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FILE - In this May 24, 1990 file photo, Robert Kosilek is led to the county jail following his arraignment on drunken driving charges, in New Rochelle, N.Y. Kosilek was convicted in the 1990 murder of his wife in Massachusetts, and has been living as a woman, Michelle Kosilek, and receiving hormone treatments while serving life in prison in Massachusetts. On Tuesday, Sept. 4, 2012, U.S. District Judge Mark Wolf ordered Massachusetts to provide a taxpayer-funded sex-change operation for Kosilek. (AP Photo/Frankie Ziths, File)
Massachusetts judge OKs sex change for inmate
First Published Sep 04 2012 01:00 pm • Last Updated Sep 04 2012 07:18 pm

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. Kosilek was named Robert when married to Cheryl Kosilek and was convicted of murdering her in 1990.

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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.


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"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,’" Jones said. "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.

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