By Denise Lavoie Associated Press
BOSTON — State prison officials must provide taxpayer-funded sex-reassignment surgery to a transgender inmate serving life in prison for murder, because it is the only way to treat her “serious medical need,” a federal judge ruled Tuesday.
Michelle Kosilek was born male but has received hormone treatments and now lives as a woman in an all-male prison. Robert Kosilek was convicted of murder in the killing of his wife in 1990.
U.S. District Judge Mark Wolf is believed to be the first federal judge to order prison officials to provide sex-reassignment surgery for a transgender inmate.
Kosilek first sued the Massachusetts Department of Correction 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 is a medical necessity.
In his 126-page ruling Tuesday, Wolf found that surgery is 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.”
Prison officials have repeatedly cited security risks in the case, saying that allowing Kosilek to have the surgery would make her a target for sexual assaults by other inmates.
But Wolf, who was appointed to the federal bench by President Ronald Reagan in 1985, found that the security concerns are “either pretextual or can be dealt with.” He said it would be up to prison officials to decide how and where to house Kosilek after the surgery.
Diane Wiffin, a spokeswoman for the prisons department, said the agency would have no immediate comment on the ruling.
“We are reviewing the decision and exploring our appellate options,” Wiffin said.
In a telephone interview last year with The Associated Press, Kosilek said 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.”
Wolf noted that the Department of Correction’s own medical experts testified that they believe surgery was the only adequate treatment for Kosilek.
The department’s ex-commissioner Kathleen Dennehy testified that giving Kosilek the surgery would present insurmountable security concerns, but Wolf said the inmate had proven that those purported concerns masked the real reason for denying surgery: “a fear of controversy, criticism, ridicule and scorn.”
Kosilek’s lawsuit has become fodder for radio talk shows and Massachusetts lawmakers who say 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.
House Republican Leader Bradley Jones said it is difficult for him to believe that a sex-change procedure is medically necessary.
“It’s one thing to say, ‘I have cancer and am in need of treatment,”’ said Jones. “It seems to be more medically desirable than a necessity.” He also worried that the decision could open up a “Pandora’s box” of requests for medical procedures from other inmates.
In 2008, Republican lawmakers, including then state Sen. Scott Brown, filed legislation to ban the use of taxpayer funds to pay for the surgery for prison inmates. The amendment did not make it into law.
Brown, now in the U.S. Senate, said Tuesday that the surgery would be “an outrageous abuse of taxpayer dollars.”
“We have many big challenges facing us as a nation, but nowhere among those issues would I include providing sex change surgery to convicted murderers,” Brown said in a statement. “I look forward to common sense prevailing and the ruling being overturned.”
Inmates in Colorado, California, Idaho and Wisconsin have sued unsuccessfully to try to get the surgery, making similar arguments that denying it violates the U.S. Constitution’s protection against cruel and unusual punishment.
Wolf noted that Kosilek’s gender-identity disorder has caused her such anguish that she has tried to castrate herself and twice tried to commit suicide.
Kosilek’s lead attorney, Frances Cohen, called the decision courageous and thoughtful.
“We feel very grateful that the judge listened very carefully to the medical experts and has given Michelle Kosilek what the prison doctors had recommended,” Cohen said.
Ben Klein, a senior attorney at the Boston-based legal group Gay &Lesbian Advocates &Defenders, said Wolf’s ruling recognizes what some medical experts have said for years: that sex-reassignment surgery can be a “legitimate life-saving medical treatment for transgender people.”
Klein said other inmates seeking the surgery can cite Wolf’s ruling, but they would still have to prove that prison officials showed deliberate indifference to their medical needs.
“Not everybody will be able to prove it, but at the same time, the prisons’ decisions have to be based on proper medical care and not bias,” Klein said.
In Kosilek’s case, the judge said, female hormones have “helped somewhat,” but the inmate “continues to suffer intense mental anguish” because she truly believes she is a woman trapped in a man’s body.
“That anguish alone constitutes a serious medical need,” Wolf wrote. “It also places him at high risk of killing himself if his major mental illness is not adequately treated.”