Inmate seeking sex change eligible for legal fees

BOSTON — A convicted murderer in Massachusetts who won the right to get a state-funded sex change is also eligible to have legal fees — expected to top $500,000 — paid as well, a federal judge ruled.

In a landmark decision, U.S. District Judge Mark Wolf earlier this month ordered the state Department of Correction to provide sex-reassignment surgery to Michelle Kosilek. Wolf found that prison officials had violated Kosilek’s Eighth Amendment right to protection against cruel and unusual punishment, and that the surgery is the “only adequate treatment” for Kosilek’s gender-identity disorder.

Wolf has now found that Kosilek is also entitled to legal fees.

“Kosilek has prevailed on his claim that the defendant has violated his Eighth Amendment rights and is continuing to do so. Therefore, he is eligible to be awarded his reasonable attorney’s fees and costs,” Wolf wrote in an order entered in court Sunday.

Wolf’s ruling does not say how much in legal costs Kosilek is eligible for; the case dates back years and the amount is “likely to be large,” Wolf wrote.

Kosilek’s attorney, Frances Cohen, said she has not yet done a final calculation or submitted a request for fees, but she estimates that attorneys’ fees will be comparable to the approximately $500,000 sought in the case of another transgender inmate who also sued the Department of Correction for treatment of gender-identity disorder.

Cohen said she and another lawyer who worked on Kosilek’s case have offered to forego their fees if the Department of Correction agrees not to appeal Wolf’s ruling. The lawyers would still seek reimbursement for an undetermined amount paid in out-of-pocket expenses, including the fees paid to their experts.

“The judge has discretion to make an award on the basis of a fee application. This has been a hard litigated case, and the law firms … have spent a lot of time on the case,” she said.

“The firms have offered to waive their fees in exchange for Miss Kosilek getting court-ordered relief without further appeal,” Cohen said Monday.

DOC spokeswoman Diane Wiffin said the department is reviewing Wolf’s ruling on legal fees. She said the department has not made a decision yet on whether to appeal Wolf’s ruling ordering sex-reassignment surgery for Kosilek. The department has until Oct. 9 to file a notice of appeal.

State Senate Minority Leader Bruce Tarr, a Republican from Gloucester, repeated his call for the Department of Correction to appeal Wolf’s ruling.

“In ruling that the plaintiff is entitled to legal costs in his pursuit of gender reassignment surgery, Judge Wolf is continuing down the wrong path,” Tarr said in a statement Monday.

“This second inappropriate decision makes it even more critical for the Department of Correction to file appeals and stand up for the taxpayers of Massachusetts and the integrity of the Eighth Amendment.”

In his ruling, Wolf gave Kosilek’s lawyers until Oct. 4 to file a motion for attorneys’ fees. He also ordered Department of Correction attorneys to meet with Kosilek’s attorneys to see if they can come to an agreement on the amount of fees to be paid.

Kosilek, 63, was born male but lives as a woman in an all-male prison. Kosilek was named Robert when married to Cheryl Kosilek and convicted of murdering her in 1990.

Wolf’s ruling marks the first time a judge has ordered prison officials to provide sex-reassignment surgery.

Kosilek first sued state prison officials 12 years ago. Two years later, Wolf ruled that Kosilek was entitled to treatment for gender-identity disorder but stopped short of ordering surgery. Kosilek sued again in 2005, arguing that the surgery was a medical necessity. Kosilek has made two suicide attempts.

In opposing Kosilek’s request, prison officials have repeatedly cited security concerns, saying that allowing her to have the surgery could make her a target for sexual assaults by other inmates.

Wolf, however, found that the DOC’s security concerns are “either pretextual or can be dealt with.”

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