Appeals Court Upholds Sex Change for Mass. Inmate

A federal appeals court on Friday upheld a judge's ruling granting a taxpayer-funded sex change operation for a transgender inmate serving a life sentence for a murder conviction, saying receiving medically necessary treatment is a constitutional right that must be protected "even if that treatment strikes some as odd or unorthodox."

U.S. District Judge Mark Wolf ruled in 2012 that the state Department of Correction must provide sex reassignment surgery for Michelle Kosilek, who was born Robert Kosilek and is serving a life sentence for the killing of his wife in 1990.

The Department of Correction challenged the ruling, arguing Kosilek has received adequate treatment for gender identity disorder, including female hormones, laser hair removal and psychotherapy. Prison officials said those treatments have eased the stress and anxiety felt by the 64-year-old Kosilek, and they brought in experts who supported their argument that it was unnecessary to heed advice from independent medical experts who recommended she undergo the sex change surgery as the next step in treating her gender identity disorder.

The Department of Correction also argued it was concerned about protecting Kosilek, who's in an all-male prison, from sexual assaults if she were allowed to complete her transformation into a woman.

But judges cited a prison security review conducted after Kosilek lived safely as a woman with male prisoners, wearing women's clothing, using women's cosmetics and taking hormones that caused her to develop breasts. They said no security issues cropped up.

U.S. 1st Circuit Court of Appeals Judges O. Rogeriee Thompson and William Kayatta Jr. said in their ruling that courts must not shrink from their obligation to enforce the constitutional 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," they wrote.

One member of the three-judge appeals panel, Judge Juan Torruella, disagreed, saying in a separate opinion the ruling went beyond the boundaries of protections offered under the Eighth Amendment.

Still, Kosilek's lawyer Joseph Sulman said they were very happy her right to receive the treatment was affirmed.

"This decision is really about more than sexual reassignment surgery," Sulman said. "It's about the state's requirement to treat all prisoners equally regardless of their gender identity or regardless of the circumstances."

Kosilek was convicted of killing Cheryl Kosilek, a volunteer counselor at a drug rehabilitation facility who thought she could cure his gender identity disorder.

Kosilek first sued the Department of Correction in 2000. Two years later, the U.S. District Court judge found Kosilek was entitled to treatment for gender identity disorder but stopped short of ordering surgery. Kosilek sued again in 2005, arguing the surgery was a medical necessity.

Kosilek's attorney Frances Cohen had previously said the surgery, which can cost more than $50,000, would be paid for under a contract the Department of Correction has with its medical provider. She said the contract is based on the number of inmates, not the number of medical procedures provided, so the surgery wouldn't increase the state's costs.

Democratic Gov. Deval Patrick had no immediate comment on the appeals court ruling or whether a further appeal to the U.S. Supreme Court was possible, a spokeswoman said. The Department of Correction was reviewing the court decision.

Boston-based legal group Gay & Lesbian Advocates & Defenders said that in a civilized society there's "a baseline of care that has to be provided to all prisoners, including prisoners who are transgender."

"We hope that Michelle will now get the treatment that she desperately needs," said Jennifer Levi, director of GLAD's Transgender Rights Project.