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Federal judge approves gender reassignment surgery for convicted murderer

Tuesday, September 4, 2012
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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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