Judge is first to order sex reassignment surgery for gender-identity disorder
By Denise Lavoie
AP Legal Affairs Writer
BOSTON (AP) — A ruling ordering Massachusetts prison officials to provide sex-reassignment surgery to an inmate is being praised by advocates as important recognition that the surgery is a legitimate treatment for gender-identity disorder, even as critics including Sen. Scott Brown call it “an outrageous abuse of taxpayer dollars.”
U.S. District Judge Mark Wolf ruled Tuesday in the case of Michelle Kosilek, a transgender inmate serving life in prison for murder. Wolf said the Department of Correction must provide the taxpayer-funded surgery because it is the only way to treat Kosilek’s “serious medical need.”
Kosilek was born male but has received hormone treatments and now 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.
While courts around the country have found that prisons must evaluate transgender inmates to determine their health care needs, most have ordered hormone treatments and psychotherapy. Wolf is the first judge to actually order sex reassignment surgery as a remedy to gender-identity disorder.
“It’s great to see a judge recognize that transition-related health care is medically necessary health care and that transgender prisoners are entitled to the same health care that other folks who are incarcerated receive,” said Kristina Wertz, director of policy and programs at the Transgender Law Center in San Francisco.
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.
Republican lawmakers, including then Massachusetts state Sen. Scott Brown, filed legislation in 2008 to ban the use of taxpayer funds to pay for the surgery for prison inmates. The amendment did not make it into law.
Now in the U.S. Senate, Brown said Tuesday that the sex-reassignment 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.”
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.
Kosilek first sued the Massachusetts Department of Correction 12 years ago. Two years later, the judge 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 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.”
Wolf noted that the Department of Correction’s own medical experts testified that they believe surgery was the only adequate treatment for Kosilek.
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.
He said the inmate had proven that those purported concerns masked the real reason for denying surgery: “a fear of controversy, criticism, ridicule and scorn.”
Ben Klein, a senior attorney at Boston-based Gay & Lesbian Advocates & Defenders, said Wolf’s ruling “clearly recognizes that reassignment surgery is a legitimate life-saving medical treatment for transgender people.”
“That did not start with the court; that’s been recognized by major medical associations,” Klein said.
The judge also said in his ruling that female hormones have “helped somewhat,” but said Kosilek “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.”
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.
Inmates in Colorado, California, Idaho and Wisconsin have sued unsuccessfully to try to get the surgery, making similar arguments that denying the procedure violates the U.S. Constitution’s protection against cruel and unusual punishment.
Klein said Wolf’s ruling in the Kosilek case could help bolster the cases of other inmates, but it doesn’t mean every inmate will be able to get the surgery.
“A prisoner bears an incredibly high burden in a lawsuit to seek court-ordered medical treatment because prisoners have to prove (prison officials) have shown deliberate indifference to their medical needs,” Klein said. “Not everybody will be able to prove it.”
Kosilek’s 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.
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.”
