2012 at 3:48pm
  30. I asked my transgender teen what her opinion on this was and guess what ? A resounding No came out! You are a murderer and do not deserve( especially at taxpayer expense) to have a surgery so you can live a full life. This person gave up their rights.

    Posted on Wednesday, September 5, 2012 at 4:25pm
  31. THIS IS SO WRONG!! First of all; I want to say, I am gay man, but I DO NOT support this, at all! Taxpayers SHOULD NOT be “footing, the bill” for this surgery!!! CASE CLOSED! If, you want the surgery, YOU raise the money; for your own damn surgery, then YOU can have it done!!! This is an elective procedure…. not a life, or death situation!! PAY FOR IT, YOURSELF!!!

    Posted on Thursday, September 6, 2012 at 1:31am
  32. This particular case (and law) needs to be thrown out! They should NOT allow the misappropriation of taxpayer money, this way!

    Posted on Thursday, September 6, 2012 at 1:37am