The inmate has been given a substantial amount of care, including female hormones, laser hair removal and psychotherapy, and doesn’t need the surgery, the Department of Corrections attorney Richard McFarland told the 1st U.S. Circuit Court of Appeals in Boston.
“The clinician didn’t say you must have this surgery, but that if you want it you can get it,” McFarland said Thursday. Only 5 percent of people diagnosed with the disorder actually undergo sex-assignment surgery, he added.
Michelle Kosilek, born Robert Kosilek, has been in a heated legal battle to get the surgery, which she says is required to relieve the emotional stress caused by the disorder. Kosilek is currently serving a life sentence for killing spouse Cheryl Kosilek in 1990.
In 2012, a federal judge ruled that the department must give Kosilek the surgery.
In January, that decision was reaffirmed by a three-judge panel of the 1st U.S. Circuit Court of Appeals, which said it is a constitutional right to receive medically necessary treatment “even if that treatment strikes some as odd or unorthodox.”
The prisons department appealed and won a rehearing before the full appeals court. Five appeals court judges heard arguments on the matter Thursday and could take months to issue a decision.
The department said in a statement Thursday that it “fully acknowledges the legitimacy of a gender identity disorder diagnosis” but was appealing because of “the court’s significant expansion of the standard for what constitutes adequate care under the Eighth Amendment.”
Multiple doctors have testified that surgery is the only sufficient treatment for Kosilek, who has tried twice to commit suicide while incarcerated. There is no exact amount of how much the state-funded surgery will cost, but it could be up to $50,000.
Kosilek’s lawyer, Joseph Sulman, said the present treatment regime has alleviated “some of her pain, but she still suffers from severe mental anguish that cannot be treated without the surgery.”
The department also argued that housing Kosilek at an all-male facility could raise serious security issues. McFarland said if Kosilek received the surgery, her notoriety could potentially create a dangerous climate for her among other prisoners.
But Judge William Kayatta, Jr. noted the department already houses infamous prisoners, and he said the only reason Kosilek is notorious is because she was “consistently pursuing her rights through the U.S. Constitution.” He also noted the department could someday be required to house an inmate who already had a sex change.
At the close of the hearing, Sulman said, “After all the medical recommendations, if the court reverses their decision, there would never be a prisoner who has a need for this surgery.”
If it loses its appeals, Massachusetts would be the first state to fund sex-reassignment surgery for an inmate.
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